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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 20, 1998
REGISTRATION NO. 333-_______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
AMCOR CAPITAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 7372 33-0329559
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Classification Identification
Incorporation Code Number) Number)
or Organization)
-------------------
52300 ENTERPRISE WAY
COACHELLA, CALIFORNIA 92236
(760) 398-9520
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Office)
-------------------
COPY TO:
FRED H. BEHRENS, CHIEF EXECUTIVE OFFICER LARRY A. CERUTTI, ESQ.
AMCOR CAPITAL CORPORATION SNELL & WILMER L.L.P.
52300 ENTERPRISE WAY 1920 MAIN STREET, SUITE 1200
COACHELLA, CALIFORNIA 92236 IRVINE, CALIFORNIA 92614
(760) 398-9520 (714) 253-2700
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities 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 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(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
<TABLE>
<CAPTION>
============================================================================================================
Title of Shares Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered(1) Offering Price Per Share(2) Aggregate Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 44,632 shares $5.047 $225,257.70 $66.45
$.002 par value
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</TABLE>
(1) In the event of a stock split, stock dividend, or similar transaction
involving Common Stock of the Registrant, in order to prevent dilution, the
number of shares registered shall be automatically increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act.
(2) Estimated solely for the purpose of determining the registration fee.
Calculated pursuant to Rule 457(c), on the basis of the average of the high
and low prices per share as reported by the Nasdaq SmallCap Market on
February 13, 1998.
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.
===============================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 20, 1998
PROSPECTUS 44,632 SHARES
AMCOR CAPITAL CORPORATION
COMMON STOCK
This Prospectus relates to 44,632 shares (the "Shares") of Common Stock,
$.002 par value per share ("Common Stock"), of AMCOR Capital Corporation, a
Delaware corporation (the "Company"), that may be offered and sold from time
to time by a stockholder of the Company (the "Selling Stockholder"). The
Company will receive none of the proceeds from the sale of such shares of
Common Stock offered hereby by the Selling Stockholder.
The Common Stock is traded on the Nasdaq SmallCap Market under the
symbol "ACAP." On February 13, 1998, the closing sale price for the Common
Stock, as reported by the Nasdaq SmallCap Market, was $5.063 per share.
The Shares offered hereby may be sold from time to time by the Selling
Stockholder. Such sales may be made directly, through agents designated from
time to time, or through ordinary broker's transactions on the Nasdaq
SmallCap Market, or otherwise at prices and at terms prevailing at the time
of such sales, at prices relating to the then current market price, or in
negotiated transactions, or by a combination of the foregoing methods of
sale. The net proceeds to the Selling Stockholder from the sale of the Shares
will be the purchase price of the Shares sold less all applicable commissions
and discounts, if any. All expenses of registration incurred in connection
with this offering are being borne by the Company. The brokerage and other
expenses of sale incurred by the Selling Stockholder will be borne by the
Selling Stockholder. See "Plan of Distribution" and "Selling Stockholder."
---------------------------
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.
---------------------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE
"RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------------------------
The date of this Prospectus is ____________, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to 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
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements, and other information filed by the Company with the Commission
may be inspected and copied at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
and at its regional offices located at 7 World Trade Center, 13th Floor, New
York, New York 10048, and Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may be
obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a web site (http://www.sec.gov) that contains reports, proxy and
information statements, and other information regarding registrants, such as
the Company, that file electronically with the Commission. In addition, the
Company's Common Stock is traded on the Nasdaq SmallCap Market. Reports,
proxy statements, and other information filed by the Company are also
available for inspection at the offices of the Nasdaq SmallCap Market,
Reports Section, 1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus constitutes a part of a registration statement on Form
S-3 (the "Registration Statement") that the Company has filed with the
Commission under the Securities Act of 1933, as amended (the "Securities
Act"). As permitted by the rules and regulations of the Commission, this
Prospectus omits certain information contained in the Registration Statement
and the exhibits thereto and reference is hereby made to the Registration
Statement and related exhibits for further information with respect to the
Company and the Common Stock offered hereby. Statements contained in this
Prospectus as to the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission are not
necessarily complete and, in each instance, reference is made to the copy of
such documents as so filed. Each such statement is qualified in its entirety
by such reference.
INFORMATION INCORPORATED BY REFERENCE
The Annual Report of the Company on Form 10-KSB for the fiscal year
ended August 31, 1997 and the Quarterly Report of the Company on Form 10-QSB
for the quarterly period ended November 30, 1997, have been filed by the
Company with the Commission and are hereby incorporated by reference in this
Prospectus. All other documents and reports filed by the Company with the
Commission pursuant to Sections 13, 14, or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of
this offering of the Common Stock shall be deemed to be incorporated by
reference in this Prospectus and to be made a part hereof from their
respective dates of filing.
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 any other subsequently filed document that 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 cause to be furnished without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
the written or oral request of such person, a copy of any and all documents
incorporated herein by reference (not including the exhibits to such
documents, unless such exhibits are specifically incorporated by reference in
the document which this Prospectus incorporates). Requests should be directed
to Robin E. Swanson, Secretary, AMCOR Capital Corporation, 52300 Enterprise
Way, Coachella, California 92236; telephone: (760) 398-9520.
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PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS QUALIFIED
IN ITS ENTIRETY BY THE MORE DETAILED INFORMATION APPEARING ELSEWHERE OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS. IN ADDITION TO OTHER
INFORMATION IN THIS PROSPECTUS, THE FACTORS SET FORTH UNDER "RISK FACTORS"
BELOW SHOULD BE CONSIDERED IN EVALUATING AN INVESTMENT IN THE COMMON STOCK
OFFERED HEREBY.
THE COMPANY
AMCOR Capital Corporation (the "Company") was incorporated in Delaware
on March 10, 1988. The Company's consolidated operations include its
wholly-owned subsidiaries, Sun Goddess Farms, Inc., AMCOR Properties, Inc.
and TransPacific Environmental, Inc. ("TransPacific"). The Company also holds
a 99% ownership interest in (i) Las Palomas Country Club Estates LLC, which
acts as the development entity for a championship golf course and a
contiguous 1,350 acre residential building lot development located southeast
of San Antonio, Texas; (ii) AMCOR Builders LLC ("AMCOR Builders"), which
manages the construction operations of the Company in Texas; and (iii) AMCOR
Biomass Farms, LLC ("AMCOR Biomass") which, together with TransPacific,
operates a "clean green waste" processing business in Southern California.
