As filed with the Securities and Exchange Commission on October 1, 1999
Registration File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
The Publishing Company of North America, Inc.
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(Exact name of registrant as specified in its charter)
Florida 59-3203301
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
186 P.C.N.A. Parkway, Lake Helen, Florida 32744
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(Address of Principal Executive Offices)
Peter S. Balise, President
The Publishing Company of North America, Inc.
186 P.C.N.A. Parkway
Lake Helen, FL 32744
(904) 228-1000
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(Name, address, and telephone number of agent of service)
Please send a copy of all communication also to:
Michael D. Harris, Esq.
Michael Harris, P.A.
1645 Palm Beach Lakes Boulevard, Suite 550
West Palm Beach, Florida 33401
(561) 478-7077
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALES UNDER THE PLAN:
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, 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 this prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------- ------------------- ----------------------- ---------------------- ----------------------
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------------- ------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common stock, 8,000 $3.22(1) $25,760 $7.16
no par value
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Common stock, 333,333 $2.00(2) $666,666 $185.33
no par value underlying 50,000 $1.00(2) $50,000 $13.90
exercise of options
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Total Registration Fee $206.39
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(1) Calculated pursuant to Rule 457(c) based on the average of the closing bid and asked price of the Company's stock on
September 27, 1999.
(2) Estimated solely for the purpose of computing the registration fee based on the highest price at which options may be
exercised.
</TABLE>
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The Registrant hereby amends this Registration Statement on the 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 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.
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<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED OCTOBER __, 1999
PROSPECTUS
391,333 SHARES OF COMMON STOCK
THE PUBLISHING COMPANY OF NORTH AMERICA, INC.
INVESTING IN THE COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 3.
This prospectus relates to the public offering of up to 391,333 shares of our
common stock, including 383,333 shares upon exercise of options. We will not
receive any of the proceeds from the sale of the shares. The prices at which the
selling stockholders may sell the shares will be determined by the prevailing
market price for the shares or in negotiated transactions.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Our common stock is listed on the Nasdaq SmallCap Market under the symbol
"PCNA". On September 28, 1999, the closing price for our common stock was $3.00
per share.
The date of this prospectus is __________, 1999
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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<PAGE>
YOU SHOULD ONLY RELY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS.
WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM
THAT CONTAINED IN THIS PROSPECTUS. WE ARE OFFERING TO SELL, AND SEEKING OFFERS
TO BUY, SHARES OF COMMON STOCK ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE
PERMITTED. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS ACCURATE ONLY AS THE
DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS PROSPECTUS
OR OF ANY SALE OF COMMON STOCK.
TABLE OF CONTENTS
Risk Factors ............................................................. 3
Forward-Looking Statements ............................................... 8
Where You Can Find More Information .................................... 8
Selling Stockholders ..................................................... 9
Plan of Distribution .................................................... 9
Legal Matters ............................................................ 10
Experts ................................................................... 10
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RISK FACTORS
Investing in our common stock involves a high degree of risk. You
should not purchase our common stock unless you can afford a complete loss of
your investment. You should consider the following risks as well as the
information contained in the reports and proxy statement that are incorporated
in this prospectus.
RISKS RELATED TO OUR BUSINESS
IF WE CANNOT EFFECTIVELY MANAGE OUR GROWTH, WE MAY INCUR OPERATING LOSSES
Following the closing of our initial public offering in the Spring of
1996, our business grew. We encountered operational difficulties and sustained
operating losses for a long period of time. We believe we were able to correct
this problem by recruiting a new chief operating officer and otherwise
increasing our efficiencies. We recently launched our new Internet business. If
our Internet business grows, this growth may place a further strain on our
administrative, operational and financial resources and we may again lose money.
We have limited management depth, and if we grow substantially in the future, we
may not be able to hire the necessary senior and middle management personnel
necessary to implement our programs.
WE DEPEND UPON THIRD PARTIES IN BOTH OUR PRINT AND INTERNET BUSINESSES, WHICH
COULD RESULT IN OUR FAILING TO PROVIDE SERVICES TO OUR CLIENTS AND CUSTOMERS
In our print directory business, we subcontract all of the printing of
our bar and medical association directories to independent printing companies.
