<PAGE> 1
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As filed with the Securities and Exchange Commission on , 1995
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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRANSCISCO INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2989345
State of Incorporation (I.R.S. Employer Identification No.)
601 California Street, Suite 1301
San Francisco, California 94108
(415) 477-9700
(Address and telephone number of principal executive offices)
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Steven L. Pease
President and Chief Executive Officer
Transcisco Industries, Inc.
601 California Street, Suite 1301
San Francisco, California 94108
(415) 477-9700
(Name, address and telephone number of agent for service)
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
---
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Title of Each Proposed Maximum Proposed Amount of
Class of Securities Amount to be Offering Price Maximum Aggregate Registration
to be Registered Registered per Security (1) Offering Price (1) Fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 1,000,000 $2.88 $2,880,000 $993.10
value $.01 per
share
- -------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933 based on the
closing price of the Registrant's Common Stock as reported on the
American Stock Exchange on December 7, 1995
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The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Exhibit Index at page 19 of sequentially numbered pages.
<PAGE> 2
Subject to Completion, Dated _______________, 1995
PROSPECTUS
1,000,000 SHARES
TRANSCISCO INDUSTRIES, INC.
______________________________________________________
Common Stock
($0.01 par value per share)
__________________________________________
This Prospectus relates to the public offering, which is not
being underwritten, of 1,000,000 shares ("Shares") of the common stock ("Common
Stock") of Transcisco Industries, Inc. ("Transcisco"). The Shares may be
offered from time to time by any or all of the Selling Stockholders named
herein (the "Selling Stockholders"). The Selling Stockholders will offer and
sell shares of Common Stock, as described herein under the heading "Plan of
Distribution." None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. All expenses of registration
incurred in connection with this offering are being borne by the Company, but
all selling and other expenses incurred by Selling Stockholders will be borne
by such Selling Stockholders.
The Common Stock of the Company is traded in the American
Stock Exchange. On December 7, 1995, the closing price of the Company's Common
Stock was $2.88 per share. (AMEX Symbol: TNI)
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
Each Selling Stockholder and any broker executing selling
orders of behalf of the Selling Stockholders may be deemed to be an
"underwriter" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). Commissions received by any such broker may be deemed to be
underwriting commissions under the Securities Act.
__________________________________________________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES ND 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.
___________________________________________________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. This Prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy nor shall there be any
sale of these securities in any State in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities
laws of any such State.
_______________________________
The date of this Prospectus is ____________, 1995
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents and information heretofore filed with
the Securities and Exchange Commission are hereby incorporated by reference
into this Prospectus:
(1) The Company's Annual report on Form 10-K for the year ended
March 31, 1995, filed pursuant to Section 13 of the Securities Exchange Act of
1934 ("Exchange Act"), and the Form 10-KA filed on October 6, 1995.
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarter ended June 30, 1995, and September 30, 1995, and Form 8-K dated October
5, 1995, each filed pursuant to Section 13 of the Exchange Act.
(3) The description of the Company's Common Stock to be offered
hereby contained in the Company's Registration Statement on Form 8-A, dated
August 11, 1993, filed pursuant to Section 12(b) of the Exchange Act including
any amendment or report filed for the purpose of updating such description.
(4) All other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Prospectus and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Prospectus and to be part hereof from the date of filing such
documents.
Any statement contained in any 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 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
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge a copy of all documents
incorporated by reference to all those who request it. Requests for such
documents should be addressed to Gregory Saunders, Vice President and
Controller of the Company at 601 California Street, Suite 1301, San Francisco,
CA 94108.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY SELLING STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN
<PAGE> 4
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY
SALE OF THE SHARES BY ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL
FOR SUCH PERSON TO MAKE SUCH AN OFFER, SOLICITATION OR SALE. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
The Company has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits thereto, referred
to as the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"). This prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission.