Prior to July 1, 1993, the Company's consolidated operations included those
of a venture capital affiliate which was principally organized to syndicate
limited partnerships to engage in various agribusiness activities, including
the purchase and development of agricultural land. Since 1981, the Company,
either directly or through subsidiaries and affiliates, generally has acted
as a general partner and/or managing agent of the limited partnerships.
The Company is engaged principally in agribusiness and the management
and development of certain farm and real estate properties both for its own
account and for other entities and has recently become involved in "clean
green waste" processing and governmental tree trimming and maintenance. The
Company functions largely as a vertically integrated developer and producer
of "early market" table grapes in Southern California's Coachella Valley,
operating one of the largest processing/cold storage facilities in that
region. It also owns date acreage in the Coachella Valley for sale to date
processors. The Company presently has approximately 12,300 total acres under
management.
The business of the Company includes three core operating divisions: (i)
the agribusiness division, (ii) the "clean green waste" processing division
(which includes governmental tree trimming and maintenance) and (iii) the
land planning/development division. The Company's principal agribusiness
operations involve the production, processing and marketing of table grapes,
all of which are located in the Coachella Valley of Southern California,
where the Company, along with its affiliated partnerships, has a dominant
market share. The Company's "clean green waste" processing activities are
carried out by AMCOR Biomass and TransPacific in Southern California, and its
land planning/development activities are located in Southern California and
Texas (Houston and San Antonio). Most of the non-agricultural properties are
owned by partnerships for which the Company or an affiliate of the Company is
the managing agent. During fiscal 1997, the Company's revenues were derived
principally from the following business segments: (i) agribusiness and
packing/cold storage services, (ii) biomass operations (i.e., clean green
waste processing and governmental tree trimming and maintenance) and (iii)
property management and development.
The Company's principal executive office is located at 52300 Enterprise
Way, Coachella, California 92236. The Company's telephone number is (760)
398-9520.
3
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THE OFFERING
This Prospectus relates to 44,632 shares of Common Stock that may be
offered and sold from time to time by the Selling Stockholder. The Company
will not receive any of the proceeds from the sales of shares of Common Stock
by the Selling Stockholder. See "Plan of Distribution" and "Selling
Stockholder."
4
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RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, THE FOLLOWING
RISK FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY AND ITS
BUSINESS BEFORE PURCHASING THE COMMON STOCK OFFERED BY THIS PROSPECTUS. AN
INVESTMENT IN THE COMMON STOCK OFFERED HEREBY IS SPECULATIVE IN NATURE AND
INVOLVES A HIGH DEGREE OF RISK.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Prospectus, including all documents
incorporated herein by reference, may be forward-looking statements within
the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act. These forward-looking statements may include projections of
revenue and net income and issues that may affect revenue or net income;
projections of capital expenditures; plans for future operations; financing
needs or plans; plans relating to the Company's products and services; and
assumptions relating to the foregoing. Forward-looking statements are
inherently subject to risks and uncertainties, some of which cannot be
predicted or quantified. Future events and actual results could differ
materially from those set forth in, contemplated by, or underlying the
forward-looking statements. Statements in this Prospectus, including those
set forth above, describe factors, among others, that could contribute to or
cause such differences.
ENVIRONMENTAL LIABILITY AND RELATED RISKS
COMPLIANCE WITH GOVERNMENTAL AND ENVIRONMENTAL REGULATIONS. The
collection and disposal of solid wastes, including wastes incident to the
operation of a clean green waste processing facility and rendering of related
environmental services, are subject to federal, state and local laws and
regulations which regulate health, safety, the environment, zoning and
land-use. Any violation of, and cost of compliance with, these laws and
regulations could have a material adverse effect on the Company's business,
financial condition and results of operations. Operating permits are
generally required for recycling facilities and certain collection vehicles,
and these permits are subject to revocation, modification, and renewal.
Federal, state and local regulations vary, but generally govern all types of
waste disposal activities and the location and use of facilities and also
impose restrictions to prohibit or minimize soil, air and water pollution. In
connection with the Company's recycling activities, it may be necessary to
expend considerable time, effort and money to bring the existing or acquired
facilities into compliance with applicable requirements and to obtain and
renew the permits and approvals necessary to increase or maintain the
recycling and storage capacity of such facilities. In addition, governmental
authorities have the power to enforce compliance with these regulations and
to obtain injunctions or impose fines in the case of violations, including
criminal penalties. These regulations are administered by the United States
Environmental Protection Agency ("EPA") and various other federal, state and
local environmental, health and safety agencies and authorities, including
the Occupational Safety and Health Administration of the United States
Department of Labor.
Subtitle D of the Resource Conservation and Recovery Act of 1976, as
amended, establishes a framework for regulating the storage, collection and
disposal of non-hazardous solid wastes. In the past, the Subtitle D framework
has left the regulation of non-hazardous waste storage, collection and
disposal largely to the states. However, in October 1991, the EPA promulgated
a final rule which imposes minimum federal comprehensive solid waste
management criteria and guidelines for disposal facilities and operations,
including location restrictions, facility design and operating criteria,
closure and post-closure requirements, financial assurance standards,
groundwater monitoring requirements and corrective action standards, many of
which have not commonly been in effect or enforced in connection with solid
waste landfills. States are required to revise their solid waste management
facility regulations to meet these requirements. Because some parts of the
new regulations will be phased in over time, the full effect of these
regulations may not be
5
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known for several years. However, other than for groundwater monitoring and
financial assurance requirements, all provisions of the final rule became
effective in October 1993. There can be no assurance that the EPA will not
promulgate similar regulations under Subtitle D in connection with the
collection of non-hazardous solid waste.
