<PAGE>
As filed with the Securities and Exchange Commission on September 28, 1995
Registration No. 33-85334
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM SB-2 ON FORM S-3
Under
The Securities Act of 1933
_____________________
POLYPHASE CORPORATION
(Exact name of registrant as specified in charter)
Nevada 23-2708876
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
16885 Dallas Parkway, Suite 400 Paul A. Tanner
Dallas, Texas 75248 Polyphase Corporation
(214) 732-0010 16885 Dallas Parkway
(Address, including zip code, and Dallas, Texas 75248
telephone number, including area (214) 732-0010
code, of registrant's principal (Name, address, including
executive offices) zip code, and telephone
number, including area
code, of agent for
service)
Copies of communications to:
Ronald J. Frappier, Esq.
Jenkens & Gilchrist, a Professional Corporation
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
(214) 855-4500
____________________
Approximate date of commencement of proposed sale to the public:
From time to time 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 registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check at the following box and
list the Securities Act registration statement number of 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. [_]
____________________
This Registration Statement shall become effective in accordance with
Section 8(c) of the Securities Act of 1933 on such date as the Commission,
acting pursuant to said Section 8(c), may determine.
<PAGE>
PROSPECTUS
POLYPHASE CORPORATION
8,945,500 Shares
Common Stock, $.01 Par Value
This Prospectus relates to 8,945,500 shares (the "Shares") of common stock,
$.01 par value per share (the "Common Stock"), of Polyphase Corporation, a
Nevada Corporation (the "Company"), that may be offered and sold from time to
time by certain stockholders of the Company (the "Selling Stockholders").
The Common Stock is traded on the American Stock Exchange ("AMEX") under
the symbol "PLY." On September 15, 1995, the closing price for the Common Stock
on the AMEX was $3.4375.
The Shares offered hereby may be sold from time to time by the Selling
Stockholders. Such sales may be made directly, through agents designated from
time to time, or through dealers and underwriters also to be designated, or on
the AMEX or otherwise at prices and at terms then prevailing or at prices
related to the then current market price or in negotiated transactions (which
may include the pledge or hypothecation of some or all of the Shares). To the
extent required, the specific shares of Common Stock to be sold, name of the
Selling Stockholder (or the pledgee of such Selling Stockholder, as the case may
be), public offering price, the names of any such agents, dealers or
underwriters, and any applicable commission or discount with respect to a
particular offer will be set forth in an accompanying Prospectus Supplement.
See "Plan of Distribution; Selling Stockholders."
The Company will receive none of the proceeds from the sale of the Common
Stock offered hereby by the Selling Stockholders. All expenses of registration
incurred in connection with this offering are being borne by the Company. All
selling and other expenses incurred by the Selling Stockholders will be borne by
the Selling Stockholders.
For a discussion of certain risks of an investment in the Shares, see "Risk
Factors" beginning on page 6 of this Prospectus.
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 __________________, 1995.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information............................................... 3
Incorporation of Certain Documents by Reference..................... 4
Prospectus Summary.................................................. 5
Risk Factors........................................................ 6
The Company......................................................... 9
Use of Proceeds..................................................... 9
Material Change..................................................... 9
Indemnification Provisions.......................................... 10
Plan of Distribution; Selling Stockholders.......................... 11
Legal Matters....................................................... 13
Experts............................................................. 13
</TABLE>
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of Section
13(a) 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 may be inspected and copied
at the public reference facilities maintained by the Commission at 450 Fifth
Street N.W., Washington, D.C. 20549, and at the following regional offices or
public reference facilities of the Commission: Northwestern Atrium Center, 500
W. Madison Street, Suite 1400, Chicago, Illinois 60661, and 7 World Trade
Center, New York, New York 10048. Copies of such material may be obtained from
the Public Reference Section of the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549, at prescribed rates.
The Common Stock is listed on the AMEX. Such reports, proxy
statements and other information filed pursuant to the Exchange Act may be
inspected at the offices of the AMEX, 86 Trinity Place, New York, New York
10006.
Additional information regarding the Company and the shares of Common
Stock offered hereby is contained in the registration statement entitled "Post-
Effective Amendment No. 2 to Form SB-2 on Form S-3," of which this Prospectus
forms a part, and the exhibits relating thereto (the "Registration Statement"),
filed with the Commission under the Securities Act of 1933, as amended (the
"1933 Act"). For further information pertaining to the Company and the Shares,
reference is made to the Registration Statement which may be inspected without
charge at, and copies thereof may be obtained at prescribed rates from, the
office of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of any such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits to such documents, unless such exhibits
are specifically incorporated by reference into the documents that this
Prospectus incorporates). Written or telephone request should be directed to:
Polyphase Corporation, 16885 Dallas Parkway, Suite 400, Dallas, Texas 75248,
Attention: William E. Shatley, Senior Vice President and Treasurer (telephone
214/732-0010).
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and if given or
made, such information or representation must not be relied upon as having been
authorized by the Company or the Selling Stockholders. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to purchase any
securities other than the shares of Common Stock offered hereby, or in any state
or jurisdiction in which such offer or solicitation would be unlawful. Neither
the delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that the information contained herein is
correct as of any time subsequent to the date hereof.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission and are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-KSB for the year ended
September 30, 1994.
