As filed electronically with the
Securities and Exchange Commission on August 25, 1998
Registration No. 333-60169
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1
to
Form S-3
Registration Statement
Under
The Securities Act of 1933
-----------------------
ROOM PLUS, INC.
(Exact name of registrant as specified in its charter)
New York 11-2622051
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
91 Michigan Avenue
Paterson, New Jersey 07503
(973) 523-4600
-----------------------
(Address, including zip code and
telephone number including area code,
of registrant's principal executive office)
-----------------------
C. Kenneth Shank, Esq.
Wilentz, Goldman & Spitzer, PC
90 Woodbridge Center Drive
Woodbridge, New Jersey 07095
(732) 855-6145
-----------------------
(Name, address, including zip code and telephone
number including area code, of agent for service)
<PAGE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [ X ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class Proposed Maximum Proposed Maximum Amount of
of Securities to be Amount to be Offering Price Per Aggregate Offering Registration
Registered Registered (1) Share (2) Price (2) Fee
- ------------------- -------------- ------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Common stock,
$.00133 par value 1,366,250 $2.4063 $3,287,607.38 $969.84(3)
550,000 $1.75 $962,500.00 $283.94
---------- ------------- --------
TOTAL 1,916,250 $4,250,107.38 $1,253.78
</TABLE>
- ------------------------
(1) This Pre-Effective Amendment Number 1 supplements the initial registration
statement filed on July 30, 1998 with the registration of an additional
550,000 shares. Pursuant to Rule 457(a), a filing fee of $283.94 has been
paid with respect to the 550,000 shares registered herewith.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for purposes of calculating amount of registration fee, based upon the
average of the high and low prices reported on July 23, 1998 and August 19,
1998, as reported on the NASDAQ Stock Market.
(3) Previously paid.
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
<PAGE>
DATED AUGUST 25, 1998
PROSPECTUS
ROOM PLUS, INC.
1,916,250 Shares of Common Stock, $.00133 par value
This Prospectus relates to 1,916,250 shares of common stock, $.00133 par
value of Room Plus, Inc. (the "Company"), a New York corporation. These shares
are being offered for sale by the Selling Shareholders as hereinafter defined
(this "Offering").
The Company has heretofore granted to Allan J. Socher ("Socher") and Marc
I. Zucker ("Zucker") warrants (the "Executive Warrants") to purchase an
aggregate of 550,000 shares of the Company's common stock, 500,000 at a purchase
price of $3.00 per share and 50,000 at a purchase price of $3.0625 per share. In
June 1995, the Company granted to Mark Rubin ("Rubin") warrants (the "Rubin
Warrants") to purchase a maximum of 56,250 shares of common stock at a purchase
price of $2.00 per share. In September 1995, the Company granted to Kirlin
Securities, Inc. ("Kirlin") warrants (the "Kirlin Warrants") to purchase a
maximum of 750,000 shares of common stock at a purchase price of $1.20 per share
(all, the "Warrant Stock", and collectively with the "Option Stock" (as
hereinafter defined), the "Common Stock"). The current holders of the Kirlin
Warrants are Swan Alley (Nominees) Limited, Frank Terzo, Mark Rubin, Alan Lyons,
David Lindner and Anthony J. Kirincic (the "Kirlin Shareholders").
On April 27, 1998, the Company issued to Rubin and Finbar O'Neill
("O'Neill", and collectively with Zucker, Socher, the Kirlin Shareholders and
Rubin, the "Selling Shareholders") options to purchase an aggregate of 500,000
shares of the Company's common stock at an exercise price of $2.125 (the
"Initial Option Stock"). On June 23, 1998, the Company issued to Rubin
additional options to purchase an aggregate of 60,000 shares of the Company's
common stock at an exercise price of $2.125 (the "Additional Option Stock", and
collectively with the Executive Option Stock and the Initial Option Stock, the
"Option Stock").
The Company will receive the proceeds from the exercise of the warrants
and options but will not receive any of the proceeds from the sale of the Common
Stock.
This Offering is not being underwritten. The shares of Common Stock being
offered hereunder may be sold from time to time by the Selling Shareholders in
one or more transactions on the NASDAQ SmallCap Market ("NASDAQ"), in block
transactions, in negotiated transactions or by a combination of such methods of
offering at prevailing market prices, at prices related to prevailing market
prices or negotiated prices. All of the expenses of preparing and filing the
Registration Statement of which this Prospectus forms a part are being paid by
the Company.