During the current fiscal year, we have utilized the services of four printers.
Because we depend upon third-party printers, we may be delayed in delivering
directories. This could have the consequence of causing any bar and medical
associations for which we are late in delivering directories to terminate their
agreements with us.
Our Internet business is similarly dependent upon third parties. We use
a third party to host our websites and another third party to develop and
maintain our websites. To the extent that either or both of these third parties
fail to meet their obligations to us, our Internet business may not be
successful.
WE WILL FACE INTENSE COMPETITION IN ALL ASPECTS OF OUR BUSINESS AND MAY NOT BE
SUCCESSFUL IN COMPETING
WE FACE COMPETITION FOR CONTRACTS FOR PRINT DIRECTORIES
Our future growth will be dependent in part upon our continued ability
to maintain our existing publishing agreements with bar associations and to
expand our agreements to larger bar associations including additional state bar
associations. We may suffer a significant decline in our print directory
business in the future if we lose business to our competitors. In competing for
print directory contracts, we compete with a number of other publishers of bar
association directories, including Legal Directories Publishing Company, a
publisher of state bar directories and Martindale Hubbell which publishes what
is considered to be the premier legal directory. We believe that, for many bar
associations, competition is based upon the perceived ability of the publisher
to deliver a quality product on schedule and sometimes upon the percentage of
advertising revenues paid to them as a royalty.
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COMPETITION FOR INTERNET ADVERTISING IS INTENSE
Although the Internet is not a developed medium for advertisers, there
is significant competition for those advertisers that use the Internet, and we
expect that such competition will increase. Our websites are oriented to members
of the legal community including lawyers. We will compete for a share of the
advertising budget of those advertisers seeking to reach the legal community,
including the major Internet portals, other online services, traditional print
media and radio and television stations.
WE INTEND TO COMPETE IN THE E-COMMERCE MARKET
Competition for electronic commerce or e-commerce opportunities is
intense, and we expect the competition will continue to intensify. Because the
goods and services we are offering and intend to offer online are available
elsewhere, both on the Internet and through conventional retail outlets, we may
not successfully compete in the e-commerce market. There are low barriers to
entry, and competitors can launch new websites at a relatively low cost. We
believe that our ability to compete in e-commerce will be affected, among other
factors, by our ability to:
o develop and maintain a sufficiently large base of users who regularly
visit our websites in order to enable us to be attractive to companies
offering goods and services through e-commerce;
o develop regular visitors to our websites based upon the features we
offer, including attractive e-commerce products; and
o provide visitors to our websites with incentives to order goods and
services online.
IF OUR CHIEF EXECUTIVE OFFICER IS NOT AVAILABLE, WE MAY LOSE PRINT DIRECTORY
BUSINESS AND BE UNABLE TO ATTRACT FUTURE BUSINESS
We rely heavily upon Mr. Peter S. Balise, our chief executive officer,
in attracting and maintaining print directory agreements with bar and medical
associations. If Mr. Balise resigns or is otherwise unavailable, we may be
unable to renew existing directory agreements and attract new agreements with
bar and medical associations. We believe Mr. Balise's relationships with bar
association professionals are an important advantage and that it would be
difficult and expensive to replace him.
OUR BUSINESS MAY ENCOUNTER RISKS FROM THE YEAR 2000 WHICH WILL DISRUPT OUR
BUSINESS
The Year 2000 problem is the inability of some software, hardware and
systems to determine the correct century on January 1, 2000. For example,
software with date-sensitive functions that are not Year 2000 compliant may not
be able to determine whether "00" means 1900 or 2000, which may result in
computer failures or the failure of the computer to produce accurate
information.
We have substantially completed our Year 2000 evaluation of our
computer hardware and software and other equipment. We have to complete a small
number of installations with minor software upgrades in order for our system to
by Year 2000 compliant. We estimate that our total costs in obtaining Year 2000
compliance will be less than $25,000. We have contacted our large vendors in an
effort to learn if their systems are Year 2000 compliant. Their responses
indicate that they are Year 2000 compliant. Nonetheless, one or more of the
third parties upon which we rely in both our print and Internet businesses may
encounter Year 2000 failures. We do not have a contingency plan and do not
anticipate adopting one if we encounter Year 2000 problems. Our business could
be disrupted and our revenues and cash flow will be reduced if any of these
third parties incur Year 2000 problems.
