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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1997
REGISTRATION NO. 333-33409
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TOYMAX INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 5092 11-3391335
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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125 EAST BETHPAGE ROAD
PLAINVIEW, NY 11803
(516) 391-9898
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
------------------------
STEVEN A. LEBENSFELD
PRESIDENT
125 EAST BETHPAGE ROAD
PLAINVIEW, NY 11803
(516) 391-9898
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Agent for Service)
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COPIES TO:
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JOEL M. HANDEL, ESQ. LAWRENCE B. FISHER, ESQ.
Baer Marks & Upham LLP Orrick, Herrington & Sutcliffe LLP
805 Third Avenue 666 Fifth Avenue
New York, NY 10022 New York, NY 10103
(212) 702-5700 (212) 506-5000
(212) 702-5941 (facsimile) (212) 506-5151 (facsimile)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
------------------------
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. /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 Rule 434,
please check the following box. / /
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 THIS 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 following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the issuance and distribution of the securities being registered hereunder
(including the shares of Common Stock which may be issued pursuant to the
over-allotment option). All of the amounts shown are estimates (except for the
SEC and the NASD registration fees).
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SEC filing fee...................................................... $ 7,496
NASD filing fee..................................................... 2,974
NASDAQ listing fee.................................................. *
Transfer agent's fee................................................ *
Printing and engraving expenses..................................... *
Legal fees and expenses............................................. *
Blue sky filing fees and expenses (including counsel fees).......... *
Accounting fees and expenses........................................ *
Miscellaneous expenses.............................................. *
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Total........................................................... $ *
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* To be provided by amendment
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act"). The Registrant's Bylaws provide
that the Registrant will indemnify its directors, executive officers, other
officers, employees and agents to the fullest extent permitted by Delaware law.
The Registrant's Amended and Restated Certificate of Incorporation provides
for the elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
Reference is made to Section of the Underwriting Agreement (Exhibit
1.1 to this Registration Statement) which provides for indemnification by the
Underwriters and their controlling persons, on the one hand, and of the
Registrant and its controlling persons on the other hand, against certain civil
liabilities, including liabilities under the Securities Act.
The Registrant intends to apply for a director and officer liability
insurance policy, under which each director and certain officers of the Company
would be insured against certain liabilities.
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ITEM 15. RECENT SALE OF UNREGISTERED SECURITIES.
The Registrant was organized as a Delaware corporation on August 6, 1997.
The only shares issued by the Registrant are 7,500,000 shares of Common Stock
issued in exchange for 425,686 shares of Common Stock and 24,224 shares of
Preferred Stock of Toymax (H.K.) Limited held by the stockholders of Toymax
(H.K.) Limited.
The Company believes that the issuances described above were made in
reliance upon the exemption from the registration requirements of the Securities
Act provided by Section 4(2) of the Securities Act for transactions by an issuer
not involving a public offering. No underwriter or underwriting discount or
commission was involved in any of such issuances.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
The following Exhibits are filed herewith and made a part hereof.
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**1.1 Form of Underwriting Agreement.
**3.1(a) Certificate of Incorporation of the Registrant.
**3.1(b) Amended and Restated Certificate of Incorporation of the Registrant.
**3.2 By-Laws of the Registrant.
**4.1 Specimen Stock Certificate for shares of Common Stock.
**4.2 Form of Representative's Warrant Agreement including Form of Redeemable
Warrant Certificate.
**5.1 Opinion of Baer Marks & Upham LLP.
**10.1 1997 Stock Option Plan.
**10.2 Key Employee Bonus Plan.
*10.3 Agreement of lease of the Company's offices at 125 E. Bethpage Road,
Plainview, New York.
*10.4 Lease of the Company's showroom at 200 Fifth Avenue, New York, New York, as
amended.
*10.5 Tenancy Agreement between David Chu Ki Kwan, Frances Leung Shuk Kuen and
Toymax (H.K.) Limited for the Company's showroom at Concordia Plaza, No.1
Science Museum Road, Tsimshatsui East, Kowloon
*10.6 Agency Agreement dated April 1, 1997, between the Company and Tai Nam.
