As filed with the Securities and Exchange Commission on April 3, 1997
Registration No. 333-8953
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EAGLE PACIFIC INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1642846
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 South Seventh Street
2430 Metropolitan Centre
Minneapolis, Minnesota 55402
(612) 371-9650
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
WILLIAM H. SPELL, Chief Executive Officer
Eagle Pacific Industries, Inc.
333 South Seventh Street
2430 Metropolitan Centre
Minneapolis, Minnesota 55402
(612) 371-9650
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
DOBSON WEST
DANIEL A. YARANO
Fredrikson & Byron, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, Minnesota 55402
(612) 347-7000
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement as determined by
market conditions and other factors.
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 offered 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, please check the following box. [ X ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount Offering Price per Aggregate Registration
Securities to be Registered to be Registered Unit (1) Offering Price (1) Fee (1)
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock to be offered by 871,010 $3.50 $3,048,535 $1,051
Selling Shareholders
- --------------------------------------------------------------------------------------------------------------------------
Common Stock to be offered 200,000 $3.50 $ 700,000 $ 241
by Selling Warrantholders Upon
Exercise of Outstanding Options (2)
- --------------------------------------------------------------------------------------------------------------------------
Total 1,071,010 $3,748,535 $1,293
==========================================================================================================================
</TABLE>
<PAGE>
(1) For purposes of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933, such amount is based upon the average of
the high and low prices of the registrant's Common Stock on July 19, 1996
(a date within five business days prior to the date of filing). The number
of shares of Common Stock to be registered has been reduced by 23,700 and
the registration fee has been adjucated accordingly. The registration fee
was paid on July 26, 1996.
(2) Options are exercisable at $3.125 per share.
The registrant 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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS
EAGLE PACIFIC INDUSTRIES, INC.
1,071,010 Shares of Common Stock
This Prospectus relates to the offer and sale of up to 1,071,010 shares of
Common Stock par value of $.01 per share, (the "Shares"), of Eagle Pacific
Industries, Inc., a Minnesota corporation (the "Company") by certain Selling
Shareholders (the "Selling Shareholders"). Of such Shares, (i) an aggregate of
871,010 Shares may be offered and sold by certain Selling Shareholders of the
Company's Common Stock, and (ii) an aggregate of 200,000 Shares may be offered
and sold by certain Selling Shareholders who may exercise outstanding Options
and resell the Shares pursuant to this Prospectus. See "Principal and Selling
Shareholders." The Company will receive proceeds from any Options that may be
exercised in connection herewith, but will not receive any proceeds from the
sale of any Shares by the Selling Shareholders.
The Selling Shareholders have advised the Company that all or a portion of
the Shares offered by them may be sold from time to time by the Selling
Shareholders or by pledgees, donees, transferees or other successors in
interest. Such sales may be made in the over-the-counter market or otherwise at
prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The Shares may be sold through one
or more of the following: (a) ordinary brokerage or market making transactions
and transactions in which the broker or dealer solicits purchasers; (b) 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; and (c) purchase by a broker or dealer as principal
and resale by such broker or dealer for its account pursuant to this Prospectus.
In effecting sales, brokers or dealers engaged by the Selling Shareholders may
arrange for other brokers or dealers to participate. Brokers or dealers will
receive commissions or discounts from the Selling Shareholders in amounts to be
negotiated immediately prior to the sale. Such brokers or dealers and any other
participating 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 Shares covered by this Prospectus
which qualify for sale pursuant to Rule 144 under this Securities Act may be
sold under Rule 144 rather than pursuant to this Prospectus. The Company has
agreed to maintain this registration until the earlier of the date the Selling
Shareholders sell all of their Shares, Rule 144 is available to such Selling
Shareholders or two years from the date of this Prospectus. See "Plan of
Distribution."
The Company will bear all expenses of the offering (estimated to be
$15,000), except that the Selling Shareholders will pay any applicable
underwriter's commissions and expenses, brokerage fees or transfer taxes, as
well as any fees and disbursements of counsel and experts for the Selling
Shareholders. The Company and the Selling Shareholders have agreed to indemnify
each other against certain liabilities, including liabilities arising under the
Securities Act.