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RISKS RELATED TO THE INTERNET
THE DEVELOPMENT OF OUR INTERNET BUSINESS IS DEPENDENT UPON THE GROWTH OF THE
INTERNET
Our ability to grow may be dependent upon the growth of the Internet,
and we could lose a significant source of revenue in the event that the Internet
does not continue to develop. If Internet usage grows, the Internet may not be
able to support the demands placed on it by this growth or its performance or
reliability may decline. In addition, our present and any future websites may
from time to time experience interruptions in service as a result of outages or
other delays occurring. If these outages and delays frequently occur in the
future, the use of our websites could significantly decrease, which could result
in a decline in Internet-related revenue.
ADVERTISERS HAVE NOT, AND MAY NOT, ACCEPT THE INTERNET AS AN ADVERTISING MEDIUM
We recently launched our online vendor directory. This directory is
relying upon advertising placed by third parties seeking to sell their services
to the legal community. Major advertisers do not presently use the Internet as a
major advertising medium, and we cannot predict whether the Internet will ever
become a major advertising medium. We believe that acceptance of the Internet as
an advertising medium will depend on the continued growth of the Internet and
the ability of advertisers to determine the extent to which they are reaching
their target market. If widespread commercial use of the Internet does not
continue to develop, or if the Internet does not develop as an effective and
measurable advertising medium, our Internet business may not be successful.
WE MAY NOT DEVELOP ANY SIGNIFICANT REVENUE FROM E-COMMERCE
We will depend on the continued growth in the use of the Internet by
lawyers. E-commerce has not developed into a reliable method of conducting
business. If lawyers do not engage in e-commerce or if e-commerce grows more
slowly than anticipated, our e-commerce business will not generate significant
revenues. We recently commenced our e-commerce business on lawlinks.com. We may
never generate any significant revenue from e-commerce. A number of factors
could prevent market acceptance of e-commerce on our websites by members of the
legal community, including the following:
o Lawyers and law firms may be unwilling to shift their purchasing from
traditional suppliers including office superstores to our e-commerce
website.
o Lawyers and law firms which order goods online may utilize other
websites which have more brand name recognition.
o Increased government regulation or taxation, including regulation of
telephone service, may adversely affect e-commerce.
o Insufficient availability of telecommunications services or changes in
telecommunications services could result in slower response times.
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WE CANNOT INSURE A SECURE ENVIRONMENT, WHICH MAY CAUSE LAWYERS TO NOT USE OUR
WEBSITES OR PROVIDE DEMOGRAPHIC INFORMATION TO US
Our websites are vulnerable to physical or electronic break-ins,
viruses or other problems that affect websites and Internet communication and
commerce generally. As e-commerce becomes more prevalent, our customers may
become more concerned about security. Although we believe that we can implement
reasonable security precautions, security systems can and are circumvented. The
circumvention of our security measures may result in the misappropriation of
proprietary information, such as credit card or other demographic information,
or interruptions of our operations. Any such security breaches could damage our
reputation and expose us to a risk of loss or liability. We or our business
partners may be required to make significant investments in our efforts to
protect against and to remedy security breaches. Our failure to address security
concerns adequately could result in lawyers limiting their usage of our websites
or our failing to generate significant revenue from e-commerce.
WE MAY BE UNABLE TO RESPOND TO TECHNOLOGICAL CHANGE EFFECTIVELY
We will be dependent upon the sale of advertising, e-commerce and
direct marketing over the Internet to generate our Internet revenue. The
Internet and e-commerce are subject to rapidly changing technology. While these
changes are designed to facilitate the usage of the Internet and the growth of
e-commerce, unforeseen technological factors may create a competitive
environment in which our Internet business cannot generate adequate revenue or
income.
