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As filed with the Securities and Exchange Commission on October 20, 1995.
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
--------------------------
ROADMASTER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State of incorporation)
84-1065239
(I.R.S. Employer Identification No.)
ROADMASTER INDUSTRIES, INC.
250 SPRING STREET, NW; SUITE 3 SOUTH
ATLANTA, GEORGIA 30303
404-586-9000
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
--------------------------
JEFF L. HINTON
CHIEF FINANCIAL OFFICER
ROADMASTER INDUSTRIES, INC.
250 SPRING STREET, NW; SUITE 3 SOUTH
ATLANTA, GEORGIA 30303
404-586-9000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copy to:
DAVID J. HARRIS, ESQ.
SMITH, GAMBRELL & RUSSELL
1230 PEACHTREE STREET, NE; SUITE 3100
ATLANTA, GEORGIA 30309
404-815-3515
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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 ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Each Class of Amount Offering Aggregate Amount
Securities to to be Price Offering Registration
be Registered Registered Per Share* Price* Fee
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Common Stock
par value $.01
per share 1,969,855 shares $2.815 ** $5,545,142 $1,913
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* Estimated solely for the purpose of calculating the registration fee.
** Calculated in accordance with Rule 457(c) under the Securities Act
based upon the high and low price of securities of the same class on
October 18, 1995, as quoted per the New York Stock Exchange Composite
Tape.
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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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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. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME 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.
SUBJECT TO COMPLETION
DATED OCTOBER 20, 1995
PROSPECTUS
ROADMASTER INDUSTRIES, INC.
1,969,855 Shares of Common Stock
(Par Value $0.01 per Share)
The 1,969,855 shares (the "Shares") of common stock, par value $0.01
per share (the "Common Stock") of Roadmaster Industries, Inc., a Delaware
corporation ("Roadmaster" or "Company"), being offered hereby are being
offered by the Selling Shareholders named herein under the caption "Selling
Shareholders" (the "Selling Shareholders") and are presently outstanding. The
Company will not receive any proceeds from the sale of the Shares by the
Selling Shareholders. The Shares were issued by the Company in connection with
the acquisitions by the Company of certain assets of American Playworld, Inc.
("American Playworld"), substantially all of the assets of MZH, Inc. and MZH
Contracting Corp. (collectively "MZH"), certain assets of Flexible Flyer
Corporation, previously a division of Par Industries, Inc. ("Flexible Flyer"),
and all of the non-Company owned shares of International Sports and Fitness,
Inc. ("IS&F") from the former minority shareholders who exchanged their IS&F
stock for shares of the Company's Common Stock, all of which Shares are being
offered for sale pursuant hereto for the account of the respective Selling
Shareholders identified herein. This Prospectus is to be used in connection
with the sale from time to time by the Selling Shareholders of the Shares.
The Company has agreed with the Selling Shareholders to register the
Shares offered hereby. The Company has also agreed to pay certain fees and
expenses incident to such registration. It is estimated that the fees and
expenses payable by the Company in connection with the registration of the
Shares will be approximately $34,000. The Company intends to keep the
registration statement, of which this Prospectus is a part, effective for a
period of no longer than 30 months from the date of this Prospectus.
The Common Stock is listed on the New York Stock Exchange under the
symbol "RDM." On October 18, 1995, the closing sale price on the New York
Stock Exchange for one share of Common Stock was $2.875.
The Selling Shareholders, their donees or estates, and their
respective pledgees and dealers who may purchase from the foregoing, may, from
time to time, sell all or part of the Shares that may be offered by such person
hereunder on the New York Stock Exchange or other securities exchange or the
over-the-counter market, at prices and at terms then prevailing or in
negotiated transactions or otherwise. The price at which any of the Shares may
be sold, and the commissions, if any, paid in connection with any sale, are
unknown and may vary from transaction to transaction. See "Plan of
Distribution" below. It is understood that the Securities and Exchange
Commission (the "Commission") may take the view that, under certain
circumstances, such persons effecting resales of the Shares purchased and
dealers or brokers handling such transactions may be deemed (such persons not
so conceding) to be "underwriters" within the meaning of the Securities Act of
1933 (the "Securities Act"), and the rules and regulations promulgated
thereunder with respect to such sales.
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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.
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The date of this Prospectus is________________, 1995.
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No person has been authorized to give any information or to make any
representations not contained in this Prospectus in connection with the offer
of Common Stock made by this Prospectus and, if given or made, such information
or representations must not be relied upon as having been authorized by the
Company or by any underwriter, dealer or agent. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any of the
Shares offered hereby in any jurisdiction to any person to whom it is unlawful
to make such offer or solicitation in such jurisdiction. This Prospectus does
not constitute an offer to sell or a solicitation of an offer to buy any
securities other than those to which it relates. Neither the delivery of this
Prospectus nor any sale of, or offer to sell, the Shares offered hereby shall,
under any circumstances, create an implication that there has been no change in
the affairs of the Company since the date hereof or that the information herein
is correct as of any time subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information filed by
the Company with the Commission pursuant to the informational requirements of
the Exchange Act can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
NW, Washington, D.C. 20549, and at the following Regional Offices of the
Commission: New York Regional Office, 7 World Trade Center, 13th Floor, New
York City, New York 10048 and Chicago Regional Office, Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can also be obtained upon written request addressed to the Securities
and Exchange Commission, Public Reference Section, Room 1024, 450 Fifth Street,
NW, Washington, D.C. 20549 at prescribe rates. Such reports, proxy statements
and other information can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York City, New York 10005, on which the
Common Stock of the Company is listed.
This Prospectus forms a part of a registration statement on Form S-3
(referred to herein, including all amendments and exhibits, thereto as the
"Registration Statement") which the Company has filed under the Securities Act
with respect to the Shares. This Prospectus does not contain all the
information otherwise set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement and the exhibits filed as part thereof. The Registration Statement
may be inspected at the public reference facilities maintained by the
Commission at the addresses set forth in the preceding paragraph. Statements
contained herein concerning any document filed as an exhibit 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. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus (i)
its Annual Report on Form 10-K for the fiscal year ended December 31, 1994;
(ii) its Quarterly Reports on Form 10-Q for the periods ended April 1, 1995 and
July 1, 1995; (iii) the description of the Common Stock contained in its
registration statement on Form 8-A filed under the Exchange Act, including any
amendment or reports filed for the purpose of updating such description; (iv)
its Proxy Statement and Notice of Annual Meeting of Shareholders for the annual
meeting held on June 14, 1995 (the "1995 Annual Meeting Proxy Statement"); (v)
its Proxy Statement and Notice of Special Meeting of Shareholders held on
October 31, 1994 in connection with the acquisition of certain subsidiaries
from the Actava Group, Inc. (the "Special Meeting Proxy Statement"), and (vi)
its Form 8-K Report filed on October 18, 1995, each of which has been filed
with the Commission pursuant to the requirements of the Exchange Act.
