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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GOLDEN TRIANGLE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Colorado 25-1302097
(State or other jurisdiction of (IRS Employer
incorporation or organization) ID Number)
6314 Aspen Cove Ct., Sugar Land, Texas 77479, (281) 565-7300
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive office)
Approximate date of commencement of proposed sale: December 4, 1998
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: [X]
The Registrant hereby amends this Registration Statement 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 1993 or until the Registration Statement shall become effective on such
dates as the Commission, acting pursuant to said Section 8(a) may determine.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Each Class Offering Aggregate Amount of
of Securities Amount to Price Per Offering Registration
to be Registered be Registered Unit Price Fee
Warrants to Pur- 300,000 (1) (1) (1)
chase Common Stock
Common Stock 300,000 $8.00 2,400,000 $708.00
Par Value $.001
(1) The Warrants will be issued to existing common shareholders at no cost
to the shareholders.
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CROSS REFERENCE SHEET
HEADING OR
ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
PART I
1. Forepart of Registration Facing Page of Registra-
Statement and Outside Front tion Statement and Cover
Cover Page of Prospectus Page of Prospectus
2. Inside Front Cover and Inside Front Cover of
Outside Cover Page of Prospectus and Outside
Prospectus Cover Page of Prospectus
3. Summary Information and Risk Factors, page 4,
Risk Factors Description of the Warrant
Exercise, page 5
4. Use of Proceeds Use of Proceeds, page 8
5. Determination of Offering Determination of Offering
Price Price, page 8
6. Dilution Dilution, page 8
7. Selling Security Holders NOT APPLICABLE
8. Plan of Distribution Distribution of Warrants,
page 9
9. Description of Securities NOT APPLICABLE
10. Interest of Named Experts NOT APPLICABLE
and Counsel
11. Material Changes NOT APPLICABLE
12. Incorporation by Reference Incorporation by Reference
pages 3 and 9
13. Disclosure of Commission Indemnification,
Position on Indemnification page 9
PART II
14. Other Expenses of Issuance page i
and Distribution
15. Indemnification of Directors page i
and Officers
16. Exhibits page iii
17. Undertakings page iii
Signatures page v
Index to Exhibits page vi
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GOLDEN TRIANGLE INDUSTRIES, INC.
300,000 Shares
Common Stock ($.001 Par Value)
Warrant Exercise
Golden Triangle Industries, Inc. (the "Company" or "GTII") hereby offers
300,000 shares of its Common Stock to its common shareholders choosing to
exercise 300,000 Warrants to purchase Common Stock.
The Common Stock is listed on the NASDAQ Market Small Capital Issues and
trades under the NASDAQ symbol GTII. On November 19, 1998, the last sales
price of GTII shares, as reported by NASDAQ, was $8.50 per share.
AN INVESTMENT IN THE SECURITIES BEING OFFERED INVOLVES SIGNIFICANT RISKS.
SEE RISK FACTORS.
No person has been authorized by the Company to give any information or to
make any representation other than as contained in this Prospectus, and if
given or made, such information or representation must not be relied upon
as having been authorized by the Company. This Prospectus does not
constitute an offer to sell securities in any jurisdiction to any person to
whom it is unlawful to make such offer in such jurisdiction. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of the Company or of the Warrants since the date of this
Prospectus, or that the information set forth herein is correct as of any
time subsequent to the date hereof or the date of filing of any documents
incorporated by reference herein.
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 OR THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The principal executive offices of GTII are located at PO Box 17029,
Sugar Land, Texas 77496, telephone (281) 565-7300.
The date of this Prospectus is December 4, 1998.
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TABLE OF CONTENTS
Page
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . . . 3
INFORMATION ON THE COMPANY. . . . . . . . . . . . . . . . . . . . . . 4
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DESCRIPTION OF THE WARRANT EXERCISE . . . . . . . . . . . . . . . . . 5
Purpose of the Warrants. . . . . . . . . . . . . . . . . . . . . 5
Administration And Interpretation. . . . . . . . . . . . . . . . 6
Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Number of Shares Offered . . . . . . . . . . . . . . . . . . . . 6
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . 6
Purchases. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Change or Termination. . . . . . . . . . . . . . . . . . . . . . 7
Limitation of Liability. . . . . . . . . . . . . . . . . . . . . 7
Federal Income Tax Consequences. . . . . . . . . . . . . . . . . 7
Advantages and Disadvantages . . . . . . . . . . . . . . . . . . 7
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
DETERMINATION OF OFFERING PRICE . . . . . . . . . . . . . . . . . . . 8
DILUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
DISTRIBUTION OF WARRANTS. . . . . . . . . . . . . . . . . . . . . . . 9
INCORPORATION BY REFERENCE. . . . . . . . . . . . . . . . . . . . . . 9
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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PART I
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 statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, DC
20549, and at the Commission's regional offices at Northwestern Atrium
Center, 500 West Madison Street, 14th Floor, Chicago, Illinois 60661 and at
7 World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, DC 20549. The Commission also maintains
a Web site containing reports, proxy and information statements filed
electronically (http://www.sec.gov). The Common Shares are traded on
NASDAQ, and such reports and other information concerning the Company may
be inspected at the offices of the National Association of Securities
Dealers, Inc., 1735 K Street N.W., Washington, DC 20006.
