As filed with the Securities and Exchange Commission on May 28, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GARDENBURGER, INC.
(Exact name of registrant as specified in its charter)
OREGON
(State or other jurisdiction of incorporation or organization)
93-0886359
(I.R.S. Employer Identification No.)
1411 S.W. Morrison St., Suite 400
Portland, Oregon 97205
(503) 205-1500
(Address, including zip code, and telephone
number including area code, of registrant's principal
executive offices)
Richard C. Dietz
Executive Vice President, Chief Financial Officer, Treasurer and Secretary
1411 S.W. Morrison St., Suite 400
Portland, Oregon 97205
(503) 205-1500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all correspondence to:
Mary Ann Frantz, Esq.
David G. Post, Esq.
Miller, Nash, Wiener, Hager & Carlsen LLP
111 S.W. Fifth Avenue
Portland, Oregon 97204
(503) 224-5858
Approximate date of commencement of proposed sale to public: From time
to time after this Registration Statement becomes effective.
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<PAGE>
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
____________________________.
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
[ ] ----------------------------.
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
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<TABLE>
CALCULATION OF REGISTRATION FEE
- ------------------------------- ------------------ ---------------------- ------------------------- ------------------
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered (1) offering price per aggregate offering price registration fee
unit (1)
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<S> <C> <C> <C> <C>
Common Stock, 4,062,500 shares $7.797 $31,675,313 $9,344
no par value
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</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose
of computing the registration fee, based on the maximum number of shares
issuable upon the conversion of the registrant's Series A Convertible Preferred
Stock and Series B Convertible Preferred Stock outstanding, at the lowest
conversion price which may become applicable, subject to adjustment pursuant to
antidilution provisions, and the average of the high and low sale prices of the
common stock on May 25, 1999, $7.797 per share, as reported on the Nasdaq
National Market.
-----------------------------
The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
PROSPECTUS
GARDENBURGER, INC.
4,062,500 SHARES OF COMMON STOCK
This prospectus is part of a registration statement covering
up to 4,062,500 shares of our common stock. The shares being registered for
resale are or may become issuable upon conversion of outstanding shares of
Series A Convertible Preferred Stock and Series B Convertible Preferred Stock
originally issued in a private placement in April 1999. The registered common
stock may be offered and sold from time to time, following issuance, by the
shareholders identified on page 9 of this prospectus. For additional information
relating to sales of shares of common stock, you should refer to the section
entitled "Plan of Distribution" on page 11.
We will not receive any portion of the proceeds from the sale
of these shares. All costs relating to the registration of these shares will be
borne by us.
Gardenburger, Inc.'s common stock is quoted on the National
Market tier of The Nasdaq Stock Market under the symbol "GBUR". The last
reported sale price of shares of common stock on May 26, 1999, was $8.063 per
share.
Gardenburger, Inc. was incorporated in Oregon in 1985. Our
principal executive office is located at 1411 S.W. Morrison Street, Suite 400,
Portland, Oregon 97205, and its telephone number is (503) 205-1500.
THE SHARES OFFERED BY THIS PROSPECTUS INVOLVE A HIGH DEGREE OF
RISK. YOU SHOULD CAREFULLY CONSIDER THE "RISK FACTORS" DESCRIBED BEGINNING ON
PAGE 3.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
================================================================================
The date of this Prospectus is May __, 1999.
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<PAGE>
You should rely only on the information contained or
incorporated by reference in this prospectus and any accompanying supplements.
No one has been authorized to provide you with any other information in respect
of this offering of shares. You should not assume that the information in this
prospectus or any supplement is current as of any date other than the date set
forth on the document.
TABLE OF CONTENTS
CAUTIONARY STATEMENT..........................................................2
RISK FACTORS..................................................................3
THE COMPANY...................................................................8
RECENT DEVELOPMENTS...........................................................8
SELLING SHAREHOLDERS..........................................................9
PLAN OF DISTRIBUTION.........................................................11
LEGAL MATTERS................................................................12
EXPERTS......................................................................12
WHERE YOU CAN FIND MORE INFORMATION..........................................12
CAUTIONARY STATEMENT
This prospectus and information incorporated by reference into
this prospectus contain forward-looking statements. Forward-looking statements
are statements about the future that contain prospective information. Such
prospective information is subject to change and may be affected by risks and
uncertainties that may cause actual results to differ from future results
implied by the forward-looking statements. In addition, risks and uncertainties
may cause historical results to be a less accurate indicator of future results.
Important risks that could cause actual results to differ from those implied by
the forward-looking statements are described under "Risk Factors" in this
prospectus and in various sections in our other reports filed with the SEC.
Investors are cautioned not to place undue reliance on the forward-looking
statements.
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<PAGE>
RISK FACTORS
RISKS RELATED TO OUR BUSINESS
WE MAY NOT SUSTAIN OUR CURRENT SALES INCREASES WHICH COULD
LEAD TO LOWER SALES GROWTH THAN EXPECTED.
We invested heavily in a national television and print
advertising campaign beginning in April 1998 in an effort to increase consumer
awareness of our products. As a result of this campaign, we experienced a
substantial increase in sales for 1998. We recently began a similar advertising
campaign for 1999. Despite our continued advertising efforts, demand for our
products may not continue to increase at a rate similar to that experienced in
1998. In addition, our advertising campaign may not generate as many new sales
as the 1998 campaign and could even fail to generate any additional sales. It is
also possible that, without renewed television advertising in the future, we may
not be able to sustain any sales gains we do achieve. If our new advertising
campaign does not lead to new sales consistent with past trends, our sales
growth will be less than expected.
