SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
MILLER BUILDING SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 3448
(State or Other Jurisdiction (Primary Standard Industrial
of Incorporation or Organization) classification Code Number)
36-3228778
(I.R.S. Employer
Identification No.)
58120 County Road 3 South
Elkhart, Indiana 46517
(219) 295-1214
(Address and Telephone Number of Registrant's Principal Executive Offices)
Edward C. Craig
President and Chief Executive Officer
Miller Building Systems, Inc.
58120 County Road 3 South
Elkhart, Indiana 46517
Telephone: (219) 295-1214
Fax: (219) 295-2232
(Name, Address and Telephone Number of Agent for Service)
Please address a copy of all communications to:
Steven Schwartz
Much Shelist Freed Denenberg Ament Bell & Rubenstein, P.C.
200 N. LaSalle Street, Suite 2100
Chicago, Illinois 60601
Telephone No:(312) 346-3100
Fax No:(312) 621-1750
Approximate Date of Proposed Sale to the Public: From time to time after
the Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. / X /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. / /
CALCULATION OF REGISTRATION FEE
Title of each class Proposed Maximum Proposed Maximum Amount of
of Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Unit (1) Offering Price Fee
Common Stock
($0.01 par value) 227,082 $7.9375 $1,802,463 $532
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457.
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.
PROSPECTUS
227,082 SHARES
MILLER BUILDING SYSTEMS, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SHARES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THAT THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. 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.
This Prospectus relates to an aggregate of 227,082 shares (the "Shares") of
Common Stock, par value $0.01 per share (the "Common Stock"), of Miller Building
Systems, Inc.(the "Company"), a Delaware corporation, being sold by certain
stockholders (the "Selling Stockholders") who have acquired such shares in
connection with the acquisition of a business by the Company not involving a
public offering. The Shares are being registered under the Securities Act of
1933, as amended (the "Securities Act") on behalf of the Selling Stockholders.
The Shares may be distributed from time to time by or for the Selling
Stockholders or their pledgees through underwriters or dealers, through brokers
or other agents, or directly or indirectly to one or more purchasers including
pledgees, at market prices prevailing at the time of the sale or at prices
otherwise negotiated. This Prospectus may also be used, with the Company's
prior written consent, by donees of the Selling Stockholders, or other persons
acquiring the Shares and who wish to offer and sell such Shares under
circumstances requiring or making desirable its use. The Company will receive
no portion of the proceeds from the sale of the Shares offered hereby and will
bear certain expenses incident to this registration. See "Selling Stockholders"
and "Plan of Distribution."
The Common Stock of the Company is listed on the NASDAQ National Market
("NASDAQ") under the trading symbol "MBSI." The last reported sales price of
the Company on NASDAQ on August 3, 1998 was $7.875 per share.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE MATTERS SET FORTH UNDER
THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 5 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.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROPSPECTUS, AND IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDERS. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION TO BUY THE SECURITIES OFFERED HEREBY BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
The date of this Prospectus is August 5, 1998
TABLE OF CONTENTS
AVAILABLE INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . 4
THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SELLING STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . 7
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 8
DESCRIPTION OF CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . 9
LEGAL MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
INCORPORATION OF CERTAIN MATERIAL BY REFERENCE . . . . . . . . . . .10
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). These reports, proxy and information statements
and other information filed by the Company with the Commission pursuant to the
informational requirements of the Exchange Act 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 of
the Commission: New York Regional Office, Seven World Trade Center, Room 1400,
New York, New York 10048; and Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60604. 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 Commission also
maintains a site on the World Wide Web at http://www.sec.gov that contains
reports, proxy and other information regarding registrants that file
electronically with the Commission. The Common Stock is traded on NASDAQ.
Information filed by the Company with NASDAQ may be inspected at the offices of
NASDAQ at 1735 K Street, NW, Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act with respect to the Shares offered hereby
(including all amendments and supplements thereto, the "Registration
Statement"). This Prospectus, which forms part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement,
certain parts of which have been omitted in accordance with the rules and
regulations of the Commission. Statements contained herein concerning the
provisions of certain documents are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference. The Registration
Statement and the exhibits thereto can be inspected and copied at the public
reference facilities and regional offices of the Commission and at the offices
of NASDAQ referred to above.