This Prospectus constitutes a part of a registration statement (together
with all amendments and exhibits thereto, the "Registration Statement")
filed by the Company with the Commission under the Securities Act of 1933,
as amended ("Securities Act"). As permitted by the rules and regulations
of the Commission, this Prospectus omits certain information contained in
the Registration Statement, and reference is made to the Registration
Statement for further information with respect to the Company and the
shares of Common Stock registered under the Registration Statement. Any
statements contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission are not necessarily complete, and in each instance reference is
made to the copy of such document so filed. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have been filed by the Company with the
Commission are incorporated herein by reference and made a part hereof.
(1) The Company's Form 10-K for the year ended December 31, 1997.
(2) The Company's Form 10-Q for the quarter ended March 31, 1998.
(3) The Company's Form 10-Q for the quarter ended June 30, 1998.
(4) The Company's Form 10-Q for the quarter ended September 30, 1998.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to
the termination of the offering of Common Stock made by this Prospectus
shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated by reference into this Prospectus
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated by reference herein
modifies and 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 hereby undertakes to provide, without charge, to each person to
whom a copy of this Prospectus is delivered, on the written or oral request
of such person, a copy of any or all documents incorporated by reference
which have been filed with the Commission. Requests for such copies should
be directed to the Company at P. O. Box 17029, Sugar Land, Texas 77496.
INFORMATION ON THE COMPANY
The following information concerning GTII may be obtained by referring to
the Form 10-K for the year ended December 31, 1997, incorporated herein by
reference--Business, Properties, Market Information, Selected Financial
Data, Management's Discussion, Financial Statements, Management,
Compensation, Security Ownership, and Certain Relationships and Related
Transactions.
RISK FACTORS
Market Considerations. GTII has maintained an actively traded market.
However, no assurances can be given that the market for GTII shares will
improve. The Company can not assure a profit or protect against a loss on
shares purchased upon exercise of the warrants.
No Interest. No interest will be paid on funds held by the Company pending
issuance of shares.
No Cash Dividends. GTII has not paid cash dividends on its common stock in
the past. Future cash dividends will be determined by the Board of
Directors.
Risks Inherent in Oil and Gas Industry. Oil and gas exploration and
development are extremely speculative by nature and involve a high degree
of risk of loss. There are no assurances that the Company will realize
from any particular oil and gas interest the amount of future net revenues
upon which the purchase price of such interest was based. Other risks
inherent to this industry include market prices of oil and gas;
availability, expense and reliability of geological data; availability of
equipment; availability of and proximity to pipelines and other
transportation facilities; ability to obtain leasehold prospects and
royalty or overriding royalty interests in the same; supply and price of
competitive fuels, import and export quotas, and effects of political,
regulatory, economic or marketing conditions generally.
Risks Inherent in Salt Water Disposal Business. Risks inherent to this
industry include market prices of oil and gas, collection of accounts
receivable, mechanical problems with disposal wells, surface owners not
renewing a lease or competitors installing new disposal facilities. In
addition, about 48% of Transcon's (wholly owned subsidiary of GTII)
revenues are rendered from a single customer which represents a risk,
although GTII does not foresee the loss of this customer.
Governmental Regulations and Securities Compliance. The Company's business
is subject to intensive regulation by federal, state and local governments
and numerous governmental agencies in both the United States and abroad.
Laws and regulations governing the petroleum industry are very complex,
particularly insofar as they relate to the pricing, marketing and taxation
of oil and gas production and to factors affecting the environment.
Federal securities laws also impose periodic reporting and numerous
requirements upon all publicly traded companies. Securities laws and
regulations are extremely complex and contain numerous technical
requirements.
Dilution. See Dilution, page 8.
Authorization of Preferred Stock. The Company's Articles of Incorporation
authorize the issuance of up to 1,000,000 shares of Preferred Stock with
such rights and preferences as may be determined by the Board of Directors.
Accordingly, the Board may, without shareholder approval, issue Preferred
Stock with dividend, liquidation, conversion, voting or other rights which
could affect the rights of the holders of the Company's Common Stock. The
Company has issued 3,374 shares of Class A Preferred Stock and 52,941
shares of Class B Preferred Stock as of the date of this Prospectus.
