<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
SOUTHERN ENERGY HOMES, INC.
(Exact Name Of Registrant As Specified In Its Charter)
DELAWARE 63-1083246
(State Or Other Jurisdiction Of (I.R.S. Employer
Incorporation Or Organization) Identification Number)
HIGHWAY 41 NORTH, P.O. BOX 390, ADDISON, ALABAMA 35540 (256) 747-8589
(Address, Including Zip Code, And Telephone Number, Including
Area Code, Of Registrant's Principal Executive Offices)
--------------------------
PAUL J. HARTNETT, JR., ESQUIRE
BROWN, RUDNICK, FREED & GESMER
ONE FINANCIAL CENTER, BOSTON, MASSACHUSETTS 02111
(617) 856-8200
(Name, Address, Including Zip Code, And Telephone Number,
Including Area Code, Of Agent For Service)
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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, 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,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to Be Offering Price Aggregate Registration
Securities to Be Registered Registered Per Share(1) Offering Price(1) Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0001 par value 94,115 Shares $12.125 $1,141,144.38 $345.80
============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933. Based upon the average
of the high and low price of the Common Stock as reported on the Nasdaq Stock
Market's National Market on April 23, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED APRIL 29, 1998
PROSPECTUS
94,115 SHARES
SOUTHERN ENERGY HOMES, INC.
COMMON STOCK
--------------
All of the 94,115 shares of Common Stock (the "Common Stock") of Southern
Energy Homes, Inc. (the "Company") covered by this Prospectus are issued and
outstanding shares which may be offered and sold, from time to time, by a
stockholder of the Company (the "Selling Stockholder"). See "Selling
Stockholders."
The Common Stock of the Company is traded on the Nasdaq Stock Market's
National Market System under the symbol "SEHI." On April 23, 1998, the last
reported sale price on the Nasdaq Stock Market's National Market for the Common
Stock was $12.125 per share.
The Selling Stockholder has advised the Company that it may sell, from
time to time, all or part of the shares covered by this Prospectus through any
of several methods, including ordinary brokerage transactions or block
transactions on the Nasdaq Stock Market's National Market at market prices, or
in privately negotiated transactions at prices agreed upon by the parties. See
"Plan of Distribution."
The Company will not receive any proceeds from the sale of the shares
covered by this Prospectus. The Company will bear equally with the Selling
Stockholder all expenses incurred in effecting the registration of such shares,
including all registration and filing fees, and legal and accounting fees for
counsel to the Company. The Selling Stockholder will bear all brokerage or
underwriting expenses or commissions, if any, applicable to the shares.
-------------
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS
RELEVANT TO AN INVESTMENT IN THE SHARES OF COMMON STOCK.
-------------
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 April __, 1998.
<PAGE> 3
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 filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, NW, Room 1024, Judiciary Plaza, Washington, D.C. 20549, and at the
Commission's Regional Offices at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York,
New York 10048, at prescribed rates. In addition, such reports, proxy statements
and information are available through the Commission's Electronic Data Gathering
and Retrieval System at http:// www.sec.gov. The Company's Common Stock is
listed on the Nasdaq Stock Market's National Market, and reports, proxy
statements and certain other information concerning the Company can also be
inspected at the offices of Nasdaq Operations, 1735 K Street NW, Washington,
D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933 with respect to the Common Stock being
offered hereby. This Prospectus, which constitutes a part of the Registration
Statement, does not contain all of the information set forth in such
Registration Statement and the exhibits and schedules thereto to which reference
is hereby made. The statements in this Prospectus as to the contents of such
Registration Statement are qualified in their entirety by such reference. The
Registration Statement, together with its exhibits and schedules, may be
inspected without charge at the Public Reference Section of the Commission in
Washington, D.C. at the address noted above, and copies of all or any part
thereof may be obtained from the Commission upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to the
Exchange Act are incorporated herein by reference: (1) the Company's Annual
Report on Form 10-K for the fiscal year ended January 2, 1998; (2) the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended April 3, 1998; (3)
the Company's Proxy Statement used in connection with the Company's Annual
Meeting of Stockholders held on June 4, 1997; (4) the Company's final prospectus
dated October 30, 1995 and filed pursuant to Rule 424 under the Securities Act
of 1933, as amended; and (5) the description of the Company's Common Stock
contained in the Company's Registration Statement on Form 8-A, originally filed
with the Commission on February 8, 1993, as amended on March 10, 1993.