THE COMPANY
GENERAL
Miller Building Systems, Inc. is the parent of Miller Building Systems of
Indiana, Inc., Miller Building Systems of Pennsylvania, Inc., Miller Building
Systems of Kansas, Inc., United Structures, Inc. and Miller Construction
Services, Inc. All operations of Miller are conducted through its five wholly
owned subsidaries which design, manufacture, market and service factory-built
buildings. Miller has two product lines, Structures and Telecom. The factory-
built buildings produced by Structures are modular and mobile buildings, which
are generally movable and relocatable, and designed to meet the specialized
needs of a wide variety of users. The Structures division has manufacturing
facilities in Elkhart, Indiana; Leola, Pennsylvania; Sioux Falls, South Dakota;
Bennington, Vermont and Burlington, Kansas. The Telecom division manufactures
specialized buildings, which utilize modular construction techniques and pre-
cast concrete technology, and are designed principally for customers in the
telecommunications industry. Telecom's products are sold directly to the end
user. Telecom has manufacturing facilities in Elkhart, Indiana; Leola,
Pennsylvania; Burlington, Kansas and Binghamton, New York. Miller's Structures
and Telecom products are sold throughout the United States. Miller Construction
Services, Inc. provides complete turnkey services from site preparation, through
setting and installation.
The Company originally was organized as an Indiana corporation in November
1982 under the name of "Graylyon Corp." and then merged, effective April 1983,
into a Delaware corporation named "Gray Lyon Company". In November 1986, the
Company amended its Certificate of Incorporation to change its name to "Modular
Technology, Inc." In November 1988, the Company again amended its Certificate
of Incorporation to change its name to "Miller Building Systems, Inc." All
references to the Company herein refer to Miller Building Systems, Inc., a
Delaware corporation, and its predecessor Indiana corporation.
The Company maintains its Executive Offices at 58120 County Road 3 South,
Elkhart, Indiana 46517; telephone number (219) 295-1214. The Executive Office
is the Company's principal operating office from which it manages and
coordinates the activities of its wholly owned subsidiaries.
RECENT DEVELOPMENTS - ACQUISITION OF UNITED STRUCTURES, INC.
On February 27, 1998, the Company executed a Stock Purchase Agreement
("Agreement") among the Company, and David Newman ("David" ) and Marc Newman
("Marc") (David and Marc are collectively referred to as, the Seller ), and
related documents pursuant to which the Company acquired all of the issued and
outstanding shares of capital stock of United Structures, Inc.("United"), a
New York corporation. United is headquartered in Vestal, New York and
manufactures lightweight telecommunications shelters. The Agreement replaced
the agreement made and entered into on January 29, 1998, between the parties.
Barry Newman executed the Agreement only with respect to the provisions (i)
regarding confidentiality and (ii) containing covenant not to compete (the
"Covenant Not to Compete"). The Covenant Not to Compete provides that David,
Marc and Barry Newman will not compete with United's and the Company's business
for a period of 5 years, except such individuals can lease telecommunication
towers and construct modular structures for their own use and not for sale to
third parties. The Agreement also provided for the continued employment of
David Newman through June 27, 1998. The acquisition of United was effective as
of January 1, 1998.
The cash consideration portion of the Purchase Price paid by the Company to
the Seller under the Agreement consisted of approximately $3,005,310, subject to
a downward adjustment based on the difference between (a) the amount of
receivables shown on United's balance sheet at December 31, 1997 and (b) the
amount of these receivables actually collected by United between January 1, 1998
and August 31, 1998. The Company held back $125,000 of the cash consideration
for purposes of such adjustment. The maximum amount of cash consideration
payable to Seller by the Company on September 1, 1998 pursuant to such
adjustment is $125,000.