Conflicts of Interest. Several of the officers and directors of the
Company have invested in the oil, gas, or salt water disposal business,
either directly or through entities in which they have an interest. Some
of these interests could directly compete with the interests of the
Company. Although the Company is not aware of any present conflicts of
interest, such present or future activities on the part of the officers and
directors could directly compete with interests of the Company. If the
Company should enter into future transactions with its officers, directors
or other related parties, the terms of any such transaction will be as
favorable to the Company as those which could be obtained from an unrelated
party in an arm's length transaction (see Item 13. Certain Relationships
and Related Transactions) in the Form 10-K for the year ended December 31,
1997 incorporated herein by reference.
DESCRIPTION OF THE WARRANT EXERCISE
Purpose of the Warrants. The primary purpose of the Warrants is to provide
existing holders of record of the Company's Common Stock a way to increase
their holdings of GTII Common Stock via purchases from the Company without
brokerage fees and at a below-market price. In addition, purchases of
Common Stock directly from the Company pursuant to the Warrant Exercise
will provide the Company with additional capital for general corporate
purposes.
Administration and Interpretation. The Warrant Exercise will be
administered by the Company or such successor agent as the Company may
designate (the "Agent"). The Agent acts as agent for such holders who
exercise their Warrants (the "Shareholder"), keeps records of shareholder's
accounts and performs other duties relating to the Warrant Exercise.
Communications with the Agent should be directed as follows:
Golden Triangle Industries, Inc.
Transfer Agent Department
104 Fossil Court
Springtown, Texas 76082
(800) 940-4484
The Company has the right to establish procedures for administration of the
Warrant Exercise and to interpret the Exercise of the Warrants. Its
interpretation will be final, conclusive and binding.
Eligibility. To be eligible to participate in the Warrant Exercise, a
shareholder must have been a shareholder of record of GTII on December 4,
1998, the date of the issuance of the Warrants. Officers, directors and
employees of the Company are not eligible to participate.
Number of Shares Offered. As of the date of this Prospectus, 300,000
shares of Common Stock were registered under the Securities Act for sale by
the Company pursuant to the Warrant Exercise.
Each common shareholder will receive one (1) warrant for each two (2)
shares of common stock owned as of December 4, 1998, with each one (1)
warrant entitling him or her to purchase one (1) common share.
Purchase Price. The Warrant Exercise provides that the Common Shares
offered will be newly issued Common Shares to be acquired directly from the
Company. Under the Warrant Exercise, the Purchase Price for newly issued
shares is $8.00 per share.
Purchases. Purchases under the Warrant Exercise may be made as soon as
practicable following the date of issuance of the Warrants, but in no event
later than May 3, 1999, which is 150 days after the date of issuance of the
Warrants (except where necessary to comply with applicable securities
laws). Common Shares purchased under the Warrant Exercise will be newly
issued Common Shares. The Common Shares purchased from GTII will be priced
at $8.00 per share.
Certificates. Certificates will be issued for share purchases and sent to
those persons exercising their Warrants.
Reports. Shareholders will receive copies of all communications sent to
holders of Common Stock. This may include quarterly reports to
shareholders, annual reports to shareholders, proxy material, and Internal
Revenue Service information, if appropriate, for reporting dividend income.
All such information from the Agent to shareholders will be addressed to
the latest address of record; therefore, it is important that shareholders
promptly notify the Agent of any change of address.
Change or Termination. The Company reserves the right to amend, modify,
suspend or terminate the Warrant Exercise at any time. Warrant Holders
will be notified in writing of any material changes in the Exercise.
The terms and conditions of the Warrant Exercise may be amended or
supplemented by GTII.
Limitation of Liability. The Warrants provide that neither GTII nor the
Agent will be liable for any act done in good faith, or for the good faith
omission to act in connection with the Warrant Exercise, including, without
limitation, any claims of liability or with respect to any loss or
fluctuation in the market value after the purchase of such shares.
Federal Income Tax Consequences. The following discussion relates to the
material federal income tax consequences of participation in the Warrant
Exercise. The effect of such tax consequences upon any shareholder will
depend upon such shareholder's individual circumstances which, together
with the state and local tax consequences of participation, should be
discussed by each shareholder with his tax advisor to determine the tax
considerations related to the purchase of shares of Common Stock under the
Warrant Exercise.
A shareholder will be required to include in income for federal income tax
purposes amounts invested in Common Stock under the Warrant Exercise and
all shares of Common Stock credited to his or her account under the Warrant
Exercise.
A shareholder's tax basis for shares of Common Stock purchased pursuant to
the Warrant Exercise should be equal to the cost of such shares.
A shareholder will not realize any taxable income when he or she receives
certificates for whole shares credited to his or her account under the
Warrant Exercise. Gain or loss will be realized by the shareholder only
when he or she sells such shares.
ADVANTAGES AND DISADVANTAGES
The primary advantages of the Warrant Exercise are:
No brokerage commissions will be charged to the shareholder.