All 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 termination of the offering of the Shares offered hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from
the respective dates of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in
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any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all documents incorporated herein by
reference (not including exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents). Requests should
be directed to Jeff L. Hinton, Chief Financial Officer, Roadmaster Industries,
Inc., 250 Spring Street, NW, Suite 3 South, Atlanta, Georgia 30303, telephone
404-586-9000.
THE COMPANY
The Company, through its operating subsidiaries, is one of the largest
manufacturers of bicycles and a leading manufacturer of fitness equipment and
junior products in the United States. In addition, the Company is a leading
supplier of outdoor and camping equipment, a national marketer and distributor
of products for sports, and a national distributor for a line of
sports-related hosiery. The Company markets its products primarily through
over 20 leading mass merchandisers, such as Toys 'R Us, Inc., Wal-Mart Stores,
Inc. and Target Stores, Inc., under well-established trade names with
widespread consumer recognition. The Company's principal product lines are as
follows:
- Bicycles for adult, team and juvenile markets.
- Fitness equipment, including stationary aerobic equipment,
multistation weight stations and benches, and trampolines.
- Junior products such as tricycles, wagons, toy horses, bulk
plastic toys, sleds and swing sets.
- Outdoor and camping equipment, including rainwear, footwear,
hunting apparel, inflatables and sleeping bags.
- Products for team sports, including baseballs, softballs,
basketballs, footballs, soccer, hockey, volley ball, and racket
sports equipment -- some of which are marketed pursuant to a
distribution agreement under which the Company is the exclusive
worldwide distributor of various MacGregor(TM) brand products
-- and sports-related hosiery produced and distributed under
various licenses including licenses with the National Football
League, and KEDS(R).
All references herein to the Company include Roadmaster Industries,
Inc. and its subsidiaries, unless the context otherwise requires.
The principal executive offices of the Company are located at 250
Spring Street, NW, Suite 3 South, Atlanta, Georgia 30303, telephone
404-586-9000.
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RISK FACTORS
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER, TOGETHER WITH THE
OTHER MATTERS AND FINANCIAL INFORMATION DISCUSSED ELSEWHERE HEREIN, OR
INCORPORATED BY REFERENCE HEREIN THE FOLLOWING MATTERS RELATING TO THE BUSINESS
OF THE COMPANY AND THE SECURITIES OFFERED HEREBY.
Control of the Company. Subject to disclaimers of beneficial
ownership set forth in the footnotes to the table under "Principal Stockholder"
in the Company's 1995 Annual Meeting Proxy Statement, the executive officers
and directors of the Company may be deemed to own beneficially at October 18,
1995 approximately 53% of the shares of Common Stock outstanding at such date
or subject to warrants or option exercisable within 60 days thereof, with
approximately 38.5% owned by The Actava Group Inc. Thus, such officers and
directors may have the ability to substantially control and influence the
affairs and policies of the Company. See "Principal Stockholders" and
"Management -- Stock Plans" in the Company's 1995 Annual Meeting Proxy
Statement.
Shares Eligible for Future Sale. The sale, or availability for sale,
of substantial amounts of Common Stock in the public market in connection with
or subsequent to this offering could adversely affect the prevailing market
price of the Common Stock and could impair the Company's ability to raise
additional capital through the sale of its securities. Immediately following
this offering, there will continue to be an aggregate of 49,801,929 shares of
Common Stock outstanding (excluding 4,239,598 treasury shares) Of such
49,801,929 shares, _________ shares (excluding the shares being offered hereby)
are "restricted" or "control" securities within the meaning of Rule 144 under
the Securities Act and may not be sold in the absence of registration under the
Securities Act unless an exemption from registration is available, including
the exemption contained in Rule 144. Of the 49,801,929 shares, _____ shares
are, and the 1,969,855 shares sold pursuant to this registration statement will
be, freely transferrable by persons other than "affiliates of the Company
without further registration or restriction under the Securities Act. In
addition, there are outstanding options and warrants to purchase an additional
6,858,378 shares. Of options and such warrants, 5,013,191 options and
warrants currently are exercisable and, assuming exercise of those options and
warrants, _____ shares would be restricted or control securities. The holders
of _____ options and warrants and the holders of ______ shares of restricted
and control Common Stock have been granted registration rights with respect to
such Common Stock or the Common Stock issuable upon the exercise of such
options and warrants.
Certain Anti-Takeover Provisions and Other Provisions Affecting
Stockholders' Rights. Certain provisions of the Certificate of Incorporation
and the By-Laws of the Company and the Delaware General Corporation Law could
delay, defer or prevent a takeover attempt that a stockholder might consider to
be in its best interest. The provisions may adversely affect prevailing market
prices for the Common Stock. These provisions, among other things, authorize
the Company's Board of Directors to issue preferred stock in one or more
classes or series without any action on the part of stockholders. Such
preferred stock would have such preferences, voting powers, qualifications and
special or relative rights and privileges as determined by the Company's Board
of Directors. Thus, any class or series of preferred stock may have full
voting rights with the Common Stock or superior or limited voting rights, be
convertible into Common Stock or another security of the Company, and have such
other preferences, relative rights and limitations as the Board of Directors
shall determine. As a result, any class or series of preferred stock could
have rights which would adversely affect the voting power of the Common Stock
or could have a liquidation preference superior to the Common Stock. The
Company has no present plan to issue any shares of preferred stock. Provisions
of the Certificate and By-laws also limit stockholder action by written
consent, impose limitations on the call of special meetings, require advance
notice for director nominations and impose limits on the ability of the Company
to remove certain executive officers under certain circumstances. See the
"Special Meeting Proxy Statement." In addition, Section 203 of the Delaware
General Corporation Law prohibits certain persons from engaging in business
combinations with the Company. These provisions are likely to impose greater
restrictions on an unaffiliated stockholder than on the Company's existing
principal stockholders. See "Description of Capital Stock -- Preferred Stock"
and "--Statutory Business Combination Provisions."
High Leverage; New Revolving Credit Facility. The Company and its
subsidiaries are highly leveraged. At July 1, 1995, the Company had
consolidated indebtedness aggregating approximately $335,000,000.
