<PAGE> 1
As filed with the Securities and Exchange Commission on November 9, 1998
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW HORIZONS WORLDWIDE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 22-2941704
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
500 Campus Drive
Morganville, New Jersey 07751
(732) 536-8501
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
with a copy to:
---------------
Curtis Lee Smith, Jr. Scott R. Wilson, Esq.
Chairman and Chief Executive Officer Calfee, Halter & Griswold LLP
New Horizons Worldwide, Inc. 1400 McDonald Investment Center
500 Campus Drive 800 Superior Avenue
Morganville, New Jersey 07751 Cleveland, Ohio 44114
(732) 536-8501 (216) 622-8200
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of the Registration Statement and
after compliance with applicable state and federal laws.
-------------------
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. [ ]
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
PROPOSED MAXIMUM PROPOSED
TITLE OF SHARES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
- -------------------------------------- ---------------- ------------------ ---------------------- -------------------
<S> <C> <C> <C> <C> <C>
Common Stock, par value $.01 per 35,000 $17.9375 $627,813 $175
share
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), using the average of the high and low bid and ask
prices of the Common Stock of the Registrant as reported on the Nasdaq
National Market on November 4, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
SUBJECT TO COMPLETION, DATED NOVEMBER 9, 1998
PROSPECTUS
NEW HORIZONS WORLDWIDE, INC.
35,000 SHARES OF COMMON STOCK
($.01 PAR VALUE)
This Prospectus relates to the offering for resale of 35,000 shares of
Common Stock, $.01 par value (the "Common Stock"), of New Horizons Worldwide,
Inc., a Delaware corporation (the "Company"). All of the shares of Common Stock
being registered may be offered and sold from time to time by certain selling
stockholders of the Company, or by pledgees, donees, transferees or other
successors in interest. See "Selling Stockholders" and "Manner of Offering." The
Company will not receive any proceeds from the sale of the shares of Common
Stock by the Selling Stockholders.
The Company's Common Stock is traded on the Nasdaq National Market
under the symbol "NEWH." On November 4, 1998 the last reported sale price for
the Common Stock was $19.00 per share.
------------------------------------
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.
------------------------------------
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus (including the
material incorporated herein by reference) and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or by any other person deemed to be an underwriter. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy the shares covered by this Prospectus by anyone in any state 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 to anyone to whom it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstances create an implication that
there has been no change in the affairs of the Company since the date hereof.
------------------------------------
The date of this Prospectus is _________ __, 1998
<PAGE> 3
AVAILABLE INFORMATION
The Company files annual, quarterly and current reports, proxy
statements and other documents with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). These reports, statements and documents may be inspected and
copied in the public reference facilities of the Commission's Main Office, at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; or at the
Commission's Regional Offices, which are located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and at Seven World
Trade Center, 13th Floor, New York, New York 10048-1102. The Commission
maintains a Web site, the address of which is http://www.sec.gov, that contains
reports, proxy and information statements and other information regarding
registrants, including the Company, that file electronically with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates the following documents by reference
into this Prospectus:
(a) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997;
(b) the Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1998 and June 30,
1998;
(c) the Company's Current Reports on Form 8-K dated April
30, 1998 and October 30, 1998;
(d) the Company's Definitive Proxy Statement used in
connection with the Company's Annual Meeting of
Stockholders held on May 5, 1998; and
(e) the description of the Company's Common Stock set
forth in the Company's Registration Statement on Form
8-A filed June 22, 1989 (File No. 0-17840), and any
amendments and reports filed for the purpose of
updating that description;
other than the portions of such documents which by statute, by designation in
such document or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
All documents subsequently filed pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act prior to the termination of this offering shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from their respective dates of filing, other than the portions of such
documents which by statute, by designation in such document or otherwise, are
not deemed to be filed with the Commission or are not required to be
incorporated herein by reference. Any statement contained herein or in any
document incorporated or deemed to be incorporated shall be deemed to be
modified or superseded for all purposes of this Prospectus to the extent that a
statement contained in this Prospectus or in any subsequently filed document
which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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 provide to each person to whom this Prospectus is
delivered, without charge, a copy of any and all of the information that has
been incorporated by reference in this Prospectus (except that the Company will
not provide the exhibits to the information that is incorporated by reference
unless the exhibits are specifically incorporated by reference into the
information that the Prospectus incorporates). A request for such material may
be made either in writing or orally, and should be
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directed to Secretary, New Horizons Worldwide, Inc., 500 Campus Drive,
Morganville, New Jersey 07751, telephone (732) 536-8501.
