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REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENCOR INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 59-0933147
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5201 N. ORANGE BLOSSOM TRAIL
ORLANDO, FLORIDA 32810
(Address of Principal Executive Offices)
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1992 STOCK OPTION PLAN; 1996 STOCK OPTION AGREEMENTS;
AND 1997 STOCK OPTION PLAN
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(Full Title of the Plans)
E.J. ELLIOTT
PRESIDENT AND CHAIRMAN OF THE BOARD
GENCOR INDUSTRIES, INC.
5201 N. ORANGE BLOSSOM TRAIL
ORLANDO, FLORIDA 32810
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(Name and Address of Agent For Service)
(407) 290-6000
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(Telephone Number, Including Area Code, of Agent For Service)
WITH COPIES TO:
RANDOLPH H. FIELDS, ESQ.
GREENBERG TRAURIG, P.A.
111 NORTH ORANGE AVENUE, SUITE 2000
ORLANDO, FLORIDA 32801
(407) 420-1000
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE(2)
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<S> <C> <C> <C> <C>
Common Stock, par value $.10 per share (3)... 400,000 $ 2.38(4) $ 952,000.00 $ 280.84
Common Stock, par value $.10 per share (5)... 400,000 $ 2.38(4) $ 952,000.00 $ 280.84
Common Stock, par value $.10 per share (6)... 200,000 $ 1.94(7) $ 388,000.00 $ 114.46
Common Stock, par value $.10 per share (8)... 156,000 $ 1.94(7) $ 302,640.00 $ 89.28
Common Stock, par value $.10 per share (9)... 692,000 $ 1.94(7) $ 1,342,480.00 $ 396.03
Common Stock, par value $.10 per share (10).. 20,000 $16.16(11) $ 323,200.00 $ 95.34
Common Stock, par value $.10 per share (12).. 488,000 $16.16(11) $ 7,886,080.00 $2,326.39
Common Stock, par value $.10 per share (13).. 1,200,000 $16.16(11) $19,392,000.00 $5,720.64
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Total.................. 3,556,000 $31,538,400.00 $9,303.83
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(1) The total amount of shares of Common Stock to be registered consists, in
part, of such number of shares of Common Stock that underlie the conversion
of the Class B Stock to Common Stock on a one-to-one basis. This
Registration Statement also covers such indeterminate number of additional
shares pursuant to Rule 416 as may be issued in respect of stock splits,
stock dividends, anti-dilution provisions and similar transactions.
(2) The Registration Fee is computed based upon the rate of $295 per $1,000,000
of the maximum aggregate price, as set forth in Section 6 of the Securities
Act of 1933, as amended.
(3) Common Stock issuable upon exercise of certain stock options issued
pursuant to the Company's 1992 Stock Option Plan.
(4) The exercise price of the stock options as set by stock option agreements
issued pursuant to the Company's 1992 Stock Option Plan.
(5) Common Stock issuable upon the conversion of Class B Stock issued pursuant
to the exercise of stock options under the Company's 1992 Stock Option
Plan.
(6) Common Stock issuable upon exercise of certain non-qualified stock options
issued in 1996.
(7) The exercise price of the stock options as set by the Company's 1997 Stock
Option Plan or by 1996 Option Agreements.
(8) Common Stock issuable upon the conversion of Class B Stock issuable upon
exercise of certain non-qualified stock options issued in 1996.
(9) Common Stock issuable upon exercise of certain stock options issued
pursuant to the Company's 1997 Stock Option Plan.
(10) Common Stock issued upon exercise of certain stock options issued pursuant
to the Company's 1997 Stock Option Plan.
(11) The market price is estimated at $16.16, solely for the purpose of
calculating the registration fee and is computed in accordance with Rules
457(c) and (h) of the Securities Act of 1933, as amended, on the basis of
the average of the high and low prices reported for the Company's Common
Stock on the consolidated reporting system for the American Stock Exchange
("Amex") as of the close of business on August 13, 1998.
(12) Common Stock issuable upon exercise of ungranted stock options issuable
pursuant to the Company's 1997 Stock Option Plan.
(13) Common Stock issuable upon the conversion of Class B Stock issued pursuant
to the exercise of stock options under the Company's 1997 Stock Option
Plan.
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PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Part I of Form S
- -8 will be sent or given to participants in the 1992 Stock Option Plan (the
"1992 Plan"), the 1996 Stock Option Agreements (the "Option Agreements") and the
1997 Stock Option Plan (the "1997 Plan") of Gencor Industries, Inc. (the
"Company" or "Gencor"), as specified by Rule 428 (b) (1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"). Hereinafter the 1992 Plan and the
1997 Plan may be collectively referred to as the "Plans." The Plans and the
Option Agreements may be collectively referred to hereinafter as the "Option
Plans." Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible participants pursuant to Rule 428 (b) or
additional information about the Gencor Industries, Inc. Option Plans and their
administrators are available without charge by contacting:
Gencor Industries, Inc.
5201 N. Orange Blossom Trail
Orlando, Florida 32810
Attention: Corporate Secretary
(407) 290-6000
EXPLANATORY NOTE
The Reoffer/Resale Prospectus which is filed as a part of this
Registration Statement has been prepared in accordance with the requirements of
Part I of Form S-3 and may be used for reoffers or resales of the shares of
Common Stock (as hereinafter defined) of the Company acquired by the persons
named therein pursuant to each of the Option Plans.
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REOFFER/RESALE PROSPECTUS
GENCOR INDUSTRIES, INC.
3,556,000 SHARES COMMON STOCK
($.10 Par Value)
ISSUED PURSUANT TO THE GENCOR INDUSTRIES, INC. 1992 STOCK OPTION PLAN,
1996 STOCK OPTION AGREEMENTS AND 1997 STOCK OPTION PLAN
This Reoffer Prospectus (the "Prospectus") is being used in connection with
the reoffer or resale of shares of common stock, $.10 par value ("Common Stock")
of Gencor Industries, Inc., a Delaware corporation (the "Company" or "Gencor")
by certain directors, executive officers and key employees of the Company (named
under the caption and hereafter called "Selling Stockholders"), some of whom are
"affiliates" (as that term is defined in Rule 405 promulgated under the
Securities Act), who hold or may acquire shares of Common Stock issued pursuant
to the Gencor Industries, Inc. 1992 Stock Option Plan (the "1992 Plan"), the
1996 Stock Option Agreements (the "Option Agreements") and the 1997 Stock Option
Plan (the "1997 Plan")(the 1992 Plan and the 1997 Plan may sometimes be referred
to collectively as the "Plans") (the Plans and the Option Agreements may
sometimes be referred to collectively as the "Option Plans").