ADDITIONAL INFORMATION
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended, 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 Room of
the commission, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and copies of such material can be obtained from the
Public Reference Branch of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Company's common stock is listed on the
American Stock Exchange, and copies of such reports, proxy statements and other
information may be inspected at the American Stock Exchange. Information, as
of particular dates, concerning directors and officers of the Company, their
remuneration, options granted to them, the principal holders of securities of
the Company, and any material interest of such persons in transactions with the
Company has been or will be disclosed in the proxy statements or be distributed
to stockholders of the Company and filed with the Commission.
This Prospectus contains information concerning the Company and sales
of its Common Stock by the Selling Stockholders but does not contain all the
information set forth in the Registration Statement. The Registration
Statement, including various exhibits and schedules, may be inspected at the
Commission's office in Washington D.C.
RISK FACTORS
The Common Stock offered hereby involves a high degree of risk. In
addition to the other information included or
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<PAGE> 5
incorporated by reference in this Prospectus, the following factors should be
considered carefully in the evaluation of the Company and its business before
purchasing any shares of the Common Stock offered hereby:
Restrictive Covenants. On August 1, 1995, the Company entered into a
refinancing transaction whereby it purchased approximately $15 million face
value of its own debt for approximately $9 million. The Company financed the
purchase through Transamerica Business Credit Corporation ("Transamerica"),
which provided a $10 million senior debt facility. As part of the senior debt
facility, the Company and each of its subsidiaries executed a security
agreement with Transamerica which contains certain financial covenants
including (i) a covenant that the Company's Tangible Net Worth (as defined
therein) increase by approximately 44% before September, 2000, (ii) a covenant
requiring the Company to reduce its ratio of indebtedness to Tangible Net
Worth, (iii) that the Company maintain certain specified average payable days,
average receivable days, and average inventory days, each measure of which is
within a reasonable range of the Company's historical averages, and (iv) that
the Company increase its fixed charge ratio after June, 1996. The breach of
any of the foregoing covenants would represent an event of default under the
Loan and Security Agreement, which could result in the acceleration of all
amounts due thereunder, the foreclosure by the lender on the collateral
securing the agreement, and certain other consequences which could have a
material adverse effect on the Company and its operations.
Put Right for Warrants. If for ten of the twelve months immediately
preceding July 31, 2000, the Company's Common Stock does not have a daily
average trading volume of at least 8,000 shares and any Warrants remain
outstanding under the Note and Warrant Purchase Agreement between the Company,
Furman Selz SBIC, L.P., and James Dowling, then the Company has the obligation
to purchase all the Warrants outstanding thereunder upon demand made by the
holder of the Warrant for the fair market value thereof. There can be no
assurance that the Company would be able to finance any such repurchase, and
any demand for repurchase of the Warrants could have a material adverse effect
on the Company's operations.
Sensitivity to Economic Conditions. The Company's revenues from its
railcar maintenance and repair operations, which constitute most of the
Company's revenues, are sensitive to economic activity in two major ways.
First, during a severe economic downturn, customers may decide to delay certain
maintenance programs, adversely affecting the Company. Second, when economic
activity is very strong and a shortage of railcars develops, customers may
delay preventive maintenance programs until railcar demand lightens up. The
timing and amount of the
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<PAGE> 6
Company's railcar maintenance revenues are subject to a number of factors which
make estimation of operating results prior to the end of a quarter uncertain.
Fluctuations in revenue realization could adversely affect the market price of
the Company's Common Stock.
Fluctuations in Quarterly Results. The Company has experienced a
seasonal pattern of maintenance revenue, with the Fall and Winter quarters'
revenues declining relative to the Spring and Summer quarters' revenues. The
Company believes that this pattern is primarily a reflection of customer's
shipping cycles and adverse weather conditions inherent to these time periods.
In addition, the timing of closing of large contracts increases the risk of
quarter-to-quarter fluctuations in net income and the uncertainty of estimating
quarterly operating results. Such quarterly fluctuations could have an adverse
effect on the trading price of the Common Stock.
