<PAGE>
As filed with the Securities and Exchange Commission on March 15, 1996.
Registration File No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------
KLEINERT'S, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Pennsylvania 13-0921860
- ------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
120 West Germantown Avenue
Plymouth Meeting, Pennsylvania 19462
(610) 828-7261
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(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
Joseph J. Connors
Executive Vice President
120 West Germantown Avenue
Plymouth Meeting, Pennsylvania 19462
(610) 828-7261
--------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copy to:
Steven N. Haas, Esquire
Cozen and O'Connor
1900 Market Street
Philadelphia, PA 19103
(215) 665-2000
<PAGE>
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this Registration
Statement.
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 ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share (1) price (1) fee
- -------------------------------------------------------------------------------------------------------------------------------
Common
Stock, par
value
$1.00 per
share 150,000 $17.00 $2,550,000 $880.00
===============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the
registration fee in accordance with Rule 457(c) of the
Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
-2-
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 15, 1996
PROSPECTUS
KLEINERT'S, INC.
150,000 Shares
COMMON STOCK
This Prospectus relates to 150,000 shares of Common Stock, par
value $1.00 per share ("Shares"), of Kleinert's, Inc., a Pennsylvania
corporation (the "Company"), beneficially owned by Martin Whitman (the "Selling
Shareholder"). The Shares constitute all of the Common Stock of the Company
owned by the Selling Shareholder and represent approximately 4.5% of the issued
and outstanding Common Stock of the Company. The Shares are being registered to
permit their possible sale, pledge or placement as collateral with lending or
brokerage institutions. The Shares may be sold from time to time by the Selling
Shareholder, or by pledgees, donees, transferees or other successors of the
Selling Shareholder, in each case either on the open market or through privately
negotiated transactions. The Company will not receive any of the proceeds from
the sale of the Shares.
On March 13, 1996, the closing sale price of the Common Stock,
as reported on the NADSAQ National Market System under the symbol "KLRT," was
$17.25.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------------
The date of this Prospectus is March 15, 1996.
<PAGE>
No dealer, salesman or any other person has been authorized to
give any information or to make any representations other than those contained
in this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or the Selling
Shareholder. 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. This Prospectus does
not constitute an offer or solicitation by anyone in any jurisdiction in which
such offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to any person to whom it is
unlawful to make such offer or solicitation.
-------------------------------
TABLE OF CONTENTS
Page
Available Information 3
Incorporation of Certain Documents by Reference 3
The Company 4
Plan of Distribution 4
Legal Matters 5
Experts 5
-2-
<PAGE>
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, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at
the following Regional Offices of the Commission: 7 World Trade Center, Suite
1300, New York, New York 10048; and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission pursuant to the Exchange Act are incorporated by reference in this
Prospectus:
(1) The Annual Report of the Company on Form 10-K for the
fiscal year ended December 2, 1995.
(2) The description of the Common Stock which is contained in
the Company's Registration Statement on Form 8-A, and filed with the Commission
by the Company to register the Common Stock under the Exchange Act, including
all amendments and reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13
(a), 14 or 15 (d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering hereby of the Common Stock shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
The Company will provide without charge to each person to whom
a copy of this Prospectus has been delivered, upon the written or oral request
of any such person, a copy of any or all of the documents referred to above
which have been or may be incorporated in this Prospectus by reference, (not
including exhibits to such documents unless such exhibits are specifically
incorporated by reference in the information contained in this Prospectus). Such
requests for copies should be directed to Corporate Secretary, Kleinert's, Inc.,
120 West Germantown Pike, Plymouth Meeting, Pennsylvania, 19462 (telephone:
610-828-7261).
-3-
<PAGE>
THE COMPANY
Kleinert's, Inc. (together with its subsidiaries, "Kleinert's"
or the "Company") is engaged in the design, manufacture and sale of infants' and
children's sleepwear and playwear and children's t-shirts. The Company also
manufactures, distributes and sells certain items of personal apparel. In
February, 1993, the Company declared its textile division, Scott Mills, a
discontinued operation, and in July, 1993, the Company decided to spin-off the
Scott Mills division to its shareholders. In November, 1993, the Company
contributed substantially all of its textile division's assets, subject to
substantially all of its liabilities, to Scott Mills, Inc., a newly formed
corporation, for all of the outstanding shares of the corporation and the Board
of Directors of the Company declared a distribution of one share of Scott Mills,
Inc. common stock for every one share of the Company's common stock payable to
the shareholders of record of the Company's common stock at the close of
business on the record date, November 27, 1993. This tax free distribution
occurred on March 15, 1994 and resulted in 100% of the outstanding shares of
Scott Mills, Inc. common stock being distributed to the Company's shareholders.
