FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FOUNTAIN POWERBOAT INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Nevada 88-0160250
(State or other jurisdiction of (I.R.S. Employer Identifi-
incorporation or organization) cation Number)
Whichards Beach Road, Washington, North Carolina 27889
(Address of Principal Executive Offices) (Zip Code)
1986 Incentive Stock Option Plan
Director Options
1995 Stock Option Plan
(Full Title of the plans)
Reginald M. Fountain, Jr.
Whichards Beach Road, Washington, North Carolina 27889
(Name and address of agent for service)
(919) 975-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
securities Proposed maximum
to be Amount to be maximum offering aggregate offering Amount of
registered registered price per unit price registration fee
<S> <C> <C> <C> <C>
Common Stock(1) 780,000 $11.75 (2) $9,165,000 $3,160.34
par value $.01
</TABLE>
(1) Includes shares issuable as follows:
Number
Plan of Shares
1986 Incentive Stock Option Plan 400,000
Director Options 80,000
1995 Stock Option Plan 300,000
(2) The registration fee is based upon the average of the closing bid and
asked price of the Common Stock as of October 2, 1996 of $11.75,
which is higher than the exercise price of the outstanding options,
in accordance with Rule 457(g).
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PROSPECTUS
FOUNTAIN POWERBOAT INDUSTRIES, INC.
Up to 780,000 Shares of Common Stock
Receivable by Directors, Officers and Others
Under the 1986 Incentive Stock Option Plan,
Director Options and 1995 Stock Option Plan
and Reoffered by Means of this Prospectus
This Prospectus shall be supplemented from
time to time as the identity of the officers and
directors and shares to be reoffered by them, if any, becomes known
Selling shareholders will offer their shares on NASDAQ, or on any
national securities exchange if the common stock is then listed on such
exchange. Selling shareholders, if control persons, are required to sell their
shares in accordance with the volume limitations of Rule 144 under the
Securities Act of 1933, which restricts sales in any three month period to the
greater of 1% of the total outstanding common stock or the average weekly
trading volume of the Company's common stock during the four calendar weeks
immediately preceding such sale. It is expected that persons effecting
transactions will be paid the normal and customary commissions for market
transactions.
AVAILABLE INFORMATION
Fountain Powerboat Industries, Inc. (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 and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, as well as proxy statements and other information filed by the Company
with the Commission, can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at its Regional Offices located at 150 Causeway
Street, Boston, Massachusetts 02114, 1375 Peachtree Street N.E., Suite 788,
Atlanta, Georgia 30367, 411 West Seventh Street, 8th Floor, Fort Worth, Texas
76102, 410 Seventeenth Street, Suite 700, Denver, Colorado 80202, 600 Arch
Street, Room 2204, Federal Building, Philadelphia, Pennsylvania 19106, 26
Federal Plaza, Room 1028, New York, New York 10278, 5757 Wilshire Boulevard, Los
Angeles, California 90036-3648, Everett McKinley Dirksen Building, Northwestern
Atrium Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can be obtained at prescribed rates from the Public Reference Section
of the Commission, Washington, D.C. 20549.
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<PAGE>
SELLING STOCKHOLDERS
Information regarding the beneficial ownership of common stock owned by
each other officer and director of the Company selling common stock pursuant to
this Prospectus and all officers and directors of the Company as a group selling
common stock pursuant to this Prospectus is set forth below.
<TABLE>
<CAPTION>
Before Offering After Offering
Amount of Percent Amount of Percent
Name and Beneficial of Beneficial of
Address Ownership Class Ownership Class
<S> <C> <C> <C> <C>
Reginald M. Fountain, Jr.(1) 1,710,415 (2) 51.2% 1,390,415 45.9%
Gary D. Garbrecht(1) 20,000 (2) (3) -- --
Mark L. Spencer(1) 20,000 (2) (3) -- --
Federico Pignatelli(1) 20,000 (2) (3) -- --
Gary E. Mazza, III(1) 20,000 (2) (3) -- --
Allan L. Krehbiel(1) 20,000 (2) (3) -- --
Blanche C. Williams(1) 100 (3) 100 (3)
All directors and officers
as a group (7 persons) 1,810,515 (2) 56.5% 1,390,515 45.9%
</TABLE>
(1) The address of each person is P.O. Drawer 457, Whichard's Beach Road,
Washington, North Carolina 27889. Except as otherwise indicated, to the
best knowledge of management of the Company each of the persons listed
or included in the group has sole voting and investment power over all
shares shown as beneficially owned. Percentages for each person listed
and for the group are calculated on the basis of the Company's total
outstanding shares less the 10,000 shares owned by the Company's
Subsidiary.