TABLE OF CONTENTS
Available Information...............................................2
Incorporation of Certain Documents By Reference.....................2
Statement Regarding Forward-Looking Disclosure......................3
The Company.........................................................4
Selling Stockholders................................................4
Manner of Offering..................................................4
Description of Capital Stock........................................5
Validity of Shares..................................................9
Experts.............................................................9
STATEMENT REGARDING FORWARD-LOOKING DISCLOSURE
The Company is making this statement in order to satisfy the "safe
harbor" provisions contained in the Private Securities Litigation Reform Act of
1995. The statements made in this registration statement that are not historical
facts are forward looking statements. Such statements are based on current
expectations but involve risks, uncertainties, and other factors which may cause
actual results to differ materially from those contemplated by such forward
looking statements. Important factors which may result in variations from
results contemplated by such forward looking statements include, but are by no
means limited to:
(i) The Company's ability to respond effectively to potential
changes in the manner in which computer training is delivered,
including the increasing acceptance of technology-based
training which could have more favorable economics with
respect to timing and delivery costs and the emergence of
"just in time" interactive training;
(ii) The Company's ability to attract and retain qualified
instructors;
(iii) The rate at which new software applications are introduced by
manufacturers and the Company's ability to keep up with new
applications and enhancements to existing applications;
(iv) The level of expenditures devoted to enhancements upgrading
information systems and computer software by customers;
(v) The Company's ability to compete effectively with low cost
training providers who may not be authorized by software
manufacturers;
(vi) The Company's ability to manage the growth of its business;
and
(vii) The Company's ability to effectively manage the timely
modification of its information systems and monitor the
modification of its vendors' and customers' systems regarding
the Year 2000.
The Company's business strategy focuses on enhancing revenues and
profits at current locations. In addition, the Company may:
- Open new company-owned locations;
- Sell additional franchises;
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- Buy back from its franchisees existing franchises in the
United States; or
- Acquire other companies in similar or complementary
businesses.
The Company's growth strategy is premised on a number of assumptions
concerning trends in the information technology training industry, including
continued growth in the market for information technology training and the trend
toward outsourcing. To the extent that the Company's assumptions with respect to
any of these matters are inaccurate, its results of operations and financial
condition could be adversely affected.
THE COMPANY
The Company's principal executive offices are at 500 Campus Drive,
Morganville, New Jersey 07751, and its telephone number is (732) 536-8501. As
used in this Prospectus, the term "Company" means New Horizons Worldwide, Inc.
and all of its subsidiaries, unless the context indicates otherwise.
SELLING STOCKHOLDERS
The shares of Common Stock covered by this Prospectus are being offered
and sold by the stockholder of the Company listed below (the "Selling
Stockholder"), upon the exercise of an outstanding warrant to purchase up to
35,000 shares of Common Stock (the "Warrant") originally issued to The Nassau
Group, Inc. ("Nassau"). The Company issued the Warrant to Nassau on December 31,
1997 in connection with its engagement to serve as the Company's financial
advisor. The shares of Common Stock underlying the Warrant may be sold from time
to time upon the exercise of the Warrant by the holder thereof.