As additional consideration paid by the Company to Seller under the
Agreement, Seller will receive an aggregate number of shares of the Company's
common stock ("Seller Shares") based on pre-tax profits of United earned from
January 1, 1998 to June 27, 1998 ("Pre-tax Profits"), calculated as follows:
(x) for Pre-tax Profits in excess of $100,000 and including up to $500,000,
Seller will receive and aggregate of $10,000 in Seller Shares for each full
$2,000 in Pre-tax Profits and (y) for Pre-tax Profits in excess of $500,000 and
including up to $750,000, Seller will receive an aggregate of $2,000 in Seller
Shares for each full $2,000 of Pre-tax Profits. The value of the Company's
common stock to be paid to Seller will be based on the average closing price of
the Company's common stock during the fifteen trading days prior to June 27,
1998, with a floor and a ceiling. The maximum value of the Company's common
stock payable to Seller under the Agreement is $2,250,000. The Pre-tax Profits
of United from January 1, 1998, to June 27, 1998, were $1,191,840.
This entitled the Seller to earn the maximum full amount of $2,250,000 in shares
of the Company or a total of 227,082 shares at $9.9083 per share. The Company
has agreed to register all of the Seller Shares for resale under the Securities
Act of 1933 as soon as the Company is legally able to effect such registration.
In the event that the Company has not so registered the Seller Shares by October
31, 1998, Seller may cause the Company to redeem the Seller Shares at a price
equal to the aggregate value of such Seller Shares as originally delivered to
Seller.
The sources of funds for the acquisition were the earnings of the Company
and the proceeds of a draw on the Company's existing line of credit with NBD
Bank, N.A., a national banking association.
RISK FACTORS
AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY INVOLVES A HIGH
DEGREE OF RISK. PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY THE FOLLOWING
RISK FACTORS, AS WELL AS THE OTHER INFORMATION SET FORTH IN THIS PROSPECTUS, IN
CONNECTION WITH AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY.
THIS PROSPECTUS CONTAINS CERTAIN FORWARD-LOOKING STATEMENTS OR STATEMENTS
WHICH MAY BE DEEMED OR CONSTRUED TO BE FORWARD-LOOKING STATEMENTS WITHIN THE
MEANING OF THE FEDERAL PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 WITH
RESPECT TO THE FINANCIAL CONDITION, MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS, BUSINESS OF THE COMPANY, AND RISK
FACTORS. THE WORDS "ESTIMATE," "PROJECT," "INTEND," "EXPECT," AND SIMILAR
EXPRESSIONS ARE INTENDED TO IDENTIFY FORWARD-LOOKING STATEMENTS. THESE
FORWARD-LOOKING STATEMENTS INVOLVE AND ARE SUBJECT TO KNOWN AND UNKNOWN RISKS,
UNCERTAINTIES AND OTHER FACTORS WHICH COULD CAUSE THE COMPANY'S ACTUAL RESULTS,
PERFORMANCE (FINANCIAL OR OPERATING) OR ACHIEVEMENTS TO DIFFER FROM THE FUTURE
RESULTS, PERFORMANCE (FINANCIAL OR OPERATING), ACHIEVEMENTS EXPRESSED OR
IMPLIED BY SUCH FORWARD-LOOKING STATEMENT. INVESTORS ARE CAUTIONED NOT TO PLACE
UNDUE RELIANCE ON THESE FORWARD-LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THE
DATE HEREOF. THE COMPANY UNDERTAKES NO OBLIGATION TO PUBLICLY RELEASE ANY
REVISIONS TO THESE FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES
AFTER THE DATE HEREOF OR TO REFLECT THE OCCURRENCE OF UNANTICIPATED EVENTS.
RISKS ASSOCIATED WITH ACQUISITION STRATEGY
The Company's growth strategy includes the possible acquisition of other
companies in the business of designing, manufacturing, and selling factory-built
structures for use as commercial modular buildings, mobile offices, and
telecommunications shelters. The Company's acquisition strategy is primarily
based on identifying and acquiring selected companies either with product lines
within the Company's markets or that will enable the Company to enter new
product categories more rapidly and cost-effectively. The Company's ability to
accomplish its strategy will depend upon a number of factors including, among
other things, the Company's ability to identify acceptable acquisition
candidates, to consummate such acquisitions on terms favorable to the Company,
to retain, hire and train professional management and sale personnel at each
such acquired business and to promptly and profitably integrate the acquired
operations into the Company's operations. Acquiring additional businesses may
require additional capital and the consent of the Company's lenders and may have
a significant impact on the Company's financial position and results of
operations. Any such acquisitions may involve the issuance of additional debt
or the issuance of one or more classes or series of the Company's equity
securities, which could have a dilutive effect on the then outstanding Common
Stock of the Company. Acquisitions could result in substantial amortization
charges to the Company from the accumulation of goodwill and other intangible
assets which could reduce reported earnings. In addition, although the Company
will investigate the business operations and the assets of entities that it
acquires, there may be liabilities that the Company fails or is unable to
discover and for which the Company, as successor owner or operator, may be
liable. There can be no assurance that the Company will be successful in
accomplishing its acquisition strategy or that any acquired operations will be
profitable or will be successfully integrated into the Company or that any such
future acquisitions will not materially and adversely affect the Company's
financial condition or results of operations. Opportunities for growth through
acquisitions, future operating results and the success of acquisitions may be
subject to the effects of, and changes in, U.S. and foreign trade and monetary
policies, laws and regulations, political and economic developments, inflation
rates, and the effect of taxes and operating conditions.