Those shares of Common Stock that have been acquired pursuant to an
exercise of options granted under the Option Plans shall constitute "restricted
securities" as defined in Rule 144(a)(3) promulgated under the Securities Act.
The Common Stock that may be acquired pursuant to the terms and conditions of
the Option Plans by those Selling Stockholders who are also "affiliates" shall
constitute "control securities" as defined by Section C of the General
Instructions to Form S-8.
Shares of Common Stock may be sold from time to time by a Selling
Stockholder directly to purchasers. Alternatively, a Selling Stockholder may
sell shares of Common Stock in one or more transactions (including block
transactions) on the American Stock Exchange ("AMEX"), in transactions occurring
in the public market off the AMEX, in privately negotiated transactions or in a
combination of such transactions. Each sale may be made either at market prices
prevailing at the time of such sale, at negotiated prices or at fixed prices,
which may be changed. Shares may be sold by Selling Stockholders through brokers
acting on behalf of such Selling Stockholders or to dealers for resale by such
dealers, and in connection with such sales, such brokers or dealers may receive
compensation in the form of discounts or commissions from such Selling
Stockholders and/or the purchasers of such shares for whom they may act as
broker or agent (which discounts or commissions may exceed those customary in
the types of transactions involved). In addition, any shares covered by this
Prospectus that qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus.
All expenses of registration incurred in connection with this offering are
being borne by the Company, but all brokerage commissions and other selling
expenses incurred by a Selling Stockholder will be borne by such Selling
Stockholder. The Company will not be entitled to any of the proceeds from any
sales of Common Stock by the Selling Stockholders, although the Company will
receive payment upon exercise of any options under which shares of Common Stock
are acquired for cash by a Selling Stockholder.
The capital stock of the Company consists of Common Stock and Class B
Stock. Each share of Common Stock and Class B Stock is entitled to one vote per
share on all matters, except that, with respect to the election of directors,
holders of Class B Stock, voting separately as a class, may elect 75% of the
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members of the board of directors, and holders of Common Stock, voting
separately as a class, may elect the remaining 25% of the members of the board
of directors.
The Company's Common Stock is listed on the AMEX under the symbol "GX." On
August 7, 1998, the last reported sale price of the Common Stock on the AMEX
Composite Tape was $16.9375 per share.
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SEE "RISK FACTORS" BEGINNING ON PAGE 6 HEREOF FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE COMMON
STOCK.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is August 18, 1998.
[THIS AREA INTENTIONALLY LEFT BLANK]
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NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE 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 ANY SELLING STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE
ANY OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY SECURITIES 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. NEITHER
THE DELIVER 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.
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 can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices
located at Seven World Trade Center, 13th Floor, New York, New York 10048 and
500 West Madison Street, Suite 1400, Chicago, Illinois 60061. Copies of such
material can also be obtained at prescribed rates by writing the Commission,
Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a Web site, the address of which is http://www.sec.gov,
that contains reports, proxy and information statements and other information
regarding registrants, including the Company, that file electronically with the
Commission. The Company's Common stock is listed on the American Stock Exchange,
and reports, proxy statements and other information concerning the Company may
also be inspected at the offices of the American Stock Exchange, Inc., 86
Trinity Place, New York, New York 10006-1881.
The Company has filed with the Commission a registration statement (the
"Registration Statement," which term shall include any amendments thereto) on
Form S-8 under the Securities Act, with respect to the shares of Common Stock
offered hereby. This Prospectus does not contain all the information set forth
in the Registration Statement and the exhibits and schedules thereto, certain
parts of which are ommitted in accordance with the rules and regulations of the
Commission, and to which reference is hereby made. For further information,
reference is hereby made to the Registration Statement and the exhibits and
schedules thereto.
TABLE OF CONTENTS
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Available Information.................................................. 3
Incorporation of Certain Documents By Reference........................ 3
The Company............................................................ 4
Risk Factors........................................................... 5
Use of Proceeds........................................................ 10
Selling Shareholder.................................................... 10
Plan of Distribution................................................... 12
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
(File No. 1-11703) pursuant to the Exchange Act are incorporated by reference in
this Registration Statement and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended September
30, 1997 and Form 10-K/A (Amendment No. 1) to said Form 10-K filed
January 20, 1998;
2. The Company's Quarterly Reports on Form 10-Q for the periods ended
December 31, 1997 and March 31, 1998; and
3. The Company's Current Reports on Form 8-K dated October 27, 1997 and
November 20, 1997.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, 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 any document incorporated or deemed to be incorporated
shall be deemed to be modified or superseded for all purposes of this Prospectus
to the extent that a statement contained in this Prospectus or in any
subsequently filed document which also is deemed to be incorporated by
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reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus. Any such statement so modified shall
not be deemed to constitute a part of this Prospectus except as so modified, and
any statement so superseded shall not be deemed 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 has been delivered, upon written or oral request
of such person, a copy of any and all of the information that has been
incorporated by reference in the Prospectus (other than exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Requests should be directed to Secretary, Gencor Industries,
Inc., at the Company's principal executive offices, 5201 N. Orange Blossom
Trail, Orlando, Florida 32810, telephone number (407) 290-6000. Persons
requesting copies of exhibits to such documents that were not specifically
incorporated by reference in such documents will be charged the costs of
reproduction and mailing.
This Prospectus includes trade names and trademarks of companies other than
Gencor. The use of any such third party trade name or trademark herein is an
editorial fashion only, and to the benefit of the owner thereof, with no
intention of commercial use or infringement of such trade name or trademark.