OUR SALES MAY BE DEPENDENT ON CONTINUED ADVERTISING AND
PROMOTIONS WHICH COULD LEAD TO HIGHER THAN EXPECTED COSTS OF SALES.
If sales become dependent on advertising expenditures, our
long-term cost of sales may be higher than anticipated. In addition to our
advertising expenditures, we have also conducted various trade promotions that
have positively influenced sales results. There is a risk that consumers may not
try or continue to purchase our products without incentives provided by coupons
or awareness generated by our sales and marketing efforts. If this proves to be
true, it would negatively affect the margins we achieve on our products due to
higher than expected costs of sales and could lead to continued operating
losses. Also, if our sales fall short of expectations, grocery stores may reduce
shelf space allocated to our products. Reductions in available shelf space would
make it increasingly difficult to maintain our sales levels.
WE SUBSTANTIALLY RELY ON A SINGLE PRODUCT LINE AND ARE
THEREFORE MORE VULNERABLE TO COMPETITION, CHANGES IN CONSUMER PREFERENCES, AND
OTHER MARKET RISKS AFFECTING DEMAND FOR OUR VEGGIE BURGERS THAN IF WE HAD
MULTIPLE PRODUCTS.
Our sales are attributable almost entirely to the
Gardenburger(R) veggie burger product line. The original Gardenburger veggie
patty still accounts for the majority of our sales, although our gourmet
flavored varieties are gaining increased market acceptance. If demand for our
veggie burgers should decline or not increase at the currently anticipated rate,
our business would be adversely affected to a greater degree than if we had
multiple product lines. We are also more vulnerable to competition than
companies that have a more diversified product mix.
We believe that demand for our veggie burgers is due in part
to the public's increased awareness of the health risks in a high fat diet,
including the consumption of large amounts of red meat. Safety concerns
associated with red and white meat have also, to a lesser extent, caused
consumers to search for meat replacement products. Our business will be
adversely affected if current trends towards health awareness do not continue or
if consumers do
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<PAGE>
not continue to perceive benefit from health oriented products. Also, the market
for meat replacement products is extremely competitive and consumers may find
other meatless products more appealing, or they may turn instead to meat
products that are lower in fat such as turkey and chicken. Changes in consumer
preferences of this nature could lead to substantially lower sales of our
products.
WE HAVE A HISTORY OF OPERATING LOSSES AND SUBSTANTIAL WORKING
CAPITAL NEEDS AND MAY NEED TO RAISE ADDITIONAL CAPITAL TO CONTINUE OUR STRATEGIC
PLAN.
We incurred significant operating losses in our last two
fiscal years. These losses are largely due to the expenses of our strategic plan
to penetrate the retail grocery channel and increase consumer awareness of our
veggie burger products through extensive advertising. As a result, we have
experienced significant negative cash flow from operations which may continue
into the future. If we are unable to generate sufficient revenues to return to
profitability, we may not be able to adhere to our strategic plan without
raising additional capital.
WE HAVE SIGNIFICANT OUTSTANDING INDEBTEDNESS WHICH MAY
DECREASE OUR OPERATING FLEXIBILITY AND MAKE IT MORE DIFFICULT FOR US TO RAISE
ADDITIONAL CAPITAL.
Because our strategic plan involves significant investment in
advertising, we have had to raise substantial amounts of capital in order to pay
for our advertising and marketing efforts. We have large amounts of outstanding
indebtedness under our bank revolving credit line and $15 million principal
amount of convertible notes outstanding. In addition, we recently completed a
$32.5 million financing involving the sale of preferred stock to the selling
shareholders described in this prospectus. Our existing agreements with our
lenders and our preferred shareholders contain significant restrictions on our
activities and may make it difficult for us to raise additional capital. For
instance, we cannot sell equity securities except under limited circumstances or
incur additional indebtedness or capital lease obligations without the approval
of a majority of our preferred shareholders. If we have to raise additional
capital, new financing may not be available or may be available only on very
restrictive terms.
WE FACE DIFFICULTIES ASSOCIATED WITH MANAGING OUR GROWTH.
We have rapidly expanded our business in the past few years.
This rapid growth places significant demands on our management, administration,
and operations. Our future performance and profitability will depend in large
part on our ability to manage our growth and attract and retain additional
qualified management experienced in our business and with other rapidly growing
enterprises. Further investment will be needed to enhance our management
information systems and adapt those systems, as necessary, to respond to our
expanding business.
ALL OF OUR MANUFACTURING CAPACITY IS CONCENTRATED IN ONE
FACILITY.
Our only production facility is located in Clearfield, Utah. A
substantial disruption in the facility's production capacity as a result of
fire, power outage, severe weather, regulatory actions or work stoppages would
significantly impair our ability to manufacture our products at planned levels.
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<PAGE>
WE FACE SIGNIFICANT COMPETITION WITHIN THE MARKET FOR VEGGIE
BURGERS AND OTHER MEAT ALTERNATIVE PRODUCTS THAT MAY CREATE DOWNWARD PRESSURE ON
PRICES AND DEMAND FOR OUR PRODUCTS.
The market for veggie burgers and other meat alternative
products is highly competitive. Large and small food companies have introduced
meat-replacement products in the market and others may introduce products of
their own. Consumers may find these products tastier, healthier, less expensive
or otherwise more appealing than the Gardenburger veggie burger. Major food
companies not currently in the market could enter the market at any time. We
also believe that our products compete with low fat meat products and frozen,
mass produced low calorie/low fat entrees. These products are generally produced
by large companies that have substantially greater financial resources and
marketing experience than we do. Competitive pressures may adversely affect our
ability to maintain premium pricing, and could lead to reduced sales and limit
our ability to achieve positive operating results.
