As filed with the Securities and Exchange Commission on June 20, 1994
Registration No. 33-50724
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1 ON FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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TRIANGLE PACIFIC CORP.
(Exact name of registrant as specified in its charter)
Delaware 94-2998971
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
16803 Dallas Parkway
Dallas, Texas 75248
(214) 931-3000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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DARRYL T. MARCHAND
Vice President, Secretary and General Counsel
Triangle Pacific Corp.
16803 Dallas Parkway
Dallas, Texas 75248
(214) 931-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
WILLIAM J. SCHUERGER
Thompson & Knight,
A Professional Corporation
3300 First City Center
1700 Pacific Avenue
Dallas, Texas 75201
(214) 969-1700
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Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If the only 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.
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This Post-Effective Amendment No. 2 to Registration Statement No.
33-50724 shall hereafter become effective in accordance with
Section 8(c) of the Securities Act of 1933 on such date as the
Commission, acting pursuant to said Section 8(c), may determine.
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EXPLANATORY NOTE
Pursuant to Rule 401(e) of the Securities Act of 1933, the
Registrant is filing this post-effective amendment to Form S-1 on Form
S-3 to update the information contained in the Prospectus included in
Post-Effective Amendment No. 1 to Registration Statement No. 33-50724.
SUBJECT TO COMPLETION, DATED JUNE 20, 1994
7,717,924 Shares
Triangle Pacific Corp.
Common Stock
This Prospectus covers 7,717,924 shares of Common Stock of Triangle
Pacific Corp. ("Triangle Pacific" or the "Company") held or to be held
by certain of its securityholders (the "Offering Stockholders") and
which may be offered for sale by them from time to time after the date
of this Prospectus. Of the Common Stock offered hereby, 6,707,913
shares are currently issued and outstanding and 1,010,011 shares are
reserved for issuance in connection with presently outstanding options,
warrants and other rights to obtain shares.
The Offering Stockholders, directly or through agents, dealers or
underwriters, may sell the Common Stock from time to time on the NASDAQ
National Market System or otherwise at prices prevailing and on other
terms to be determined at the time of sale. To the extent required, the
names of the Offering Stockholders, the offering prices, the names of
any such agent, dealer or underwriter, and any applicable commissions or
discounts with respect to a particular offer will be set forth in an
accompanying Prospectus Supplement.
The Company will not receive any of the proceeds from the sale of
shares by the Offering Stockholders. The aggregate proceeds to the
Offering Stockholders from the sale of Common Stock offered hereby will
be the sale price less the aggregate agent's or dealer's commissions or
underwriter's discounts, if any. Pursuant to prior agreements, the
Company will bear substantially all of the other expenses of the
offering by the Offering Stockholders.
The Common Stock is quoted on the NASDAQ National Market System
under the symbol "TRIP."
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See "Investment Considerations" for a discussion of certain factors
that should be considered by prospective investors.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS JUNE 20, 1994
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be
sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy and information statements,
and other information with the Securities and Exchange Commission (the
"Commission"). These reports, proxy and information statements, and
other information concerning the Company can be inspected and copied at
the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549; and at the
Commission's regional offices at Suite 1400, Northwestern Atrium Center,
500 West Madison Avenue, Chicago, Illinois 60621-2511 and at Room 1228,
75 Park Place, New York, New York 10007. Copies of such material can
also be obtained from the Commission at prescribed rates through its
Public Reference Section at 450 Fifth Street, N.W., Washington, D.C.
20549.
The Company has filed with the Commission a Registration Statement
on Form S-3 (No. 33-50724) under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Common Stock offered hereby
(including all amendments and supplements thereto, the "Registration
Statement"). This Prospectus, which forms a part of the Registration
Statement, does not contain all the information set forth in the
Registration Statement, certain parts of which have been omitted in
accordance with the rules and regulations of the Commission. Statements
contained herein concerning the provisions of certain documents are not
necessarily complete and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified
in its entirety by such reference. The Registration Statement and the
exhibits thereto can be inspected and copied at the public reference
facilities and regional offices referred to above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with
the Commission (File No. 0-22138) pursuant to the Exchange Act, are
incorporated herein by reference and made a part of this Prospectus:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993; (ii) the Company's Quarterly Report on Form 10-Q for
the quarter ended April 1, 1994; and (iii) the description of the Common
Stock of the Company contained in the Registration Statement on Form 8-A
of the Company heretofore filed by the Company with the Commission,
including any amendments or reports filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Common
Stock covered hereby shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document or information
incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any subsequently
filed document that also is, or is deemed to be, incorporated herein by
reference, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company undertakes to provide, without charge, to each person,
including any beneficial owner, to whom a copy of this Prospectus is
delivered, upon the written or oral request of such person, a copy of
any and all of the documents or information referred to above that has
been or may be incorporated by reference in this Prospectus (excluding
exhibits to such documents, unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Requests should be directed to Darryl T. Marchand, Vice
President, Secretary and General Counsel, Triangle Pacific Corp., 16803
Dallas Parkway, Dallas, Texas 75248 (the principal executive offices of
the Company), telephone (214) 931-3000.
