<PAGE>
As filed with the Securities and Exchange Commission on June 4, 1997
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
REGIS CORPORATION
(Exact name of registrant as specified in its charter)
Minnesota 41-0749934
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7201 Metro Boulevard
Edina, MN 55439
(612) 947-7777
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
Bert M. Gross, Esq.
Senior Vice President and General Counsel
7201 Metro Boulevard
Minneapolis, MN 55439
(612) 947-7350
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
-----------------
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, 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.
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Title of Each Amount to be Proposed Maximum Proposed Maximum Amount of
Class of Registered Offering Price Aggregate Offering Registration
Securities Per Share (1) Price (1) Fee
to be
Registered
- --------------------------------------------------------------------------------
Common Stock, 650,000 shares $21.688 $14,097,200 $4,271.88
$.05 par value
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Estimated solely for the purposes of calculating the registration fee under
Rule 457(c) based on the average of the high ($21.875) and the low ($21.50)
prices for such shares on the NASDAQ National Market System on May 29,
1997.
Pursuant to Rule 429, the Prospectus contained herein also relates to
250,000 shares of Common Stock registered on Form S-3, Registration No.
33-80337, in respect of which a registration fee of $1,343.39 was previously
paid with such earlier registration.
<PAGE>
900,000 Shares
REGIS CORPORATION
Common Stock
--------------------------
The 900,000 shares of Common Stock offered hereby (the "Shares"), are being
offered by Regis Corporation (the "Company"). See "Use of Proceeds."
The Company intends that sales of the Shares may be made from time to time
in the over-the-counter market, through negotiated transactions or otherwise, at
fixed prices that 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 Shares may be offered as separate series in amounts, at prices, and
on terms to be set forth in one or more supplements to this Prospectus. The
Company may effect 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 Company or the purchasers of the
Shares for whom such broker-dealers may act as agent or to whom they may sell as
principal, or both (which compensation to a particular broker-dealer might be in
excess of customary commissions). See "Plan of Distribution."
No period of time has been fixed within which the Shares may be offered
or sold. The Company will pay all expenses with respect to this offering.
The Common Stock is quoted on the NASDAQ National Market System under the
symbol "RGIS." On May 29, 1997, the last sale price of the Common Stock as
reported by NASDAQ was $21.50 per share. The Common Stock is being offered on a
delayed or continuous basis.
This Prospectus may not be used to consummate sales of the Shares unless
accompanied by the Prospectus Supplement applicable to the Shares being sold.
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. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is June 4, 1997
<PAGE>
THE COMPANY
The Company is incorporated in the State of Minnesota and has its principal
executive office at 7201 Metro Boulevard, Minneapolis, Minnesota 55439. The
Company telephone number is (612) 947-7777.
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 facility maintained by the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the Commission at 7
World Trade Center, Suite 1300, New York, New York 10048 and the CitiCorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 at
prescribed rates. The Commission maintains a Web site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding registrants such as the Company that file electronically. The Common
Stock is quoted on the NASDAQ National Market System and reports, proxy
statements and other information regarding the Company can also be inspected at
the offices of the National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington, D.C. 20006.
This Prospectus constitutes a part of the Registration Statement on Form S-3
filed by the Company with the Commission under the Securities Act. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain items of which are contained in schedules and exhibits to the
Registration Statement as permitted by the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and to the
exhibits thereto for further information with respect to the Company. Any
statements contained herein concerning the provisions of any contract, agreement
or other document are not necessarily complete and, in each instance, reference
is made to the copy of such contract, agreement or other document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference. The
Registration Statement, including the exhibits thereto, may be inspected without
charge at the Commission's principal office at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and copies of all or any part thereof may
be obtained from such office at prescribed rates.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996 (as updated by the information included in the Registrant's
Current Report on Form 8-K filed on May 14, 1997 and Form 8-K/A's filed
on May 15 and May 19, 1997);
2. The Registrant's Quarterly Reports on Form 10-Q for the quarterly periods
ended September 30, 1996 (as updated by the information included in the
Registrant's Current Report on Form 8-K filed on May 14, 1997),
December 31, 1996, and March 31, 1997;
3. The Registrant's Current Report on Form 8-K, filed with the Commission on
July 19, 1996;
4. The Registrant's Current Report on Form 8-K, filed with the Commission on
November 7, 1996;
5. The Registrant's Current Report on Form 8-K, filed with the Commission on
May 14, 1997;
2
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6. The Registrant's Current Report on Form 8-K/A, filed with the Commission on
May 15, 1997;
7. The Registrant's Current Report on Form 8-K/A, filed with the Commission on
May 19, 1997; and
8. The description of the Registrant's capital stock contained in Amendment
No. 2 to Form S-1 Registration Statement No. 33-70142 filed with the
Commission on November 19, 1993.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this
offering shall be deemed to be incorporated by reference into this Prospectus.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated into this Prospectus by reference, other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into such documents. Requests for such copies should be directed to: Regis
Corporation, 7201 Metro Boulevard, Minneapolis, Minnesota 55439 (telephone:
(612) 947-7777).
USE OF PROCEEDS
Except as otherwise specified in the applicable Prospectus Supplement,
the Company intends to use the net proceeds from this offering for general
working capital purposes and to finance possible acquisitions of other
businesses in the hairstyling and hair care products industry.
PLAN OF DISTRIBUTION
The Company may sell the Shares from time to time in transactions in the
over-the-counter market, through negotiated transactions or otherwise, at
fixed prices that may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices.
In connection with this offering, an underwriter and its affiliates may
engage in transactions that stabilize, maintain or otherwise affect the market
price of the Common Stock. Such transactions may include stabilization
transactions effected in accordance with Rule 104 of Regulation M under the
Exchange Act pursuant to which such persons may bid for or purchase Common Stock
for the purpose of stabilizing its market price. The underwriter also may
create a short position for the account of the underwriter by selling more
Common Stock in connection with the offering than it is committed to purchase
from the Company, and in such case may purchase Common Stock in the open market
following completion of the offering to cover such short position. Any of the
transactions described in this paragraph may result in the maintenance of the
price for the Common Stock at a level above that which might otherwise prevail
in the open market. None of the transactions described in this paragraph is
required, and, if they are undertaken, they may be discontinued at any time.