THE COMPANY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND CONSOLIDATED FINANCIAL STATEMENTS AND NOTES THERETO APPEARING
ELSEWHERE IN THIS PROSPECTUS OR INCORPORATED HEREIN BY REFERENCE.
The Company is a leading manufacturer of process machinery for a wide
variety of end-markets. Products include machinery used in the production of
highway construction materials such as hot-mix asphalt, and machinery used to
produce food products such as pelletized animal feeds, edible oils, sugar and
citrus juices. The Company believes it has significant market share positions in
its principal product lines. The Company's products are manufactured in 13
plants in the United States, Asia, Australia, Europe and South America and are
sold through a combination of Company sales representatives, independent dealers
and agents located throughout the world. The Company operates in two business
groups: the Construction Equipment Group ("CEG") and the Consolidated Process
Machinery Group ("CPM"). The core product in each group is "process machinery,"
designed to process and transform bulk materials into end products. As a result
of the similar technologies shared by both business groups, the Company believes
it is realizing operational synergies.
CEG designs and manufactures machinery and related equipment used for the
production of asphalt and highway construction materials. CEG's principal
products include asphalt plants, combustion systems and fluid heat transfer
systems. CEG's technical and design capabilities, environmentally friendly
process technology and wide range of products have enabled it to become a
leading producer of asphalt production equipment worldwide. CEG's products are
sold primarily to the highway construction industry. The principal factors
driving demand for CEG's products are the level of government funding for
domestic highway construction and repair, infrastructure development in emerging
economies, the need for spare parts and a trend towards larger plants (e.g. drum
mix asphalt production) resulting from asphalt production plant consolidation.
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CPM designs and manufactures process machinery used in the production of
scientifically compounded animal feeds, edible oils, sugar and fruit juice
concentrates. CPM's products include pellet mills, crushers, flakers, grinders,
crystallizers, centrifuges and equipment used to concentrate juices, including
presses, evaporators, heat exchangers and dryers. CPM's products are sold
primarily to commercial agricultural companies, integrated food producers, feed
mills and food processing companies. CPM's machinery enables its customers to
manufacture food products more efficiently and is a widely accepted method of
scientifically processing animal feed. Over the past several years, the domestic
food processing machinery industry has experienced strong growth, partly as a
result of rising demand from overseas markets which are increasingly adopting
U.S. food production technologies. The Company believes that as living standards
continue to improve worldwide, particularly in emerging economies, and the
fragmented food processing industry continues to consolidate, demand will
continue to grow for CPM's products.
The Company's executive offices are located at 5201 North Orange Blossom
Trail, Orlando, Florida 32810, telephone (407) 290-6000.
RISK FACTORS
This Prospectus and certain of the documents incorporated herein by
reference contain forward-looking statements that involve risks and
uncertainties. Statements in this Prospectus regarding future financial
performance and other statements containing the words "expect," "believe,"
"anticipate," "project," "estimate," "predict," "intend" and similar expressions
are forward-looking statements. The Company's actual results could differ
materially from those anticipated in such forward-looking statements as a result
of a variety of factors, including those set forth in the following risk factors
and elsewhere in this Prospectus. Prospective investors should consider
carefully the following factors, in addition to other information contained in
this Prospectus, prior to making an investment in the Common Stock.
INTERNATIONAL EXPOSURE. International operations account for a significant
portion of its business and the Company anticipates that this will continue to
be the case for the foreseeable future. As a result, the Company may be subject
to certain risks, including difficulty in staffing and managing foreign
subsidiary operations, difficulty in managing distributors and dealers, adverse
tax consequences, political and economic instability of governments, and
difficulty in accounts receivable collection. The Company is subject to the
risks associated with the imposition of protective legislation and regulations,
including those relating to import or export or otherwise resulting from trade
or foreign policy, in the nations in which it now or in the future will conduct
business. The Company cannot predict whether quotas, duties, taxes or other
charges or restrictions will be implemented by the U.S. or any other country
upon the import or export of the Company's products. There can be no assurance
that any of these factors, or the adoption of restrictive policies, will not
have a material adverse effect on the Company's business, financial condition
and results of operations. In addition, the Company denominates some sales by
foreign subsidiaries in local currency, and an increase in the relative value of
the dollar against such currencies may lead to a reduction in sales and
earnings. The Company's foreign currency exposures generally are not hedged and
there can be no assurance that the Company's future results of operations and
investments will not be adversely affected by currency fluctuations.
ACQUISITION STRATEGY; INTEGRATION OF ACQUIRED BUSINESSES. As part of its
growth strategy, the Company intends to evaluate the acquisitions of other
companies, assets or product lines that would complement or expand its existing
businesses or broaden its customer relationships. Although the Company conducts
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due diligence reviews of potential acquisition candidates, the Company may not
be able to identify all material liabilities or risks related to potential
acquisition candidates. There can be no assurance that the Company will be able
to locate and acquire any business, retain key personnel and customers of an
acquired business or integrate any acquired business successfully, including the
recent acquisitions of PED, Gumaco and ACP. Additionally, there can be no
assurance that financing for any acquisition, if necessary, will be available on
acceptable terms, if at all, or that the Company will be able to accomplish its
strategic objectives in connection with any acquisition. Although the Company
periodically considers possible acquisitions, no specific acquisitions are
probable as of the date of this Prospectus.
INDEBTEDNESS; FINANCIAL COVENANTS. The outstanding debt of the Company
represents a significant percentage of its total capitalization. The Company's
strategy contemplates continued strategic acquisitions, and a portion of the
cost of such acquisitions may be financed through additional indebtedness. There
can be no assurance that financing will continue to be available on terms
acceptable to the Company or at all. In the absence of such financing, the
Company's ability to respond to changing business and economic conditions, to
fund scheduled investments and capital expenditures, to make future acquisitions
and to absorb adverse operating results may be adversely affected.