2. The Company's Quarterly Reports on Form 10-QSB for the quarters
ended December 31, 1994, March 31, 1995 and June 30, 1995, respectively.
3. The Company's Current Report on Form 8-K dated June 24, 1994,
filed with the Commission on July 11, 1994, which was amended under cover of
Form 8-K/A (Amendment No. 1), filed with the Commission on September 6, 1994,
and Form 8-K/A (Amendment No. 2), filed with the Commission on April 3, 1995.
4. The Company's Current Report on Form 8-K dated May 5, 1995, filed
with the Commission on May 22, 1995, which was amended under cover of Form 8-K/A
(Amendment No. 1), filed with the Commission on July 19, 1995.
5. The Company's Current Report on Form 8-K, dated May 8, 1995, filed
with the Commission on May 12, 1995, which was amended under cover of Form 8-K/A
(Amendment No. 1), filed with the Commission on May 18, 1995.
6. The Company's Current Report on Form 8-K, dated May 31, 1995,
filed with the Commission on June 5, 1995.
7. The description of the of the Common Stock set forth in the
Registration Statement on Form 8-B, dated August 26, 1994, including any
amendment or report filed for the purpose of updating such description.
8. All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the Offering.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is 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.
4
<PAGE>
PROSPECTUS SUMMARY
The following information is qualified in its entirety by the more
detailed information, financial statements and related notes thereto, appearing
elsewhere or incorporated by reference in this Prospectus.
The Company
The Company is a diversified holding company that, through its
subsidiaries, currently operates primarily in four industry segments: the
forestry segment, which distributes, leases and provides financing for
industrial and commercial timber and logging equipment (the "Forestry Group");
the computer segment, which markets, services and provides the networking of
computers and related equipment and electronic parts (the "Computer Group"); the
transformer segment, which manufactures and markets electronic transformers,
inductors and filters (the "Transformer Group"); and the food processing
segment, which produces high quality entrees, plated meals, soups, sauces and
poultry, meat and fish specialties (the "Food Group"). The address of the
Company is 16885 Dallas Parkway, Dallas, Texas 75248, and its telephone number
is (214) 732-0010.
The Offering
This Prospectus relates to 8,945,500 shares of Common Stock that may
be offered and sold from time to time by the Selling Stockholders. The Company
will not receive any of the proceeds from the sale of shares of Common Stock by
the Selling Stockholders. See "Plan of Distribution; Selling Stockholders."
Material Change
On February 28, 1995, a class action suit was filed in the United
States District Court for the Eastern District of New York (the "New York
Court") against the Company, Paul A. Tanner, James Rudis and William E. Shatley
(Messrs. Tanner, Rudis and Shatley being herein collectively referred to as the
"Individuals") seeking at least $15 million in damages plus an unspecified
amount for plaintiffs' costs. The claims against the Company and the Individuals
were brought pursuant to Section 10(b) of the Exchange Act, and Rule 10b-5
promulgated thereunder, and against the Individuals pursuant to Section 20 of
the Exchange Act. The suit claims, among other things, that the Company and the
Individuals were responsible for artificially inflating the market price of the
Common Stock during the period of October 26, 1993 through January 15, 1995. The
New York Court has transferred venue for the suit to the United States District
Court for the Northern District of Texas. The Company intends to defend these
allegations vigorously.
5
<PAGE>
RISK FACTORS
Before purchasing any shares of Common Stock offered by this
Prospectus, prospective investors should consider carefully the following
factors relating to the Company and this offering, together with the other
information, financial statements and related notes thereto, appearing elsewhere
or incorporated by reference in this Prospectus.
Potential Dilution and Market Impact from Outstanding Capital Stock and Options
As of September 15, 1995, the Company had issued and outstanding
12,619,116 shares of Common Stock. In addition, at September 15, 1995, the
Company also had outstanding stock options, which if exercised (and, in the case
of the options that are exercisable for shares of any series of the Company's
preferred stock, par value $.01 per share (the "Preferred Stock"), converted)
would require the issuance by the Company of in excess of approximately
1,468,000 shares of Common Stock. Were the Company to issue additional shares of
Common Stock or Preferred Stock, in connection with acquisitions or otherwise,
or were a substantial number of stock options exercised for shares of Common
Stock, or exercised for shares of Preferred Stock and subsequently converted
into Common Stock, the voting power of each holder of Common Stock would be
diluted accordingly. Moreover, the prevailing market price for the Common Stock
may be materially and adversely affected by the addition of a substantial number
of shares of Common Stock, including the Shares offered hereby, into the market,
by the issuance by the Company of a substantial number of shares of Preferred
Stock, in connection with acquisitions or otherwise, or by the mere registration
under the 1933 Act of the sale of the Shares offered hereby. See "--Competition
for Acquisition Opportunities."
Potentially Volatile Stock Price
Since the latter part of fiscal 1992, the Company's stock price has
been volatile. On October 1, 1992, the closing price for the Common Stock on
the AMEX was $.3125, while the closing price of the Common Stock on the AMEX on
September 15, 1995 was $3.4375. On October 3, 1994, the closing price of the
Common Stock on the AMEX was $5.75. Factors such as the Company's operating
results or other announcements by the Company or its competitors may have a
significant impact on the market price of the Company's securities. In addition,
because the Company's expansion and diversification philosophy is highly
dependent on acquisitions, the price of the Common Stock may be highly volatile
and may rise or decline at an equal or greater rate than the rate at which it
has risen and declined over the last two years.
