<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON June 13, 1997
REGISTRATION NO. __-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
RIVIERA TOOL COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
MICHIGAN 3544 38-2828870
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
</TABLE>
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5460 Executive Parkway SE
Grand Rapids, Michigan 49512
(616) 698-2100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
KENNETH K. RIETH Copies to:
President
5460 Executive Parkway, S.E. STUART F. CHENEY, Esq.
Grand Rapids, Michigan 49512 Dickinson, Wright, Moon, Van Dusen & Freeman
(616) 698-2100 200 Ottawa Avenue, N.W., Suite 900
(Name, address and telephone number Grand Rapids, Michigan 49503
of agent for service) (616) 458-1300
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the Registration Statement becomes effective.
-----------------
If any of the 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 the prospectus is expected to be made pursuant to 434, please
check the following box. / /
CALCULATION OF REGISTRATION FEE
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<CAPTION>
==========================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, NO PAR VALUE....... 45,000 $5.00 $225,000 $68.18
==========================================================================================================
</TABLE>
(1) Offering price calculated pursuant to 17 CFR Section 230.457(c) at average
of the high and low prices of the Common Stock reported on the American Stock
Exchange on June 12, 1997.
<PAGE> 2
EXPLANATORY NOTE
In accordance with the instructional Note to Part 1 of Form S-8 as
promulgated by the Securities and Exchange Commission, the information
specified by Part 1 of Form S-8 has been omitted from this Registration
Statement on Form S-8 for offers of Common Stock of Riviera Tool Company (the
"Common Stock") pursuant to the Plan. The prospectus filed as part of this
Registration Statement has been prepared in accordance with the requirements of
Form S-3 and may be used for reofferings and resales of unregistered shares of
Common Stock previously acquired pursuant to the Plan (hereinafter such
prospectus will be referred to as the "Prospectus").
================================================================================
<PAGE> 3
PROSPECTUS
RIVIERA TOOL COMPANY
45,000 Shares of Common Stock
This Prospectus relates to an aggregate of 45,000 shares of the common
stock, no par value (the "Common Stock"), of Riviera Tool Company (the
"Company") issued or issuable under the John T. Moran Consulting Agreement and
Plan of Compensation dated March 4, 1997 (the "Plan") in his capacity as a
consultant to the Company pursuant thereto, and is to be used in connection
with the reoffer and resale of such shares of Common Stock by John T. Moron
(the "Selling Shareholder"). The Selling Shareholder may be deemed to be an
affiliate of the Company, as defined in Rule 405 of the Securities Act of 1933,
as amended (the "Securities Act"). The Company will not receive any of the
proceeds from the sale of the Common Stock issued to the Selling Shareholder
under the Plan.
The Common Stock issued or issuable under the Plan may be sold from time
to time by the Selling Shareholder or by his pledgee, donee, transferee or
other successor in interest. Such sales may be made on the American Stock
Exchange at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The Common Stock may
be sold by one or more of the following methods: (a) a block trade in which
the broker or dealer so engaged will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer for its account pursuant to
this Prospectus; and (c) ordinary brokerage transactions and transactions in
which the broker solicits purchases. In effecting sales, brokers or dealers
engaged by the Selling Shareholder may arrange for other brokers or dealers to
participate. Such brokers or dealers and any other participating brokers or
dealers may be deemed to be "underwriters" within the meaning of the Securities
Act in connection with such sales. All discounts, commissions or fees incurred
in connection with the sale of the Common Stock offered hereby will be paid by
the Selling Shareholder, except that the expenses of preparing and filing this
Prospectus and the related Registration Statement with the Securities and
Exchange Commission, and of registering or qualifying the Common Stock will be
paid by the Company.
The Common Stock of the Company is listed on the American Stock Exchange
under the symbol "RTC." The closing price of the Company's Common Stock as
reported on June 12, 1997 was $5.00.
PURCHASE OF THESE SECURITIES MAY INVOLVE MATERIAL RISKS. SEE "RISK FACTORS."
________________________________
<PAGE> 4
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
________________________________
The date of this Prospectus is June 13, 1997.
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AVAILABLE INFORMATION
No person is authorized to give any information or to make any
representations, other than as contained herein, in connection with the offer
made in this Prospectus, and any information or representation not contained
herein must not be relied upon as having been authorized by the Company or the
Selling Shareholder. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the Common Stock
offered by this Prospectus, nor does it constitute an offer to sell or a
solicitation of any offer to buy any shares of Common Stock offered hereby to
any person in any jurisdiction where it is unlawful to make such an offer or
solicitation to such person. Neither the delivery of this Prospectus nor any
sale hereunder shall under any circumstances create any implication that
information contained herein is correct as of any time subsequent to the date
hereof.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Reports and other information filed by the Company with the
Commission may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Office at 500
West Madison, Chicago, Illinois 60604. Copies of such material may be obtained
upon written request addressed to the Commission at the Public Reference
Section, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Company is an electronic filer, and the Commission maintains a web site
that contains reports, proxy and information statements and other information
regarding the Company at http://www.sec.gov.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon either the written or oral request of such
person, the Annual Report to Stockholders for the Company's latest fiscal year
and a copy of any or all of the documents incorporated hereby by reference
other than exhibits to such documents. See "INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE." Such requests should be directed to Riviera Tool Company, 5460
Executive Parkway, S.E., Grand Rapids, Michigan 49512, Attention: Investor
Relations.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Prospectus as of their respective dates:
(a) The Company's Quarterly Report on Form 10-Q for the Company's
fiscal quarter ended February 28, 1997; and
(b) The Company's Registration Statement on Form S-1 filed with the
Commission on October 15, 1996, together with any amendment or
report filed for the purpose of updating such Registration
Statement, to the extent of such update. Registration No. 333-14187.