Substantially all of the assets of the Company and its subsidiaries are pledged
to secure substantially all of their respective indebtedness. If the
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Company incurs unanticipated costs, has unanticipated write-offs of investments
or other assets or experiences operating or other losses, the Company's
leverage could increase. This leverage (i) could adversely affect the ability
of the Company to obtain additional financing in the future for working
capital, capital expenditures or other purposes, should it need to do so, (ii)
could require an increase in the substantial portion of the Company's cash
flow from operations which is already dedicated to debt service, (iii) could
place the Company at a competitive disadvantage, if the Company is more highly
leveraged than its competitors, and (iv) could make the Company more vulnerable
to a downturn in its business.
On September 29, 1995, the Company refinanced all of the indebtedness
outstanding under its revolving line of credit and term loan (the "Bank
Facility"), which indebtedness was approximately $206,000,000 at September 30,
1995. The new Bank Facility is for a three year term. On June 30, 1995,
approximately $188,000,000 was outstanding under the predecessor Bank
Facility. The new Bank Facility will provide up to approximately $300,000,000
in financing; however, the total indebtedness which may actually be incurred
thereunder may be subject to limitations on indebtedness imposed by the
indenture for the Company's 11-3/4% Senior Subordinated Notes.
Potential Environmental Costs. The Company is subject to regulation
under federal, state, local and provincial laws and regulations governing
pollution and protection of human health and the environment, including air
emissions, water discharges, management and cleanup of solid and hazardous
substances and wastes. The Company believes that its facilities and operations
are in material compliance with all existing applicable laws and regulations.
The Company cannot at this time estimate the impact of any future laws or
regulations on its future operations or future capital expenditure
requirements. The Company is not aware of any pending federal or state
legislation that would have a material impact on the Company's financial
position, results of operations or capital expenditure requirements. Although
no assurances can be given that the costs associated with the Company's current
environmental pollution remediation programs will not be material or that
unanticipated environmental matters resulting in additional material costs for
the Company will not arise, it is management's opinion that the costs
associated with the remediation programs will be expended over a number of
years and will not have a material adverse effect on the Company's financial
condition or results of operations. Furthermore, notwithstanding the
foregoing, no assurances can be given that costs ultimately associated with the
Company's actual remediation programs will not be material or that
unanticipated environmental matters resulting in material costs for the Company
will not arise in the future. For a specific discussion of the Company's
current remediation activities, see "Business--Environmental Matters" in the
Company's Annual Report on Form 10-K.
Price Sensitivity. Sales to mass merchandisers, who are the Company's
primary customers, are highly price sensitive. In addition, the Company prices
many of its products for sale to its largest customers on a yearly basis while
raw materials for such products are priced on an as needed basis for typically
shorter periods. The Company could experience increases in labor, material,
manufacturing or other costs. In addition, since the Company imports certain
raw materials, parts and components and certain finished products, changes in
the relative value of the U.S. dollar against foreign currencies could
significantly affect its costs over time. In the event of increased costs, the
Company may be unable to pass all such costs along to its customers (which
could adversely affect its margins) or to compete as effectively if it seeks to
pass all such costs along (which could adversely affect its market share). For
a discussion of recent cost pressures and the Company's responses thereto, see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
Competition. The recreation and leisure products industry and the
residential lighting industry each are highly competitive. The Company
competes with domestic and foreign manufacturers and most of its products are
subject to price competition. Some of the Company's competitors have greater
financial resources than the Company. For a discussion of recent cost
pressures and the Company's responses thereto, see "Business--Competition in
the Company's Annual Report on Form 10-K.
Reliance on Significant Customers. Wal-Mart Stores, Inc.
("Wal-Mart"), Toys "R" Us, Inc. ("Toys"), Sears Roebuck & Company ("Sears") and
K-Mart Corp. ("K-Mart") collectively accounted for 49.7% of the Company's total
sales in 1994. One of these major customers, Wal-Mart, accounted for 28.2% of
the Company's total sales in 1994. The Company had sales in excess of
$10,000,000 per customer to ten customers in 1994. In 1994, Wal-Mart, Toys,
Sears and Montgomery Ward & Co. ("Montgomery Ward") collectively accounted for
57.4% of the Company's total sales. In 1993, Wal-Mart, Toys, Best Products Co.
and Montgomery Ward accounted for 55.6% of the Company's total sales. The loss
of,
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or a substantial reduction in business from, any of its major customers could
adversely affect the Company's business and its ability to comply with certain
covenants in its credit agreements.
Dependence on Senior Management. The success of the Company depends
to a significant degree on the efforts of the Company's senior management,
including Henry Fong and Edward Shake. The Company's operations may be
adversely affected if one or more members of senior management cease to be
active in the Company. These individuals own both restricted Common Stock and
options to acquire additional Common Stock and their compensation packages
include performance criteria tied to the performance of the Company. See
"Management" and "Principal Stockholders" in the Company's Annual Report on
Form 10-K and the Company's 1995 Annual Meeting Proxy Statement.
Product Liability. The Company faces the risk of exposure to product
liability claims if consumers using its products are injured in connection with
their use. While such claims have not been significant in the past and while
the Company has product liability coverage which it believes is adequate based
on historical claims experience, there can be no assurance that it will avoid
significant product liability claims in the future.
USE OF PROCEEDS
The Company will receive no proceeds from the sale of the Shares. All
proceeds from the sale of the Shares will be for the account of the Selling
Shareholders described below. See "Selling Shareholders" and "Plan of
Distribution" described below.
DESCRIPTION OF CAPITAL STOCK
CAPITAL STOCK
The following statements with respect to the Company's capital stock
are subject to the detailed provisions of the Company's Restated Certificate of
Incorporation (the "Certificate of Incorporation"), and Bylaws, as amended (the
"Bylaws"). These statements do not purport to be complete and are qualified in
their entirety by reference to the terms of the Certificate of Incorporation
and the Bylaws, each of which is incorporated by reference into this
Prospectus.
The Company's authorized capital stock consists of 100,000,000 shares
of Common Stock and 10,000,000 shares of preferred stock, par value $0.01 per
share (the "Preferred Stock"). As of October 18, 1995, 49,801,929 shares of
Common Stock were issued and outstanding (excluding 4,239,598 shares held in
treasury) and no shares of Preferred Stock were issued and outstanding.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share of
Common Stock held by them and are not entitled to cumulative voting. This
means that holders of more than 50% of the shares voting for the election of
directors can elect all of the directors if they choose to do so, and in such
event, the holders of the remaining less than 50% of the shares voting for the
election of directors will not be able to elect any person or persons to the
Board of Directors. Holders of Common Stock are entitled to receive ratably
dividends and other distributions when, as and if declared by the Board of
Directors out of assets legally available therefor subject to the preferential
rights, if any, of any shares of preferred stock outstanding. Holders of
Common Stock do not have any preemptive rights to subscribe for additional
securities of the Company. The Common Stock does not have any conversion
rights or rights of redemption. Upon liquidation, dissolution or winding up of
the Company, holders of Common Stock are entitled to share ratably in the
assets available for distribution to stockholders subject to the preferential
rights, if any, of any shares of preferred stock outstanding.