HAZARDOUS SUBSTANCES LIABILITY. The Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended ("Superfund" or
"CERCLA"), has been interpreted by some courts to impose strict, joint and
several liability on current and former owners or operators of facilities at
which there has been a release or a threatened release of a "hazardous
substance" and on persons who generate, transport or arrange for the disposal
of such substances at those facilities. Thousands of substances are defined
as "hazardous" under CERCLA and their presence, even in minute amounts, can
result in substantial liability. The statute provides for the remediation of
contaminated facilities and imposes the costs therefor on the responsible
parties. The costs of conducting such a cleanup and the damages can be very
significant and, given the limitations in insurance coverage for these risks,
could have a material adverse impact on the Company and its financial
condition. Notwithstanding the efforts of AMCOR Biomass and TransPacific to
comply with applicable regulations and to avoid transporting and receiving
hazardous substances, such substances may be present in waste collected or
received for processing by AMCOR Biomass and TransPacific. AMCOR Biomass and
TransPacific intend to continue to focus on the non-hazardous clean green
waste recycling market and does not intend to acquire or develop hazardous
waste disposal operations. Additionally, such hazardous substances may be
present in the properties owned, operated, or to be acquired by the Company,
and liability for the investigation, assessment and remediation of such
hazardous substance contamination may be imposed on the Company in some cases
regardless of whether the Company caused the contamination. As used in this
Prospectus, "non-hazardous waste" means substances that are not defined as
hazardous wastes under federal regulations.
LACK OF ENVIRONMENTAL LIABILITY INSURANCE. Although AMCOR Biomass and
TransPacific may acquire and maintain site-specific pollution legal liability
insurance, which may provide coverage under certain circumstances for
pollution damage to third parties, such coverage is restrictive in nature and
subject to certain exclusions and effective dates consistent with insurance
industry requirements. In addition, such coverage is subject to specific and
aggregate limits which may not be sufficient to cover claims if they were to
arise. If AMCOR Biomass and TransPacific are not able to obtain comprehensive
pollution insurance at reasonable costs, they may carry only such coverage,
if any, as is required by regulatory permits. In addition, the extent of
insurance coverage under certain forms of policies has been the subject in
recent years of litigation in which insurance companies have, in some cases,
successfully taken the position that certain risks are not covered by such
policies. If, in the absence of such insurance, AMCOR Biomass and
TransPacific were to incur liability for environmental damages of sufficient
magnitude, such liability could have a material adverse effect on the
Company's business, financial condition and results of operations.
RISKS OF FUTURE LEGAL PROCEEDINGS. In addition to the costs of complying
with environmental regulations, recycling companies and other waste
management companies, by the nature of their businesses, may be involved in
legal proceedings in the ordinary course of business. Government agencies may
seek to impose fines on AMCOR Biomass and TransPacific for alleged failure to
comply with laws and regulations or to deny, revoke or impede the renewal of
AMCOR Biomass' and TransPacific's permits and licenses or enjoin its business
operations. In addition, such governmental agencies, as well as surrounding
landowners, residents or the public, may claim that AMCOR Biomass or
TransPacific is liable for harm to human health, safety or the environment.
Citizens' groups have become increasingly active in challenging the grant or
renewal of permits and licenses, and responding to such challenges has
further increased the costs associated with permitting new facilities or
expanding current facilities. A significant judgment against either AMCOR
Biomass or TransPacific, the loss of a significant permit or license or the
imposition of an injunction on any of their business operations or imposition
of a significant fine could have a material adverse effect on the
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Company's business, financial condition and results of operations.
Unfavorable resolution of any such matter could adversely affect the results
of the recycling and biomass and green waste processing operations of AMCOR
Biomass and TransPacific.
SEASONALITY. The Company believes that its clean green waste processing
and governmental tree trimming and maintenance operations may be adversely
affected by protracted periods of inclement weather, which, in the case of
the clean green waste processing, could delay the transfer of clean green
waste or reduce the volume of clean green waste generated, or both. Moreover,
different types and volumes of clean green waste are generated throughout the
year, depending upon optimum growing seasons, government work abatement
programs, and specialized holiday green waste (for example, the disposal of
evergreen trees after the end of the Christmas season). Protracted periods of
inclement weather could have a material adverse effect on AMCOR Biomass and
TransPacific which, in turn, could have a material adverse effect on the
Company's business, financial condition and results of operations.
COMPETITION IN THE RECYCLING INDUSTRY. AMCOR Biomass and TransPacific
provide alternatives to landfill disposal (such as recycling, biomass milling
and waste-to-energy). There has been an increasing trend at the state and
local levels to mandate waste reduction at the source and to prohibit the
disposal of certain types of wastes at landfills. As this trend continues,
the Company expects to encounter competition from new and existing waste
industry members. Management believes that entry into the industry and
ongoing operations within the industry require a substantial agricultural
land base, on-going agricultural operations and substantial financial
resources. The non-hazardous waste industry is led by several large national
waste management companies and numerous regional and local companies, all of
which contribute to the significant competition that characterizes the
industry. Some of these companies have significantly greater financial and
operational resources and more established market positions than the Company.
In addition, the Company may compete with municipalities that maintain their
own waste collection and landfill operations and may have financial
advantages due to the availability of tax revenues and tax-exempt financing.
EXPANSION AND EQUIPMENT ACQUISITION RISKS. The Company is expanding its
clean green waste processing and recycling operations. New clean green waste
facility expansion is subject to a number of risks, including risks of city,
state and, where necessary, federal licensing delays and cost overruns that
may increase operating costs, risks that leases for such facilities may not
be entered into on schedule or that the recycling operations will not achieve
anticipated volume to generate income to pay operating expenses, and new
project commencement risks, such as the receipt of zoning, occupancy and
other required governmental permits and authorizations and the occurrence of
development costs in connection with projects that are not pursued to
completion. Acquisition of machinery incidental to the operation of such
recycling facilities entails risks that the machinery will fail to perform in
accordance with expectations and judgments with respect to the costs of such
machinery will prove inaccurate, as well as general investment risks
associated with any expanding business venture. Moreover, because some
machinery is being specially modified for AMCOR Biomass and TransPacific,
there are risks that servicing and maintenance will be more expensive or
time-consuming than currently anticipated.
NO ASSURANCE OF ENFORCEMENT. The Company believes that passage of the
California Integrated Waste Management Act of 1989 (Assembly Bill 939) ("AB
939") will benefit the clean waste operations of the Company, because AB 939
requires the diversion of clean green waste material from the existing waste
disposal process. However, there can be no assurance that local jurisdictions
will comply with AB 939, or that local enforcement agencies responsible for
monitoring and enforcing compliance with AB 939 will ardently enforce its
provisions.
