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As filed with the Securities and Exchange Commission on October 17, 1997.
Registration No. 333-34309
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-3
AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CYBEX INTERNATIONAL, INC.
(Exact name of issuer as specified in its charter)
New York 11-1731581
(State of incorporation) (I.R.S. Employer Identification No.)
10 Trotter Drive, Medway, Massachusetts 02053
(508) 533-4300
(Address, including zip code, and telephone number, including
area code, of principal executive offices)
Peter C. Haines,
President and Chief Executive Officer
CYBEX International, Inc.
10 Trotter Drive, Medway, Massachusetts 02053
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
JAMES H. CARLL, ESQUIRE
ARCHER & GREINER, P.C.
ONE CENTENNIAL SQUARE
HADDONFIELD, NJ 08033
(609) 795-2121
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable 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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration Statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[ ]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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4,273,056 Shares
CYBEX INTERNATIONAL, INC.
Common Stock $.10 Par Value
This Prospectus relates to 4,273,056 shares (the "Shares") of common
stock, $.10 par value ("Common Stock"), of CYBEX International, Inc. (the
"Company") issued in the merger (the "Merger") pursuant to the Agreement and
Plan of Merger dated December 27, 1996, as amended (the "Merger Agreement"), by
and among the Company, Cat's Tail, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company ("Cat's Tail"), and Trotter, Inc., a Delaware
corporation ("Trotter"). As result of the Merger, Trotter became the
wholly-owned subsidiary of the Company. See "Recent Transactions and Material
Changes".
All of the shares are being registered on behalf of UM Equity Corp. and UM
Holdings Foundation (the "Selling Stockholders"). The Shares may be offered for
sale from time to time by the Selling Stockholders, or by their pledgees,
donees, transferees or other successors-in-interest, on the American Stock
Exchange ("AMEX"), in the over the counter market, in negotiated transactions or
a combination of such methods of sale at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Stockholders may
affect such transactions by selling the Shares to or through broker/dealers, and
such broker/dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders and/or the purchasers
of the Shares for whom such broker/dealers may act as agents or to whom they
sell as principals, or both (which compensation as to a particular broker/dealer
might be in excess of customary commissions). The Selling Stockholders, upon
affecting a sale of shares of Common Stock, may be considered "underwriters" as
that term is defined by the Securities Act. See "Selling Stockholders" and "Plan
of Distribution".
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear all
expenses (other than selling commissions and fees and expenses of counsel and
other advisors to the Selling Stockholders) in connection with the registration
and sale of the Shares being offered by the Selling Stockholders.
The Shares of Common Stock of the Company are traded on the AMEX. On
August 22, 1997 the closing price for the Shares of Common Stock as reported on
AMEX was $10.13 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS FOR
DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS IN PURCHASING THE SHARES OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
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 October 17, 1997.
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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 periodic reports, proxy statements and other information with
the Commission. The periodic reports, proxy statements and other information
filed by the Company with the Commission may be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, NW, Washington, D.C. 20549, and also are available for inspection 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 60661-2511. Copies of such material can also be obtained, at prescribed
rates, from the public reference section of the Commission, at 450 Fifth Street,
NW, Washington, D.C. 20549. Also, the Commission maintains a Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission, including
the Company, and the address of such site is (http://www.sec.gov). In addition,
periodic reports, proxy statements and other information filed by the Company
may be inspected at the offices of the American Stock Exchange, 86 Trinity
Place, New York, New York 10006-1881.
The Company has filed a Registration Statement on Form S-3 (herein,
together with all amendments and exhibits thereto, the "Registration Statement")
under the Securities Act with respect to the securities offered pursuant to this
Prospectus. This Prospectus does not contain all of the information set forth in
the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. For further information,
reference is made to the Registration Statement and the Exhibits filed as a part
thereof. Statements contained herein concerning any document filed as an exhibit
are not necessarily complete and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement. Each
such statement is qualified in its entirety by such reference.
INCORPORATION BY REFERENCE
The Company will provide without additional charge to each person to whom
a copy of this Prospectus is delivered, including any beneficial owner, upon the
written or oral request of such person, a copy of any or all of the documents
incorporated by reference herein (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into the information
that this Prospectus incorporates). Requests should be directed to:
William S. Hurley
Vice President and Chief Financial Officer
CYBEX International, Inc.