The following table shows, as to each Selling Stockholder, the number
of shares owned by the Selling Stockholder prior to this offering and the number
of shares of Common Stock being registered hereby:
<TABLE>
<CAPTION>
Number of Number of Shares Number of
Shares Owned Offered for Selling Shares Owned
Name Prior to Offering Stockholder's Account After Offering
---- ----------------- --------------------- --------------
<S> <C> <C> <C>
The Nassau Group, Inc. (1) 35,000 35,000 0
</TABLE>
- -----------------
(1) Represents shares which may be acquired upon the exercise of the
Warrant. The Warrant is immediately exercisable, as of the date hereof,
as to 17,500 shares of Common Stock. On January 1, 1999, the Warrant
will become exercisable as to an additional 8,750 shares of Common
Stock, for an aggregate of 26,250. On January 1, 2000, the Warrant will
become exercisable as to an additional 8,750 shares of Common Stock,
for an aggregate of 35,000. See "Description of Capital Stock--The
Warrant."
As of the date of this Prospectus, the Company is unaware of any plans
or intentions of the Selling Stockholder with respect to the number of shares of
Common Stock that it desires to sell or when the Selling Stockholder would
desire to sell its stock, except that, depending on market conditions, the
Selling Stockholder may sell an as yet undetermined number of shares of Common
Stock for the purposes of investment diversification.
MANNER OF OFFERING
The shares of Common Stock being registered hereby may be sold from
time to time by the Selling Stockholder, or by pledgees, donees, transferees or
other successors in interest. Sales of the
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shares of Common Stock may be made on the Nasdaq Stock Market or otherwise at
prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The shares may be sold pursuant to
one or more of the following types of transactions:
(a) A block trade 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
(c) Ordinary brokerage transactions and transactions in which the
broker solicits purchasers.
In effecting sales, brokers or dealers engaged by the Selling
Stockholder may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from the Selling Stockholder in
amounts to be negotiated immediately prior to sale. Such brokers or dealers may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), in connection with such sales. In addition,
any securities covered by this Prospectus which qualify for sale pursuant to
Rule 144 may be sold under Rule 144 rather than pursuant to this Prospectus.
The Company has advised the Selling Stockholder of its obligations
under the Exchange Act to avoid market manipulation of the Common Stock
(including, without limitation, the obligation not to purchase or solicit
purchases by others of any shares of Common Stock during the two business days
preceding the commencement of any offers or sales of shares of Common Stock)
until the offering pursuant to this Prospectus by the Selling Stockholder has
been completed.
Under the terms of the Warrant, the Company has agreed to indemnify the
Selling Stockholder against certain liabilities, including liabilities under the
Securities Act.
The Company also has advised the Selling Stockholder of its obligations
under the Securities Act to deliver copies of this Prospectus to any purchaser
of its Common Stock.
The Company will not receive any proceeds from the sale of the shares
of Common Stock offered hereby.
DESCRIPTION OF CAPITAL STOCK
THE WARRANT
The Company issued Nassau a warrant to purchase an aggregate of 35,000
shares of Common Stock at an exercise price of $12.50 per share, in connection
with Nassau's continued service as the Company's financial advisor. The Warrant
will expire on February 21, 2004.
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As of the date of this Prospectus, Nassau has the right to exercise the
Warrant to purchase 17,500 shares of Common Stock. The remainder of the Warrant
will become exercisable as shown in the following table:
<TABLE>
<CAPTION>
ADDITIONAL NUMBER OF SHARES THAT TOTAL NUMBER OF SHARES THAT NASSAU
DATE NASSAU MAY PURCHASE MAY PURCHASE
<S> <C> <C>
January 1, 1999 8,750 26,250
January 1, 2000 8,750 35,000
</TABLE>
At any time or combination of times before the Warrant expires, the
Selling Stockholder may exercise the Warrant to purchase the whole number of
shares of Common Stock for which it is then exercisable, or for any lesser
number. The Selling Stockholder is required to pay the aggregate exercise price
for the number of Warrant Shares purchased upon any exercise:
- in cash;
- by certified check or bank draft for the aggregate exercise
price; or
- in Warrant Shares (valued for this purpose at their fair
market value), if the Company's Common Stock is then publicly
traded.