RISKS ASSOCIATED WITH THE UNITED STRUCTURES ACQUISITION
In furtherance of the Company's growth strategy, the Company recently
acquired all of the issued and outstanding shares of capital stock of United.
United is headquartered in Vestal, New York and manufactures lightweight
telecommunications shelters. The Company's future operating results will depend
in part upon the continued profitably of United's operations. However, there is
no assurance that United will continue to operate profitably. The failure of
United to operate profitably could have a material adverse effect on the
Company's financial position, results of operations and cash flows.
COMPETITION
Competition in the factory-built building industry is intense. The Company
competes with a number of entities, some which may have greater financial
resources than the Company. To the extent that factory-built buildings become
more widely accepted as an alternative to conventional on-site construction,
competition from local contractors and manufacturers of other pre-engineered
building systems may increase. In addition to competition from firms designing
and constructing on-site buildings, the Company competes with numerous factory-
built building manufacturers that operate in particular geographical regions.
There can be no assurance that the Company will not encounter increased
competition in the future which could limit the Company's ability to maintain or
increase its market share and could adversely effect the Company's prices, gross
margins, and overall operating results.
CUSTOMER CONCENTRATION
The Company is highly dependent on a limited number of customers. For the
fiscal years ended June 28, 1997, and June 29, 1996, the following customers
represented 10% or more of net sales of the Company: In-Roads, Inc. represented
15% of the Company's net sales for the fiscal year ended June 28, 1997, and
Transport International Pool, Inc. d/b/a GE Capital Modular Space, a division of
General Electric Capital Corporation, represented 13% of the Company's net sales
for the fiscal year ended June 29, 1996. The loss of, or any material reduction
in, sales to any significant customer could have a material adverse effect on
the Company's business, financial condition and results of operations. The
Company has not entered into any long-term contracts with any of its customers,
nor is any customer obligated to order additional products from the Company.
There can be no assurance that the Company will be able to retain existing
customers or attract new customers.
SEASONALITY
The Company's quarterly revenue historically has been highest in the first
and fourth quarters with lower sales during the second and third fiscal
quarters. This reflects the seasonality of sales for products used in various
applications, including classrooms and other educational buildings, and also the
impact of weather on general construction related activities. The Company's
operating results may vary significantly from quarter to quarter due to a
variety of factors including legislative and funding developments, changes in
the Company's product and customer mix, the availability and cost of raw
materials, the introduction of new products by the Company or its competitors,
pricing pressures, general economic and industry conditions that affect customer
demand, and other factors. The Company's results of operations for any quarter
would be adversely affected if orders are not shipped in any quarter as
anticipated.
DEPENDENCE ON KEY PERSONNEL
The Company's long-term success and growth strategy depends on its senior
management. The Company has entered into written employment agreements with
many of its senior management personnel, however, each of the these key
executive officers may voluntarily terminate his employment with the Company at
any time. The loss of any member of the Company's senior management could have
a material adverse effect on the Company.
POTENTIAL PRODUCT LIABILITY
The Company is engaged in businesses that could result in possible claims
for injury or damage resulting from its products. While no material claims
have, to date, been made against the Company, no assurance can be given that
claims will not arise in the future. A successful claim brought against the
Company by a customer of the Company or a consumer and the adverse publicity
that could accompany any harm caused to a consumer by a product manufactured by
the Company could have a material adverse effect on the Company's business,
financial condition and results of operations.