10 Trotter Drive, Medway, Massachusetts 02053
(508) 533-4300
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The following documents previously filed by the Company with the
Commission (file no. 0-4538) are incorporated by reference in this Prospectus
and made a part hereof:
a. Annual Report on Form 10-K for the fiscal year ended December 31, 1996.
b. Amendment No. 1 to the Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed April 23, 1997.
c. Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1997.
d. Current Report on Form 8-K dated May 23, 1997.
e. Amendment No. 1 to the Current Report on Form 8-K dated May 23, 1997,
filed August 6, 1997.
f. Current Report on Form 8-K dated September 10, 1997.
g. Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1997.
h. Proxy Statement dated April 23, 1997, filed pursuant to Section 14 of
the Exchange Act.
i. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act, and any amendment or report filed for the purpose of
updating such description. (file no. 1-8146)
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment to the Registration
Statement relating to the Common Stock offered hereby which indicates that all
such Common Stock has been sold or which deregisters all such Common Stock then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part thereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this document which also is or is deemed to be
incorporated by reference in this Registration Statement, modifies, supersedes,
or replaces such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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RISK FACTORS
In addition to the information contained elsewhere herein and in the
documents incorporated herein by reference, prospective investors should
consider the following factors prior to investing in the Shares.
Difficulties Associated with Integrating Operations of the Company and Trotter
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The Company believes that it can successfully integrate and manage the
combined operations of the Company and Trotter. However, because of the inherent
uncertainties associated with efforts to integrate and manage the operations of
the two companies (e.g., integration of the different distribution channels and
the potential impact of employee turnover), there can be no assurances that any
level of cost savings or operating synergies will be realized, or that there
will not be other expenses or charges to earnings resulting from the combined
operations that were not anticipated. The Company recorded net losses of
$8,535,000 and $7,284,000 for the three and six months ended June 30, 1997,
respectively. The Company's Financial Statements include Trotter's historical
results for the three and six months ended June 30, 1997 and include Cybex's
results from the May 23, 1997 acquisition date to June 30, 1997. The loss for
the three and six months ended June 30, 1997 includes charges for unusual and
nonrecurring merger-related costs of $12,208,000. These costs include (i) a
pre-tax charge of $5,234,000 related to closing of one of Trotter's facilities
and the write-off of acquired research and development and (ii) a pre-tax
charge of $6,974,000 related to conforming to new accounting and operating
policies of the merged company, including reorganizing the Company's domestic
and international sales operations and manufacturing initiatives. The Company
believes certain transition and integration costs will continue through the
remainder of the year.
Control by UME
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UM Equity Corp. ("UME") is the owner of approximately 48.2% of the
outstanding Common Stock of the Company. Accordingly, UME has the ability, by
voting shares of Common Stock, to cause or significantly influence (i) the
election of the Company's Board of Directors and, thus, the direction and future
operations of the Company, and (ii) the outcome of all other matters submitted
to the shareholders of the Company, including mergers, consolidations, and the
sale of all or substantially all of the Company's assets.
Dependence on Key Individuals
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The Company's future success depends in significant part upon the
continued service of certain key individuals, principally Peter Haines, the
Company's President and Chief Executive Officer, and Raymond Giannelli, Vice
President-Research and Development. The Company's future success will also be
dependent in significant part upon the Company's ability to attract and retain
highly qualified managerial, product development and sales and marketing
personnel. Competition for such personnel is intense, and there can be no
assurance that the Company can retain its existing key managerial, technical or
other personnel or that it can attract and retain such
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employees in the future. The loss of key personnel or the inability to hire or
retain qualified personnel in the future could have a material adverse effect
upon the Company's results of operations.
Potential Acquisitions
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In light of continuing consolidation in the fitness industry, as part of
its business strategy, the Company may from time to time acquire assets and
businesses principally relating to or complementary to its operations. Any
acquisitions by the Company will be accompanied by the risks commonly
encountered in acquisitions of companies. Such risks include, among other
things, potential exposure to unknown liabilities of acquired companies or to
acquisition costs and expenses exceeding amounts anticipated for such purposes,
fluctuations in the Company's quarterly and annual operating results due to the
costs and expenses of acquiring and integrating new businesses or technologies,
the difficulty and expense of assimilating the operations and personnel of the
acquired businesses, the potential disruption of the Company's ongoing business
and diversion of management time and attention, the potential failure to achieve
anticipated financial, operating and strategic benefits from such acquisitions,
difficulties in establishing and maintaining uniform standards, controls,
procedures and policies, and the impairment of relationships with and the
possible loss of key employees and customers of acquired businesses as a result
of changes in management and ownership. There can be no assurance that the
Company will be successful in overcoming these risks or any other problems
encountered in connection with such acquisitions.
