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REGISTRATION NO. 333-25325
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACORN PRODUCTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 3423 22-3265462
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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GAVRIL MIHALY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
500 DUBLIN AVENUE 500 DUBLIN AVENUE
COLUMBUS, OHIO 43215 COLUMBUS, OHIO 43215
(614) 222-4400 (614) 222-4400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE (NAME, ADDRESS, INCLUDING ZIP CODE, AND
NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE, OF
AGENT
PRINCIPAL EXECUTIVE OFFICES) FOR SERVICE)
WITH COPIES TO:
CONOR D. REILLY, ESQ. CHRISTOPHER M. KELLY, ESQ.
GIBSON, DUNN & CRUTCHER LLP JONES, DAY, REAVIS & POGUE
200 PARK AVENUE 901 LAKESIDE AVENUE
NEW YORK, NEW YORK 10166-0193 CLEVELAND, OHIO 44114
(212) 351-4000 (216) 586-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practical after this 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 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. [ ]
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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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The Registrant's expenses in connection with the Offering described in this
registration statement are set forth below. All amounts except the Securities
and Exchange Commission registration fee, the National Association of Securities
Dealers, Inc. (the "NASD") filing fee and the Nasdaq National Market listing fee
are estimated.
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Securities and Exchange Commission registration fee...................... $ 17,000
NASD filing fee.......................................................... 6,100
Printing and engraving expenses.......................................... 300,000
Accounting fees and expenses............................................. 200,000
Legal fees and expenses.................................................. 200,000
Nasdaq National Market listing fee....................................... 36,000
Fees and expenses (including legal fees) for qualifications under state
securities laws........................................................ 10,000
Transfer agent's fees and expenses....................................... 5,000
Miscellaneous............................................................ 225,900
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Total............................................................... $ 1,000,000
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* To be filed by amendment
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
Registrant under certain circumstances from liabilities (including reimbursement
of expenses incurred) arising under the Securities Act of 1933, as amended (the
"Securities Act").
As permitted by the DGCL, the Registrant's Certificate of Incorporation
(the "Charter") provides that, to the fullest extent permitted by the DGCL, no
director shall be liable to the Registrant or to its stockholders for monetary
damages for breach of his fiduciary duty as a director. Delaware law does not
permit the elimination of liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or stock redemptions
or repurchases or (iv) for any transaction from which the director derives an
improper personal benefit. The effect of this provision in the Charter is to
eliminate the rights of the Registrant and its stockholders (through
stockholders' derivative suits on behalf of the Registrant) to recover monetary
damages against a director for breach of fiduciary duty as a director thereof
(including breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i)-(iv), inclusive, above. These
provisions will not alter the liability of directors under federal securities
laws.
The Registrant's Bylaws (the "Bylaws") provide that the Registrant 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 Registrant) by reason of the fact that he is or was a director,
officer, employee or agent of the Registrant or is or was serving at the request
of the Registrant as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful.
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The Bylaws also provide that the Registrant 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 Registrant to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Registrant unless and only to the extent that the Court of Chancery of the
State of Delaware 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.
The Bylaws also provide that to the extent a director or officer of the
Registrant has been successful in the defense of any action, suit or proceeding
referred to in the previous paragraphs or in the 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; that
indemnification provided for in the Bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
Registrant may purchase and maintain insurance on behalf of a director or
officer of the Registrant against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the Registrant would have the power to indemnify him against such liabilities
under such Bylaws.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The Registrant has not issued or sold securities within the past three
years pursuant to offerings that were not registered under the Securities Act,
except as follows:
(a) In December 1993, Acorn issued a subordinated promissory note in
the aggregate principal amount of $25 million to several investment funds
and accounts (the "TCW Funds") managed by affiliates of the TCW Group, Inc.
This note was restated in May 1994.
(b) In May 1994, Acorn issued a subordinated promissory note in the
aggregate principal amount of approximately $6.4 million to the TCW Funds.
(c) Pursuant to the terms of an employment agreement dated as of
January 1994 between Acorn and Joseph I. Duffy, Acorn granted to Mr. Duffy
an option to purchase 63,624 shares of Common Stock. The vesting schedule
and exercise price per share were determined based on certain profitability
targets. Options to purchase 15,906 shares of Common Stock vested in fiscal
1995 and options to purchase 15,906 and 31,812 shares of Common Stock
expired in fiscal 1995 and fiscal 1996, respectively.