The Selling Stockholder may also apply to the purchase price any debt
that the Company owes to the Selling Stockholder at the time of exercise, and
the Selling Stockholder may combine any or all of these methods. The Company
will require the Selling Stockholder to provide investment representations at
the time of any request for exercise by the Selling Stockholder. The Company
will not issue fractional shares or scrip representing fractional shares upon
the exercise of the Warrant, but will round up the number of Warrant Shares to
be received upon any exercise to the next whole share. The Selling Stockholder
may assign the Warrant only with the prior written consent of the Company; as
long as Nassau holds the Warrant, Nassau may assign the Warrant, in whole or in
part, to any of Nassau's affiliates without the consent of the Company.
If the Company declares a stock dividend or distribution on the
outstanding shares of Common Stock, or any subdivides, combines or reclassifies
the outstanding shares of Common Stock into a lesser or greater number of
shares, the Company will proportionally adjust the exercise price of the Warrant
in effect at that time and the number and kind of securities purchasable upon
the exercise of the Warrant. However, the Company is not required to make any
adjustments as a result of either:
(i) the issue, sale, distribution or grant of any shares of Common
Stock, any rights, warrants or options to subscribe for or
purchase shares of Common Stock or any securities convertible
into or exchangeable for shares of Common Stock to officers,
directors or employees of the Company pursuant to a
compensation plan that has been approved by the stockholders
of the Company; or
(ii) the issuance of shares of Common Stock to officers, directors
or employees of the Company upon any exercise of rights,
warrants or options, or any conversion or exchange of
convertible or exchangeable securities, described in clause
(i) above.
Further, the Company will not be required to adjust the exercise price
of the Warrant unless such adjustment would require an increase or decrease of
at least five cents ($.05) in such price; PROVIDED, HOWEVER, that if the Company
is therefore not required to make any adjustment, it must carry the unmade
adjustment forward and take it into account in any subsequent adjustment. If the
Company consolidates into or merges with any other entity, or sells all or
substantially of its assets (other than a consolidation or merger in which the
Company is a continuing corporation and which does not result in any
reclassification or conversion of, or change in, the outstanding shares of
Common Stock) (any such event being called a "Capital Reorganization"), the
Company must arrange for the holder or holders of the Warrant to be able to
receive upon exercise of the Warrant (in lieu of the number of shares of Common
Stock deliverable before the Capital Reorganization) cash in an amount per share
of Common Stock equal to the excess, if any, of (x) the fair market value per
share of Common Stock of the consideration received in the Capital
Reorganization over (y) the exercise price of the Warrant.
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The Company is required to bear the first Ten Thousand Dollars
($10,000.00) of registration expenses and one-half (1/2) of such expenses in
excess of such amount, but in no event more than Twenty-Five Thousand Dollars
($25,000.00) in the aggregate.
The Company has previously issued to Nassau warrants to purchase an
aggregate of 65,000 shares of Common Stock; in turn, Nassau has transferred
warrants to purchase 25,000 of such shares of Common Stock to Mr. James Lavelle,
an affiliate of Nassau. The terms of such warrants are substantially the same as
the terms of the Warrant.
PREFERRED STOCK
The Certificate authorizes 2,000,000 shares of Preferred Stock, without
par value, none of which is outstanding. The Board of Directors has the
authority to issue Preferred Stock in one or more series and to fix the number
of shares of such series, and the designations, relative rights, preferences and
limitations of such series to the full extent now or hereafter permitted by
Delaware law, without any further vote or action by the stockholders. Such
shares may be issued with voting and conversion rights which could adversely
affect the voting power of the holders of Common Stock and may have the effect
of making an acquisition of the Company more difficult or of deterring potential
tender offers. If any shares of Preferred Stock were issued with voting rights
that would have the effect of nullifying, restricting or disparately reducing
the per share voting rights of existing stockholders of the Company then the
Company's Common Stock could be prohibited from being reported on any exchange
or any automated inter-dealer quotation system, such as the Nasdaq National
Market. Such prohibition could adversely affect the liquidity of a stockholder's
investment. The Company has no present intention to issue Preferred Stock.
