<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 26, 1996.
REGISTRATION NO. 333-06777
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
GRADALL INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
3531
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
36-3381606
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
406 Mill Avenue SW
New Philadelphia, OH 44663
(330) 339-2211
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
BRUCE A. JONKER
VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
GRADALL INDUSTRIES, INC.
406 MILL AVENUE SW
NEW PHILADELPHIA, OH 44663
(330) 339-2211
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
ANTHONY E. EFREMOFF, ESQ.
BLACK, MCCUSKEY, SOUERS & ARBAUGH
1000 UNITED BANK PLAZA
220 MARKET AVENUE SOUTH
CANTON, OHIO 44702
(330) 456-8341
WINTHROP B. CONRAD, JR., ESQ.
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.
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>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
NUMBER OF PROPOSED PROPOSED
SHARES MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ------------------------------------------------------------------------------------------------------
Common Stock, par value $.001 per
share........................... 4,025,000 $12.00 $48,300,000 $16,655(3)
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
</TABLE>
(1) Includes 525,000 shares which are being registered in connection with an
over-allotment option granted to the Underwriters.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457.
(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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
An itemized statement of the estimated amount of the expenses, other than
underwriting discounts and commissions, incurred and to be incurred in
connection with the issuance and distribution of the securities registered
pursuant to this Registration Statement is as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee...................... $ 21,067
Nasdaq listing fee....................................................... 37,786
NASD filing fee.......................................................... 7,257
Printing and engraving expenses.......................................... 125,000
Accounting fees and expenses............................................. 100,000
Legal fees and expenses.................................................. 100,000
Transfer Agent fees and expenses......................................... 15,000
Blue Sky fees and expenses and legal fees................................ 20,000
Miscellaneous............................................................ 73,890
--------
Total.......................................................... $500,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, as amended, provides
with regard to indemnification of directors and officers as follows:
145. Indemnification of Officers, Directors, Employees and Agents;
Insurance. (a) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b)
II-1
<PAGE> 3
of this section, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees).
II-2
<PAGE> 4
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
provides in regard to the limitation of liability of directors and officers as
follows:
(b) In addition to the matters required to be set forth in the
certificate of incorporation by subsection (a) of this section, the
certificate of incorporation may also contain any or all of the following
matters:
* * *
(7) A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under section 174 of this
title; or (iv) for any transaction from which the director derived an
improper personal benefit. No such provision shall eliminate or limit the
liability of a director for any act or omission occurring prior to the date
when such provision becomes effective. All references in this paragraph to
a director shall also be deemed to refer (x) to a member of the governing
body of a corporation which is not authorized to issue capital stock, and
(y) to such other person or persons, if any, who, pursuant to a provision
of the certificate of incorporation in accordance with Section 141(a) of
this title, exercise or perform any of the powers or duties otherwise
conferred or imposed upon the board of directors by this title.
Article Seventh of the Amended and Restated Certificate of Incorporation of
the Company provides with regard to indemnification of directors and officers as
follows:
SEVENTH: The Corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended from time
to time, indemnify all persons whom it may indemnify pursuant thereto.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
No securities of the registrant have been issued or sold by the registrant
within the past three years, except as follows*:
(1) On October 10, 1995, the registrant issued 743 shares of Common
Stock to its existing stockholders in connection with a one to 4.715 stock
split declared by the board of directors of the registrant and effected
through a stock dividend.
(2) On October 11, 1995, the registrant issued 140 shares of Series A
Preferred Stock to its existing stockholders in connection with a stock
dividend declared by the board of directors of the registrant.
(3) On October 12, 1995, the registrant sold 825 shares of Common
Stock to MLGA Fund II, L.P. for a consideration of $10,500,000.
(4) On October 12, 1995, the registrant issued warrants to purchase an
aggregate of 81.1 shares of Common Stock to two institutional investors for
an aggregate consideration of $968,719.
(5) On October 12, 1995, the registrant issued an aggregate of 75
shares of Common Stock to two executive officers of the registrant in
accordance with the terms of a Recapitalization Agreement, by and between
the registrant, MLGA Fund II, L.P. and its existing stockholders (the
"Recapitalization Agreement"), in exchange for the executive officers'
surrender of their rights to acquire a substantially equivalent equity
interest in the registrant.
(6) On October 12, 1995, the registrant issued an aggregate of 25
shares of Common Stock to eight executive officers and key employees of the
registrant and its subsidiary in accordance with the terms of the
Recapitalization Agreement. No consideration was paid to the registrant by
the executive officers and key employees for these shares of Common Stock.
(7) On October 13, 1995, the registrant issued options to purchase an
aggregate of 23.9 shares of Common Stock to a group of 13 executive
officers and key employees of the registrant and its subsidiary pursuant to
the terms of its 1995 Stock Option Plan.
(8) On April 18, 1996, the registrant issued options to purchase an
aggregate of 27.3 shares of Common Stock to a group of 22 executive
officers and key employees of the registrant and its subsidiary pursuant to
the terms of its 1995 Stock Option Plan.
(9) On August 15, 1996, the registrant issued an option to purchase
1.8051 shares of Common Stock to one of its directors.
II-3
<PAGE> 5
- ---------------
* Does not give effect to a 5,540-for-1 split of the Company's Common Stock
to be effected immediately prior to the consummation of the Offering.