Dependence on Key Personnel. The Company's operations are highly
dependent upon the individual efforts of a few key management employees and
consultants, who have a long history in the railcar maintenance and leasing
industries, as well as in the management of its SFAT Russian Joint Venture.
The loss of the services of these key employees would adversely affect the
ability of the Company to manage its business, and could materially adversely
affect its operations.
Effect of Coal Consumption and Pricing . Due to the location of the
Company's repair facilities, the Company is dependent upon the current demand
for low-sulfur coal. Should coal prices increase or alternative fuels become
less expensive on a sustainable basis, the resulting shift from low-sulfur coal
to alternative sources would reduce rail traffic which would result in fewer
repairs and reduce the demand for full-service leases, which could adversely
affect the Company's profitability.
Remarketing of Leased Railcars. The success of the Company's leasing
operation is highly dependent upon the ability to re-lease railcars as current
leases expire. The re-leasing process is highly competitive and is subject to
the forces of supply and demand at the time current leases expire. Should the
demand for the railcars decline (with a resulting decrease in price), the
Company's earnings could fall short of expectations.
Fixed Fee Contracts . The Company enters into short and long-term fixed
fee contracts with certain coal car fleet customers. An unplanned increase in
maintenance costs (including the cost of labor or materials), or frequency of
repairs could create a situation where fixed fee income is below actual costs to
maintain and repair the fleet. This situation would result in higher costs and a
corresponding reduction in profitability. The Company believes that fixed fee
income is currently sufficient to
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<PAGE> 7
meet future cost commitments, but a period of inflation in labor or materials
would adversely affect the Company's business and results of operations.
Risk of Conducting Business in Russia. The Company's subsidiary,
Transcisco Trading Company ("TTC"), owns 23.5% of Sovfinamtrans ("SFAT"), a
leading privately owned Russian petroleum and petrochemical rail transportation
company. SFAT has been profitable in every year since its founding in 1989.
However, like many other companies doing business in developing economies,
businesses in Russia face certain political and economic risks. Although SFAT
is a Russian business managed by Russians and has not been materially affected
by recent changes in Russia, a change in the political structure or climate in
Russia may have an adverse impact on SFAT's operations and, as a result, the
financial health of the Company. The Company accounts for its investment in
SFAT on the cost method, rather than on the equity method of accounting. Thus,
income from SFAT is recorded as cash is received by the Company, rather than as
profits are earned by SFAT. The Company is reviewing quarterly its method of
accounting for SFAT. The Company also has conducted -- and may conduct in the
future -- business in certain third world countries with unpredictable
political and business environments. To the extent that the political or
economic situation in such foreign countries is unstable, the Company's
operating results could be adversely affected.
Patent/License Risk. The Company has a proprietary world-wide license
of a patented railcar heating system ("Uni-Temp"). The Company licenses the
technology from its inventor. The term of the license agreement expires after
all seven Uni-Temp patents have expired, which will occur by 2008. Although
the Company has had disputes regarding the Uni-Temp licensing agreement in the
past, there is currently no notice of default from the inventor. If there is a
default or dispute regarding the agreement, resulting in a loss of license
rights, it could adversely affect the Company's business and results of
operations, including its business with SFAT.
Technological Risk. The Uni-Temp system faces competition from other
domestic and international technologies. Any new development relating to tank
car heating systems could adversely impact the Company's revenues and profit
margins.