BUSINESS COMBINATIONS
Under the Certificate, the affirmative vote of at least 66 2/3% of the
outstanding shares of Common Stock, in addition to the affirmative vote which
may be required of any series of Preferred Stock which may then be outstanding,
and the affirmative vote of 51% of shares held or beneficially owned other than
by a Related Person (as that term is defined below) are generally required for
the approval or authorization of any Business Combination (as that term is
defined below) between the Company and any Related Person. These provisions of
the Certificate do not apply to Business Combinations with Related Persons which
have been approved by a majority of the Continuing Directors (as that term is
defined below) of the Company or which satisfy certain provisions of the
Certificate relating to the consideration to be paid to the holders of Common
Stock by the Related Person.
The term "Business Combination" means any of the following:
(1) any merger or consolidation of the Company with or
into a Related Person,
(2) any sale, lease, exchange, transfer or other
disposition, including, without limitation, a
mortgage or any other security device, of all or any
Substantial Part (as that term is defined below) of
the assets of the Company (including, without
limitation, any voting securities of a subsidiary) or
of a subsidiary, to a Related Person,
(3) any merger or consolidation of a Related Person with
or into the Company or a subsidiary of the Company,
(4) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the
assets of a Related Person to the Company or a
subsidiary of the Company,
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(5) the reclassification of the shares of stock of the
Company generally possessing voting rights in
elections of Directors, the purchase by the Company
of such shares, or the issuance by the Company of
shares of any securities convertible thereto or
exchangeable therefor which in any such case has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Company which are directly or indirectly owned by any
Related Person, or
(6) any agreement, contract or other arrangement
providing for any of the transactions described in
this definition of Business Combination.
The term "Continuing Director" means a Director who was a member of the
Board of Directors of the Company immediately prior to the time that the Related
Person involved in a Business Combination became a Related Person.
The term "Related Person" means any individual, corporation,
partnership or other person or entity which, together with its "affiliates" and
"associates" "beneficially" owns (as those terms are defined in the Exchange Act
and the rules promulgated thereunder), in the aggregate, 15% or more of the
outstanding shares of Common Stock of the Company, and any affiliate or
associate of any such individual, corporation, partnership or other person or
entity; provided that shares held by or over which such entity has power to vote
or otherwise control as a trustee, plan administrator, officer of the Company or
in a similar capacity under an employee benefit plan of the Company or an
employee benefit plan of an affiliate of the Company will not be deemed to be
beneficially owned for purposes of this definition.
The term "Substantial Part" means more than 10% of the total
consolidated assets of the Company as at the end of its most recent fiscal year
ending prior to the time the determination is made.
DIRECTOR LIABILITY
The Certificate contains a provision which eliminates under certain
circumstances the personal liability of Directors to the Company or its
stockholders, in their capacity as Directors of the Company, and the Company's
By-laws contain provisions indemnifying Directors and officers to the fullest
extent permitted by law and providing for the advancement of expenses incurred
in connection with an action upon the receipt of an appropriate undertaking to
repay said amount if it is determined that the individual in question is not
entitled to indemnification. The Company has also entered into indemnity
agreements pursuant to which it has agreed, among other things, to indemnify its
Directors for settlements in derivative actions.
THE DELAWARE BUSINESS COMBINATION ACT
Section 203 of the General Corporation Law of the State of Delaware
(the "Delaware Business Combination Act") imposes a three-year moratorium on
business combinations between a Delaware corporation and an "interested
stockholder" (in general, a stockholder owning 15% or more of a corporation's
outstanding voting stock) or an affiliate or associate thereof unless one of the
following occurs:
(a) Prior to the interested stockholder becoming such,
the board of directors of the corporation approved
either the business combination or the transaction
resulting in the interested stockholder becoming
such;
(b) Upon consummation of the transaction resulting in the
interested stockholder becoming such, the interested
stockholder owns 85% of the voting stock outstanding
at the time the transaction commenced (excluding from
the calculation of outstanding shares beneficially
owned by directors who are also officers and certain
employee benefit plans); or
(c) On or after the interested stockholder becomes such,
the business combination is approved by (i) the board
of directors and (ii) the holders of at least 66 2/3%
of the
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<PAGE> 10
outstanding shares (other than those beneficially owned by the interested
stockholder) at a meeting of stockholders.