<PAGE>
The Company's Common Stock is traded on the Nasdaq SmallCap Market under
the symbol "EPII." The closing bid price of the Company's Common Stock on March
24, 1997, as reflected on the Nasdaq SmallCap Market was $3.9375 per share.
-----------------------
FOR INFORMATION CONCERNING CERTAIN RISKS RELATING
TO AN INVESTMENT IN THE COMPANY'S COMMON STOCK
SEE "RISK FACTORS."
-----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is March ____, 1997.
2
<PAGE>
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. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any securities other than the
registered securities to which it relates. 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.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C., 20549, and at the Commission's regional offices in New York (7
World Trade Center, Suite 1300, New York, New York 10048) and Chicago (Suite
1400, Northwestern Atrium Center, 500 West Madison, Chicago, Illinois 60661).
Copies of such material can be obtained from the Public Reference Section of the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference in this Prospectus:
1. The Company's annual report on Form 10-K (Commission File No. 0-18050)
for its fiscal year ended December 31, 1996.
2. The description of the Company's Common Stock, $.01 par value, which
is contained or incorporated by reference in the Company's
Registration Statement on Form 8-A (Commission File No. 0-18050) filed
under the Securities Exchange Act of 1934, as amended, including any
amendment or report filed for the purpose of updating such
description.
3
<PAGE>
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Shares shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated by reference
or deemed to be incorporated by reference in this Prospectus shall be deemed to
be modified or superseded for all purposes of this Prospectus to the extent that
a statement contained herein, therein or in any subsequently filed document
which also is incorporated or 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 provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or all of the documents
incorporated herein by reference (not including the exhibits to such documents,
unless such exhibits are specifically incorporated by reference in such
documents). Requests for such copies should be directed to William H. Spell,
Chief Executive Officer, Eagle Pacific Industries, Inc., 333 South Seventh
Street, 2430 Metropolitan Centre, Minneapolis, Minnesota 55402; Telephone (612)
371-9650.
THE COMPANY
Eagle Pacific Industries, Inc., a Minnesota corporation, (the "Company") is
a holding company of Eagle Plastics, Inc. ("Eagle"), Pacific Plastics, Inc.,
("Pacific") and Arrow Plastics, Inc., ("Arrow") (collectively the
"Subsidiaries") leading extruders of polyvinyl chloride (PVC) pipe and
polyethylene (PE) tubing products. The Company ranks among the top six producers
of small to medium diameter plastic pipe and tubing products in the United
States. The Company operates manufacturing facilities in Hastings, Nebraska,
Hillsboro, Oregon and Midvale, Utah. The Company produces an average of 150
miles of pipe each day on 37 extrusion lines, using an estimated 120 million
pounds of resin annually. The Company's diverse customer base includes more than
1,000 purchasers of products for the building and construction, commercial and
residential plumbing, turf irrigation, municipal water and sewage, natural gas
distribution and telecommunications industries. The Company's products are sold
in 30 states throughout the continental United States, Alaska and Hawaii and in
three western Canadian provinces. The Company's principal executive offices are
located at 333 South Seventh Street, 2430 Metropolitan Centre, Minneapolis,
Minnesota 55402 and its telephone number is (612) 371-9650.
RISK FACTORS
Prospective investors should carefully consider the following risk factors.
4
<PAGE>
1. Raw Material Cost Fluctuations. The Company's operating results and
financial condition may be adversely affected by uncontrollable market
fluctuations in the availability and cost of its primary raw material: resin.
While supplies are readily available, the Company has experienced, in the past,
significant cost increases in resin prices. For example, in 1995, the Company's
gross margins were adversely affected by fluctuations in resin prices. The
Company believes that its competitors have also experienced similar price
increases. The Company has historically attempted to pass such price increases
onto its customers but has not always been able to do so due to its large
inventories of resin. The Company has reduced its inventory of resin and
instituted inventory control policies to control its inventory of resin. As a
result, the Company believes it will be able to pass price increases of resin
onto its customers, however, there is no assurance that it will be able to do
so. If resin prices decline substantially and rapidly, the Company's gross
margins may be adversely affected as in 1995. The Company's operations will be
adversely affected if it is not able to pass on resin price increases to its
customers. Furthermore, resin price increases may adversely affect the Company's
sales as customers purchase less of its products due to the increase in prices.