There will be an opportunity to buy shares at a discount if the market
price of the shares is above the exercise price of $8.00 per share.
The primary disadvantages of the Warrant Exercise are:
Shareholders will be limited in the number of common shares they can
purchase (one [1] share for every two [2] shares held as of the date
of issuance of the warrants).
The Warrant Exercise Price, set at $8.00 per share at the time of
issuance of the warrants, may or may not be economically attractive.
NEITHER THE COMPANY NOR THE AGENT CAN ASSURE A PROFIT OR PROTECT AGAINST A
LOSS ON SHARES PURCHASED UNDER THE WARRANT EXERCISE.
USE OF PROCEEDS
Purchases of Common Stock under the Warrant Exercise will be satisfied by
the purchase of new shares of Common Stock issued by the Company; however,
the number of shares of Common Stock, if any, that the Company ultimately
will sell under the Warrant Exercise is not known.
Newly issued shares of Common Stock will be purchased under the Warrant
Exercise, and the proceeds from such sales will be used for general
corporate purposes of the Company.
DETERMINATION OF OFFERING PRICE
The Exercise Price of the Common Shares purchased from the Company will be
set at $8.00 per share by the Company.
DILUTION
Since it is impossible to determine how many of the 300,000 shares will
ultimately be sold in the Warrant Exercise, it is difficult to determine
how much dilution will occur. However, the issuance of any additional
shares does cause dilution of the shareholders' interests. In addition to
the 300,000 shares in this offering, the Company's Board of Directors may
authorize the issuance of additional Common Shares in the future in order
to provide for further capitalization of the Company or other corporate
purposes, which could cause further dilution of the shareholders'
interests.
DISTRIBUTION OF WARRANTS
The Common Stock being offered hereby is offered pursuant to the Warrants
to be issued, the terms of which provide for the purchase of newly issued
shares of Common Stock. The Company will pay all costs and expenses
associated with the Warrant Exercise.
The Warrants will be issued and distributed to existing common shareholders
by the Company when this registration statement is made effective. The
shareholders may then exercise the Warrants to purchase Common Stock at any
time during the 150 day exercise period.
INCORPORATION BY REFERENCE
See Incorporation of Certain Documents by Reference, page 3.
INDEMNIFICATION
Article VII of the Company's Articles of Incorporation provides as follows:
The Corporation shall indemnify, to the full extent permitted by law,
any person who is or was a director, officer, agent, fiduciary or
employee of the Corporation against any claim, liability or expense
arising against or incurred by such person as a result of actions
reasonably taken by him at the direction of the Corporation. The
Corporation shall further have the authority, to the full extent
permitted by law, to indemnify its directors, officers, agents,
fiduciaries and employees against any claim, liability or expense
arising against or incurred by them in all other circumstances and to
maintain insurance providing such indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed 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.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Since purchases of Common Stock under the Warrant Exercise will be satisfied
by the purchase of new shares of Common Stock issued by the Company, the
number of shares of Common Stock, if any, that the Company ultimately will
sell under the Warrant Exercise is not known. For this reason it is not
possible to predict the expenses of issuance and distribution.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Colorado Business Corporation Act (the "CBCA") provides for the
indemnification of the Registrant's directors, officers, employees,
fiduciaries and agents against liabilities which they may incur in such
capacities. A summary of the circumstances in which such indemnification
is allowable is provided below, but that description is qualified in its
entirety by reference to the relevant section of the CBCA.
In general, the CBCA provides that any director may be indemnified, by
providing advances or reimbursements against liabilities (including the
obligation to pay a judgment, settlement, penalty, fine or reasonable
expense), incurred in a proceeding (including any civil, criminal or
investigative proceeding whether threatened, pending or completed) to which
the director was made a party because he is or was a director, except that,
if the proceeding is brought by or in the right of the Registrant,
indemnification is permitted only with respect to reasonable expenses
incurred in connection with the proceeding. The CBCA prohibits
indemnification of a director in connection with a proceeding brought by or
in the right of the Registrant in which a director is adjudged liable to
the Registrant, or in connection with any proceeding charging improper
personal benefit to the director in which the director is adjudged liable
for receipt of an improper personal benefit.
Indemnity may be provided if the director's actions resulting in the
liability: (i) were taken in good faith; (ii) were reasonably believed to
have been in the Registrant's best interest with respect to actions taken
in the director's official capacity; (iii) were reasonably believed not to
be opposed to the Registrant's best interest with respect to actions other
than those taken in the director's official capacity; and (iv) with respect
to any criminal action, the director had no reasonable cause to believe his
or her conduct was unlawful. Indemnification may be awarded only after the
applicable standard of conduct has been met by the director to be
indemnified as determined by (i) a majority vote of a quorum of the Board
of Directors or, if a quorum cannot be obtained, by committee thereof
consisting of directors not parties to the proceeding; (ii) by independent
legal counsel selected by the Board of Directors; or (iii) by the
shareholders.