RISK RELATING TO OUR COMMON STOCK
WE ARE CONTROLLED BY OUR CHIEF EXECUTIVE OFFICER WHICH MEANS HE MAY STOP A THIRD
PARTY FROM ACQUIRING US EVEN IF IT IS IN THE BEST INTERESTS OF OUR STOCKHOLDERS
Mr. Peter S. Balise, president and chairman of our board of directors,
owns approximately 42.3% of our outstanding common stock. As a result, Mr.
Balise may be able to exercise control over all matters requiring stockholder
approval including the election of directors and approval of significant
corporate transactions. His voting control could have the effect of delaying or
preventing a change of control which might benefit our stockholders.
OUR COMMON STOCK PRICE MAY BE HIGHLY VOLATILE
At times this year, the market price of our common stock has been
highly volatile. At the same time, the stock market in general and the market
for Internet-related technology companies in particular, has been highly
volatile. If, as a result of our new Internet business, we are perceived as an
Internet company, our common stock price may become more volatile in the future.
Investors may not be able to resell their shares of our common stock following
periods of volatility because of the market's adverse reaction to such
volatility. We cannot assure you that our common stock will trade at the same
levels as other Internet stocks or that Internet stocks in general will sustain
their current market prices.
Factors that could cause our common stock price to be volatile may
include:
o actual or anticipated variations in quarterly operating results,
o announcements of results concerning our new Internet business,
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o new products or services,
o changes in financial estimates by securities analysts,
o changes in conditions or trends in the Internet industry,
o changes in the market valuations of Internet companies,
o changes in how the market perceives us and how it perceives the nature
of our business,
o announcements by us or competitors of significant acquisitions,
o strategic partnerships or joint ventures;
o additions or departures of key personnel, and
o sales of common stock.
Many of these factors are beyond our control. These factors may
materially adversely affect the market price of our common stock, regardless of
our operating performance.
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FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that address, among
other things, our expectations with regard to our Internet business and our
compliance with the Year 2000. In addition to these statements, trend analysis
and other information including words such as "seek", "anticipate", "believe",
"plan", "estimate", "expect", "intend" and other similar expressions are
forward-looking statements. These statements may be found in the section of this
prospectus entitled "Risk Factors". We anticipate that some or all of the
results will not occur because of various factors including, but not limited to
all of the risks discussed in "Risk Factors."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public conference rooms. Our SEC
filings are also available on the SEC's website at www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. Later information we file with the SEC
will update and modify this information. We are incorporating by reference the
documents listed below and any future filings made with the SEC under the
Securities Exchange Act of 1934 until the option holders complete their offering
of 383,333 shares of common stock.
o Our annual report on Form 10-KSB for the year ended December 31, 1998.
o Our quarterly reports on Form 10-QSB for the quarters ended March 31,
and June 30, 1999.
o Our Proxy Statement for our annual meeting of stockholders held on May
24, 1999.
o The description of our common stock contained in our registration
statement on Form 8-A, filed in 1996.
o All other reports filed under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
James M. Koller, CFO
The Publishing Company of North America, Inc.
186 PCNA Parkway
Lake Helen, FL 32744
(904) 228-1000
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SELLING STOCKHOLDERS
This prospectus relates to 8,000 shares of common stock offered for
sale by Mr. and Mrs. Richard L. Guadio. It also relates to 383,333 shares
offered for sale by Mr. D. Scott Plakon who holds options to purchase up to
333,333 shares and by Mr. James M. Koller, our chief financial officer, who
holds options to purchase up to 50,000 shares of common stock at the prices and
upon the terms and subject to the conditions contained in the table below:
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Applicable
Name of Option Holder Dates Options are Exercisable Exercise Price
- --------------------- ----------------------------- --------------
James M. Koller May 25, 1999 through May 31, 2008 $1.00
D. Scott Plakon November 2, 1998 to November 1, 2000 $1.20
D. Scott Plakon November 2, 2000 to November 1, 2001 $1.30
D. Scott Plakon November 2, 2001 to November 1, 2002 $1.40
D. Scott Plakon November 2, 2002 to November 1, 2003 $1.50
D. Scott Plakon November 2, 2003 to November 1, 2004 $1.60
D. Scott Plakon November 2, 2004 to November 1, 2005 $1.70
D. Scott Plakon November 2, 2005 to November 1, 2006 $1.80
D. Scott Plakon November 2, 2006 to November 1, 2007 $1.90
D. Scott Plakon November 2, 2007 to November 1, 2008 $2.00
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We will not receive any of the proceeds from the sale by Mr. and Mrs.