3
<PAGE> 6
All reports and other documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such reports and documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
THE COMPANY
Riviera Tool Company designs, develops and manufactures custom large scale
metal stamping die systems used in the high speed production of sheet metal
stamped parts and assemblies for the automobile industry. The Company
incorporates its knowledge of integrated computer technologies with the design
and manufacture of metal stamping die systems resulting in solutions that
address the specific manufacturing requirements of its main customers, Chrysler
Corporation ("Chrysler"), Ford Motor Company ("Ford") and General Motors
Corporation ("General Motors"), the three largest domestic automobile
manufacturers (the "OEMs"), and their tier one suppliers of sheet metal stamped
parts and assemblies.
The Company's executive offices are located at 5460 Executive Parkway,
S.E., Grand Rapids, Michigan 49512.
RISK FACTORS
THE COMMON STOCK BEING OFFERED INVOLVE A HIGH DEGREE OF RISK AND,
THEREFORE, SHOULD BE CONSIDERED EXTREMELY SPECULATIVE. THEY SHOULD NOT BE
PURCHASED BY PERSONS WHO CANNOT AFFORD THE POSSIBILITY OF THE LOSS OF THEIR
ENTIRE INVESTMENT. Prospective investors should consider carefully, among
other factors, the risk factors and other special considerations relating to
the Company and this offering set forth below.
RELIANCE UPON MAJOR CUSTOMERS
Approximately 25% of the Company's sales during fiscal 1996 and 24% in
fiscal 1995 were made directly to Chrysler Corporation. In addition,
approximately 11% of the Company's sales during fiscal 1996 and 7% during
fiscal 1995 were made directly to Ford Motor Company. Ford suppliers
represented approximately 17% and 55% of the Company's sales during fiscal 1996
and 1995, respectively. General Motors represented approximately 13% of the
Company's sales during 1996 and 1% during fiscal 1995. For the three months
ended November 30, 1996,
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Chrysler, Ford, General Motors and their tier one suppliers accounted for
approximately 50%, 35% and 8% of the Company's revenues, respectively.
The loss of the Company's relationship with these customers, or a
significant reduction of their minimum tooling purchases, or a reduction in new
product development due to economic conditions, could have a material adverse
effect upon the Company.
The Company is directly dependent on its customers who directly produce
the end use product. As a result, if the end use producers (Chrysler, Ford and
General Motors) experience difficulties in such critical areas as style,
quality or global competition, the demand for such end use producer's product
may be adversely affected, which may in turn affect the Company.
GENERAL FACTORS: ECONOMIC CLIMATE, INTERNATIONAL MONETARY CYCLES, CHANGING
FACILITIES, INTER-INDUSTRY DEPENDENCE, AVAILABLE FINANCING
The revenue and value of manufacturing concerns, such as the Company, in
general, may be adversely affected by a number of factors, including: (a) the
international, national, regional and local economic climate - in particular,
manufacturing intended for large ticket durable consumer goods, which directly
contributes to or adversely affects the work loads of manufacturing concerns
supplying product that will contribute to or be incorporated into end use
consumer products, (b) international monetary cycles - manufacturing concerns
produce products that contribute to or are otherwise incorporated into retail
consumer end use products that will directly or indirectly be competing on a
global basis. Where price becomes an issue, monetary cycles may contribute to
or detract from competitive positioning, (c) the need to periodically repair,
replace, upgrade and expand existing production capabilities may not prove to
be a profitable endeavor. (d) the dependence on other industries
- --manufacturing concerns that do not produce an end product but contribute to
an end product produced by another manufacturing concern are subject to both
the trends of the end user and the buying practices of the manufacturer that
assembles into a merchantable product. (e) manufacturing concern values are
affected by factors such as changes in interest rates and the availability of
financing in capital - intensive industries, and in addition, manufacturing
concerns do not typically receive progress payments from their customers.
VOTING CONTROL
Following completion of this Offering, Riviera Holding Company (owned 100%
by Kenneth K. Rieth), a Michigan corporation and Motor Wheel Corporation, an
Ohio corporation located in Lansing, Michigan, will have approximately 24.5%
and 29.6%, respectively, of the voting power and ownership of the Company
(assuming no exercise of the Underwriters' over-allotment option). Together
they will have effective voting control of the Company, and will be able to
elect or remove all of the Company's Directors, will exercise significant
control over the other affairs of the Company and will be able to block any
proposal put to a vote of the shareholders including proposals which require a
supermajority. These two shareholders have entered into a formal voting
agreement as to the election of Directors.
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DEPENDENCE ON EXISTING MANAGEMENT
Kenneth K. Rieth and a few key employees have been primarily responsible
for the development of most of the Company's products, processes and business
methods. The loss or interruption of the continued full-time services of any
of them could have a material adverse effect on the Company. The Company
maintains "Key-man" life insurance policies on Kenneth K. Rieth, President,
C.E.O. and Director, and Leonard H. Wood, Vice President, General Manager and
Director, for $2,500,000 and $500,000, respectively. The Company has pledged
$1,000,000 of this insurance on Kenneth K. Rieth to NBD Bank in connection with
replacing that bank as its primary commercial lender.
COMPETITION AND MARKET CONSOLIDATION
The tooling systems industry is highly competitive, and there can be no
assurance that the Company will be able to compete successfully in the future.
The Company's largest customers, Chrysler and Ford, both have internal die
construction capability; however, the Company believes that such capacity is
insufficient in relationship to their total requirements. The Company believes
that the automobile industry has been going through a tooling systems supplier
consolidation and that there are now fewer quality oriented, full service die
systems suppliers. There is no assurance that the Company will continue to
qualify as a supplier to any of the automobile manufacturers. The loss of any
such qualification would have a material adverse effect on the Company. In
addition, the Company faces competition from foreign manufacturers,
particularly from Japan.