OUR BUSINESS INVOLVES RISKS RELATED TO CONSUMER COMPLAINTS AND
PRODUCT LIABILITY THAT COULD LEAD TO NEGATIVE PUBLICITY AND ADVERSELY AFFECT OUR
SALES LEVELS.
Our business involves the preparation and processing of food
products. Any negative publicity generated by complaints relating to our
products could adversely affect our sales levels. A legal claim relating to
product liability could lead to losses exceeding our $2 million of product
liability insurance coverage and $20 million of general umbrella coverage, and
could also impede our business due to negative publicity.
WE ARE DEPENDENT ON THE RETENTION OF OUR KEY PERSONNEL.
Our success depends upon the continued service of our chief
executive officer and other members of our senior management team recruited by
our chief executive officer. The loss of the services of our chief executive
officer or of other senior management could adversely affect our business.
Furthermore, we are dependent on our ability to identify, recruit and retain
additional personnel. Competition for qualified employees is intense and
growing, and we may not be successful in these efforts. We do not carry key
person insurance on any of our employees.
WE ARE DEPENDENT ON FOOD BROKERS AND DISTRIBUTORS FOR
DISTRIBUTION OF OUR PRODUCTS AND THE LOSS OF KEY DISTRIBUTORS COULD DECREASE THE
VOLUME OF OUR PRODUCT DISTRIBUTION AND NEGATIVELY AFFECT OUR SALES LEVELS.
We depend on intermediaries to make sales, including
independent food brokers and distributors. We could lose sales if one or more of
our key food brokers or distributors were to discontinue handling our products,
go out of business or decide to emphasize distributing products of competitors.
CHANGES IN GOVERNMENT REGULATION OR ACTIONS BY GOVERNMENT
OFFICIALS COULD ADVERSELY AFFECT OUR BUSINESS.
The manufacturing, packaging, storage, distribution and
labeling of food products are subject to extensive federal and state laws and
regulations. There is a possibility that new
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<PAGE>
laws could be passed or regulations adopted or that more stringent
interpretations of current laws or regulations could arise, each of which could
increase our cost of doing business or negatively affect our sales levels.
Regulators also have broad powers to protect public health, including the power
to inspect our facilities, order shutdowns, seize product, or order recalls.
Regulators may impose substantial fines and seek criminal sanctions in certain
cases. Any negative publicity resulting from any of the foregoing actions would
likely cause decreased demand for our products.
OUR BUSINESS HAS HISTORICALLY INVOLVED SEASONAL FLUCTUATIONS
IN OPERATING RESULTS.
We experience significant quarterly fluctuations in sales due
to seasonal changes in product demand. Sales have historically been higher in
the second and third quarters and lower in the first and fourth quarters. We
expect these seasonal trends to continue for the foreseeable future. A
significant portion of our operating expenses are fixed or concentrated in
certain quarters and the planning of our expenditures is based on forecasts for
revenues. If sales fall below expectations, the adverse effect on operating
results will be magnified if we are unable to adjust expenses quickly enough to
compensate for the shortfall.
WE MAY FAIL TO BE YEAR 2000 COMPLIANT.
Although we believe that we have identified and developed
plans to address internal Year 2000 issues, we expect some internal problems to
arise. As with most businesses, we are also at risk from systemic Year 2000
failures or failures of our customers, suppliers or transporters. Any Year 2000
failure could have a material negative effect on our business and results of
operations.
PROTECTION OF OUR INTELLECTUAL PROPERTY IS LIMITED AND MAY BE
COSTLY.
The Gardenburger(R) trademark and our other trademarks are
important to our financial success and business plan. Any failure on our part to
enforce our trademark rights or inability to monitor use of our trademarks could
damage our efforts to establish brand recognition, or make it difficult for us
to obtain the financial rewards from our branding of the market. We seek to
aggressively protect our rights in our brand name and existing trademarks and to
obtain registration of our trademarks in the United States and other countries.
Nonetheless, third parties may infringe or misappropriate our trademarks, and we
could be required to incur substantial costs to protect our trademarks or lose
our rights. We do not hold any patents covering recipes or production methods
and, therefore, can only protect them as trade secrets. Some or all of these
trade secrets could be obtained by others or could enter the public domain,
which could place us at a competitive disadvantage.
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<PAGE>
OUR STOCK PRICE MAY BE ADVERSELY AFFECTED BY MARKET
VOLATILITY.
The market price of our common stock has been and will likely
continue to be subject to significant fluctuations due to events affecting our
business or the trading markets generally. This volatility in our stock price
may make it difficult for you to plan for sales of our stock or to sell our
stock at your desired time and price.
WE DO NOT PLAN TO PAY DIVIDENDS AND DIVIDEND PAYMENTS ARE
RESTRICTED.
We do not intend to pay cash dividends in the foreseeable
future. Under the terms of the note purchase agreement relating to our
convertible notes issued in 1998, we cannot pay cash dividends without the
consent of the holders of the notes as long as at least $5,000,000 in principal
amount of the notes remain outstanding. There are additional restrictions on the
payment of dividends on our common stock in our articles of incorporation that
will continue so long as any preferred shares issued in April 1999 remain
outstanding.
RISKS RELATED TO THIS OFFERING OF SHARES
SALES OF PRIVATELY HELD SHARES COULD NEGATIVELY AFFECT OUR
STOCK PRICE.