THE COMPANY
Triangle Pacific Corp., through its Bruce Hardwood Floors Division,
produces hardwood flooring and, through its Cabinet Division,
manufactures and distributes kitchen and bathroom cabinets. The
Company's products are used primarily in residential new construction
and remodeling. In addition, the Company, through its Beltsville
Division, also operates a general building materials distribution center
located in Beltsville, Maryland.
On June 8, 1992, the Company successfully completed a comprehensive
capital restructuring (the "1992 Restructuring") pursuant to which
substantially all of the Company's outstanding long-term indebtedness,
redeemable preferred stock and common stock were exchanged for new debt
with lower interest rates and new common stock. In August of 1993, the
Company completed public offerings (collectively, the "Offerings") in
which it sold to the public 7,939,750 shares of the Company's Common
Stock and $160 million aggregate principal amount of 10 1/2% Senior
Notes due 2003 (the "Senior Notes"). The net proceeds of the Offerings,
together with borrowings under a $90 million credit facility obtained in
connection with the Offerings, were used (i) to repay the entire unpaid
balance under the Company's previously existing senior debt financing
agreements, redeem certain previously outstanding debentures and pay
related accrued interest, for a total of approximately $227 million, and
(ii) for working capital and general corporate purposes.
The Company offers approximately 100 varieties of hardwood flooring
products in three basic categories - 3/4 inch solid strip and plank, 3/8
inch laminated strip, plank and parquet and 5/16 inch solid parquet - in
unfinished and a variety of pre-finished styles and colors.
Pre-finished products include urethane, stain and wax and acrylic
impregnated finishes. The Company sells its hardwood flooring products
through over 100 independent wholesale floorcovering distributors
located throughout the United States and eight other countries. The
Company's distributors sell their products to retail floorcovering
dealers, installation contractors, builders, remodelers and retail home
center stores. The Company believes that new home construction and
remodeling account for approximately 40% and 60%, respectively, of its
flooring sales. The Company manufactures flooring products at six
plants located primarily in the south central United States.
The Company manufactures kitchen and bathroom cabinets in
approximately 100 different styles and colors. The Company distributes
its cabinets directly from its regional factories and through 40
Company-operated cabinet distribution centers and approximately 22
independent distributors. Factory-direct shipments are made for full
truckload orders which typically are sold to national and regional
builders, retail home center chain stores and to a lesser extent,
independent building materials distributors. The Company also sells its
cabinets to builders, kitchen and bath dealers and remodeling
contractors through its Company operated cabinet distribution centers
and its Beltsville building products distribution center. Factory-
direct shipments accounted for approximately 56% of the Cabinet Division
sales in 1993, with sales through the Company's distribution centers and
independent distributors accounting for the balance. The Company
operates seven cabinet manufacturing plants, generally located within
500 miles of most major population centers in the United States. These
regional plants enable the Company to compete with local and regional
manufacturers on the basis of the cost of freight, speed of delivery and
service to customers.
The Company's principal executive offices are located at 16803
Dallas Parkway, Dallas, Texas 75248, and its telephone number is
(214) 931-3000.
INVESTMENT CONSIDERATIONS
Industry Conditions and Cyclicality
The floorcovering and cabinet products manufacturing industries are
cyclical and are affected by the same economic factors that affect the
housing and remodeling industries in general, including the availability
of credit, changes in interest rates, market demand and general economic
conditions, all of which are beyond the Company's control. According to
the U.S. Department of Commerce, housing starts declined significantly
from approximately 1.8 million in 1986 to a low of approximately
1.0 million in 1991. Remodeling expenditures experienced moderate
growth from 1986 through 1990, but decreased an estimated 8.7% in 1991
to approximately $97.5 billion. These depressed conditions led to
increased price competition and lower sales. In 1992, housing starts
and remodeling expenditures increased 18% and 6%, respectively, and in
1993, housing starts increased 7.3%. However, there can be no assurance
that such recovery will continue. Any deterioration in these markets
could have a material adverse effect on the Company's business,
financial condition and results of operations.