SHARES ELIGIBLE FOR FUTURE SALE
The 1,335,000 shares of Common Stock held by Riviera Holding Company,
owned 100% by Kenneth K. Rieth, Motor Wheel Corporation and 125,000 shares
owned by NBD Bank are eligible for sale in accordance with Rule 144 under the
Securities Act of 1933, as amended. Under Rule 144, shareholders who have held
fully-paid shares for at least one year may sell them without registration
under certain conditions. The sale of a significant portion of these shares in
the open market could have a material adverse effect on the market price of the
Common Stock. However, Riviera Holding Company and Motor Wheel Corporation
have agreed with the National Securities Corporation that they will not sell or
otherwise dispose of any Common Stock until March 4, 1999 without the consent
of the National Securities Corporation. NBD Bank has agreed with the National
Securities Corporation that it will not sell or otherwise dispose of any Common
Stock until March 4, 1998 without the consent of the National Securities
Corporation.
Riviera Holding Company and Motor Wheel have executed a written
Shareholders Agreement (the "Shareholders Agreement") dated October 31, 1996.
Pursuant to the Shareholders Agreement, Motor Wheel has granted Riviera Holding
Company an option to purchase all shares of stock of the Company held by Motor
Wheel. The purchase price under this option is $3.0 million or $4.11 per
share. This option will lapse on October 31, 1997. Riviera Holding Company
has agreed to assign certain of its rights pursuant to this option to the
6
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Company.
PREFERRED STOCK
The Board of Directors of the Company is authorized to issue, without any
further action on the part of the Company's shareholders, up to 200,000 shares
of preferred stock (the "Preferred Stock") in one or more series with such
designations, preferences, limitations and other rights, including voting
rights, as are determined by the Board of Directors from time to time. The
issuance of such shares of preferred stock could result in the dilution of the
voting power of the shares of Common Stock purchased in this Offering and could
have a dilutive effect on earnings per share.
ABSENCE OF PRIOR MARKET FOR COMMON STOCK
Prior to March 4, 1997, there has been no public market for the Common
Stock of the Company. There can be no assurance that an active public market
for the shares will develop or be sustained after this offering or that the
market price of the Common Stock will not decline below the initial public
offering price. The trading price of the Company's Common Stock in the future
could be subject to wide fluctuations in response to quarterly variations in
operating results of the Company or its competitors, changes in analysts'
estimates of the Company's financial performance, regulatory developments,
general industry conditions, worldwide economic and financial conditions, and
other factors. During certain periods, the stock markets have experienced
extreme price and volume fluctuations. In addition, securities sold in initial
public offerings have been especially susceptible to price volatility. These
broad market fluctuations and other factors may adversely affect the market
price of the Company's Common Stock.
SELLING SHAREHOLDER
John T. Moran, the Selling Shareholder, is neither a director nor an
officer or employee of the Company or any of its subsidiaries. He is an
independent consultant who entered into the March 4, 1997 consulting agreement
and plan of compensation referred to herein as the Plan. In accordance with
the provisions of the Plan, the Selling Shareholder subscribed for 15,000
shares of the Common Stock which is being offered hereby, and agreed to pay the
$97,500 purchase price therefor by paying the aggregate value thereof by
rendering certain corporate advisory consulting services to the Company valued
at $97,500.
In addition, Mr. Moran agreed to purchase warrants for the purchase of an
additional 30,000 shares of the Company's Common Stock exercisable for a period
of three years at an exercisable price of $10.50 per share for 15,000 shares
and $14.00 per share for the 15,000 share balance. The purchase price of
warrants was $2,500 in the aggregate and was also paid by the rendering of
certain corporate advisory consulting services.
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As of the date of this Prospectus, the Selling Shareholder beneficially
owns, directly and indirectly, 45,000 shares of Common Stock, all of which are
covered by this Prospectus. Upon completion of the offering being made hereby,
the Selling Shareholder will not hold any shares of Common Stock.
PLAN OF DISTRIBUTION
The Common Stock may be sold from time to time by the Selling Shareholder
or by any pledgee, donee, transferee or other successor in interest. Such
sales may be made on the American Stock Exchange or otherwise at prices and at
terms then prevailing or at prices related to the then current market price, or
in negotiated transactions. The Common Stock may be sold by one or more of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction; (b) purchases by a broker
or dealer for its account pursuant to this Prospectus; and (c) ordinary
brokerage transactions and transactions in which the broker solicits purchases.
In effecting sales, brokers or dealers engaged by the Selling Shareholder may
arrange for other brokers or dealers to participate. Brokers or dealers will
receive commissions or discounts from Selling Shareholder in amounts to be
negotiated immediately prior to the sale. Such brokers or dealers and any
other participating brokers or dealers may be deemed to be "underwriters"
within the meaning of the Securities Act in connection with such sales. The
Company will not receive any of the proceeds from the sale of these shares,
although it has paid the expenses of preparing this Prospectus and the related
Registration Statement. The Selling Shareholder has been advised that he is
subject to the applicable provisions of the Securities Exchange Act of 1934,
including without limitation, Rules 10b-5, 10b-6 and 10b-7 thereunder.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
shares of Common Stock being registered hereunder.
LEGAL MATTERS
The validity of the Common Stock being offered hereby will be passed upon
for the Company by Dickinson, Wright, Moon, Van Dusen & Freeman of Grand
Rapids, Michigan.
EXPERTS
The financial statements and the related financial statement
schedules incorporated herein by reference from the Company's Registration
Statement on Form S-1, No. 333-14187 have been audited by Plante & Moran,
L.L.P., independent auditors, as stated in said firm's report, which is
incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon its authority as experts in accounting
and auditing.