THE COMPANY
CYBEX International, Inc. (the "Company") designs, develops, manufactures,
sells and distributes premium quality strength training and cardiovascular
equipment for the commercial and consumer markets. The Company's products are
marketed under a number of trademarks leading with the names "CYBEX(R)" or
"Trotter(R)". The Company's wholly-owned finance subsidiary, CYBEX Financial
Corp. ("CFC"), provides capital equipment financing for the Company's products
primarily to its domestic commercial customer base. See "Recent Transactions and
Material Changes" with respect to information pertaining to the Company's recent
merger involving Trotter Inc.
The Company is a New York corporation whose executive offices are located
at 10 Trotter Drive, Medway, Massachusetts 02053, and its telephone number is
(508) 533-4300.
USE OF PROCEEDS
The net proceeds from the sale of the Shares will be received by the
Selling Stockholders or their respective pledgees, donees, transferees or other
successors-in-interest. The Company will not receive any proceeds from any sale
of Shares.
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RECENT DEVELOPMENTS AND MATERIAL CHANGES
On May 23, 1997, in accordance with the Agreement and Plan of Merger (the
"Merger Agreement"), dated December 27, 1996, as amended, by and among the
Company, Cat's Tail, Inc., a Delaware corporation and newly formed wholly-owned
subsidiary of the Company ("Cat's Tail"), and Trotter Inc., a wholly-owned
subsidiary of UME ("Trotter"), Cat's Tail was merged with and into Trotter (the
"Merger"). As a result of the merger, Trotter became a wholly-owned subsidiary
of the Company and UME received 4,273,056 shares of Common Stock in exchange for
all of the outstanding shares of Trotter. In addition, options to purchase
shares of Trotter were exchanged for options to purchase the Common Stock of the
Company. As a result, UME acquired approximately 49.49% of all of the Common
Stock issued and outstanding immediately following the Merger, which, together
with shares attributed to holders of options to acquire Trotter common shares,
equaled 50.001% of all of the Common Stock issued and outstanding immediately
following the Merger, on a fully diluted basis as defined in the Merger
Agreement. See "Selling Stockholders - Relationship between the Company and
UME."
SELLING STOCKHOLDERS
The following table sets forth the name of each Selling Stockholder and
the number of shares of the Company's Common Stock which may be offered by such
Selling Stockholder pursuant to this prospectus. The Shares offered constitute
all of the Shares owned by each Selling Stockholder as of August 15, 1997. All
the Shares were issued to UM Equity Corp. ("UME") in the Merger. UM Holdings
Foundation acquired its shares as a charitable donation from UME.
Selling Stockholder Shares Offered
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UM Equity Corp. 4,173,056
UM Holdings Foundation 100,000
UME is a wholly-owned subsidiary of UM Holdings, Ltd. ("UM"),
substantially all of whose capital stock is owned equally by John Aglialoro and
Joan Carter. John Aglialoro is a director and the Chairman of the Board of the
Company and Ms. Carter is a director and the Vice-Chair and Secretary of the
Company. Mr. Aglialoro and Ms. Carter also are directors and executive officers
of UME and are trustees of UM Holdings Foundation.
Relationship Between the Company and UM
Prior to the Merger, Trotter was an indirect wholly-owned subsidiary of
UM. UM historically provided various administrative services to Trotter,
including accounting, human resources, and computer services, for which
it was charged $63,000 for 1995 and $10,000 for 1996. The Company expects to
perform these services during 1997. Trotter also participated in UM's deferred
savings program for employees pursuant to Section 401(k) of the Internal
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Revenue Code. Trotter was charged $87,000 and $97,000 for 1995 and 1996,
respectively, for profit sharing plan contributions made pursuant to this
program on behalf of its employees. Until May 1996, Trotter participated in UM's
centralized cash management program. Pursuant to this program, Trotter's cash
receipts were remitted to, and cash disbursements were funded by, UM, with UM
retaining any excess cash. In 1996, UM paid $890,000 to Trotter in
reconciliation of accounts upon termination of the program.