All reports and other documents subsequently 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
Common Stock hereunder shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of the filing of such reports and
documents. The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any or all of the documents referred to above,
excluding exhibits thereto. Requests for such documents should be submitted in
writing to the Corporate Secretary at the corporate headquarters of the Company
at Highway 41 North, P.O. Box 390, Addison, Alabama 35540, or by telephone at
(256) 747-8589.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document that also is (or is deemed to be)
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or this
Prospectus.
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No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offering described herein, and, if given or
made, such information or representations must not be relied upon as having been
authorized by the Company or the Selling Stockholder. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
other than those specifically offered hereby or of any securities offered hereby
in any jurisdiction to any person to whom it is unlawful to make an offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances create an implication
that the information herein is correct as of any time subsequent to its date.
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<PAGE> 4
THE COMPANY
The Company is a producer of manufactured homes sold primarily in the
southeastern and south-central United States. The Company operates nine
manufacturing facilities (seven in Alabama, one in Texas, and one in North
Carolina) to produce homes sold in 21 states. The Company's homes are sold under
[five] brand names approximately 859 independent dealer locations and through 27
Company-owned retail centers.
The Company was incorporated in Alabama in February 1982 and
reincorporated in Delaware in January 1993. The Company's principal executive
offices are located at Highway 41 North, Addison, Alabama 35540 and its
telephone number is (256) 747-8589.
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating the Company and
its business before purchasing any of the shares of Common Stock offered hereby.
THE MANUFACTURED HOUSING MARKET AND EFFECTS OF CHANGES IN ECONOMIC
CONDITIONS. The manufactured housing market is highly cyclical and seasonal and
is affected to some extent by the same economic factors which impact the broader
housing market. Historically, most sectors of the home-building industry have
been affected by, among other things, changes in general economic conditions,
levels of consumer confidence, employment and income, housing demand,
availability of financing and interest rate levels. Changes in any such economic
conditions could have a material adverse effect on the Company's operating
results.
AVAILABILITY OF HOME BUYER FINANCING AND LOAN ORIGINATION ACTIVITIES.
Home buyers normally secure financing from third-party lenders. The
availability, interest rates and other costs of such financing are important to
the Company's sales and are dependent on the lending practices of financial
institutions, governmental policies and other conditions, all of which are
beyond the control of the Company. Interest rates for manufactured home loans
are generally higher and the terms of the loans shorter than for site-built home
loans. The Company has a wholly owned finance subsidiary, Wenco Finance, Inc.
("Wenco"), which, until February 1997, had been originating and servicing
consumer loans primarily for homes manufactured by the Company. In February
1997, the Company formed a joint venture with 21st Century Mortgage Corporation
("21st Century"). The joint venture, Wenco 21, continues to offer, through 21st
Century, consumer financing for homes manufactured by the Company, as well as
for other homes sold through its retail centers and independent dealers. In
light of the shift in consumer financing activities to Wenco 21, Wenco has
limited its loan origination activities to originating loans on previously
repossessed homes. There can be no assurance that Wenco 21 will be able to
provide significant levels of financing for home buyers or that such financing
activities will not adversely impact the Company's profitability. Adverse
changes in the terms or availability of financing for manufactured homes could
have a material adverse effect on the Company's operating results.
AVAILABILITY AND PRICING OF RAW MATERIALS. The Company's costs of
operations can be significantly affected by the availability and pricing of raw
materials. While the Company has not experienced any shortages in raw materials,
lumber prices are volatile and are subject to increase on short notice.
Historically, the Company has been able to adjust its prices to reflect a
significant portion of these cost increases, but increases in costs cannot
always be reflected in the Company's prices, and consequently may adversely
impact the Company's profitability.
FOCUS ON SOUTHEASTERN AND SOUTHCENTRAL MARKETS. The Company's primary
market areas are the southeastern region (which includes the states of Florida,
Georgia, North Carolina, South Carolina, Virginia and West Virginia) and the
southcentral region (which includes the states of Alabama, Arkansas, Kentucky,
Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Tennessee and Texas).
While the Company believes that these two regions historically have been strong
regions for the manufactured housing industry, demographic factors and economic
conditions affecting these regions, such as a decline in employment in the
manufacturing, mining, agricultural, and oil industries, may adversely affect
the Company's sales.