3
<PAGE>
Under agreements that may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of the Shares may be
entitled to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with
respect to payments that the underwriters, dealers or agents may be required
to make in respect thereof. Such underwriters, dealers or agents may engage
in transactions with or perform services for the Company in the ordinary
course of business.
Sales may be made pursuant to this Prospectus to or through broker-dealers
who may receive compensation in the form of discounts, concessions or
commissions from the Company or the purchasers of Common Stock for whom such
broker-dealer may act as agent or to whom they may sell as principal, or both
(which compensation as to a particular broker-dealer may be in excess of
customary commissions). Any broker-dealers or other persons acting on the
Company's behalf in connection with the sale of Shares may be deemed to be
"underwriters" within the meaning of the Securities Act, and any commissions
received by them and any profit realized by them on the resale of the Shares as
principals may be deemed to be underwriting commissions under the Securities
Act. No period of time has been fixed within which the Shares may be offered or
sold.
LEGAL OPINIONS
The validity of the Common Stock being offered hereby will be passed upon
for the Company by Bert M. Gross, General Counsel of the Company.
EXPERTS
The consolidated balance sheet as of June 30, 1995 and 1996 and the
consolidated statements of operations, changes in shareholders' equity and
cash flows for each of the three years in the period ended June 30, 1996,
included in the Registrant's Current Report on Form 8-K filed on May 14,
1997, as amended by the Registrant's Form 8-K/A's filed on May 15 and 19,
1997, and incorporated by reference in this Prospectus have been
incorporated herein in reliance on the reports of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
With respect to the unaudited interim financial information for the
periods ended September 30, 1996 and 1995, December 31, 1996 and 1995, and
March 31, 1997 and 1996, included in the Company's Quarterly Reports on Form
10-Q for the quarters ended September 30, 1996 (as updated by the information
included in the Company's Current Report on Form 8-K filed on May 14, 1997)
December 31, 1996 and March 31, 1997, respectively, and incorporated by
reference in this Prospectus, the independent accountants have reported that
they have applied limited procedures in accordance with professional
standards for a review of such information. However, their separate report
for the quarter ended September 30, 1996 included in the Form 8-K filed on
May 14, 1997, and their separate reports included in the Company's Quarterly
Reports on Form 10-Q for the quarters ended December 31, 1996, and March 31,
1997, and incorporated by reference herein, state that they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their reports on such information
should be restricted in light of the limited nature of the review procedures
applied. The accountants are not subject to the liability provisions of
Section 11 of the Securities Act of 1933 for their reports on the unaudited
interim financial information because those reports are not "reports" or a
"part" of the registration statement prepared or certified by the accountants
within the meaning of Sections 7 and 11 of the Act.
4
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of all expenses in connection with
the issuance and distribution of the securities being registered:
Item Amount
Securities and Exchange Commission Registration Fee $ 4,271.88
Blue Sky Fees and Expenses $ 1,000.00*
Legal Fees and Expenses $ 1,000.00*
Accounting Fees and Expenses $ 9,000.00*
Transfer Agent Fees and Expenses $ 500.00*
Miscellaneous Expenses $ 500.00*
Total $16,271.88
- ----------------------------
*Estimated Amounts.
Item 15. Indemnification of Directors and Officers.
Section 302A.521, Minnesota Statutes, provides that a corporation shall
indemnify any person who was or is made or is threatened to be made a party to
any proceeding by reason of the former or present official capacity of such
person against judgments, penalties and fines including, without limitation,
excise taxes assessed against each person with respect to any employee benefit
plan, settlements, and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding, if,
with respect to the acts or omissions of such person complained of in the
proceeding, such person has not been indemnified by another organization or
employee benefit plan for the same penalties, fines, taxes and expenses with
respect to the same acts or omissions; acted in good faith; received no improper
personal benefit and Section 302A.255 (regarding conflict of interest), if
applicable, has been satisfied; in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful; and in the case of acts or
omissions by persons who were or are serving other organizations at the request
of the corporation or whose duties involve or involved service for other
organizations, reasonably believed that the conduct was not opposed to the best
interests of the corporation.
The Company also maintains a directors and officers insurance policy, which
insures the Company, its officers and directors against damages and costs
incurred by reason of certain acts committed by such persons in their capacities
as officers and directors.
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<PAGE>
Item 16. Exhibits
REGISTRATION
S-K EXHIBIT
TABLE
ITEM REFERENCE
- ---- ----------
Purchase Agreement 1
Agreement and Plan of Merger (incorporated by 2
reference to Exhibit 2 as part of the amended
Registration Statement filed on Form S-4 on
September 23, 1996)
Form of Stock Certificate (incorporated by
reference to Exhibit 4.1 as part of Registration
Statement No. 33-70142 on Form S-1 filed
November 19, 1993) 4.1
Opinion of Bert M. Gross 5.1
Letter re: Unaudited Interim Financial Information 15
Consent of Coopers & Lybrand L.L.P. 23.1
Consent of Bert M. Gross (included in Exhibit 5.1) 23.3
Item 17. Undertakings
The undersigned Registrant hereby undertakes that:
(1) For the purpose 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 the form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective, and
(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.
The undersigned Registrant further 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,
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<PAGE>
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 end 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 a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-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 Commissioner 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.
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on the 29th day of
May, 1997.