Environmental Risk. Under various federal, state and local laws,
ordinances and regulations, an owner or operator of real estate is potentially
liable for the costs of removal or remediation of certain hazardous or toxic
substances released on, above, under or in such property. Such laws may impose
such liability without regard to whether the owner knew of, or was responsible
for, the presence of such hazardous or toxic substances. At the Company's
Miles City, Montana repair shop
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site (the "Site"), there are two environmental issues pending. First, there
are five underground storage tanks ("USTs") located at the Site which, must be
removed. Although the Company believes that CMC Heartland Partners ("CMC"),
the successor to the prior owner of the Site, the Chicago, Milwaukee, St. Paul
and Pacific Railroad Company, is liable under the law of Montana for all
liabilities associated with the tanks and their contents, the Company has
agreed with the State of Montana to fund up to $50,000 of the cost of removal
of the tanks. The Company's cost of such removal is not expected to exceed
$50,000. The Company has a claim for indemnification from CMC for its costs
associated with this removal, although there can be no assurance that such
claim would be successful.
Additionally, the groundwater at the Site has been contaminated by
diesel fuel arising out of activities of the Chicago, Milwaukee, St. Paul and
Pacific Railroad Company. Pursuant to a consent decree between CMC and the
State of Montana dated January 31, 1984 (the "Consent Decree"), CMC is
conducting a petroleum groundwater remediation project at the Site. Under the
terms of the Consent Decree, CMC is obligated to recover a substantial portion
of the diesel fuel from the groundwater. The Company believes that it is
unlikely that the state would require it to perform additional cleanup of the
Site following the conclusion of CMC's groundwater remediation project, because
the diesel spill was caused by CMC's predecessors. There can be no assurance,
however, that the State would not require the Company to conduct or fund such
additional cleanup. If the Company were required to recover the remaining
diesel fuel or to fund all or a part of such cleanup, it may be entitled to
seek indemnification for all or a portion of its costs associated therewith
from CMC. There can be no assurance, however, that such a claim would be
successful.
Relationship with Suppliers. The Company maintains favorable business
relations with leading domestic producers of railcars and international
financing sources. These relationships have been essential in providing
competitive full service lease packages to prospective lessees. Any
deterioration in these relationships could adversely affect the Company's
business.
Interest Rate Risk. A major portion of the Company's debt is tied to
the prime or reference rate. To the extent that interest rates rise above
current levels, interest expense would increase and adversely affect the
profitability of the Company. Higher interest rates could also affect the
Company's ability to expand its portfolio of equipment under management.
Competition. The Company, through its railcar maintenance operation,
operates in an industry dominated by railroads and large, full service leasing
companies. The industry is
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competitive and includes many large firms with modern and efficient facilities,
as well as small, low-overhead companies which compete with low pricing
practices. The Company has been able to compete due to its quality of work,
value of repair services and the strategic location of plant facilities.
Should rail traffic patterns change, the Company could be placed at a
competitive disadvantage, resulting in loss of customers.
Unresolved Claims and Loss Contingencies. On or about September 15,
1995, Great American Insurance Company ("Great American") filed an action (the
"Action") in the Superior Court of the State of California in and for the County
of Marin against Mark Hungerford, a former Chairman, Director, and Chief
Executive Officer of the Company. The action purports to set forth three causes
of action for declaratory relief, and prays for judgment in the amount of
$2,675,000 (plus interest as provided by law) against Mr. Hungerford. According
to the complaint, the Action purports to arise out of a certain payment made by
Great American on behalf of Mr. Hungerford in connection with the partial
settlement of certain litigation, captioned Daniels v. PLM International, Inc.,
et al., to which Mr. Hungerford, and others including the Company, previously
were parties. The Daniels litigation has been settled, and the state and federal
complaints have been dismissed with prejudice. The complaint in the Action seeks
a declaration that two endorsements each barred coverage under a Directors' and
Officers' Policy issued by Great American to the directors and officers of the
Company. The complaint in the Action also seeks a declaration that no coverage
is afforded under that policy for the director and officer defendants in the
Daniels litigation in their capacities as directors or officers of PLM
International, Inc. Prior to the commencement of the Action in the Marin County
Superior Court, the United States District Court for the Northern District of
California ruled, on a summary judgment motion in a declaratory relief action,
that neither of the endorsements relied upon by Great American precluded
coverage under the particular Directors' and Officers' policy issued by Great
American. The Court of Appeals for the Ninth Circuit reversed and remanded that
decision, directing that it be dismissed on grounds which did not address the
coverage issues under the two endorsements. Great American thereafter filed the
Action in Marin County Superior Court. If Great American is awarded a settlement
against Mr. Hungerford, Mr. Hungerford may seek reimbursement from the Company.
