<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 13, 1996
REGISTRATION NO. 333-2430
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
ZOMAX OPTICAL MEDIA, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
MINNESOTA 3652 41-1833089
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
ZOMAX OPTICAL MEDIA, INC.
5353 NATHAN LANE
PLYMOUTH, MINNESOTA 55442
(612) 553-9300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------
JAMES T. ANDERSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ZOMAX OPTICAL MEDIA, INC.
5353 NATHAN LANE
PLYMOUTH, MINNESOTA 55442
(612) 553-9300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPIES TO:
THOMAS R. KING, Esq. AVRON L. GORDON, Esq.
MELODIE R. ROSE, Esq. BRETT D. ANDERSON, Esq.
Fredrikson & Byron, P.A. Briggs & Morgan, Professional
900 Second Avenue South, Suite 1100 Association
Minneapolis, Minnesota 55402 2400 IDS Center
(612) 347-7000 Minneapolis, Minnesota 55402
(612) 334-8400
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
If any of the securities being registered on this form to be offered on a
delayed or continuous basis, pursuant to Rule 415 under the Securities Act of
1933, check the following box: / /
If this Form is filed to register additional securities of 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, please 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: /X/
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVENESS 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.
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<PAGE>
This Post-Effective Amendment No. 1 is being filed to (i) file Exhibit
8.1 which is the opinion of Fredrikson & Byron, P.A. regarding certain
federal income tax consequences and (ii) deregister an aggregate of 31,348
shares which were registered but not issued.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
DESCRIPTION NUMBER
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<S> <C>
Form of Underwriting Agreement, including form of Representative's Warrant............... 1.1
Form of Stock Purchase Agreement......................................................... 2.1
Articles of Incorporation................................................................ 3.1
Bylaws................................................................................... 3.2
Form of Stock Certificate................................................................ 4.1
Articles of Incorporation (filed as Exhibit 3.1)......................................... 4.2
Bylaws (filed as Exhibit 3.2)............................................................ 4.3
Form of Representative's Warrant (filed as part of Exhibit 1.1).......................... 4.4
Opinion and Consent of Fredrikson & Byron, P.A........................................... 5.1
Opinion of Fredrikson & Byron, P.A. regarding certain tax matters....................... 8.1
1996 Stock Option Plan and Forms of Incentive Stock Options and Non-qualified Option
Agreements.............................................................................. 10.1
Employee Stock Purchase Plan............................................................. 10.2
Manufacturing Agreement between the Company and Metacom, Inc. dated January 1, 1995...... 10.3
Services Agreement between the Company and Metacom, Inc. dated January 1, 1995........... 10.4
Lease between the Company and Metacom, Inc. dated January 1, 1995........................ 10.5
Employment Agreement with James T. Anderson dated March 11, 1996......................... 10.6
License Agreement with U.S. Philips Corporation effective January 1, 1996................ 10.7
License Agreement with DVA dated January 1, 1994......................................... 10.8
Loan and Security Agreement with Phoenixcor, Inc. dated May 24, 1993..................... 10.9
Loan and Security Agreement with Phoenixcor, Inc. dated July 22, 1993.................... 10.10
Loan and Security Agreement with Phoenixcor, Inc. dated February 10, 1994................ 10.11
Loan and Security Agreement with Phoenixcor, Inc. dated July 5, 1994..................... 10.12
Promissory Note issued by Registrant to Norwest Equipment Finance, Inc. dated May 22,
1995 and related documents.............................................................. 10.13
Revolving Credit and Term Loan Agreement between Marquette Capital Bank and the
Registrant dated December 31, 1995...................................................... 10.14
Consent of Fredrikson & Byron, P.A. (included in Exhibit 5.1)............................ 23.1
Consent of Arthur Andersen LLP, independent public accountants........................... 23.2
Power of Attorney (included on signature page of the Registration Statement)............. 24
</TABLE>
II-1
<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-1 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on May 9, 1996.
ZOMAX OPTICAL MEDIA, INC.