This prospectus relates to the offering for sale of up to
4,062,500 shares of common stock. We also have a registration statement covering
1,327,624 shares of common stock that may be issued upon conversion of, or in
payment of interest on, our convertible notes. Options to purchase 3,224,991
shares of common stock are also outstanding. The convertible notes and the
preferred stock held by the selling shareholders may be converted into common
stock at any time at the discretion of the holders, and then sold. The current
conversion prices for the notes and preferred stock are $12.12 and $10.00,
respectively. Sales, including block sales, of a significant number of these
shares of common stock, or the potential for such sales, could adversely affect
the prevailing market price for our common stock. This effect may be
particularly significant because these shares represent a large percentage of
our total outstanding stock.
ANTI-TAKEOVER CONSIDERATIONS COULD MAKE AN ACQUISITION BY A
THIRD PARTY DIFFICULT, REDUCING YOUR CHANCES OF OBTAINING A PREMIUM FROM THE
SALE OF YOUR SHARES IN A CHANGE IN CONTROL.
Oregon corporate law contains provisions that could make it
more difficult for a third party to acquire, or discourage a third party from
attempting to acquire, control of the company without the approval of our board
of directors. Our articles of incorporation contain provisions designed to
prevent sudden changes in the composition of the board of directors, and we have
adopted a Rights Agreement which could have the effect of discouraging the sale
of the company or bids for the common stock. In addition, certain provisions in
the convertible notes and in the outstanding preferred shares could have a
similar effect. All of these considerations may make it more difficult for you
to obtain a premium for the sale of your shares in connection with a change in
control of the company.
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<PAGE>
LARGE SHAREHOLDERS MAY CONTROL OUR OPERATIONS AND MAY HAVE
INTERESTS CONTRARY TO YOURS.
Certain large shareholders beneficially own large amounts of
our common stock, including (i) Paul F. Wenner, Chief Creative Officer and a
director, who has beneficial ownership of 1,959,574 shares of common stock, (ii)
Dresdner Kleinwort Benson Private Equity Partners, L.P. ("Dresdner"), which is
the beneficial owner of 1,340,576 shares of common stock through its ownership
of our convertible notes, and (iii) selling shareholders such as Rosewood
Capital III, L.P., various entities affiliated with Farallon Capital Management,
L.L.C. and Farallon Partners, L.L.C., and Gruber & McBaine International, which
beneficially own 1,000,000, 1,000,000, and 613,850 shares, respectively. As of
May 1, 1999, we had 8,839,251 shares of common stock outstanding. As a result of
this significant beneficial ownership by Mr. Wenner, Dresdner, and the selling
shareholders, as well as the right of Dresdner to designate a nominee to the
board of directors and the preferred shareholders to elect two directors as a
separate voting group, each of Mr. Wenner, Dresdner, and the selling
shareholders may exercise substantial influence over our affairs, including the
election of directors and any significant corporate transactions. Their
interests may be contrary to yours.
THE COMPANY
Gardenburger, Inc. is the leading producer and marketer of
veggie burgers. We have substantial market share in multiple food distribution
channels, including retail groceries, food service outlets, club stores and
natural food outlets. Our product line includes the grain-based original
Gardenburger(R) veggie burger, a series of recently introduced gourmet flavored
variations on the original veggie burger, and other soy-based veggie burger
products. The original Gardenburger patty is the number one national brand of
veggie burger in all four distribution channels. Our gourmet flavored and
soy-based veggie burgers continue to achieve increased market acceptance.
In 1998, we conducted an aggressive national television
advertising campaign with the goal of branding the meat alternative category
with the Gardenburger name and converting the veggie burger from a niche health
food product into a mainstream consumer product. Sales of our products increased
substantially in 1998 following our initial national campaign. Advertising
efforts have continued in 1999 with a national advertising campaign that
commenced in April. Our products are distributed to more than 26,000 grocery
stores, 35,000 food service outlets, including several national restaurant
chains and smaller local outlets, 600 club stores, and 4,000 natural food
stores.
RECENT DEVELOPMENTS
On April 14, 1999, we sold 2,762,500 shares of Series A
Convertible Preferred Stock and 487,500 shares of Series B Convertible Preferred
Stock to several institutional and accredited investors listed later in this
prospectus under the heading "Selling Shareholders." The sales price was $10.00
per share. We received gross proceeds of $32,500,000 from the sale of the
preferred shares, and incurred expenses of approximately $2,300,000. BT Alex.
Brown
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Incorporated received a fee of $1,920,000 for its services to us as placement
agent for the sale. No other preferred stock has been issued.
Both series of preferred stock are convertible into shares of
our common stock at an initial conversion price of $10.00 per share. The shares
may be converted at any time at the discretion of each holder. The conversion
price is subject to anti-dilution adjustments in the event of changes in our
common stock due to stock splits, stock dividends, issuances of our common stock
for consideration less than the initial conversion price or other similar
events. In addition, the conversion price for the Series B shares will be
adjusted immediately to $3.75 per share if we fail to meet specified financial
performance targets for fiscal years 1999 and 2000.
The preferred shares are entitled to a 12 percent cumulative
annual dividend which is payable only upon redemption of the preferred shares or
in the event of liquidation or deemed liquidation of the company. We are
prohibited from paying cash dividends to our common shareholders unless the
accumulated dividends on the preferred shares have been paid in full.