The Delaware Business Combination Act defines the term "Business
Combination" to encompass a wide variety of transactions with, or caused by, an
interested stockholder in which the interested stockholder receives or could
receive a benefit on other than a pro rata basis with other stockholders. These
transactions include mergers, certain asset sales, certain issuances of
additional shares to the interested stockholder, transactions with the Company
which increase the proportionate interest of the interested stockholder or
transactions in which the interested stockholder receives certain other
benefits.
By a provision in its original certificate of incorporation or an
amendment thereto adopted by a majority of the shares entitled to vote thereon,
a corporation may elect not to be governed by the Delaware Business Combination
Act (provided that any amendment to the certificate of incorporation will not
become effective until 12 months after its adoption). The Company has not made
such an election and therefore is subject to the Delaware Business Combination
Act.
GENERAL
It is possible that the division of the Board of Directors of the
Company into classes provided for in the Certificate and the increased voting
requirements with respect to a Business Combination provided for in the
Certificate, the ability of the Board of Directors to issue Preferred Stock
and/or the provisions of the Delaware Takeover Statute may discourage other
companies from making a tender offer for, or acquisitions of substantial amounts
of, the Company's Common Stock. This could have an incidental effect of
inhibiting changes in management and may also prevent temporary fluctuations in
the market price of the Company's Common Stock which often result from actual or
rumored takeover attempts. In addition, the provisions of the Certificate
eliminating certain liabilities of Directors, the indemnification provisions of
the By-laws and the indemnity agreements may have the effect of reducing the
likelihood of derivative litigation against Directors and to deter stockholders
from bringing a lawsuit against Directors for breach of their duty of care, even
though such an action, if successful, might otherwise have benefited the Company
and the stockholders.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock is Harris Trust &
Savings Bank, Cleveland, Ohio.
VALIDITY OF SHARES
The validity of the Common Stock offered hereby will be passed upon for
the Company by Calfee, Halter & Griswold LLP, Cleveland, Ohio. Scott R. Wilson,
a Director of the Company and Assistant Secretary of the Company, is a partner
in the law firm of Calfee, Halter & Griswold LLP.
EXPERTS
The consolidated financial statements of the Company at December 31,
1997, included in the Company's Annual Report on Form 10-K (File No. 0-17840),
have been audited by Deloitte & Touche LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
--------------------------------------------
The following table sets forth the estimated expenses payable by the
Registrant in connection with the sale and distribution of the Common Stock
registered hereby:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........................ $ 175.00
Accounting fees and expenses............................................... $ 2,500.00
Legal fees and expenses.................................................... $ 7,500.00
Miscellaneous.............................................................. $ 1,825.00
Total...................................................................... $ 12,000.00
===============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
------------------------------------------
Section 145 of the Delaware General Corporation Law (the "DGCL") sets
forth the conditions and limitations governing the indemnification of officers,
directors and other persons. Section 145 provides that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or contemplated action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation or was
serving at the request of the corporation in a similar capacity with another
corporation or other entity, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement incurred in connection therewith
if he acted in good faith and in a manner that he reasonably believed to be in
the best interests of the corporation. With respect to a suit by or in the right
of the corporation, indemnity may be provided to the foregoing persons under
Section 145 on a basis similar to that set forth above, except that no indemnity
may be provided in respect of any claim, issue or matter as to which such person
has been adjudged to be liable to the corporation unless and to the extent that
the Delaware Court of Chancery or the court in which such action, suit or
proceeding was brought determines that despite the adjudication of liability but
in view of all the circumstances of the case such person is entitled to
indemnity for such expenses as the court deems proper. Moreover, Section 145
provides for mandatory indemnification of a director, officer, employee or agent
of the corporation to the extent that such person has been successful in defense
of any such action, suit or proceeding and provides that a corporation may pay
the expenses of an officer or director in defending an action, suit or
proceeding upon receipt of an undertaking to repay such amounts if it is
ultimately determined that such person is not entitled to be indemnified.