The Senior Secured Credit Agreement dated December 10, 1996, as amended to
date (the "Credit Facility") between the Company and the lenders party thereto
imposes certain financial and operating covenants upon the Company, including,
among others, restrictions on the ability of the Company to incur debt, or take
certain other corporate actions. The Credit Facility also limits the amount of
cash dividends that the Company may pay to a maximum of $250,000 per year,
subject to compliance with other loan covenants. In addition, the Credit
Facility requires that the Company maintain certain financial ratios and
provides for limitations on capital expenditures. The foregoing covenants may
restrict the Company's ability to obtain additional funds, dispose of assets, or
otherwise pursue its business strategies, and may impair the Company's ability
to obtain additional financing to fund future working capital requirements,
capital expenditures, acquisitions and other general corporate purposes. Changes
in economic or business conditions, results of operations or other factors could
in the future cause a violation of one or more covenants in the Credit Facility.
CYCLICALITY OF DEMAND FOR COMPANY PRODUCTS. Demand for the Company's
products depends in part upon the level of capital and maintenance expenditures
by its industrial customers, in particular those by the highway construction
industry, commercial agricultural companies, integrated food producers, feed
mills and food processing and production companies. These industries
historically have been cyclical in nature and vulnerable to general downturns in
the economy. Decreases in industry spending could have a material adverse effect
upon demand for the Company's products and the Company's business, financial
condition and results of operations.
The agricultural industry serviced by the Company is susceptible to
fluctuations caused by adverse weather, natural disasters, disease, governmental
policies and similar adversities and factors beyond the Company's control. For
example, as a result of the slaughter of animals caused by Mad Cow Disease and
Swine Flu, there was a reduction of shipments of pelleting equipment to Europe
by the Company's food processing division in the first six months of fiscal
1998. In addition, the effect on the Brazilian orange crop of adverse weather
during the 1997 growing season may impact demand for the Company's products by
the Brazilian citrus industry. General downturns in the agricultural sector, as
well as the highway construction industry, could have a material adverse effect
on the Company's business, financial condition and results of operations.
6
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QUARTERLY VARIATIONS OF OPERATING RESULTS. The Company's operating results
historically have fluctuated from quarter to quarter as a result of a number of
factors, including the value, timing and shipment of individual orders and the
mix of products sold. Moreover, although revenues from certain large system
contracts are recognized using the percentage of completion method of
accounting, the Company generally recognizes product revenues upon shipment of
its products. Accordingly, revenue in any quarter is primarily dependent on
product shipment. The Company's asphalt production equipment operations are
subject to seasonal fluctuation, which may lower sales and result in possible
losses in the first and fourth fiscal quarters of each year. Traditionally,
asphalt producers do not purchase new equipment for shipment during the summer
and fall months to avoid disruption of their activities during peak periods of
highway construction. Pelleting and other food production equipment products are
less seasonal, but may result in lower demand in the second and third fiscal
quarters. The Company expects seasonality to have less of an influence on future
results of operations as it continues to add new companies and products and to
grow in international markets. However, there can be no assurance that such
additions and growth will reduce the seasonality of its product lines.
COMPETITION. The highway construction machinery and food process machinery
industries are highly competitive. In each of the lines of business in which the
Company provides goods and services, it competes with a variety of companies,
many of which have greater financial and other resources than the Company, or
are subsidiaries or divisions of larger organizations. In addition, the Company
may encounter competition from new market entrants. There can be no assurance
that competitors will not take actions, including developing new products, which
could adversely affect the Company's sales and operating results.
DEPENDENCE ON KEY PERSONNEL. The success of the Company's business will
continue to depend substantially upon the efforts, abilities and services of its
executive officers and certain other key employees. The loss of one or more key
employees could adversely affect the Company's operations. The Company's ability
to attract and retain qualified engineers and other professionals, either
through direct hiring, or acquisition of other businesses employing such
professionals, will also be an important factor in determining the Company's
future success.
INTELLECTUAL PROPERTY MATTERS. The Company holds numerous patents covering
technology and applications related to various products, equipment and systems,
and numerous trademarks and trade names registered with the U.S. Patent and
Trademark Office and in various foreign countries. There can be no assurance as
to the breadth or degree of protection that existing or future patents or
trademarks may afford the Company, or that any pending patent or trademark
applications will result in issued patents or trademarks, or that the Company's
patents, registered trademarks or patent applications, if any, will be upheld if
challenged, or that competitors will not develop similar or superior methods or
products outside the protection of any patents issued, licensed or sublicensed
to the Company. Although the Company believes that none of its patents,
technologies, products or trademarks infringe upon the patents, technologies,
products or trademarks of others, it is possible that its existing patent,
trademark or other rights may not be valid or that infringement of existing or
future patents, trademarks or proprietary rights may occur. In the event that
the Company's products are deemed to infringe upon the patent or proprietary
rights of others, the Company could be required to modify the design of its
products, change the name of its products or obtain a license for the use of
certain technologies incorporated into its products. There can be no assurance
that the Company would be able to do any of the foregoing in a timely manner,
upon acceptable terms and conditions, or at all, and the failure to do so could
have a material adverse effect on the Company. In addition, there can be no
7
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assurance that the Company will have the financial or other resources necessary
to enforce or defend a patent, registered trademark or other proprietary right,
and, if the Company's products are deemed to infringe upon the patents,
trademarks or other proprietary rights of others, the Company could become
liable for damages, which could also have a material adverse effect on the
Company.
PRODUCT LIABILITY. The Company is engaged in a business that could expose
it to possible liability claims for personal injury or property damage due to
alleged design or manufacturing defects in the Company's products. The Company
believes that it meets existing professional specification standards recognized
or required in the industries in which it operates, and has had no material
product liability claims brought against it as of the date hereof. Although the
Company currently maintains product liability coverage which it believes is
adequate for the continued operation of its business, such insurance may prove
inadequate or become difficult to obtain or unobtainable in the future on terms
acceptable to the Company.
ENVIRONMENTAL MATTERS. The Company's operations are subject to federal,
state, local and foreign laws and regulations relating to the protection of the
environment. Sanctions for noncompliance may include revocation of permits,
corrective action orders, administrative or civil penalties and criminal
prosecution. The Company's business involves environmental management and issues
typically associated with historical manufacturing operations. To date, the
Company's cost of complying with environmental laws and regulations has not been
material, but the fact that such laws or regulations are changed frequently
makes predicting the cost or impact of such laws and regulations on its future
operations uncertain.