The CBCA further provides that unless limited by the Registrant's articles
of incorporation, a director or officer who is wholly successful, on the
merits or otherwise, in defense of any proceeding to which he was a party,
is entitled to receive indemnification against reasonable expenses,
including attorney's fees, incurred in connection with the proceeding. The
Registrant's amended articles of incorporation do not limit the foregoing
provisions.
The Registrant may indemnify or advance expenses to an officer, employee,
fiduciary or agent who is not a director to a greater extent than permitted
for indemnification of directors, if consistent with law and if provided
for by its articles of incorporation, bylaws, resolution of its
shareholders or directors or in a contract. The provision of
indemnification to persons other than directors is subject to such
limitations as may be imposed on general public policy grounds.
Unless limited by the Registrant's articles of incorporation, upon petition
by a director or officer, a court may order the Registrant to indemnify
such director or officer against liabilities arising in connection with any
proceeding. A court may order the Registrant to provide such
indemnification, whether or not he was entitled to indemnification by the
Registrant. To order indemnification, the court must determine that the
director or officer is fairly and reasonably entitled to indemnification in
light of the circumstances. With respect to liability incurred by a
director or officer, or in any proceeding where liability results on the
basis that a personal benefit was received improperly, a court may only
require that the director or officer by indemnified as to reasonable
expenses incurred. The Registrant's amended articles of incorporation do
not limit the foregoing provisions.
The CBCA specifies that any provisions for indemnification or advances for
expenses to directors which may be contained in the Registrant's articles
of incorporation, bylaws, resolutions of its shareholders or directors, or
in a contract (except for insurance policies) shall be valid only to the
extent such provisions are consistent with the CBCA and any limitations
upon indemnification set forth in the articles of incorporation.
The CBCA also grants the power to the Registrant to purchase and maintain
insurance policies which protect any director, officer, employee, fiduciary
or agent against any liability asserted against or incurred by them in such
capacity arising out of their status as such. Such policies may provide
for indemnification whether or not the corporation would otherwise have the
power to provide for it. No such policies have been obtained by the
Registrant.
Article VII of the Company's Articles of Incorporation provides as follows:
"The Corporation shall indemnify, to the full extent permitted by law, any
person who is or was a director, officer, agent, fiduciary or employee of
the Corporation against any claim, liability or expense arising against or
incurred by such person as a result of actions reasonably taken by him at
the direction of the Corporation. The Corporation shall further have the
authority, to the full extent permitted by law, to indemnify its directors,
officers, agents, fiduciaries and employees against any claim, liability or
expense arising against or incurred by them in all other circumstances and
to maintain insurance providing such indemnification."
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, 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 of 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.
EXHIBITS
Copies of the following documents have been included as Exhibits to this
Registration Statement:
Exhibit 5.1 - Opinion of Counsel of Howard B. Siegel, Attorney-at-Law
Exhibit 20.1 - Certificate for Common Stock Purchase Warrants
Exhibit 23.1 - Consent of Independent Certified Public Accountant - BDO
Seidman, LLP
UNDERTAKINGS
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with this prospectus, to each person to whom the prospectus is
sent or given, the latest annual report on Form 10-K to security holders
that is incorporated herein by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under
the Securities Exchange Act of 1934, and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide
such interim financial information.
The undersigned registrant hereby undertakes to respond to requests or
information that is incorporated herein by reference into the prospectus,
within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
The registrant undertakes that every prospectus (i) that is filed pursuant
to paragraph 1 above or (ii) that purports to meet the requirements of
section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective and that, for purposes 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.
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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Houston, State of Texas, on this
the 23rd day of November, 1998.
GOLDEN TRIANGLE INDUSTRIES, INC.
/s/ KENNETH OWENS
Kenneth Owens, President
Pursuant to the requirements of the Securities Exchange Act of 1933, as
amended, this report has been signed below by the following persons on
behalf of the registrant and in the capacities and on the dates indicated.
SIGNATURES DATE
/s/ KENNETH OWENS November 23, 1998
Kenneth Owens, Chairman of the Board
and President
/s/ ROBERT EARLY November 23, 1998
Robert Early, Chief Financial Officer,
Principal Accounting Officer
/s/ HOWARD B. SIEGEL November 23, 1998
Howard B. Siegel, Director
/s/ KAREN LEE November 23, 1998
Karen Lee, Director
/s/ GLENN GAGNON November 23, 1998
Glenn Gagnon, Director
/s/ DAVID MCFARLANE November 23, 1998
David McFarlane, Director
INDEX TO EXHIBITS
Exhibit 5.1 - Opinion of Counsel of Howard B. Siegel, Attorney-at-Law
Exhibit 20.1 - Certificate for Common Stock Purchase Warrants
Exhibit 23.1 - Consent of Independent Certified Public Accountant - BDO
Seidman, LLP
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EXHIBIT 5.1
HOWARD B. SIEGEL
ATTORNEY AT LAW
P. O. BOX 940572
HOUSTON, TEXAS 77094
713-513-0152
November 5, 1998
Golden Triangle Industries, Inc.