Section 145 establishes provisions for determining that a given person is
entitled to indemnification, and also provides that the indemnification provided
by or granted under Section 145 is not exclusive of any rights to indemnity or
advancement of expenses to which such person may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Article V of the Registrant's By-laws provides that the Registrant
shall indemnify, to the fullest extent permitted by Delaware law, any Director
or officer who was or is a party or is threatened to be made a party to any
action, suit or proceeding by reason of the fact that he or she, or a person of
he or she is the legal representative, is or was a Director or officer of the
Registrant, or is or was serving at the request of the Registrant as a Director,
officer, partner, trustee, employee or agent of another entity, against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties or amounts paid in settlement) reasonably
incurred by such person in connection therewith.
II-1
<PAGE> 12
In addition, provisions of Article V of the Registrant's By-laws provide for the
advancement of expenses, including attorneys' fees, incurred by a Director or
officer of the Registrant in defending any proceeding for which indemnification
is provided under Article V upon receipt of an undertaking to repay such amounts
if it is ultimately determined that he or she is not entitled to be indemnified
by the Registrant as authorized in Article V. In addition, Article V permits the
Registrant to maintain insurance, at its expense, to protect itself and any of
its Directors or officers or individuals serving at the request of the
registrant as a director, officer, partner, trustee, employee or agent of
another entity, against any expense, liability or loss, whether or not the
Registrant would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 102(b) of the DGCL permits corporations to eliminate or limit
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of the director's duty of care. Accordingly, Article
VII of the Registrant's Amended Certificate of Incorporation provides that a
Director of the Registrant shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability (i) for any breach of the Director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which
the Director derived an improper personal benefit. Article VII of the
Registrant's Amended Certificate of Incorporation further provides that any
repeal, amendment or other modification of Article VII will not affect the
liability or alleged liability of any Director of the corporation then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought or threatened based in
whole or in part upon any such state of facts.
In addition to the foregoing, the Registrant has entered into indemnity
agreements with its executive officers and Directors. The indemnity agreements
provide that such persons will be indemnified to the fullest extent permitted by
law against all expenses (including attorneys' fees), judgments, fines, amounts
paid or incurred by them for settlement in any action or proceeding on account
of their service as a Director or officer of the Registrant or of any subsidiary
of the Registrant or of any other entity in which they are serving at the
request of the Registrant.
The agreements bind the registrant to provide indemnification to
Directors and officers whether or not the Registrant maintains Directors and
officers liability insurance coverage and regardless of any future changes in
the By-laws. The protection to be afforded Directors and officers by the
agreements is broader than that provided under the indemnification provisions
contained in the By-laws, in that the agreements expressly provide for the
advancement of expenses and for indemnification with respect to amounts paid in
settlements of derivative actions.
ITEM 16. EXHIBITS.
---------
See the Exhibit Index at page E-1 of this Registration Statement.
ITEM 17. UNDERTAKINGS.
-------------
(1) The undersigned Registrant hereby undertakes:
(a) To file, during the period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
II-2
<PAGE> 13
(ii) To reflect in the prospectus any facts or
event 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;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
(2) The undersigned Registrant hereby undertakes that for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted for Directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 14
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 Cleveland and State of Ohio, as of the 5th day of
November, 1998.
NEW HORIZONS WORLDWIDE, INC.
By: /s/ Curtis Lee Smith, Jr.
------------------------------------
Curtis Lee Smith, Jr.
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being a
Director and/or officer of Chart Industries, Inc., a Delaware corporation,
hereby constitutes and appoints Curtis Lee Smith, Jr., Thomas J. Bresnan, Robert
S. McMillan and Scott R. Wilson, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite, necessary or advisable to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 5, 1998.