AGRICULTURAL EXEMPTIONS. AMCOR Biomass presently enjoys certain
exemptions from permitting requirements promulgated and enforced by the State
of California South Coast Air Quality Management
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District, and the Riverside County Local Enforcement Agency, because of the
status of AMCOR Biomass as an agricultural business under Standard Industrial
Classification Codes. In the event AMCOR Biomass loses its agricultural
exemption, such event could have a material adverse effect on the Company's
business, financial condition and results of operations.
REAL ESTATE RISKS
GENERAL. The real property assets of the Company and its affiliates are
subject to varying degrees of risk, including the risk of rising interest
rates. The yields available from equity investments in real estate depend on
the amount of income generated and expenses incurred. If the properties of
the Company and its affiliates do not generate income sufficient to meet
operating expenses, including debt service and capital expenditures, the
Company's income and profitability will be adversely affected. Income from
properties of the Company and its Affiliates may be adversely affected by the
general economic climate; local conditions, such as oversupply of residential
housing or a reduction in demand for residential housing in the area; the
attractiveness of the properties to potential buyers; competition from other
available housing; the ability of the owner to provide adequate maintenance
and insurance; and increased operating costs (including real estate taxes).
The Company's income would also be adversely affected if the Company's golf
course and related facilities do not operate at a profit.
ILLIQUIDITY OF REAL ESTATE. Real estate investments are generally
illiquid and, therefore, could limit the ability of the Company to vary its
investment strategies promptly in response to changes in economic or other
conditions.
GEOGRAPHIC DIVERSIFICATION. The real property in which the Company and
its affiliates have ownership or other beneficial interests are located in
several states, including California, Texas and Oregon. The Company's
performance may, therefore, be influenced by economic conditions in these
regions and the markets for various products and services therein. A decline
in the economy in any one of these markets may have a material adverse effect
on the Company's business, financial condition and results of operations.
EXPANSION INTO NEW MARKETS. The Company is not restricted from engaging
in the real estate development business in the future. Pursuant to the
Company's plans to complete construction and development of its golf course
and adjacent residential building lots, and to expand its real estate
development operations in other areas, as opportunities may develop, the
Company and/or its affiliates may acquire additional undeveloped land in
Texas, Southern California and other states. The performance of the
properties of the Company and its affiliates in these new areas may be linked
to economic conditions in these areas and the market for residential housing
and recreational services therein, and there is no assurance that the
investments of the Company and its affiliates in the new areas will generate
the same returns as similar investments have in the past in these areas.
RISKS RELATING TO FINANCING. The Company anticipates that its real
estate development and acquisition activities, and those of its affiliates,
will be largely financed by externally generated funds from borrowings with
credit facilities and other secured and unsecured debt financing and from
equity financing. In addition, new golf course and residential building lot
development activities may be financed under lines of credit or other forms
of secured or unsecured construction financing that would result in a risk
that permanent financing for newly developed projects might not be available
or would be available only on disadvantageous terms. Accordingly, were the
Company unable to obtain funds from borrowings or the capital markets to
refinance new development or acquisitions undertaken without permanent
financing, the Company's ability to grow through additional development and
acquisition activities could be curtailed.
UNINSURED LOSS. The Company or its affiliates may maintain, in amounts
deemed appropriate by management, general liability, fire, flood (where
applicable), and other insurance with policy specifications,
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limits and deductibles customarily maintained for similar properties owned or
operated by the Company and its affiliates. There are, however, certain types
of extraordinary losses (such as losses resulting from earthquakes) that may
be either uninsurable or not economically insurable. Should such an uninsured
loss occur, the Company could lose its investment in, and anticipated revenue
from, a property.
RECREATIONAL FACILITY OPERATING RISKS
DEPENDENCE ON SINGLE LOCATION. The Las Palomas Course is the only golf
course currently owned by the Company. Accordingly, a variety of factors
relating to having golf course operations at only one location could affect
the ongoing viability of the golf course operations and the ultimate value to
the Company of both the lease and the golf course. These factors include
local economic conditions, adverse publicity, accidents that could damage or
destroy the Las Palomas Course, and competition from other local golf course
facilities.
SIGNIFICANT COMPETITION. The golf course business is competitive and
includes competition from other local golf courses, as well as other forms of
recreation, which could adversely affect Lake Valley's ability to pay its
lease obligations to the Company. Certain of Lake Valley's competitors may
have considerably greater financial, marketing, personnel, and other
resources than Lake Valley, as well as greater experience and customer
recognition. In the San Antonio area, Lake Valley faces competition from 17
public and 4 military golf courses. While management believes that the
location and the amenities associated with the Las Palomas Course provide it
with certain competitive advantages, there can be no assurance that the Las
Palomas Course will be able to compete successfully.
SEASONAL RESULTS. The Company anticipates that revenues derived from the
Las Palomas Course may fluctuate based on weather conditions and the seasonal
nature of recreational golf in the San Antonio area. This season pattern may
cause Lake Valley's results of operations to vary from quarter to quarter.
Accordingly, period-to-period comparisons are not necessarily meaningful and
should not be relied on as indicative of future results of golf course
operations.
DEPENDENCE ON DISCRETIONARY CONSUMER SPENDING. The amount spent by
consumers on discretionary items, such as golf and other recreational and
entertainment activities, is dependent upon consumers' levels of
discretionary income, which may be adversely affected by general or local
economic conditions. A decrease in consumer spending on such activities will
have a material adverse effect on the business, financial condition and
results of operations of the Las Palomas Course and could have a material
adverse effect on the business, financial condition and results of operations
of the Company.
DEPENDENCE ON SALE OF ADJACENT RESIDENTIAL LOTS. The Las Palomas Course
is bordered by a residential subdivision consisting of 1,300 lots which are
owned by Lake Valley. The number of lots purchased, and the number of
residences built on those lots, may be adversely affected by general or local
economic conditions and may, in turn, adversely affect Lake Valley's ability
to meet its obligations under its lease with the Company for the Las Palomas
Course.
POSSIBLE ADVERSE CONSEQUENCES OF ENVIRONMENTAL REGULATION. Golf and
recreational centers use and store various hazardous materials. Under various
federal, state and local laws, ordinances and regulations, an owner or
operator of real property is generally liable for the costs of removal or
remediation of hazardous substances that are released on its property,
regardless of whether the owner or operator knows of, or was responsible for,
the release of such hazardous materials. The Company has not been advised of
any non-compliance with all such laws, ordinances, and regulations applicable
to the Las Palomas Course. The Company, however, has not performed any
environmental studies on the La Palomas Course and, as a result, there may be
potential liabilities or conditions existing on the Las Palomas Course of
which the Company is not aware. If any such liabilities or conditions arise
with respect to the Las Palomas Course or any related
9
<PAGE>
facilities which may be constructed, acquired or operated by the Company or
its affiliates on or near the Las Palomas Course in the future, such an event
could have a material adverse effect on the business, financial condition and
results of operations of the Company.