P. O. Box 17029
Sugar Land, TX 77496-7029
Re: Registration Statement on Form S-3 - Common Stock issued upon exercise
of warrants issued to existing shareholders
Gentlemen:
This opinion is submitted pursuant to the applicable rules of the
Securities and Exchange Commission (the "Commission") with respect to the
registration by Golden Triangle Industries, Inc. (the "Company"), of
300,000 shares of Common Stock, par value of $.001 per share (the "Common
Stock") issued upon exercise of certain warrants (the "Warrants") issued to
existing shareholders.
In my capacity as general counsel to the Company, I have examined the
original, certified, conformed, photostat or other copies of the Company's
Certificate of Incorporation (as amended), By-Laws and corporate
resolutions provided to me by the Company. In all such examinations, I
have assumed the genuineness of all signatures on original documents, and
the conformity to originals or certified documents of all copies submitted
to me as conformed, photostat or other copies. In passing upon certain
corporate records and the documents of the Company, I have necessarily
assumed the correctness and completeness of the statements made or included
therein by the Company, and I express no opinion thereon.
Based upon and in reliance of the foregoing, I am of the opinion that the
Common Stock, when issued in accordance with the terms of the Warrants,
will be validly issued, fully paid and nonassessable.
I hereby consent to the use of this opinion in the Registration Statement
on Form S-3 to be filed with the Commission.
Very truly yours,
/s/ HOWARD B. SIEGEL
Howard B. Siegel
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EXHIBIT 20.1
GOLDEN TRIANGLE INDUSTRIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF COLORADO
No. 99 - _________ ____________ Common Stock
Purchase Warrants
CERTIFICATE FOR COMMON STOCK PURCHASE WARRANTS
1. Warrant. This Warrant Certificate certifies that
(the "Registered Holder"), is the registered owner of the above indicated
number of Warrants expiring on the Expiration Date, as hereinafter defined.
The Registered Holder received one (1) Warrant to purchase one share of
common stock for each two (2) shares of common stock owned. In the case of
fractional shares, the Registered Holder's shares were rounded up to the
nearest whole Warrant. One (1) Warrant entitles the Registered Holder to
purchase one (1) share of the common stock, $.001 par value (a "Share"), of
Golden Triangle Industries, Inc., a Colorado corporation, (the "Company"),
from the Company at a purchase price of $8.00 (the "Exercise Price") at any
time during the Exercise Period, as hereinafter defined, upon surrender of
this Warrant Certificate accompanied by payment of the Exercise Price at
the transfer agent office of the Company.
Upon due presentment for transfer of this Warrant Certificate at the transfer
agent office of the Company, a new Warrant Certificate of like tenor and
evidencing in the aggregate a like number of Warrants shall be issued in
exchange for this Warrant Certificate, subject to the limitations provided
herein, upon payment of any tax or governmental charge imposed in connection
with such transfer. Subject to the terms hereof, the Company shall deliver
Warrant Certificates in required whole number denominations to Registered
Holders in connection with any transfer or exchange permitted hereunder.
2. Exercise. Subject to the terms hereof, the Warrants evidenced by this
Warrant Certificate may be exercised at the Exercise Price in whole or in
part at any time during the one hundred fifty (150) day Exercise Period
(the "Exercise Period"), commencing on December 4, 1998, and terminating at
the close of business at the location of the transfer agent office of the
Company at 104 Fossil Court, Springtown, Texas 76082, on May 3, 1999 (the
"Expiration Date"). The Exercise Period may also be extended by the
Company's Board of Directors.
A Warrant shall be deemed to have been exercised immediately prior to the
close of business on the date (the "Exercise Date") of the surrender to the
Company at its stock transfer office of the Warrant Certificate accompanied
by payment to the Company, in cash or by official bank or certified check,
of an amount equal to the aggregate Exercise Price, in lawful money of the
United States of America.
The person entitled to receive the Shares issuable upon exercise of a
Warrant or Warrants ("Warrant Shares") shall be treated for all purposes as
the holder of the Warrant Shares as of the close of business on the
Exercise Date. If more than one (1) Warrant shall be exercised at one time
by the same Registered Holder, the number of full Shares which shall be
issuable on exercise thereof shall be computed on the basis of the
aggregate number of full shares issuable on such exercise.
Promptly, and in any event within ten (10) business days after the Exercise
Date, the Company shall cause to be issued and delivered to the person or
persons entitled to receive the same, a certificate or certificates for the
number of Warrant Shares deliverable on such exercise.