Capacity Limitations and Expansion
As a result of recent growth in demand for the Bruce Hardwood
Floors Division's urethane pre-finished and unfinished strip products,
all of the Company's existing production lines for these products are
currently operating at full capacity using extended production
schedules. If the Company is unable to alleviate its current capacity
limitations, its competitive position in the hardwood flooring market
and its ability to increase sales and operating cash flow could be
impaired. The Company is currently in the process of expanding its
capacity to manufacture these products, although there can be no
assurance that this expansion will be completed successfully or in a
timely fashion.
Industry Competition and Competitive Factors
The markets for floorcovering and cabinet products are highly
competitive. The Bruce Hardwood Floors Division competes with numerous
other manufacturers of floorcovering products, including carpeting,
vinyl, wood and ceramic tile. The cabinet business is highly fragmented
with numerous competitors and is characterized by excess capacity and
intense price competition. Some of the Company's competitors are larger
than the Company and have greater financial, manufacturing, marketing
and distribution resources than the Company.
Cost of Lumber and Logs
The Company's results of operations are affected significantly by
fluctuations in the market prices of hardwood lumber and logs, which
represent a substantial portion of the total cost of goods sold by the
Bruce Hardwood Floors Division and the Cabinet Division. The Company
buys its hardwood supplies at market-based prices from numerous
independent sawmill operators. In line with industry trends, the
Company's average purchase price of hardwood lumber increased
dramatically from mid-1992 to mid-1993. The magnitude and duration of
these increases in the cost of hardwood lumber were unprecedented in the
Company's experience. The Company's average purchase price for lumber
stabilized in June 1993, although no assurances can be given that such
price will not increase significantly in the future.
The widely-publicized governmental restrictions on softwood lumber
harvesting, principally applicable to Federal government lands in the
Pacific northwest, have not had any material impact on the availability
or cost of the Company's hardwood lumber supply, most of which is
harvested on privately-owned lands in the southeast United States.
However, the course of future governmental laws and regulations relating
to timber harvesting and their future impact, if any, on the housing and
remodeling industries or on the Company's business, financial condition
and results of operations cannot be predicted.
Significant Stockholder
As of March 18, 1994, The TCW Group, Inc. ("TCW"), through certain
affiliates (the "TCW Affiliates") which act as general partners of
limited partnerships, trustees of certain trusts and investment managers
of third party accounts which hold shares of Common Stock, was the
beneficial owner of 4,322,480 shares of Common Stock, representing
approximately 29.5% of the outstanding shares of such class. As a
result, TCW may be in a position to exercise significant influence over
the management of the business and affairs of the Company. Under the
terms of the Company's $90 million revolving credit facility (the
"Credit Facility"), a default will occur and the Company's lenders will
be entitled to accelerate all amounts owing thereunder upon the
occurrence of a "change of control." For purposes of the Credit
Facility, a "change of control" will occur if, among other things, any
persons or group becomes the beneficial owner of more than 25% (or, in
the case of TCW and its affiliates, 40%) of the total voting securities
of the Company.
Shares Eligible for Future Sale
This Prospectus covers 6,707,913 shares of Common Stock,
representing approximately 49.1% of the total shares outstanding, and
1,010,011 shares of Common Stock issuable in connection with the
exercise of currently outstanding options, warrants and other rights to
obtain shares. Any or all of such shares may be sold in the public
market at any time or from time to time. Sales of substantial amounts
of Common Stock in the public market could adversely affect the market
price of the Common Stock.
Anti-takeover Provisions
The Company's Restated Certificate of Incorporation and Bylaws
contain certain provisions that may delay, deter or prevent a takeover
of the Company that stockholders might consider to be in their best
interests. For example, the Restated Certificate of Incorporation
establishes a classified Board of Directors and prohibits stockholder
action by written consent. In addition, the Bylaws limit the ability of
stockholders to call special meetings of stockholders and establish
advance notice requirements with respect to certain stockholder
nominations and proposals. The Senior Notes contain provisions
requiring the Company to offer to repurchase the Senior Notes in the
event of a "change of control" (as defined in the indenture relating to
the Senior Notes). Under the terms of the Credit Facility, an event of
default will occur upon a "change of control" (as defined in the Credit
Facility).
OFFERING STOCKHOLDERS
As part of the 1992 Restructuring, the Company entered into various
registration rights arrangements with certain holders of Common Stock
each of whom is an Offering Stockholder hereunder. In accordance with
the terms of such arrangements, the Company has registered for resale to
the public all the Common Stock held by the Offering Stockholders. The
Company is required to use its best efforts to keep the Registration
Statement effective until June 8, 1995.
