SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Top Air Manufacturing, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, no par value per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
0-10571
- --------------------------------------------------------------------------------
(CUSIP Number)
Robert H. Wexler
Gallop, Johnson & Neuman, L.C.
101 South Hanley, Suite 1600
St. Louis, Missouri 63105
Telephone: (314) 862-1200
Facsimile: (314) 862-1219
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 25, 2000
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 240.13d-1(f) or 13d-1(g), check the following
box: |_|
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
13D Page 2 of 4 Pages
CUSIP NO. 0-10571
1. Names of Reporting Persons/I.R.S. Identification Nos. of Above
Persons (Entities Only).
Wayne W. Whalen
2. Check the Appropriate Box if a Member of a Group (a) |_| (See
Instructions) (b) |X|
3. SEC Use Only
4. Source of Funds (See Instructions)
PF
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e) |_|
6. Citizenship or Place of Organization
United States Citizen
Number of 7. Sole Voting Power
Shares 1,319,600
Beneficially
Owned by 8. Shared Voting Power
Each 0
Reporting
Person With 9. Sole Dispositive Power
1,319,600
10. Shared Dispositive Power
0
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,319,600
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
|_| (See Instructions)
13. Percent of Class Represented by Amount In Row (11)
25.75%
14. Type of Reporting Person (See Instructions)
IN
<PAGE>
Amendment No. 1 to Schedule 13D
Wayne W. Whalen ("Whalen") reported his acquisition of 1,150,000 shares
of the common stock, no par value per share (the "Top Air Common Stock"), of Top
Air Manufacturing, Inc., an Iowa corporation (the "Company"), 317 Savannah Park
Road, Cedar Falls, Iowa 50613, in an initial filing on Schedule 13D dated
January 27, 1997. On January 25, 2000, Whalen purchased from the Company 169,600
of the Company's convertible subordinated debentures (referred to herein as the
"Debenture" or the "Debentures") for total consideration equaling $212,000. Each
Debenture is immediately convertible into one share of the Top Air Common Stock
for a conversion price of $1.25 per Debenture. Item 3, Item 4, Item 5, Item 6
and Item 7 of the Schedule 13D previously filed on behalf of Whalen are hereby
amended to reflect Whalen's acquisition of the Debentures.
Item 3. Source and Amount of Funds or Other Consideration.
The consideration used by Whalen to obtain the Debentures originated
from Whalen's personal funds.
Item 4. Purpose of Transaction.
The Debentures are held by Whalen solely for investment purposes.
Item 5. Interest in Securities of the Issuer.
(a) As of the date hereof, Whalen beneficially owns 1,319,600 shares of
the Top Air Common Stock, representing 25.75% of the issued and outstanding
shares of the Top Air Common Stock. Of the shares deemed to be beneficially
owned by Whalen, 169,600 of these shares represent the total number of Top Air
Common Stock which will be received by Whalen in the event he exercises his
conversion rights with respect to the Debentures.
(b) Whalen has dispositive power with respect to all of the 1,319,600
shares of the Top Air Common Stock he is deemed to beneficially own. Whalen has
sole voting power with respect to 1,150,000 shares of Top Air Common Stock, and
he will obtain sole voting power over the Top Air Common Stock he receives upon
conversion of the Debentures.
(c) As set forth above, on January 25, 2000, Whalen purchased 169,000
Debentures for total cash consideration equal to $212,000.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Whalen entered into a Securities Purchase Agreement on January 25,
2000, in which the Company agreed to sell the Debentures to Whalen in exchange
for $212,000. A copy of the Securities Purchase Agreement is attached hereto as
Exhibit 3 and is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
Exhibit 3 Securities Purchase Agreement dated January 25, 1999
between Top Air Manufacturing, Inc. and Wayne W. Whalen,
dated January 25, 2000.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
February 3, 2000
-------------------------------------------
(Date)
/s/ Wayne W. Whalen
-------------------------------------------
(Signature)
Wayne W. Whalen
-------------------------------------------
(Name and Title)
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT ("Agreement") is entered into by and
between Top Air Manufacturing, Inc., an Iowa corporation (the "Company") and
Wayne W. Whalen, an individual ("Buyer") this 25th day of January, 2000.