Exemption from registration under the Securities Act was claimed with
respect to the transactions described in paragraphs (3), (4) and (5) above under
Section 4(2) of the Securities Act as transactions by the issuer not involving
any public offering and with respect to the transactions described in paragraphs
(1), (2), (6), (7), (8) and (9) as transactions not involving a sale of
securities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) List of Exhibits
The list of exhibits is incorporated herein by reference to the Index to
Exhibits on page E-1.
(b) Financial Statement Schedule
Schedule II--Valuation and Qualifying Accounts
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that:
(1) The undersigned registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required
by the underwriter to permit prompt delivery to each purchaser.
(2) Insofar as indemnification for liabilities arising under the
Securities 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 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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
Company 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.
(3) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(4) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Gradall
Industries, Inc. has duly caused this Amendment No. 3 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Philadelphia, State of Ohio, on this 26th day of
August, 1996.
GRADALL INDUSTRIES, INC.
By: /s/ BARRY L. PHILLIPS
------------------------------------
Name: Barry L. Phillips
Title: President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 3 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ------------------------------------- ------------------
<S> <C> <C>
/s/ BARRY L. PHILLIPS President (Principal Executive August 26, 1996
- ------------------------------------- Officer) and Director
/s/ Vice President, Chief Financial August 26, 1996
* Officer and Treasurer (Principal
- ------------------------------------- Financial Officer and Principal
Accounting Officer)
/s/ Director August 26, 1996
*
- -------------------------------------
/s/ Director August 26, 1996
*
- -------------------------------------
/s/ Director August 26, 1996
*
- -------------------------------------
/s/ Director August 26, 1996
*
- -------------------------------------
/s/ Director August 26, 1996
*
- -------------------------------------
/s/ Director August 26, 1996
*
- -------------------------------------
*By: /s/ BARRY L. PHILLIPS
--------------------------------
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- ------- ------------------------------------------------------------------------- ----------
<C> <S> <C>
1.01 Form of Underwriting Agreement+
3.01 Form of Amended and Restated Certificate of Incorporation of the
Registrant+
3.02 Amended and Restated Bylaws of the Registrant+
4.01 Specimen Certificate for the Common Stock, par value $.001 per share, of
the Registrant+
5.01 Opinion of Black, McCuskey, Souers & Arbaugh+
10.01 Recapitalization Agreement dated as of September 15, 1995 among ICM
Industries, Inc., MLGA Fund II, L.P., Jack D. Rutherford and David T.
Shelby (excluding exhibits and schedules)+
10.02 Amendment to Recapitalization Agreement, dated as of October 12, 1995+
10.03 Form of Amended and Restated Shareholders Agreement dated as of
, 1996+
10.04 Amended and Restated Employment Agreement dated October 13, 1995 between
The Gradall Company and Barry L. Phillips+
10.05 Amended and Restated Employment Agreement dated October 13, 1995 between
The Gradall Company and David S. Williams+
10.06 Deferred Compensation Agreement dated July 19, 1989 between The Gradall
Company and Barry L. Phillips+
10.07 Amended and Restated Deferred Compensation Agreement dated August 30,
1995 between The Gradall Company and David S. Williams+
10.08 Split-Dollar Life Insurance Agreement dated as of August 30, 1995 between
The Gradall Company and Barry L. Phillips+
10.09 Gradall Industries, Inc. 1995 Stock Option Plan+
10.10 Employment Agreement dated as of November 1, 1995 between The Gradall
Company and Bruce A. Jonker+
10.11 Employment Agreement dated as of November 1, 1995 between The Gradall
Company and Joseph H. Keller, Jr.+
10.12 Employment Agreement dated as of November 1, 1995 between The Gradall
Company and James C. Cahill+
10.13 The Gradall Company Amended and Restated Supplemental Executive
Retirement Plan+
10.14 The Gradall Company Benefit Restoration Plan+
10.15 Loan and Security Agreement dated as of October 13, 1995, among Gradall
Investment Company, The Gradall Company, Gradall Industries, Inc. and
Heller Financial, Inc., as agent (excluding exhibits and schedules)+
10.16 Supply Agreement between The Gradall Company and Iowa Industrial
Hydraulics, Inc., dated January 1, 1995 (excluding exhibits)+
11.01 Statement re computation of per share earnings+
21.01 Subsidiaries of the Registrant+
23.01 Consent of Coopers & Lybrand L.L.P.*
23.03 Consent of Black, McCuskey, Souers & Arbaugh (included in their opinion
filed as Exhibit 5.01)+
24.01 Powers of Attorney of certain officers and directors of the Registrant+
27.01 Financial Data Schedule+
</TABLE>
- ---------------
+ Filed previously.
* Filed herewith.
E-1
<PAGE> 8
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 26, 1996.
REGISTRATION NO. 333-06777
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
GRADALL INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------
EXHIBITS
<PAGE> 1
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in Amendment No. 2 to the registration
statement on Form S-1 (File No. 333-06777) of our report dated July 25, 1996,
on our audits of the consolidated financial statements of Gradall Industries,
Inc. (formely ICM Industries, Inc.). We also consent to the reference to our
firm under the caption "Experts".
Coopers & Lybrand L.L.P.
Cleveland, Ohio
August 23, 1996