The common stock of the Company is traded on NASDAQ under the symbol
PLUS. On July 23, 1998, the average of the high and low prices at which the
Common Stock was quoted on NASDAQ was $2.4063. On August 19, 1998, the average
of the high and low prices at which the Common Stock was quoted on NASDAQ was
$1.75.
INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" ON PAGE 5.
THESE 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.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These 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 these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
------------------------------------------
The date of this Prospectus is August 25, 1998
3
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and files reports and other
information with the Securities and Exchange Commission (the "Commission") in
accordance therewith. Such reports, proxy statements, and other information
filed by the Company are available for inspection and copying at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices located at 7 World Trade
Center, Suite 1300, New York, New York 10048, and at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material may be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth St., N.W., Washington, D.C. 20549, at prescribed rates.
The Commission maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission. The common stock of the Company is traded as
a "NASDAQ SmallCap Market Security" on the NASDAQ SmallCap Market. Reports and
other information concerning the Company may be inspected at such exchange.
------------------------------
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference in this Prospectus:
(1) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997 including all amendments thereto.
(2) The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended March 31, 1998.
(3) The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended June 30, 1998.
(4) Form 8-K filed on February 18, 1998.
(5) Form 8-K filed on August 7, 1998.
(6) Registration Statement on Form 8-A, SEC File No. 001-14478, filed
on October 22, 1996, registering the Company's common stock under
Section 12 of the Exchange Act, which describes the class of
securities being registered hereunder.
All documents filed by the Company pursuant to Sections 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 Common Stock offered hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof.
This Prospectus incorporates documents by reference which are not
presented herein or delivered herewith. The Company will provide without charge
to each person to whom this Prospectus has been delivered, upon the written or
oral request of any such person, a copy of any and all of the foregoing
documents incorporated herein by reference (other than exhibits to such
documents which are not specifically incorporated by reference into the
information that this Prospectus incorporates). Written or telephone requests
should be directed to Investor Relations Department, Room Plus, Inc., 91
Michigan Avenue, Paterson, New Jersey 07503, telephone number (973) 523-4600.
Statements contained in the documents incorporated by reference shall be
deemed modified and superseded to the extent that statements contained herein
modify or supersede such statements.
4
<PAGE>
No dealer, salesman, or any other person has been authorized to give any
information or to make any representation not contained in this Prospectus, and,
if given or made, such information and representation must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any of the securities offered
hereby in any state to any person to whom it is unlawful to make such offer in
such state. Neither the delivery of this Prospectus nor any sales made hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof.
This Prospectus constitutes a part of a Registration Statement which the
Company has filed with the Commission under the 1933 Act with respect to the
Common Stock. This Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the Registration
Statement and related exhibits thereto for further information with respect to
the Company and the securities offered hereby. Such additional information can
be obtained from the Commission's office in Washington, D.C. Any statements
contained herein concerning the provisions of any documents are not necessarily
complete, and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
CERTAIN STATEMENTS IN THIS PROSPECTUS (INCLUDING DOCUMENTS INCORPORATED
HEREIN BY REFERENCE) CONSTITUTE "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING
OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. SUCH FORWARD-LOOKING
STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS
WHICH MAY CAUSE THE ACTUAL RESULTS, PERFORMANCE, OR ACHIEVEMENTS OF THE COMPANY
TO BE MATERIALLY DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE, OR ACHIEVEMENTS
EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS.
THE COMPANY
General
The Company is a fully-integrated manufacturer and retailer of
mica-laminated furniture for residential uses, primarily bedroom furniture for
children ages three to 16 years old. The Company's products are of a modular
design and are intended to be multi-functional, interchangeable and
space-saving.
The Company distributes its products through its own distribution network
of 16 retail showrooms located in the greater New York City and Philadelphia
metropolitan areas. Management believes that stores located in strip malls and
densely populated areas offer the highest visibility of the Company's products
and ease of access for the Company's targeted customers. The Company's retail
showrooms range from approximately 2,000 to 5,000 square feet.
The Company uses standard component pieces to manufacture furniture for
children's and adult's bedrooms and home offices. The approximately 300 standard
components can be finished in various colors and textures and combined in
various configurations to produce a finished product which is personalized to
the customer's taste, space and budget. The use of standard components also
permits the Company's furniture to be reconfigured as the customer's needs or
tastes change.