AGRICULTURAL INDUSTRY RISKS
MARKETS FOR AGRICULTURAL PRODUCTS ARE SEASONAL AND VOLATILE. Market
demand for the Company's table grapes is primarily dependent upon growing
conditions and competition, which are always uncertain due to a number of
factors including, among others, weather patterns and conditions
(particularly precipitation) and the U.S. government's agricultural policies.
The agricultural operations of the Company may be subject to significant
interruption, and the Company may be subject to significant liability, if one
or more of its crops are damaged by severe weather or other natural disaster.
Table grape prices are also affected by world supply and demand factors. The
Company's agricultural business is seasonal and typically the Company
realizes most of its revenues during the primary harvest season, which is May
through June each year.
HIGHLY COMPETITIVE BUSINESS. Agricultural products are a global
commodity and customers, including wholesalers and end users, base their
purchasing decisions principally on the price and deliverability of the
products. A number of U.S. agricultural concerns compete with the Company in
domestic and export markets, either directly or indirectly. Agricultural
concerns in other countries, including state-owned and government subsidized
entities, compete in the U.S. and in foreign markets in which the Company
competes or in which the Company may compete in the future. Due to the
passage of the North American Free Trade Agreement, the Company faces
substantial competition from Mexican agricultural concerns. Some of the
Company's principal competitors have greater total resources than the Company
and this competition could have a material adverse effect on the Company's
business, financial condition and results of operations.
GENERAL RISK FACTORS
DEPENDENCE ON KEY PERSONNEL. The Company is dependent upon the efforts
and abilities of its senior management, particularly those of Fred H. Behrens
and Robert A. Wright. The loss of either Mr. Behrens or Mr. Wright could have
a material adverse affect on the business, financial condition and results of
operations of the Company. In addition, the Company is dependent upon the
efforts and abilities of Mr. Gus Franklin for its biomass and green waste
operations. The loss of Mr. Franklin could have a material adverse effect on
the expansion or operation of the Company's clean green waste recycling
operations and related operations. The Company maintains key person life
insurance policies on Mr. Behrens and Mr. Wright. The face amount of each
policy is $2.0 million and the Company is entitled to 50% of such amount upon
the death of the insured. The Company does not maintain key person life
insurance on any of its other executive officers.
USE OF DEBT FINANCING. The Company and its affiliates are subject to the
risks normally associated with debt financing, including the risk that the
Company and its affiliates will have insufficient cash available to meet
required payments of principal and interest. As a result of the use of
indebtedness and leverage by the Company and its affiliates, including the
use of debt to finance development and acquisitions and the use of variable
rate financing, the cumulative effect of the risks associated with borrowing
is greater than that of each of these risks considered individually. In
addition, if a property or properties are mortgaged to secure payment of
indebtedness and the Company or its affiliates are unable to meet mortgage
payments or if certain other events of default occur, that property could be
foreclosed upon by or otherwise transferred to the mortgagee with a
consequent loss of income and asset value to the Company.
POTENTIAL VOLATILITY OF STOCK PRICE. The market price of the shares of
the Company's Common Stock may be highly volatile. Factors such as actual or
anticipated quarterly fluctuations in financial results, changes in
10
<PAGE>
recommendations or earnings estimates by securities analysts, announcements
of new services and the timing of announcements of acquisitions by the
Company or its competitors, as well as market conditions in the agricultural,
real estate and green waste processing markets generally, may have a
significant effect on the market price of the Common Stock.
ABILITY OF THE COMPANY TO IMPLEMENT ITS BUSINESS STRATEGY. Although the
Company and its affiliates are committed to growth strategies in the
agricultural, real estate, and clean green waste processing operations,
implementation of these strategies will depend in large part on the ability
of the Company and its affiliates to (i) maintain appropriate procedures,
policies and systems in regard to compliance with federal, state and local
regulatory agencies; (ii) hire, train, and retain skilled employees; (iii)
continue to operate profitably in the face of increasing competition; and
(iv) obtain adequate financing on favorable terms to fund the business and
growth strategies of the Company and its affiliates. There can be no
assurance that the Company will be able to do so. If the Company is unable to
successfully implement its business strategy or to manage its growth, the
Company's business, results of operations and financial condition could be
adversely affected.
FUTURE CAPITAL REQUIREMENTS. Although the Company believes that the net
proceeds from the recent sale by the Company of its Series A 9% Convertible
Preferred Stock, together with existing cash balances, cash flow from
operations and available lines of credit, will be sufficient to meet its
capital requirements for at least the next 12 months, the Company may seek
additional equity or debt financing to compete effectively in the markets it
serves. The timing and amount of the Company's capital requirements cannot be
precisely determined at this time and will depend on a number of factors,
including the demand for the Company's products and services. There can be no
assurance that such additional financing will be available when needed, or,
if available, will be on terms satisfactory to the Company. If additional
funds are raised by issuing equity securities, further dilution to the then
existing stockholders will result.
FLUCTUATIONS IN QUARTERLY RESULTS. The Company's quarterly results have
varied significantly in the past and will likely continue to do so in the
future due to a variety of factors, including, but not limited to, the
seasonality of its agribusiness operations, changes in marketing or sales
expenditures, market acceptance of the products and services of the Company,
competitive pricing pressures and general economic and industry conditions
that affect demand in the various business operations of the Company. Such
fluctuations may contribute to volatility in the market price for the Common
Stock and may have a material adverse effect on the financial condition and
results of operations of the Company.
CONTROL OF THE COMPANY. Members of the Board of Directors and executive
officers of the Company together beneficially own approximately 26.8% of the
issued and outstanding shares of the Company's Common Stock, and as a result
of such ownership have significant influence over all matters requiring
approval by the stockholders of the Company, including the election of
directors, increasing the authorized capital, dissolving, merging or selling
assets of the Company, directing short and long term corporate policy and
controlling day to day operations of the Company.