The Company was founded in 1869 under the name of I.B.
Kleinert Rubber Company and was reincorporated in Pennsylvania under its current
name in 1970. The Company's principal executive offices are located at 120 West
Germantown Pike, Plymouth Meeting, Pennsylvania, 19462 and its telephone number
is (610) 828-7261.
PLAN OF DISTRIBUTION
All of the Shares being registered hereby are currently owned
beneficially and of record by the Selling Shareholder. During the past three
years, the Selling Shareholder has not been an officer or director of, and has
not had any material relationship with, the Company.
The Shares are being registered to permit their sale, pledge
or placement as collateral with lending or brokerage institutions. The Selling
Shareholder, or his pledgees, donees, transferees or other successors, may sell
the Shares from time to time in one or more transactions (which may involve
block transactions) in the public securities markets, in privately negotiated
transactions or a combination of such methods of sale. Such transactions may be
effected by the Selling Shareholder at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or at fixed prices. The Selling Shareholder may effect such transactions by
selling his Shares directly to purchasers or to or through broker-dealers, and
-4-
<PAGE>
such broker-dealers may receive compensation in the form of discounts or
commissions from the Selling Shareholder and may receive commissions from the
purchasers of Shares for whom they may act as agents (which compensation as to a
particular broker-dealer may be less than or in excess of customary
commissions). The Selling Shareholder, any broker or dealer selling Shares for
the Selling Shareholder or purchasing such Shares from the Selling Shareholder
for purposes of resale may be deemed to be an "underwriter" under the Securities
Act, and any compensation received by any such broker or dealer may be deemed
underwriting discounts and commissions under the Exchange Act. Neither the
Company nor the Selling Shareholder can presently estimate the amount of such
compensation, which is to be paid by the Selling Shareholder. None of the
proceeds arising from the sale of the Shares will be paid to or otherwise
received by the Company.
LEGAL MATTERS
The legality of the Shares offered hereby will be passed upon
for the Company by Cozen and O'Connor, Philadelphia, Pennsylvania.
EXPERTS
The consolidated financial statements of Kleinert's, Inc. at
December 2, 1995, and for each of the two years then ended, incorporated by
reference into the Registration Statement, have been audited by Ernst & Young
LLP, independent auditors, and at November 27, 1993, and for the year ended
November 27, 1993, by Price Waterhouse LLP, independent auditors, as set forth
in their respective reports thereon, also incorporated by reference, and are
included in reliance upon such reports given upon the authority of such firms as
experts in accounting and auditing.
-5-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses in connection with the offering, all of which shall
be paid by the Company, are as follows:
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . . . . . . $ 880.00
Legal fees and expenses. . . . . . . . . . . . . . . . $1,500.00*
Independent Auditors' fees and expenses. . . . . . . . $1,500.00*
Miscellaneous expenses . . . . . . . . . . . . . . . . $ 620.00*
---------
Total.. . . . . . . . . . . . . . . $4,500.00*
- ----------------------------------
*Estimated
Item 15. Indemnification of Directors and Officers.
For information regarding provisions under which a director or
officer of the Company may be insured or indemnified in any manner against any
liability which he may incur in his capacity as such, reference is made to
Sections 1941 et seq. of the Pennsylvania Business Corporation Law of 1988
(incorporated by reference to Item 28 of the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission on July 29, 1981,
File No. 2-72990) and Article VII of the Company's By-Laws (incorporated by
reference to the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended February 29, 1992).
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification may be against public policy as expressed in a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted against the Company or such director, officer or
controlling person in connection with the securities being registered, the
Company 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 that Act and will be governed by the final adjudication of such
issue.
R-1
<PAGE>
Item 16. Exhibits.
The following exhibits are filed as a part of the Registration
Statement:
4. Specimen Stock Certificate (incorporated by
reference to Exhibit 4 of Amendment No. 2 to the Company's
Registration Statement on Form S-1, File No. 2-72290, filed with
the Securities and Exchange Commission on July 29, 1981).
5. Opinion of Cozen and O'Connor re: legality.
23. (a) Consent of Cozen and O'Connor (included in
Exhibit 5).
(b) Consent of Price Waterhouse LLP.
(c) Consent of Ernst & Young LLP.
25. Power of Attorney (included in Part II of the
Registration Statement).