The Company does not maintain a large inventory of finished products
(other than showroom display models) because the Company's finished products are
manufactured from standard components and personalized to the customer's needs.
Finished products are manufactured to meet a specified desired delivery date,
which is generally fixed at the time of the order and is generally within two to
six weeks thereafter.
The Company's manufacturing operations are conducted in a 78,000 square
foot facility located in Paterson, New Jersey. In the past two years, the
Company has implemented numerous changes to its manufacturing facility and
processes in order to reduce the future direct costs of manufacturing and to
produce more contemporary styles of high quality, mica-laminated furniture.
5
<PAGE>
The Company was organized under the laws of New York in 1982 under the
name RPF Holding Corp. Its executive offices are located at 91 Michigan Avenue,
Paterson, New Jersey 07503, its telephone number is (973) 523- 4600 and its
electronic mail address is [email protected].
Financings and Conditional Merger Agreement
On July 31, 1998, the Company entered into certain agreements with David
A. Belford ("Belford") pursuant to which Belford loaned the Company the sum of
$1,500,000.00 for a two (2) year term at an annual interest rate of 12% (the
"Loan") and received a Warrant to purchase 2,000,000 shares of the Company's
common stock at an exercise price of $2.00 per share. Based upon the number of
shares of the Company's common stock currently outstanding, upon full exercise
of the Warrant, Belford would own approximately 31.3% of the Company's common
stock. The Loan is secured by a pledge of substantially all of the Company's
assets pursuant to a Security Agreement dated July 31, 1998. Pursuant to the
Loan Agreement, Belford was also elected as a Director and Chairman of the Board
of the Company, and all expenditures by the Company in excess of $5,000.00
require the prior approval of Belford, which is not to be unreasonably withheld.
Simultaneously with the execution of the foregoing agreements between the
Company and Belford, the Company also entered into a Conditional Agreement and
Plan of Merger with Nationwide Warehouse & Storage, Inc. ("Nationwide") dated
July 31, 1998 (the "Merger Agreement"). David Belford is the Chairman and Chief
Executive Officer and 50% shareholder of Nationwide which is a national chain of
retail furniture stores. Pursuant to the Merger Agreement, Nationwide is granted
the right to merge with the Company (the "Merger") if Nationwide's Board of
Directors and Shareholders so elect within five (5) business days following the
issuance of the Company's financial statements for the fiscal year ending
December 31, 1998. The Merger Agreement provides for the Company to issue an
aggregate of 61,965,000 shares of its common stock to Nationwide's shareholders
in the Merger, which amount would be increased to 84,915,000 shares if
Nationwide were to acquire a related company in exchange for its stock prior to
the Merger. Marc Zucker, Allan Socher, Theodore Shapiro and Frank Terzo,
directors of the Company, who currently own in the aggregate 1,471,267 shares of
common stock of the Company, exclusive of warrants and options, have agreed to
vote their shares in favor of the merger, which has been approved by the Room
Plus Board of Directors. There is no assurance that Nationwide will elect to
proceed with the Merger which is also subject to approval by the Company's
shareholders and other conditions.
Reference is made to the Company's Form 8-K dated August 7, 1998 and the
exhibits thereto for more complete information concerning the transactions
described in this section.
RISK FACTORS
History of Losses; No Assurance of Profitability
The Company incurred a net loss for the fiscal year ended December 31,
1997 and for the six months ended June 30, 1998. There can be no assurance that
the Company will be profitable in the future. As of June 30, 1998, the Company
had a working capital surplus of $506,972 and an accumulated deficit of
($4,080,692).
Possible Need for Additional Financing
Prior to receipt of the above-referenced Loan, the Company had
substantially depleted it cash reserves. The Company has applied the Loan to
repay outstanding indebtedness and for working capital. The Company believes
that its remaining cash balances, coupled with improvements in operations,
should provide sufficient capital to enable the Company to fund its operations
for the next twelve months. After that period, however, additional financing may
be required in order for the Company to fund its operations. There can be no
assurance that adequate financing will be available on acceptable terms, if at
all.