Until consummation of the Merger, Trotter was included in the
consolidated income tax filings of UM. Trotter, UM and other subsidiaries of UM
entered into a tax sharing agreement pursuant to which Trotter would pay to UM
amounts equal to the income taxes which Trotter would otherwise have paid had it
filed separate income tax returns. Trotter paid $1,582,000 to UM in 1997 under
this tax sharing agreement. UM has agreed to indemnify Trotter from any
liability pertaining to an adjustment or proposed adjustment of the UM
consolidated tax returns, to the extent pertaining to UM or its subsidiaries
other than Trotter and its subsidiaries; likewise, Trotter has agreed to
indemnify UM from any liability relating to any adjustment or proposed
adjustment to the consolidated tax returns of UM to the extent pertaining to
Trotter or any of its subsidiaries.
In 1995 and 1996, UM loaned to Peter Haines, the President of the
Company, a total of $500,000. This loan is evidenced by an interest-bearing
promissory note payable March 31, 1999 and is secured by a security interest in
Mr. Haines' rights to options granted by the Company.
PLAN OF DISTRIBUTION
Any distribution of the Shares of Common Stock by the Selling
Stockholders, or by their respective pledgees, donees, transferees or other
successors-in-interest, may be affected from time to time in one or more of the
following transactions: (a) to underwriters who will acquire shares of common
stock for their own account and resell them in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale (any public offering price and any
discount or concessions allowed or re-allowed or paid to dealers may be changed
from time to time); (b) through brokers, acting as principal or agent, in
transactions (which may involve block transactions) on the American Stock
Exchange, or on one or more exchanges on which the Common Stock is then listed,
in special offerings, exchange distributions pursuant to the rules of the
applicable exchanges or in the over-the-counter market, or otherwise, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, at negotiated prices or at fixed prices; or (c) directly or
through brokers or agents in private sales at negotiated prices, or by any other
legally available means.
The Selling Stockholders and such underwriters, brokers, dealers or
agents, upon affecting a sale of shares of Common Stock, may be considered
"underwriters" as that term is defined by the Securities Act.
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Underwriters participating in any offering made pursuant to this
Prospectus (as amended or supplemented from time to time) may receive
underwriting discounts and commissions, and discounts or concessions may be
allowed or re-allowed or paid to dealers, and brokers or agents participating in
such transaction may receive brokerage or agents' commissions or fees.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions, if required, only
through registered or licensed brokers or dealers. In addition, in certain
states the Shares may not be sold unless the Shares have been registered or
qualified for sale in such state, or unless an exemption from registration or
qualification is available.
The Company and the Selling Stockholders have agreed that all costs,
expenses and fees in connection with the registration of the Shares will be
borne by the Company. Commissions and discounts, if any, attributable to the
sale of the Shares will be borne by the Selling Stockholders. The Selling
Stockholders may agree to indemnify any agent, dealer or broker dealer that
participates in transactions involving sales of the Shares against certain
liabilities, including liabilities arising under the Securities Act.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Shares offered hereby will be passed upon for the
Company and Selling Stockholders by Archer & Greiner, A Professional
Corporation, Haddonfield, New Jersey. James H. Carll, a member of Archer &
Greiner, is a director of the Company and UME and a trustee of UM Holdings
Foundation.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14. Other Expenses of Issuance and Distribution.
The following is an estimate of the expenses to be incurred in
connection with the issuance and distribution of the securities being
registered, other than the underwriting discounts, commissions, and other
compensation:
SEC registration fee.......................... $ 13,312.82
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Legal fees and expenses....................... $ 5,000.00
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Accountants' fees and expenses................ $ 3,000.00
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Miscellaneous................................. $ 1,687.18
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TOTAL............ $ 23,000.00
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Item 15. Indemnification of Directors and Officers.