2. Leveraged Purchase. To acquire the operations of its Subsidiaries, it
was necessary for the Company to raise a substantial amount of debt resulting in
the Company and its Subsidiaries being highly leveraged. If Eagle's, Pacific's
and/or Arrow's businesses do not perform as anticipated, or consistent with past
performance and it fully utilizes the funds available under its line-of-credit,
the cash flow generated by the Company's Subsidiaries may not be sufficient to
pay the Company's debt service obligations. In such event, the holder of such
debt could foreclose on the assets of the Company's Subsidiaries and the
Company's shareholders could lose their entire investment.
3. Competition. The business in which the Company is engaged is highly
competitive and some of the Company's competitors have greater resources than
the Company. There can be no assurance that the Company will be able to compete
in the future. In particular, price is a very important competitive factor in
the sale of plastic pipe and there can be no assurance that the Company will
continue to be price competitive.
4. Sufficiency of Working Capital. As of December 31, 1996, the Company had
a zero cash balance and $1.1 million in available working capital. The Company
estimates that as of December 31, 1996, there is an additional $4.3 million that
could be drawn under its bank lines of credit. The amount available under the
bank lines of credit fluctuates daily based on the Company's eligible accounts
receivable and inventory. The Company's lines of credit and term note are
subject to a loan agreement containing standard covenants, representations and
warranties, are secured by all the assets of Eagle and Pacific, except real
property and guaranteed by the Company. A violation of the loan agreement could
result in termination of the loan agreement which would require the Company to
repay the loans in full. Although the Company believes it will be able to meet
the requirements of the loan agreement, there is no assurance that the Company
will not violate the covenants or that the bank will waive any violations. The
Company's ability to fund its working capital requirements in the future will be
dependent on generating sales which equal or exceed the Company's fiscal 1996
sales and in achieving profitable operations in fiscal 1997. In addition, any
unforeseen expense of a material nature could materially and adversely affect
the Company's ability to fund its ongoing operations.
5
<PAGE>
In addition, in the event the Company decides to pursue growth through the
acquisition of other companies, it may be required find additional sources of
financing to finance such acquisitions. Such financing may be sought from a
number of sources, including possible future sales of equity securities or loans
from banks or other financial institutions. No assurance can be given that the
Company will be able to sell future securities or obtain additional financing
from any source. If the Company is able to sell additional shares of its
securities, it may be required to do so at a price that is less than the price
of the Shares offered hereby. Sales of equity securities could therefore result
in substantial additional dilution to investors in the Shares offered hereby.
Finally, additional debt financing could be very difficult to obtain due to the
Company's highly leveraged financial condition as a result of its acquisition of
Eagle, Pacific and Arrow.
5. Dependence on Construction Industry. Many of the Company's products are
used in the construction of residential and business properties. In the event
such construction slows for any reason, including poor economic conditions or
weather, the sale of Company products used in the construction of residential
and business properties could be adversely affected. Early Spring flooding in
the Midwest in 1995 caused a delay in many construction projects and resulted in
the Company sales and income being less than projected. There can be no
assurance that the Company will not encounter similar problems in the future.
6. Failure to Successfully Implement Growth Strategy. The Company has
developed a strategy to expand the Company through internal growth and expansion
of the basic business, by selling its existing products into new market niches
and by the acquisition of other companies in the industry. The Company plans to
make significant capital expenditures in 1997 to improve and increase the
manufacturing capacities of its three manufacturing facilities to meet current
and future demands for its products. Failure of the Company's capital
expenditures to produce the Company's expected production capacity may require
the Company to make additional expenditures. In the event the Company acquires
another company, its operations may be adversely affected should it pay too much
consideration for an acquired company, incur unforeseen liabilities, or the
acquired company fails to perform as the Company anticipated. Current
shareholders may experience substantial dilution of their investment if the
Company issues shares of its Common Stock or Warrants or other rights to
purchase Common Stock pursuant to an acquisition.