6
<PAGE>
Uncertainty of Market Acceptance in New Markets
The Company has recently expanded its retail showrooms into the greater
Philadelphia area. As a result, the Company will have to advertise extensively
and develop name recognition among consumers. Moreover, the consumers in the
greater Philadelphia area may have different preferences for furniture or may
otherwise not be as receptive to the Company's products as consumers in the
metropolitan New York area. For these reasons, as well as factors normally
associated with expansion, there can be no assurance that retail showrooms
opened in these new markets will generate sales sufficient to compensate for the
increase in overhead, or generate sales or earnings consistent with those
generated by retail showrooms in the Company's existing markets.
Cyclical Nature of Retail Furniture Industry
The retail furniture industry historically has been cyclical and directly
affected by, among other things, housing starts, existing home sales, consumer
confidence and general economic conditions. Furniture purchases are generally
discretionary and, in light of the fact that they represent a significant
expenditure to the average consumer, they are often deferred during times of
economic uncertainty. Accordingly, any period of economic uncertainty may have a
material adverse effect on the Company's financial condition.
Competition
The home furnishings industry is a highly competitive and fragmented
market with annual U.S. sales of $49.6 billion in 1996 and estimated annual U.S.
sales of $53 billion in 1997.
The Company is the largest retailer of mica-laminated home furniture in
the New York metropolitan area. Several small retailers, such as Atlantic
Furniture and Kids' Room, and large retailers, such as IKEA, also sell mica-
laminated furniture similar to that sold by the Company in the same geographic
region. The Company also competes directly or indirectly with all manufacturers
and retailers of home furniture, including Huffman Koos, Levitz, Thomasville and
Drexel Heritage. In addition, there are no significant barriers to prevent the
entry of additional competitors in the home furniture industry generally or in
the mica-laminated furniture market particularly. Many of the Company's current
and potential competitors have substantially greater financial, manufacturing,
marketing, distribution and sales resources than the Company, and there can be
no assurance that the Company will be able to compete successfully in the
future.
Dependence on Key Personnel
The Company is largely dependent on the continued service of Marc Zucker,
its Chief Executive Officer, and Allan Socher, its President and Director of
Marketing. The loss of the services of either Messrs. Zucker or Socher could
have a material adverse effect on the Company's operations and financial
condition. The Company does not maintain key man life insurance on the lives of
Messrs. Zucker or Socher. The Company has entered into employment agreements
with each of Messrs. Zucker and Socher, which agreements may be terminated by
the Company by not less than three years' notice or by the respective employee
on not less than three months' notice.
Possible Delisting of Securities
There can be no assurance that the trading market for the Company's
securities will be sustained. The continued trading of the common stock on
NASDAQ is conditioned upon the Company meeting certain criteria. If the Company
fails to meet any of these criteria, the common stock could be delisted from
trading on NASDAQ, which delisting could materially adversely affect the trading
market for the common stock. There can be no assurance that the common stock
will not be delisted.
7
<PAGE>
Penny Stock Regulation
In the event the common stock is delisted from trading on NASDAQ SmallCap
and the trading price of the common stock is less than $5.00 per share, trading
in the common stock would also be subject to the requirements of Rule 15g-9
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Under such rule, broker/dealers who recommend such low priced securities
to persons other than established customers and accredited investors must
satisfy special sales practice requirements, including a requirement that they
make an individualized written suitability determination for the purchaser and
receive the purchaser's written consent prior to the transaction. The Securities
Enforcement Remedies and Penny Stock Reform Act of 1990 also require additional
disclosure in connection with any trades involving a stock defined as a "penny
stock" (generally, according to recent regulations adopted by the Commission,
any non-NASDAQ equity security that has a market price of less than $5.00 per
share, subject to certain exceptions), including the delivery, prior to any
penny stock transaction, of a disclosure schedule explaining the penny stock
market and the risks associated therewith. Such requirements could severely
limit the market liquidity of the common stock and the ability of purchasers in
this Offering to sell their securities in the secondary market. There can be no
assurance that the common stock will not be treated as a penny stock.
No Dividends Anticipated
The holders of common stock are entitled to receive dividends when, as
and if declared by the Board, out of funds legally available therefor. The
Company does not anticipate paying any dividends on its common stock in the
foreseeable future.
USE OF PROCEEDS
The Company will not receive any proceeds from the shares being sold in
this Offering.