The Company has been informed that Mr. Hungerford intends to vigorously defend
the Action.
Effect of Certain Charter and By-law Provisions. The Company's
Amended and Restated Certificate of Incorporation and Amended and Restated
By-Laws include certain provisions that could discourage potential takeover
attempts. In addition, the Company's Board of Directors has approved a
shareholder rights plan (the "Plan") which may be triggered if an individual
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acquires 5% or more ownership of the Company's common stock (the "Ownership
Limit"). The Plan is designed to protect the Company's large net operating
loss ("NOL"), the tax benefit of which may be seriously eroded if, on a
cumulative basis, more than 50% of the Company's stock (generally represented
by 5% or more shareholders) is bought and/or sold within any three year period.
If triggered, the Plan would effectively dilute the ownership of any person
acquiring stock whose purchase would bring the investor over the Ownership
Limit. The Plan and the Company's Bylaws could delay, deter or prevent
transactions which may be beneficial to the holders of the Company's Common
Stock.
Loss of Limitation of Net Operating Loss Carryforward. As of September
30, 1995 the Company had an estimated NOL for federal income tax purposes of
approximately $23 million, based upon the Company's amended tax return being
filed for the 1993 tax year. The utilization of this net operating loss
carryforward to reduce future tax obligations is subject to loss or limitation
under Section 382 of the Internal Revenue Code if there is a change in ownership
(as defined in the Code) with respect to more than 50% of the Company's stock.
If the NOL carryforward were lost or limited, the resulting tax obligations
would adversely affect the Company's profitability, and could impair the
Company's ability to meet its debt service obligations and the Company could be
forced into another reorganization or into liquidation by its creditors.
Limitation on Use of NOL Against Alternative Minimum Taxable Income.
The Company's NOL may not fully offset the Company's tax liabilities since only
90% of the NOL may be used to offset Alternative Minimum Tax ("AMT"). As a
result, despite its NOL, the Company will experience a tax liability equal to
(at least) 10% of its AMT income, times an AMT tax rate of 20%.
Labor Risk. The Company's employees are currently non-union. A
successful unionization effort could result in (i) the loss of certain cost
advantages which allow the Company to compete in a highly price-competitive
environment and (ii) adversely affect revenues and profitability of the
Company. This would result in higher operating costs which would result in
reduced margins and profitability. The Company is unaware of any such activity
at this time.
THE COMPANY
Transcisco Industries, Inc. was incorporated in California in 1972 and
reincorporated in Delaware in 1985. The Company's principal executive offices
are located at 601 California Street, Suite 1301, San Francisco, California
94108 and its telephone number at that address is (415) 477-9700. The Common
Stock of the Company is traded on the American Stock Exchange and is quoted
under the symbol TNI.
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SELLING STOCKHOLDERS
The following table sets forth as of December 6, 1995 (i) the name of
each Selling Stockholder, (ii) the number of shares of Common Stock
beneficially owned prior to the offering, (iii) the number of shares of Common
Stock being offered and (iv) assuming that all shares offered for sale are
sold, the number of shares beneficially owned after the offering:
<TABLE>
<CAPTION>
Shares Beneficially Shares Shares Beneficially
Owned Prior Being Owned
To Offering (1) Offered After Offering (2)
------------------- ------- ---------------------
Name of Stockholder (3) Number Percent Number Percent
- ----------------------- ------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Furman Selz SBIC, L.P.(4) 966,667 15% 966,667 0 0.00%
James Dowling 33,333 1% 33,333 0 0.00%
--------- -- --------- --------- -----
1,000,000 16% 1,000,000 0 0.00%
</TABLE>
(1) A person is deemed to be the beneficial owner of securities that can
be acquired by such person within 60 days upon the exercise of options or
warrants. Unless otherwise noted, the Company believes that all persons named
in the table have sole voting and investment power with respect to all shares
of Common Stock beneficially owned by them, subject to community property laws
where applicable.