EXECUTION OF EXPANSION PLANS. A significant portion of the Company's
anticipated growth in sales and operating profit is predicated on its expansion
plans. Management believes that sales growth can be achieved by increasing the
Company's presence in its existing geographic markets and by expanding its
market area through the acquisition and
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<PAGE> 5
development of new retail centers. The ability of the Company to implement its
expansion plans will depend upon the adequacy of its capital resources,
management's ability to oversee expanded operations, the availability of
suitable retail sites within the Company's targeted market areas, and general
economic conditions. No assurance can be given that sufficient demand will exist
for the Company's products following such expansion or that these expansion
plans will otherwise be carried out successfully.
LABOR. The ability of the Company to increase its production capacity
is dependent on the availability of semi-skilled workers. If the Company should
need to increase its production capacity, there can be no assurance that the
supply of semi-skilled workers in the geographic areas in which the Company's
facilities are located will be sufficient to permit the Company to do so.
QUARTERLY EARNINGS FLUCTUATIONS. The Company's quarterly earnings are
affected by, among other factors, seasonality in the Company's business, adverse
weather conditions, the timing of new facility openings and the timing of
large-quantity orders from outside the dealer network, which may be received
from time to time. The seasonality of the Company's earnings reflects the buying
patterns of manufactured home buyers, whose purchases generally occur between
April and September. In addition to seasonal fluctuations, the Company's
quarterly earnings fluctuate significantly based on the timing of new facility
acquisitions and large-quantity orders from outside the dealer network.
Fluctuations in the Company's quarterly earnings may cause the market price of
the Company's Common Stock to fluctuate significantly.
DEPENDENCE ON KEY PERSONNEL. The Company is dependent upon its senior
management. The loss of the services of any of the Company's executive officers
could adversely affect the Company.
COMPETITION. The manufactured housing industry is highly competitive at
both the manufacturing and retail levels, and the capital requirements for entry
are relatively small. Competition is based upon numerous factors, including
total price to the dealer, customization to homeowner's preferences, product
features, quality, warranty repair service and the availability and terms of
dealer and retail customer financing. The Company does not view any of its
competitors as being dominant in the industry. However, a number of the
Company's competitors are larger than the Company and possess greater
manufacturing, retail, and financial resources. In addition, there are numerous
firms producing and retailing manufactured homes in the southeastern and
southcentral United States, many of which are in direct competition with the
Company in the states where its homes are sold. Manufactured homes also compete
with apartments, townhouses, condominiums and site-built homes. Certain of the
Company's competitors provide customers with financing from captive finance
subsidiaries. While the Company believes consumer financing has generally become
more available in the manufactured housing industry in recent years, and
although the Company has formed its Wenco 21 joint venture to provide consumer
financing through 21st Century Mortgage Corporation, a contraction in consumer
credit could provide an advantage to those competitors with established internal
financing capabilities.
REGULATION. Manufactured homes are subject to a variety of federal,
state and local laws. The National Manufactured Home Construction and Safety
Standards Act of 1974 and regulations promulgated by the Department of Housing
and Urban Development ("HUD") thereunder impose comprehensive national
construction standards for manufactured homes. Failure to comply with the HUD
regulations could expose the Company to a wide variety of sanctions, including
the closing of the Company's plants. Certain components of manufactured homes
are subject to regulation by the Consumer Product Safety Commission. Some states
require that manufactured home producers post bonds to ensure the satisfaction
of consumer warranty claims. The description and substance of the Company's
warranties are also subject to a variety of federal and state laws and
regulations. Manufactured homes are also subject to other state and local
regulations, including local zoning restrictions. In addition, the Company's
trucking and finance subsidiaries, MH Transport, Inc. and Wenco, and Wenco 21,
the Company's finance joint venture, are subject to a variety of federal and
state laws and regulations. Failure to comply with any of these laws or
regulations could have a material adverse effect on the Company's business and
results of operations.
DIVIDENDS. The Company does not intend to pay cash dividends in the
foreseeable future. The Company intends to retain any earnings for use in the
operation and expansion of its business.
POSSIBLE VOLATILITY OF STOCK PRICE. The Common Stock of the Company is
quoted on the Nasdaq Stock Market's National Market. However, there can be no
assurance that, following this offering, a regular trading market for the Common
Stock will be sustained. The market price of the Common Stock could be subject
to significant fluctuations in response to
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<PAGE> 6
variations in quarterly operating results and other factors. See "Quarterly
Earnings Fluctuations". In addition, the stock market in recent years has
experienced extreme price and volume fluctuations that often have been unrelated
or disproportionate to the operating performance of companies. These broad
fluctuations may adversely affect the market price of the Common Stock.