REGIS CORPORATION
By: /s/ Paul D. Finkelstein
--------------------------------
Paul D. Finkelstein, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Myron Kunin Chairman of the Board of
- ------------------------- Directors May 29 , 1997
Myron Kunin -----------
/s/ Paul D. Finkelstein President, Chief Executive
- ------------------------- Officer and Director
Paul D. Finkelstein (Principal Executive Officer) May 29 , 1997
-----------
/s/ Frank E. Evangelist Senior Vice President, Finance,
- ------------------------- Chief Financial Officer and
Frank E. Evangelist Director (Principal Financial
and Accounting Officer) May 29 , 1997
-----------
- ------------------------- Director , 1997
Rolf E. Bjelland -----------
/s/ Christopher A. Fox Director May 29 , 1997
- ------------------------- -----------
Christopher A. Fox
/s/ Marvin Goldstein Director May 29 , 1997
- ------------------------- -----------
Marvin Goldstein
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<PAGE>
- ------------------------- Director , 1997
Thomas Gregory -----------
- ------------------------- Director , 1997
Van Zandt Hawn -----------
- ------------------------- Director , 1997
Susan Hoyt -----------
/s/ David B. Kunin Director May 29 , 1997
- ------------------------- -----------
David B. Kunin
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
EXHIBITS
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
Regis Corporation
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<PAGE>
INDEX TO EXHIBITS
REGISTRATION
S-K EXHIBIT
TABLE
REFERENCE
- ------------
1 Purchase Agreement
2 Agreement and Plan of Merger (incorporated by reference to
Exhibit 2 as part of the amended Registration Statement filed on
Form S-4 on September 23, 1996)
4.1 Form of Stock Certificate (incorporated by reference to Exhibit
4.1 as part of Registration Statement No. 33-70142 on Form S-1
filed November 19, 1993)
5.1 Opinion of Bert M. Gross
15 Letter re: Unaudited Interim Financial Information
23.1 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Bert M. Gross (included in Exhibit 5.1)
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<PAGE>
Exhibit 1
REGIS CORPORATION
PURCHASE AGREEMENT
_________________, 19__
Piper Jaffray Inc.
As Representative of the
several Underwriters named in
Terms Agreements in the
form of Annex I hereto
c/o Piper Jaffray Inc.
Piper Jaffray Tower
222 South Ninth Street
Minneapolis, MN 55402
Gentlemen:
1. INTRODUCTORY. Regis Corporation, a Minnesota corporation (the
"Company"), proposes to issue and sell from time to time those shares of Common
Stock, par value $.05 per share, of the Company registered under the
Registration Statement referred to in Section 2(a) below but not heretofore
issued and sold by the Company (the "Shares").
Particular issuances of the Shares will be sold pursuant to a Terms
Agreement referred to in Section 3 below in the form of Annex I attached hereto,
for resale in accordance with the terms of offering determined at the time of
sale. Under any Terms Agreement, subject to the terms and conditions hereof,
the Company will agree to issue and sell, and the firm or firms specified
therein (the "Underwriters") will agree to purchase, the amount of Shares
specified therein (the "Firm Shares"). In any Terms Agreement, the Company also
may grant to such Underwriters, subject to the terms and conditions set forth
therein, an option to purchase additional Shares in an amount not to exceed the
amount specified in such Terms Agreement (such additional Shares are hereinafter
referred to as the "Option Shares"). The Firm Shares and the Option Shares are
hereinafter collectively referred to as the "Offered Shares".
The Company hereby confirms its agreement with respect to any sale of
the Shares to the several Underwriters, for whom you are acting as
Representative (the "Representative").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-___________), including a
prospectus, relating to the Shares has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement, is
hereinafter referred to as the "Registration Statement", and the prospectus
included in such Registration Statement, as supplemented as contemplated by
Section 4 below to reflect the terms of the Offered Shares and the terms of
offering thereof, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") of the Rules and Regulations of
the Commission (the "Rules and Regulations") under the Securities Act of
1933, as amended (the "Act"), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus". No stop
order suspending the effectiveness of the Registration Statement or of any
part thereof or any suspension of the qualification of the Shares for
offering or sale in any jurisdiction have been issued and no proceedings
for those purposes have been instituted or, to the knowledge of the
Company, are being contemplated by the Commission or any state securities
commissioner.
<PAGE>
(b) On its effective date, the Registration Statement conformed in
all material respects to the requirements of the Act and the Rules and
Regulations and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and on the date of each
Terms Agreement and Closing Date referred to in Section 3 below, the
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading,
except that the foregoing representations do not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter specifically for use therein.
(c) Each document filed by the Company pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which is
incorporated by reference in the Prospectus complied when so filed in all
material respects with the Exchange Act and the rules and regulations
thereunder, and each document, if any, hereafter filed and so incorporated
by reference in the Prospectus (other than documents incorporated by
reference therein relating solely to securities other than the Offered
Shares) will comply when so filed in all material respects with the
Exchange Act and the rules and regulations thereunder.
(d) This Agreement has been and each Terms Agreement will be duly
authorized, executed and delivered by the Company, and each constitutes a
valid, legal and binding obligation of the Company, enforceable in
accordance with its terms, except as rights to indemnity hereunder may be
limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity. The execution, delivery and performance of
this Agreement and each Terms Agreement and the consummation of the
transactions herein and therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any agreement or instrument to which the Company is a
party or by which it is bound or to which any of its property is subject,
the Company's charter or by-laws, or any order, rule, regulation or decree
of any court or governmental agency or body having jurisdiction over the
Company or any of its properties; no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement or
any Terms Agreement or for the consummation of the transactions
contemplated hereby or thereby, including the issuance or sale of the
Shares by the Company, except such as may be required under the Act or
state securities or blue sky laws; and the Company has full power and
authority to enter into this Agreement and each Terms Agreement and to
authorize, issue and sell the Shares as contemplated by this Agreement and
each Terms Agreement.
(e) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Shares other than the Prospectus or other materials permitted
by the Act to be distributed by the Company.