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ Curtis Lee Smith, Jr. Chairman of the Board of Directors & Chief
- --------------------------------------------------- Executive Officer and a Director (Principal
Curtis Lee Smith, Jr. Executive Officer)
/s/ Robert S. McMillan Vice President, Treasurer and Chief Financial
- --------------------------------------------------- Officer (Principal Financial Officer and
Robert S. McMillan Principal Accounting Officer)
/s/ Stuart O. Smith Director
- ---------------------------------------------------
Stuart O. Smith
/s/ Thomas J. Bresnan Director
- ---------------------------------------------------
Thomas J. Bresnan
</TABLE>
II-4
<PAGE> 15
<TABLE>
<CAPTION>
SIGNATURES TITLE
---------- -----
<S> <C>
/s/ David A. Goldfinger Director
- ---------------------------------------------------
David A. Goldfinger
/s/ William H. Heller Director
- ---------------------------------------------------
William H. Heller
/s/ Richard L. Osborne Director
- ---------------------------------------------------
Richard L. Osborne
/s/ Scott R. Wilson Director
- ---------------------------------------------------
Scott R. Wilson
</TABLE>
II-5
<PAGE> 16
NEW HORIZONS WORLDWIDE, INC.
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF DOCUMENT
NO. -----------------------
---
4.1 Amended Certificate of Incorporation of the Company, incorporated
herein by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Reg. No. 33-28798).
4.2 Amendment to Amended Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.3 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 28,
1996.
4.3 By-Laws of the Company, incorporated herein by reference to Exhibit
3.2 to the Company's Registration Statement on Form S-1 (Reg. No.
33-28798).
4.4 Specimen Certificate of the Company's Common Stock, incorporated
herein by reference to Exhibit 4.1 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997.
4.5 Secured Straight Line of Credit, dated June 1, 1998, between New
Horizons Education Corporation and Marine National Bank, and
guaranteed by the Company, incorporated herein by reference to
Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1998.
4.6 Warrant for the purchase of 35,000 shares of Common Stock, $.01 par
value per share, of the Company, issued to The Nassau Group, Inc.,
dated December 31, 1997, incorporated herein by reference to Exhibit
10.17 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
5.1 Opinion of Calfee, Halter & Griswold LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included on pages II-4 and II-5 of this
Registration Statement).
E-1
<PAGE> 1
EXHIBIT 5.1
CALFEE, HALTER & GRISWOLD LLP
ATTORNEYS AT LAW
-----------------------------------
1400 McDonald Investment Center
800 Superior Avenue Cleveland, Ohio 44114-2688
216/622-8200 Fax 216/241-0816
November 5, 1998
New Horizons Worldwide, Inc.
500 Campus Drive
Morganville, New Jersey 07751
We are acting as counsel for New Horizons Worldwide, Inc., a Delaware
corporation (the "Company"), in connection with the sale from time to time of
an aggregate of 35,000 shares of Common Stock (the "Shares"), which may be
issued upon the exercise of a warrant granted to The Nassau Group, Inc. on
December 31, 1997 (the "Warrant").
We have examined such documents, records and matters of law as we
have deemed necessary for purposes of this opinion, and based thereon we are of
the opinion that the Shares are duly authorized and, when issued in accordance
with the terms of the Warrant, will be validly issued, fully paid and
nonassessable.
This opinion is limited to the General Corporation Law of the State
of Delaware, and we express no view as to the effect of any other law on the
opinions set forth herein.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced, filed publicly or relied upon by any
other person for any purpose without the express written consent of the
undersigned.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-3 by the Company to effect the registration of
the Shares under the Securities Act of 1933, as amended.
Very truly yours,
/s/ CALFEE, HALTER & GRISWOLD LLP
CALFEE, HALTER & GRISWOLD LLP
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
New Horizons Worldwide, Inc. on Form S-3 of our report dated February 27, 1998,
appearing in the Annual Report on Form 10-K of New Horizons Worldwide, Inc. for
the year ended December 31, 1997 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
-------------------------------
DELOITTE & TOUCHE LLP
Costa Mesa, California
November 6, 1998