The following table sets forth as of March 18, 1994, the number of
shares of Common Stock covered by this Prospectus that are beneficially
owned by (i) each Offering Stockholder that is the beneficial owner of
more than 5% of the outstanding shares of Common Stock, (ii) each of the
executive officers of the Company who is a named executive officer for
purposes of the Summary Compensation Table contained in the Company's
proxy statement for its 1994 annual meeting of stockholders, all of whom
are also Offering Stockholders, and (iii) all other Offering
Stockholders as a group.
Shares of Common Stock
Beneficially Owned and
Covered by This Prospectus(1)
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Principal Stockholders:
The TCW Group, Inc. (through certain
affiliates which act as general
partners of limited partnerships,
trustees of certain trusts and
investment managers of third
party accounts which hold shares
of Common Stock) (2)............................... 1,945,720
865 South Figueroa Street
Los Angeles, California 90017
Kemper Investors Life Insurance Company, Federal
Kemper Life Assurance Company and
mutual funds advised by Kemper Financial Services,
Inc. .............................................. 1,132,480
120 South LaSalle Street
Chicago, Illinois 60603
Eli S. Jacobs (3) ................................... 804,146
375 Park Avenue, Suite 1800
New York, New York 10152
Executive Life Insurance Co. of New York in
Rehabilitation..................................... 774,778
c/o New York Insurance Department
Liquidation Bureau
123 William Street
New York, New York 10038-3389
United High Income Fund, Inc., and United High
Income Fund II, Inc. .............................. 688,288
6300 Lamar Avenue
P.O. Box 29217
Shawnee Mission, Kansas 66201-9217
Shares of Common Stock
Beneficially Owned and
Covered by This Prospectus(1)
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Directors and Officers:
Floyd F. Sherman (4)..................................... 39,134
M. Joseph McHugh (4)..................................... 39,134
Robert J. Symon (4)...................................... 39,134
Michael J. Kearins (4)................................... 13,471
John G. Conklin (4)...................................... 13,471
All other Offering Stockholders
as a group .............................................. 2,228,168
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(1) The information contained in this table with respect to beneficial
ownership reflects "beneficial ownership" as defined in Rule 13d-3
under the Exchange Act. All information with respect to the
beneficial ownership of any principal stockholder is based upon
filings made by such principal stockholder with the Commission and
all information with respect to the beneficial ownership of any
director or named executive officer has been furnished by such
director or named executive officer, and, unless otherwise indicated,
each principal stockholder, director or named executive officer, as
the case may be, has sole voting and investment power with respect to
shares listed as beneficially owned by such beneficial owner.
(2) The TCW Group, Inc. ("TCW") and its affiliates may be deemed to be
beneficial owners of all shares of Common Stock currently held by
such limited partnerships, third party accounts and trusts for
purposes of the reporting requirements of the Exchange Act. In a
Schedule 13G filed by TCW on February 6, 1994, TCW stated that the
filing of Schedule 13G shall not be construed as an admission that
the reporting person or any of its affiliates is, for purposes of
Section 13(d), 13(g) or for any other purpose under the Exchange Act,
the beneficial owner of any securities covered by the Schedule 13G.
(3) Eli S. Jacobs may be deemed to beneficially own the number of
shares
of the Common Stock shown opposite his name by virtue of his
beneficial ownership of certain warrants to purchase such shares
which have exercise prices that range from $22.39 to $37.31 per
share. The Company believes that National Assets, Inc., an entity
controlled by Eli S. Jacobs, holds a portion of these warrants.
(4) The number of shares set forth above as being beneficially owned
by
Messrs. Sherman, McHugh, Symon, Kearins and Conklin, include 12,442,
12,442, 12,442, 4,290 and 4,290 shares, respectively, issuable to such
individuals upon exercise of currently exercisable stock options held by
them.
POSSIBLE FUTURE OFFERS
This Prospectus covers 7,717,924 shares of Common Stock held or to
be held by the Offering Stockholders and which may be offered for sale
by them from time to time after the date of this Prospectus. Of the
Common Stock covered hereby, 6,707,913 shares are currently outstanding
and 1,010,011 shares are subject to presently outstanding options,
warrants and other rights to obtain shares. Each of the Offering
Stockholders acquired their Common Stock and any rights to obtain
additional Common Stock in the 1992 Restructuring.