(f) Other than as contemplated by this Agreement or a Terms
Agreement, the Company has not incurred any liability for any finder's or
broker's fee or agent's commission in connection with the execution and
delivery of this Agreement or such Terms Agreement or the consummation of
the transactions contemplated hereby or thereby.
(g) Neither the Company nor any of its affiliates is presently doing
business with the government of Cuba or with any person or affiliate
located in Cuba.
3. PURCHASE AND OFFERING OF OFFERED SHARES.
(a) The obligation of the Company to issue and sell any Firm Shares,
the several obligations of the Underwriters to purchase the Firm Shares,
and, if applicable, the Company's granting to the several
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Underwriters of an option to purchase any Option Shares, will be set forth in a
Terms Agreement in the form of Annex I attached hereto (the "Terms Agreement")
which shall be in the form of an executed writing, and may be evidenced by an
exchange of telegraphic or any other rapid transmission device designed to
produce a written record of communications transmitted at the time the Company
determines to sell the Firm Shares. The Terms Agreement will incorporate by
reference the provisions of this Agreement and will specify the following: the
firm or firms which will be Underwriters; the amount of Firm Shares to be
purchased by each Underwriter; the aggregate amount of the Firm Shares, and, if
applicable, the Option Shares; the terms of any option granted by the Company to
the Underwriters to purchase Option Shares; the initial public offering price of
the Offered Shares; the purchase price to be paid by the Underwriters; the type
of funds for payment of the purchase price of the Offered Shares; the time, date
and place of delivery and payment for the Offered Shares; the terms of the
black-out period, if any, during which the Company shall not sell securities of
the Company; and any other details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Shares.
(b) Unless otherwise specified in the Terms Agreement pursuant to
Rule 15c6-1(a) under the Exchange Act, the Firm Shares will be delivered by
the Company to the Representative for the accounts of the several
Underwriters against payment of the purchase price therefor by certified or
official bank check or other next day funds payable to the order of the
Company, as appropriate, at the offices of Piper Jaffray Inc., Piper
Jaffray Tower, 222 South Ninth Street, Minneapolis, Minnesota, or such
other location as may be mutually acceptable, at 9:00 a.m. Central time on
the third (or if the Offered Shares are priced, as contemplated by Rule
15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern time, the fourth)
full business day following the date of the Terms Agreement, such time and
date of delivery being referred to herein and in the Terms Agreement as the
"Firm Closing Date."
(c) The time and date of delivery and payment of the Option Shares,
if any, will be the time and date specified by the Representative in the
notice of exercise of the option, but which shall not be earlier than the
Firm Closing Date nor earlier than the second business day after which the
option shall have been exercised, such time and date of delivery being
referred to herein and in the Terms Agreement as the "Option Closing
Date"). As used herein and in the Terms Agreement, the term "Closing Date"
means, with respect to the Firm Shares, the Firm Closing Date and, with
respect to the Option Shares, the Option Closing Date. Unless otherwise
specified in the Terms Agreement, the Option Shares will be delivered by
the Company to the Representative for the accounts of the several
Underwriters against payment of the purchase price therefor by certified or
official bank check or other next day funds payable to the order of the
Company at the offices of Piper Jaffray Inc., Piper Jaffray Tower,
222 South Ninth Street, Minneapolis, Minnesota, or such other location as
may be mutually acceptable at 9:00 a.m., Central time, on the Option
Closing Date.
(d) If the Representatives so elect, delivery of the Offered Shares
may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by the Representatives. Certificates
representing the Offered Shares, in definitive form and in such
denominations and registered in such names as the Representative may
request upon at least two business days' prior notice to the Company will
be made available for checking and packaging not later than 10:30 a.m.,
Central time, on the business day next preceding the Closing Date at the
offices of Piper Jaffray Inc., Piper Jaffray Tower, 222 South Ninth Street,
Minneapolis, Minnesota, or such other location as may be mutually
acceptable.
(e) It is understood that the Representative, individually and not as
Representative of the several Underwriters, may (but shall not be obligated
to) make payment to the Company on behalf of any Underwriter for the
Offered Shares to be purchased by such Underwriter. Any such payment by
the Representative shall not relieve any such Underwriter of any of its
obligations hereunder. Nothing herein contained shall constitute any of
the Underwriters an unincorporated association or partner with the Company.
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4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that it will furnish to Faegre & Benson LLP, counsel for
the Underwriters, one signed copy of the registration statement relating to the
Shares, including all exhibits, in the form it became effective and of all
amendments thereto and that, in connection with each offering of Offered Shares:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the Offered Shares
is required to be delivered under the Act, (i) the Company will advise the
Representative promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will afford the Representative
a reasonable opportunity to comment on any such proposed amendment or
supplement, and (ii) the Company will also advise the Representative
promptly of the filing of any such amendment or supplement and of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any part thereof or of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any
such stop order or suspension, and will use its best efforts to prevent the
issuance of any such stop order or suspension and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Shares
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company promptly
will prepare and file with the Commission a supplement or amendment which
will correct such statement or omission or an amendment which will effect
such compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
Rules and Regulations (including, at the option of the Company, Rule 158
under the Act).
(e) The Company will furnish to the Representative copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement and the
Prospectus and, during the time when a prospectus relating to the Offered
Shares is required to be delivered under the Act, all amendments and
supplements to such documents (other than those solely relating to
securities other than the Offered Shares), in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Offered
Shares for sale under the laws of such jurisdictions as the Representative
reasonably designates and will continue such qualifications in effect so
long as required for the distribution; provided, however, that in no event
shall the Company be required to qualify as a foreign corporation or as a
dealer in securities or to take any action that would subject it to general
or unlimited service of process in any such jurisdiction.