SELLING SHAREHOLDERS
The shares covered by this Prospectus are being registered to permit
public secondary trading of the Common Stock issuable to the Selling
Shareholders upon the exercise of their respective warrants and options and the
Selling Shareholders may offer the securities for resale from time to time. See
"Plan of Distribution." The table sets forth information with respect to
ownership of the Company's common stock by the Selling Shareholders. The Selling
Shareholders are offering shares of the Company as set forth below. All
information with respect to stock ownership has been furnished to the Company by
the respective Selling Shareholders.
8
<PAGE>
<TABLE>
<CAPTION>
Shares Owned
Prior to Shares Issued Percent of
to Exercise of Upon Exercise Total Number Shares Owned Ownership
Selling Warrant/Option of Warrant/ of Shares After After
Shareholder or Conversion Option Being Offered Offering(1) Offering(1)
----------- ------------- ------ ------------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Anthony J. Kirincic -0-(2) 5,000 5,000 -0- -0-
David Lindner -0-(2) 5,000 5,000 -0- -0-
Allan Lyons 10,000 20,000 20,000 10,000 *
Finbar O'Neill -0- 250,000 250,000 -0- -0-
Mark Rubin 86,100 396,250 396,250 86,100 1.4%
Allan Socher 422,500 275,000 275,000 422,500 6.7%
Swan Alley (Nominees)
Limited 200,000 500,000 500,000 200,000 3.2%
Frank Terzo 168,000 190,000 190,000 168,000 2.7%
Marc Zucker 422,501 275,000 275,000 422,501 6.7%
--------- --------- --------- --------- -----
Total 1,309,101 1,916,250 1,916,250 1,309,101 20.9%
========= ========= ========= ========= =====
</TABLE>
- ------------------------
(1) Assumes that the Selling Shareholders will sell all of the Warrant Stock
and Option Stock and only retain ownership of previously issued shares of
the Company's common stock.
(2) Excludes 160,546 shares of common stock of the Company owned by Kirlin
Holding Corp. and its wholly-owned subsidiary, Kirlin Securities, Inc., of
which David Lindner and Anthony J. Kirincic are affiliates.
* Represents less than 1% of the outstanding shares of common stock of the
Company.
Marc Zucker, one of the Selling Shareholders, is the Chief Executive
Officer of the Company. Mr. Zucker is a director of the Company since 1995 and
for the period of March 1995 to August 1998 acted as the Chairman of the Board
of Directors of the Company.
Allan Socher, one of the Selling Shareholders, is the President of the
Company and a director thereof since 1995.
Frank Terzo, one of the Selling Shareholders, is a director of the
Company since December 1996 and was a consultant to the Company for a one year
period commencing July 1996. Since July 1997, Mr. Terzo has been a Partner of
The Thornwater Company, L.P., the co-underwriter for the Company's November 1996
IPO. The Thornwater Company, L.P. currently acts as a financial consultant to
the Company pursuant to a consulting agreement which terminates in November
1998.
9
<PAGE>
In June 1995, Mark Rubin became a consultant to the Company. In
connection with the provision of financial consulting services, Mr. Rubin
received approximately $3,000 per month, the Rubin Warrants, and 50,000 shares
of common stock, which shares were valued at $.80 per share. The consulting
agreement by and between the Company and Mr. Rubin terminated in December 1996.
Anthony J. Kirincic and David Lindner are executives of Kirlin Holding
Corp. and its wholly owned subsidiary Kirlin Securities, Inc. In 1995, Kirlin
Securities, Inc. acted as placement agent in a private placement of 750,000
shares of common stock of the Company.
PLAN OF DISTRIBUTION
The Common Stock offered hereby may be sold from time to time to
purchasers directly by any of the Selling Shareholders. The Common Stock may be
sold, or resold, as the case may be, from time to time by the Selling
Shareholders in one or more transactions on NASDAQ, in block transactions, in
negotiated transactions or a combination of such methods of sale at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. These transactions may be effected by the
Selling Shareholders through one or more broker-dealers who may act as principal
or who may receive compensation in the form of concessions or commissions from
the Selling Shareholders or the purchasers of the Common Stock for whom they may
act as agent, in such amounts as are customary in connection with similar
transactions. The Company has agreed to bear all expenses in connection with the
registration of the Common Stock.
The Company has not engaged any underwriter, broker, dealer or agent in
connection with this Offering.
In order to comply with the securities laws of certain states, if
applicable, the Common Stock will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states, the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Wilentz, Goldman & Spitzer, PC, 90 Woodbridge Center Drive,
Woodbridge, New Jersey 07095.