The Offering Stockholders have advised the Company that, should
proper conditions be present, they intend to offer such shares for sale
from time to time on the NASDAQ National Market System or otherwise at
prices prevailing and on other terms to be determined at the time of
sale. Alternatively, any of the Offering Stockholders may from time to
time offer the Common Stock through underwriters, dealers or agents who
may receive compensation in the form of underwriting discounts,
concessions or commissions from such Offering Stockholders and/or the
purchasers of Common Stock for whom they may act as agent. The Offering
Stockholders and any underwriters, dealers or agents participating in
the distribution of Common Stock may be deemed to be underwriters, and
any profit on the sale of Common Stock by them and any discounts,
commissions or concessions received by any such underwriters, dealers or
agents might be deemed to be underwriting discounts and commissions
under the Securities Act.
At the time a particular offer of Common Stock is made, if
required, a Prospectus Supplement will be distributed which will set
forth the aggregate amount of Common Stock being offered and the terms
of the offering, including the name or names of any underwriters,
dealers or agents, any discounts, commissions and other items
constituting compensation from the Offering Stockholders and any
discounts, commissions or concessions allowed or reallowed or paid to
dealers, including the proposed selling price to the public.
The Company will not receive any of the proceeds from the sale by
the Offering Stockholders of the Common Stock offered hereby.
Under applicable rules and regulations under Exchange Act, any
person engaged in a distribution of any of the Common Stock may be
simultaneously engaged in market activities with respect to any of the
Common Stock for a period of nine business days prior to the
commencement of such distribution. In addition and without limiting the
foregoing, the Offering Stockholders will be subject to applicable
provisions of the Exchange Act, and the rules and regulations
thereunder, including, without limitation, Rules 10b-2, 10b-6 and 10b-7,
which provisions may limit the timing of purchases and sales of any of
the Common Stock by the Offering Stockholders. All of the foregoing may
affect the marketability of the Common Stock.
Pursuant to prior agreements with the Offering Stockholders, the
Company will pay substantially all of the expenses incident to the
registration, offering and sale of the Common Stock to the public other
than commissions and discounts of underwriters, dealers or agents, and
has agreed to indemnify the Offering Stockholders against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby is being passed
upon for the Company by Thompson & Knight, a professional corporation,
Dallas, Texas.
EXPERTS
The audited consolidated financial statements and schedules of the
Company incorporated by reference in this Prospectus and elsewhere in
the Registration Statement to the extent and for the periods indicated
in its reports have been audited by Arthur Andersen & Co., independent
public accountants, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said reports.
No dealer, salesperson or other
person has been authorized to give
any information or to make any
representation not contained in this
Prospectus and, if given or made, such 7,717,924 Shares
information or representation must
not be relied upon as having been
authorized by the Company, any
Selling Stockholder or any Underwriter.
This Prospectus does not constitute an Triangle Pacific Corp.
offer to sell, or a solicitation of an
offer to purchase, any securities other
than the Common Stock to which it
relates or an offer or solicitation Common Stock
in any jurisdiction in which it is
unlawful to make such an offer or
solicitation. Neither the delivery
of this Prospectus nor any sale made
hereunder shall, under any circumstances,
create any implication that there has
been no change in the affairs of the
Company since the date hereof or
that the information contained herein
is correct as of any time subsequent
to the date hereof.
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TABLE OF CONTENTS
Page
Available Information.............2
Incorporation of Certain Documents
by Reference.....................2
The Company.......................3
Investment Considerations.........4
Offering Stockholders.............6
Possible Future Offers............8
Legal Matters.....................9
Experts...........................9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 15. Indemnification of Directors and Officers.
Statutory Provisions
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of members of its board
of directors to the corporation or its stockholders for monetary damages
for violations of a director's fiduciary duty of care, including acts
constituting gross negligence. Such a provision does not have any
effect on the availability of equitable remedies, such as an injunction
or rescission, for breach of fiduciary duty. In addition, such a
provision may not eliminate or limit the liability of a director for
breaching his duty of loyalty to the corporation or its stockholders,
failing to act in good faith, engaging in intentional misconduct or
knowingly violating a law, paying an unlawful dividend or approving an
illegal stock repurchase, or executing any transaction from which the
director obtained an improper personal benefit.
Section 145 of the Delaware General Corporation Law empowers a
corporation to indemnify any person who was or is a party to or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. With respect to actions or suits by or in the
right of the corporation, such indemnification is limited to expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or
suit. A corporation is required to indemnify its directors and officers
against expenses to the extent that such directors or officers have been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above or in defense of any claim, issue or matter
therein. No indemnification may be made in respect of any claim, issue
or matter as to which a person has been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses as the court
deems proper.