CONTINGENT REPURCHASE LIABILITY WITH RESPECT TO INDEPENDENT DEALER
FINANCING. Substantially all of the Company's independent dealers finance their
purchases through "floor plan" arrangements under which a financial institution
provides the dealer with a loan for the purchase price of the home, and
maintains a security interest in the home as collateral. In connection with a
floor plan arrangement, the financial institution which provides the independent
dealer financing customarily requires the Company to enter into a separate
repurchase agreement with the financial institution under which the Company is
obligated, upon default by the independent dealer, to repurchase the homes at
the Company's original invoice price plus certain administrative and shipping
expenses. At January 2, 1998, the Company's contingent repurchase liability
under floor plan financing arrangements was approximately $ 92 million. While
homes that have been repurchased by the Company under floor plan financing
arrangements are usually sold to other dealers and losses experienced to date
under these arrangements have been insignificant, no assurance can be given that
the Company will be able to sell to other dealers homes which it may be
obligated to repurchase in the future under such floor plan financing
arrangements or that the Company will not suffer losses with respect to, and as
a consequence of, those arrangements.
LEGAL PROCEEDINGS. The Company is the defendant in a lawsuit filed on March
27, 1996 in Fulton County Superior Court, Georgia by EurAm International, Inc.,
a former sales agent for the Company. On April 29, 1996 the Company removed the
case to the United States District Court for the Northern District of Georgia in
Atlanta. In this lawsuit, the plaintiff alleges that the Company has caused a
breach to a written agreement relating to the sale of the Company's modular
homes in Germany, including alleged misrepresentations and faulty performance,
resulting in damages alleged to amount to $25 million. The Company believes the
claim is without merit and intends to vigorously defend the claim, but there can
be no assurances as to its likely outcome.
In addition, the Company has been informed by Gesellschoft fur Bauen
Und Wohnen Hannover MbH ("GBH"), a German housing authority, that it has
replaced the Company with a local company to complete a contract that GBH had
entered into with the Company for the purchase and erection of modular housing
in Hannover, Germany. In connection with the contract, the Company posted a
$660,000 letter of credit in favor of GBH. In March 1997, GBH made a claim
against the Company for damages of approximately $800,000 arising from the shift
in suppliers and attempted to draw upon the letter of credit posted by the
Company. The Company obtained a temporary restraining order preventing GBH from
drawing upon the letter of credit. In February 1998, the Alabama Supreme Court
issued an opinion allowing GBH to draw on the letter of credit. GBH promptly
drew on the Company's letter of credit in the amount of $580,000. In the opinion
of management, after consultation with legal counsel, there should be no other
material exposure with regard to GBH, but there can be no assurances that GBH
will not assert an additional claim against the Company or as to the outcome of
any such claim.
RELIANCE ON INDEPENDENT DEALERS. The Company sells manufactured homes
through approximately 859 independent dealer locations and through 27
Company-owned retail centers. The Company believes that the quality of its
independent dealer network has been important to the Company's performance. The
Company does not have formal marketing or other agreements with its dealers, and
substantially all of the Company's dealers also sell homes of other
manufacturers. While the Company believes its relations with its independent
dealers are good, no assurance can be given that the Company will be able to
maintain these relations or that these dealers will continue to sell the
Company's homes.
CERTAIN ANTI-TAKEOVER PROVISIONS AFFECTING STOCKHOLDERS. The Board of
Directors has the authority to issue up to 1,000,000 shares of Preferred Stock
in one or more series and, with respect to each series, to fix and determine,
among other things, (i) its dividend rate; (ii) its liquidation preference;
(iii) whether or not such shares will be convertible into or exchangeable for
any other securities or property; and (iv) whether or not such shares will have
voting rights and, if so, the conditions under which said shares will vote as a
separate class. The Company has no current plans to issue Preferred Stock for
any purpose. However, were it inclined to do so, the Board of Directors could
issue all or part of the Preferred Stock with (among other things) substantial
voting powers or advantageous conversion rights. Such stock could be issued to
persons deemed by the Board of Directors likely to support current management in
a contest for control of the Company, either as a precautionary measure or in
response to a specific takeover threat.