Gaudio or from the exercise of any options by Messrs. Plakon or Koller. Mr.
Peter S. Balise, our chief executive officer, will receive all of the proceeds.
Mr. Peter S. Balise purchased a boat from Mr. and Mrs. Gaudio on June
1, 1999 at an agreed upon price of $1.75 per share. Mr. and Mrs. Gaudio hold an
option to resell the shares to Mr. Balise at $1.75 per share on June 1, 2000. We
are not required to register the 8,000 shares. By doing so, we may relieve Mr.
Balise of the liability to repurchase the shares.
On June 1, 1998 Mr. Balise granted Mr. Koller the 10-year option to
purchase 50,000 shares of common stock owned by Mr. Balise at $1.00 per share.
The Company recognized no expense relating to this transaction because the
exercise price was in excess of the fair market value at the time of the grant.
On November 3, 1998 Mr. Balise acquired 333,333 shares of common stock from Mr.
Plakon in exchange for forgiveness of a mortgage held by Mr. Balise on property
owned by Mr. Plakon equaling approximately $200,000 or $0.60 per share. Mr.
Balise granted the option to Mr. Plakon at the same time as Mr. Plakon resigned
from our board of directors on November 3, 1998.
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time
to time by the selling stockholders. The selling stockholders will act
independently in making decisions with respect to the timing, manner and size of
each sale. The selling stockholders may sell the shares being offered on the
Nasdaq SmallCap Market, or otherwise, at prices and under terms then prevailing
or at prices related to the then current market price, at varying prices or at
negotiated prices.
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Broker-dealers may receive compensation in the form of commissions,
discounts or concessions from the selling stockholders in amounts to be
negotiated in connection with sales. These brokers or dealers may be deemed to
be `underwriters' within the meaning of the Securities Act of 1933. In this
case, any commissions, discounts or concessions received by broker-dealers and
any profit on the resale of the shares sold by them may be deemed to be
underwriting compensation under the Securities Act. Compensation to be received
by any broker-dealers and retained by the selling stockholders in excess of
usual and customary commissions will, to the extent required, be set forth in a
supplement to this prospectus.
We have advised the selling stockholders that the anti-manipulation
rules of Regulation M under the Securities Exchange Act of 1934 may apply to
sales of the shares of common stock offered in the market and to the activities
of the selling stockholder and his affiliates. In addition, we will make copies
of this prospectus available to the selling stockholders and have informed them
of the need for delivery of copies of this prospectus to purchasers at or prior
to the time of any sale of the shares of common stock. The selling stockholders
may indemnify any broker-dealer that participates in transactions involving the
sale of the shares against certain liabilities, including liabilities arising
under the Securities Act.
LEGAL MATTERS
Michael Harris, P.A., West Palm Beach, Florida, will pass upon the
validity of the shares of common stock being offered with this prospectus.
EXPERTS
The consolidated financial statements of The Publishing Company of
North America, Inc. and subsidiaries appearing in The Publishing Company of
North America, Inc. and subsidiaries' Annual Report (Form 10-KSB) for the year
ended December 31, 1998, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the authority of the
firm as experts in accounting and auditing.
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391,333 SHARES
THE PUBLISHING COMPANY OF
NORTH AMERICA, INC.
COMMON STOCK
---------------
PROSPECTUS
---------------
_________________, 1999
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
- ------- -------------------------------------------
We will pay all expenses incident to the offering and sale to the
public of the shares being registered other than any commission and discounts of
underwriters, dealers or agents and any transfer taxes. Such expenses are set
forth in the following table. All of the amounts shown are estimates except for
the Securities and Exchange Commission registration fee.