As long as a majority of the Series A Convertible Preferred
Stock remain outstanding, the holders of the Series A Convertible Preferred
Stock are entitled to elect two directors to our board. In accordance with this
provision, Kyle A. Anderson and Jason M. Fish were elected directors effective
April 14, 1999. Otherwise, each preferred share is entitled to one vote on all
matters presented to our shareholders, including the election of other
directors. The holders of the preferred shares will vote together with our
common shareholders as a single class except as otherwise required by law or
with respect to significant corporate transactions as to which our articles of
incorporation give the preferred shares specified voting rights.
The Company relied upon the exemption from registration
provided by Rule 506 under the Securities Act of 1933 with respect to the offer
and sale of the preferred shares. We agreed to register the shares of common
stock issuable upon conversion of the outstanding preferred shares in connection
with the sale and are filing this registration statement to satisfy this
obligation.
SELLING SHAREHOLDERS
The common stock registered for sale pursuant to this
prospectus is issuable upon conversion of outstanding shares of Series A
Convertible Preferred Stock and Series B Convertible Preferred Stock, including
those shares issuable upon any failure to meet financial performance targets
provided under the terms of the Series B Convertible Preferred Stock. In
addition, in accordance with Rule 416 under the Securities Act, this
registration statement also covers an undetermined number of additional shares
as may become issuable as a result of adjustments in the respective conversion
prices of the preferred shares to prevent dilution. Both classes of preferred
stock were sold to the investors listed below as selling shareholders in a
private placement. Gardenburger, Inc. will not receive any proceeds from the
sale of shares of common stock by the selling shareholders.
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The selling shareholders have had no material relationship
with the company within the past three years, except that (i) BT Alex. Brown
Incorporated, an affiliate of selling shareholders BT Capital Investors, L.P.
and BT Investment Partners, Inc., acted as placement agent for the company in
connection with the private placement and received a fee of $1,920,000 for its
services and repayment of expenses of approximately $160,000, and (ii) Jason M.
Fish, who is a managing member of Farallon Capital Management, L.L.C., and
Farallon Partners, L.L.C., and Kyle A. Anderson, who is a founding member of
Rosewood Capital Associates, L.L.C., have each been elected on April 14, 1999,
as a director of Gardenburger, Inc. by the preferred shareholders in accordance
with the terms of the stock purchase agreement for the preferred shares.
The following table sets forth information as of May 1, 1999,
relating to the beneficial ownership of the company's common stock, without
taking into account any adjustments in the conversion price of preferred shares,
by each selling shareholder. The numbers and percentages of shares beneficially
owned set forth in the footnotes below are based on 8,839,251 shares outstanding
at May 1, 1999 and have been determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934. Under this rule, beneficial ownership includes
any shares as to which a person has sole or shared voting or dispositive power
or may, within 60 days of May 1, 1999, acquire such power.
<TABLE>
- ------------------------------------------- ------------------------------- ------------------------ ---------------------------
COMMON STOCK COMMON STOCK OWNED
OWNED PRIOR TO COMMON STOCK BEING FOLLOWING OFFERING
SELLING SHAREHOLDERS OFFERING (1) OFFERED(1)
<S> <C> <C> <C>
Rosewood Capital III, L.P. 1,000,000 1,000,000 --
Farallon Capital Partners, L.P.(2) 280,000 280,000 --
Farallon Capital Institutional Partners, 302,800 300,000 2,800
L.P.(2)
Farallon Capital Institutional 50,900 50,000 900
Partners II, L.P.(2)
Farallon Capital Offshore Investors, 250,000 250,000 --
Inc.(2)
The Common Fund (2) 10,000 10,000 --
Farallon Capital (CP) Investors, L.P.(2) 30,000 30,000
Farallon Capital Institutional Partners 60,000 60,000 --
III, L.P.(2)
Tinicum Partners, L.P.(2) 20,000 20,000 --
BT Capital Investors, L.P. 500,000 500,000 --
BT Investment Partners, Inc. 150,000 150,000 --
U.S. Development Capital Investment 150,000 150,000 --
Company
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Arvin H. Kash 25,000 25,000 --
William D. Smithberg 25,000 25,000 --
Gruber & McBaine International (3) 613,850 75,000 538,850
Lagunitas Partners, L.P. (4) 475,250 225,000 250,250
Pitt & Co. (5) 70,000 70,000 --
Hare & Co. (5) 30,000 30,000 --
Total 4,042,800 3,250,000 792,800
</TABLE>
(1) Numbers exclude a total of 812,700 additional shares of common stock
issuable upon conversion of shares of Series B Convertible Preferred Stock
("Series B Preferred") on a pro rata basis in the event the company fails to
meet certain financial performance targets described in the determination of
terms for the Series B Preferred.
(2) These entities acquired in the aggregate 1,000,000 preferred shares. Each
entity acquired directly and in its own name the preferred shares which convert
into the common stock listed above. Farallon Capital Management, L.L.C. is the
investment adviser to Farallon Capital Offshore Investors, Inc., and The Common
Fund. The general partner of each remaining entity is Farallon Partners, L.L.C.
All of such entities disclaim group attribution. In addition to the 1,000,000
common shares listed above, Farallon Capital Institutional Partners, L.P. owns
2,800 common shares and Farallon Capital Institutional Partners II, L.P. owns
900 common shares. These additional 3,700 common shares were previously acquired
and are not a part of this offering.
(3) Gruber & McBaine Capital Management, LLC ("GMCM"), filed a Schedule 13D
dated February 25, 1999, reporting shared voting and dispositive power as to
538,850 shares held by GMCM, its principals John D.Gruber ("Gruber"), J.