Difficulty of Planned Expansion; Management of Growth
Since a change in management in December 1992, the Company has
expanded its operations rapidly, and it plans to continue to further expand its
level of operations in all areas following this offering. The Company's
operating results will be adversely affected if net revenues do not increase
sufficiently to compensate for the increase in operating expenses caused by this
expansion. In addition, the Company's planned expansion of operations may cause
significant strain on the Company's management, technical, financial and other
resources. To manage its growth effectively, the Company must continue to
improve and expand its existing resources and management information systems and
must attract, train and motivate qualified managers and employees. There can be
no assurance, however, that the Company will successfully be able to achieve
these goals. If the Company is unable to manage its growth effectively, its
operating results will be adversely affected.
Dependence on Key Personnel
The success of the Company is dependent, in part, on its key
management personnel. In particular, the Company is highly dependent upon Paul
A. Tanner, the Company's Chairman of the Board, President and Chief Executive
Officer, James Rudis, the Company's Executive Vice President, William E.
Shatley, the Company's Senior Vice President, Harold Estes, the President of
Texas Timberjack, Inc., a subsidiary of the Company ("TTI"), and Edward R.
Marek, the Executive Vice President and General Manager of Overhill
Farms, Inc., a subsidiary of the Company ("Overhill"). The loss of the services
of Mr. Tanner, Mr. Rudis, Mr. Shatley, Mr. Estes or Mr. Marek could have a
material adverse effect on the Company. In addition,
6
<PAGE>
expansion of the Company's business may require additional managers and
employees with experience in the industries within which the Company operates.
In general, because competition within such industries is intense, competition
for skilled management personnel and other employees is intense, which may make
it more difficult and expensive to attract and retain qualified management and
other employees.
Competition for Acquisition Opportunities
The Company has undertaken an aggressive long-term program to
diversify its activities and expand its operations. A substantial portion of
such diversification and expansion has been achieved through acquisitions of
operating companies. The Company will continue to seek out and pursue potential
acquisitions in the future that management believes will complement the overall
profitability of the Company. However, the Company faces intense competition in
the acquisition market, which may tend to increase the price the Company must
pay for businesses the Company desires to acquire. No assurance can be given
that the Company will be successful in further expanding or diversifying its
activities through future acquisitions, or that if future acquisitions are
consummated, overall profitability of the Company will, in fact, be enhanced.
The Company is not currently involved in any negotiations for acquisitions which
would be considered probable.
Dependence of Forestry Group on the Logging Industry
Demand for the Forestry Group's products and services is directly
related to activity in the logging industry and general economic conditions.
The Forestry Group is currently comprised only of TTI. TTI is involved in the
sale, leasing, and financing of the equipment it distributes as well as the
servicing of all major brands of related equipment. TTI's operations are
primarily concentrated in the forested areas of East Texas although its market
extends to surrounding states. TTI operates in a fragmented industry where its
major competition is from distributors and dealers of Caterpillar and John Deere
equipment. Various economic conditions beyond the control of the Company or TTI
affect the markets for TTI's products and services, including the general
economic conditions in the regions in which TTI operates, general economic
conditions in the logging industry, the weather and, because TTI often provides
financing for the timber and logging equipment that it sells, short- and long-
term interest rates.
Regional and Local Markets of Forestry Group
The Company's operations are concentrated in various regional and
local markets. In particular, the Forestry Group operates primarily within
Eastern Texas and Western Louisiana. The demand for the Forestry Group's
products and services within these regions is cyclical, experiencing peaks and
valleys corresponding to regional and local cycles for logging products.
Factors that affect the cyclical nature of the logging industry include weather,
paper and lumber demand, and building and construction activity. In addition,
demand for logging products is somewhat seasonal because of various factors,
which include the cyclical factors mentioned above. Accordingly, the
profitability of TTI, and correspondingly the Company, may be significantly
affected by such cycles and seasonality.
Dependence on Major Customers of Transformer Group
A substantial amount of the transformers and filters sold by the
Transformer Group, which is currently comprised of Polyphase Instrument Co.
("PIC"), are incorporated into equipment and systems used by branches of the
United States Armed Forces in defense-related programs. Reliance on sales to
companies who are dependent, in part, on defense programs of the United States
Armed Forces has certain inherent risks, including dependence on Congressional
appropriations and administrative allotment of funds, changes in governmental
policies reflecting military and political development and other factors,
characteristic of the defense industry, which cause economic uncertainty in the
defense industry. Because the Transformer Group is highly dependent on
customers whose products are incorporated in defense-related products, the
recent cutbacks and proposed cutbacks in the appropriations by Congress for the
United States Armed Forces may cause a decline in the Transformer Group's sales
of transformers and filters. The Company does not anticipate that any such
declines will materially and adversely affect its future business or results of
operations, but no assurances can be given that, if such declines do occur, the
Transformer Group will be able to offset such declines through additional sales
to other or new customers.