(2) Assumes sale of all the shares registered hereby.
(3) All of the shares owned by the Selling Shareholders which are registered
hereby will have been acquired as a result of the exercise of warrants issued
to the Selling Shareholders.
(4) Brian P. Friedman, an affiliate of Furman Selz SBIC, L.P., is a
director of the Company. He was elected by the directors of the Company on
August 15, 1995.
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Stockholders that they
intend to make private sales directly or through a broker or brokers, who may
act as agent or as principal. The Selling Stockholders may also sell all or a
portion of the shares offered hereby from time to time on the American Stock
Exchange and those sales will be made at prices prevailing at the time of such
sales. In connection with any sales, the Selling Stockholders and any brokers
participating in such sales may be deemed to be underwriters within the meaning
of the Securities Act. The Company will receive no part of the proceeds of
sales made hereunder.
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<PAGE> 12
The Company has advised the Selling Stockholders that anti-manipulative
Rules 10b-2, 10b-6 and 10b-7 under the Securities Exchange Act of 1934, as
amended, may apply to their sales in the market, has furnished each Selling
Stockholder with a copy of these Rules and has informed them of the need for
delivery of copies of this Prospectus. Any commissions paid or any discounts or
concessions allowed to any such broker-dealers, and any profits received on the
resale of such shares, may be deemed to be underwriting discounts and
commissions under the Securities Act if any such broker-dealers purchases shares
as principals.
Upon notification by a Selling Stockholder to the Company that any
material arrangement has been entered into with a broker-dealer for the sale of
shares through a cross or block trade, a supplemental prospectus will be filed
under rule 424(c) under the Securities Act setting forth the name of the
participating broker-dealer(s), the number of shares involved, the price at
which such shares were sold by the Selling Stockholder, the commissions paid or
discounts or concessions allowed by the Selling Stockholder to such
broker-dealer(s), and where applicable, that such broker-dealer(s) did not
conduct any investigation to verify the information set out in this Prospectus.
Any securities covered by this Prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under that Rule rather
than pursuant to this Prospectus.
There can be no assurance that any of the Selling Stockholders will
sell any or all of the shares of Common Stock offered by them hereunder.
The Selling Stockholders have agreed with the Company that during such
time as such Selling Stockholders may be engaged in the attempt to sell shares
registered hereunder, such persons will:
(i) not engage in any stabilization activity in connection with any
of the Company' securities;
(ii) cause to be furnished to each person to whom shares included
herein may be offered, and to each broker-dealer, if any, through whom shares
are offered, such copies of the Prospectus, as supplemented or amended, as may
be required by such person; and
(iii) not bid for or purchase any of the Company's securities or any
rights to acquire the Company's securities, or attempt to induce any person to
purchase any of the Company's securities or rights to acquire the Company's
securities other than as permitted under the Exchange Act.
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<PAGE> 13
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Greene, Radovsky, Maloney & Share, San Francisco,
California.
EXPERTS
The consolidated financial statements of Transcisco Industries, Inc.
appearing in Transcisco Industries, Inc.'s Annual Report (Form 10-KA) for the
year ended March 31, 1995 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report included therein and incorporated herein
by reference. Such consolidated 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item Number
Item 14. Other Expenses of Issuance and Distribution*
The following table sets forth all expenses in connection with
the sale of common stock being registered. All amounts are
estimates except for the Registration Fee.