Paterson McBaine ("McBaine") and Thomas Lloyd-Butler and certain of its
investment affiliates. The Schedule 13D indicates that Gruber has sole voting
and dispositive power as to an additional 69,150 shares and that McBaine has
sole voting and dispositive power as to an additional 41,200 shares. As a
result, GMCM would be deemed to beneficially own 6.1 percent of the outstanding
common stock following the completion of this offering.
(4) Lagunitas Partners, L.P., an investment limited partnership in which GMCM is
the general partner, has shared voting and dispositive power as to 250,250
additional common shares, and would be deemed to beneficially own 2.8 percent of
the outstanding common stock after completion of this offering.
(5) GMCM acts as an investment advisor to the clients beneficially owning the
shares held by these nominees.
Information relating to the selling shareholders may change
from time to time in which case new information will be set forth in supplements
to this prospectus. In addition, the per share conversion price of preferred
shares is subject to adjustment under certain circumstances. Accordingly, the
number of shares of common stock into which the preferred shares are convertible
may increase or decrease.
PLAN OF DISTRIBUTION
The selling shareholders may sell their shares of common stock
in one or more transactions (which may involve one or more block transactions)
on The Nasdaq Stock Market and upon terms then prevailing or at prices related
to the then current market price, or in separately negotiated transactions. The
shares offered hereby may be sold by one or more of the
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<PAGE>
following methods, without limitation: (a) a block trade in which a 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; (c) ordinary brokerage transactions
and transactions in which the broker solicits purchasers; (d) privately
negotiated transactions; (e) short sales; and (f) face-to-face transactions
between sellers and purchasers without a broker-dealer. The selling shareholders
may also sell registered shares in accordance with Rule 144 under the Securities
Act.
The company has agreed to keep the registration of the shares
effective until the date upon which all of the shares have been sold.
In effecting sales, brokers or dealers engaged by the selling
shareholders may arrange for other brokers or dealers to participate. Such
brokers or dealers may receive commissions or discounts from the selling
shareholders in amounts to be negotiated. All other expenses incurred in
connection with this offering will be borne by the company, including fees of
the selling shareholders' counsel. Such brokers and dealers and any other
participating brokers or dealers may, in connection with such sales, be deemed
to be underwriters within the meaning of the Securities Act. Any discounts or
commissions received by any such brokers or dealers may be deemed to be
underwriting discounts and commissions under the Securities Act.
Gardenburger, Inc. has agreed to indemnify certain persons,
including the selling shareholders, their directors, officers, employees,
agents, general and limited partners, and controlling persons, against certain
liabilities in connection with this prospectus or the registration statement to
which it relates, including liabilities arising under the Securities Act.
LEGAL MATTERS
The validity of the issuance of the common stock offered
hereby has been passed upon for the company by Miller, Nash, Wiener, Hager &
Carlsen LLP, Portland, Oregon.
EXPERTS
The financial statements and schedules incorporated by
reference in this prospectus and elsewhere in the registration statement, to the
extent and for the periods indicated in their reports, have been audited by
Arthur Andersen LLP, independent public accountants, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement which we
have filed with the Securities and Exchange Commission. This prospectus does not
contain all of the information that can be found in the registration statement.
Please see the registration statement for additional information about us.
We file annual, quarterly and current reports, proxy
statements, and other information with the SEC. You may read and copy any
reports, registration statements, and
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<PAGE>
other information we file with the SEC at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the public reference room by calling the SEC at 1-800-732-0330. Our
SEC filings are also available to the public on the SEC internet site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this
prospectus certain information contained in our publicly-filed documents. This
means that important information is disclosed to you by referring you to those
documents. The information that is incorporated by reference is considered to be
a part of this prospectus, and information that we file later with the SEC will
automatically update and supersede previously filed information in this
prospectus and in other documents.
We incorporate by reference the documents listed below:
(1) Our Annual Report on Form 10-K for the year ended December 31,
1998;
(2) Our Quarterly Report on Form 10-Q for the quarter ended March
31, 1999;
(3) Our Current Reports on Form 8-K filed with the SEC on January
28, 1999 and April 1, 1999; and
(4) Our registration statement on Form 8-A dated June 23, 1992, as
supplemented by the description of our common stock which is
contained in Exhibit 99 to our Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999.
In addition, all documents filed by us pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date
of this prospectus will also be incorporated by reference.
You may request free copies of all of these filings (excluding
exhibits) by writing or telephoning us. You should direct requests to Amanda
Cole, Investor Relations, Gardenburger, Inc., 1411 S.W. Morrison Street, Suite
400, Portland, Oregon 97205; telephone--(503) 205-1500.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution
of the securities being registered hereby will be borne by the Company and are
estimated to be as follows:
Registration Fee......................................................$ 9,344
Legal Fees............................................................ 200,000*
Accounting Fees....................................................... 25,000*
Printing.............................................................. 5,000*
Miscellaneous......................................................... 10,656*
-------
Total........................................................ $250,000*
========
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* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
ORS 60.367, a section of the Oregon Business Corporation Act
(the "Act"), provides that any director held liable for an unlawful distribution
in violation of ORS 60.367 is entitled to contribution from (i) every other
director who voted for or assented to the distribution without complying with
the applicable statutory standards of conduct and (ii) each shareholder for the
amount the shareholder accepted knowing the distribution was made in violation
of the Act or the corporation's articles of incorporation.