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ADDITIONAL INFORMATION
The Company has agreed to indemnify directors, officers and other
representatives of the Company, including the Selling Shareholder in his
capacity as a consultant, for costs incurred by them in connection with any
action, suit or proceeding brought by reason of their position as a director,
officer or representative. This would include actions, suits or proceedings
with respect to liability under the Securities Act. To be eligible for
indemnification, the person being indemnified must have acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company.
The Board of Directors is empowered to make other indemnification as
authorized by the Company's Articles of Incorporation, Bylaws or corporate
resolutions, so long as such indemnification is consistent with the Michigan
Business Corporation Act. Under the Company's Bylaws, the Company is required
to indemnify its directors to the full extent permitted by the Michigan
Business Corporation Act, common law and any applicable statutory provisions.
These provisions also may include indemnification for liabilities arising under
the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company, as hereinabove described, or otherwise, the Company has been advised
that, in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
9
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TABLE OF CONTENTS
Page
Riviera Tool Company 1
Available Information 3
Incorporation of Certain Documents by Reference 3
The Company 4
Risk Factors 4
Selling Shareholder 7
Plan of Distribution 8
Use of Proceeds 8
Legal Matters 8
Experts 8
Additional Information 9
10
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
In accordance with the General Instructions to Form S-8, as amended, the
Company has provided the following information that is required in this
Registration Statement, pursuant to which shares of the Company's Common Stock
shall be registered, including the necessary opinion and consents, which are
attached hereto as Exhibits 5, 23(a) and 23(b). The Company will deliver a
prospectus meeting the requirements of Part I of Form S-8 and Rule 428 to the
Selling Shareholder and all other persons entitled to receive same in
accordance with the requirements of Rule 428(b).
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this Registration
Statement as of their respective dates:
(a) The Company's Quarterly Report on Form 10-Q for the Company's
fiscal quarter ended February 28, 1997.
(b) The Company's Registration Statement on Form S-1 filed with the
Commission on October 15, 1996, together with any amendment or
report filed for the purpose of updating such Registration
Statement, to the extent of such update. Registration No. 333-14187.
All reports and other documents subsequently filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such reports and documents.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
II-1
<PAGE> 14
Item 6. Indemnification of Directors and Officers.
The Company has agreed to indemnify directors, officers and other
representatives of the Company, including the Selling Shareholder in his
capacity as a consultant, for costs incurred by them in connection with any
action, suit or proceeding brought by reason of their position as a director,
officer or representative. This would include actions, suits or proceedings
with respect to liability under the Securities Act. To be eligible for
indemnification, the person being indemnified must have acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company.
The Board of Directors is empowered to make other indemnification as
authorized by the Company's Articles of Incorporation, Bylaws or corporate
resolutions, so long as such indemnification is consistent with the Michigan
Business Corporation Act. Under the Company's Bylaws, the Company is required
to indemnify its directors to the full extent permitted by the Michigan
Business Corporation Act, common law and any applicable statutory provisions.
These provisions also may include indemnification for liabilities arising under
the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company, as hereinabove described, or otherwise, the Company has been advised
that, in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
The Common Stock acquired under the Plan is being reoffered or resold
pursuant to this Registration Statement by the Selling Shareholder. These
securities were acquired by such Selling Shareholder pursuant to an exemption
from registration under Section 4(2) of the Securities Act.
Item 8. Exhibits.
4(a) Specimen stock certificate of the Company's Common Stock (a copy of which
is filed with the Commission as Exhibit 4(a) to the Company's Registration
Statement on Form S-1 (Registration No. 333-14187), and which is
incorporated herein by this reference).
4(c) Consulting Agreement and Plan of Compensation dated March 4, 1997 between
the Company and John T. Moran.
4(d) Form of Warrant Agreement (including form of warrant).
5 Opinion of Dickinson, Wright, Moon, Van Dusen & Freeman regarding the
legality of the Common Stock.
II-2
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23(a) Consent of Independent Auditors.
23(b) Consent of Counsel (contained in the opinion of counsel filed as Exhibit
5 hereto).
24 Power of Attorney (See Page II-4).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to include any
additional or changed material information on the plan of distribution; and
(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 bona
fide offering thereof;
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering;
(4) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
small business issuer pursuant to the foregoing provisions, or otherwise, the
small business issuer 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.
II-3
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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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Grand Rapids, State of Michigan on the 13th day of
June, 1997.
RIVIERA TOOL COMPANY
By:/s/ Kenneth K Rieth
-----------------------------
Kenneth K. Rieth, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kenneth K. Rieth or Peter C. Canepa his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as full to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
SIGNATURE TITLE DATE
- -------- ----- ----
/s/ Kenneth K. Rieth President (Principal June 13, 1997
- ----------------------- Executive Officer) and
Kenneth K. Rieth Director
/s/ Peter C. Canepa Secretary, Treasurer June 13, 1997
- ----------------------- and Chief Financial
Peter C. Canepa Officer (Principal
Financial and
Accounting Officer)
II-4
<PAGE> 17
/s/ Leonard H. Wood Director June 13, 1997
- ----------------------- -------
Leonard H. Wood
Director , 1997
- ----------------------- -------
Thomas R. Collins
Director , 1997
- ----------------------- -------
John R. Kinstler
/s/ John C. Kennedy Director June 13, 1997
- ----------------------- -------
John C. Kennedy
/s/ Thomas H. Highley Director June 13, 1997
- ----------------------- -------
Thomas H. Highley
II-5
<PAGE> 18
Exhibit No. Exhibit Index
Description
4 (a) Specimen stock certificate of the Company's Common
Stock (a copy of which is filed with the Commission
as Exhibit 4(a) to the Company's Registration Statement
Form S-1 (Registration No. 333-14187), and
which is incorporated herein by this reference).
4 (c) Consulting Agreement and Plan of Compensation dated March 4,
1997 between the Company and John T. Moran.