<TABLE>
<S> <C>
Registration Fee-Securities and Exchange
Commission $ 993.10
Legal Fees and Expenses $ 3,000.00
Miscellaneous $ 3,000.00
Total $ 6,993.10
</TABLE>
- ------------------
* Represents expenses relating to the distribution by Selling
Stockholders pursuant to the Prospectus prepared in accordance
with the requirements of Form S-3. These expenses will be borne
by the Company on behalf of the Selling Stockholders.
Item 15
Indemnification of Directors and Officers
The Company has adopted provisions in its Certificate of Incorporation
that limit the liability of its directors and enable the Company to broaden the
indemnification provided to its directors and officers. As permitted by the
Delaware General Corporation Law, directors will not be liable for monetary
damages arising from a breach of their fiduciary duty as directors in certain
circumstances. Such limitation does not affect liability for any breach of a
director's duty to the Company or its shareholders for (i) breaches of the
director's duty of loyalty, (ii) acts or omissions not in good faith or
involving intentional misconduct or knowing violations of law (iii) the payment
of unlawful dividends or unlawful stock repurchases or redemption's or (iv)
transactions in which the director received an improper personal benefit. Such
limitation of liability does not affect the availability of equitable remedies
such as injunctive relief of rescission.
II - 1
<PAGE> 15
The Company's Bylaws provide that the Company shall indemnify its
directors and officers to the maximum extent permitted by Delaware law,
including circumstances in which indemnification is otherwise discretionary
under Delaware law. The Company has also entered into indemnification agreements
with its officers and directors containing provisions which are in some respects
broader than the specific indemnification provisions contained in the Delaware
General Corporation Law. The Indemnification Agreements may require the Company,
among other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers if they acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the Company and, with respect to
any criminal proceeding, had no reasonable cause to believe their conduct was
unlawful, to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified, and to obtain directors' and
officers' insurance if available on reasonable terms.
The Company understands that the staff of the Securities and Exchange
Commission is of the opinion that statutory, charter and contractual provisions
as are described above have no effect on claims arising under the federal
securities laws. The Company is not aware of any material threatened or ongoing
litigation or proceeding which may result in a claim for such indemnification,
except that the insurance carrier which provided the Company's directors and
officers liability insurance is contesting in state court (and previously in
Federal Court) a lower court decision finding the carrier liable for amounts
paid in settlement of the previously reported Daniels litigationin
connection with Mr. Hungerford. If the insurance carrier is successful in its
action, Mr. Hungerford may seek reimbursement for the amount of approximately
$2,675,000. See "Risk Factors -- Unresolved Claims and Loss Contingencies".
Item 16 Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
2 Joint Plan of Reorganization, as
amended, incorporated by reference to Exhibit
2.0 to Form 10Q filed under the Securities
Exchange Act of 1934, as amended, filed with
the Securities and Exchange Commission on
November 12, 1993.
4.1 Amended and Restated Certificate of
Incorporation incorporated by reference to
Exhibit 3.1 to Form 8A filed under
</TABLE>
II - 2
<PAGE> 16
<TABLE>
<S> <C>
the Securities Exchange Act of 1934,
as amended, filed with the Securities and
Exchange Commission on August 12, 1993.
4.2 Amended and Restated Bylaws
Incorporated by reference to Exhibit 3.2 to
Form 8A filed under the Securities Exchange
Act of 1934, as amended, filed with the
Securities and Exchange Commission on August
12, 1993.
5 Opinion of Greene, Radovsky, Maloney & Share
23.1 Consent of Ernst & Young LLP, Independent
Accountants.
23.2 Consent of Greene, Radovsky, Maloney & Share
(included in opinion of counsel filed as
Exhibit 5 hereto).
</TABLE>
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 and 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.
(2) That, for the purpose of determining any liability under the
Securities Act, each 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.
(4) 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 Exchange Act (and, where applicable,
each filing of any employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) 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
II - 3
<PAGE> 17
offering of such securities as 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 Securities Act and will be governed by the final
adjudication of such issue.