By /s/ JAMES T. ANDERSON
-----------------------------------
James T. Anderson, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- - -------------------------------------------------- ---------------------------- --------------
<C> <S> <C>
*
------------------------------------------- Chairman of the Board
Phillip T. Levin
/s/ JAMES T. ANDERSON President, Chief Executive
------------------------------------------- Officer and Director May 9, 1996
James T. Anderson
/s/ STEPHAN P. JONES Chief Financial Officer
------------------------------------------- (principal financial and May 9, 1996
Stephan P. Jones accounting officer)
* /s/ JAMES T. ANDERSON
-------------------------------------------
James T. Anderson,
As Attorney-In-Fact
Dated: May 9, 1996
</TABLE>
II-2
<PAGE>
ZOMAX OPTICAL MEDIA, INC.
EXHIBIT INDEX TO FORM S-1
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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<S> <C> <C>
1.1 Form of Underwriting Agreement, including form of
Representative's Warrant*
2.1 Form of Stock Purchase Agreement*
3.1 Articles of Incorporation*
3.2 Bylaws*
4.1 Form of Stock Certificate*
4.2 Articles of Incorporation (filed as Exhibit 3.1)
4.3 Bylaws (filed as Exhibit 3.2)
4.4 Form of Representative's Warrant (filed as part of Exhibit
1.1)
5.1 Opinion and Consent of Fredrikson & Byron, P.A.*
8.1 Opinion of Fredrikson & Byron, P.A. regarding certain tax
matters . . . . . . . . . . . . . . . . . . . . . . . . .
10.1 1996 Stock Option Plan and forms of Incentive Stock Option
and Non-qualified Option Agreements*
10.2 Employee Stock Purchase Plan*
10.3 Manufacturing Agreement between the Registrant and Metacom,
Inc. dated January 1, 1995*
10.4 Services Agreement between the Registrant and Metacom, Inc.
dated January 1, 1995*
10.5 Lease between the Registrant and Metacom, Inc. dated January
1, 1995*
10.6 Employment Agreement with James T. Anderson dated March 1,
1996*
10.7 License Agreement with U.S. Philips Corporation effective
January 1, 1996*
10.8 License Agreement with Discovision Associates dated January
1, 1994*
10.9 Loan and Security Agreement with Phoenixcor, Inc. dated May
24, 1993*
10.10 Loan and Security Agreement with Phoenixcor, Inc. dated July
22, 1993*
10.11 Loan and Security Agreement with Phoenixcor, Inc. dated
February 10, 1994*
10.12 Loan and Security Agreement with Phoenixcor, Inc. dated July
5, 1995*
10.13 Promissory Note issued by Registrant to Norwest Equipment
Finance, Inc. dated May 22, 1995 and related documents*
10.14 Revolving Credit and Term Loan Agreement between Marquette
Capital Bank and the Registrant dated December 31, 1995*
23.1 Consent of Fredrikson & Byron, P.A. (included in Exhibit
5.1)
23.2 Consent of Arthur Andersen LLP, independent public
accountants*
24 Power of Attorney (included on signature page of the
Registration Statement)*
</TABLE>
* Previously filed.
<PAGE>
May 7, 1996
Zomax Optical Media Limited Partnership
5353 Nathan Lane
Plymouth, Minnesota 55442
Ladies and Gentlemen:
We have acted as counsel to Zomax Optical Media, Inc., a Minnesota
corporation (the "Company"), Zomax Optical Media Limited Partnership, a
Minnesota limited partnership (the "Partnership"), and ZOMI Corp., a Minnesota
corporation and the general partner of the Partnership (the "General Partner"),
in connection with: (i) the proposed issuance by the Company of shares of its
Common Stock to the Partnership in exchange for the assets and liabilities of
the Partnership (the "Partnership Exchange"), the termination, liquidation, and
dissolution of the Partnership and distribution by the Partnership of such
shares to its partners (the "Partnership Termination"), and the issuance by the
Company of shares of its Common Stock to the shareholders of the General Partner
in exchange for the shareholders' shares of the General Partner's common stock
(the "General Partner Exchange") (collectively, the Partnership Exchange, the
Partnership Liquidation, and the General Partner Exchange are referred to herein
as the "Reorganization"); and (ii) the Company's filing of a Registration
Statement on Form S-1 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
up to 5,510,000 shares of Common Stock of the Company, including an aggregate
3,900,000 such shares to be issued pursuant to the Reorganization. You have
requested our opinion with respect to certain United States federal income tax
consequences of the Reorganization.