EXERCISE OF OUTSTANDING WARRANTS AND OPTIONS. The Company has reserved
1,142,883 shares of its Common Stock for issuance upon exercise of options
and warrants outstanding as of the date of this Prospectus. During the terms
of such options and warrants, the holders thereof will have the opportunity
to profit from an increase in the market price of Common Stock, with
resulting dilution in the interest of holders of Common Stock. The existence
of such options and warrants may adversely affect the terms on which the
Company can obtain additional financing, and the holders of such options and
warrants can be expected to exercise such options and warrants at a time when
the Company, in all likelihood, would be able to obtain additional capital by
offering shares of Common Stock on terms more favorable to the Company than
those provided by the exercise of such options and warrants.
11
<PAGE>
ABILITY TO ISSUE ADDITIONAL PREFERRED STOCK; POSSIBLE ANTITAKEOVER
EFFECT OF DELAWARE LAW. The Company's Certificate of Incorporation authorizes
the issuance of up to 2,000,000 shares of preferred stock, $.002 par value.
The preferred stock may be issued in series with the material terms of any
series determined by the Board of Directors. As of the date of this
Prospectus, the Company has issued and outstanding 747,500 shares of Series A
9% Convertible Preferred Stock (the "Series A Preferred Stock") and 404,414
shares of Series B Convertible Preferred Stock (the "Series B Preferred
Stock"). The Series A Preferred Stock and Series B Preferred Stock have
dividend privileges and liquidation preferences superior to those of the
Common Stock. The Company does not presently anticipate that it will issue
any additional preferred stock. However, if the Company does issue any
further series of preferred stock in the future, such shares will likely also
have dividend privileges and liquidation preferences superior to those of the
Common Stock. Furthermore, the preferred stock may be issued with voting,
conversion or other terms determined by the Board of Directors which could be
used to delay, discourage or prevent a change in control of the Company. Such
terms could include, among other things, dividend payment requirements,
redemption provisions, preferences as to dividends and distributions and
preferential voting rights. These provisions, together with certain
provisions of Delaware law, may have the effect of delaying or preventing
changes in control or management of the Company which would adversely affect
the market price of the Company's Common Stock.
SHARES ELIGIBLE FOR FUTURE SALE. Future sales of shares by existing
security holders could have an adverse effect on the market price of the
Company's Common Stock or otherwise impair the Company's ability to raise
additional capital. In general, under Rule 144 as currently in effect, an
affiliate of the Company, or person (or persons whose shares are aggregated)
who has beneficially owned shares of the Company for at least one year will
be entitled to sell in any three-month period a number of shares that does
not exceed the greater of (i) one percent of the then outstanding shares of
the Company's Common Stock or (ii) the average weekly trading volume of the
Company's Common Stock during the four calendar weeks immediately preceding
the date on which notice of the sale is filed with the Commission. Sales
pursuant to Rule 144 are subject to certain requirements relating to manner
of sale, notice and the availability of current public information about the
Company. A person (or persons whose shares are aggregated) who is not deemed
to be an affiliate of the Company at any time during the 90 days immediately
preceding the sale and who has beneficially owned shares of the Company for
at least two years is entitled to sell such shares under Rule 144(k) without
regard to the limitations described above.
As of the date of this Prospectus, the Company has outstanding 7,610,069
shares of Common Stock. Of these shares, approximately 6,235,378 shares are
freely tradeable without restriction or further registration under the
Securities Act of 1933, as amended (other than restrictions imposed upon
officers and directors of the Company under Rule 144). An additional
approximately 1,374,691 shares will become tradeable at various times within
one year of the date of this Prospectus, subject to the aforementioned
requirements relating to the manner of sale, notice and the availability of
current public information about the Company. In addition, the Company has
filed Registration Statements on Form S-8 with the Commission with respect to
the issuance of shares of the Company's Common Stock upon exercise of options
granted under its 1994 Stock Option Plan (the "1994 Plan") and upon exercise
of warrants issued to consultants to the Company and will soon hereafter file
a Registration Statement on Form S-8 with the Commission with respect to the
issuance of shares of the Company's Common Stock upon exercise of options
granted or to be granted under its 1997 Stock Option Plan (the "1997 Plan").
167,500 shares of Common Stock are issuable upon the exercise of outstanding
options under the 1994 Plan, an aggregate of 292,500 shares of Common Stock
are issuable upon exercise of outstanding warrants in favor of three
consultants to the Company, and up to 908,266 shares of Common Stock may be
issuable upon the exercise of options granted to certain directors and
executive officers of the Company and which are not covered by the
Registration Statements on Form S-8. Accordingly, all of the shares of Common
Stock issuable upon exercise of options under the 1994 Plan and the warrants
in favor of the consultants are freely tradeable without restriction or
further registration
12
<PAGE>
and, upon effectiveness of the Registration Statement on Form S-8 with
respect to the 1997 Plan, all of the shares of Common Stock issuable upon
exercise of options granted or to be granted under the 1997 Plan will be
freely tradeable without restriction or further registration. As of the date
of this Prospectus, options to purchase 260,000 shares of Common Stock have
been issued under the 1997 Plan, of which none are vested.
DILUTION. From time to time, the Company has made and anticipates that
it may make acquisitions in the future using shares of Common Stock. An
acquisition using shares of Common Stock would have the effect of reducing
the percentage ownership of the Company by each pre-acquisition stockholder.
13
<PAGE>
THE COMPANY
The Company's consolidated operations include its wholly-owned
subsidiaries, Sun Goddess Farms, Inc., AMCOR Properties, Inc. and
TransPacific. The Company also holds a 99% ownership interest in (i) Las
Palomas Country Club Estates LLC, which acts as the development entity for a
championship golf course and a contiguous 1,350 acre residential building lot
development located southeast of San Antonio, Texas; (ii) AMCOR Builders,
which manages the construction operations of the Company in Texas; and (iii)
AMCOR Biomass, which, together with TransPacific, operates a "clean green
waste" processing business in Southern California. Prior to July 1, 1993, the
Company's consolidated operations included those of a venture capital
affiliate which was principally organized to syndicate limited partnerships
to engage in various agribusiness activities, including the purchase and
development of agricultural land. Since 1981, the Company, either directly or
through subsidiaries and affiliates, generally has acted as a general partner
and/or managing agent of the limited partnerships.