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<PAGE> 7
Further, provisions of the Company's Certificate of Incorporation and
By-Laws may make a takeover attempt more difficult and therefore may diminish
the likelihood that a potential acquirer would launch such an attempt even if in
a particular case it would be beneficial to the stockholders.
USE OF PROCEEDS
The proceeds from the sale of the shares of Common Stock offered hereby
will be the property of the Selling Stockholder and will be used by them in
their discretion. No part of the proceeds will be received by the Company.
SELLING STOCKHOLDER
The Company issued the shares of Common Stock being offered hereby to
the Selling Stockholder as partial consideration for the acquisition by the
Company of substantially all the assets of A & G, Inc., the Selling Stockholder.
The Company is obligated, under that certain Asset Purchase Agreement dated
December 3, 1997, pursuant to which the Company acquired substantially all the
assets of A & G, Inc., to register the shares offered hereby under the
Securities Act of 1933, as amended, for resale by A & G, Inc. The following
table sets forth (i) the number of shares of Common Stock beneficially owned by
the Selling Stockholder as of April 21, 1998 and (ii) the number of shares of
Common Stock that may be offered by the Selling Stockholder under this
Prospectus. This information is based upon information received from or on
behalf of the Selling Stockholder.
NUMBER OF
SHARES
NUMBER OF SHARES BENEFICIALLY WHICH MAY BE
NAME OF BENEFICIAL OWNER OWNED PRIOR TO OFFERING OFFERED(1)
- ------------------------ ----------------------- ----------
A & G, Inc. 94,115 94,115
- ---------------------
(1) Assumes the sale of all shares of Common Stock registered hereunder. See
"Plan of Distribution."
PLAN OF DISTRIBUTION
The price and manner of sale of the shares of Common Stock to be offered
hereunder are in the sole discretion of the Selling Stockholder. The shares of
Common Stock offered hereby may be offered through any of several methods, such
as ordinary brokerage transactions or block transactions on the Nasdaq Stock
Market's National Market at market prices, or in privately negotiated
transactions at prices agreed upon by the parties. Neither the Company nor, to
the knowledge of the Company, the Selling Stockholder has any agreement,
arrangement or understanding with any broker or dealer entered into prior to the
effective date of the Registration Statement of which this Prospectus is a part
with respect to the sale of the Common Stock offered hereby.
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<PAGE> 8
CAUTIONARY STATEMENT ON FORWARD LOOKING INFORMATION
This Prospectus contains forward-looking statements within the meaning
of the Securities Exchange Act of 1934. These statements reflect the Company's
current view with respect to future events and financial performance. Investors
are cautioned that such forward-looking statements involve risks and
uncertainties, including without limitation: the cyclical and seasonal nature of
housing markets; the availability of financing for prospective purchasers of the
Company's homes; the amount of capital that the Company may commit to its Wenco
21 joint venture to make available consumer loans; the performance of the loans
held by the Company's finance subsidiary; the availability and pricing of raw
materials; the concentration of the Company's business in certain regional
markets; the Company's ability to execute and manage its expansion plans; the
availability of labor to implement those plans; the highly competitive nature of
the manufactured housing industry; Federal, state and local regulation of the
Company's business; the Company's contingent repurchase liabilities with respect
to independent dealer financing; the Company's reliance on independent dealers;
and other risks indicated from time to time in the Company's filings with the
Securities and Exchange Commission.
LEGAL MATTERS
The validity of the securities offered hereby has been passed upon for
the Company by Messrs. Brown, Rudnick, Freed & Gesmer, One Financial Center,
Boston, Massachusetts 02111.
EXPERTS
The audited Consolidated Financial Statements and schedules included or
incorporated by reference in this Prospectus and elsewhere in the Registration
Statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are included
or incorporated by reference herein in reliance upon the authority of said firm
as experts in giving said reports.
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<PAGE> 9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION Set forth below is an
estimate of the fees and expenses payable in connection with the distribution of
the Common Stock which will be paid by the Company.
SEC Registration Fee................................ $ 345.80
Accounting Fees and Expenses........................ 2,000.00*
Legal Fees and Expenses............................. 10,000.00*
Miscellaneous....................................... 654.20*
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TOTAL........................................... $13,000.00
- --------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article ELEVENTH of the Certificate of Incorporation of the Company
provides as follows:
No director shall be personally liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director notwithstanding any provision of law imposing such liability;
provided, however, that, to the extent provided by applicable law, this
provision shall not eliminate the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involves intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of Delaware, or (iv)
of any transaction from which the director derived an improper personal
benefit.