(g) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay or
cause to be paid (i) all expenses (including transfer taxes allocated to
the respective transferees) incurred in connection with the delivery to the
Underwriters of the Offered Shares, (ii) all expenses and fees (including,
without limitation, fees and expenses of the Company's accountants and
counsel but, except as otherwise provided below, not including fees of the
Underwriters' counsel) in connection with the preparation, printing,
filing, delivery,
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and shipping of the Registration Statement (including the financial statements
therein and all amendments, schedules, and exhibits thereto), the Offered
Shares, each preliminary prospectus, the Prospectus, and any amendment thereof
or supplement thereto, and the printing, delivery, and shipping of this
Agreement and other underwriting documents, including Blue Sky Memoranda, (iii)
all filing fees and fees and disbursements of the Underwriters' counsel incurred
in connection with the qualification of the Offered Shares for offering and sale
by the Underwriters or by dealers under the securities or blue sky laws of the
states and other jurisdictions which the Representative shall designate in
accordance with Section 4(f) hereof, (iv) the fees and expenses of any transfer
agent or registrar, (v) the filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Offered Shares, (vi) listing fees, if any, and (vii) all other costs and
expenses incident to the performance of its obligations hereunder that are not
otherwise specifically provided for herein. If the sale of the Offered Shares
provided for in any Terms Agreement is not consummated by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is not fulfilled,
the Company will reimburse the several Underwriters for all out-of-pocket
disbursements (including fees and disbursements of counsel) incurred by the
Underwriters in connection with their investigation, preparing to market and
marketing of such Offered Shares or in contemplation of performing their
obligations hereunder and under such Terms Agreement. The Company shall not in
any event be liable to any of the Underwriters for loss of anticipated profits
from the transactions covered by this Agreement.
.
(h) If and to the extent provided in the Terms Agreement, the
Company, for the period therein provided, will not, directly or indirectly,
sell, contract to sell or otherwise dispose of certain of its securities as
specified in such Terms Agreement.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the Firm Closing Date and the Option Shares on the Option Closing Date will
be subject to the accuracy of the representations and warranties on the part of
the Company herein (as of each such respective Closing Date), to the accuracy of
the written statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the
Closing Date, of Coopers & Lybrand L.L.P., confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information in the Registration Statement and
Prospectus. All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof or any suspension of the qualification of
the Shares for offering or sale in any jurisdiction shall have been issued
and no proceedings for those purposes shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission or any state securities commissioner.
(c) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, contains an untrue statement of fact which, in the
Representative's opinion, is material, or omits to state a fact which, in
the Representative's opinion, is material and is required to be stated
therein or necessary to make the statements therein not misleading.
(d) Except as contemplated in the Prospectus, neither the Company nor
any of its subsidiaries shall have incurred any material liabilities or
obligations, direct or contingent, or entered into
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any material transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock; and there shall not
have been any change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants), or any material change in the
short-term or long-term debt of the Company, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock
of the Company or any of its subsidiaries, or any material adverse change or any
development involving a prospective material adverse change (whether or not
arising in the ordinary course of business), in the general affairs, condition
(financial or otherwise), business, key personnel, property, prospects, net
worth or results of operations of the Company and its subsidiaries, taken as a
whole, that, in the Representative's judgment, makes it impractical or
inadvisable to offer or deliver the Offered Shares on the terms and in the
manner contemplated in the Prospectus.
(e) The Representative shall have received an opinion, dated the
Closing Date, of __________________, counsel for the Company, to the effect
that:
(i) Each of the Company and its subsidiaries has been duly
incorporated and is an existing corporation in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to do
business as a foreign corporation and in good standing in all
jurisdictions in which its ownership of property or the conduct of its
business requires such qualification (except where the failure to so
qualify would not have a material adverse effect upon the Company and
its subsidiaries, taken as a whole), and has all power and authority
necessary to own its respective properties and conduct the business in
which it is engaged as described in the Prospectus;
(ii) The Offered Shares conform in all material respects to the
description thereof contained in the Prospectus;
(iii) The Offered Shares have been duly authorized and
validly issued and, when countersigned by the transfer agent therefor
and sold to the Underwriters against payment therefor pursuant to this
Agreement and the Terms Agreement, will have been validly issued and
will be fully paid and non-assessable, and the holders thereof will
not be subject to personal liability by reason of being such holders;
except as otherwise stated in the Registration Statement and
Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, any Offered Shares pursuant to the Company's charter,
by-laws or any agreement or other instrument known to such counsel to
which the Company is a party or by which the Company is bound; to the
best of such counsel's knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Offered Shares
as contemplated by this Agreement and the Terms Agreement gives rise
to any rights for or relating to the registration of any shares of
Common Stock or other securities of the Company;
(iv) No consent, approval, authorization or order of, or filing
with, any state or Federal governmental agency or body or any state or
Federal court having jurisdiction over the Company or any of its
material properties is required to be obtained or made by the Company
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement), except such as
have been obtained and made under the Act and such as may be required
under state securities or Blue Sky laws (as to which such counsel need
express no opinion);
(v) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is in violation of its respective charter
or by-laws; to the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is in breach of or otherwise in
default in the performance of any material obligation, agreement or
condition contained in any bond, debenture, note, indenture, loan
agreement or any other material contract, lease or other instrument to
which it is subject or by which any of them may be bound, or to which
any of the material property or assets of the Company or any of its
subsidiaries is subject;
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(vi) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) and the
issuance and sale of the Offered Shares will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, the charter or by-laws of the Company or any statute,
rule, regulation or order applicable to the Company or any of its
subsidiaries of which such counsel is aware of any federal or state
governmental agency or body or court having jurisdiction over the
Company or any of its material properties (other than those that may
be required under the Act and under applicable state securities or
Blue Sky laws as to which such counsel need express no opinion) and
the Company has full corporate power and authority to authorize, issue
and sell the Offered Shares as contemplated by the Terms Agreement
(including the provisions of this Agreement);
(vii) The registration statement relating to the Shares, as
of its effective date, the Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and any amendment or supplement
thereto, as of its date, comply as to form in all material respects
with the requirements of the Act and the Rules and Regulations
thereunder; on the basis of conferences with officers of the Company,
examination of documents referred to in the Registration Statement and
Prospectus and such other procedures as such counsel deemed
appropriate, nothing has come to such counsel's attention which causes
it to believe that the Registration Statement, as of its effective
date, the Registration Statement or the Prospectus, as of the date of
the Terms Agreement, or any such amendment or supplement, as of its
date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading; it
being understood that such counsel need express no opinion as to the
financial statements and schedules or other financial or statistical
data contained in any of the above-mentioned documents;
(viii) The documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules
and other financial and statistical data contained therein, as to
which such counsel need express no opinion), when they were filed with
the Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; and nothing has come to such counsel's
attention which causes it to believe that any of such documents, when
such documents were so filed, contained an untrue statement of a
material fact and omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading;
(ix) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company;
(x) The statements contained in the Company's Annual Reports on
Form 10-K under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which
are incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings; and
(xi) Such other matters as the Representative may reasonably
request.