Indemnification can be made by the corporation only upon a
determination made in the manner prescribed by the statute that
indemnification is proper in the circumstances because the party seeking
indemnification has met the applicable standard of conduct as set forth
in the Delaware General Corporation Law. The indemnification provided
by the Delaware General Corporation Law is not exclusive of any other
rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. Unless otherwise provided when authorized or ratified, the
indemnification provided by the Delaware General Corporation Law
continues as to a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
A corporation also has the power to purchase and maintain insurance
on behalf of any person covering any liability incurred by such person
in his capacity as a director, officer, employee or agent of the
corporation, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability.
The Registrant's Charter and Bylaw Provisions
Article VII, Section 7.6 of the Registrant's Bylaws provides that
the Registrant shall indemnify all directors and officers of the Company
to the fullest extent now or hereafter permitted by the Delaware General
Corporation Law. Under such provisions any director or officer, who in
his capacity as such, is made or threatened to be made a party to any
suit or proceeding, shall be indemnified if such director or officer
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 proceeding, had no reasonable cause to believe his conduct
was unlawful. The Bylaws and the Delaware General Corporation Law
further provide that such indemnification is not exclusive of any other
rights to which such individuals may be entitled under the Restated
Certificate of Incorporation, the Bylaws, any agreement, insurance
policies, vote of stockholders or disinterested directors or otherwise.
In addition, Article VI of the Registrant's Restated Certificate of
Incorporation provides that to the fullest extent now or hereafter
permitted by Delaware law, the Registrant's directors will not be liable
for monetary damages for breach of the directors' fiduciary duty of care
to the Registrant and its stockholders.
Contractual Provisions
The Company has recently entered into indemnity agreements with
each of its directors and executive officers pursuant to which the
Company has agreed to indemnify each of them to the fullest extent now
or hereafter permitted by Delaware law, on substantially the same terms
as provided in the Company's Bylaws. In addition, the Company maintains
liability insurance covering all of its directors and officers and
insuring them against certain liabilities, including liabilities under
the federal securities laws.
Item 16. Exhibits.
The following exhibits are filed or incorporated by reference as
part of this Registration Statement:
Number Exhibit
- ------- --------
3.1 - Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's annual report on Form 10-K for the year ended
December 31, 1993).
3.2 - Amended and Restated Bylaws of the Registrant (incorporated
herein by reference to Exhibit 3.2 to the Registrant's
annual report on Form 10-K for the year ended December 31,
1993).
4.1 - Specimen certificate evidencing shares of the Common Stock
(incorporated herein by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1
(Registration No.33-64530) filed with the Securities and
Exchange Commission on June 16, 1993).
4.2 - Form of 10 1/2% Senior Notes due 2003 (incorporated herein by
reference to Exhibit 4.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-64598) filed
with the Securities and Exchange Commission on June 18,
1993).
4.3 - Indenture governing 10 1/2% Senior Notes due 2003 incorporated
herein by reference to Exhibit 4.2 to the Registrant's
annual report on Form 10-K for the year ended December 31,
1993).
4.4 - Credit Agreement dated as of August 4, 1993, as amended,
among the Registrant, the Lenders listed therein and
CitiCorp USA, Inc., as the Co-Agent for the Lenders, and
the Bank of Nova Scotia, as the Agent for the Lenders
(incorporated herein by reference to Exhibit 4.4 to the
Registrant's Registration Statement on Form S-1
(Registration No.33-64530) filed with the Securities and
Exchange Commission on June 16, 1993).
4.5 - Amendment No. 7 dated as of June 5, 1992 amending the
Credit and Guaranty Agreement dated as of September 9, 1988
by and among TPC Holding Corp., Pacific Corp., the
Registrant, the Banks listed therein and Morgan Guaranty
Trust Company of New York (incorporated herein by reference
to Exhibit 4.1 to the Registrant's Registration Statement
on Form S-1 (Registration No. 33-50724) filed with the
Securities and Exchange Commission on August11, 1992).
4.6 - Amendment No. 5 dated as of June 5, 1992 amending the
Security Agreement dated as of September 9, 1988 by and
between the Registrant and J.P. Morgan (incorporated
herein by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 33-
50724) filed with the Securities and Exchange Commission on
August 11, 1992).
4.7 - Subsidiary Security Agreement dated as of June 5, 1992 by
and among each of the Subsidiary Guarantors listed therein
and J.P. Morgan (incorporated herein by reference to
Exhibit 4.3 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-50724) filed with the
Securities and Exchange Commission on August 11, 1992).
4.8 - Amendment No. 1 dated as of June 5, 1992 to the Subsidiary
Guaranty amending the Guaranty dated as of April 1, 1991
given by the Subsidiary Guarantor listed therein
(incorporated herein by reference to Exhibit 4.4 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-50724) filed with the Securities and
Exchange Commission on August 11, 1992).