*10.7 Credit Facility Agreement dated June 12, 1997 between the Company and State
Street.
*10.8 Security Agreement with State Street dated June 5, 1991.
*10.9 Factoring Agreement dated June 4, 1991 between the Company and Congress
Talcott Corporation, as amended.
**10.10 Demand Loan Agreement between Tai Nam and the Hong Kong Bank.
**10.11 Employment Agreement with Steven Lebensfeld.
**10.12 Employment Agreement with Harvey Goldberg.
**10.13 Employment Agreement with Kenneth Price.
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**10.14 Employment Agreement with Carmine Russo.
**10.15 Employment Agreement with Andrew Stein.
**21.1 List of Subsidiaries of the Registrant.
**23.1 Consent of Baer Marks & Upham LLP (filed as part of Exhibit 5.1).
*23.2 Consent of BDO Seidman LLP, independent certified public accountants.
*23.3 Consent of Deloitte Touche Tohmatsu, independent auditors.
*24.1 Powers of Attorney (included on the signature page hereof).
27 Financial Data Schedule
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* Previously filed.
** To be filed by Amendment.
(b) Financial Statement Schedules
All other schedules have been omitted because the information to be set
forth therein is not applicable or is shown in the financial statements or the
notes thereto.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(1) to file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volumes and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the 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.
(b) The undersigned Registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required
by the underwriter to permit prompt delivery to each purchaser.
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(c) Insofar as indemnification for liabilities arising under the 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 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 Act and will be governed by the final
adjudication of such issue.
(d)(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 as part of this registration
statement as of the time it was declared effective.
(2) For 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 that offering of such securities at that time shall be deemed
the initial bona fide offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on the 13th day of August, 1997.
TOYMAX INTERNATIONAL, INC.
BY: /S/ STEVEN A. LEBENSFELD
-----------------------------------------
Steven A. Lebensfeld
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to this registration statement has been signed by the following persons in
the capacities and on the dates stated:
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
* Chairman
- ------------------------------ August 13, 1997
David Ki Kwan Chu
/s/ STEVEN A. LEBENSFELD President (Principal
- ------------------------------ Executive Officer) and August 13, 1997
Steven A. Lebensfeld Director
* Executive Vice President
- ------------------------------ and Director August 13, 1997
Harvey Goldberg
Chief Financial Officer and
/s/ WILLIAM A. JOHNSON, JR. Treasurer (Principal
- ------------------------------ Financial and Accounting August 13, 1997
William A. Johnson, Jr. Officer)
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/s/ WILLIAM A. JOHNSON, JR.
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William A. Johnson, Jr.
*By: ATTORNEY-IN-FACT
/S/ STEVEN A. LEBENSFELD
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Steven A. Lebensfeld
ATTORNEY-IN-FACT
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II-5
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EXHIBIT INDEX
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EXHIBIT DESCRIPTION PAGE
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27 Financial Data Schedule
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<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-START> APR-01-1996
<PERIOD-END> MAR-31-1997
<CASH> 564,659
<SECURITIES> 0
<RECEIVABLES> 3,761,933
<ALLOWANCES> 739,219
<INVENTORY> 4,797,452
<CURRENT-ASSETS> 23,968,600
<PP&E> 7,019,565
<DEPRECIATION> 4,828,704
<TOTAL-ASSETS> 26,366,842
<CURRENT-LIABILITIES> 25,955,348
<BONDS> 0
0
0
<COMMON> 57,692
<OTHER-SE> 345,502
<TOTAL-LIABILITY-AND-EQUITY> 26,366,842
<SALES> 54,682,635
<TOTAL-REVENUES> 54,682,635
<CGS> 33,836,513
<TOTAL-COSTS> 51,714,517
<OTHER-EXPENSES> 498,137
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 483,380
<INCOME-PRETAX> 2,802,194
<INCOME-TAX> (681,200)
<INCOME-CONTINUING> 3,495,530
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,495,530
<EPS-PRIMARY> .47
<EPS-DILUTED> 0<F1>
<FN>
<F1>Benefit for income taxes.
</FN>
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