SEC Registration Fee $ 206.39
Accounting Fees and expenses $3,000.00
Legal Fees and expenses $5,000.00
Miscellaneous $ 250.00
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TOTAL: $8,456.39
ITEM 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS
- ------- -----------------------------------------
Under Florida law, our directors are protected against personal
liability for monetary damages from breaches of their duty of care. As a result
our directors will not be liable in an action by us or a stockholder for
monetary damages alleging negligence or gross negligence in the performance of
their duties. However, our directors and executive officers remain liable for
monetary damages for willful misconduct, conscious disregard of the best
interest of The Publishing Company of North America, Inc. and for transactions
from which a director or officer derives an improper personal benefit. Directors
also remain liable under another provision of the Florida laws which makes
directors personally liable for unlawful distributions and expressly contains a
negligence standard with respect to this liability. The liability of our
directors and officers under federal or state securities laws is not affected by
these provisions of Florida law. We also maintain a liability insurance policy
to protect our directors and officers. While our directors have protection from
awards of monetary damages from breaches of fiduciary duty, that does not
eliminate the fiduciary duty equitable remedies including an injunction or
recession based upon a breach of fiduciary duty are still available.
Insofar as indemnification for liabilities arising out of the
Securities Act may be permitted to directors, officers, or persons controlling
us under the above provisions, we have been informed that in the opinion of the
Securities and Exchange Commission, this indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
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ITEM 16 EXHIBITS
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Exhibit No. Exhibits
- ----------- --------
4 Option Agreement, D. Scott Plakon
4.1 Option Agreement, James. M. Koller
4.2 Agreement to Sell Boat
5 Opinion of Michael Harris, P.A.
23 Consent of Ernst & Young LLP
23.1 Consent of Michael Harris, P.A.*
*Contained in Opinion of Michael Harris, P.A.
ITEM 17 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 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;
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 with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bonafide 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) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities
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) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act; 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.
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions (see Item 15 above), 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of the Securities
Act of 1933 the registrant certifies that it has reasonable cause to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Lake Helen, Florida, on September 30, 1999.
THE PUBLISHING COMPANY OF
NORTH AMERICA, INC.
By: /s/ Peter S. Balise
-----------------------
Peter S. Balise
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Peter S. Balise Chairman of the Board of Directors September 30, 1999
- ---------------------
Peter S. Balise
/s/ James M. Koller Chief Financial Officer September 30, 1999
- ------------------------ (Principal Financial and Accounting Officer)
James M.Koller
/s/ Andrew J. Cahill Director September 30, 1999
- ----------------------
Andrew J. Cahill
/s/ Russell A. Perkins Director September 30, 1999
- ------------------------
Russell A. Perkins
/s/ Richard C. Silver Director September 30, 1999
- -------------------------
Richard C. Silver
/s/ J. William Wrigley Director September 30, 1999
- ------------------------
J. William Wrigley
</TABLE>
II-4
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------------------------------------
The Publishing Company of North America, Inc.
---------------------------------------------
(Exact name of registrant as specified in its charter)
EXHIBIT INDEX
Exhibit No. Exhibits
- ----------- --------
4 Option Agreement, D. Scott Plakon
4.1 Option Agreement, James. M. Koller
4.2 Agreement to Sell Boat
5 Opinion of Michael Harris, P.A.
23 Consent of Ernst & Young LLP
23.1 Consent of Michael Harris, P.A.*
*Contained in Opinion of Michael Harris, P.A.