Section 145 of the General Corporation Law of the State of Delaware
permits the indemnification and insurance of the Company's directors and
officers under certain circumstances.
In addition, Article 10 of the By-Laws of the Company provides as
follows:
ARTICLE 10
INDEMNIFICATION
Section 10.1 Third Party Actions. The Corporation shall
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason
of the fact that he is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believe to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and,
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<PAGE> 10
with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 10.2 Derivative Actions. The Corporation shall
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance
of his duty to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 10.3 Expenses. To the extent that a Director, officer,
employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to
in Sections 10.1 and 10.2, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 10.4 Authorization. Any indemnification under Sections
10.1 and 10.2 (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 10.1 and 10.2.
Such determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties
to such action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested Directors
so directs, by independent legal counsel in a written opinion, or (c)
by the stockholders.
Section 10.5 Advance Payment of Expenses. Expenses incurred by
an officer or Director in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking
by or on behalf of such officer or Director to repay such amount unless
it shall ultimately be determined that he is entitled to be indemnified
by the Corporation as authorized in this Article 10. Such expenses
incurred by other employees and agents may be so paid upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
Section 10.6 Non-Exclusiveness. The indemnification provided
by this Article 10 shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as to
a person who has ceased to be a Director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10.7 Insurance. The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status
as such, whether or not the
II-2
<PAGE> 11
Corporation would have the power to indemnify him against such
liability under the provisions of this Article 10.
Section 10.8 Constituent Corporations. The Corporation shall
have power to indemnify any person who is or was a director, officer,
employee or agent of a constituent corporation absorbed in a
consolidation or merger with this Corporation or is or was serving at
the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, in the same manner as hereinabove provided
for any person who is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
Section 10.9. Additional Indemnification. In addition to the
foregoing provisions of this Article 10, the Corporation shall have the
power, to the full extent provided by law, to indemnify any person for
any act or omission of such person against all loss, cost, damage and
expense (including attorney's fees) if such person is determined (in
the manner prescribed in Section 10.4 hereof) to have acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interest of the Corporation.
ITEM 16. EXHIBITS
Exhibit
Number Title
- ------ -----
5 -- Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 -- Consent of Brown, Rudnick, Freed & Gesmer. (included in
Exhibit 5.)
23.2 -- Consent of Arthur Andersen LLP.
24 -- Power of Attorney (Included on Signature Page of this
Registration Statement.)
The following Exhibits are incorporated herein by reference.
2.1 -- Asset Purchase Agreement between the Company, A & G, Inc., and
the sole stockholder of A & G, Inc. (filed as Exhibit 10.24 to
the Company's Annual Report on Form 10-K for the fiscal year
ended January 2, 1998)
4.1 -- Certificate of Incorporation of the Company, as amended. (Filed
as Exhibit 4.1 to the Company's Registration Statement on Form
S-3, Registration No. 333-32933)
4.2 -- By-Laws of the Company. (Filed as Exhibit 3.2 to the Registration
Statement on Form S-1, Registration No. 33-57420.)
4.3 -- Specimen of Stock Certificate. (Filed as Exhibit 4.1 to the
Registration Statement on Form S-1, Registration No. 33-57420.)
4.4 -- Southern Development Council, Inc. Promissory Note. (Filed as
Exhibit 4.10 to the Registration Statement on Form S-1,
Registration No. 33-57420.)
4.6 -- Stockholders' Agreement, dated as of June 8, 1989 (Filed as
Exhibit 4.12 to the Registration Statement on Form S-1,
Registration No. 33-57420.)
4.7 -- Form of First Amendment to Stockholders' Agreement, dated as of
January 13, 1993. (Filed as Exhibit 4.13 to the Registration
Statement on Form S-1, Registration No. 33-57420.)
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:
II-3
<PAGE> 12
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in this 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 this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each 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 the 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Registrant's Amended Articles, Amended By-Laws, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE> 13
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 Addison, State of Alabama, on the 29th day of April
1998.
SOUTHERN ENERGY HOMES, INC.
By: /s/ Wendell L. Batchelor
----------------------------------------
Wendell L. Batchelor
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Wendell L. Batchelor, Keith W. Brown, Jonathan O.