7
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Approximately 84% of the Transformer Group's sales in fiscal 1994 were
derived from nine customers. In particular, Martin Marietta, its predecessor
company and its affiliates ("Martin Marietta") accounted for approximately 55%
of the Transformer Group's sales in fiscal 1994. On a consolidated basis, these
nine customers accounted for approximately 12% of the Company's consolidated
sales in fiscal 1994 and Martin Marietta accounted for approximately 8% of the
Company's consolidated sales in fiscal 1994. Although the Company considers its
relationships with these nine customers to be good, there can be no assurance
that these relationships will continue as presently in effect. In short, a
decline in the sales of the Transformer Group's products to these nine customers
or the loss of, or a significant change in, the relationship between the Company
and any of these key customers could have a material adverse effect on the
Company's business and operating results.
Dependence on Major Customers of Food Group
On May 5, 1995, Overhill acquired substantially all of the operating
assets of IBM Foods, Inc. ("IBM"). Operations in the Food Group currently
consist only of the operations of Overhill. Approximately 72% of IBM's sales in
its fiscal 1994 were derived from five customers, two of which accounted for
approximately 49% of its total sales, Jenny Craig, Inc. (35%) and American
Airlines (14%). On a pro forma consolidated basis these five customers would
have accounted for approximately 48% of the Company's pro forma consolidated
sales in fiscal 1994 and Jenny Craig would have represented approximately 23% of
the Company's pro forma consolidated sales for such fiscal year. Although the
Company considers its relationships with these five customers to be good, there
can be no assurance that these relationships will continue as presently in
effect. A decline in the sales of the Food Group's products to these five
customers or the loss of, or a significant change in, the relationship between
the Company and any of these key customers could have a material adverse effect
on the Company's business and operating results.
Competition
Competition in the industries in which the Company operates generally
is intense. Many of the Company's competitors have greater market recognition
and greater, financial, technical, marketing and human resources than the
Company. There can be no assurance that the Company will compete successfully
against existing companies or new entrants to the marketplace. Furthermore, the
development by competitors of new or improved products, services and/or
technologies may render the Company's products or services (or proposed products
or services) obsolete or less competitive.
Effect of Certain Provisions of the Company's Articles of Incorporation
The Company's Articles of Incorporation contain certain provisions
that may tend to delay, deter, or prevent a takeover of the Company that
stockholders might consider to be in their best interest. These provisions
include the following:
Preferred Stock. The Company's Articles of Incorporation permit the
Company's Board of Directors to issue at any time without stockholder approval
up to 50,000,000 shares of Preferred Stock, in one or more series, with
preferential voting or other rights that would tend to discourage, deter or
delay a takeover by reducing the ability of a potential acquiror to acquire the
necessary votes to obtain control of the Company. Pursuant to its power to
establish series of Preferred Stock, the Board of Directors may also, by
resolution, establish or change the preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends, qualifications, or
terms and conditions of redemption of the Preferred Stock and may issue such
shares of Preferred Stock for such consideration and on such terms as it deems
desirable. Acting pursuant to this authority the Board of Directors has
designated a total of 750,000 shares of Series A-2 Preferred Stock, 750,000
shares of Series A-5 Preferred Stock, 375,000 Series A Preferred Stock, 300,000
shares of Series B Preferred Stock, 300,000 shares of Series C Preferred Stock,
600,000 shares of Series D Preferred Stock and 1,325,000 shares of Series E
Preferred Stock. Each currently existing series of Preferred Stock allows for
the outstanding shares in such series to be converted at the option of the
holder into shares of Common Stock. The conversion ratios for the currently
designated series of Preferred Stock range from 1 to 20 shares of Common Stock
issuable for each share of Preferred Stock surrendered for conversion. The
Company currently has no outstanding shares of Preferred Stock, although it may
in the future issue shares
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in one or more of its currently designated series of Preferred stock or in
additional series of Preferred Stock which have yet to be designated,
particularly in connection with any future acquisitions the Company may make.
See "Risk Factors--Potential Dilution and Market Impact from Outstanding Capital
Stock and Options."
Other items. The Company's Articles of Incorporation contain certain
provisions with respect to the indemnification of the Company's officers,
directors, employees and agents. See "Indemnification Provisions."
Article Eleventh of the Company's Articles of Incorporation provides
that no director or officer of the Company shall be personally liable to the
Company or any of its stockholders for damages for breach of his fiduciary duty
as a director or officer involving any act or omission of such director or
officer, except for personal liability resulting from acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law, or the
payment of distributions in violation of the Nevada General Corporation Law
("NGCL").
THE COMPANY
The Company is a diversified holding company that, through its
subsidiaries, currently operates primarily in four industry segments: the
forestry segment, which distributes, leases and provides financing for
industrial and commercial timber and logging equipment; the computer segment,
which markets, services and provides the networking of computers and related
equipment and electronic parts; the transformer segment, which manufactures and
markets electronic transformers, inductors and filters; and the food processing
segment, which produces high quality entrees, plated meals, soups, sauces and
poultry, meat and fish specialties. The address of the Company is 16885 Dallas
Parkway, Dallas, Texas 75248, and its telephone number is (214) 732-0010.
USE OF PROCEEDS
This Prospectus relates to shares of Common Stock that may be offered
from time to time by the Selling Stockholders. See "Plan of Distribution;
Selling Stockholders." The Company will receive none of the proceeds from the
sale of the Common Stock offered hereby by the Selling Stockholders.