In the course of our representation and for purposes of rendering this
opinion, we have examined the following documents and have relied on the
representations, warranties, and other information contained therein as true
without our having performed an independent verification as to the accuracy of
such representations and warranties:
1. Stock Purchase Agreement (the "Exchange Agreement"), dated May 7,
1996, among the Company, the Partnership, the shareholders of the General
Partner, and the representative for the underwriter for the Company.
2. Partnership Agreement dated August 6, 1993, as amended on January 1,
1995.
<PAGE>
Zomax Optical Media Limited Partnership
May 7, 1996
Page 2
3. The Registration Statement, filed with the Securities and Exchange
Commission (the "SEC") on March 15, 1996 and declared effective on May 7, 1996,
which Registration Statement includes the Prospectus of the Company.
As to matters of fact material to this opinion, we have relied upon (1)
facts within our actual knowledge after an inquiry of the attorneys and legal
assistants of this firm who have provided legal services to the Company or the
Partnership within the past 12 months; (2) facts represented to us in
certificates of officers of the Company or partners of the Partnership; and the
recitals, agreements, representations, warranties, and other information
contained in or made pursuant to the documents cited above. We have also relied
upon corporate and other records provided to us by the Company and the
Partnership and represented to us to be accurate and complete. We have assumed
the due authorization by all requisite action of the execution and delivery by
such parties of such documents and the validity and binding effect thereof on
such parties. We have made no other inquiry or investigation as to factual
matters.
A summary of the facts known to us relating to the Reorganization is set
forth below:
(i) Pursuant to the Exchange Agreement and Minnesota law, in the
Partnership Exchange, the Company will acquire the assets and liabilities of the
Partnership solely in exchange for an aggregate 2,800,000 shares of Common Stock
of the Company.
(ii) Pursuant to the Partnership Agreement and Minnesota law, in the
Partnership Dissolution, the Partnership will terminate, liquidate, and dissolve
and distribute to its partners the 2,800,000 shares of Common Stock of the
Company received by the Partnership in the Partnership Exchange. No assets
other than Common Stock of the Company will be distributed.
(iii) As part of the Partnership Liquidation, the General Partner will
receive a number of shares of the Company's Common Stock equal to the number of
shares of the Company's Common Stock issued to the shareholders of the General
Partner pursuant to the General Partner Exchange. The shares so received by the
General Partner will be cancelled as part of the merger of the General Partner
into the Company, which merger is expected to occur immediately following the
Reorganization.
(iv) Pursuant to the Exchange Agreement and Minnesota law, in the General
Partner Exchange, the Company will acquire all of the outstanding stock of the
General
<PAGE>
Zomax Optical Media Limited Partnership
May 7, 1996
Page 3
Partner from the shareholders of the General Partner solely in exchange
for an aggregate 1,084,326 shares of Common Stock of the Company.
(v) No fractional shares of the Company will be issued in the
Reorganization.
(vi) No person will have dissenters' appraisal rights under Minnesota law
with respect to any aspect of the Reorganization.
The following representations have been made in connection with the
proposed Reorganization, upon which we have relied in rendering this opinion:
(a) The fair market value of the shares of Common Stock of the Company to
be received by each shareholder of the General Partner in the Reorganization
will be approximately equal to the fair market value of the shares of Common
Stock of the General Partner surrendered in the Reorganization. The fair market
value of the shares of Common Stock of the Company to be received by the
Partnership in the Reorganization will be approximately equal to the fair market
value of the assets, net of the liabilities, of the Partnership transferred to
the Company in the Reorganization.
(b) The General Partner has no plan or intention to issue additional
shares of its stock that would result in the Company losing "control" of the
General Partner within the meaning of Section 368(c) of the Internal Revenue
Code of 1986, as amended to date (the "Code"). Except for the shares of Common
Stock of the Company to be issued as described in the Registration Statement,
the Company has no plan or intention to issue additional shares of its stock
that would result in the General Partner, the Partnership, the shareholders of
the General Partner, the partners of the Partnership, and the initial public
investors in the Company losing "control" of the Company within the meaning of
Section 368(c) of the Internal Revenue Code of 1986, as amended to date (the
"Code").