PREFERRED STOCK
The Company also is authorized, without further action of the
stockholders, to issue up to 10,000,000 shares of preferred stock, par value
$.01 per share, in series having such designations, powers, preferences, rights
and limitations and on such terms and conditions as the Board of Directors may
from time to time determine, including the rights, if any, of the
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holders of such preferred stock with respect to voting, dividends, redemptions,
liquidation and conversion. No shares of preferred stock are outstanding as of
the date of this Prospectus and the Company does not have any present plans,
agreements or understandings for the issuance of any preferred stock. The
issuance of shares of preferred stock or the issuance of rights to purchase
such shares may have the effect of delaying, deferring or preventing a change
in control of the Company or an unsolicited acquisition proposal. Under
certain circumstances, the issuance of preferred stock could adversely affect
the voting power of the holders of Common Stock.
STATUTORY BUSINESS COMBINATION PROVISIONS
The Company is subject to the provisions of Section 203 of the
Delaware General Corporation Law ("Section 203"). Section 203 provides, with
certain exceptions, that a Delaware corporation may not engage in any of a
broad range of business combinations with a person, or affiliate or associate
of such person, who is an "interested stockholder" for a period of three years
from the date that such person became an interested stockholder unless: (i) the
transaction resulting in a person becoming an interested stockholder, or the
business combination, is approved by the board of directors of the corporation
before the person becomes an interested stockholder; (ii) the interested
stockholder acquired 85% or more of the outstanding voting stock of the
corporation in the same transaction in which it becomes an interested
stockholder (excluding shares owned by persons who are both officers and
directors of the corporation and shares held by certain employee stock
ownership plans); or (iii) on or after the date the person becomes an
interested stockholder, the business combination is approved by the board of
directors and by the holders of at least 66-2/3% of the corporation's
outstanding voting stock at an annual or special meeting, excluding shares
owned by the interested stockholder. Under Section 203, an "interested
stockholder" is defined as any person that is (i) the owner of 15% or more of
the outstanding voting stock of the corporation or (ii) an affiliate or
associate of the corporation and was the owner of 15% or more of the
outstanding voting stock of the corporation at any time within the three year
period immediately prior to the date on which it is sought to be determined
whether such person in an interested stockholder.
A corporation may, at its option, exclude itself from the coverage of
Section 203 by amending its certificate of incorporation or bylaws by action of
its stockholders to exempt itself from coverage, provided that such bylaw or
charter amendment may not become effective until 12 months after the date it is
adopted. The Company has not adopted such an amendment.
EXCHANGE LISTING; TRANSFER AGENT
The outstanding shares of the Company Common Stock are listed on the
New York Stock Exchange. The transfer agent and registrar for the Common Stock
is LaSalle National Trust , N.A., 135 South LaSalle Street, Chicago, Illinois
60603.
SELLING SHAREHOLDERS
Each of the Selling Shareholders was formerly a shareholder of, and
received their or its shares in connection with acquisitions by the Company of
the stock or assets of, American Playworld, MZH, Flexible Flyer or IS&F. The
Shares offered hereby were acquired by the Selling Shareholders as a portion of
the consideration for the above-referenced acquisitions.
The following table sets forth as of October 18, 1995, the name of
each of the Selling Shareholders, the nature, if any, of his, her or its
position, office, or other material relationship to the Company or its
affiliates and the number of Shares which each such Selling Shareholder owned
as of the date of this Prospectus. The table also sets forth the number of
shares of Common Stock owned by each Selling Shareholder that are offered for
sale by this Prospectus, the number of shares of Common Stock to be held by
each such Selling Shareholder assuming the sale of all the Shares offered
hereby, and the percentage of Common Stock owned by any Selling Shareholder
after the completion of the offering if such ownership would equal one percent
or more of the Common Stock outstanding. The Company may supplement this
Prospectus from time to time to disclose the names, relationships to the
Company and holdings of securities of additional Selling Shareholders. No
7
<PAGE> 11
statement contained herein nor the delivery of this Prospectus in connection
with a sale by any Selling Shareholder shall be deemed an admission by the
Company or such Selling Shareholder that such Selling Shareholder is in a
"control" relationship with the Company within the meaning of the Securities
Act.