FLUCTUATIONS IN RAW MATERIAL COSTS AND SUPPLY
The Company purchases steel, wood, and other raw materials from various
suppliers. While much materials are available from numerous sources, commodity
raw materials are subject to fluctuations in price. Because such materials in
the aggregate constitute significant components of the Company's cost of goods
sold, such fluctuations could have a material adverse effect on the Company's
results of operations. Although the Company historically has been able to pass
on to its customers gradual increases in raw material prices, there can be no
assurance that the Company will continue to be able to do so in the future. In
addition, although there are numerous suppliers of raw materials to the
Company's operations, the shift to a new supplier could result in delays or
higher costs, which could adversely affect operating results.
DIVIDEND POLICY
The Board of Directors of the Company ceased the payment of dividends in
the third fiscal quarter of 1993. The Company does not anticipate paying
dividends on its common stock in the foreseeable future.
USE OF PROCEEDS
This Prospectus relates to the Shares being offered and sold for the
account of the Selling Stockholders. This Prospectus also may be used, with the
Company's prior written consent, by donees of the Selling Stockholders, or by
other persons acquiring Shares and who wish to offer and sell such Shares under
circumstances requiring or making desirable its use. The Company will not
receive any proceeds from the sale of the Shares, but will pay expenses related
to the registration of the Shares. See "Plan of Distribution."
SELLING STOCKHOLDERS
The following table sets forth the name of each Selling Stockholder, the
aggregate number of shares of Common Stock beneficially owned by each of the
Selling Stockholders on the date hereof, the aggregate number of shares of
Common Stock that each Selling Stockholder may offer and sell pursuant to this
Prospectus, and the aggregate number and percentage of shares of Common Stock
that will be beneficially owned by each Selling Stockholder after completion of
this offering (the "Offering"). However, because the Selling Stockholders may
offer all or a portion of the Shares at any time and from time to time after the
date hereof, the exact number of Shares that each Selling Stockholder may retain
upon completion of the Offering cannot be determined at this time.
To the knowledge of the Company, none of the Selling Stockholders has had
within the past three years any material relationship with the Company except as
set forth in the footnotes to the following table:
Number of Shares Number of Shares
Beneficially Owned Beneficially Owned
Selling Prior to the Number of Shares After
Stockholders Offering Being Offered the Offering(1)
David Newman 193,020 193,020 ---
(2)(3)
Marc Newman (2) 34,062 34,062 ---
(1) Assumes that all of the Shares will be sold, that no additional shares will
be acquired and that no shares other than those offered will be sold.
(2) Seller of interest in entity acquired by the Company.
(3) Employee of the Company or one of its subsidiaries (employment terminated
June 27, 1998).
PLAN OF DISTRIBUTION
The Selling Stockholders or pledgees may sell or distribute some or all of
the Shares from time to time through underwriters or dealers or brokers or other
agents or directly to one or more purchasers, including pledgees, in
transactions (which may involve crosses and block transactions) on NASDAQ,
privately negotiated transactions (including sales pursuant to pledges), in the
over-the-counter market, or in transactions in which Shares may be delivered in
connection with the issuance of securities by issuers other than the Company
that are exchangeable for (whether optional or mandatory), or payable in such
Shares (whether such securities are listed on national securities exchanges or
otherwise) or pursuant to which such Shares may be distributed (which securities
issued by others will, to the extent required by applicable law, be registered
under the Securities Act), or in a combination of such transactions. Such
transactions may be effected by the Selling Stockholders at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices, which may be changed. Brokers,
dealers, agents or underwriters participating in such transactions as agent may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholder (and if they act as agent for the purchaser of such
shares, from such purchaser). Such discounts, concessions or commissions as to
a particular broker, dealer, agent or underwriter might be in excess of those
customary in the type of transaction involved. This Prospectus may be used,
with the Company's prior written consent, by donees of the Selling Stockholders,
or by other persons acquiring Shares and who wish to offer and sell such Shares
under circumstances requiring or making desirable its use.