In rendering such opinion such counsel may rely (i) as to matters
of law other than Minnesota and federal law, upon the opinion or opinions
of local counsel provided that the extent of such reliance is specified in
such opinion and that such counsel shall state that such opinion or
opinions of local counsel are satisfactory to them and that they believe
they and the Representative are justified in relying thereon and (ii) as to
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matters of fact, to the extent such counsel deems reasonable upon certificates
of officers of the Company and its subsidiaries provided that the extent of such
reliance is specified in such opinion.
(f) The Representative shall have received from Faegre & Benson LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Shares, the Registration Statement, the Prospectus and other
related matters as it may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated the
Closing Date and addressed to the Representative, signed by the chief
executive officer and by the chief financial officer of the Company, to the
effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made
at and as of such Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the
qualification of the Offered Shares for offering or sale has been
issued, and no proceeding for that purpose has been instituted or, to
the best of their knowledge, is contemplated by the Commission or any
state or regulatory body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments
thereof or supplements thereto, and (A) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or
supplemented, does not include any untrue statement of material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (B) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented prospectus which has not been so set forth,
(C) subsequent to the respective dates as of which information is
given in the Prospectus, neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, not
in the ordinary course of business, or declared or paid any dividends
or made any distribution of any kind with respect to its capital
stock, and except as disclosed in the Prospectus, there has not been
any change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt, or any issuance of
options, warrants, convertible securities or other rights to purchase
the capital stock, of the Company, or any of its subsidiaries, or any
material adverse change or any development involving a prospective
material adverse change (whether or not arising in the ordinary course
of business), in the general affairs, condition (financial or
otherwise), business, key personnel, property, prospects, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the knowledge of the Company,
threatened or contemplated, any action, suit or proceeding to which
the Company or any of its subsidiaries is a party before or by any
court or governmental agency, authority or body, or any arbitrator,
which might result in any material adverse change in the condition
(financial or otherwise), business, prospects or results of operations
of the Company and its subsidiaries, taken as a whole.
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The Company shall have furnished to the Representative and counsel for
the Underwriters such additional documents, certificates and evidence as the
Representative or they may have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to the Representative and counsel for the Underwriters. The
Company will furnish the Representative with such conformed copies of such
opinions, certificates, letters and other documents as the Representative shall
reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise (including in settlement of any litigation if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus
or preliminary prospectus supplement (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representative specifically for use in the preparation thereof.
In addition to their other obligations under this Section 6(a), the
Company agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 6(a), they will reimburse each Underwriter on a
monthly basis for all reasonable legal fees or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of
a judicial determination as to the propriety and enforceability of the
Company's obligation to reimburse the Underwriters for such expenses and
the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. To the extent that any such
interim reimbursement payment is so held to have been improper, the
Underwriter that received such payment shall promptly return it to the
party or parties that made such payment, together with interest, compounded
daily, determined on the basis of the prime rate (or other commercial
lending rate for borrowers of the highest credit standing) announced from
time to time by ____________________ (the "Prime Rate"). Any such interim
reimbursement payments which are not made to an Underwriter within 30 days
of a request for reimbursement shall bear interest at the Prime Rate from
the date of such request. This indemnity agreement shall be in addition to
any liabilities which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement (including any term sheet within the meaning of Rule 434 of the
Rules and Regulations), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity
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with written information furnished to the Company by such Underwriter through
the Representative specifically for use in the preparation thereof, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any
liability that it may have to any indemnified party. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of the
indemnifying party's election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that if, in the sole
judgment of the Representative, it is advisable for the Underwriters to be
represented as a group by separate counsel, the Representative shall have
the right to employ a single counsel to represent the Representative and
all Underwriters who may be subject to liability arising from any claim in
respect of which indemnity may be sought by the Underwriters under
subsection (a) of this Section 6, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying party
and reimbursed to the Underwriters as incurred (in accordance with the
provisions of the second paragraph in subsection (a) above). An
indemnifying party shall not be obligated under any settlement agreement
relating to any action under this Section 6 to which it has not agreed in
writing.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Offered Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relevant intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this subsection (d).
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Offered
Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of
10
<PAGE>
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company
(including any person who, with his consent, is named in the Registration
Statement as about to become a director of the Company), to each officer of
the Company who has signed the Registration Statement and to each person,
if any, who controls the Company within the meaning of the Act.
7. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters and the Company contained in Section 6 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, or the
Company or any of its officers, directors, or controlling persons, and shall
survive delivery of, and payment for, the Offered Shares to and by the
Underwriters hereunder.