(d) Pursuant to the terms of an employment agreement dated as of
January 1994 between Acorn and Gabe Mihaly, Acorn granted to Mr. Mihaly an
option to purchase 47,718 shares of Common Stock. The vesting schedule and
exercise price per share were determined based on certain profitability
targets. Options to purchase 11,568 shares of Common Stock vested in fiscal
1995, options to purchase 5,784 shares and 17,352 shares of Common Stock
vested and expired, respectively, the nine months ended May 2, 1996 and
options to purchase 5,784 shares and 7,230 shares of Common Stock will vest
and expire, respectively, upon consummation of the Offering.
(e) In May 1994, Acorn sold 17,352 shares of Common Stock to Joseph I.
Duffy for an aggregate purchase price of $210,000.
(f) In May 1994, Acorn sold 20,244 shares of Common Stock to Gabe
Mihaly for an aggregate purchase price of $245,000.
(g) Pursuant to the terms of an employment agreement dated as of
August 1994 between Acorn and L. Edwin Donegan, Jr., Acorn granted to Mr.
Donegan an option to purchase 15,906 shares of Common Stock. All such
options expired.
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(h) Pursuant to the terms of an option agreement dated as of August 1,
1995, the Company granted John I. Leahy an option to purchase 14,460 shares
of Common Stock at an exercise price of $12.10 per share. Mr. Leahy
exercised the option with respect to 7,230 shares of Common Stock in each
of November 1995 and November 1996.
(i) In August 1996, Acorn issued 100 shares of Series A Preferred
Stock to the TCW Funds as payment in full of approximately $8.6 million in
accrued interest on the Subordinated Notes for fiscal 1995 and fiscal 1996.
(j) In December 1996, Acorn issued a subordinated promissory note in
the aggregate principal amount of $6 million to the TCW Funds.
The transactions set forth above were undertaken in reliance upon the
exemptions from the registration requirements of the Securities Act afforded by
(i) Section 4(2) thereof and/or Regulation D promulgated thereunder, as sales
not involving a public offering, and/or (ii) Rule 701 promulgated thereunder, as
sales by an issuer to employees, directors, officers, consultants or advisors
pursuant to written compensatory benefit plans or written contracts relating to
the compensation of such persons. The purchasers of the securities described
above acquired such securities for their own account not with a view to any
distribution thereof to the public.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) Exhibits
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1 Form of Underwriting Agreement**
2.1 Asset Purchase Agreement, dated as of February 19, 1997, between Greif Bros.
Corporation and UnionTools, Inc.**
3.1 Amended and Restated Certificate of Incorporation of Acorn Products, Inc.**
3.2 Amended and Restated Bylaws of Acorn Products, Inc.**
4.1 Specimen of Certificate for Common Stock**
5.1 Opinion of Gibson, Dunn & Crutcher LLP**
10.1 Employment Agreement dated May 29, 1997, among the Company, UnionTools and Gabe
Mihaly**
10.2.1 Employee Severance Agreement, dated as of May 29, 1997, among the Company,
UnionTools and James B. Farland**
10.2.2 Employee Severance Agreement, dated as of May 29, 1997, among the Company,
UnionTools and Thomas A. Hyrb**
10.2.3 Employee Severance Agreement, dated as of May 29, 1997, among the Company,
UnionTools and Stephen M. Kasprisin**
10.2.4 Form of Employee Severance Agreement, dated as of June , 1997 among the Company,
UnionTools and J. Mitchell Dolloff**
10.3 Acorn Products, Inc. Deferred Equity Compensation Plan for Directors**
10.4 Acorn Products, Inc. 1997 Stock Incentive Plan**
10.5 Standard Form of Acorn Products, Inc. Stock Option Agreement**
10.6 UnionTools, Inc. Retirement Plan for Salaried Employees**
10.7 Amendment No. 1 to UnionTools, Inc. Retirement Plan for Salaried Employees**
10.8 Acorn Products, Inc. Supplemental Pension Plan for Executive Employees**
10.9 Amended and Restated Credit Agreement between UnionTools and Heller Financial,
Inc. dated as of May 20, 1997**
10.10 License Agreement, dated as of August 1, 1992, between The Scott Company and
UnionTools**
10.11 Registration Rights Agreement, dated as of June 18, 1997, between Acorn Products,
Inc. and various funds and accounts managed by TCW Special Credits**
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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10.12 Registration Rights Agreement, dated as of June 18, 1997, between Acorn Products,
Inc. and OCM Principal Opportunities Fund, L.P.**
10.13 Letter dated May 30, 1997, between Acorn Products, Inc. and Kirkland Messina LLC**
11.1 Statement re computation of earnings per share (See Note 14 of the Notes to the
Consolidated Financial Statements)**
21.1 Subsidiaries of the Registrant**
23.1 Consent of Ernst & Young LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included in signature page to registration statement)**
27.1 Financial Data Schedule**
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** Previously filed.