The Selling Stockholders and any such underwriters, brokers, dealers or
agents or underwriters that participate with the Selling Stockholders in the
distribution of the Shares may be deemed to be "underwriters" within the meaning
of the Securities Act, and any discounts, commissions or concessions received by
any such underwriters, brokers, dealers or agents might be deemed to be
underwriting commissions or discounts under the Securities Act. Neither the
Company nor the Selling Stockholders can presently estimate the amount of such
compensation. The Company knows of no existing arrangements between any Selling
Stockholder and any other Selling Stockholder, underwriter, broker, dealer or
other agent relating to the sale or distribution of the Shares.
Persons engaged in the distribution of the Shares are restricted from
engaging in certain market-making activities with respect to the Common Stock
for the period specified by Regulation M of the Exchange Act.
The Company has agreed to pay all fees and expenses incident to the
registration of the Shares, except commissions and discounts of underwriters,
brokers, dealers or agents and fees and expenses of counsel or any other
professionals or other advisors, if any, to the Selling Stockholders. Each
Selling Stockholder may indemnify any broker, dealer, agent or underwriter that
participates in transactions involving sales of the Shares against certain
liabilities, including liabilities arising under the Securities Act.
If Shares are sold in an underwritten offering, the Shares may be acquired
by the underwriters for their own account and may be further resold from time to
time in one or more transactions, including negotiated transactions, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, at negotiated prices, or at fixed prices. The names of the
underwriters with respect to any such offering and the terms of the
transactions, including any underwriting discounts, concessions or commissions
and other items constituting compensation of the underwriters and broker-
dealers, if any, will be set forth in a supplement to this Prospectus relating
to such offering. Any public offering price and any discounts, concessions or
commissions allowed or reallowed or paid to broker-dealers may be changed from
time to time. Unless otherwise set forth in a supplement to this Prospectus,
the obligations of the underwriters to purchase the Shares will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all of the Shares specified in such supplement if any such Shares are purchased.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states, the
Shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by the Company and the Selling
Stockholders.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital consists of 7,500,000 shares of common
stock, $0.01 par value per share and 50,000 shares of preferred stock, $1.00 par
value per share ("Preferred Stock"). None of the Preferred Stock is
outstanding. As of June 27, 1998, there were 3,303,221 shares of common stock
outstanding.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held on all
matters to be voted on by stockholders. There is no cumulative voting for the
election of directors, which means that the holders of a majority of the shares
voted in the election of directors can elect all of the directors then standing
for election. The holders of Common Stock are entitled to receive such
dividends, if any, as may be declared from time to time by the Board of
Directors from funds legally available therefor. In any distribution of assets,
whether voluntary or involuntary, holders of Common Stock are entitled to
receive pro rata the assets remaining after creditors and holders of the
Preferred Stock, if any, have been paid in full. All of the outstanding shares
of Common Stock are fully paid and non-assessable, and the shares of Common
Stock proposed to be offered pursuant hereto, upon payment therefor, will be
fully paid and non-assessable. As of July 28, 1998, the Company estimates that
there were approximately 1,300 stockholders of the Company's Common Stock. Of
this total, approximately 130 were stockholders of record and shares for
approximately 3,175,000 were held in street name. The Company did not pay cash
dividends from fiscal 1994 through fiscal 1997 as the Board of Directors ceased
the payment of dividends in the third fiscal quarter of 1993. The Company does
not intend to pay cash dividends in the foreseeable future.
PREFERRED STOCK
The Company may issue shares of its Preferred Stock in one or more series,
with the number of shares, designations, dividend rights, dividend rate,
conversion rights, voting rights, redemption rights, liquidation preferences and
other terms to be determined by the Board of Directors, in its discretion,
subject to applicable law, without further action by the stockholders. Thus,
the Board of Directors, without stockholder approval, can issue Preferred Stock
with voting and conversion rights which could adversely affect, among other
things, the voting power of the holders of Common Stock and which could have the
effect of deterring a takeover of the Company. The Board, however, does not
intend to issue Preferred Stock which would have the effect of deterring
takeovers.
TRANSFER AGENT AND REGISTRAR
The Company has appointed Harris Trust & Savings Bank as the Transfer Agent
and Registrar for the Common Stock.
LEGAL MATTERS
Certain legal matters in connection with the securities being offered
hereby will be passed upon for the Company by Much Shelist Freed Denenberg
Ament Bell & Rubenstein, P.C., Chicago, Illinois, which serves as the
Company's general counsel. Jeffrey C. Rubenstein, a principal of Much Shelist
Freed Denenberg Ament Bell & Rubenstein, P.C. has served on the Board of
Directors of the Company since April 1983 and, as of December 31, 1997, is the
beneficial holder of 32,166 shares of the Company's Common Stock.