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Firm Shares agreed by such Underwriter or Underwriters to
be purchased under any Terms Agreement, upon tender of such Firm Shares in
accordance with the terms hereof, and the amount of Firm Shares not
purchased does not aggregate more than 10% of the total amount of Firm
Shares set forth in Schedule II to such Terms Agreement, the remaining
Underwriters shall be obligated to take up and pay for (in proportion to
their respective underwriting obligations hereunder and thereunder as set
forth in Schedule II to the Terms Agreement except as may otherwise be
determined by the Representative) the Firm Shares that the withdrawing or
defaulting Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Firm Shares agreed by such Underwriter or Underwriters to
be purchased under any Terms Agreement, upon tender of such Firm Shares in
accordance with the terms hereof, and the amount of Firm Shares not
purchased aggregates more than 10% of the total amount of Firm Shares set
forth in Schedule II to such Terms Agreement, and arrangements satisfactory
to the Representative for the purchase of such Firm Shares by other persons
are not made within 36 hours thereafter, such Terms Agreement shall
terminate. In the event of any such termination the Company shall not be
under any liability to any Underwriter (except to the extent provided in
Section 4(g) and Section 6 hereof) nor shall any Underwriter (other than an
Underwriter who shall have failed, otherwise than for some reason permitted
under this Agreement, to purchase the amount of Firm Shares agreed by such
Underwriter to be purchased hereunder) be under any liability to the
Company (except to the extent provided in Section 6 hereof).
(c) If Firm Shares to which a default relates are to be purchased by
the non-defaulting Underwriters or by any other party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the
necessary changes in the Registration Statement, Prospectus and any other
documents, as well as any other arrangements, may be effected. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section.
11
<PAGE>
9. EFFECTIVE DATE OF TERMS AGREEMENT AND TERMINATION.
(a) Each Terms Agreement shall become effective at such time as the
Representative in its discretion shall first release the Offered Shares
which are the subject of such Terms Agreement for sale to the public. For
the purpose of this Section, the Offered Shares shall be deemed to have
been released for sale to the public upon release by the Representative of
the publication of a newspaper advertisement relating thereto or upon
release by the Representative of telexes offering the Offered Shares for
sale to securities dealers, whichever shall first occur. By giving notice
as hereinafter specified before the time a Terms Agreement becomes
effective, the Representative or the Company may prevent such Terms
Agreement from becoming effective without liability of any party to any
other party, except that this Agreement shall at all times be effective.
(b) The Representative shall have the right to terminate the Terms
Agreement by giving notice as hereinafter specified at any time at or prior
to the Firm Closing Date, and the option referred to in Section 3(c), if
exercised, may be cancelled at any time prior to the Option Closing Date,
if (i) the Company shall have failed, refused or been unable, at or prior
to such Closing Date, to perform any agreement on its part to be performed
hereunder, (ii) any other condition of the Underwriters' obligations
hereunder is not fulfilled, (iii) trading on the New York Stock Exchange or
the American Stock Exchange shall have been wholly suspended, (iv) minimum
or maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the New York Stock
Exchange or the American Stock Exchange, by such Exchange or by order of
the Commission or any other governmental authority having jurisdiction,
(v) a banking moratorium shall have been declared by Federal, New York or
Minnesota authorities, or (vi) there has occurred any material adverse
change in the financial markets in the United States or an outbreak of
major hostilities (or an escalation thereof) in which the United States is
involved, a declaration of war by Congress, any other substantial national
or international calamity or any other event or occurrence of a similar
character shall have occurred since the execution of such Terms Agreement
that, in the Representative's judgment, makes it impractical or inadvisable
to proceed with the completion of the sale of and payment for the Offered
Shares. Any such termination shall be without liability of any party to
any other party except that the provisions of this Agreement shall at all
times be effective.
(c) If the Representative elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section, the Company shall be notified promptly by you by telephone or
telegram, confirmed by letter. If the Company elects to prevent this
Agreement from becoming effective, the Representative shall be notified by
the Company by telephone or telegram, confirmed by letter.
10. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth
in the last paragraph of the cover page and under the caption "Plan of
Distribution" in any Preliminary Prospectus and in the Prospectus constitute the
written information furnished by or on behalf of the Underwriters referred to in
Section 2 and Section 6 hereof.
11. NOTICES. Except as otherwise provided herein, all
communications hereunder shall be in writing or by telegraph and, if to the
Underwriters, shall be mailed, telegraphed or delivered to the Representative
at Piper Jaffray Inc., Piper Jaffray Tower, 222 South Ninth Street,
Minneapolis, Minnesota 55402, except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent to such Underwriter at the address
stated in the Underwriters' Questionnaire furnished by such Underwriter in
connection with this offering; if to the Company, shall be mailed,
telegraphed or delivered to it at _____________ Attention: ___________; or in
each case to such other address as the person to be notified may have
requested in writing. All notices given by telegram shall be promptly
confirmed by letter. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT AND TERMS AGREEMENT.
This Agreement and the Terms Agreements shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and
the controlling persons, officers and directors referred to in Section 6.
Nothing in this Agreement or any Terms Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable
12
<PAGE>
remedy or claim under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein contained. The term "successors and assigns" as
herein used shall not include any purchaser, as such purchaser, of any of the
Offered Shares from any of the several Underwriters.
13. TIME OF ESSENCE. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. COUNTERPARTS. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota.
[Signature page follows]
13
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return three counterparts hereof.
Very truly yours,
REGIS CORPORATION
By
-------------------------------------
Name:
---------------------------------
Title:
----------------------------------
Confirmed as of the date first
above mentioned, on behalf of
themselves and the other several
Underwriters.
PIPER JAFFRAY INC.
By
------------------------------
Managing Director
14
<PAGE>
ANNEX I
[Optional terms in brackets]
REGIS CORPORATION
TERMS AGREEMENT
_________________, 19__
Piper Jaffray Inc.
As Representative of the several
Underwriters named
in Schedule I hereto
c/o Piper Jaffray Inc.