SUPPLY AND PRICE OF RAW MATERIALS. The principal raw materials used by the
Company are steel and related products. The Company has no long-term supply
agreements with any of its major suppliers. However, the Company has generally
been able to obtain sufficient supplies of raw materials for its operations, and
changes in prices of such materials historically have not had a significant
effect on its operations. Although the Company believes that such raw materials
are readily available from alternate sources, an interruption in the Company's
supply of steel and related products or a substantial increase in the price of
any of these raw materials could have a material adverse effect on the Company's
business, financial condition and results of operations.
SYNTHETIC FUEL INVESTMENT. Whether or not the Company will realize
economic benefits from its equity interest in Carbontronics, LLC
("Carbontronics") will depend, among other factors, on Carbontronics' four
synthetic fuel production plants ("Fuel Plants") being able to qualify for tax
credits under Section 29 of the Code and on the ability to produce and
successfully market synthetic fuel, if any, produced by the Fuel Plants.
Qualification for tax credits with regard to the synthetic fuel projects
requires satisfying a number of statutory criteria, and there can be no
guarantee that all of these criteria will be met. Failure to meet the statutory
requirements for any project could lead to the disqualification for tax credits.
Tax credits are based on the heating value of the synthetic fuel produced and
sold to unrelated parties.
Construction of each Fuel Plant's related feed stock preparation facility
involves a substantial number of risks, including shortages of equipment,
material and labor, work stoppages, labor disputes, weather interference,
unforeseen engineering, environmental and geological problems and unanticipated
cost increases. Difficulties in obtaining or maintaining any requisite licenses
or permits could adversely affect the Company's Carbontronics holdings. The Fuel
Plant technology and equipment manufactured by the Company has only recently
8
<PAGE>
been developed and there can be no assurance that any of the Fuel Plants will
operate as intended or that the technology to be employed in the projects will
result in commercially viable synthetic fuel products. Operation of the Fuel
Plants involves various risks, including the potential for breakdown or failure
of equipment, the inability to obtain adequate supplies of suitable feed stock
or binder material, or performance of the equipment below expected levels of
output or efficiency, failure to keep on hand adequate supplies of spare parts
or other raw materials, operator error, utility unavailability and catastrophic
events such as fires, floods and earthquakes. There is no assurance that the
synthetic fuel to be produced by the Fuel Plants can be marketed at prices and
on terms that are financially advantageous.
The synthetic fuel projects will be required to comply with a number of
statutes and regulations relating to the health and safety of personnel and the
public, including the identification, generation, storage, handling,
transportation, disposal, record keeping, relating and reporting of and
emergency response in connection with materials relating to the facility that
may be hazardous or toxic, safety and health standards, practices and procedures
applicable to construction and operation of the facility, and environmental
protection requirements including standards and limitations relating to the
discharge of air and water pollutants and discharge of solid waste.
GOVERNMENT REGULATIONS. The Company is subject to a variety of
governmental regulations relating to the manufacturing of the Company's
products. Any failure by the Company to comply with present or future
regulations could subject it to future liabilities, or the suspension of
production that could have a material adverse effect on the Company's results of
operations. Such regulations could also restrict the Company's ability to expand
its facilities, or could require the Company to acquire costly equipment or to
incur other expenses to comply with such regulations. Although the Company
believes it has the design and manufacturing capability to meet all industry or
governmental agency standards that may apply to its product lines, including all
domestic and foreign environmental, structural, electrical and safety codes,
there can be no assurance that governmental laws and regulations will not become
more stringent over time, imposing greater compliance costs and increasing risks
and penalties associated with a violation. The cost to the Company of such
compliance to date has not materially affected the Company's business, financial
condition or results of operations. There can be no assurance, however, that
violations will not occur in the future as a result of human error, equipment
failure or other causes. The Company's customers are also subject to extensive
regulations, including those related to the workplace. The Company cannot
predict the nature, scope or effect of governmental legislation, or regulatory
requirements that could be imposed or how existing or future laws or regulations
will be administered, or interpreted. Compliance with more stringent laws or
regulations, as well as more vigorous enforcement policies of regulatory
agencies, could require substantial expenditures by the Company and could
adversely affect the Company's business, financial condition and results of
operations.
YEAR 2000 COMPLIANCE. Many existing computer systems and applications, and
other control devices use only two digits to identify a year in the date field,
without considering the impact of the upcoming change in the century. As a
result, such systems and applications could fail or create erroneous results
unless corrected so that they can process data related to the year 2000. The
Company relies on its computer systems, applications and devices in operating
and monitoring all major aspects of its business, including financial systems,
customer services, infrastructure, embedded computer chips, networks and
telecommunications equipment and end products. The Company is in the process of
upgrading its software to address the year 2000 issue. The Company currently
estimates that the costs associated with the year 2000 issue, and the
9
<PAGE>
consequences of incomplete or untimely resolution of the year 2000 issue, will
not have a material adverse effect on the results of operations or financial
position of the Company.
EFFECTIVE VOTING CONTROL BY PRINCIPAL STOCKHOLDERS. The Company's
executive officers and directors beneficially own an aggregate of approximately
96.0% of the outstanding shares of the Company's $.10 par value Class B Stock
("Class B Stock"). The Class B Stock is entitled to elect 75% (calculated to the
nearest whole number, rounding five-tenths to next highest whole number) of the
members of the board of directors of the Company. As a result, these
stockholders can elect more than a majority of the board of directors of the
Company and exercise significant influence over most matters requiring approval
by the Company's stockholders. This concentration of control may also have the
effect of delaying or preventing a change in control of the Company.
USE OF PROCEEDS
This Prospectus relates to shares of Common Stock being offered and sold
for the accounts of the Selling Stockholders. The Company will not receive any
proceeds from the sale of the Common Stock but will pay all expenses related to
the registration of the shares.
SELLING STOCKHOLDERS
The shares of Common Stock to which this Prospectus relates are being
registered for reoffers and resales by Selling Stockholders of the Company who
may acquire such shares under the Option Plans. The Selling Stockholders named
below may resell all, a portion, or none of such shares. There is no assurance
that any of the Selling Stockholders will sell any or all of the shares of
Common Stock offered by them hereunder.