II-5
EXHIBIT 4
---------
OPTION AGREEMENT
I, Peter S. Balise ("Grantor"), for consideration of one dollar, the
receipt of which is hereby acknowledged, do hereby personally grant to D. Scott
Plakon ("Holder"), the option to purchase up to 333,333 shares of restricted
common stock of The Publishing Company of North America, Inc. (the
"Corporation"), (the "Options"), in accordance with the following schedule of
exercise prices:
Date Option is Exercised Applicable Exercise Price
------------------------ -------------------------
November 2, 1998 to November 1, 2000 $1.20 per share
November 2, 2000 to November 1, 2001 $1.30 per share
November 2, 2001 to November 1, 2002 $1.40 per share
November 2, 2002 to November 1, 2003 $1.50 per share
November 2, 2003 to November 1, 2004 $1.60 per share
November 2, 2004 to November 1, 2005 $1.70 per share
November 2, 2005 to November 1, 2006 $1.80 per share
November 2, 2006 to November 1, 2007 $1.90 per share
November 2, 2007 to November 1, 2008 $2.00 per share
Each exercise must be in a block not less than 50,000 shares, and must
be accompanied by: (1) an Exercise Statement, executed by Holder, stating the
number of shares to be purchased and the applicable exercise price per share;
and (2) full payment for the appropriate exercise amount or an executed
promissory note, acceptable to the Grantor, accruing at 15% interest per annum,
with monthly payments of interest only, secured by collateral acceptable to the
Grantor, in the full amount of the purchase price. Grantor shall deliver to
Holder, within 30 days of such exercise date, a stock certificate representing
the number of shares purchased, which stock certificate shall constitute
restricted securities governed by all applicable federal and state securities
laws and shall contain a restrictive legend, subject to the effective date of
the S-3 Registration Statement described below.
Grantor shall, by November 3, 1999, cause a registration statement to
be filed with the Securities and Exchange Commission on Form S-3, registering
the 333,333 shares of PCNA common stock underlying the 333,333 options, which
are the subject of this agreement.
This options are not assignable or transferable (except as specifically
provided herein or as agreed to in writing by the Grantor prior to the time of
the transfer or assignment) and can only be exercised by Holder or, in the event
of Holder's death, by the legal representatives of Holder's estate or Holder's
legal heirs.
This Option Agreement relates to the purchase by Grantor from Holder of
333,333 shares of the Corporation on November 3, 1998. Florida law shall govern
any actions involving this agreement and any and all disputes will be settled
via binding arbitration. The undersigned agree to the terms and conditions as
contained herein.
A signed facsimile copy of this agreement shall serve as an original.
/s/ Peter S. Balise /s/ D. Scott Plakon
- --------------------- ---------------------
Peter S. Balise D. Scott Plakon
EXHIBIT 4.1
-----------
STOCK OPTION AGREEMENT
I, Peter S. Balise, do hereby grant on this 1st day of June, 1998 to
James M. Koller (the "Optionee") the right and option to purchase all or any
part of a total of 50,000 shares of common stock of The Publishing Company of
North America, Inc. (the "Company") which I personally own as of the date above.
These options shall vest and first become exercisable immediately after the 1999
Annual Meeting of the Shareholders of the Company, subject to the Optionee's
employment with the Company at that time, and shall remain exercisable for a
period of ten years from the date granted. The purchase price of the shares of
common stock pursuant to this option shall be $1.00 per share.
/s/ Peter S. Balise
----------------------
Peter S. Balise
EXHIBIT 4.2
-----------
AGREEMENT
The following Agreement sets forth the terms and conditions by and between Peter
and Sandra Balise (Balise) on one hand, and Dick and Eleanor Gaudio (Gaudio) on
the other hand, whereas Balise agrees to purchase and Gaudio agrees to sell one
boat lift and one Proline Boat with motor and trailer:
1) Items Being Purchased (Property): One boat lift, 1998 180 SU Proline Boat
(Hull ID # PLCSW048K798), 1998 115 HP Mercury Outboard Engine (Serial #
OG677183), 1998 Fastload Aluminum Trailer (Serial # 40AB12214VY0013333),
one 1999 installed Great White 24Volt Foot Operated Trolling Motor, and any
and all accessories that the parties further agreed was to come with the
transaction.
2) Payment: For consideration of items being purchased, Balise shall provide
Gaudio 8,000 shares of restricted common stock (Stock) of The Publishing
Company of North America, Inc. (PCNA). The Stock shall be unsaleable for a
period of one year from the date of this Agreement as long as Balise
remains an affiliate of PCNA. After one year the stock may be sold and
Balise agrees to pay for the legal opinion on the stock for such sale to
occur, and to work closely with Gaudio in lifting the restrictive legend
from the stock certificate.