(2) Includes options to purchase 20,000 shares of Common Stock held by this
individual, or an aggregate of options to purchase 20,000 shares held
by Messrs. Fountain, Garbrecht, Spencer, Pignatelli, Mazza and
Krehbiel, and options to purchase an additional 300,000 shares held by
Mr. Fountain.
(3) Less than 1%
INFORMATION WITH RESPECT TO THE COMPANY
This Prospectus is accompanied by the Company's Annual Report on Form
10-K for the year ended June 30, 1996 and the Quarterly Reports or the latest
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K filed subsequent thereto. These Annual and Quarterly Reports as well
as all other reports filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 are hereby incorporated by
reference in this Prospectus and may be obtained, without charge, upon the oral
or written request of any person at Whichards Beach Road, Washington, North
Carolina 27881, telephone (919) 975-2000.
3
<PAGE>
INDEMNIFICATION
The Company's Bylaws and the Nevada General Corporation Law provide for
indemnification of directors and officers against certain liabilities. Officers
and directors of the Company are indemnified generally against expenses actually
and reasonably incurred in connection with proceedings, whether civil or
criminal, provided that it is determined that they acted in good faith, were not
found guilty, and, in any criminal matter, had reasonable cause to believe that
their conduct was not unlawful.
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.
PART II
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates the following documents by reference in
the registration statement:
(a) The Company's Annual Report on Form 10-K, filed for the year
ended June 30, 1996; and
(b) A description of securities is incorporated by reference from
the Registrant's Registration Statement
on Form 8-A, File No. 0-14712 filed on June 11, 1986.
All other documents filed in the future by Registrant after the date
of this Registration Statement, under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment to this Registration Statement which deregisters the securities
covered hereunder which remain unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Officers and Directors
The Company's Bylaws and the Nevada General Corporation Law provide
for indemnification of directors and officers against certain liabilities.
Officers and directors of the Company are indemnified generally against expenses
actually and reasonably incurred in connection with proceedings, whether civil
or criminal, provided that it is determined that they acted in good faith, were
not found guilty, and, in any criminal matter, had reasonable cause to believe
that their conduct was not unlawful.
Item 7. Exemption from Registration Claimed
All sales are expected to be either registered or exempt from the
registration requirements of the Securities Act of 1933, as amended, by virtue
of Section 4(2) thereof covering transactions not involving any public offering
or not involving any "offer" or "sale."
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<PAGE>
Item 8. Exhibits
3. Certificate of Incorporation and Bylaws
3.1 Certificate of Incorporation of the Company
(Incorporated by reference to the Company's
Registration Statement filed on October 2, 1986)
3.2 Amendments to Certificate of Incorporation of the
Company (Incorporated by reference
to Amendment No. 1 to the Company's Registration
3.3 Amendment to Certificate of Incorporation of the
Company (Incorporated by reference to the exhibit filed
with the Registrant's Annual Report on Form 10-K for
the fiscal year ended June 30, 1991)
3.4 By-laws of the Company (Incorporated by reference to
Amendment No. 1 to the
Company's Registration Statement filed on December 2,
1986
3.5 Certificate of Amendment to the Articles of
Incorporation, Consent Action in Writing of the
Majority Stockholders, and Resolutions adopted by
Unanimous Written Consent of the Board of Directors for
the one-for-two reverse stock split of February 4, 1994
4. Instruments Defining the Rights of Security Holders.
4.1 Form of Warrant Agreement (Incorporated by reference to
Amendment No. 2 to the
Company's Registration Statement filed on December 10,
1986)
4.2 Form of Stock Certificate (Incorporated by reference to
the exhibit filed with the Registrant's Annual Report
on Form 10-K for the fiscal year ended October 1, 1989)
4.3 Form of Warrant Certificate (Incorporated by reference
to Amendment No. 2 to the
Company's Registration Statement filed on December 10,
1986)
5. Opinion of Hand & Hand as to legality of securities being
registered. Filed herewith.