SELLING SHAREHOLDERS
<TABLE>
<CAPTION>
NUMBER OF SHARES OF MAXIMUM NUMBER OF NUMBER OF SHARES OF COMMON
NAME AND ADDRESS OF SELLING COMMON STOCK SHARES TO BE SOLD STOCK TO BE HELD ASSUMING
SHAREHOLDERS AND RELATIONSHIP OWNED AS OF PURSUANT TO THIS SALE OF ALL THE SHARES
TO COMPANY IF ANY(1) OCTOBER 18, 1995 OFFERING OFFERED HEREBY
<S> <C> <C> <C>
MZH, Inc.(2) 360,000 360,000
MZH Contracting Corp.(2) 40,000 40,000 -0-
Barry D. Mower(3) 303,031 303,031 -0-
Kathleen S. Mower(3) 303,031 303,031 -0-
Par Industries, Inc. 617,165 617,165 -0-
Floyd Adelman 13,594 13,594 -0-
9617 Oak Ridge Trail
Minnetonka, MN 55343
Donald Beaupre 10,875 10,875 -0-
5020 Scriver Road
Edina, MN 55436
Gus W. Boosalis 16,312 16,312 -0-
58 Topside Way
Mill Valley, CA 94941
Neil Broten 10,875 10,875 -0-
N8216 690th Street
River Falls, WI 75063
Marvin Bullock 5,437 5,437 -0-
7032 Carey Lane
Maple Grove, MN 55369
Mark D. Cates 2,718 2,718 -0-
P. O. Box 276
Faribault, MN 55021
Audrey E. Cox 13,594 13,594 -0-
1410 Fairlawn Way
Minneapolis, MN 55416
Herbert A. Daub 5,437 5,437 -0-
329 Ridge Road
LeSueur, MN 56058
Jonathan Dworsky 2,718 2,718 -0-
5703 Seven Oaks Court
Minnetonka, MN 55345
</TABLE>
8
<PAGE> 12
<TABLE>
<CAPTION>
NUMBER OF SHARES OF MAXIMUM NUMBER OF NUMBER OF SHARES OF COMMON
NAME AND ADDRESS OF SELLING COMMON STOCK SHARES TO BE SOLD STOCK TO BE HELD ASSUMING
SHAREHOLDERS AND RELATIONSHIP OWNED AS OF PURSUANT TO THIS SALE OF ALL THE SHARES
TO COMPANY IF ANY(1) OCTOBER 18, 1995 OFFERING OFFERED HEREBY
<S> <C> <C> <C>
Deborah Dykema 5,437 5,437 -0-
2495 Canabury Drive
St. Paul, MN 55117
G.A. Partnership 8,999 8,999 -0-
c/o George Arellano
11622 Quives Circle
Westminster, CO 80234
F. Steven Gill 5,437 5,437 -0-
6419 Country Road
Eden Prairie, MN 55340
Trust Company of America 4,513 4,513 -0-
FBO George Arellano IRA
11622 Quives Circle
Westminster, CO 80234
Trust Company of America 4,159 4,159 -0-
FBO Vicki Arellano
11622 Quives Circle
Westminster, CO 80234
Robert L. Gearou 10,875 10,875 -0-
5920 Kirkwood Lane
Plymouth, MN 55442
First Trust Natl. Assn. 2,718 2,718 -0-
FBO: Thomas Gray IRA
801 Nicollet Mall; Suite 1100
Minneapolis, MN 55402
Dean Greenberg 5,437 5,437 -0-
c/o Newport Cold Storage
P. O. Box 129
Newport, MN 55055
Steven Greenberg 5,437 5,437 -0-
c/o Planet Software
800 Washington Avenue North
Minneapolis, MN 55401
Ralph H. Grills, Jr. 10,875 10,875 -0-
Family Limited Partnership
4155 E. Jewell #1115
Denver, CO 80221
</TABLE>
9
<PAGE> 13
<TABLE>
<CAPTION>
NUMBER OF SHARES OF MAXIMUM NUMBER OF NUMBER OF SHARES OF COMMON
NAME AND ADDRESS OF SELLING COMMON STOCK SHARES TO BE SOLD STOCK TO BE HELD ASSUMING
SHAREHOLDERS AND RELATIONSHIP OWNED AS OF PURSUANT TO THIS SALE OF ALL THE SHARES
TO COMPANY IF ANY(1) OCTOBER 18, 1995 OFFERING OFFERED HEREBY
<S> <C> <C> <C>
Donald Hall 5,437 5,437 -0-
4084 Cove St. John's Road
Jacksonville, MN 32211
Craig Hartsburg 8,156 8,156 -0-
821 Wyngate Road
Somerdale, NJ 08083
James S. Kowalski 13,594 13,594 -0-
4716 Bouleau Road
White Bear Lake, MN 55110
John Kubinski 21,750 21,750 -0-
2720 Nevada Avenue North
Minneapolis, MN 55427
Richard Lockwood 13,594 13,594 -0-
2400 Wycliffe Street
St. Paul, MN 55114
Edward N. Mansur 10,875 10,875 -0-
1463 South Smith
West St. Paul, MN 55118
Richard A. McMahon 2,718 2,718 -0-
992 West 7th Street
St. Paul, MN 55106
First Trust Natl. Assn. 13,594 13,594 -0-
FBO: Wayne W. Mills IRA
801 Nicollet Mall; Suite 1100
Minneapolis, MN 55402
Bruce Palmer 5,437 5,437 -0-
8477 Rice Lake Road
Maple Grove, MN 55369
James Pfleider 5,437 5,437 -0-
882 West 7th Street
St. Paul, MN 55106
Ernest Roberg 13,594 13,594 -0-
7524 Brooklyn Park Drive
Brooklyn Park, MN 55444
Raymond Rossini 5,437 5,437 -0-
5353 Gamble Drive; No. 150
St. Louis Park, MN 55416
</TABLE>
10
<PAGE> 14
<TABLE>
<CAPTION>
NUMBER OF SHARES OF MAXIMUM NUMBER OF NUMBER OF SHARES OF COMMON
NAME AND ADDRESS OF SELLING COMMON STOCK SHARES TO BE SOLD STOCK TO BE HELD ASSUMING
SHAREHOLDERS AND RELATIONSHIP OWNED AS OF PURSUANT TO THIS SALE OF ALL THE SHARES
TO COMPANY IF ANY(1) OCTOBER 18, 1995 OFFERING OFFERED HEREBY
<S> <C> <C> <C>
David L. Schwartz 2,718 2,718 -0-
303 Moore Street
Stillwater, MN 55082
John and Jane Sieff 8,156 8,156 -0-
11700 Vista Drive
Minnetonka, MN 55343
Robert M. Sinko 8,156 8,156 -0-
820 Windemere Curve
Plymouth, MN 55441
Richard D. Slomkowski 19,031 19,031 -0-
c/o Raymond Auto Body
1075 Pierce Butler Route
St. Paul, MN 55104
J. Laurie Steinfeldt 2,718 2,718 -0-
2305 Penn Avenue South
Minneapolis, MN 55405
Peter Surmak 5,437 5,437 -0-
520 Westwood Drive North
Golden Valley, MN 55422
Richard Swager 19,031 19,031 -0-
2750 Dean Parkway
Minneapolis, MN 55416
Thomas C. Tsatsos 5,437 5,437 -0-
7520 Caholl Road; No. 206
Edina, MN 55439
Thomas Wiskow 8,156 8,156 -0-
2000 Adair Avenue North
Golden Valley, MN 55422
Vance Vinar 2,718 2,718 -0-
--------- --------- ---------
635 SW 4th Street
Faribault, MN 55021
TOTAL 1,969,855 1,969,855 -0-
========= ========= =========
</TABLE>
(1) Except as otherwise noted, none of the Selling Shareholders has any
relationship with the Company other than as a shareholder.
(2) MZH received its Shares in connection with the acquisition of
certain assets by the Company from MZH. By agreement, MZH has a price
guarantee in the amount of $3.75 per share. See "Plan of Distribution."
11
<PAGE> 15
(3) Barry D. Mower and Kathleen S. Mower (collectively the "Mowers")
received their Shares in connection with the purchase of certain assets by the
Company from American Playworld. By agreement, Barry D. Mower and Kathleen S.
Mower have a price guarantee in the amount of $4.125 per share. See "Plan of
Distribution."