7. Company Net Operating Loss. As of December 31, 1996, the Company has a
net operating loss carry-forward of approximately $43,100,000 million (the
"NOL") that it intends to use to offset a substantial portion of future taxable
income of the Company, if any. The rules concerning the availability of the NOL
are complicated and include rules concerning ownership changes in Company Common
Stock. If the rules applicable to the NOL are violated, the availability of the
NOL may be limited or extinguished.
8. Immediate Substantial Dilution. Investors purchasing Shares in this
offering pursuant to exercise of the options will experience an immediate and
substantial dilution of their investment in the Company.
6
<PAGE>
9. Dividends. The Company has never paid a cash dividend on its Common
Stock and intends to retain any earnings to finance the development of its
business.
10. Prior Market for Common Stock. The Company's Common Stock is traded on
the Nasdaq SmallCap Market under the symbol "EPII." While the Common Stock has
been admitted for trading on the Nasdaq SmallCap Market and the Company
currently satisfies the requirements for continued listing, such trading could
be halted in the future for failure to meet Nasdaq maintenance requirements. No
assurances can be given that the Company will be able to continually satisfy the
requirements for continued listing on the Nasdaq SmallCap Market. The high and
low bid prices for shares of the Company's Common Stock for the year ended
December 31, 1996 were $4.00 and $1.25 per share, respectively. On March 20,
1997, the closing price for the Company's Common Stock as quoted on the Nasdaq
SmallCap Market was $3.625 per share.
11. Anti-Takeover Provisions. The Company's Articles of Incorporation
provide that the Board of Directors may issue up to 50,000,000 shares, which
shall consist of 30,000,000 shares of Common Stock and 20,000,000 Undesignated
Shares with such rights and preferences as may be determined from time to time
by the Board of Directors, without further shareholder approval. In September
1993, the Company authorized the establishment and issuance of 2,000,000 Series
A 7% Convertible Preferred Stock from the Undesignated Shares, most of which
were subsequently converted to shares of Common Stock. As a result, the Company
has 18,000,000 Undesignated Shares remaining unissued. Issuance of additional
Preferred or Common Stock could result in dilution of the voting power of Common
Stock, adversely affect its holders in the event of liquidation of the Company,
or delay or prevent a change in control of the Company. In addition, Section
302A.671 of the Minnesota Statutes, among other things, denies voting rights
with respect to certain "control share" acquisitions of the Company's Common
Stock without prior approval of the Company's shareholders and Section 302A.673
of the Minnesota Statutes prohibits business combinations with any shareholder
within five years of that shareholder's control share acquisition, made without
approval of a committee of the Company's Board of Directors. The ability of the
Board of Directors to issue additional Preferred or Common Stock and Minnesota
Statutes could impede or deter a tender offer or takeover proposal regarding the
Company.
USE OF PROCEEDS
Assuming certain Selling Shareholders listed in this Prospectus exercise
their Options to purchase an aggregate of 200,000 shares of Common Stock, the
estimated net proceeds to be received by the Company are approximately $625,000
net of expenses. There is no obligation on the part of Selling Shareholders to
exercise all or any portion of the outstanding Options. Based upon the current
market price of the Company's Common Stock there is no assurance that the
Warrants will be exercised. Thus, there can be no assurance that the Company
will receive the estimated net proceeds or any proceeds from this offering. Any
proceeds received will be used to repay existing debt and for general working
capital purposes.
7
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth, as of the date of this Prospectus, certain
information the Selling Shareholders.