EXPERTS
The financial statements of the Company incorporated by reference in this
Prospectus from the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1997, including all amendments thereto filed on Form 10-KSB/A, have
been audited by Ehrenkrantz Sterling & Co., LLC, independent public accountants,
as stated in their reports, which is incorporated herein by reference, and have
been so incorporated in reliance upon such reports given upon the authority of
said firm as experts in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
The Certificate of Incorporation of the Company provides that no director
of the Company shall be personally liable to the Company or its shareholders for
damages for a breach of duty in such capacity, except as otherwise provided in
the Business Corporation Law of the State of New York, as amended from time to
time.
10
<PAGE>
Section 722 of the New York Business Corporation Law empowers a New York
corporation to indemnify any person, made, or threatened to be made, a party to
an action or proceeding other than one by or in the right of the corporation to
procure a judgment in its favor, whether civil or criminal, including an action
by or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the corporation served in any
capacity at the request of the corporation, by reason of the fact that he, his
testator or intestate, was a director or officer of the corporation, or served
such corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorney's fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, if such director or officer acted, in good faith, for a purpose which
he reasonably believed to be in, or in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, not opposed to, the best interests of the corporation and, in
criminal actions or proceedings, in addition, had no reasonable cause to believe
that his conduct was unlawful.
In addition, Section 722 of the New York Business Corporation Law states
that a New York corporation may indemnify any person made, or threatened to be
made, a party to an action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he, his testator or intestate,
is or was a director or officer of the corporation, or is or was serving at the
request of the corporation as a director or officer of any other corporation of
any type or kind, domestic or foreign, of any partnership, joint venture, trust,
employee benefit plan or other enterprise, against amounts paid in settlement
and reasonable expenses, including attorneys' fees, actually and necessarily
incurred by him in connection with the defense or settlement of such action, or
in connection with an appeal therein if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests of
the corporation, except that no indemnification under this paragraph shall be
made in respect of (1) a threatened action, or a pending action which is settled
or otherwise disposed of, or (2) any claim, issue or matter to which such person
shall have been adjudged to be liable to the corporation, unless and only to the
extent that the court on which the action was brought, or, if no action was
brought, any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Other Expenses of Issuance and Distribution
The expenses relating to the registration of shares will be borne by the
Company. The Selling Shareholders shall not pay any of such expenses. The
expenses are estimated to be as follows:
<TABLE>
<S> <C>
Registration fee - Securities and Exchange Commission $ 1,253.78
Legal fees and expenses 10,000.00
Printer Fees for Edgarizing and Filing 4,000.00
Total $15,253.78
==========
</TABLE>
Indemnification of Directors and Officers
Please refer to section heading "DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES" located in the Prospectus part
of this Registration Statement.
Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
2.1 Conditional Agreement and Plan of Merger dated as of July 31,
1998, among the Company, Room Plus Sub, Inc. and Nationwide
Warehouse & Storage, Inc.(3)
4.3 Form of Warrants issued by the Company to Allan J. Socher, Marc
I. Zucker and Kirlin Securities Corp.(1)
4.4 Form of Warrant issued by the Company to Mark Rubin(1)
4.5 Letter dated April 24, 1998 confirming terms and conditions to
lend the Company $200,000(2)
4.6 Promissory Note in the amount of $100,000 due June 11, 1998,
between the Company and Finbar O'Neill(2)
4.7 Stock Purchase Option dated April 24, 1998 for 250,000 shares
of common stock issued to Finbar O'Neill(2)
4.8 Promissory Note in the amount of $100,000 due June 11, 1998,
between the Company and Mark Rubin(2)
4.9 Stock Purchase Option dated April 24, 1998 for 250,000 shares
of common stock issued to Mark Rubin(2)
4.10 Stock Purchase Option dated June 23, 1998 for 60,000 shares of
common stock issued to Mark Rubin(4)
12
<PAGE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.11 Letter Agreement dated July 7, 1998 between the Company and
Mark Rubin extending the due date of the Promissory Note due
June 11, 1998, to August 1, 1998(4)
4.12 Letter Agreement dated July 7, 1998 between the Company and
Finbar O'Neill extending the due date of the Promissory Note
due June 11, 1998, to August 1, 1998(4)