Under Sections 60.387 to 60.414 of the Act, a person who is
made a party to a proceeding because such person is or was an officer or
director of a corporation (an "Indemnitee") shall be indemnified by the
corporation (unless the corporation's articles of incorporation provide
otherwise) against reasonable expenses incurred by the Indemnitee in connection
with the proceeding if the Indemnitee is wholly successful, on the merits or
otherwise, or if ordered by a court of competent jurisdiction. In addition,
under said sections a corporation is permitted to indemnify an Indemnitee
against liability incurred in a proceeding if (i) the Indemnitee's conduct was
in good faith and in a manner he or she reasonably believed was in the
corporation's best interests or at least not opposed to its best interests, (ii)
the Indemnitee had no reasonable cause to believe his or her conduct was
unlawful if the proceeding was a criminal proceeding, (iii) the Indemnitee was
not adjudged liable to the corporation if the proceeding was by or in the right
of the corporation, and (iv) the Indemnitee was not adjudged liable on the basis
that he or she improperly received a personal benefit. Indemnification in
connection with a proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
The registrant's Restated Articles of Incorporation do not
contain any provisions regarding indemnification. Section 10.1 of the
registrant's 1995 Restated Bylaws, as amended,
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<PAGE>
provides that the registrant shall indemnify its directors and officers to the
fullest extent not prohibited by law, including, but not limited to, the Act.
The registrant's Restated Articles of Incorporation provide
for the elimination of personal liability of directors to the registrant or its
shareholders for monetary damages for conduct as a director to the full extent
permitted by the Act. Under Section 60.047 of the Act, a corporation may not
eliminate or limit the liability of a director for: (A) any breach of the
director's duty of loyalty to the corporation or its shareholders; (B) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (C) any unlawful distribution under Section 60.367 of the Act;
or (D) any transaction from which the director derived an improper personal
benefit.
The registrant has entered into indemnity agreements with each
of its current directors. The agreements provide that the registrant will hold
harmless and indemnify the director against any liability (as defined) or
expense (as defined), including attorneys' fees, incurred in any threatened,
pending or completed actions, suits or proceedings, involving the director by
reason of the fact that he or she is or was a director of the registrant to the
broadest and maximum extent permitted by Oregon law (including the Act).
The registrant maintains directors' and officers' liability
insurance under which the registrant's directors and officers are insured
against loss (as defined) as a result of claims brought against them for their
wrongful acts in such capacities.
ITEM 16. EXHIBITS.
The exhibits to the Registration Statement required by Item
601 to Regulation S-K are listed in the index to exhibits appearing at page
II-6.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
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, unless the information required
to be included in such post-effective amendment is contained
in a periodic report filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") that is incorporated herein by
reference;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement, unless the information required to be included in
such post-effective amendment is contained in a periodic
report filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that is incorporated herein
by reference;
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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.
(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
(4) 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 Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 15 above,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Portland, State of Oregon, on the 28th day of
May, 1999.
GARDENBURGER, INC.
By: /s/ Richard C. Dietz
Richard C. Dietz
Executive Vice President, Chief Financial
Officer, Secretary and Treasurer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated and as of the 28th day of May, 1999.
Signature Title
PRINCIPAL EXECUTIVE OFFICER:
LYLE G. HUBBARD* Director, President and Chief Executive Officer
PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER:
/s/ Richard C. Dietz Executive Vice President, Chief Financial Officer,
Richard C. Dietz Secretary and Treasurer
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<PAGE>
A MAJORITY OF THE BOARD OF
DIRECTORS:
KYLE A. ANDERSON* Director
ALEXANDER P. COLEMAN* Director
RONALD C. KESSELMAN* Director
RICHARD L. MAZER* Director
MARY O. McWILLIAMS* Director
MICHAEL L. RAY* Director
E. KAY STEPP* Chairman of the Board
PAUL F. WENNER* Founder, Chief Creative Officer and Director
*By: /s/ Richard C. Dietz
Richard C. Dietz
Attorney-in-Fact
- II-5 -
<PAGE>
GARDENBURGER, INC.
EXHIBIT INDEX
Exhibit No. Description
4.1 Instruments defining the rights of security holders.
See Article II, Sections 3, 4, and 5 of Restated
Articles of Incorporation, incorporated by reference
to Exhibit 3.1 to the registrant's Form 10-Q
Quarterly Report for the quarter ended March 31,
1999, and Article I of the registrant's 1995 Restated
Bylaws, as amended March 29, 1999, incorporated by
reference to Exhibit 3.2 to the registrant's Form
10-Q Quarterly Report for the quarter ended March 31,
1999.
4.2 Rights Agreement between the registrant and First
Chicago Trust Company of New York, dated April 25,
1996 ("Rights Agreement"), incorporated by reference
to Exhibit 4 to the registrant's Current Report on
Form 8-K filed May 8, 1996.
4.3 Amendment No. 1 dated as of March 26, 1998, to the
Rights Agreement, incorporated by reference to
Exhibit 10.3 to the registrant's Form 10-Q Quarterly
Report for the quarter ended March 31, 1998.
4.4 Amendment No. 2 dated as of April 14, 1999, to the
Rights Agreement, incorporated by reference to
Exhibit 10.5 to the registrant's Form 10-Q Quarterly
Report for the quarter ended March 31, 1999.
5 Opinion of Miller, Nash, Wiener, Hager & Carlsen LLP.
10.1 Stock Purchase Agreement made and entered into as of
the 29th day of March, 1999, by and among the
registrant and the purchasers identified on Exhibit A
thereto, incorporated by reference to Exhibit 10.1 to
the registrant's Current Report on Form 8-K filed
April 1, 1999.
10.2 Amendment and Waiver of Stock Purchase Agreement
dated April 14, 1999, by and among the registrant and
the purchasers identified on Exhibit A thereto,
incorporated by reference to Exhibit 10.3 to the
registrant's Form 10-Q Quarterly Report for the
quarter ended March 31, 1999.