(c) The Company has no plan or intention to: (i) reacquire any of its
stock issued in the Reorganization, except with respect to the surrender of
shares of Common Stock of the Company received by the General Partner in the
Partnership Liquidation; (ii) merge the General Partner with and into a
corporation other than the Company; (iii) sell or otherwise dispose of any of
the stock of the General Partner acquired in the General Partner Exchange,
except for transfers described in Section 368(a)(2)(C) of the Code.
(d) Each of the Company, the Partnership, the General Partner, the
partners of the Partnership, and the shareholders of the General Partner will
pay their respective expenses, if
<PAGE>
Zomax Optical Media Limited Partnership
May 7, 1996
Page 4
any, incurred in connection with the Reorganization. The Company will pay or
assume only those expenses of the other parties to the Reorganization that are
solely and directly related to the Reorganization in accordance with the
guidelines established in Revenue Ruling 73-54, 1973-1 C.B. 187.
(e) At the time of the Reorganization, the General Partner will not have
outstanding any warrants, options, convertible securities or any type of right
pursuant to which any person could acquire stock of the General Partner which,
if exercised or converted, would affect the Company's acquisition or retention
of control of the General Partner, as defined in Section 368(c) of the Code.
(f) Prior to the Reorganization, the Company does not own and has not
owned in the past five years, directly or indirectly, any stock of the General
Partner.
(g) Following the Reorganization, the Company will continue the historic
business of the General Partner or use a significant portion of the General
Partner's business assets in a business.
(h) No two parties to the Reorganization are investment companies as
defined in Section 368(a)(2)(F)(iii) and (iv) of the Code.
(i) On the date of the Reorganization, the fair market value of the assets
of the General Partner will exceed the sum of its liabilities plus the amount of
liabilities, if any, to which the assets are subject. On the date of the
Reorganization, the fair market value of the assets of the Partnership will
exceed the sum of its liabilities plus the amount of liabilities, if any, to
which the assets are subject.
(j) None of the compensation received by any shareholder-employees of the
General Partner will be separate consideration for, or allocable to, any of
their shares of stock in the General Partner; none of the shares of Common Stock
of the Company received by any shareholder-employees of the General Partner will
be separate consideration for, or allocable to, any employment agreement; and
the compensation paid to any shareholder-employees of the General Partner on or
before the date of the Reorganization will be for services actually rendered and
will be commensurate with amounts paid to third parties bargaining at arm's
length for similar services.
Based solely on the factual information described above and our analysis
and examination of applicable federal income tax laws, rulings, regulations and
judicial
<PAGE>
Zomax Optical Media Limited Partnership
May 7, 1996
Page 5
precedents, and assuming further that the Reorganization is carried out
in the manner set forth in the Exchange Agreement and as described above, we are
of the opinion as of this date that, for federal income tax purposes:
1. The Reorganization will be treated as a tax-free exchange pursuant to
the provisions of Section 351 of the Internal Revenue Code of 1986, as amended
(the "Code"). In addition, as to the Company and the shareholders of the
General Partner, the Reorganization will be treated as a tax-free reorganization
pursuant to the provisions of Section 368(a)(1)(B) of the Code.
2. The merger of the General Partner into the Company subsequent to the
Reorganization, and the cancellation of the Common Stock of the Company held by
the General Partner pursuant to such merger, will be treated as tax-free
liquidation of the General Partner pursuant to the provisions of Section 332 of
the Code.
3. Under Section 351 of the Code, no gain or loss will be recognized by
the Partnership upon its receipt of Common Stock of the Company in exchange for
the assets of the Partnership. Upon the subsequent liquidation of the
Partnership, under Section 731 of the Code, no gain or loss will be recognized
by the partners of the Partnership upon their receipt of Common Stock of the
Company in exchange for the surrender and termination of their Partnership
interests.
4. No gain or loss will be recognized by the shareholders of the General
Partner upon their receipt of Common Stock of the Company in exchange for their
Common Stock of the General Partner, in accordance with Section 354 of the Code.