4.13 Stock Subscription Warrant issued by the Company to David A.
Belford(3)
5 Opinion of Counsel(5)
10.25 Loan Agreement dated July 31, 1998, by and between the Company
and David A. Belford(3)
10.26 Security Agreement dated as of July 31, 1998, by and between
the Company and David A. Belford(3)
10.27 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Marc Zucker(3)
10.28 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Allan Socher(3)
10.29 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Theodore Shapiro(3)
10.30 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Frank Terzo(3)
23.1 Consent of Ehrenkrantz Sterling & Co., LLC(5)
23.2 Consent of Wilentz, Goldman & Spitzer(5) (contained in Exhibit
5)
24 Power of Attorney(4) (contained on signature page)
99 Press release dated August 3, 1998(3)
</TABLE>
- ------------------------
(1) Incorporated by reference to the exhibit of the same number filed as part
of the Registration Statement on Form SB-2 (File No. 333-10483)
(2) Incorporated by reference to the exhibit of the same number filed as part
of the Quarterly Report on Form 10-QSB for the period ended March 31,
1998
(3) Incorporated by reference to the exhibit of the same number filed as part
of the Current Report on Form 8-K that was filed with the Commission on
August 7, 1998
(4) Filed with initial Registration Statement on Form S-3
(5) Filed herewith
13
<PAGE>
Undertakings
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 1933 Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement; PROVIDED,
HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the Offering.
(4) For purposes of determining any liability under the 1933 Act, each
filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 Act 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 1933 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 1933 Act and
will be governed by the final adjudication of such issue.
14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Pre-Effective Amendment Number 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Paterson, State of New Jersey on August 24, 1998.
ROOM PLUS, INC.
By: /s/ Marc Zucker
-------------------------------------
Marc Zucker, Chief Executive Officer
Date: August 24, 1998
15
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment Number 1 to the Registration Statement has been signed
by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature and Title Date
------------------- ----
<S> <C> <C>
By: /s/ Marc Zucker August 24, 1998
---------------------------------------------------
Name: Marc Zucker
Title: Chief Executive Officer
and a Director (Principal
Executive Officer)
By: /s/ David A. Belford August 24, 1998
---------------------------------------------------
Name: David A. Belford
Title: Chairman of the Board
By: /s/ Allan Socher* August 24, 1998
---------------------------------------------------
Name: Allan Socher
Title: President and a Director
By: /s/ Jay H. Goldberg August 24, 1998
---------------------------------------------------
Name: Jay H. Goldberg
Title: Chief Financial Officer
(Principal Financial and Accounting Officer)
By: /s/ Theodore Shapiro* August 24, 1998
---------------------------------------------------
Name: Theodore Shapiro
Title: Director
By: /s/ Frank Terzo* August 24, 1998
---------------------------------------------------
Name: Frank Terzo
Title: Director
By: /s/ Alan Hirschfeld* August 24, 1998
---------------------------------------------------
Name: Alan Hirschfeld
Title: Director
By: /s/ Alan Granetz* August 24, 1998
---------------------------------------------------
Name: Alan Granetz
Title: Director
</TABLE>
- ------------------------
* By: /s/ Marc Zucker
---------------
Marc Zucker
Attorney-in-fact
16
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
----------- ----------- --------
<S> <C> <C>
2.1 Conditional Agreement and Plan of Merger dated as of July 31,
1998, among the Company, Room Plus Sub. Inc. and Nationwide
Warehouse & Storage, Inc.(3)
4.3 Form of Warrants issued by the Company to Allan Socher, Marc I.
Zucker and Kirlin Securities Corp.(1)
4.4 Form of Warrant issued by the Company to Mark Rubin(1)
4.5 Letter dated April 24, 1998 confirming terms and conditions to
lend the Company $200,000(2)
4.6 Promissory Note in the amount of $100,000 due June 11, 1998,
between the Company and Finbar O'Neill(2)
4.7 Stock Purchase Option dated April 24, 1998 for 250,000 shares
of common stock issued to Finbar O'Neill(2)
4.8 Promissory Note in the amount of $100,000 due June 11, 1998,
between the Company and Mark Rubin(2)
4.9 Stock Purchase Option dated April 24, 1998 for 250,000 shares
of common stock issued to Mark Rubin(2)
4.10 Stock Purchase Option dated June 23, 1998 for 60,000 shares of
common stock issued to Mark Rubin(4)
4.11 Letter Agreement dated July 7, 1998 between the Company and
Mark Rubin extending the due date of the Promissory Note due
June 11, 1998, to August 1, 1998(4)
4.12 Letter Agreement dated July 7, 1998 between the Company and
Finbar O'Neill extending the due date of the Promissory Note
due June 11, 1998, to August 1, 1998(4)