Participants under the Option Plans who are deemed to be "affiliates"
of the Company who acquire shares of Common Stock under the Option Plans may be
added to the Selling Stockholders listed below from time to time by use of a
prospectus supplement filed pursuant to Rule 424(b) under the Securities Act.
In addition, certain unnamed non-affiliates of the Company may use
this Prospectus for reoffers and resales of the shares of Common Stock
registered pursuant to the Registration Statement of which this Prospectus is a
part, provided that such non-affiliates hold less than 1,000 shares issuable
under each Plan.
The following table shows (i) the name of the Selling Stockholders who
may be considered "affiliates" of the Company within the meaning of the
Securities Act (the "Affiliates") and the names of the Selling Stockholders who
hold at least 1,000 shares of Common Stock pursuant to the exercise of their
rights under the Option Plans; (ii) the number of shares of Common Stock held by
each Affiliate as of August 5, 1998; (iii) the number of such shares of Common
Stock covered by this Prospectus; and (iv) the amount and the percentage of the
Common Stock to be owned by each Selling Stockholder after completion of this
offering, assuming the sale of all shares of Common Stock covered by this
Prospectus:
10
<PAGE>
<TABLE>
<CAPTION>
SHARES
SHARES BENEFICIALLY BEING
OWNED (1) OFFERED(2)
---------------------------------------------------- ------------
COMMON
COMMON STOCK CLASS B STOCK STOCK
-------------------------- ----------------------- ------------
NUMBER PERCENT NUMBER PERCENT NUMBER
-------------- ----------- -------- ------------- ------------
NAME
<S> <C> <C> <C> <C> <C>
E. J. Elliott........................ 1,751,080(3) 22.4% 1,397,296 79.1% 780,000
John E. Elliott...................... 468,096(4) 6.6% 495,520(5) 22.7% 418,000(6)
David F. Brashears................... 129,824(7) 1.8% * * 60,000
D. William Garrett................... 100,456(8) 1.4% * * 60,000
Russell R. Lee, III.................. 80,000(9) 1.1% * * 80,000
Marc G. Elliott...................... 120,000(4) 1.7% 465,520(5) 21.3% 418,000(6)
Jacky Brenahan....................... 21,000(10) * * * 20,000
<CAPTION>
SHARES BENEFICIALLY OWNED AFTER OFFERING
-----------------------------------------------------------------
COMMON STOCK CLASS B STOCK
------------------------------ -------------------------------
NUMBER PERCENT NUMBER PERCENT
------------------ ---------- ---------- ------------------
NAME
<S> <C> <C> <C> <C>
E. J. Elliott........................ 917,080 12.4% 1,397,296 19.8%
John E. Elliott...................... 468,096 6.6% 77,520 1.1%
David F. Brashears................... 69,824 1.0% 0 *
D. William Garrett................... 40,456 * 0 *
Russell R. Lee, III.................. 0 * 0 *
Marc G. Elliott...................... 120,000 1.7% 47,520 *
Jacky Brenahan....................... 1,000 * 0 *
</TABLE>
- ---------------
* Indicates less than 1% ownership.
(1) In accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as
amended, shares that are not outstanding, but that are subject to option,
warrants, rights or conversion privileges exercisable within 60 days of the
date of this Prospectus have been deemed to be outstanding for the purpose
of computing the percentage of outstanding shares owned by the individual
having such right but have not been deemed outstanding for the purpose of
computing the percentage for any other person.
(2) This does not constitute a commitment to sell any or all of the stated
number of shares of Common Stock. The number of shares offered shall be
determined from time to time by each Selling Stockholder at his or her sole
discretion. This Registration Statement pertains to the Company's Common
Stock that (i) underlies the stock options granted pursuant to the Option
Plans (ii) underlies the stock options that have not yet been granted but
which the Company may issue under the terms and conditions of the Option
Plans, (iii) were obtained upon exercise of stock options granted pursuant
to the Option Plans and (iv) were obtained upon the conversion of the
shares of Class B Stock that were issued pursuant to the exercise of stock
options granted under the Option Plans. The 1992 Plan authorized up to
400,000 shares of Common Stock and 400,000 shares of Class B Stock as
available of stock option grants thereunder. The 1996 Option Agreements
granted 200,000 options for the purchase of 200,000 shares of Common Stock
and 156,000 options for the purchase of Class B Stock. The 1997 Plan
authorized up to 1,200,000 shares of Common Stock and 1,200,000 shares of
Class B Stock as available of stock option grants thereunder.
(3) Includes 120,000 shares owned jointly with John Elliott, 120,000 shares
owned jointly with Marc Elliott and 380,000 shares of Common Stock issued
to E.J. Elliott pursuant to the exercise of certain stock options granted
under the 1992 Plan. Also includes options to purchase 780,000 shares of
Common Stock.
(4) Includes 120,000 shares owned jointly with E.J. Elliott.
(5) Includes options to purchase 418,000 shares of Class B Stock.
(6) Assumes the exercise of 218,000 options to purchase Class B Stock and the
subsequent conversion of the 218,000 shares of Class B Stock along with the
200,000 shares of Class B Stock previously obtained through the
11
<PAGE>
exercise of certain options granted under the Option Plans to Common Stock
and the subsequent sale thereof.
(7) Includes options to purchase 60,000 shares of Common Stock.
(8) Includes options to purchase 60,000 shares of Common Stock.
(9) Includes options to purchase 80,000 shares of Common Stock.
(10) Includes 20,000 shares of Common Stock issued to Jacky Brenahan pursuant to
the exercise of certain stock options granted under the 1997 Plan.
The preceding table reflects all Selling Stockholders who are also
Affiliates and who are eligible to reoffer and resell Common Stock, whether or
not they have a present intent to do so. At the date of this Prospectus, the
Company does not know the names of all the persons who intend to resell shares
of Common Stock of the Company to be acquired pursuant to the Option Plans.