(B) Financial Statement Schedules
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SCHEDULE
NUMBER DESCRIPTION OF SCHEDULE
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I Condensed Financial Information of Registrant
II Valuation and Qualifying Accounts
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ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes to provide to the
Underwriters at the closing specified in the Underwriting Agreement certificates
in such denominations and registered in such names as required by the
Underwriters to permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, 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 Registrant 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.
(2) For the purpose of determining any liability under the Securities
Act, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 5 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Columbus, State of Ohio, on June 23, 1997.
ACORN PRODUCTS, INC.
By: /s/ GAVRIL MIHALY
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Gavril Mihaly
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 5 to the Registration Statement has been signed by the
following persons in the capacity indicated on June 23, 1997.
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SIGNATURE TITLE
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/s/ GAVRIL MIHALY Chief Executive Officer and President
- --------------------------------------------- (Principal Executive Officer)
Gavril Mihaly
/s/ STEPHEN M. KASPRISIN Chief Financial Officer and Treasurer
- --------------------------------------------- (Principal Financial and Accounting Officer)
Stephen M. Kasprisin
/s/ CONOR D. REILLY Chairman of the Board
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Conor D. Reilly
Director
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William W. Abbott
* Director
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Matthew S. Barrett
* Director
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Stephen A. Kaplan
* Director
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John I. Leahy
*By: /s/ GAVRIL MIHALY
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Gavril Mihaly
Attorney-in-Fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT PAGE
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1.1 Form of Underwriting Agreement**..........................................
2.1 Asset Purchase Agreement, dated as of February 19, 1997, between Greif
Bros. Corporation and UnionTools, Inc.**..................................
3.1 Amended and Restated Certificate of Incorporation of Acorn Products,
Inc.**....................................................................
3.2 Amended and Restated Bylaws of Acorn Products, Inc.**.....................
4.1 Specimen of Certificate for Common Stock**................................
5.1 Opinion of Gibson, Dunn & Crutcher LLP**..................................
10.1 Employment Agreement dated May 29, 1997, among the Company, UnionTools and
Gabe Mihaly**.............................................................
10.2.1 Employee Severance Agreement, dated as of May 29, 1997, among the Company,
UnionTools and James B. Farland**.........................................
10.2.2 Employee Severance Agreement, dated as of May 29, 1997, among the Company
UnionTools and Thomas A. Hyrb**...........................................
10.2.3 Employee Severance Agreement, dated as of May 29, 1997, among the Company
UnionTools and Stephen M. Kasprisin**.....................................
10.2.4 Form of Employee Severance Agreement, dated as of June , 1997 among the
Company, UnionTools and J. Mitchell Dolloff**.............................
10.3 Acorn Products, Inc. Deferred Equity Compensation Plan for Directors**....
10.4 Acorn Products, Inc. 1997 Stock Incentive Plan**..........................
10.5 Standard Form of Acorn Products, Inc. Stock Option Agreement**............
10.6 UnionTools, Inc. Retirement Plan for Salaried Employees**.................
10.7 Amendment No. 1 to UnionTools, Inc. Retirement Plan for Salaried
Employees**...............................................................
10.8 Acorn Products, Inc. Supplemental Pension Plan for Executive
Employees**...............................................................
10.9 Amended and Restated Credit Agreement between UnionTools and Heller
Financial, Inc. dated as of May 20, 1997**................................
10.10 License Agreement, dated as of August 1, 1992, between The Scott Company
and UnionTools**..........................................................
10.11 Registration Rights Agreement, dated as of June 18, 1997, between Acorn
Products, Inc. and various funds and accounts managed by TCW Special
Credits**.................................................................
10.12 Registration Rights Agreement, dated as of June 18, 1997, between Acorn
Products, Inc. and OCM Principal Opportunities Fund, L.P.**...............
10.13 Letter dated May 30, 1997, between Acorn Products, Inc. and Kirkland
Messina LLC**.............................................................
11.1 Statement re computation of earnings per share (See Note 14 of the Notes
to the Consolidated Financial Statements)**...............................
21.1 Subsidiaries of the Registrant**..........................................
23.1 Consent of Ernst & Young LLP..............................................
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1)..........
24.1 Power of Attorney (included in signature page to registration
statement)**..............................................................
27.1 Financial Data Schedule**.................................................
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** Previously filed.
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EXHIBIT 23.1
CONSENT
We consent to the reference to our firm under the caption "Experts" and to the
use of our reports dated October 4, 1996 (except Notes 3, 4, 11 and 13 as to
which the date is June 2, 1997) in the Registration Statement (Form S-1) and
related Prospectus of Acorn Products, Inc. dated June 23, 1997.
ERNST & YOUNG LLP
/s/ Ernst & Young LLP
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Columbus, Ohio
June 23, 1997