For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
II - 4
<PAGE> 18
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 San Francisco, State of California, as of December
20, 1995.
TRANSCISCO INDUSTRIES, INC.
By: /s/ Steven L. Pease
------------------------------
Steven L. Pease, President and
Chief Executive Officer
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Steven L. Pease President and Chief Executive
- ------------------------------ Officer (Principal Executive
Steven L. Pease Officer) and Director
/s/ Greg Saunders Vice President and Controller
- ------------------------------ (Principal Financial and
Gregory Saunders Accounting Officer)
/s/ Eugene M. Armstrong Chairman of the Board
- ------------------------------ of Directors
Eugene M. Armstrong
/s/ Ottokarl Finsterwalder Director
- ------------------------------
Ottokarl Finsterwalder
/s/ George A. Tedesco Director
- ------------------------------
George A. Tedesco
/s/ William E. Greenwood Director
- ------------------------------
William E. Greenwood
/s/ Brian P. Friedman Director
- ------------------------------
Brian P. Friedman
</TABLE>
II - 5
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit No. Numbered Page
- ----------- -------------
<S> <C> <C>
2 Joint Plan of Reorganization *
4.1 Amended and Restated *
Certificate of Incorporation
4.2 Amended and Restated Bylaws *
5 Opinion of Greene, Radovsky _____
Maloney & Share
23.1 Consent of Ernst & Young LLP, _____
Independent Accountants
23.2 Consent of Greene, Radovsky,
Maloney & Share (included at
Exhibit 5)
</TABLE>
- ----------------------
* Exhibit incorporated by reference.
II - 6
<PAGE> 1
Exhibit 5
December 20, 1995
Board of Directors
Transcisco Industries, Inc.
601 California Street, Suite 1301
San Francisco, CA 94108
Re: Registration Statement on Form S-3
Gentlemen:
You have requested our opinion with respect to certain matters
described below relating to 1,000,000 shares of the common stock (the "Common
Shares") of Transcisco Industries, Inc. ("Transcisco") to be issued pursuant to
the exercise of warrants issued under the Note and Warrant Purchase Agreement
dated August 1, 1995 (the "Warrants"), pursuant to the Registration Statement on
Form S-3 (the "Registration Statement") of Transcisco pursuant to the Securities
Act of 1933, as amended (the "Securities Act").
In connection with our opinion, we have reviewed and relied
upon the Registration Statement, the Articles of Incorporation and the Bylaws of
Transcisco, each as amended; copies of resolutions of the board of directors of
Transcisco authorizing the issuance of the Common Shares and the filing of, and
the transactions described in, the Registration Statement; and such other
records, documents, instruments and certificates of public officials and of
Transcisco as we have deemed necessary for the purpose of rendering the opinions
herein set forth. In making such examination, we have assumed the genuineness of
all signatures and the authenticity of all items submitted to us as originals
and the conformity with originals of all items submitted to us as copies.
Based upon and subject to the foregoing, and subject to the
qualifications set forth herein, we are of the opinion that the Common Shares to
be issued on exercise of the Warrants and pursuant to the Registration Statement
are duly authorized and when issued, will be fully paid and nonassessable,
provided the full purchase price for each of the Common Shares is paid to and
received by Transcisco.
<PAGE> 2
Transcisco Industries, Inc.
December __, 1995
Page 2
We hereby consent to the use of this opinion for filing with
the Registration Statement as Exhibit 5 thereto.
Very truly yours,
/s/Greene, Radovsky, Maloney & Share
GREENE, RADOVSKY, MALONEY & SHARE
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Transcisco
Industries, Inc. for the registration of 1,000,000 shares of its common stock
and to the incorporation by reference therein of our report dated May 3, 1995,
with respect to the consolidated financial statements of Transcisco Industries,
Inc. included in its Annual Report (Form 10-K) for the year ended March 31, 1995
filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Walnut Creek, California
December 15, 1995