MATERIAL CHANGE
On February 28, 1995, a class action suit was filed in the New York
Court against the Company, Paul A. Tanner, James Rudis and William E. Shatley
seeking at least $15 million in damages plus an unspecified amount for
plaintiffs' costs. The claims against the Company and the Individuals were
brought pursuant to Section 10(b) of the Exchange Act, and Rule 10b-5
promulgated thereunder, and against the Individuals pursuant to Section 20 of
the Exchange Act. The suit claims, among other things, that the Company and the
Individuals were responsible for artificially inflating the market price of the
Common Stock during the period of October 26, 1993 through January 15, 1995. The
New York Court has transferred venue for the suit to the United States District
Court for the Northern District of Texas. The Company intends to defend these
allegations vigorously.
INDEMNIFICATION PROVISIONS
The Company is a Nevada corporation. Section 78.751 of the NGCL
provides authority for broad indemnification of officers, directors, employees
and agents of a corporation. The NGCL also permits a corporation to purchase
and maintain liability insurance on behalf of any such officer, director,
employee or agent of a corporation.
9
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Article Eleventh of the Company's Articles of Incorporation provides
that no director or officer of the Company shall be personally liable to the
Company or any of its stockholders for damages for breach of his fiduciary duty
as a director or officer involving any act or omission of such director or
officer, except for personal liability resulting from acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law, or the
payment of distributions in violation of the NGCL.
Article Tenth of the Company's Articles of Incorporation provides that
the Company shall have the power both to indemnify its directors, officers,
employees and agents to the extent currently allowed by the NGCL and to purchase
and maintain liability insurance on behalf of such persons. At the present
time, the Company does not have any such liability insurance, nor does the
Company have indemnification agreements with any of its directors, officers,
employees or agents.
Insofar as indemnification for liabilities arising under the 1933 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 Commission such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the small business issuer of expenses incurred or
paid by a director, officer or controlling person of the small business issuer
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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
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PLAN OF DISTRIBUTION; SELLING STOCKHOLDERS
This Prospectus relates to 8,945,500 shares of Common Stock that may
be offered and sold from time to time by the Selling Stockholders. The Company
will not receive any of the proceeds from the sale of the Shares by the Selling
Stockholders.
Set forth below is information, as of September 15, 1995, regarding
the beneficial ownership of the Shares by each Selling Stockholder.
<TABLE>
<CAPTION>
Number of Shares Number of
of Common Stock Shares of Common Stock
Beneficially Common Beneficially
Owned Prior to Stock Owned After
Offering (1) Offered Offering (2)
---------------- ------------- ----------------------
Number Percent
---------- --------
<S> <C> <C> <C> <C>
Credit Resolution Corporation.......................... 37,500 37,500 0 0
Steven T. Douglas...................................... 500,000 500,000 0 0
Weldon Hays............................................ 250,000 250,000 0 0
International Business Exchange
Corporation.......................................... 15,000 15,000 0 0
Kazlow & Kazlow........................................ 50,000 50,000 0 0
Kronish, Lieb, Weiner & Hellman........................ 160,000 160,000 0 0
Ric Mitchell........................................... 20,000 20,000 0 0
Bonnie J. Moore & Michael Moore........................ 40,000 40,000 0 0
Michael C. Moore, MDPC Pension &
Profit Sharing Plan.................................. 40,000 40,000 0 0
Michael C. Moore, MDPC Pension Plan.................... 40,000 40,000 0 0
Michael Panayiotis..................................... 150,000 150,000 0 0
Michael A. Roberts..................................... 40,000 40,000 0 0
Walter W. Scherf....................................... 24,000 24,000 0 0
James T. Taylor........................................ 80,000 80,000 0 0
Ronald H. Underwood.................................... 150,000 150,000 0 0
Jefferson Marketing Corp............................... 150,000 150,000 0 0
Pyrenees Group......................................... 4,115,000(3) 4,115,000(3) 0 0
Scientific Plastics, Inc............................... 80,000 80,000 0 0
IBM Foods, Inc......................................... 300,000 300,000 0 0
David L. Brown......................................... 150,000 150,000 0 0
Gene H. Thurston, Jr................................... 75,000 75,000 0 0
Mike S. Boatman........................................ 311,700 87,500 224,200 1.8%
Paul Stevens........................................... 150,000 150,000 0 0
Harold Estes........................................... 2,000,000(4) 2,000,000(4) 0 0
Brett Ashley........................................... 117,600 117,600 0 0
Michel Swornik......................................... 81,600 81,600 0 0
Serge Bien-Aime........................................ 40,800 40,800 0 0
Steven R. Block........................................ 1,500 1,500 0 0
</TABLE>
- ---------------
(1) Unless otherwise indicated, to the knowledge of the Company, the persons
and entities named in the table have sole voting and sole investment power
with respect to all shares of Common Stock beneficially owned, subject to
community property laws where applicable.
(2) Assumes that all shares of Common Stock offered hereby by each Selling
Stockholder are actually sold. Such presentation is based on 12,619,116
shares of Common Stock outstanding as of September 15, 1995.