The Company is engaged principally in agribusiness and the management
and development of certain farm and real estate properties both for its own
account and for other entities and has recently become involved in "clean
green waste" processing and governmental tree trimming and maintenance. The
Company functions largely as a vertically integrated developer and producer
of "early market" table grapes in Southern California's Coachella Valley,
operating one of the largest processing/cold storage facilities in that
region. It also manages date acreage in the Coachella Valley for sale to date
processors. The Company presently has approximately 12,300 total acres under
management.
The business of the Company includes three core operating divisions: (i)
the agribusiness division, (ii) the "clean green waste" processing division
(which includes governmental tree trimming and maintenance) and (iii) the
land planning/development division. The Company's principal agribusiness
operations involve the production, processing and marketing of table grapes,
all of which are located in the Coachella Valley of Southern California,
where the Company, along with its affiliated partnerships, has a dominant
market share. The Company's "clean green waste" processing activities are
carried out by AMCOR Biomass and TransPacific in Southern California, and its
land planning/development activities are located in Southern California and
Texas (Houston and San Antonio). Most of the non-agricultural properties are
owned by partnerships for which the Company or an affiliate of the Company is
the managing agent. During fiscal 1997, the Company's revenues were derived
principally from the following business segments: (i) agribusiness and
packing/cold storage services, (ii) biomass operations (i.e., clean green
waste processing and governmental tree trimming and maintenance) and (iii)
property management and development.
USE OF PROCEEDS
This Prospectus relates to shares of Common Stock that may be offered and
sold from time to time by the Selling Stockholder. The Company will not receive
any of the proceeds from the sales of shares of Common Stock by the Selling
Stockholder. See "Plan of Distribution" and "Selling Stockholder."
14
<PAGE>
SELLING STOCKHOLDER
The following table sets forth certain information regarding the
beneficial ownership of the Company's Common Stock as of the date of this
Prospectus and as adjusted to reflect the sale of the Shares offered hereby
by the Selling Stockholder. The Selling Stockholder is currently not an
affiliate of the Company, and has not had a material relationship with the
Company during the past three years.
<TABLE>
<CAPTION>
Amount and
Nature of Number of Number of Percent of Percent of
Name of Beneficial Shares Shares Class Before Class After
Beneficial Owner Ownership(1) Offered Hereby After Offering(2) Offering(3) Offering(2)
- ---------------- ------------ -------------- ----------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Lance B. Jones 44,632 44,632 0 * 0%
</TABLE>
- ----------------
* Less than one percent (1%).
(1) Except pursuant to applicable community property laws, the person named in
this table has sole voting and investment power with respect to all shares
of the Company's Common Stock.
(2) Assumes that all Shares offered hereby are actually sold.
(3) Such presentation is based on 7,610,069 shares of Common Stock outstanding
as of February 17, 1998.
PLAN OF DISTRIBUTION
The shares of Common Stock beneficially owned by the Selling Stockholder
were acquired by the Selling Stockholder in a private transaction prior to
the date of this Prospectus. In connection with the acquisition of the Shares
by the Selling Stockholder, the Company agreed to file the Registration
Statement of which this Prospectus forms a part.
The Shares being offered hereby will be offered and sold by the Selling
Stockholder (or by pledgees, donees, transferees and other successors in
interest) for his own accounts. The Company will not receive any of the
proceeds from the sale of the Shares offered pursuant to this Prospectus. The
Company has agreed to bear the expenses of the registration of the Shares,
including legal, accounting, printing and filing fees, and such expenses are
estimated to be approximately $25,667. The brokerage and other expenses of
sale incurred by the Selling Stockholder will be borne by the Selling
Stockholder.
The Selling Stockholder may offer and sell the shares from time to time
directly, through agents designated from time to time, or through ordinary
broker's transactions on the Nasdaq SmallCap Market (or other
over-the-counter markets or exchanges where the shares may then be traded),
or otherwise at prices and at terms prevailing at the time of such sales, at
prices relating to the then current market price, or in negotiated
transactions, or by a combination of the foregoing methods of sale. Sales may
be made to or through broker-dealers who may receive compensation in the form
of discounts, concessions or commissions from the Selling Stockholder or the
purchasers of shares for whom such broker-dealer may act as agent or to whom
they may sell as principal, or both (which compensation as to a particular
broker-dealer may be in excess of customary commissions). The Company is not
aware as of the date of this Prospectus of any agreements between the Selling
Stockholder and any broker-dealers with respect to the sale of the Shares
offered by this Prospectus.
The Selling Stockholder and any broker, dealer or other agent acting in
connection with the sale of the Shares hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any commissions received by any such broker, dealer or agent and any profit
realized by them on the resale of shares of Common Stock as principals may be
deemed to be underwriting compensation under the Securities Act. The Shares
may also be sold in accordance with Rule 144 and Rule 145 under the
Securities Act.
15
<PAGE>
It is not possible at the present time to determine the price to the
public in any sale of the Shares by the Selling Stockholder. Accordingly, the
public offering price and the amount of any applicable underwriting discounts
and commissions will be determined at the time of such sale by the Selling
Stockholder. The net proceeds to the Selling Stockholder from the sale of the
Shares will be the purchase price of the Shares sold less all applicable
commissions and discounts, if any.
The Selling Stockholder will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including without
limitation, Rule 102 under Regulation M, which provisions may limit the
timing of purchases and sales of any of the Shares by the Selling
Stockholder. Rule 102 under Regulation M provides, with certain exceptions,
that it is unlawful for a selling shareholder or its affiliated purchaser to,
directly or indirectly, bid for or purchase or attempt to induce any person
to bid for or purchase, for an account in which such selling shareholder or
affiliated purchaser has a beneficial interest in any securities that are the
subject of the distribution during the applicable restricted period under
Regulation M. All of the foregoing may affect the marketability of the
Shares. The Company will require the Selling Stockholder, and his broker, if
applicable, to provide a letter that acknowledges his compliance with
Regulation M under the Exchange Act before authorizing the transfer of such
Selling Stockholder's Shares.
LEGAL MATTERS
The validity of the Shares being offered hereby will be passed upon for
the Company by Snell & Wilmer L.L.P., Irvine, California.