10.3 Investor Rights Agreement dated as of April 14, 1999,
between the registrant and the investors identified
on Exhibit A thereto, incorporated by reference to
Exhibit 10.4 to the registrant's Form 10-Q Quarterly
Report for the quarter ended March 31, 1999.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Miller, Nash, Wiener, Hager & Carlsen LLP
(included in Exhibit 5).
24 Power of Attorney of certain officers and directors.
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- II-6 -
EXHIBIT 5
Miller, Nash, Wiener, Hager & Carlsen LLP
Attorneys at Law
111 S.W. Fifth Avenue, Suite 3500
Portland, Oregon 97204-2699
(503) 224-5858
(503) 224-0155 fax
May 28, 1999
Gardenburger, Inc.
1411 S.W. Morrison St., Suite 400
Portland, Oregon 97205
Gentlemen:
We have acted as counsel to Gardenburger, Inc. (the
"Company"), in connection with the registration by the Company of up to
4,062,500 shares of the Company's common stock, no par value (the "Common
Stock"), which are or may become issuable upon the conversion of currently
outstanding shares of the Company's Series A Convertible Preferred Stock and
Series B Convertible Preferred Stock (collectively, the "Preferred Shares"),
together with any additional shares of Common Stock that may become issuable
upon conversion of the Preferred Shares as a result of adjustment of the
respective conversion prices of the Preferred Shares pursuant to antidilution
provisions. The shares of Common Stock issuable upon conversion of the Preferred
Shares at any time hereafter are herein referred to as the "Shares." This
opinion is being rendered in connection with a Registration Statement on Form
S-3 covering resales of the Shares with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "Securities Act").
In connection herewith, we have examined and relied as to
matters of fact upon such certificates of public officials, certificates or
copies certified to our satisfaction of the Articles of Incorporation and Bylaws
of the Company (each amended through the date hereof), proceedings of the Board
of Directors of the Company and other corporate records, documents,
certificates, and instruments as we have deemed necessary or appropriate in
order to enable us to render the opinion expressed below.
In rendering the following opinion, we have assumed the
genuineness of all signatures on all documents examined by us, the authenticity
of all documents submitted to us as originals and the conformity to originals of
all documents submitted to us as copies, and we have relied as to matters of
fact upon statements and certifications of officers of the Company.
Based on the foregoing, we are of the opinion that the Shares
are duly and validly authorized, and when such Shares have been issued upon the
conversion of the Preferred Shares
<PAGE>
at the respective conversion prices in effect at the time of such issuance and
otherwise in accordance with their terms, such Shares will be validly issued,
fully paid and nonassessable.
For purposes of the opinion above, we have assumed that all
necessary approvals have been received for the issuance of the Shares upon
conversion of the Preferred Shares, including approval by the Company's
shareholders, if required, and any regulatory approvals required by rules of The
Nasdaq Stock Market.
We hereby consent to the filing of this opinion as an exhibit
to the aforesaid Registration Statement on Form S-3 and to the use of our name
under the caption "Legal Matters" in the Prospectus filed as a part thereof. In
giving this consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/S/MILLER, NASH, WIENER, HAGER & CARLSEN LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 26, 1999
(except as to the matters discussed in Note 13, as to which the date is March
30, 1999), included in the Annual Report on Form 10-K for the year ended
December 31, 1998, of Gardenburger, Inc., and to all references to our firm
included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Portland, Oregon,
May 26, 1999
EXHIBIT 24
POWER OF ATTORNEY
Each person whose signature appears below designates and
appoints Lyle G. Hubbard and Richard C. Dietz, and each of them, the person's
true and lawful attorneys-in-fact and agents to sign a registration statement on
Form S-3 to be filed by Gardenburger, Inc., an Oregon corporation (the
"Corporation"), with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, for the purpose of registering the shares of common
stock, no par value, of the Corporation, which may be issued in connection with
the conversion of 2,762,500 shares of Series A Convertible Preferred Stock and
487,500 shares of Series B Convertible Preferred Stock, together with any and
all amendments (including post-effective amendments) to the registration
statement. Each person whose signature appears below also grants full power and
authority to these attorneys-in-fact and agents to take any action and execute
any documents that they deem necessary or desirable in connection with the
preparation and filing of the registration statement, as fully as the person
could do in person, hereby ratifying and confirming all that the
attorneys-in-fact and agents may lawfully do or cause to be done.
IN WITNESS WHEREOF, this power of attorney has been executed
by the undersigned as of this 28th day of May, 1999.
Signature Title
Director, President and Chief Executive Officer
/s/ Lyle G. Hubbard (Principal Executive Officer)
Lyle G. Hubbard
Executive Vice President, Chief Financial Officer,
/s/ Richard C. Dietz Secretary and Treasurer
Richard C. Dietz (Principal Financial and Accounting Officer)
/s/ Kyle A. Anderson Director
Kyle A. Anderson
/s/ Alexander P. Coleman Director
Alexander P. Coleman
________________________ Director
Jason M. Fish
/s/ Ronald C. Kesselman Director
Ronald C. Kesselman
/s/ Richard L. Mazer Director
Richard L. Mazer
/s/ Mary O. McWilliams Director
Mary O. McWilliams
/s/ Michael L. Ray Director
Michael L. Ray
/s/ E. Kay Stepp Chairman of the Board
E. Kay Stepp
/s/ Paul F. Wenner Founder, Chief Creative Officer and Director
Paul F. Wenner