10: Material Contracts
10.1 1986 Incentive Stock Option Plan (Incorporated by
reference to amendment No. 1 to the
Company's Registration Statement filed on December 2,
1986)
10.2 Employment Agreement dated May 31, 1989 between
Reginald M. Fountain, Jr. and the
Company's Subsidiary (Incorporated by reference to the
exhibit filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended
October 1, 1989)
10.3 Employment Agreement dated May 31,1 989 between Leon P.
Smith and the Company's Subsidiary (Incorporated by
reference to the exhibit filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended
October 1, 1989)
10.5 Loan Agreement dated May 23, 1989 by and between
Fountain Powerboats, Inc. and MetLife Financial
Acceptance Corporation (Incorporated by reference to
the exhibit filed with the Registrant's Annual Report
on Form 10-K for the fiscal year ended October 1, 1989)
10.6 Revolving Loan and Security Agreement, dated May 23,
1989 by and between Fountain Powerboats, Inc. and
MetLife Financial Acceptance Corporation (Incorporated
by reference to the exhibit filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended
October 1, 1989)
10.7 First modification of Loan Agreement dated August 29,
1990 by and between Fountain Powerboats, Inc. and
MetLife Financial Acceptance Corporation (Incorporated
by reference to the exhibit filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended
July 1, 1990)
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<PAGE>
10.8 First Modification of Revolving Loan and Security
Agreement dated August 29, 1990 by and between Fountain
Powerboats, Inc. and MetLife Financial Acceptance
Corporation (Incorporated by reference to the exhibit
filed with the Registrant's Annual Report on Form 10-K
for the fiscal year ended July 1, 1990)
10.9 Loan and Security Agreement with MetLife Capital
Corporation dated December 31, 1993 10.10 Consulting and
Marketing Agreement with the Mercury Marine division of the
Brunswick
Corporation dated March 22, 1991
10.11 Loan Extension and Amendment Agreement with the Mercury
Marine division of the Brunswick Corporation dated July
11, 1994
10.12 Amendment to Consulting and Marketing Agreement with
the Mercury Marine division of the Brunswick
Corporation dated July 11, 1994
10.13 Standstill Agreement with the Mercury Marine division
of the Brunswick Corporation
dated July 11, 1994
10.14 Amendment No. One dated September 24, 1994 to Loan and
Security Agreement of
December 31, 1993 with MetLife Capital Corporation
10.15 Consent to Loan Restructure dated January 1, 1995 from
MetLife Capital Corporation 10.16 Amendment No. Two dated
January 1, 1995 to Loan and Security Agreement of
December 31, 1993 with MetLife Capital Corporation
10.17 Second Loan Extension, Consolidation and Amendment
Agreement dated February 24,
1995 with Brunswick Corporation, Mercury MarineDivision
10.18 Modification of Deeds and Trust and Assignment of
Rents, Issues and Profits dated
February 24, 1995 with Brunswick Corporation, Mercury
Marine Division
10.19 Consulting and Marketing Agreement dated February 24,
1995 with Brunswick
Corporation, Mercury Marine Division
10.20 Supply Agreement dated February 24, 1995 with Brunswick
Corporation, Mercury Marine Division
10.21 Master Security Agreement dated December 21, 1995 with
G.E. Capital Corporation (Incorporated by reference to
the Company's annual Report on Form 10-K for the year
ended June 30, 1996.)