4 (d) Form of Warrant Agreement (including form of warrant).
5 Opinion of Dickinson, Wright, Moon, Van Dusen & Freeman
regarding the legality of the Common Stock.
23 (a) Consent of Independent Auditors.
23 (b) Consent of Counsel (contained in the opinion of counsel
filed as Exhibit 5 hereto).
24 Power of Attorney (See Page II-4).
<PAGE> 1
EXHIBIT 4(c)
JOHN T. MORAN
62 SE 6TH AVENUE
DELRAY BEACH, FLORIDA 34383
March 4, 1997
Riviera Tool Company,
5460 Executive Parkway, S.E.
Grand Rapids, Michigan 49512
Attention: Mr. Kenneth K. Rieth, President
Gentlemen:
I am writing to confirm the terms of our agreement regarding my purchase of
shares of the common stock, no par value (the "Common Stock") of Riviera Tool
Company (the "Company") and warrants to purchase shares of Common Stock, and my
payment of the purchase price therefor by my prior rendition of the services
described in this Consulting Agreement and Plan of Compensation.
1. I hereby subscribe for (a) 15,000 shares of Common Stock (the "Shares"),
(b) a three year warrant to purchase 15,000 shares of Common Stock at an
exercise price of $10.50 per share (the "$10.50 Warrants"); and (c) a three
year warrant to purchase 15,000 shares of Common Stock at an exercise price of
$14.00 per share (the "$14.00 Warrants" which, together with the $10.50
Warrants, are hereinafter collectively referred to as the "Warrants"). I agree
to pay the sum of $97,500 in consideration for the issuance of the Shares to
me, and I agree to pay the sum of $2,500 in consideration for the issuance of
the Warrants to me.
2. You hereby acknowledge that I have paid the aggregate amount of such
sums, i.e., $100,000 (the "Purchase Price"), by my prior rendition to you of
corporate advisory services, including general business and financial analysis,
having an aggregate value equal to the purchase price.
It is expressly understood that (a) the services I heretofore provided
hereunder specifically excluded any activities involving any effort by the
Company to raise capital; and (b) in the event that the Company may call upon
me in the future to render assistance to it with respect to any transaction to
raise capital undertaken by it, the compensation to be paid to me in connection
therewith shall be the subject of a separate agreement which the Company and I
will enter into at the appropriate time.
<PAGE> 2
Riviera Tool Company
March 4, 1997
Page 2
3. It is further expressly understood that: (a) at the time of delivery of the
Shares to me (which such delivery shall take place not later than 30 days from
the date hereof), and (b) upon my full payment of the exercise price due and
owing with respect to any of the Warrants that I may timely exercise, at the
time of delivery of the shares of Common Stock underlying the Warrants (the
"Warrant Shares") to me, such Shares and Warrant Shares shall be fully paid,
non-assessable, and freely tradable under US and applicable state securities
laws. I represent to the Company, as follows:
(i) I am acquiring the Shares and the Warrants solely for my own account.
(ii) I am an "accredited investor" (as that term is defined in rule 501 of
Regulation D under the Securities Act of 1933 (the "Act")). I have received and
read all information and documentation as I deemed appropriate with regard to
the Company and its securities. I have relied on nothing other than this
Agreement and said information and documentation in deciding whether to enter
into the transactions contemplated by this Agreement. I acknowledge that I have
been given the opportunity to ask questions and receive satisfactory answers
concerning this Agreement, the operations and financial condition of the
Company and the accuracy of the information provided by the Company to me.
(iii) I have no intention of distributing or reselling the Shares, the
Warrants or any part thereof, or interest therein, in any transaction which
would be in violation of the securities laws of the United States of America or
any state securities laws.
(iv) If I desire to sell or otherwise dispose of all or any part of the Shares
or Warrants (other than pursuant to an effective registration statement under
the Act or a sale or other disposition made pursuant to Rule 144), if requested
by the Company, I will deliver to the Company an opinion of counsel, reasonably
satisfactory in form and substance to the Company and its counsel, that such
exemption is available. Upon original issuance thereof, and until such time as
the same is no longer required under the applicable requirements of the Act, the
certificates evidencing the Shares and the Warrants (and all certificates
issued in exchange therefor or substitution thereof) shall bear the following
legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER ANY STATE SECURITIES LAWS.
<PAGE> 3
Riviera Tool Company
March 4, 1997
Page 3
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR SUCH
LAWS."
4. Nothing in this Agreement shall be considered to create the relationship of
employer and employee between the parties hereto. I shall be deemed at all
times to be an independent contractor, without the power or authority to bind
the Company in any manner.
5. The Company agrees that it will indemnify and hold me harmless for, and
against any and all losses, claims, damages and liabilities, joint or several
(including all legal or other expenses reasonably incurred by me in connection
with the preparation for or defense of any claim, action or proceeding whether
or not resulting in any liability), to which I may become subject under any
applicable Federal or state law or otherwise caused by or arising out of any
transaction covered by this agreement as to which I rendered services to the
Company hereunder as a result of an act or omission of the Company, its
officers, employees or agents prior to the date hereof.
6. Promptly after receipt by me of notice of any claim or the commencement of
any action or proceeding with respect to which I am entitled to indemnification
hereunder, I will notify the Company in writing of such claim or of the
commencement of such action or proceeding, and the Company will employ counsel
reasonably satisfactory to me and will pay the fees and expense of such
counsel. Notwithstanding the preceding sentence, I will be entitled to employ
counsel separate from counsel for the Company and from any other party in such
action if a conflict of interest exists which makes representation by the
Company's appointed counsel not appropriate. In such event, the reasonable
fees and disbursements of such separate counsel will be paid by the Company.
7. The Company agrees to notify me promptly of the assertion against it or any
person of any claim or the commencement of any action or proceeding relating to
a transaction arising out of the services provided by me pursuant to this
agreement.