There can be no assurance that any of the Selling Stockholders will sell any or
all of the Common Stock offered by them hereunder. The Selling Stockholders will
be directors, employees or executive officers of the Company or its subsidiaries
who have been or may be granted options under the Option Plans. The Company will
supplement this Prospectus with the names of additional Selling Stockholders not
shown in the table above and the amount of shares of Common Stock to be
reoffered by them as that information becomes known, unless such Selling
Stockholders are not Affiliates and are selling no more than 1,000 shares
issuable under each plan, or unless the aggregate holdings of the non-Affiliated
group not shown in the table is less than 1% of the class of total shares
registered hereby.
PLAN OF DISTRIBUTION
Since the Selling Stockholders may offer all or part of the shares of
Common Stock which they may hold upon exercise of options, and since this
offering is not being underwritten on a firm commitment basis, no estimate can
be given as to the amount of shares of Common Stock to be offered for sale by
the Selling Stockholders.
The Selling Stockholders may sell or distribute some or all of the shares
of Common Stock offered by this Prospectus from time to time through dealers or
brokers or directly to one or more purchasers, including pledgees, in
transactions (which may involve block transactions) on the AMEX, in transactions
occurring in the public market off the AMEX, privately negotiated transactions
(including sales pursuant to pledges), or in a combination of such transactions.
Such transactions may be effected by the Selling Stockholders at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices, or at fixed prices, which may be changed. Brokers
or dealers participating in such transactions as agents may receive compensation
in the form of discounts, concessions or commissions from the Selling
Stockholders (and, if they act as agent for the purchasers of such shares, from
such purchasers). Such discounts, concessions or commissions as to a particular
broker or dealer might be in excess of those customary in the type of
transaction involved. This Prospectus also may be used, with the Company's
consent, by donees of the Selling Stockholders, or by other persons acquiring
shares and who wish to offer and sell such shares under circumstances requiring
or making desirable its use. In addition, any securities covered by this
Prospectus which qualify for sale pursuant to Rule 144 of the
12
<PAGE>
Securities Act, may be sold under Rule 144 rather than pursuant to this
Prospectus.
The Selling Stockholders and any such brokers or dealers that participate
in such distribution may be deemed to be "underwriters" within the meaning of
the Securities Act, and any discounts, commissions or concessions received by
any such brokers or dealers might be deemed to be underwriting discounts and
commissions under the Securities Act. Neither the Company nor the Selling
Stockholders can presently estimate the amount of such compensation. The Company
knows of no existing arrangements between any Selling Stockholders and any other
Selling Stockholder, broker or dealer relating to the sale or distribution of
the shares.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of any of the shares may not simultaneously engage in
market activities with respect to the Common Stock for a period of five business
days prior to the commencement of such distribution. In addition and without
limiting the foregoing, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including Regulation M, which provisions may limit the timing of purchases and
sales of any of the shares by the Selling Stockholders. All of the foregoing may
affect the marketing of the Common Stock.
The Company will pay substantially all of the expenses incident to this
offering of the shares by the Selling Stockholders to the public other than
commissions and discounts of underwriters, brokers, dealers or agents. Each
Selling Stockholder may indemnify any broker or dealer that participates in
transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act.
In order to comply with certain states' securities laws, if applicable, the
shares will be sold in such jurisdictions only through registered or licensed
brokers or dealers. In addition, in certain states the Common Stock may not be
sold unless the Common Stock has been registered or qualified for sale in such
state or an exemption from registration or qualification is available and is
complied with.
The Company will receive no portion of the proceeds from the sale of the
shares of Common Stock and will bear all expenses related to the registration of
this offering of the shares of Common Stock.
[THIS AREA INTENTIONALLY LEFT BLANK]
13
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with the Commission
(File No. 1-11703) pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") are incorporated by reference in this Registration
Statement and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended September
30, 1997 and Form 10-K/A (Amendment No. 1) to said Form 10-K filed
January 20, 1998;
2. The Company's Quarterly Reports on Form 10-Q for the periods ended
December 31, 1997 and March 31, 1998; and
3. The Company's Current Reports on Form 8-K dated October 27, 1997 and
November 20, 1997.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, 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 any document incorporated or deemed to be incorporated
shall be deemed to be modified or superseded for all purposes of this Prospectus
to the extent that a statement contained in this Prospectus or in any
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus. Any such statement so modified shall not
be deemed to constitute a part of this Prospectus except as so modified, and any
statement so superseded shall not be deemed 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 has been delivered, upon written or oral request
of such person, a copy of any and all of the information that has been
incorporated by reference in the Prospectus (other than exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Requests should be directed to Secretary, Gencor Industries,
Inc., at the Company's principal executive offices, 5201 N. Orange Blossom
Trail, Orlando, Florida 32810, telephone number (407) 290-6000. Persons
requesting copies of exhibits to such documents that were not specifically
incorporated by reference in such documents will be charged the costs of
reproduction and mailing.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law of the State of
Delaware sets forth the conditions and limitations governing the
indemnifications of officers, directors and other parties.
Article VI of the Company's By-Laws (the "By-Laws") provides in part that
the Company shall indemnify any director or officer who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company, as a
director, officer, employee or agent of certain other entities, against all
expense, liability and loss reasonably incurred or suffered by such person in
connection with such action, suit or proceeding, and under certain
circumstances, whether or not the indemnified liability arises or arose from any
threatened, pending or completed action by or in the right of the Company.
Responsibility for determinations with respect to such indemnifications shall be
made by the Board of Directors, by independent legal counsel or by the
stockholders of the Company.
Both the General Corporation Law of the State of Delaware and Article VI,
Section 2 of the Company's By-Laws provide that the Company may maintain
insurance to cover loss incurred pursuant to liability to directors and officers
of the Company arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
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 is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The restricted securities to be reoffered and resold pursuant to this
Registration Statement were issued in transactions exempt from registration
pursuant to Section 4(2) of the Securities Act. The transaction involved the
issuance of shares of Common Stock pursuant to the exercise of options or awards
granted under the 1997 Plan to an employee of the Company.
II-2
<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
<S> <C>
4.1 -- Restated Certificate of Incorporation of the Company, incorporated by
reference to Exhibit 3.1 to Registration Statement No. 33-627.