The Company may deem and treat the Registered Holder of the Warrants at any
time as the absolute owner thereof for all purposes, and the Company shall
not be affected by any notice to the contrary. The Warrants shall not
entitle the Registered Holder thereof to any of the rights of shareholders
or to any dividend declared on the Shares unless the Registered Holder
shall have exercised the Warrants and thereby purchased the Warrant Shares
prior to the record date for the determination of holders of Shares
entitled to such dividend or other right.
3. Reservation of Shares and Payment of Taxes. The Company covenants that
it will at all times reserve and have available from its authorized Common
Stock such number of shares as shall then be issuable on the exercise of
outstanding Warrants. The Company covenants that all Warrant Shares which
shall be so issuable shall be duly and validly issued, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to
the issue thereof.
The Registered Holder shall pay all documentary, stamp or similar taxes and
other government charges that may be imposed with respect to the issuance,
transfer or delivery of any Warrant Shares on exercise of the Warrants. In
the event the Warrant Shares are to be delivered in the name other than the
name of the Registered Holder of the Warrant Certificates, no such delivery
shall be made unless the person requesting the same has paid the amount of
any such taxes or charges incident thereto.
4. Registration of Transfer. The Warrant Certificates may be transferred
in whole or in part, provided such transfer complies with all applicable
federal and state securities laws and if requested by the Company, the
Registered Holder delivers to the Company an opinion of counsel to that
effect, in form and substance reasonably acceptable to the Company.
Warrant Certificates to be transferred shall be surrendered to the Company
at the stock transfer agent office. The Company shall execute, issue and
deliver in exchange therefor the Warrant Certificate or Certificates which
the Registered Holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its stock transfer office which shall
register Warrant Certificates and the transfer thereof. On due presentment of
any Warrant Certificate for registration or transfer at such office, the
Company shall execute, issue and deliver to the transferee or transferees a
new Warrant Certificate or Certificates representing an equal aggregate number
of Warrants. All Warrant Certificates presented for transfer shall be duly
endorsed (signature guaranteed) or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company.
All Warrant Certificates so surrendered, or surrendered for exercise, or
for exchange in case of mutilated Warrant Certificates, shall be promptly
canceled by the Company and thereafter retained by the Company until the
Expiration Date. Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder of any Warrant
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company), and
the Company shall not be affected by any notice to the contrary.
5. Loss or Mutilation. On receipt by the Company of evidence satisfactory
as to the ownership of and the loss, theft, destruction or mutilation of
this Warrant Certificate, the Company shall execute and deliver, in lieu
thereof, a new Warrant Certificate representing an equal aggregate number
of Warrants. In the case of loss, theft or destruction of any Warrant
Certificate, the individual requesting issuance of a new Warrant
Certificate shall be required to indemnify the Company in an amount
satisfactory to the Company. In the event a Warrant Certificate is
mutilated, such Certificate shall be surrendered and canceled by the
Company prior to delivery of a new Warrant Certificate. Applicants for a
new Warrant Certificate shall also comply with such other reasonable
regulations as the Company may prescribe.
6. Adjustment of Shares. The number and kind of securities issuable upon
exercise of a Warrant or to be delivered upon the redemption of Warrants
hereunder shall be subject to adjustment from time to time upon the
happening of certain events ("Adjustment Events"), as follows:
(a) If the Company shall, at any time prior to the complete exercise of the
Warrants evidenced hereby, declare or pay to the holders of its outstanding
Shares, a dividend payable in any kind of shares of stock or other
securities of the Company, or in property, or otherwise than in cash, the
Registered Holder upon thereafter exercising the Warrants evidenced hereby
as herein provided shall be entitled to receive for the Exercise Price, in
addition to one (1) Warrant for each two (2) common shares held, such
additional share or shares of stock or other securities or property as the
Registered Holder would have received in the form of such dividend if he
had been the holder of record of such Warrant on the record date for the
determination of common stockholders entitled to receive such dividend.
(b) If the Company shall, while any Warrants evidenced hereby remain in
force, effect a recapitalization of such character that the Shares covered
hereby shall be changed into or become exchangeable for a larger or smaller
number of shares, then thereafter, the number of Shares which the
Registered Holder shall be entitled to purchase hereunder, shall be
increased or decreased, as the case may be, in direct proportion to the
increase or decrease in the number of Shares of the Company by reason of
such recapitalization, and the Exercise Price (per Share) shall in the case
of an increase in the number of Shares be proportionately reduced, and in
the case of a decrease in the number of shares be proportionately
increased.