PLAN OF DISTRIBUTION
The Shares offered hereby have been registered pursuant to the
Company's agreements (except with respect to Shares held by the former minority
shareholders of IS&F) that it would register the shares of Common Stock issued
to the Selling Shareholders and would keep such registration effective as
specified in such agreements. Although there was no formal agreement with, or
legal obligation to, the shareholders of IS&F, the Company had verbally agreed
to consider including such shares in a registration statement if and when the
Company decided such shares could be conveniently added to a registration
statement otherwise being prepared by the Company. All of the Shares have been
registered to allow their sale other than as restricted securities under the
Securities Act. Pursuant to this registration, Selling Shareholders may choose
to sell all or any of their Shares from time to time on the New York Stock
Exchange, on any other exchange on which the Common Stock is traded or in the
over-the-counter market or otherwise at prices and at terms then prevailing or
at prices related to the then-current market price or in negotiated
transactions. Selling Shareholders may also elect to sell their Shares
pursuant to Rule 144 from and to the extent such Shares are eligible for sale
thereunder.
The Company has price guarantee agreements with MZH and the Mowers
entered into in connection with the acquisition by the Company of certain
assets of MZH and American Playworld. Under such price guarantee agreements,
the Company generally is obligated to pay MZH and the Mowers the difference
between the selling price of their stock and their respective price guarantees
if the selling price of their respective Common Stock sales is less than their
respective price guarantees. The shares of Common Stock issued to MZH have a
price guarantee of $3.75 per share and the shares of Common Stock issued to the
Mowers have a price guarantee of $4.125 per share.
The Shares may be sold in one or more of the following transactions:
(a) block trades in which the broker or dealer so engaged will attempt to sell
the Shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction, (b) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus, and ordinary brokerage transactions and transactions in which the
broker solicits purchasers. In effecting sales, brokers and dealers engaged by
Selling Shareholders may arrange for other brokers or dealers to participate.
Brokers or dealers will receive commissions or discounts from Selling
Shareholders in amounts to be negotiated (and, if such broker-dealer acts as
agent for the purchaser of such Shares, from such purchaser). Broker-dealers
may agree with the Selling Shareholders to sell a specified number of Shares at
a stipulated price per share, and, to the extent such broker-dealer is unable
to do so acting as agent for a Selling Shareholder, to purchase as principal
any unsold Shares at the price required to fulfill the broker-dealer commitment
to such Selling Shareholder. Broker-dealers who acquire Shares as principal
may thereafter resell such Shares from time to time in transactions (which may
involve crosses and block transactions and sales to and through other
broker-dealers, including transactions of the nature described above) in the
over-the-counter market or otherwise at prices and on terms then prevailing at
the time of sale, at prices then related to the then-current market price or in
negotiated transactions and, in connection with such resales, may pay to or
receive from the purchasers of such Shares commissions as described above.
Certain costs, expenses and fees in connection with the registration
of the Shares will be borne by the Company. Commissions, discounts and
transfer taxes, if any, attributable to the sales of the Shares will be borne
by the Selling Shareholders. The Selling Shareholders generally have agreed
to indemnify the Company, the other Selling Shareholders or any underwriter, as
the case may be, and, in each case, any of their respective affiliates,
directors, officers and controlling persons, against certain liabilities in
connection with the offering of the Shares pursuant to this Prospectus,
including liabilities arising under the Securities Act. In addition, the
Company generally has agreed to indemnify the Selling Shareholders, or any
underwriter, as the case may be, and any of their respective affiliates,
directors, officers and controlling persons, against
12
<PAGE> 16
certain liabilities in connection with the offering of the Shares pursuant to
this Prospectus, including liabilities arising under the Securities Act.
VALIDITY OF SHARES
The validity of the Shares offered hereby was passed upon for the
Company by Smith, Gambrell & Russell, 1230 Peachtree Street, NE, Suite 3100,
Atlanta, Georgia 30309.
EXPERTS
The consolidated financial statements and related schedules of the
Company incorporated in this Prospectus and elsewhere in the Registration
Statement by reference to the Company's Annual Report on Form 10-K for the most
recent fiscal year ended (initially December 31, 1994) have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
13
<PAGE> 17
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE 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 OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREBY BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
TABLE OF CONTENTS
Page
----
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . . . . . . 2
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
DESCRIPTION OF CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . 6
SELLING SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
VALIDITY OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
<PAGE> 18
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
<TABLE>
<S> <C> <C>
SEC registration fee . . . . . . . . . . . . . . . $ 1,913
Accounting fees . . . . . . . . . . . . . . . . . 10,000 *
Legal fees . . . . . . . . . . . . . . . . . . . . 17,000 *
Qualification under state securities laws . . . . 2,000 *
Miscellaneous . . . . . . . . . . . . . . . . . . 3,000 *
-------
TOTAL $33,913
</TABLE>
* Estimated
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation,
hereinafter a "derivative action"), 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
corporation and, with respect to any criminal actions or proceedings, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action, and the
DGCL requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the corporation. The
DGCL provides that it is not exclusive of other indemnification that may be
granted by a corporation's bylaws, disinterested director vote, stockholder
vote, agreement or otherwise.
Article IX of the Bylaws of the Registrant requires indemnification of
all directors, officers and employees to the full extent permitted under
Delaware law as from time to time in effect. In addition, the Company has
indemnified each of its directors and officers and any employee of the Company
who, at the Company's request, has served as a director or officer of another
corporation in which the Company has an interest or, at the request of the
Company, has served as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise to the
fullest extent permitted by the DGCL.
Item 16. Exhibits.
5 Opinion of Smith, Gambrell & Russell, special counsel of the
Company.
23.1 Consent of Smith, Gambrell & Russell, special counsel of the
Company (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP
24 Powers of Attorney.
Item 17. Undertakings.
A. Undertaking Pursuant to Rule 415.
II-1
<PAGE> 19
The Company hereby undertakes:
(1) To file, during any period in which offers of 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 the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) 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 the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the 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. Undertaking Regarding Filings Incorporating Subsequent
Exchange Act Documents by Reference.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
its Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an 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
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Undertaking in Respect of Indemnification.
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 provisions referred to in Item 15 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.
II-2
<PAGE> 20
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, THERETO
DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 20TH OF
OCTOBER, 1995.
ROADMASTER INDUSTRIES, INC.