<TABLE>
<CAPTION>
Before the Offering After the Offering
Shares Percentage of Shares Shares Percentage of
Beneficially Outstanding Being Beneficially Outstanding
Name and Address of Owned(1) Shares(1)(2) Offered(3) Owned(1) Shares(1)(2)
Beneficial Owner
SELLING SHAREHOLDERS(3)
<S> <C> <C> <C> <C> <C>
Kenneth G. Bryfogle 5,500 * 5,500 --- *
Keith Oehlschlager 6,000 * 6,000 --- *
Jones University Retirement Fund 12,000 * 12,000 --- *
Edith Von Bibra 25,000 * 25,000 --- *
Conrad Von Bibra 20,000 * 20,000 --- *
Beachlawn Mortgage 25,000 * 25,000 --- *
Amguard Ins. Co. 6,400 * 6,400 --- *
Norguard Ins. Co. 10,400 * 10,400 --- *
James R. Savage 24,000 * 24,000 --- *
Hayes & Associates 4,500 * 4,500 --- *
Thomas E. Rassieur 8,000 * 8,000 --- *
Citizens Auto Corp. 16,000 * 16,000 --- *
Martha R. Morgan 6,000 * 6,000 --- *
Miriam Foundation 2,500 * 2,500 --- *
Barnard J. Gottstein 5,000 * 5,000 --- *
Okabena Partnership K 425,000 7.4% 400,000 25,000 *
Loyal Sorensen 190,650 3.3% 190,650 --- *
Zelda Sorensen 45,849 * 45,849 --- *
Jarred Thompson 185,256 3.2% 185,256 --- *
Sharron Sorensen 40,455 * 40,455 ___ *
David Paul Schnase (4) 10,000 * 10,000 ___ *
Richard Alan Schnase 2,500 * 2,500 ___ *
James Edward Schnase 10,000 * 10,000 ___ *
Joan Elizabeth Johnson 10,000 * 10,000 ___ *
</TABLE>
8
<PAGE>
* Less than one percent
(1) Shares not outstanding but deemed beneficially owned by virtue of the
individual's right to acquire them as of the date of this Prospectus, or
within 60 days of such date, are treated as outstanding when determining
the percent of the class owned by such individual and when determining the
percent owned by the group. For purposes of calculation, the percent of
class owned after this offering, it was assumed that the officers,
directors and principal shareholders will not be purchasing shares in this
offering, unless otherwise indicated, each person named or included in the
group has sole voting and investment power with respect to the shares of
Common Stock set forth opposite his/her name.
(2) Based on 6,443,247 shares of common stock issued and outstanding as of
March 28, 1997. Each percentage calculation assumes the exercise of only
those options and warrants held by the corresponding person or persons
which are exercisable as of March 28, 1997.
(3) Selling Shareholder may sell, at each Selling Shareholder's discretion, all
or a portion of the Common Stock being offered pursuant to this Prospectus.
There is no obligation on the part of the Selling Shareholders to sell any
Shares pursuant to this offering or exercise any outstanding Warrants or
sell the Common Stock received by such exercise.
(4) Mr. David Paul Schnase is a Senior Vice President of Sales and Marketing
for Eagle Plastics, Inc. He is the son of Larry Schnase, a director of the
Company. Richard Alan Schnase, James Edward Schnase and Joan Elizabeth
Johnson are affiliates of David Schnase.
9
<PAGE>
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Company that all or a portion of
the Shares offered by the Selling Shareholders hereby may be sold from time to
time by the Selling Shareholders or by pledges, donees, transferees or other
successors in interest. Such sales may be made in the over-the-counter market or
otherwise at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The Shares may be sold
by one or more of the following means: (a) ordinary brokerage or market making
transactions and transactions in which the broker or dealer solicits purchasers;
(b) block trades in which the broker or dealer so engaged will attempt to sell
the Shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; and (c) purchases by a broker or dealer
as principal and resales by such broker or dealer for its account pursuant to
this Prospectus. In effecting sales, brokers or dealers engaged by the Selling
Shareholders may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from the Selling Shareholders in
amounts to be negotiated immediately prior to the sale. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales. In addition, any securities covered by this Prospectus which qualify for
sale pursuant to Rule 144 under the Act may be sold under Rule 144 rather than
pursuant to this Prospectus.
The Company and the Selling Shareholders have agreed to indemnify each
other against certain liabilities, including liabilities arising under the
Securities Act.
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following expenses will be paid by the Company in connection with the
distribution of the shares registered hereby. The Company is paying all Selling
Shareholders' expenses related to this offering, except the Selling Shareholders
will pay any applicable broker's commissions and expenses, transfer taxes, as
well as fees and disbursements of counsel and experts for the Selling
Shareholders. All of such expenses, except for the SEC Registration Fee, are
estimated.
SEC Registration Fee ..........................................$ 1,321
NASD Fee ..............................................................0
Nasdaq listing fee ....................................................0
Legal Fees and Expenses ...........................................6,000
Accountants' Fees and Expenses ....................................2,500
Printing Expenses .................................................1,000
Blue Sky Fees and Expenses ...................................... 3,500
Miscellaneous .................................................... 679
Total ..................................................$15,000
Item 15. Indemnification of Directors and Officers.