(c) In case of any reorganization of the Company (or any other corporation
the stock or other securities of which are at the time receivable upon
exercise of a Warrant) or in case the Company (or any such other
corporation) shall merge into or with or consolidate with another
corporation or convey all or substantially all of its assets to another
corporation or enter into a business combination of any form as a result of
which the Share or other securities receivable upon exercise of a Warrant
are converted into other stock or securities of the same or another
corporation, then and in each such case, the Registered Holder of a
Warrant, upon exercise of the purchase right at any time after the
consummation of such reorganization, consolidation, merger, conveyance or
combination, shall be entitled to receive, in lieu of the Shares or other
securities to which such Registered Holder would have been entitled had he
exercised the purchase right immediately prior thereto, such stock and
securities which such Registered Holder would have owned immediately after
such event with respect to the Shares and other securities for which a
Warrant may have been exercised immediately before such event had the
Registered Holder exercised the Warrant immediately prior to such event.
The Company shall mail to the holder of this Certificate, at least twenty
(20) days prior to any Adjustment Event, a notice specifying the date of
which any such Adjustment Event is to occur together with a description
thereof.
In each case of an adjustment in the Shares or other securities receivable
upon the exercise of a Warrant, the Company shall promptly notify the
Registered Holder of such adjustment. Such notice shall set forth the
facts upon which such adjustment is based.
7. Reduction in Exercise Price at Company's Option. The Company's Board
of Directors, may, at its sole discretion, reduce the Exercise Price of the
Warrants in effect at any time either for the life of the Warrants or any
shorter period of time determined by the Company's Board of Directors. The
Company shall promptly notify the Registered Holders of any such reduction
in the Exercise Price.
8. Notices. All notices, demands, elections or requests (however
characterized or described) required or authorized hereunder shall be
deemed given sufficiently if in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by facsimile or
telegram to the Company, at its principal executive office, and to the
Registered Holder, at the address of such holder as set forth on the books
maintained by the Company.
9. General Provisions. This Warrant Certificate shall be construed and
enforced in accordance with, and governed by, the laws of the State of
Texas, where the Company maintains executive offices. Except as otherwise
expressly stated herein, time is of the essence in performing hereunder.
The headings of this Warrant Certificate are for convenience in reference
only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed as of this the 4th day of December, 1998.
GOLDEN TRIANGLE INDUSTRIES, INC.
/s/ KENNETH OWENS
By: Kenneth Owens
Its: President
<PAGE>
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<PAGE>
IF YOU WISH TO EXERCISE WARRANTS TO PURCHASE COMMON SHARES PLEASE FILL OUT
AND RETURN THIS PAGE ALONG WITH THE FRONT PAGE OF THE WARRANT CERTIFICATE
(page showing certificate number and number of warrants). Mail to: Golden
Triangle Industries, Inc., 104 Fossil Court, Springtown, Texas 76082. If
you choose to transfer the warrants to a different name, please use the
Form Assignment on page 6.
TO: Golden Triangle Industries, Inc.
I would like to exercise Warrant Certificate No. 99 - _____ to purchase
__________ shares of Common Stock of Golden Triangle Industries, Inc.
Enclosed is my check for ________ ($8.00 per share).
___________________________________
Dated: _________ ___________________________________
Signature(s) of Owner(s)
IF YOU ARE EXERCISING WARRANTS TO PURCHASE COMMON SHARES WHICH WILL REMAIN
IN THE SAME NAME WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IT IS
NOT NECESSARY TO FILL OUT THE FOLLOWING FORM ASSIGNMENT. PLEASE USE THIS
FORM ONLY IF YOU WISH TO TRANSFER WARRANTS OR SHARES TO BE PURCHASED OUT OF
YOUR NAME TO A DIFFERENT NAME AND BE SURE TO HAVE SIGNATURE MEDALLION STAMP
GUARANTEED BY A BANK OR BROKERAGE FIRM (NOT A NOTARY).
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _______ Custodian ________ under Uniform Gifts to
(Cust) (Minor)
Minors Act ________
(State)
Additional abbreviations may also be used though not in the above list.
FORM ASSIGNMENT
To be executed by the Registered Holder if he desires to assign Warrants
evidenced by the ___________ within Warrant Certificate.
FOR VALUE RECEIVED, ________________ hereby sells, assigns and transfers
unto ___________________________________________________________________
________________________________________________________________________
(Please print or typewrite name, address, and social security number of
assignee) (_______) Warrants, evidenced by the within Warrant Certificate,
and does hereby irrevocably constitute and appoint ______________________
_______________ attorney, to transfer the said Warrants evidenced by the
within Warrant Certificate on the books of the Company, with full power of
substitution.
Dated: _________ _________________________________
Signature of Owner(s)
Printed Name: ___________________
NOTICE: The above signature must correspond with the name as written upon
the face of the Warrant Certificate in every particular, without alteration
or enlargement or any charge whatsoever.
SIGNATURE(S) GUARANTEED:
_________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO SEC RULE 17Ad-15.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Golden Triangle Industries, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated
February 18, 1998, relating to the consolidated financial statements of
Golden Triangle Industries, Inc. and Subsidiaries appearing in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
Denver, Colorado
November 20, 1998