4.9 - Pledge Agreement dated as of June 5, 1992 by and between
the Registrant and J.P. Morgan (incorporated herein by
reference to Exhibit 4.5 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-50724) filed
with the Securities and Exchange Commission on August 11,
1992).
4.10 - Subsidiary Pledge Agreement dated as of June 5, 1992 by and
between each of the Subsidiary Guarantors listed therein
and J.P. Morgan (incorporated herein by reference to
Exhibit 4.6 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-50724) filed with the
Securities and Exchange Commission on August 11, 1992).
4.11 - Trademark Security Agreement dated as of June 5, 1992 by
and between the Registrant and J.P. Morgan (incorporated
herein by reference to Exhibit 4.7 to the Registrant's
Registration Statement on Form S-1 (Registration No. 33-
50724) filed with the Securities and Exchange Commission on
August 11, 1992).
4.12 - Amendment No. 6 dated as of June 5, 1992 amending the
Senior Note Purchase Agreement dated as of September 30,
1988 by and among the Registrant, TPC Holding Corp. and the
Insurance Company Lenders listed therein (incorporated
herein by reference to Exhibit 4.8 to the Registrant's
Registration Statement on Form S-1 (Registration No. 33-
50724) filed with the Securities and Exchange Commission on
August 11, 1992).
5.1 - Opinion of Thompson & Knight, A Professional Corporation
(included in Post-Effective Amendment No. 1 to the
Registration Statement).
10.1 - Registration Rights Agreement, dated as of June 5, 1992, by
and among the Registrant and the Persons listed therein
(incorporated herein by reference to Exhibit 10.1 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-50724) filed with the Securities and
Exchange Commission on August 11, 1992).
10.2 - Lenders' Equity Agreement dated as of June 5, 1992 by and
among the Registrant and the Banks and other financial
institutions listed therein (incorporated herein by
reference to Exhibit 10.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-50724) filed
with the Securities and Exchange Commission on August 11,
1992).
10.3 - ESJ Exchange Agreement dated as of June 5, 1992 by and
among the Registrant, TPC Holding Corp. and the ESJ
Entities (incorporated herein by reference to Exhibit 10.3
to the Registrant's Registration Statement on Form S-1
(Registration No. 33-50724) filed with the Securities and
Exchange Commission on August 11, 1992).
10.4 - Management Equity Agreement dated as of June 5, 1992 by and
among the Registrant and the individuals listed therein,
and including a form of the Triangle Pacific Corp. Stock
Option Plan (incorporated herein by reference to Exhibit
10.4 to the Registrant's Registration Statement on FormS-1
(Registration No. 33-50724) filed with the Securities and
Exchange Commission on August 11, 1992).
10.5 - Form of Amended and Restated Employment Agreement
(incorporated herein by reference to Exhibit 10.5 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-50724) filed with the Securities and
Exchange Commission on August 11, 1992).
10.6 - Form of Services and Compensation Agreement (incorporated
herein by reference to Exhibit 10.6 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-50724) filed with the Securities and Exchange
Commission on August 11, 1992).
10.7 - Salaried Employees Profit Sharing Plan (as restated
January 1, 1993) of the Registrant (incorporated herein by
reference to Exhibit 10.7 to the Registrant's Registration
Statement on Form S-1 (Registration No. 33-50724)) as filed
with the Securities and Exchange Commission on September 7,
1993.
10.8 - Salaried Employees Cash Bonus Plan of the Registrant
(incorporated herein by reference to Exhibit 10.8 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-50724) filed with the Securities and
Exchange Commission on August 11, 1992).
10.9 - Form of Stock Option Plan of the Registrant (incorporated
herein by referenced to Exhibit 10.12 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-64530) filed with the Securities and Exchange
Commission on June 16, 1993).
10.10 - Form of Stock Option Agreement of the Registrant
(incorporated herein by referenced to Exhibit 10.13 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-64530) filed with the Securities and
Exchange Commission on June 16, 1993).
10.11 - Lease dated as of June 1, 1988 by and between West Virginia
Jobs and Development Corporation and the Registrant
(incorporated herein by reference to Exhibit 10.11 to the
Registrant's Registration Statement on Form S-1
(Registration No. 33-50724) filed with the Securities and
Exchange Commission on August 11, 1992).
10.12 - Amendment to Lease effective as of April 14, 1989 by and
between West Virginia Jobs and Development Corporation and
the Registrant (incorporated herein by referenced to
Exhibit 10.15 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-64530) filed with the
Securities and Exchange Commission on June 16, 1993).