WHEREAS, in order to meet certain bank requirements, it is necessary
that the Company raise an additional $500,000 in the form of equity or
equity-like securities;
WHEREAS, given the limited amount of funds to be raised, the Board of
Directors of the Company (the "Board") has concluded that the offering of
securities by the Company be accomplished in the most efficient manner, both in
terms of time and cost requirements;
WHEREAS, consistent with this efficiency objective, the Board has
determined that the required financing be effected through the private placement
of the Company's convertible subordinated debentures due January 2005 in the
form attached hereto as Exhibit A (the "Debentures"), to be offered only to
those persons currently having a significant investment in the Company and/or
currently serving as a director or executive officer of the Company; and
WHEREAS, the Buyer, having such a relationship with the Company,
desires to purchase from the Company a Debenture in the principal amount of
$212,000;
NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Purchase and Sale of Debenture. Simultaneously with the execution
and delivery herewith, Buyer is purchasing from the Company, and the Company is
selling to Buyer, a Debenture in the principal amount of $212,000 against
payment of the purchase price therefor equal to the par value of the Debenture.
2. Representations, Warranties and Agreements of Buyer. The undersigned
Buyer hereby represents and warrants to, and agrees with, the Company as
follows:
(a) Buyer is an "accredited investor" as that term is defined in
Rule 501(a) as Regulation D promulgated under the Securities Act of
1933, as amended (the "Act") by virtue of (check appropriate item(s)):
|_| a director or executive officer of the Company;
|X| a natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his
purchase exceeds $1,000,000; or
|_| a natural person who had individual income in excess of
$200,000 in each of the two most recent years or joint
income with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation of
reaching the same income level in calendar year 2000.
(b) Buyer is a bona fide resident of the state named in the
address set forth on the signature page of this Agreement as his home
address, at least 21 years of age, and legally competent to execute
this Agreement.
(c) Buyer is familiar with the Company's business and financial
condition, the terms of the Debenture and any other matters relating to
an investment in the Debenture, has received all materials which have
been requested by him, has had a reasonable opportunity to ask
questions of the Company and its management, and the Company has
answered all inquiries as Buyer has put to it. Buyer has received, read
carefully, and is familiar with, all filings made by the Company with
the Securities and Exchange Commission during the five-year period
ending January 1, 2000, including, without limitation, the Company's
Form 10-KSB for its fiscal year ended May 31, 1999, its proxy statement
dated October 4, 1999 and its Form 10-QSB for the three-month period
ended August 31, 1999 (collectively, the "Company Reports"). Buyer had
access to all additional information necessary to verify the accuracy
of the information set forth in the Company Reports and any other
materials furnished to Buyer in connection with his contemplated
purchase of the Debenture, and has taken all steps necessary to
evaluate the merits and risks of an investment in the Debenture.
(d) Buyer has such knowledge and experience in finance,
securities, investments and other business matters to be able to
protect his interests in connection with his investment in the
Debenture, and such investment is not material when compared to Buyer's
total financial capacity.
(e) Buyer has been advised by the Company that (i) neither the
Debenture nor the shares of the Company's common stock into which the
Debenture is convertible (the "Underlying Shares") has been registered
under the Act, (ii) the Debentures will be issued on the basis of the
statutory exemption provided by Section 4(2) of the Act or Regulation D
promulgated thereunder, or both, relating to transactions by an issuer
not involving any public offering and under similar exemptions under
certain state securities laws, (iii) this transaction has not been
reviewed by, passed upon or submitted to any federal or state agency or
self-regulatory organization where an exemption is being relied on, and
(iv) the Company's reliance thereon is based in part upon the
representations made by Buyer in this Agreement. Buyer acknowledges
having been informed by the Company of, or is otherwise familiar with,
the nature of the limitations imposed by the Act and the rules and
regulations thereunder on the transfer of securities. In particular,
Buyer agrees that no sale, assignment or transfer of the Debenture or
Underlying Shares (collectively, the "Securities") shall be valid or
effective, and the Company shall not be required to give any effect to
such sale, assignment or transfer, unless (i) the sale, assignment or
transfer of the Securities is registered under the Act, it being
understood that neither the Debenture nor the Underlying Shares is
currently registered under the Act and the Company has no obligation or
intention to so register the Securities, or (ii) such sale, assignment
or transfer is exempt from registration under the Act. Buyer further
understands that an opinion of counsel and other documents may be
required to transfer the Debenture or the Underlying Shares. Buyer
acknowledges that the Securities shall be subject to a stop transfer
order and the certificate or certificates evidencing the Debenture or
Underlying Shares shall bear the following or a substantially similar
legend or other legend as may appear on the forms of certificates, and
such other legends as may be required by state Blue Sky Laws:
"The Securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities laws and neither such Securities
nor any interest therein may be offered, sold, pledged, assigned
or otherwise transferred unless (i) a registration statement
with respect thereto is effective under the Act and any
applicable state securities laws or (ii) the Company receives an
opinion of counsel to the holder of such Securities, which
counsel and opinion are reasonably satisfactory to the Company,
that such Securities may be offered, sold, pledged, assigned or
transferred in the manner contemplated without an effective
registration statement under the Act or applicable state
securities laws."