By: Henry Fong
------------------------------------------------
Henry Fong
President and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<S> <C> <C>
SIGNATURE TITLE DATE
--------- ----- ----
Henry Fong Chairman of the Board, President and October 20, 1995
- ----------------------------------- Chief Executive Officer
Henry Fong (Principal Executive Officer)
Jeff L. Hinton Chief Financial Officer October 20, 1995
- ----------------------------------- (Principal Financial and Accounting Officer)
Jeff L. Hinton
* Director October 20, 1995
- -----------------------------------
Louis J. Conti
Director October , 1995
- -----------------------------------
Edward E. Shake
* Director October 20, 1995
- -----------------------------------
James H. Rand
Director October , 1995
- -----------------------------------
Stephen P. Bradley
* Director October 20, 1995
- -----------------------------------
John D. Phillips
* Director October 20, 1995
- -----------------------------------
Carl E. Sanders
</TABLE>
II-3
<PAGE> 21
<TABLE>
<S> <C> <C>
* Director October 20, 1995
- -----------------------------------
Clay C. Long
* Director October 20, 1995
- -----------------------------------
Michael P. Marshall
* Signed pursuant to Powers of Attorney.
Henry Fong
- -----------------------------------
Henry Fong, as Attorney-in-Fact
</TABLE>
II-4
<PAGE> 22
INDEX TO EXHIBITS
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
5 Opinion of Smith, Gambrell & Russell, special 24
counsel of the Company.
23.1 Consent of Smith, Gambrell & Russell, special
counsel of the Company (included in Exhibit 5). 24
23.2 Consent of Arthur Andersen LLP. 27
24 Powers of Attorney. 29
- ---------------------
<PAGE> 1
EXHIBIT 5
<PAGE> 2
<TABLE>
<S> <C> <C>
SMITH, GAMBRELL & RUSSELL
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS AND INDIVIDUALS
ATTORNEYS AT LAW
SUITE 3100, PROMENADE II ATLANTA FINANCIAL CENTER
(404) 815-3500 1230 PEACHTREE STREET, N.E. SUITE 1800
TELECOPIER (404) 815-3509 ATLANTA, GEORGIA 30309-3592 3343 PEACHTREE ROAD, N.E.
________ ATLANTA, GEORGIA 30326-1010
(404) 264-2620
ESTABLISHED 1893 TELECOPIER (404) 264-2652
</TABLE>
October 20, 1995
Board of Directors
Roadmaster Industries, Inc.
250 Spring Street, S.W.
Suite 3 South
Atlanta, GA 30303
RE: Roadmaster Industries, Inc. Registration Statement on Form S-3
No. 33-______
Gentlemen:
In connection with the secondary offering of up to 1,969,855 shares of
Common Stock, par value $.001 per share (the "Securities") of Roadmaster
Industries, Inc. (the "Company"), we have examined the following:
1. A copy of Registration Statement No. 33-______ as filed with
the Securities and Exchange Commission on or about October 20, 1995, and the
Exhibits filed with and as a part of said Registration Statement;
2. A copy of the Certificate of Incorporation of the Company and
amendments thereto;
3. A copy of the By-laws of the Company and respective amendments
thereto; and
4. Copies of the minutes of the meetings of the Board of
Directors of the Company or committees thereof, or both, in each respective
case deemed by us to be relevant to this opinion.
Further, in connection with this matter, we have reviewed certain of the
Company's proceedings with respect to the authorization of the issuance of such
Securities and with respect to the filing and said Registration Statement. In
rendering the opinion set forth below, we have assumed that the Securities will
be sold as described in the Registration Statement.
Based on the foregoing, it is our opinion that:
(i) the Company is a corporation in good standing, duly organized
and validly existing under the laws of the State of Delaware;
(ii) the necessary corporate proceedings and actions legally
required for the registration of the Securities have been held
and taken;
(iii) the issuance and sale of the Securities have been duly and
validly authorized; and
<PAGE> 3
Board of Directors
Roadmaster Industries, Inc.
Page 2
(iv) the Securities when issued will be fully paid, non-assessable
and free of preemptive rights.
We do not purport to be experts in the laws of any jurisdiction other
than the State of Georgia, laws of the United States and the General
Corporation Law of the State of Delaware, and this opinion is, accordingly,
based solely upon our examination and knowledge of the laws of the State of
Georgia, laws of the United States, and the General Corporation Laws of the
State of Delaware.
We consent to the filing of this opinion as an Exhibit to the
aforementioned Registration Statement on Form S-3 and to the reference to this
firm under the caption "Validity of Common Stock" in the Prospectus. In giving
this consent, we do not thereby admit we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
SMITH, GAMBRELL & RUSSELL
By: David J. Harris
----------------------------------
David J. Harris
DJH/lrm
<PAGE> 1
EXHIBIT 23.2
<PAGE> 2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 20, 1995
included in Roadmaster Industries, Inc.'s Form 10-K for the year ended December
31, 1994 and to all references to our firm included in this registration
statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
October 18, 1995
<PAGE> 1
EXHIBIT 24
<PAGE> 2
STATE OF ILLINOIS
COUNTY OF COOK
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, Louis J. Conti, a Director of
ROADMASTER INDUSTRIES, INC. (the "Company"), a Delaware corporation, do
constitute and appoint Henry Fong and Jeff L. Hinton, jointly and severally, my
true and lawful attorneys-in-fact, with full power of substitution for me in
any and all capacities, to sign, pursuant to the requirements of the Securities
Act of 1933, the Registration Statement on Form S-3 for the Company to be filed
with the Securities and Exchange Commission, together with all exhibits thereto
and other documents in connection therewith, and to sign on my behalf and in my
stead, in any and all capacities, any amendments and supplements to said
Registration Statement, incorporating such changes as any of the said
attorneys-in-fact deems appropriate, in the matter of the S-3 shelf
registration for the benefit of the Selling Shareholders as from time to time
identified therein, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 1st day
of September 1995.
Louis J. Conti
----------------------------------------
Louis J. Conti
ACKNOWLEDGMENT
BEFORE me this 1st day of September, 1995, came Louis J. Conti
personally known to me, who in my presence did sign and seal the above and
foregoing Power of Attorney and acknowledged the same as his true act and deed.
Denise Eskuchen
----------------------------------------
NOTARY PUBLIC
State of Illinois
My Commission Expires: 3-6-98
NOTARY SEAL
"OFFICIAL SEAL"
Denise N. Eskuchen
Notary Public, State of Illinois
My Commission Expires: 03/06/98
<PAGE> 3
STATE OF GEORGIA
COUNTY OF FULTON
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, Clay C. Long, a Director of
ROADMASTER INDUSTRIES, INC. (the "Company"), a Delaware corporation, do
constitute and appoint Henry Fong and Jeff L. Hinton, jointly and severally, my
true and lawful attorneys-in-fact, with full power of substitution for me in
any and all capacities, to sign, pursuant to the requirements of the Securities
Act of 1933, the Registration Statement on Form S-3 for the Company to be filed
with the Securities and Exchange Commission, together with all exhibits thereto
and other documents in connection therewith, and to sign on my behalf and in my
stead, in any and all capacities, any amendments and supplements to said
Registration Statement, incorporating such changes as any of the said
attorneys-in-fact deems appropriate, in the matter of the S-3 shelf
registration for the benefit of the Selling Shareholders as from time to time
identified therein, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 8th day
of September 1995.