4.13 Stock Subscription Warrant issued by the Company to David A.
Belford(3)
5 Opinion of Counsel(5)
10.25 Loan Agreement dated July 31, 1998, by and between the Company
and David A. Belford(3)
10.26 Security Agreement dated as of July 31, 1998, by and between
the Company and David A. Belford(3)
10.27 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Marc Zucker(3)
10.28 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Allan Socher(3)
17
<PAGE>
<CAPTION>
Exhibit No. Description Page No.
----------- ----------- --------
<S> <C> <C>
10.29 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Theodore Shapiro(3)
10.30 Stockholder Agreement dated as of July 31, 1998, by and between
Nationwide Warehouse & Storage, Inc., the Company, Room Plus
Sub, Inc. and Frank Terzo(3)
23.1 Consent of Ehrenkrantz Sterling & Co., LLC(5)
23.2 Consent of Wilentz, Goldman & Spitzer(5) (contained in Exhibit
5)
24 Power of Attorney(4) (contained on signature page)
99 Press release dated August 3, 1998(3)
</TABLE>
- ------------------------
(1) Incorporated by reference to the exhibit of the same number filed as part
of the Registration Statement on Form SB-2 (File No. 333-10483)
(2) Incorporated by reference to the exhibit of the same number filed as part
of the Quarterly Report on Form 10-QSB for the period ended March 31,
1998
(3) Incorporated by reference to the exhibit of the same number filed as part
of the Current Report on Form 8-K that was filed with the Commission on
August 7, 1998
(4) Filed with initial Registration Statement on Form S-3
(5) Filed herewith
18
Exhibit 5 OPINION OF COUNSEL
[WILENTZ, GOLDMAN & SPITZER LETTERHEAD]
August 21, 1998
Room Plus, Inc.
91 Michigan Avenue
Paterson, New Jersey 07503
RE: REGISTRATION STATEMENT ON FORM S-3
Dear Sirs:
You have requested our opinion concerning certain matters in connection
with the registration under the Securities Act of 1933, as amended (the "Act"),
of 1,916,250 shares of Common Stock of Room Plus, Inc. (the "Company") with a
par value of $0.00133 per share (the "Common Stock") authorized for issuance
upon the exercise of warrants and options, all of which shares are to be sold by
certain selling shareholders pursuant to a Registration Statement on Form S-3
(the "Registration Statement") initially filed with the Securities and Exchange
Commission (the "Commission") on July 30, 1998 pursuant to the Act.
In rendering the opinion hereafter expressed, we have made such
examination of fact and law and examined originals or copies, certified or
otherwise authenticated to our satisfaction, of such corporate records,
instruments, certificates of public officials or bodies, certificates of
officers and representatives of the Company, and such other documents as we have
deemed necessary in order to render the opinions hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures on original
documents, and the conformity to original documents of all copies submitted to
us as conformed or photostatic copies. As to various questions of fact material
to such opinions, we have relied upon statements or certificates of officials
and representatives of the Company and others.
Based on the foregoing, and in reliance thereon, we are of the opinion
that (i) the shares of Common Stock issuable upon exercise of the warrants and
options have been validly reserved for issuance upon exercise thereof, and (ii)
upon receipt by the Company of full payment of the exercise price for the
warrants and options and delivery of certificates representing the shares
issuable upon said exercise, the shares issuable upon said exercise will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectus forming part of said Registration Statement.
By giving the foregoing consent, we do not admit that we are within the category
of persons whose consent is required by Section 7 of the Securities Act or the
rules and regulations promulgated thereunder.
Very truly yours,
WILENTZ, GOLDMAN & SPITZER, P.A.
Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of Room Plus, Inc. of our reports dated March 30, 1998 and
August 4, 1998, appearing in and incorporated by reference in the Annual Report
on Form 10-KSB and amendment thereto on Form 10-KSB/A of Room Plus, Inc. for the
year ended December 31, 1997, and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ EHRENKRANTZ STERLING & CO., LLC
EHRENKRANTZ STERLING & CO., LLC
Certified Public Accountants
Livingston, New Jersey
August 21, 1998