Section 302A.521, subd. 2, of the Minnesota Statutes requires the Company
to indemnify a person made or threatened to be made a party to a proceeding by
reason of the former or present official capacity of the person with respect to
the Company, against judgments, penalties, fines, including, without limitation,
excise taxes assessed against the person with respect to an employee benefit
plan, settlements, and reasonable expenses, including attorneys' fees and
disbursements, incurred by the person in connection with the proceeding with
respect to the same acts or omissions if such person (1) has not been
indemnified by another organization or employee benefit plan for the same
judgments, penalties or fines; (2) acted in good faith; (3) received no improper
personal benefit, and statutory procedure has been followed in the case of any
conflict of interest by a director; (4) in the case of a criminal proceeding,
had no reasonable cause to believe the conduct was unlawful; and (5) in the case
of acts or omissions occurring in the person's performance in the official
capacity of director or, for a person not a director, in the official capacity
of officer, board committee member or employee, reasonably believed that the
conduct was in the best interests of the Company, or, in the case of performance
by a director, officer or employee of the Company involving service as a
director, officer, partner, trustee, employee or agent of another organization
or employee benefit plan, reasonably believed that the conduct was not opposed
to the best interests of the Company. In addition, Section 302A.521, subd. 3,
requires payment by the Company, upon written request, of reasonable expenses in
advance of final disposition of the proceeding in certain instances. A decision
as to required indemnification is made by a disinterested majority of the Board
of Directors present at a meeting at which a disinterested quorum is present, or
by a designated committee of the Board, by special legal counsel, by the
shareholders, or by a court. Article 8 of the Company's Amended Articles of
Incorporation provide that directors shall be personally liable to the Company
or its shareholders for monetary damages for breach of fiduciary duty as a
director to the fullest extent permitted by Minnesota statutes.
II - 1
<PAGE>
Item 16. Exhibits
Exhibit No. Document
5 Opinion and Consent of Fredrikson & Byron, P.A.
23.1 Consent of Deloitte & Touche, LLP.
23.2 Consent of Fredrikson & Byron, P.A. (included in their opinion
filed as Exhibit 5).
24 Power of Attorney from certain directors and officers
(included on the "Signatures" pages hereto).
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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, represents a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate
the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" Table in the effective
registration statement.
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<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purposes 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by final
adjudication of such issue.
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<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 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 Minneapolis, State of Minnesota, on the 24th day of
March, 1997.
EAGLE PACIFIC INDUSTRIES, INC.
By /s/ William H. Spell
William H. Spell, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
* Chairman of the Board March 24, 1997
Harry W. Spell and a Director
* Vice Chairman, Treasurer and March 24, 1997
Bruce A. Richards Secretary and a Director
* Director March 24, 1997
G. Peter Konen
* Director March 24, 1997
George R. Long
* Director March 24, 1997
Richard W. Perkins
* Director March 24, 1997
Larry D. Schnase
/s/ William H. Spell Director March 24, 1997
William H. Spell
/s/ William H. Spell March 24, 1997
*William H. Spell as attorney in fact pursuant to
the Power of Attorney filed with the Securities
and Exchange Commission on July 26, 1996.
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
Form S-3 Registration Statement
Eagle Pacific Industries, Inc.
(Exact name of Registrant as specified in its charter)
INDEX
Sequential Page
Number in Sequential
Exhibit Numbered Form S-3
5* Opinion and consent of Fredrikson & Byron, P.A..........
23.1 Consent of Deloitte & Touche, LLP.......................
23.2* Consent of Fredrikson & Byron, P.A...................... See Exhibit 5
24* Power of attorney from directors (Included in signature
page of this Registration Statement)....................
* Filed Previously
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 33-79098 of Eagle Pacific Industries, Inc. on Form
S-3 of our report dated February 14, 1997, appearing in the Annual Report on
Form 10-K of Eagle Pacific Industries, Inc., for the year ended December 31,
1996.
/s/ Deloitte & Touche, LLP
Deloitte & Touche, LLP
Minneapolis, Minnesota
March 27, 1997