3) Option: Gaudio shall have the option, starting on the one-year anniversary
date of this Agreement and continuing for a period of thirty days
thereafter, to resell the 8,000 shares of stock back to Balise for the sum
of Fourteen Thousand Dollars ($14,000). In doing so, Gaudio shall notify
Balise by certified mail within the thirty day period, at 2394 River Tree
Circle, Sanford, Florida 32771 (or other address as supplied by Balise).
Upon receipt of such notification, Balise shall provide to Gaudio the sum
of Fourteen Thousand Dollars and Gaudio shall provide back to Balise the
8,000 shares of PCNA common stock in certificate form.
4) Nonpayment: Upon receiving notification from Gaudio to exchange the Stock
for $14,000, Balise shall have 15 days to provide full and complete
payment. In the event 15 days elapses and Balise has not made payment,
Balise shall be in default and interest shall, from then, on accrue at the
rate of 18% per annum on any unpaid balance, until such time that full
payment is made. If in default, Balise agrees to pay any and all customary
collection expenses, including but not limited to attorneys fees and court
costs.
5) Effective Date: The effective date of this Agreement shall be the date as
executed by both parties. The effective date shall be the date used in
calculating the holding period for the Stock.
6) Transfer of Title/Ownership: Gaudio shall retain title to the property and
maintain all insurance coverage until such time that Balise delivers the
Stock certificates to Gaudio.
Both Gaudio and Balise agree to the terms and conditions contained herein:
<TABLE>
<CAPTION>
<S> <C>
/s/ Richard L. Gaudio June 1, 1999 /s/ Peter S. Balise June 1, 1999
- --------------------------------------------- --------------------------------------------
Richard L. Gaudio Date Peter S. Balise Date
/s/ Eleanor L. Gaudio June 1, 1999 /s/ Sandra K. Balise June 1, 1999
- --------------------------------------------- --------------------------------------------
Eleanor A. Gaudio Date Sandra K. Balise Date
</TABLE>
EXHIBIT 5
September 30, 1999
The Publishing Company of North America, Inc.
186 P.C.N.A. Parkway
Lake Helen, FL 32744
Attention: Mr. Peter S. Balise, President
RE: THE PUBLISHING COMPANY OF NORTH AMERICA, INC./FORM S-3 CORRESPONDENCE
Dear Mr. Balise:
You have advised us that The Publishing Company of North America, Inc.
(the "Company") is filing with the United States Securities and Exchange
Commission a Registration Statement on Form S-3 with respect to 391,333 shares
of Common Stock, no par value.
In connection with the filing of this Registration Statement, you have
requested us to furnish you with our opinion as to the legality of (i) such of
the Company's shares of Common Stock as are presently outstanding; and (ii) such
securities as shall be offered by the Company itself pursuant to the Prospectus
which is part of the Registration Statement.
You have advised us that as of September 29, 1999, the Company's
authorized capital consists of 15,000,000 shares of Common Stock, no par value
per share, of which 4,925,020 shares of Common Stock have been issued and
3,290,720 shares are outstanding. You have further advised us that the Company
has received valid consideration for the issuance of these shares.
After having examined the Company's amended and restated articles of
incorporation, bylaws, minutes, the option agreements and the documents
incorporated by reference in the Prospectus, we are of the opinion that the
3,290,720 outstanding shares of Common Stock (which includes the 391,333 shares
relating to the registration statement noted above) are fully paid and
nonassessable, duly authorized and validly issued.
We consent to the use of our name in the Prospectus under the caption
"Legal Matters".
Very truly yours,
/s/ Michael Harris, P.A.
--------------------------
MICHAEL HARRIS, P.A.
EXHIBIT 23
----------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3 No. 333-____________) and related
prospectus of The Publishing Company of North America, Inc. for the registration
of 391,333 shares of its common stock and to the incorporation by reference
therein of our report dated March 3, 1999, with respect to the consolidated
financial statements of The Publishing Company of North America, Inc. included
in its Annual Report (Form 10-KSB) for the year ended December 31, 1998, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
------------------------
Ernst & Young LLP
Orlando, FL
September 30, 1999