11
<PAGE>
(3) The Pyrenees Group, a Nevada corporation, is owned by Paul A. Tanner (8%),
James Rudis (10%), William E. Shatley (5%), Wayne H. Creasy (20%), Lefferts
L. Mabie, Jr. (3%), the Tanner Family Trust (20%), the Elizabeth Carter
Children's Foundation (30%) and four other investors (1% each). Mr. Paul A.
Tanner, the sole member of the Board of Directors of the Pyrenees Group,
has sole voting and dispositive power with respect to the shares shown.
This figure of 4,115,000 includes 3,140,000 shares of Common Stock that are
held by the Pyrenees Group and 975,000 shares of Common Stock underlying
the remainder of the Pyrenees Group's options regarding Preferred Stock of
the Company.
(4) Mr. Estes is the President of TTI.
Holders of a total of 7,668,000 of the Shares have agreed with the Company
that they (together with any successors, assigns or pledgees) will not sell more
than 848,000 of the Shares during any consecutive three-month period.
The Company has been advised by the Selling Stockholders that they intend
to sell all or a portion of the Shares offered by this Prospectus from time to
time (i) on the AMEX, (ii) otherwise than on the AMEX, in negotiated
transactions (which may include the pledge or hypothecation of some or all of
the Shares) at fixed prices which may be changed, at market prices prevailing at
the time of sale or at prices reasonably related thereto or at negotiated
prices, or (iii) by a combination of the foregoing methods of sale. The Selling
Stockholders 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 Selling Stockholders and/or the
purchasers of the Shares for which such broker-dealers may act as agent or to
whom they may sell as principal, or both. The Company is not aware as of the
date of this Prospectus of any agreements between any of the Selling
Stockholders and any broker-dealers with respect to the sale of the Shares
offered by this Prospectus. The Selling Stockholders and any broker, dealer or
other agent executing sell orders on behalf of the Selling Stockholders may be
deemed to be "underwriters" within the meaning of the 1933 Act, in which event
commissions received by any such broker, dealer or agent and profit on any
resale of the Shares of principal may be deemed to be underwriting commissions
under the 1933 Act. Such commissions received by a broker, dealer or agent may
be in excess of customary compensation. The Shares may also be sold in
accordance with Rule 144 and Rule 145 under the 1933 Act.
All expenses of registration incurred in connection with the offering will
be borne by the Company. All selling and other expenses incurred by the Selling
Stockholders will be borne by the Selling Stockholders.
In effecting the sale of the Shares offered by this Prospectus, each of the
Selling Stockholders must comply with Rule 10b-6 under the Exchange Act, which
will require that a Selling Stockholder, as well as any person who acts in
concert with such Selling Stockholder and the broker, if any, who sells the
Shares on behalf of such Selling Stockholder, suspend all purchases of shares of
Common Stock at least nine (9) business days prior to and during any offers and
sales by such Selling Stockholder of the Shares offered by this Prospectus. In
the case of any Selling Stockholder who is an affiliate of the Company, Rule
10b-6 also requires the Company and all persons who are in a control
relationship with the Company to suspend all purchases of capital stock of the
Company at least nine business days prior to and during any offers and sales by
the affiliate Selling Stockholder of the shares of common stock offered by this
Prospectus. The Company will require each Selling Stockholder, and his or her
broker if applicable, to provide a letter that acknowledges his or her
compliance with Rule 10b-6 before authorizing the transfer of such Selling
Stockholder's Shares.
LEGAL MATTERS
The validity of the Shares being offered hereby will be passed upon
for the Company by Jenkens & Gilchrist, a Professional Corporation, Dallas,
Texas.
12
<PAGE>
EXPERTS
The consolidated financial statements of the Company as of September
30, 1994 and 1993 and for each of the years in the two-year period ended
September 30, 1994 incorporated in this Prospectus by reference to the annual
report on Form 10-KSB for the year ended September 30, 1994, have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
The financial statements of TTI as of March 31, 1994 and 1993 and for
each of the years in the two-year period ended March 31, 1994 incorporated in
this Prospectus by reference to the Current Report on Form 8/K dated June 24,
1994, which was amended under cover of Form 8-K/A (Amendment No. 1), filed with
the Commission on August 31, 1994, and Form 8-K/A (Amendment No. 2), filed with
the Commission on April 3, 1995, have been so incorporated in reliance on the
reports of Axley & Rode LLP, independent auditors, given upon the authority of
said firm as experts in auditing and accounting.
The financial statements of IBM Foods, Inc. at September 25, 1994, and
for the year ended September 25, 1994, the four months ended September 26, 1993,
and the year ended May 30, 1993, appearing in Polyphase Corporation's Current
Report on Form 8-K dated May 5, 1995, which was amended under cover of Form 8-
K/A (Amendment No. 1) filed with the Commission on July 19, 1995, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
-------------------------------------------
The estimated fees and expenses payable by the Company in connection
with the issuance and distribution of the Common Stock registered hereunder are
as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.. $ 17,016
American Stock Exchange Listing Fee.................. $ 17,500
Legal fees and expenses.............................. $ 60,000
Blue Sky fees and expenses (including legal fees).... $ 7,000
Printing and engraving expenses...................... $ 16,000
Accounting fees and expenses......................... $100,000
Transfer Agent and Registrar fees.................... $ 2,500
Miscellaneous........................................ $ 4,984
--------
TOTAL $225,000
========
</TABLE>
The Selling Stockholders are paying none of the expenses of registration
incurred with this offering.