8. This agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements
between us concerning such subject matter, and may be modified only by a
written instrument duly executed by each party.
9. Any waiver by either party of a breach of any provision of this letter shall
not operate as or be construed to be a waiver of any other breach of such
provision or of any breach of any other provision of this letter. This
agreement shall be binding
<PAGE> 4
Riviera Tool Company
March 4, 1997
Page 4
upon and inure to the benefit of each of the parties, and their respective
successors and assigns.
10. The covenants, agreements, representations, and warranties contained in
or made pursuant to this letter agreement shall survive the termination of my
engagement hereunder, irrespective of any investigation made by or on behalf of
any party.
11. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered by next-day courier
(FedEx, UPS, etc.), by certified mail, return receipt requested, or by hand
against receipt to the party to whom it is to be given at the address of such
party set forth at the beginning of this letter agreement (or to such other
address as the party shall have furnished in writing in accordance with the
provisions of this Section 11). All such notices shall be deemed to have been
given on the date of receipt thereof by the addressee, or on the date of
attempted delivery thereof, if acceptance of such delivery is refused for any
reason by the addressee.
12. This letter agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. It shall be governed by, and construed
in accordance with, the laws of the State of Michigan, without giving effect to
conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this letter as of the
date first above written.
Very truly yours,
John T. Moran
John T. Moran
AGREED TO AND ACKNOWLEDGED:
Riviera Tool Company
By: Kenneth K. Rieth
---------------------------
Kenneth K. Rieth, President
<PAGE> 1
EXHIBIT 4(d)
_________________________
RIVIERA TOOL COMPANY
AND
JOHN T. MORAN
WARRANT AGREEMENT
DATED AS OF MARCH 4, 1997
_________________________
<PAGE> 2
WARRANT AGREEMENT dated as of March 4, 1997, between RIVIERA TOOL COMPANY,
a Michigan corporation (the "Company"), and JOHN T. MORAN of Delray Beach,
Florida (hereinafter referred to as "Moran").
W I T N E S S E T H :
WHEREAS, Moran has performed certain consulting services for the Company,
in connection with the Company's public offering of 1,010,000 shares of common
stock.
WHEREAS, pursuant to a Consulting Agreement and Plan of Compensation, the
Company is to issue warrants to Moran to purchase up to an aggregate of 30,000
shares of Common Stock (the "Warrants").
NOW, THEREFORE, in consideration of the premises, the performance of the
consulting services and the agreements herein set forth, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. Moran is hereby granted the right to purchase, at any time from
March 4, 1997 until 5:30 p.m., Michigan time, on March 3, 2000, at which time
the Warrants expire, up to an aggregate 30,000 shares of Common Stock (subject
to adjustment as provided in Section 7 hereof), at an initial exercise price
(subject to adjustment as provided in Section 9 hereof) of $10.50 (for 15,000
shares and $14.00 for 15,000 shares) (the "Exercise Price").
2. Warrant Certificates. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall
be in the form set forth in Exhibit A, attached hereto and made a part hereof,
with such appropriate insertions, omissions, substitutions, and other
variations as required or permitted by this Agreement.
3. Registration of Warrant. The Warrants shall be numbered and shall be
registered on the books of the Company when issued.
<PAGE> 3
4. Exercise of Warrant. The Warrants initially are exercisable at the
Exercise Price (subject to adjustment as provided in Section 9 hereof) per
Warrant set forth in Section 7 hereof payable by certified or official bank
check in New York Clearing House funds. Upon surrender of a Warrant
Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price for the shares of Common Stock
purchased at the Company's principal offices in Michigan (presently located at
5460 Executive Parkway S.E., Grand Rapids, Michigan 49512) Moran shall be
entitled to receive a certificate or certificates for the shares of Common
Stock so purchased. The purchase rights represented by each Warrant
Certificate are exercisable at the option of the Holder thereof, in whole or in
part (but not as to fractional shares of Common Stock underlying the Warrants).
In the case of the purchase of less than all of the shares of Common Stock
purchasable under any Warrant Certificate, the Company shall cancel said
Warrant Certificate upon the surrender thereof and shall execute and deliver a
new Warrant Certificate of like tenor for the balance of the shares of Common
Stock purchasable thereunder.
5. Issuance of Certificates. Upon the exercise of the Warrant, the
issuance of certificates for shares of Common Stock, properties or rights
underlying such Warrant shall be made forthwith (and in any event within five
(5) business days thereafter) without charge to Moran including, without
limitation, any tax which may be payable in respect of the issuance thereof,
and such certificates shall be issued in the name of Moran; provided that Moran
shall be responsible for any tax based upon or measured by his income.
The Warrant Certificates and the certificates representing the shares of
Common Stock or other securities, property or rights issued upon exercise of
the Warrant shall be executed on behalf of the Company by the manual or
facsimile signature of the then present President or any
2
<PAGE> 4
Vice President of the Company under its corporate seal reproduced thereon,
attested to by the manual or facsimile signature of the then present Secretary
or any Assistant Secretary of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
6. Restriction on Transfer of Warrants. The Warrants shall not be
transferable and are personal to Moran but may be exercised in the event of his
death by the duly appointed representative of his estate within ninety (90)
days after the date of his death. Moran, by his acceptance hereof, covenants
and agrees that the Warrant is being acquired as an investment and not with a
view to the distribution thereof, and that the Warrant may not be sold,
transferred, assigned, hypothecated or otherwise disposed of, in whole or in
part, for the term of the Warrant.
7. Exercise Price and Number of Securities. Except as otherwise provided
in Section 9 hereof, each Warrant is exercisable to purchase one share of
Common Stock at an initial exercise price equal to the Exercise Price. The
Exercise Price and the number of shares of Common Stock for which the Warrants
may be exercised shall be the price and the number of shares of Common Stock
which shall result from time to time from any and all adjustments in accordance
with the provisions of Section 9 hereof.