4.2 -- Composite By-Laws of the Company, incorporated by reference to Exhibit 3.2 to
Registration Statement No. 33-627.
5.1 -- Opinion of Greenberg Traurig, P.A.*
10.6 -- Gencor Industries, Inc. 1992 Stock Plan and Form of Agreement, incorporated
by reference to Exhibit 10.6 to the Company's Quarter Report on Form 10-Q for
the quarter ended June 30, 1992.
10.11 -- Gencor Industries, Inc. 1997 Stock Plan incorporated by reference to Exhibit
A to the Company's Proxy Statement on Form 14A, filed March 3, 1997.
10.3 -- Form of 1996 Stock Option Agreements*
23.1 -- Consent of Deloitte & Touche LLP*
23.2 -- Consent of Greenberg Traurig, P.A. (contained in Exhibit 5.1)*
24 -- Power of Attorney (contained in Signature Page)*
</TABLE>
- ---------------
* Filed herewith.
ITEM 9. 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 the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration
II-3
<PAGE>
statement or any material change to such information
in the registration statement; provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Orlando, State of Florida, on August 18, 1998.
GENCOR INDUSTRIES, INC.
By: /s/ E.J. ELLIOTT
------------------------------
E.J. Elliott
President and
Chairman of the Board
II-5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being a
Director and/or officer of Gencor Industries, Inc., a Delaware corporation,
hereby constitutes and appoints E.J. Elliott and Russell R. Lee, III, 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 (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits hereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite, necessary or advisable to be done, 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 any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on August 18, 1998, by the
following persons in the capacities indicated:
SIGNATURES TITLE
---------- -----
/s/ E.J. ELLIOTT President, Chairman of the Board (Principal
- --------------------------------
E.J. Elliott Executive Officer)
/s/ RUSSELL R. LEE, III Treasurer (Principal Financial and
- --------------------------------
Russell R. Lee, III Accounting Officer)
/s/ JOHN E. ELLIOTT Executive Vice President, Director
- --------------------------------
John E. Elliott
/s/ CONSTANTINE L. CORPAS Director
- --------------------------------
Constantine L. Corpas
/s/ PETER KOURMOLIS Director
-------------------------------
Peter Kourmolis
/s/ GLENN B. DALBY Director
- --------------------------------
Glenn B. Dalby
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ -----------------------
<S> <C>
4.1 -- Restated Certificate of Incorporation of the Company, incorporated by
reference to Exhibit 3.1 to Registration Statement No. 33-627.
4.2 -- Composite By-Laws of the Company, incorporated by reference to Exhibit 3.2
to Registration Statement No. 33-627.
5.1 -- Opinion of Greenberg Traurig, P.A.*
10.6 -- Gencor Industries, Inc. 1992 Stock Plan and Form of Agreement, incorporated
by reference to Exhibit 10.6 to the Company's Quarter Report on Form 10-Q
for the quarter ended June 30, 1992.
10.11 -- Gencor Industries, Inc. 1997 Stock Plan incorporated by reference
to Exhibit A to the Company's Proxy Statement on Form 14A, filed March 3, 1997.
10.3 -- Form of 1996 Stock Option Agreements*
23.1 -- Consent of Deloitte & Touche LLP*
23.2 -- Consent of Greenberg Traurig, P.A. (contained in Exhibit 5.1)*
24 -- Power of Attorney (contained in Signature Page)*
</TABLE>
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* Filed herewith.
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EXHIBIT 5.1
August 18, 1998
Gencor Industries, Inc.
5201 N. Orange Blossom Trail
Orlando, Florida 32810
Ladies and Gentlemen:
We have acted as counsel to Gencor Industries, Inc., a Delaware corporation
(the "Company"), and have reviewed the Company's Registration Statement on Form
S-8 relating to an aggregate of 3,556,000 shares (the "Shares") of the Company's
common stock, $.10 par value (the "Common Stock") issued or issuable in
accordance with the terms and conditions of the Company's 1992 Stock Option
Plan, 1996 Stock Option Agreements and 1997 Stock Option Plan (collectively the
"Plans").
Regarding the 3,556,000 Shares:
(a) 20,000 Shares are held by a Selling Stockholder (as defined in
the Registration Statement);
(b) An aggregate of 3,536,000 Shares are issuable upon exercise of
stock options (the "Options") granted under the Plans and/or upon the
conversion of the Class B Stock obtained upon such an exercise to Common
Stock (the "Conversion").
We have made such examination of the corporate records and proceedings of
the Company and have taken such further action as we deemed necessary or
appropriate to the rendering of our opinion herein.
Based on the foregoing, we are of the opinion that the 20,000 shares of
Common Stock referenced above were legally issued, fully paid and non-
assessable. Further, the 3,536,000 shares of Common Stock underlying the Options
or resulting from the Conversion when paid for and issued as contemplated by the
respective governing instruments, will be legally issued, fully paid and non-
assessable. Therefore, the purchasers acquiring shares of Common Stock upon
subsequent resale as contemplated in the Registration Statement will receive
shares that, as applicable, have been or will be legally issued, fully paid and
non-assessable by the Company.
We hereby consent to the use of this opinion in the above referenced
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Greenberg Traurig, P.A.
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Greenberg Traurig, P.A.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT AND REPORT ON SCHEDULE
To the Board of Directors and Stockholders of
Gencor Industries, Inc.
We consent to the incorporation by reference in this Registration Statement of
Gencor Industries, Inc. (the "Company") on Form S-8 of our report dated November
11, 1997 (April 9, 1998 as to the effects of the stock split described in Note
1), appearing in the Registration Statement on Form S-3 filed with the
Securities and Exchange Commission on June 12, 1998.
Our audits of the financial statements included in the Annual Report on Form 10-
K for the year ended September 30, 1997, which is incorporated by reference in
this Registration Statement, also included the financial statement schedule of
the Company, listed in Item 8. Such financial statement schedule is the
responsibility of the Company's management. Our responsibility is to express an
opinion on such schedule based on our audits. In our opinion, such financial
statement schedule, when considered in relation to the basic financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
DELOITTE & TOUCHE LLP
August 18, 1998
Orlando, Florida