ITEM 15. Indemnification of Directors and Officers.
-----------------------------------------
The Company is a Nevada corporation. Section 78.751 of the General
Corporation Law of Nevada (the "NGCL") provides authority for broad
indemnification of officers, directors, employees and agents of a corporation.
The NGCL also permits a corporation to purchase and maintain liability insurance
on behalf of any such officer, director, employee or agent of a corporation.
Article Eleventh of the Company's Articles of Incorporation provides that
no director or officer of the Company shall be personally liable to the Company
or any of its stockholders for damages for breach of his fiduciary duty as a
director or officer involving any act or omission of such director or officer,
except for personal liability resulting from acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law, or the payment of
distributions in violation of the NGCL.
Article Tenth of the Company's Articles of Incorporation provides that the
Company shall have the power both to indemnify its directors, officers,
employees and agents to the extent currently allowed by the NGCL and to purchase
and maintain liability insurance on behalf of such persons.
At the present time, the Company does not have any such liability
insurance, nor does the Company have indemnification agreements with any of its
directors, officers, employees or agents.
ITEM 16. Exhibits.
--------
II-1
<PAGE>
4.1 Articles of Incorporation of the Company, as amended (incorporated by
reference from Exhibit 4.1 and Exhibits 4.3 through 4.8 to the
Company's registration statement on Form S-8 (No. 33-82008), filed
with the Commission on July 27, 1994 and from Exhibit 4.9 to the
Company's registration statement on Form SB-2 (No. 33-85334), filed
with the Commission on October 19, 1994)
4.2 Bylaws of the Company (incorporated by reference from Exhibit 4.2 to
the Company's Registration Statement on Form S-8 (No. 33-82008) filed
with the Commission on July 27, 1994)
4.3* Specimen Common Stock Certificate of the Company
4.4* Specimen Series A-2 Preferred Stock Certificate of the Company
4.5* Specimen Series A-5 Preferred Stock Certificate of the Company
4.6* Specimen Series A Preferred Stock Certificate of the Company
4.7* Specimen Series B Preferred Stock Certificate of the Company
4.8* Specimen Series C Preferred Stock Certificate of the Company
4.9* Specimen Series D Preferred Stock Certificate of the Company
4.10*Specimen Series E Preferred Stock Certificate of the Company
4.11 Loan and Security Agreement, dated May 5, 1995, among FINOVA Capital
Corporation and Overhill Farms, Inc. (incorporated by reference from
the Company's Current Report on Form 8-K, dated May 5, 1995)
4.12 Secured Promissory Note in principal amount of $2,000,000, dated May
5, 1995 (incorporated by reference from the Company's Current Report
on Form 8-K, dated May 5, 1995)
4.13 Secured Promissory Note in principal amount of $4,000,000, dated May
5, 1995 (incorporated by reference from the Company's Current Report
on Form 8-K, dated May 5, 1995)
4.14 Intercreditor and Subordination Agreement, dated May 5, 1995, among
FINOVA Capital Corporation, Rice Partners II, L.P., and Overhill
Farms, Inc. (incorporated by reference from the Company's Current
Report on Form 8-K, dated May 5, 1995)
4.15 Note Purchase Agreement, dated May 5, 1995, among Rice Partners II,
L.P. and Overhill Farms, Inc. (incorporated by reference from the
Company's Current Report on Form 8-K, dated May 5, 1995)
4.16 Senior Subordinated Note in principal amount of $13,000,000, dated May
5, 1995 (incorporated by reference from the Company's Current Report
on Form 8-K, dated May 5, 1995)
4.17 Nonrecourse Continuing Corporate Guaranty, dated May 5, 1995, by
Polyphase Corporation (incorporated by reference from the Company's
Current Report on Form 8-K, dated May 5, 1995)
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
II-2
<PAGE>
23.1** Consent of Ernst & Young LLP
23.2** Consent of Price Waterhouse LLP
23.3** Consent of Axley & Rode, LLP
23.4* Consent of Jenkens & Gilchrist, a Professional Corporation
(included in Exhibit 5.1)
24.1* Power of Attorney
____________________
* Previously filed.
** Filed herewith.
ITEM 17. Undertakings.
------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
additional or changed material information on the plan of distribution.
(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.
II-3
<PAGE>
SIGNATURES
In accordance with 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 authorized this Post-
Effective Amendment No. 2 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Dallas,
State of Texas, on September 27, 1995.