The New York Business Corporation Law ("NYBCL") permits indemnification
of a director if the director acted in good faith for a purpose he reasonably
believed to be in, or, in the case of service for any other corporation or
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation (or, with respect to a
criminal action, had no reasonable cause to believe his or her conduct was
unlawful). The NYBCL does not permit a corporation to indemnify directors
against judgments and actions brought by or in the right of the corporation in
which such director was adjudged liable to the corporation. The NYBCL does
permit, however, indemnification for the portion of the settlement amount and
expenses, if the indemnification is ordered by the court. The NYBCL also permits
a corporation to advance expenses upon an undertaking for their repayment if the
person receiving the advance is not ultimately entitled to indemnification.
The NYBCL provides that the statutory provisions are not exclusive of
any other right to indemnification or advancement of expenses that may be
provided in the Certificate of Incorporation or Bylaws or, when authorized by
such Certificate or Incorporation or Bylaws, (i) a resolution of the
Shareholders, (ii) a resolution of the Directors, or (iii) an agreement
providing for such indemnification, provided that no indemnification may be
provided if a judgment or other final adjudication adverse to the director or
officer establishes that his acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained a financial profit or other advantage
to which he was not legally entitled.
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The Company charter permits the corporation to indemnify to the extent
permitted by, and in the manner permissible, under the New York law.
Item 16. Exhibits.
Number Description
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5.1 Opinion of Archer & Greiner, A Professional
Corporation.*
23.1 Consent of Archer & Greiner, A Professional
Corporation - See Exhibit 5.1*
23.2 Consent of Ernst & Young LLP
23.3 Consent of Arthur Andersen LLP
24 Power of Attorney (contained on signature page)
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* Filed with Registration Statement on August 25, 1997
Item 17. Undertakings.
(a) 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 this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement.
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in 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.
(e) The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the Prospectus, to each person to whom the Prospectus
is sent or given, the latest annual report to security holders that is
incorporated 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.
(h) 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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(i) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned 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 Medway, and the Commonwealth of Massachusetts,
on this 17th day of October, 1997.
CYBEX INTERNATIONAL, INC.
By: /s/ Peter C. Haines
-------------------------------------
Peter C. Haines,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below hereby appoints Peter C. Haines, William S.
Hurley, and James H. Carll, and each of them, any one of whom may act without
the joinder of the others, as his attorney-in-fact to sign in his behalf
individually and in the capacity stated below and to file all amendments and
post-effective amendments to this Registration Statement, and any and all
instruments or documents filed as part of or in connection with this
Registration Statement or the amendments thereto, and any of such
attorneys-in-fact may make such changes and additions to this Registration
Statement as such attorney-in-fact may deem necessary or appropriate.
Signature Title Date
/s/ Peter C. Haines
- --------------------- President and Chief October 17, 1997
Peter C. Haines Executive Officer
(Principal executive officer)
/s/ William S. Hurley
- ---------------------- Vice President and Chief October 17, 1997
William S. Hurley Financial Office
(Principal financial
and accounting officer)
13
<PAGE>
/s/ John Aglialoro
- ------------------------ Director October 17, 1997
John Aglialoro
/s/ James H. Carll
- ------------------------ Director October 17, 1997
James H. Carll
/s/ Joan Carter
- ------------------------ Director October 17, 1997
Joan Carter
*
- ------------------------ Director October 17, 1997
Kay Knight Clarke
/s/ Arthur W. Hicks, Jr.
- ------------------------ Director October 17, 1997
Arthur W. Hicks, Jr.
*
- ------------------------ Director October 17, 1997
Thomas W. Kahle
*
- ------------------------ Director October 17, 1997
Jerry Lee
*
- ------------------------ Director October 17, 1997
Robert R. McMillan
*
- ------------------------ Director October 17, 1997
Alan H. Weingarten
*By: /s/ Peter C. Haines
--------------------
Peter C. Haines,
Attorney-in-Fact
14
<PAGE>
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference, in Amendment No. 1 to the
Registration Statement (Form S-3 No. 333-34309) and related Prospectus of CYBEX
International, Inc. for the registration of 4,273,056 shares of its common
stock, of our report dated March 6, 1997, with respect to the consolidated
financial statements of CYBEX International, Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
Melville, New York /s/ ERNST & YOUNG LLP
October 14, 1997
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report on the consolidated
financial statements of Trotter, Inc. dated February 14, 1997 included in
CYBEX International, Inc.'s Proxy Statement dated April 23, 1997 and to all
references to our firm in this registration statement.
Philadelphia, Pa. /s/ ARTHUR ANDERSEN LLP
October 10, 1997