Lee and each of them, with the power to act without the other, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him or in his name, place and stead, in any and all
capacities to sign any and all amendments or post-effective amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Wendell L. Batchelor Chairman of the Board, President, April 29, 1998
- -------------------------------------------- Chief Executive Officer
Wendell L. Batchelor (Principal Executive Officer) and
Director
/s/ Keith O. Holdbrooks Executive Vice President, April 29, 1998
- -------------------------------------------- Chief Operating Officer and Director
Keith O. Holdbrooks (Principal Executive Officer)
/s/ Johnny R. Long Executive Vice President and Director April 29, 1998
- --------------------------------------------
Johnny R. Long
/s/ Keith W. Brown Executive Vice President, Chief April 29, 1998
- -------------------------------------------- Financial Officer (Principal
Keith W. Brown Financial and Principal Accounting
Officer), Treasurer, Secretary and
Director
Director
- --------------------------------------------
Jonathan O. Lee
Director
- --------------------------------------------
Paul J. Evanson
Director
- --------------------------------------------
Joseph J. Incandela
</TABLE>
<PAGE> 14
EXHIBIT INDEX
EXHIBIT
NUMBER
5 -- Opinion of Brown, Rudnick, Freed & Gesmer
23.1 -- Consent of Brown, Rudnick, Freed & Gesmer (included in
Exhibit 5.)
23.2 -- Consent of Arthur Andersen LLP
24 -- Power of Attorney (Included on Signature Page of this
Registration Statement.)
The following Exhibits are incorporated herein by reference.
2.1 -- Asset Purchase Agreement between the Company, A & G, Inc., and
the sole stockholder of A & G, Inc. (filed as Exhibit 10.24 to
the Company's Annual Report on Form 10-K for the fiscal year
ended January 2, 1998)
4.1 -- Certificate of Incorporation of the Company, as amended. (Filed
as Exhibit 4.1 to the Company's Registration Statement on Form
S-3, Registration No. 333-32933)
4.2 -- By-Laws of the Company. (Filed as Exhibit 3.2 to the
Registration Statement on Form S-1, Registration No. 33-57420.)
4.3 -- Specimen of Stock Certificate. (Filed as Exhibit 4.1 to the
Registration Statement on Form S-1, Registration No. 33-57420.)
4.4 -- Southern Development Council, Inc. Promissory Note. (Filed as
Exhibit 4.10 to the Registration Statement on Form S-1,
Registration No. 33-57420.)
4.6 -- Stockholders' Agreement, dated as of June 8, 1989 (Filed as
Exhibit 4.12 to the Registration Statement on Form S-1,
Registration No. 33-57420.)
4.7 -- Form of First Amendment to Stockholders' Agreement, dated as of
January 13, 1993. (Filed as Exhibit 4.13 to the Registration
Statement on Form S-1, Registration No. 33-57420.)
<PAGE> 1
EXHIBIT 5
April 29, 1998
Southern Energy Homes, Inc.
Highway 41 North
Addison, AL 35540
Attn: Keith W. Brown, Chief Financial Officer
RE: Registration Statement on Form S-3 filed on April 29, 1998
----------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Southern Energy Homes, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a Registration Statement on Form S-3
(the "Registration Statement") pursuant to which the Company is registering
under the Securities Act of 1933, as amended (the "Act"), a total of 94,115
shares of common stock, $.0001 par value (the "Shares"). This opinion is being
rendered in connection with the filing of the Registration Statement.
In connection with this opinion, we have examined the following
documents (collectively, the "Documents"):
(i) the Certificate of Incorporation of the Company, as amended,
certified by the Secretary of the Company;
(ii) the By-laws of the Company certified by the Secretary of the
Company;
(iii) a Certificate of the Secretary of the Company which certifies the
adoption of resolutions by the Board of Directors of the Company
which authorize, among other things, the Company to enter into
an Asset Purchase Agreement by and among the Company, A & G, Inc.
and the Sole Stockholder of A & G, Inc.;
(iv) the Asset Purchase Agreement by and among the Company,
A & G, Inc. and the Sole Stockholder of A & G, Inc., dated
December 3, 1997; and
(v) a letter from the Company's Transfer Agent dated as of a recent
date as to the issued and outstanding shares of the Company.
We have, without independent investigation, relied upon the
representations and warranties of the various parties as to matters of objective
fact contained in the Documents.