10.22 Promissory Note dated December 21, 1995 with G.E.
Capital Corporation (Incorporated by reference to the
Company's Annual Report on Form 10-K for the year ended
June 30, 1996)
10.23 Collateral Schedule No. 001 dated December 21, 1995
with G.E. Capital Corporation
(Incorporated by reference to the Company's Annual
Report on Form 10-K for the year
ended June 30, 1996)
10.24 Letter of Credit Agreement dated December 21, 1995 with
G.E. Capital Corporation (Incorporated by reference to
the Company's Annual Report on Form 10-K for the year
ended June 30, 1996)
21. List of Subsidiaries (Incorporated by reference to the Company's
Annual Report on Form 10-K for
the year ended June 30, 1996)
23. Consents of Experts and Counsel
23.1 Consent of Accountants. Filed herewith.
23.2 Consent of Hand & Hand included in Exhibit 5 hereto
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
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<PAGE>
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act
of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(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,
including (but not limited to) any addition
or election of a managing underwriter.
(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
offered at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to
Section 13(a) or 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.
(i) 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 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 that 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
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Washington, North
Carolina, on October 8, 1996.
FOUNTAIN POWERBOAT INDUSTRIES, INC.
By: /s/ Reginald M. Fountain, Jr.
Reginald M. Fountain, Jr.
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed below by the following persons in the
capacities indicated on October 8, 1996.
Chairman, President, Chief
Executive Officer and Director
Reginald M. Fountain, Jr. (principal executive officer)
Chief Financial Officer
Allan L. Krehbiel (principal accounting and
financial officer)
Director
Gary D. Garbrecht
Director
Mark L. Spencer
<PAGE>
October 8, 1996
Fountain Powerboat Industries, Inc.
Whichards Beach Road
Washington, North Carolina 27889
Re: Registration Statement on Form S-8 (the
"Registration Statement")
Ladies and Gentlemen:
You have requested our opinion as to the legality of the issuance by you
(the "Corporation") of 780,000 shares of common stock, par value $.01 per share
("Shares"), issuable as follows:
400,000 Shares issuable pursuant to the 1986 Stock Option Plan
80,000 Shares issuable pursuant to Director options 300,000
Shares issuable pursuant to the 1995 Stock Option Plan
In giving this opinion, we have reviewed and examined:
1. The Articles of Incorporation of the Corporation, as amended;
2. The Bylaws of the Corporation;
3. Certain resolutions of the Board of Directors of the
Corporation;
4. The Registration Statement; and
5. Such other matters as we have deemed relevant in order to form
our opinion.
In giving our opinion, we have assumed without investigation the
authenticity of any document or instrument submitted us as an original, the
conformity to the original of any document or instrument submitted to us as a
copy, and the genuineness of all signatures on such originals or copies.
Based upon the foregoing, we are of the opinion that the Shares to be
offered pursuant to the Registration Statement, if sold as described in the
Registration Statement, and if the options
<PAGE>
Fountain Powerboat Industries, Inc.
October 8, 1996
Page -7-
are exercised in accordance with their terms and the terms of the relevant plan,
will be legally issued, fully paid and nonassessable.
No opinion is expressed herein as to the application of state securities
or Blue Sky laws.
This opinion is furnished by us as counsel to you and is solely for your
benefit. Neither this opinion nor copies hereof may be relied upon by, delivered
to, or quoted in whole or in part to any governmental agency or other person
without our prior written consent.
Notwithstanding the above, we consent to the reference to our firm name
under the caption LEGAL OPINION in the Prospectus filed as a part of the
Registration Statement and the use of our opinion in the Registration Statement.
In giving these consents, we do not admit that we come within the category of
persons whose consent is required under Section 7 of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
HAND & HAND
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the prospectus
constituting part of this Registration Statement on Form S-8 for Fountain
Powerboat Industries, Inc. of our report dated August 1, 1996, relating to the
June 30, 1996 financial statements of Fountain Powerboat Industries, Inc.,
included in the Company's Annual Report on Form 10-K for the year ended June 30,
1996.
PRITCHETT, SILER & HARDY, P.C.
Salt Lake City, Utah
October 7, 1996