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this 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, represents a fundamental
change in the 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)(l)(i) and (a)(l)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
R-2
<PAGE>
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 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.
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 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
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.
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 against the Registrant 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.
R-3
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Kleinert's, Inc.
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 Plymouth Meeting, Pennsylvania, on March 14, 1996.
KLEINERT'S, INC.
By: /s/ Joseph J. Connors
-----------------------------
Joseph J. Connors
Executive Vice President
(Principal Accounting and
Financial Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Jack Brier and Joseph Connors,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection herewith, with authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
their substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Jack Brier Director, Chairman
- ------------------------ (Principal Executive March 14, 1996
Jack Brier Officer)
/s/ Kenneth L. Brier Director March 14, 1996
- ------------------------
Kenneth L. Brier
/s/ Joseph J. Connors Executive Vice President
- ------------------------ (Principal Accounting and
Joseph J. Connors Financial Officer) March 14, 1996
/s/ William Forman Director March 14, 1996
- ------------------------
William Forman
/s/ Nathan Greenberg Director March 14, 1996
- ------------------------
Nathan Greenberg
/s/ Marvin Grossman Director March 14, 1996
- ------------------------
Marvin Grossman
/s/ E. Gerald Riesenbach Director March 14, 1996
- ------------------------
E. Gerald Riesenbach
Director March __, 1996
- ------------------------
Jay B. Andrews
- ------------------------ Director March __, 1996
Bernhardt Denmark
R-4
<PAGE>
EXHIBIT INDEX
The following is an index to all exhibits filed with the
Registration Statement other than those previously filed:
Exhibit
Number Description Page
- ------- ----------- ----
5 Opinion of Cozen and O'Connor
re: legality
23(b) Consent of Price Waterhouse LLP
23(c) Consent of Ernst & Young LLP
R-5
<PAGE>
EXHIBIT 5
LAW OFFICES
COZEN AND O'CONNOR
A PROFESSIONAL CORPORATION
ATLANTA, GA THE ATRIUM LOS ANGELES, CA
1900 MARKET STREET
CHARLOTTE, NC PHILADELPHIA, PA 19103 NEW YORK, NY
------
COLUMBIA, SC (215) 665-2000 SAN DIEGO, CA
(800) 523-2900
------
DALLAS, TX FACSIMILE SEATTLE, WA
(215) 665-2013
WESTMONT, NJ
DIRECT DIAL (215) 665-2000
March 14, 1996
Kleinert's, Inc.
Meetinghouse Business Center
120 W. Germantown Pike
Plymouth Meeting, PA 19462
Re: Securities and Exchange Commission -
Registration Statement on Form S-3
Gentlemen:
As counsel to Kleinert's, Inc. (the "Company"), we have
assisted in the preparation of the Company's Registration Statement on Form S-3
(the "Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, covering 150,000 shares of your
common stock, $1.00 par value per share (the "Shares"), to be sold by the
selling shareholder named in the Registration Statement (the "Selling
Shareholder").
In this connection, we have examined and considered the
original or copies, certified or otherwise identified to our satisfaction, of
the Company's Certificate of Incorporation and its By-Laws as each has been
amended to date, resolutions of its Board of Directors and such other documents
and corporate records relating to the Company and the issuance and sale of the
Shares as we have deemed appropriate for the purpose of rendering this opinion.
In our examination of documents, instruments and other papers,
we have assumed the genuineness of all signatures on original and certified
documents and the conformity to original and certified documents of all copies
submitted to us as conformed, photostat or other copies. As to matters of fact
which have not been independently established, we have relied upon
representations of the officers of the Company.
Based upon the foregoing examinations, and the information
supplied, it is our opinion that the Shares to be sold by the Selling
Shareholder are duly authorized, validly issued, fully paid and non-assessable.
We hereby expressly consent to the reference to our firm in
the Registration Statement under the Prospectus caption "Legal Matters," and to
the inclusion of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/S/ COZEN AND O'CONNOR
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 14, 1994 appearing on page 30 of Kleinert's, Inc.'s Annual Report on
Form 10-K for the year ended December 2, 1995. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
/S/ PRICE WATERHOUSE LLP
Philadelphia, PA
March 13, 1996
<PAGE>
Exhibit 23(c)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement Form S-3 of Kleinert's, Inc. for the registration of
150,000 shares of common stock and to the incorporation by reference therein of
our report dated February 9, 1996, with respect to the consolidated financial
statements of Kleinert's, Inc. included in its Annual Report Form 10-K for the
year ended December 2, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, PA
March 14, 1996