EXPERTS
The consolidated balance sheets as of June 28, 1997 and June 29,
1996, and the consolidated statements of income, stockholders' equity and cash
flows and financial statement schedule for the years ended June 28, 1997,
June 29, 1996 and July 1, 1995, incorporated by reference herein, have been
incorporated in reliance on the report of PricewaterhouseCoopers LLP (Coopers
& Lybrand L.L.P. prior to its July 1, 1998 merger with Price Waterhouse LLP),
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference,
except as superseded or modified herein:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 28, 1997, filed with the Commission on September 22, 1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 28, 1998, filed with the Commission on May 11, 1998.
(c) Current report of the Company on Form 8-K filed on February 13, 1998.
(d) Current report of the Company on Form 8-K/A-1 filed on March 13, 1998.
(e) Current report of the Company on Form 8-K/A-2 filed on April 14, 1998.
(f) Current report of the Company on Form 8-K/A-3 filed on May 28, 1998.
(g) The description of the common stock set forth in the Company's
Registration Statement on Form 8-A (File No. 0-14651) filed with the Commission
on May 21, 1986, including any amendment or report filed for the purpose of
updating such description.
Additionally, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered herein have been sold or which deregisters all securities
then remaining 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. Any statement 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 is
also or is deemed to be incorporated by reference herein, modifies or supersedes
such statement. Any statement modified or superseded shall not be deemed,
except as so modified or superseded, to constitute part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of the Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated by
reference in this Prospectus, other than exhibits to such documents. Written
requests for such copies should be directed to Corporate Secretary, Miller
Building Systems, Inc. at the Company's principal executive office at 58120
County Road 3 South Elkhart, Indiana 46517 Telephone: (219) 295-1214.
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 Elkhart, Indiana, on August 5, 1998.
MILLER BUILDING SYSTEMS, INC.
By: //Edward C. Craig//
Edward C. Craig
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the following
capacities on July 31, 1998.
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward C. Craig and Thomas J. Martini,
and each of them, his attorney-in-fact, each with the power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this registration
statement, and to sign any registration statement for the same offering covered
by this registration statement that is to be effective upon filing pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Signatures Title
//Edward C. Craig//
Edward C. Craig President, Chief Executive Officer
and Director
(Principal Executive Officer)
//Thomas J. Martini//
Thomas J. Martini Secretary and Treasurer
(Principal Financial and
Accounting Officer)
//David E. Downen//
David E. Downen Director
//Steven F. Graver//
Steven F. Graver Director
[signatures continued next page]
//William P. Hall/
William P. Hall Director
//David H. Padden//
David H. Padden Director
//Jeffrey C. Rubenstein//
Jeffrey C. Rubenstein Director
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution (1)
The following is a list of estimated expenses to be incurred by the Company
in connection with the registration of the shares of Common Stock registered
hereunder:
SEC registration fee. . . . . . . . . .$ 532
Printing and engraving expenses. . . . .10,000
Accounting fees and expenses. . . . . . 5,000
Legal fees and expenses. . . . . . . . .10,000
Miscellaneous. . . . . . . . . . . . . . 5,000
Total . . . . . $30,532
All of the above items are estimates except for the SEC Registration Fee.
The Company has agreed to bear those expenses listed above. Underwriting
discounts and selling commissions attributable to the offering and sale of the
shares are to be paid by the Selling Stockholders.
Item 15. Indemnification of Directors and Officers
The Company is a Delaware corporation. Reference is made to Section 102(b)
(7) of the Delaware General Corporation Law (the "DGCL"), which enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director for violations of the
director's fiduciary duty, except (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the DGCL (providing for liability of
directors for unlawful payments of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Reference is also made to Section 145 of the DGCL, which provides that a
corporation may indemnify any person, including a director or officer, who was
or is a party or who is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person is or was a director, officer, employee
or agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such director, officer, employee or
agent acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the corporation's best interest and, for criminal proceedings,
had no reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify any officer or director in any action by or in the
right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or a
present or former director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses that such person actually and reasonably incurred.