We have not made any independent review or investigation of orders,
judgments, rules or other regulations or decrees by which the Company or any of
its property may be bound, nor have we made any independent investigation as to
the existence of actions, suits, investigations or proceedings, if any, pending
or threatened against the Company.
<PAGE> 2
Southern Energy Homes, Inc.
Page 2
April 29, 1998
With your concurrence, the opinions hereafter expressed, whether or not
qualified by language such as "to our knowledge," are based solely upon (1) our
review of the Documents and (2) such review of published sources of law as we
have deemed necessary.
This firm, in rendering legal opinions, customarily makes certain
assumptions which are described in Schedule A hereto. In the course of our
representation of the Company in connection with preparation of the Registration
Statement, nothing has come to our attention which causes us to believe reliance
upon any of those assumptions is inappropriate, and, with your concurrence, the
opinions hereafter expressed are based upon those assumptions.
We express no legal opinion upon any matter other than that explicitly
addressed in numbered paragraph 1 below, and our express opinion therein
contained shall not be interpreted to be an implied opinion upon any other
matter.
Our opinion contained herein is limited to the laws of The Commonwealth
of Massachusetts, the Delaware General Corporation Law and the Federal law of
the United States of America.
1. Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized and validly issued, and are fully paid and
non-assessable.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an Exhibit
to said Registration Statement and to the reference to our firm wherever it
appears in the Registration Statement, including the prospectus constituting a
part thereof and any amendments thereto. This opinion may be used in connection
with the offering of the Shares only while the Registration Statement, as it may
be amended from time to time, remains effective under the Act.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: BROWN, RUDNICK, FREED & GESMER, P.C.,
a Partner
By: /s/ John G. Nossiff, Jr.
-------------------------------------
John G. Nossiff, Jr., A Member
Duly Authorized
<PAGE> 3
Southern Energy Homes, Inc.
Page 3
April 29, 1998
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
--------------------
In rendering legal opinions in third party transactions, Brown, Rudnick,
Freed & Gesmer makes certain customary assumptions described below:
1. Each natural person executing any of the Documents has
sufficient legal capacity to enter into such Documents and
perform the transactions contemplated thereby.
2. The Company holds requisite title and rights to any property
involved in the transactions described in the Documents and
purported to be owned by it.
3. Each person other than the Company has all requisite power and
authority and has taken all necessary corporate or other action
to enter into those Documents to which it is a party or by
which it is bound, to the extent necessary to make the
Documents enforceable against it.
4. Each person other than the Company has complied with all legal
requirements pertaining to its status as such status relates to
its rights to enforce the Documents against the Company.
5. Each Document is accurate, complete and authentic, each
original is authentic, each copy conforms to an authentic
original and all signatures are genuine.
6. All official public records are accurate, complete and properly
indexed and filed.
7. There has not been any mutual mistake of fact or
misunderstanding, fraud, duress, or undue influence by or among
any of the parties to the Documents.
8. The conduct of the parties to the transactions described in the
Documents has complied in the past and will comply in the
future with any requirement of good faith, fair dealing and
conscionability.
9. Each person other than the Company has acted in good faith and
without notice of any defense against the enforcement of any
rights created by, or adverse claim to any property or security
interest transferred or created as part of, the transactions
described in the Documents.
10. There are no agreements or understandings among the parties to
or bound by the Documents, and there is no usage of trade or
course of prior dealing among such parties, that would define,
modify, waive, or qualify the terms of any of the Documents.
11. The Company will not in the future take any discretionary
action (including a decision not to act) permitted under any
Document that would result in a violation of law or constitute
a breach or default under that or
<PAGE> 4
Southern Energy Homes, Inc.
Page 4
April 29, 1998
any other Document or court or administrative orders, writs,
judgments and decrees that name the Company and are
specifically directed to it or its property.
12. The Company will obtain all permits and governmental approvals
not required at the time of the closing of the transaction
contemplated by the Documents but which are subsequently
required, and will take all actions similarly required,
relevant to subsequent consummation of the transaction
contemplated by the Documents or performance of the Documents.
13. All parties to or bound by the Documents will act in accordance
with, and will refrain from taking any action that is forbidden
by, the terms and conditions of the Documents.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated February 14, 1998
incorporated by reference in Southern Energy Homes, Inc.'s Form 10-K for the
year ended January 2, 1998 and to all references to our Firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Birmingham, Alabama
April 24, 1998