8. Registration. Each Warrant Certificate shall bear the following
legend:
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE 144
UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF
3
<PAGE> 5
SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH
OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL
FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANT REPRESENTED BY
THE CERTIFICATE IS PROHIBITED.
The Company shall use its best efforts to file a registration statement
upon execution hereof covering the shares issuable upon exercise of the
Warrants, and to have any registration statements declared effective at the
earliest possible time, and shall furnish Moran such number of prospectuses as
shall reasonably be requested.
The Company shall pay all costs (excluding fees and expenses of Moran's
counsel and any underwriting or selling commissions), fees and expenses in
connection with such registration statement, including without limitation, the
Company's legal and accounting fees, printing expenses, blue sky fees and
expenses.
9. Adjustments to Exercise Price and Number of Securities. The Exercise
Price in effect at any time and the number and kind of securities purchased
upon the exercise of the Warrant shall be subject to adjustment from time to
time only upon the happening of the following events:
9.1 Stock Dividend, Subdivision and Combination. In case the Company
shall (i) declare a dividend or make a distribution on its outstanding shares
of Common Stock in shares of Common Stock, (ii) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such subdivision,
combination or
4
<PAGE> 6
reclassification shall be adjusted so that it shall equal the price determined
by multiplying the Exercise Price by a fraction, the denominator of which shall
be the number of shares of Common Stock outstanding after giving effect to such
action, and the numerator of which shall be the number of shares of Common
Stock outstanding immediately prior to such action. Such adjustment shall be
made successively whenever any event listed above shall occur.
9.2 Adjustment in Number of Securities. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 9, the number of
Warrant Shares issuable upon the exercise at the adjusted Exercise Price of
each Warrant shall be adjusted to the nearest number of whole shares of Common
Stock by multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon exercise
of the Warrant immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
9.3 Definition of Common Stock. For the purpose of this Agreement, the
term "Common Stock" shall mean (i) the class of stock designated as Common
Stock in the Articles of Incorporation of the Company as amended as of the date
hereof, or (ii) any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
9.4 Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company into, another corporation (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding Common Stock), the corporation formed by such consolidation
or merger shall execute and deliver to Moran a supplemental warrant agreement
providing that the Warrant then outstanding or to be outstanding
5
<PAGE> 7
shall have the right thereafter (until the expiration of such Warrant) to
receive, upon exercise of such Warrant, the kind and amount of shares of stock
and other securities and property receivable upon such consolidation or merger
by a holder of the number of shares of Common Stock for which such Warrant
might have been exercised immediately prior to such consolidation, merger, sale
or transfer. Such supplemental warrant agreement shall provide for adjustments
which shall be identical to the adjustments provided in Section 10. The above
provision of this subsection shall similarly apply to successive consolidations
or mergers.
9.5 No Adjustment of Exercise Price in Certain Cases. No adjustment of
the Exercise Price shall be made:
(a) Upon the issuance or sale of Common Stock (or any other security
convertible, exercisable, or exchangeable into shares of Common Stock) or upon
the direct or indirect conversion, exercise, or exchange of any options,
rights, warrants, or other securities or indebtedness of the Company or granted
pursuant to any stock option plan of the Company, pursuant to the terms
thereof; or
(b) If the amount of said adjustment shall be less than two cents
($.02) per share, provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and shall be
made at the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at least two
cents ($.02) per Warrant.
9.6 Exchange and Replacement of Warrant Certificates. Each Warrant
Certificate is exchangeable, without expense, upon the surrender thereof at the
principal executive office of the Company for a new Warrant Certificate of like
tenor and date
6
<PAGE> 8
representing in the aggregate the right to purchase the same number of Warrant
Shares in such denominations as shall be designated by Moran thereof at the
time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrant, nor shall it be required to issue scrip or
pay cash in lieu of fractional interests, it being the intent of the parties
that all fractional interests shall be eliminated by rounding any fraction up
to the nearest whole number of shares of Common Stock or other securities,
properties or rights.
11. Reservation and Listing of Securities. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the exercise of the Warrants, such number of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. Every transfer agent ("Transfer Agent")
for the Common Stock and other securities of the Company issuable upon the
exercise of the Warrants will be irrevocably authorized and directed at all
times to reserve such number of authorized shares of Common Stock and other
securities as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with every Transfer Agent for the Common Stock
and other securities of the Company issuable upon the exercise of the
7
<PAGE> 9
Warrants. The Company will supply every such Transfer Agent with duly executed
stock and other certificates, as appropriate, for such purpose. The Company
covenants and agrees that, upon exercise of the Warrants and payment of the
Exercise Price therefor, all shares of Common Stock and other securities
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. As
long as the Warrants shall be outstanding, the Company shall use its best
efforts to cause all shares of Common Stock issuable upon the exercise of the
Warrants to be listed (subject to official notice of issuance) on all
securities exchanges on which the Common Stock issued to the public in
connection herewith may then be listed and/or quoted on Nasdaq SmallCap Market.
12. Notices to Moran. Nothing contained in this Agreement shall be
construed as conferring upon Moran the right to vote or to consent or to
receive notice as a stockholder in respect of any meetings of stockholders for
the election of directors or any other matter, or as having any rights
whatsoever as a stockholder of the Company. If, however, at any time prior to
the expiration of the Warrants and their exercise, any of the following events
shall occur:
(a) the Company shall take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
books of the Company; or
(b) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into or exchangeable
8
<PAGE> 10
for shares of capital stock of the Company, or any option, right or warrant to
subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. Failure to give such notice or any defect therein shall not affect the
validity of any action taken in connection with the declaration or payment of
any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
13. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made and
sent when delivered, or mailed by registered or certified mail, return receipt
requested:
(a) if to Moran at 62 S.E. 6th Avenue, Delray Beach, Florida 34383; or
(b) if to the Company, to the address set forth in Section 4 hereof
or to such other address as the Company may designate by notice to Moran.