EXPERTS
The financial statements and schedules of AMCOR Capital Corporation as
of August 31, 1997, and for the year ended August 31, 1997, have been
incorporated herein in reliance upon the report of Kelly & Company,
independent certified public accountants, and upon the authority of said firm
as experts in accounting and auditing.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS, IN CONNECTION WITH THE OFFERING CONTEMPLATED HEREBY, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER
TO BUY ANY SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. 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 OR THAT THE INFORMATION
CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
16
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
No dealer, salesperson, or other person has been authorized in
connection with this offering 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 or that the information contained herein is correct as
of any date subsequent to the date hereof. This Prospectus does not
constitute an offer of the securities offered hereby by anyone in any
jurisdiction in which it is unlawful to make such offer or solicitation.
---------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Available Information........................................ 2
Information Incorporated by Reference........................ 2
Prospectus Summary........................................... 3
Risk Factors................................................. 5
The Company.................................................. 14
Use of Proceeds.............................................. 14
Selling Stockholder.......................................... 15
Plan of Distribution......................................... 15
Legal Matters................................................ 16
Experts...................................................... 16
</TABLE>
44,632 SHARES
AMCOR CAPITAL CORPORATION
COMMON STOCK
--------------------------------
PROSPECTUS
--------------------------------
, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
17
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be incurred by
the Registrant in connection with the offering described in this Registration
Statement:
<TABLE>
<S> <C>
SEC registration fee................................. $ 67
NASD filing fee...................................... 0
Printing and engraving fees and expenses............. 100*
Legal fees and expenses.............................. 20,000*
Accounting fees and expenses......................... 1,000*
Blue sky fees and expenses........................... 2,500*
Transfer agent and registrar fees.................... 1,000*
Miscellaneous........................................ 1,000*
-------
TOTAL............................................ $25,667*
-------
-------
</TABLE>
- ------------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation limits, to the maximum
extent permitted by Delaware law, the personal liability of directors for
monetary damages for breach of their fiduciary duties as a director. The
Registrant's Bylaws provide that the Registrant shall indemnify its officers
and directors and may indemnify its employees and other agents to the fullest
extent permitted by Delaware law.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify a director, officer, employee or agent made a party
to an action by reason of that fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation against expenses actually and reasonably incurred by him or her
in connection with such action if he or she acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation and with respect to any criminal action, had no
reasonable cause to believe his or her conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission (the "Commission"), such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
5.1......................... Opinion of Snell & Wilmer L.L.P.
23.1........................ Consent of Snell & Wilmer L.L.P.
(contained in the opinion included
as Exhibit 5.1)
23.2........................ Consent of Kelly & Company
24.1........................ Power of Attorney (contained on
the signature page of the
Registration Statement)
</TABLE>
(b) FINANCIAL STATEMENT SCHEDULES:
Not applicable.
ITEM 17. UNDERTAKINGS.
(a) 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 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.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purposes of determining liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-2
<PAGE>
(c) 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 the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
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 (1)(i) and (1)(ii)
above do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 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; and
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Irvine, State of California, on
February 17, 1998.
AMCOR CAPITAL CORPORATION
By: /s/FRED H. BEHRENS
------------------------------------
Fred H. Behrens, Chairman of the
Board and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Fred H. Behrens and Robert A. Wright, or either of them, his true
and lawful attorney-in-fact and agent, with full power of substitution, to
sign on his behalf, individually and in each capacity stated below, all
amendments and post-effective amendments to this Registration Statement on
Form S-3 and to file the same, with all exhibits thereto and any other
documents in connection therewith, with the Securities and Exchange
Commission under the Securities Act of 1933, granting unto said
attorney-in-fact and agent 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 and to all intents and purposes as each might or could do
in person, hereby ratifying and confirming each act that said
attorney-in-fact and agent may lawfully do or cause to be done by virtue
thereof.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/FRED H. BEHRENS Chairman of the Board and Chief February 17, 1998
- ------------------------- Executive Officer and Director
Fred H. Behrens (principal executive officer)
/s/ROBERT A. WRIGHT President and Director February 17, 1998
- -------------------------
Robert A. Wright
/s/EUGENE W. TIDGEWELL Vice President, Treasurer and Chief February 17, 1998
- ------------------------- Financial Officer (principal
Eugene W. Tidgewell accounting officer)
/s/MARLENE A. TAPIE Director February 17, 1998
- -------------------------
Marlene A. Tapie
/s/DALE P. PAISLEY Director February 17, 1998
- -------------------------
Dale P. Paisley
/s/MARLIN T. MCKEEVER Director February 17, 1998
- -------------------------
Marlin T. McKeever
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
5.1 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Snell & Wilmer L.L.P. (contained in the opinion
included as Exhibit 5.1)
23.2 Consent of Kelly & Company
24.1 Power of Attorney (contained on the signature page of the
Registration Statement)
</TABLE>
<PAGE>
EXHIBIT 5.1
SNELL & WILMER L.L.P.
1920 MAIN STREET, SUITE 1200
IRVINE, CALIFORNIA 92614
February 20, 1998
AMCOR Capital Corporation
52300 Enterprise Way
Coachella, California 92236
Re: FORM S-3 REGISTRATION STATEMENT
Gentlemen:
We have acted as counsel to AMCOR Capital Corporation, a Delaware
corporation (the "Company"), in connection with the registration by the
Company on Form S-3 (the "Registration Statement") under the Securities Act
of 1933, as amended, of 44,632 shares of the Company's common stock, $.002
par value (the "Shares"). The Shares are being offered for sale by a
stockholder of the Company (the "Selling Stockholder") identified in the
Registration Statement.
On the basis of such investigations as we have deemed necessary, we are
of the opinion that the Shares to be offered for sale by the Selling
Stockholder have been duly authorized and are fully paid and non-assessable
and, upon the execution and delivery of certificates representing such
Shares, the Shares will be validly issued.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" contained in the prospectus that forms a part of the
Registration Statement.
Very truly yours,
/s/ SNELL & WILMER L.L.P.
<PAGE>
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors
AMCOR Capital Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of AMCOR Capital Corporation of our report dated December 3, 1997,
relating to the consolidated balance sheet of AMCOR Capital Corporation as of
August 31, 1997, and the related consolidated statements of operations,
shareholders' equity and cash flows for the year then ended, which report
appears in the August 31, 1997 Annual Report on Form 10-KSB of AMCOR Capital
Corporation.
/s/ KELLY & COMPANY
Orange County, California
February 20, 1998