10.13 - Second Amendment to Lease effective as of November 1, 1991
by and between West Virginia Economic Development
Authority, as successor to West Virginia Jobs and
Development Corporation, and the Registrant (incorporated
herein by referenced to Exhibit 10.16 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-64530) filed with the Securities and Exchange
Commission on June 16, 1993).
10.14 - Third Amendment to Lease effective as of March 10, 1993 by
and between West Virginia Economic Development Authority,
as successor to West Virginia Jobs and Development
Corporation, and the Registrant (incorporated herein by
referenced to Exhibit 10.17 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-64530) filed with the Securities and Exchange
Commission on June 16, 1993).
10.15 - Triangle Pacific Corp. 1993 Long-Term Incentive
Compensation Plan (incorporated herein by referenced to
Exhibit 10.18 to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-64530) filed with the
Securities and Exchange Commission on June 16, 1993).
10.16 - Triangle Pacific Corp. Nonemployee Director Stock Option
Plan (incorporated herein by referenced to Exhibit 10.19 to
the Registrant's Registration Statement on Form S-1
(Registration No. 33-64530) filed with the Securities and
Exchange Commission on June 16, 1993).
10.17 - Form of Indemnity Agreement between the Registrant and each
of its directors and executive officers (incorporated
herein by referenced to Exhibit 10.17 to the Registrant's
annual report on Form 10-K for the year ended December 31,
1993).
10.18 - Amendment No. 8 dated as of January 7, 1993 amending the
Credit and Guaranty Agreement dated as of September 9,1988
by and among TPC Holding Corp., Pacific Corp., the
Registrant and J.P. Morgan (incorporated herein by
referenced to Exhibit 10.21 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-64530) filed with the Securities and Exchange
Commission on June 16, 1993).
10.19 - Amendment No. 6 dated as of August 15, 1992 amending the
Security Agreement dated as of September 9, 1988 by and
between the Registrant and J.P. Morgan (incorporated herein
by referenced to Exhibit 10.23 to the Registrant's
Registration Statement on Form S-1 (Registration
No. 33-64530) filed with the Securities and Exchange
Commission on June 16, 1993).23.1 - Consent of Thompson &
Knight, A Professional Corporation (included in their
opinion filed herewith as Exhibit 5.1).
23.2* - Consent of Arthur Andersen & Co.
24.1 - Power of Attorney (included on the signature page of the
original Registration Statement).
* Filed herewith.
Item 17. Undertakings.
(a) Rule 415 Offerings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To 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 set
forth in the Registration Statement;
(iii) To 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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) Filings incorporating subsequent Exchange Act documents by
reference.
The undersigned Registrant hereby undertakes 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.
(h) Acceleration of effectiveness.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described in Item 15 of this Registration Statement, 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.
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-3 and has duly caused
this Post-Effective Amendment No. 2 to Form S-1 on Form S-3 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas, on the 20th day of June, 1994.
TRIANGLE PACIFIC CORP.
By
--------------------------------
M. Joseph McHugh
Senior Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 2 to Form S-1 on Form S-3 has been signed
by the following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Floyd F. Sherman*
- --------------------------- Chairman of the Board June 20, 1994
Floyd F. Sherman and President (Chief
Executive Officer)
/s/ M. Joseph McHugh*
- --------------------------- Senior Executive Vice June 20, 1994
M. Joseph McHugh President, Treasurer and
Director (Chief Financial
Officer)
/s/ Robert J. Symon*
- --------------------------- Vice President -Controller June 20, 1994
Robert J. Symon (Chief Accounting Officer)
/s/ B. William Bonnivier*
- --------------------------- Director June 20, 1994
B. William Bonnivier
/s/ Charles M. Hansen*
- --------------------------- Director June 20, 1994
Charles M. Hansen
/s/ David R. Henkel*
- --------------------------- Director June 20, 1994
David R. Henkel
/s/ Jack L. McDonald*
- --------------------------- Director June 20, 1994
Jack L. McDonald
- --------------------------- Director June , 1994
Carson R. McKissick
/s/ Karen G. Mills*
- --------------------------- Director June 20, 1994
Karen G. Mills
*By: /s/ M. Joseph McHugh*
----------------------
M. Joseph McHugh,
Attorney-in-fact
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated February 15, 1994, included in Triangle Pacific Corporation's Form
10-K for the year ended December 31, 1993, and to all references to our
firm included in this registration statement.
ARTHUR ANDERSEN & CO.
Dallas, Texas
June 20, 1994