Piper Jaffray Tower
222 South Ninth Street
Minneapolis, MN 55402
Gentlemen:
Regis Corporation, a Minnesota corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ______________________, 19__ (the "Underwriting Agreement"),
between the Company on the one hand and you, as Representative of the
Underwriters named in Schedule I hereto (the "Underwriters"), on the other hand,
to issue and sell to the Underwriters the shares of Common Stock specified in
Schedule II hereto (the "Offered Shares"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Terms Agreement, except that, if this Terms Agreement and the
Underwriting Agreement are dated different dates, each representation and
warranty with respect to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation and warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined)
and also a representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended or supplemented relating to the Shares
which are the subject of the Terms Agreement. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at a purchase price to the Underwriters set forth in Schedule II hereto, the
amount of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
[Subject to the terms and conditions set forth in this Terms
Agreement, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase in the aggregate up to the number of Option Shares
set forth on Schedule II at the same purchase price as shall be applicable to
the Firm Shares. The option hereby granted will expire _____ days after the
date hereof and may be exercised, in whole or in part at one time, only for the
purpose of covering over-allotments that may be made in connection with the
offering and distribution of the Firm Shares. Such option may be exercised upon
written notice by the Representative to the Company setting forth the number of
Option Shares as to which the several Underwriters are exercising the option and
the Option Closing Date. If the option is exercised as to all or any portion of
the Option Shares, the Option Shares as to which the option is exercised shall
be purchased by each Underwriter, severally and not jointly, in the proportion
that the number of Firm Shares set forth opposite the name of such Underwriter
in Schedule I bears to
<PAGE>
the total number of Firm Shares, subject to such adjustments as the
Representative, in your discretion, shall make to eliminate any sales or
purchases of fractional Offered Shares. No Option Shares shall be sold or
delivered unless the Firm Shares previously have been, or simultaneously are,
sold and delivered. The right to purchase the Option Shares or any portion
thereof may be surrendered and terminated at any time before the exercise
thereof upon written notice by the Representative to the Company.]
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, and upon acceptance hereof by the
Representative, on behalf of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be supplied to the Company upon request.
Very truly yours,
REGIS CORPORATION
By
-------------------------------------
Name:
---------------------------------
Title:
----------------------------------
Confirmed as of the date first
above mentioned, on behalf of
themselves and the other several
Underwriters.
PIPER JAFFRAY INC.
By
----------------------------
Managing Director
2
<PAGE>
SCHEDULE I
Amount of Designated
Firm Shares
Underwriter to be Purchased
----------- ---------------
Total..........
<PAGE>
SCHEDULE II
Aggregate amount of Firm Shares:
Aggregate amount of Option Shares:
Price to Public: $
Purchase Price by Underwriters: $
Specified funds for payment of purchase price:
Firm Closing Date:
[Time and date], 19
Closing Location:
Black Out Period:
[None]
[For a period beginning at the time of execution of this Terms Agreement
and ending ____ days thereafter, the Company will not, directly or
indirectly, offer, sell, contract to sell or otherwise dispose of shares of
Common Stock of the Company or securities representing, convertible into or
exchangeable for, or any rights to purchase or acquire, Common Stock of the
Company, other than pursuant to its employee or director stock plans, as in
effect at the time of execution of this Terms Agreement.]
Other Terms:
<PAGE>
Exhibit 5.1
May 29, 1997
The Securities and Exchange Commission
Judiciary Plaza
450 - 5th Street N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Re: REGIS CORPORATION
This opinion is furnished in connection with the Registration Statement on Form
S-3, (the "Registration Statement") filed with the Securities and Exchange
Commission by Regis Corporation (the "Company"), covering up to 650,000 shares
of the Company's common stock, par value $.05, (the "Common Stock").
I am the General Counsel of the Company and, as such, have examined the
Company's Articles of Incorporation, Bylaws and such other corporate records and
documents as I have considered relevant and necessary for the purposes of this
opinion. I have participated in the preparation and filing of the Registration
Statement. I am familiar with the proceedings taken by the Company with respect
to the authorization and issuance of shares of Common Stock as described in the
Registration Statement.
Based on the foregoing, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing and in good
standing under the laws of the State of Minnesota.
2. The Company has corporate authority to issue the shares of Common Stock
covered by the Registration Statement.
3. The shares of Common Stock proposed to be issued in the public offering as
described in the Registration Statement will, when sold and paid for, be
duly and validly issued, fully paid and nonassessable.
I hereby consent to the reference of me as general counsel in the section
captioned "Legal Opinions" in the Registration Statement.
Sincerely,
REGIS CORPORATION
By /s/ Bert M. Gross
Bert M. Gross
General Counsel
BMG:peb
Enclosures
<PAGE>
Exhibit 15
LETTER RE: UNAUDITED INTERIM FINANCIAL INFORMATION
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Regis Corporation Registration Statement on Form S-3
We are aware that our reports dated May 14, 1997, February 14, 1997 and
May 9, 1997 on our reviews of interim financial information of Regis
Corporation for the periods ended September 30, 1996 and 1995, December 31,
1996 and 1995, March 31, 1997 and 1996, respectively, and included in the
Company's quarterly reports on Form 10-Q for the quarters ended September 30,
1996 (as updated by the information included in the Current Report on Form 8-K
filed on May 14, 1997), December 31, 1996 and March 31, 1997 are incorporated
by reference in this registration statement. Pursuant to Rule 436(c) under the
Securities Act of 1933, these reports should not be considered a part of the
registration statement prepared or certified by us within the meaning of
Sections 7 and 11 of that Act.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
June 3, 1997
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated May 9, 1997, on our audits of the consolidated
financial statements and financial statement schedule of Regis Corporation.
We also consent to the reference to our firm under the caption "Experts."
The incorporation by reference in this registration statement of our report
dated August 20, 1996 on our audits of the financial statements and financial
statement schedule of Regis Corporation is no longer appropriate given the
restatement of those financial statements for the October 23, 1996 merger
with Supercuts, Inc., accounted for as a "pooling-of-interests", together
with our report dated May 9, 1997.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
June 3, 1997