9
<PAGE> 11
14. Supplements; Amendments; Entire Agreement. This Agreement may not be
modified or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
15. Successors. All of the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, Moran and their
respective successors and assigns hereunder.
16. Survival of Representations and Warranties. All statements in any
schedule, exhibit or certificate or other instrument delivered by or on behalf
of the parties hereto, or in connection with the transactions contemplated by
this Agreement, shall be deemed to be representations and warranties hereunder.
Notwithstanding any investigations made by or on behalf of the parties to this
Agreement, all representations, warranties and agreements made by the parties
to this Agreement or pursuant hereto shall survive.
17. Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Michigan and for all purposes shall be construed in accordance with the laws of
said State without giving effect to the rules of said State governing the
conflicts of laws.
18. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
19. Captions. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive
effect.
10
<PAGE> 12
20. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and Moran
any legal or equitable right, remedy or claim under this Agreement.
21. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS OF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
ATTEST: RIVIERA TOOL COMPANY
By:__________________ By: ___________________
Peter C. Canepa Kenneth K. Rieth
Secretary Its President
By: ___________________
John T. Moran
11
<PAGE> 13
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, (ii) TO THE
EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE UNDER SUCH ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF
SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANT REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30 P.M., MICHIGAN TIME, MARCH 3, 2000
Warrant No. ____
_______________ Shares of Common Stock
WARRANT CERTIFICATE
This Warrant Certificate certifies that John T. Moran is the registered
holder of Warrants to purchase initially, at any time from March 4, 1997 until
5:30 p.m., Michigan time on March 3, 2000 ("Expiration Date"), up to _________
shares of fully-paid and non-assessable common stock, no par value (the "Common
Stock") of Riviera Tool Company, a Michigan corporation (the "Company"), at the
initial exercise price, subject to adjustment in certain events, of $_____ per
share of Common Stock (the "Exercise Price") upon surrender of this Warrant
Certificate and payment of the Exercise Price at an office or agency of the
Company, but subject to the conditions set forth herein and in the Warrant
Agreement dated as of March 4, 1997 between the Company and John T. Moran (the
"Warrant Agreement"). Payment of the Exercise Price shall be made by certified
or official bank check in New York Clearing House funds payable to the order of
the Company.
12
<PAGE> 14
No Warrant may be exercised after 5:30 p.m., Michigan time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and John T. Moran.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such numbered unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
13
<PAGE> 15
This Warrant Certificate does not entitle any holder thereof to any of the
rights of a shareholder of the Company.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed.
Dated as of March 4, 1997.
ATTEST: RIVIERA TOOL COMPANY
By: ___________________ By: __________________
Peter C. Canepa Kenneth K. Rieth
Secretary Its President
14
<PAGE> 16
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 4]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _________ shares of Common
Stock and herewith tenders in payment for such securities a certified or
official bank check payable in New York Clearing House Funds to the order of
Riviera Tool Company (the "Company") in the amount of $_____, all in accordance
with the terms of Section 4 of the Warrant Agreement dated as of March 4, 1997
among the Company and John T. Moran. The undersigned requests that a
certificate for such securities be registered in the name of
________________________________ whose address is _____________________________
_____________________________ that such certificate be delivered
to___________________________ whose address is ________________________________
_________________ and if said number of shares shall not be all the shares
purchasable hereunder, that a new Warrant Certificate for the balance of the
shares purchasable under the within Warrant Certificate be registered in the
name of the undersigned warrant holder or his assignee as below indicated and
delivered to the address stated below.
Dated: _______________
Signature:____________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant
Certificate.)
Address: ____________________________
______________________________________
______________________________________
(Insert Social Security or Other
Identifying Number of Holder)
Signature Guaranteed: ________________________________________________
(Signature must be guaranteed by a bank, savings and loan association,
stockbroker, or credit union with membership in an approved signature guaranty
Medallion Program pursuant to Securities Exchange Act Rule 17Ad-15.)
15
<PAGE> 1
EXHIBIT 5
[DICKINSON, WRIGHT, MOON, VAN DUSEN & FREEMAN LETTERHEAD]
June 3, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Riviera Tool Company Registration Statement
on Form S-8/S-3, Registration No.
-------------------------------------------
Ladies and Gentlemen
We are acting as counsel for Riviera Tool Company, a Michigan corporation
("Riviera"), in connection with the offering (the "Offering"), of its common
stock, without par value (the "Common Stock"), pursuant to the above-captioned
registration statement (the "Registration Statement").
In preparation for rendering our opinions expressed below, we have
examined the originals or copies, certified to our satisfaction, of such
corporate records and other documents and certificates as we deemed necessary.
Based upon the foregoing, we are of the opinion that:
1. Riviera is a corporation duly organized and validly existing under and
pursuant to the laws of the State of Michigan.
2. The shares of Riviera's Common Stock covered by the Registration
Statement, when issued and sold pursuant to the Offering, will be duly
authorized, fully paid and nonassessable.
<PAGE> 2
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to the use of our firm name under the caption "Legal
Matters" in the Registration Statement.
Very truly yours,
DICKINSON, WRIGHT, MOON,
VAN DUSEN & FREEMAN
SFC/jle
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Riviera Tool Company
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated November 22, 1996, relating to the
financial statement of Riviera Tool Company contained in the Company's
Registration Statement on Form S-1 filed with the Commission. Registration No.
333-14187.
PLANTE & MORAN, LLP
Grand Rapids, Michigan
June 13, 1997