POLYPHASE CORPORATION
By: /s/ Paul A. Tanner
-------------------
Paul A. Tanner, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 2 to the Registration Statement has been signed by the
following persons in the capacities indicated on the 27th day of September,
1995.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Paul A. Tanner President, Chief Executive Officer and Chairman of
- -------------------- the Board (Principal Executive Officer)
Paul A. Tanner
* Executive Vice President and Director
- --------------------
James Rudis
* Senior Vice President and Treasurer
- -------------------- (Principal Accounting and Financial Officer)
William E. Shatley
* Director
- --------------------
Michael F. Buck
* Director
- --------------------
George R. Schrader
</TABLE>
* By: /s/ Paul A. Tanner
------------------
Paul A. Tanner
Attorney-in-Fact
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
<C> <S> <C>
4.1 Articles of Incorporation of the Company, as
amended (incorporated by reference from Exhibit 4.1
and Exhibits 4.3 through 4.8 to the Company's
registration statement on Form S-8 (No. 33-82008),
filed with the Commission on July 27, 1994 and from
Exhibit 4.9 to the Company's Registration Statement
on Form SB-2 (No. 33-85334), filed with the
Commission on October 19, 1994)
4.2 Bylaws of the Company (incorporated by reference
from Exhibit 4.2 to the Company's Registration
Statement on Form S-8 (No. 33-82008) filed with the
Commission on July 27, 1994)
4.3* Specimen Common Stock Certificate of the Company
4.4* Specimen Series A-2 Preferred Stock Certificate of
the Company
4.5* Specimen Series A-5 Preferred Stock Certificate of
the Company
4.6* Specimen Series A Preferred Stock Certificate of
the Company
4.7* Specimen Series B Preferred Stock Certificate of
the Company
4.8* Specimen Series C Preferred Stock Certificate of
the Company
4.9* Specimen Series D Preferred Stock Certificate of
the Company
4.10* Specimen Series E Preferred Stock Certificate of
the Company
4.11 Loan and Security Agreement, dated May 5, 1995,
among FINOVA Capital Corporation and Overhill
Farms, Inc. (incorporated by reference from the
Company's Current Report on Form 8-K, dated May 5,
1995)
4.12 Secured Promissory Note in principal amount of
$2,000,000, dated May 5, 1995 (incorporated by
reference from the Company's Current Report on Form
8-K, dated May 5, 1995)
4.13 Secured Promissory Note in principal amount of
$4,000,000, dated May 5, 1995 (incorporated by
reference from the Company's Current Report on Form
8-K, dated May 5, 1995)
4.14 Intercreditor and Subordination Agreement, dated
May 5, 1995, among FINOVA Capital Corporation, Rice
Partners II, L.P., and Overhill Farms, Inc.
(incorporated by reference from the Company's
Current Report on Form 8-K, dated May 5, 1995)
4.15 Note Purchase Agreement, dated May 5, 1995, among
Rice Partners II, L.P. and Overhill Farms, Inc.
(incorporated by reference from the Company's
Current Report on Form 8-K, dated May 5, 1995)
4.16 Senior Subordinated Note in principal amount of
$13,000,000, dated May 5, 1995 (incorporated by
reference from the Company's Current Report on Form
8-K, dated May 5, 1995)
4.17 Nonrecourse Continuing Corporate Guaranty, dated
May 5, 1995, by Polyphase Corporation (incorporated
by reference from the Company's Current Report on
Form 8-K, dated May 5, 1995)
5.1* Opinion of Jenkens & Gilchrist, a Professional
Corporation
</TABLE>
<PAGE>
<TABLE>
<S> <C>
23.1** Consent of Ernst & Young LLP
23.2** Consent of Price Waterhouse LLP
23.3** Consent of Axley & Rode, LLP
23.4* Consent of Jenkens & Gilchrist, a Professional
Corporation (included in Exhibit 5.1)
24.1* Power of Attorney
</TABLE>
____________________
* Previously filed.
** Filed herewith.
<PAGE>
EXHIBIT 23.1
Consent of Ernst & Young LLP
We consent to the reference to our firm under the caption "Experts" in Post-
Effective Amendment No. 2 to Form SB-2 on Form S-3 (No. 33-85334) and related
Prospectus of Polyphase Corporation for the registration of 8,945,500 shares of
its common stock and to the incorporation by reference therein of our report
dated June 29, 1995 with respect to the financial statements of IBM Foods, Inc.
included in Polyphase Corporation's Current Report on Form 8-K dated May 5,
1995, which was amended under cover of Form 8-K/A (Amendment No. 1), filed with
the Securities and Exchange Commission on July 19, 1995.
ERNST & YOUNG LLP
Dallas, Texas
September 25, 1995
<PAGE>
EXHIBIT 23.2
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Post-Effective Amendment No.
2 to Form SB-2 on Form S-3 of our report dated January 4, 1995 appearing on page
F-2 of Polyphase Corporation's Annual report on Form 10-KSB for the year ended
September 30, 1994. We also consent to the reference to us under the heading
"Experts" in such prospectus.
PRICE WATERHOUSE LLP
Dallas, Texas
September 25, 1995
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITOR'S CONSENT
------------------------------
We consent to the reference to our firm under the caption "Experts" in the
Post-Effective Amendment No. 2 to Form SB-2 on Form S-3 (the "Registration
Statement") and to the incorporation by reference in the Registration Statement
of our report dated June 24, 1994, included in the Current Report on Form 8-K,
dated June 24, 1994, which was amended under cover of Form 8-K/A (Amendment No.
1), dated August 31, 1994, and Form 8-K/A (Amendment No. 2), dated April 3,
1995, of Polyphase Corporation, filed with the Securities and Exchange
Commission.
/s/ Axley & Rode LLP
--------------------
CERTIFIED PUBLIC ACCOUNTANTS
September 25, 1995
Lufkin, Texas