5. Under Section 358 of the Code, the aggregate basis of the Common Stock
of the Company to be received by the Partnership pursuant to the Reorganization
will be the same as the aggregate basis of the Partnership's assets transferred
to the Company in exchange therefor, decreased by any liabilities transferred
from the Partnership to the Company. Upon the subsequent liquidation of the
Partnership, under Section 732 of the Code, the aggregate basis of the Common
Stock of the Company to be received by a partner of the Partnership will be the
same as the aggregate basis of such partner's Partnership interest surrendered
in exchange therefor. For purposes of determining a partner's basis in his or
her Partnership interest, under Sections 358, 732 and 752 of the Code, the
assumption by the Company of any liabilities of the Partnership pursuant to the
Reorganization will be treated as the payment of money to the Partnership, which
will reduce a partner's share of Partnership liabilities and result in a
corresponding reduction in the basis of such partner's
<PAGE>
Zomax Optical Media Limited Partnership
May 7, 1996
Page 6
Partnership interest only if and to the extent that any portion of such
partner's basis is attributable to the liabilities of the Partnership being
assumed by the Company.
6. The aggregate basis of the Common Stock of the Company to be received
by a shareholder of the General Partner pursuant to the Reorganization will be
the same as the aggregate basis of such shareholder's Common Stock of the
General Partner surrendered in exchange therefor, in accordance with Section 358
of the Code.
7. Under Section 1223 of the Code, the holding period of the Common Stock
of the Company to be received by the Partnership pursuant to the Reorganization
will include the Partnership's holding period in the capital assets and certain
assets used in the Partnership's trade or business that are transferred to the
Company; to the extent that the Partnership receives Common Stock of the Company
in exchange for any other assets transferred to the Company, the Partnership's
holding period with respect to such Common Stock shall begin on the day
following its transfer of assets to the Company pursuant to the Reorganization.
Under Section 1223 of the Code, the holding period of the Common Stock of the
Company to be received by a limited partner of the Partnership pursuant to the
liquidation of the Partnership will include the holding period of such partner's
Partnership interest surrendered in exchange therefor, provided that the
Partnership interest was held as a capital asset on the date of the exchange.
8. Under Section 1223 of the Code, the holding period of the Common Stock
of the Company to be received by a shareholder of the General Partner pursuant
to the Reorganization will include the holding period of such shareholder's
Common Stock of the General Partner surrendered in exchange therefor, provided
that such shareholder's Common Stock of the General Partner was held as a
capital asset on the date of the exchange.
No opinion is expressed concerning the tax treatment of the Reorganization
under other provisions of the Code and the regulations thereunder or concerning
the tax treatment of any conditions existing at the time of, or effects
resulting from, the proposed transaction that are not specifically covered by
the above opinion.
An opinion of legal counsel represents an expression of legal counsel's
professional judgment regarding the subject matter of the opinion and, unlike
private letter rulings issued by the Internal Revenue Service, is not binding
upon the Internal Revenue Service and has no official status of any kind. We
can give no assurance that the Internal Revenue Service will not challenge the
opinions expressed herein or that, in the event the Internal Revenue Service
challenges the opinion expressed herein, it will not ultimately prevail.
<PAGE>
Zomax Optical Media Limited Partnership
May 7, 1996
Page 7
Our opinion has been requested by the Company and the Partnership on
behalf of the Partnership and the General Partner, and is being rendered to the
Partnership exclusively for that purpose. No other individual or entity,
whether or not a party to the Reorganization, may rely upon this opinion without
the express prior written consent of the undersigned. Our opinion is limited to
the matters discussed herein, and it does not cover other federal income tax
consequences of the Reorganization. Our opinion does not deal with the specific
circumstances of any particular shareholder of the General Partner or partner of
the Partnership, nor does it cover the application of state, local, foreign or
other tax laws. You are advised that applicable statutes of some states differ
in some respects from their counterparts in the Code. Further, our opinion is
based upon existing laws, regulations, administrative authorities, and judicial
decisions, any or all of which could change at any time with retroactive effect.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to its use as part of the Registration Statement and
to the reference to our firm under the captions "The Reorganization--Certain
Federal Income Tax Consequences" and "Legal Matters" included in the Prospectus
constituting a part of the Registration Statement.
Very truly yours,
FREDRIKSON & BYRON, P.A.
By/s/ Dobson West
----------------------------------
Dobson West, Vice President
Fredrikson & Byron, P.A.
900 Second Ave South, Suite 1100
Minneapolis, MN 55402
(612) 347-7000 telephone
(612) 347-7077 facsimile
535516