The Company's Certificate of Incorporation limits the personal liability of
directors to the fullest extent permitted by Delaware law. In addition, the
Company's Certificate of Incorporation and By-laws provide that the Company
shall, to the fullest extent permitted by Delaware law, indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative by reason of the fact that he or she is or was a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any and all
expenses, liabilities or other matters referred to or covered by Delaware law,
which were reasonably incurred by such person. This indemnification is in
addition to any other rights of indemnification to which such persons may be
entitled under the Company's Certificate of Incorporation, By-laws, any
agreement or vote of shareholders or disinterested directors or otherwise.
The Company's Certificate of Incorporation and By-laws also permit it to
secure insurance on behalf of any director, officer, employee or other agent for
any liability arising out of his or her actions in such capacity, regardless of
whether Delaware law, the Certificate of Incorporation or By-laws would permit
indemnification.
The description of Delaware law is not intended to be complete. The
description of the Company's Certificate of Incorporation and its By-laws is not
intended to be complete and is respectively qualified in its entirety by such
Certificate and By-laws.
Item 16. Exhibits
Exhibits are listed on the Exhibit Index to this Registration Statement,
which Index is incorporated herein by reference.
Item 17. Undertakings
(A) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or in the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would exceed that which
was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that the undertakings set forth in paragraphs (A)(1)(i) and (A)(1)(ii)
above do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by registrant pursuant to Section 13 of Section 15(d) of the Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(B) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
EXHIBIT INDEX
Exhibit
Number Exhibit Title
2.1 Stock Purchase Agreement, dated February 27, 1998, by and
between the Company, David Newman and Marc Newman.
(incorporated by reference to Exhibit 2.1 to the Company's
Form 8-K/A-1 filed March 13, 1998.
4.1 Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3.1 to the Company's
Form 10-K for the period ended June 28, 1997).
4.2 By-Laws of the Company, as amended (incorporated by
reference to Exhibit 3.2 to the Company's Form 10-K for the
period ended June 28, 1997).
5.1 Opinion of Much Shelist Freed Denenberg Ament Bell &
Rubenstein, P.C. concerning the legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Much Shelist Freed Denenberg Ament Bell &
Rubenstein, P.C. (included in Exhibit 5.1)
EXHIBIT 5.1
August 1, 1998
Miller Building Systems, Inc.
P.O. Box 1283, 58120 C.R. 3 South
Elkhart, IN 46515
RE: REGISTRATION STATEMENT ON FORM S-3
Gentlemen:
We have acted as counsel to Miller Building Systems, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company with the Securities and Exchange Commission of a Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"). The Registration Statement relates to
an aggregate of 227,082 shares of the Company's common stock, par value $.001
per share, all of which are issued and outstanding (the "Shares").
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have reviewed such questions of law as
we have deemed necessary, relevant or appropriate to enable us to render the
opinion expressed herein. In such examination, we have assumed the genuineness
of all signatures and authenticity of all documents, instruments, records and
certificates submitted to us as originals.
Based upon such examination and review and upon the representations made to
us by the officers and directors of the Company, we are of the opinion that the
Shares have been duly and validly authorized and are validly issued, fully paid
and nonassessable.
The opinions expressed herein are limited to the corporate laws of the
State of Delaware and we express no opinion as to the effect on the matters
covered by any other jurisdiction.
This firm consents to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to the firm under the caption "Legal
Matters" in the prospectus which is part of the Registration. In giving such
consent, we do not thereby admit that we are included within the category of
persons whose consent is required under Section 7 of the Securities Act to the
rules and regulations promulgated thereunder.
Very truly yours,
/s/ MUCH SHELIST FREED DENENBERG
AMEND BELL & RUBENSTEIN, P.C.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Miller Building Systems, Inc. on Form S-3 of our report dated July 28, 1997, on
our audits of the consolidated financial statements and financial statement
schedule of Miller Building Systems, Inc. and subsidiaries as of June 28, 1997
and June 29, 1996, and for the years ended June 28, 1997, June 29, 1996 and
July 1, 1995. We also consent to the reference to our firm under the caption
"Experts".
/s/PricewaterhouseCoopers LLP
South Bend, Indiana
August 5, 1998