Clay C. Long
----------------------------------------
Clay C. Long
ACKNOWLEDGMENT
BEFORE me this 8th day of September, 1995, came Clay C. Long
personally known to me, who in my presence did sign and seal the above and
foregoing Power of Attorney and acknowledged the same as his true act and deed.
Leigh Gavver
----------------------------------------
NOTARY PUBLIC
State of Georgia
My Commission Expires: 12-14-96
NOTARY SEAL
Notary Public, Cobb County, Georgia
My Commission Expires Dec. 14, 1996
<PAGE> 4
STATE OF GEORGIA
COUNTY OF FULTON
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, Michael P. Marshall, a
Director of ROADMASTER INDUSTRIES, INC. (the "Company"), a Delaware
corporation, do constitute and appoint Henry Fong and Jeff L. Hinton, jointly
and severally, my true and lawful attorneys-in-fact, with full power of
substitution for me in any and all capacities, to sign, pursuant to the
requirements of the Securities Act of 1933, the Registration Statement on Form
S-3 for the Company to be filed with the Securities and Exchange Commission,
together with all exhibits thereto and other documents in connection therewith,
and to sign on my behalf and in my stead, in any and all capacities, any
amendments and supplements to said Registration Statement, incorporating such
changes as any of the said attorneys-in-fact deems appropriate, in the matter
of the S-3 shelf registration for the benefit of the Selling Shareholders as
from time to time identified therein, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 14th day
of September 1995.
Michael P. Marshall
----------------------------------------
Michael P. Marshall
ACKNOWLEDGMENT
BEFORE me this 14th day of September, 1995, came Michael P. Marshall
personally known to me, who in my presence did sign and seal the above and
foregoing Power of Attorney and acknowledged the same as his true act and deed.
Virginia S. Cook
----------------------------------------
NOTARY PUBLIC
State of Georgia
NOTARY SEAL
Notary Public, Fulton County, Georgia
My Commission Expires January 21, 1996
<PAGE> 5
STATE OF GEORGIA
COUNTY OF FULTON
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, John D. Phillips, a Director
of ROADMASTER INDUSTRIES, INC. (the "Company"), a Delaware corporation, do
constitute and appoint Henry Fong and Jeff L. Hinton, jointly and severally, my
true and lawful attorneys-in-fact, with full power of substitution for me in
any and all capacities, to sign, pursuant to the requirements of the Securities
Act of 1933, the Registration Statement on Form S-3 for the Company to be filed
with the Securities and Exchange Commission, together with all exhibits thereto
and other documents in connection therewith, and to sign on my behalf and in my
stead, in any and all capacities, any amendments and supplements to said
Registration Statement, incorporating such changes as any of the said
attorneys-in-fact deems appropriate, in the matter of the S-3 shelf
registration for the benefit of the Selling Shareholders as from time to time
identified therein, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 5th day
of September 1995.
John D. Phillips
----------------------------------------
John D. Phillips
ACKNOWLEDGMENT
BEFORE me this 5th day of September, 1995, came John D. Phillips
personally known to me, who in my presence did sign and seal the above and
foregoing Power of Attorney and acknowledged the same as his true act and deed.
Virginia S. Cook
----------------------------------------
NOTARY PUBLIC
State of Georgia
NOTARY SEAL
Notary Public, Fulton County, Georgia
My Commission Expires January 21, 1996
<PAGE> 6
STATE OF CONNECTICUT
COUNTY OF ___________
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, James H. Rand, a Director of
ROADMASTER INDUSTRIES, INC. (the "Company"), a Delaware corporation, do
constitute and appoint Henry Fong and Jeff L. Hinton, jointly and severally, my
true and lawful attorneys-in-fact, with full power of substitution for me in
any and all capacities, to sign, pursuant to the requirements of the Securities
Act of 1933, the Registration Statement on Form S-3 for the Company to be filed
with the Securities and Exchange Commission, together with all exhibits thereto
and other documents in connection therewith, and to sign on my behalf and in my
stead, in any and all capacities, any amendments and supplements to said
Registration Statement, incorporating such changes as any of the said
attorneys-in-fact deems appropriate, in the matter of the S-3 shelf
registration for the benefit of the Selling Shareholders as from time to time
identified therein, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 1st day
of September 1995.
James H. Rand
----------------------------------------
James H. Rand
ACKNOWLEDGMENT
BEFORE me this 1st day of September, 1995, came James H. Rand
personally known to me, who in my presence did sign and seal the above and
foregoing Power of Attorney and acknowledged the same as his true act and deed.
Florence Stevens
----------------------------------------
NOTARY PUBLIC
State of Connecticut
My Commission Expires: June 26, 1997
NOTARY SEAL
FLORENCE STEVENS
Commissioner of Deeds
State of Connecticut
Term Expires June 26, 1997
<PAGE> 7
STATE OF GEORGIA
COUNTY OF FULTON
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, Carl E. Sanders, a Director of
ROADMASTER INDUSTRIES, INC. (the "Company"), a Delaware corporation, do
constitute and appoint Henry Fong and Jeff L. Hinton, jointly and severally, my
true and lawful attorneys-in-fact, with full power of substitution for me in
any and all capacities, to sign, pursuant to the requirements of the Securities
Act of 1933, the Registration Statement on Form S-3 for the Company to be filed
with the Securities and Exchange Commission, together with all exhibits thereto
and other documents in connection therewith, and to sign on my behalf and in my
stead, in any and all capacities, any amendments and supplements to said
Registration Statement, incorporating such changes as any of the said
attorneys-in-fact deems appropriate, in the matter of the S-3 shelf
registration for the benefit of the Selling Shareholders as from time to time
identified therein, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 1st day
of September 1995.
Carl E. Sanders
----------------------------------------
Carl E. Sanders
ACKNOWLEDGMENT
BEFORE me this 1st day of September, 1995, came Carl E. Sanders
personally known to me, who in my presence did sign and seal the above and
foregoing Power of Attorney and acknowledged the same as his true act and deed.
Nancy J. Fleming
----------------------------------------
NOTARY PUBLIC
State of Georgia
My Commission Expires: March 22, 1997
NOTARY SEAL