(f) Buyer is acquiring the Securities for his own account (or
for the joint account of Buyer and his spouse) for investment and not
with a view to the sale or distribution thereof or the granting of any
participation therein, and has no present intention of distributing or
selling to others any of such interest or granting any participation
therein.
(g) Buyer is not relying on the Company with respect to the tax
and other economic considerations of an investment in the Securities.
(h) Buyer acknowledges his understanding and agreement that the
representations, warranties and agreements made by Buyer herein shall
survive the execution and delivery of this Agreement and the purchase
of the Debentures.
3. Representations, Warranties and Agreements of the Company. The
Company hereby represents and warrants to, and agrees with, Buyer as follows:
(a) The Company has full corporate power and authority to enter
into this Agreement and the transactions contemplated hereby, to issue
the Debenture and the Underlying Shares upon conversion thereof in
accordance with the terms of the Debenture, and carry out and perform
its obligations under the terms of this Agreement.
(b) Neither the Company nor anyone authorized to act on its
behalf has taken any action that will cause the issuance, sale and
delivery of the Securities as contemplated by this Agreement (assuming
the truth and accuracy of the representations and warranties of Buyer
set forth in Section 2 hereof) to constitute a violation of the Act or
any applicable state securities laws.
(c) The Debentures (of which the Debenture of Buyer is a part)
have been duly and validly authorized by the Company for issuance and
sale pursuant to one or more agreements in the form of this Agreement.
The Debenture has been executed and delivered against payment therefor
as specified in Section 2 above, and accordingly constitutes the legal,
valid and binding outstanding obligation of the Company enforceable in
accordance with its terms. The Underlying Shares into which the
Debenture is convertible have been validly authorized and reserved for
issuance upon such conversion and, when so issued, will be validly
issued, fully paid and non-assessable and will not have been issued in
violation of or subject to any preemptive rights.
4. Miscellaneous.
(a) This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof, supersedes all
existing agreements among them concerning such subject matter, and may
be modified only by a written instrument duly executed by the party to
be charged.
(b) Except as otherwise specifically provided herein, any notice
or other communication required or permitted to be given hereunder
shall be in writing and shall be mailed by certified mail, return
receipt requested, or by overnight delivery or courier service or
delivered (in person or by telecopy, telex or similar
telecommunications equipment) against receipt to the party to whom it
is to be given, (i) if to the Company, at the address set forth on the
signature page hereof, (ii) if to Buyer, at the address set forth on
the signature page hereof, or (iii) in either case, to such other
address as the party shall have furnished in writing in accordance with
the provisions of this Section 4(b). Notice to the estate of any party
shall be sufficient if addressed to the party as provided in this
Section 4(b). Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for
a notice changing a party address which shall be deemed given at the
time of receipt thereof. Any notice given by other means permitted by
this Section 4(b) shall be deemed given at the time of receipt thereof.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto, the successors and assigns of the
Company, and the heirs, legatees and personal representatives of the
undersigned.
(d) The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or
interpretation of this Agreement.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) This Agreement shall be governed by and construed in
accordance with the internal substantive laws of the State of Iowa,
without giving effect to principles governing conflicts of law.
(g) This Agreement does not create, and shall not be construed
as creating, any rights enforceable by any person not a party to this
Agreement.
(h) The parties hereto irrevocably consent to the jurisdiction
of the courts of the State of Iowa and of the Federal District Court
for the Northern District of Iowa in connection with any action or
proceeding arising out of or relating to this Agreement. In any such
action or proceeding, each party hereto waives personal service of any
summons, complaint or other process and agrees that service thereof may
be made in accordance with Section 4(b). Within 30 days after such
service, or such other time as may be mutually agreed upon in writing
by the attorneys for the parties to such action or proceeding, the
party so served shall appear or answer such summons, complaint or other
process.
[The remainder of this page is intentionally blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Wayne W. Whalen
---------------------------------------
ACCEPTED BY: Print Name of Buyer
TOP AIR MANUFACTURING, INC.
By: /s/ Steven R. Lind By: /s/ Wayne W. Whalen
--------------------------------- -----------------------------------
Steven R. Lind, President Signature of Wayne W. Whalen
-----------------------
Address: 317 Savannah Park Road Social Security Number or other
---------------------------- Taxpayer Identification Number:
Cedar Falls, Iowa 50613-0726
---------------------------------------
Address:
------------------------------
------------------------------
------------------------------
If the Debenture will be held as
jointly with Buyer's spouse, please
complete the following:
---------------------------------------
Print name of spouse
---------------------------------------
Signature of spouse
---------------------------------------
Print manner in which Debenture will be
held
---------------------------------------
Social Security Number
