<PAGE>
As filed with the Securities and Exchange Commission on May 29, 1997
Registration No. 333-22779
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WEBCO INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Oklahoma 73-1097133
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
201 Woodland Drive
Sand Springs, Oklahoma 74063
(918) 241-1000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Dana S. Weber
President
201 Woodland Drive
Sand Springs, Oklahoma 74063
(918) 241-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________
Copies to:
Lawrence H. Budish, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036-8299
(212) 969-3000
_________________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
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, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) of 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. [ ]
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, as amended, 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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PROSPECTUS
May 29, 1997
223,732 Shares
WEBCO INDUSTRIES, INC.
Common Stock
This Prospectus relates to the offer and sale from time to time by certain
stockholders (the "Selling Stockholders") of up to a total of 223,732 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock"),
of Webco Industries, Inc., an Oklahoma corporation (the "Company"). Such
Shares may be offered in amounts, at prices and on terms to be determined at
the time of sale. See "Selling Stockholders and Plan of Distribution."
The Company's Common Stock is quoted on the American Stock Exchange under
the trading symbol "WEB." On May 28, 1997, the closing sale price of the
Common Stock was $5.75 per share.
The Company will not receive any part of the proceeds from sales of the
Shares. All expenses of registration incurred in connection herewith are being
borne by the Company, but all selling and other expenses incurred by the
Selling Stockholders will be borne by the Selling Stockholders.
See "Risk Factors" beginning on page 4 for a discussion of certain factors
that should be considered by prospective purchasers.
_________________________________________________________________
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 Shares to which this Prospectus relates may be offered and sold from
time to time by the Selling Stockholders to or through one or more brokers,
dealers or agents or directly to purchasers. See "Selling Stockholders and
Plan of Distribution."
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements under the caption "Risk Factors" herein as well as
under the captions "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and "Business" which are incorporated herein by
reference may constitute "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors,
which may cause the actual results, performance or achievements of the Company,
or industry results, to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements. Such factors include, among others, the following general economic
and business conditions: the loss of, or the failure to replace, any significant
customers; changes in business strategy or development plans; the timing and
success of new product introductions; the quality of management; the
availability, terms and deployment of capital; the business abilities and
judgments of personnel; the availability of qualified personnel; and other
factors referenced in this Prospectus or in the materials incorporated herein
by reference. These forward-looking statements speak only as of the date of
this Prospectus. The Company expressly disclaims any obligation or undertaking
to release publicly any updates or revisions to any forward-looking statement
contained herein or incorporated by reference to reflect any change in the
Company's expectations with regard thereto or any change in events, conditions
or circumstances on which any such statement is based.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-3 (collectively with all
amendments, exhibits, schedules and supplements thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act")
with respect to the Shares offered hereby. This Prospectus, which forms a part
of the Registration Statement, does not contain all the information set forth
in the Registration Statement, as permitted by the rules and regulations of the
Commission. For further information with respect to the Company and the Shares
offered hereby, reference is made to the Registration Statement. Statements
contained in this Prospectus as to the contents of any contract or other
document that has been filed as an exhibit to the Registration Statement are
qualified in their entirety by reference to such exhibits for a complete
statement of their terms and conditions. The Company also files periodic
reports and other information required to be filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Registration
Statement and such periodic reports and other information may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street N.W., Washington, D.C. 20549 or at certain of the
regional offices of the Commission located at 7 World Trade Center, 13th Floor,
New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, upon payment of the fees prescribed by the Commission. Copies
of such material may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street N.W., Washington, D.C. 20549, at prescribed
rates. The Commission also maintains a Web site (http://www.sec.gov) through
which the Registration Statement and the Company's periodic reports and other
information can be retrieved.
The Common Stock is quoted on the American Stock Exchange under the
trading symbol "WEB." Reports and other information concerning the Company
may be inspected at the offices of the American Stock Exchange, 86 Trinity
Place, New York, New York 10006.
2
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents or portions of documents filed by the Company with
the Commission are incorporated by reference in this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
July 31, 1996 (the "1996 10-K") (File No. 0-23242) which contains consolidated
financial statements of the Company and certain other information regarding the
Company.
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (File No. 33-72994) dated
February 8, 1994, as amended.
(c) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended October 31, 1996 and January 31, 1997 (File No. 0-23242).
Each document filed subsequent to the date of this Prospectus by the
Company pursuant to Sections 13(a), 14 or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities remaining
unsold, 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.
Any statement contained in a document, all or a portion of which is
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained or
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon the written or oral
request of any such person, a copy of any or all such documents which are
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the documents
that this Prospectus incorporates). Written or oral requests for copies should
be directed to: Mike Howard, Webco Industries, Inc., 201 Woodland Drive, Sand
Springs, Oklahoma 74063, telephone number: (918) 241-1000.
THE COMPANY
The Company, which was founded in 1969 by F. William Weber ("Mr. Weber"),
Chairman of the Board and Chief Executive Officer of the Company, is a
specialty manufacturer of high-quality carbon steel tubing and stainless steel
tubing and pipe designed to industry and customer specifications. Based on the
Company's knowledge of the specialty tube industry, management believes that
Webco is the domestic market leader in the manufacture of welded carbon heat
exchanger tubing and welded boiler tubing, and the leading supplier of
stainless tubing for the high efficiency furnace market. Commencing in fiscal
1996, the Company manufactures and markets, through its QuikWater division, a
patented direct contact water heater with unique environmental and energy
saving advantages for a wide variety of end use markets. The Company's
products are delivered from its three production facilities in Oklahoma and
Pennsylvania and from two distribution facilities in Oklahoma and Texas to more
than 700 customers located primarily in the continental United States, southern
Canada, and northern Mexico.
The Company was incorporated in the State of Oklahoma in 1969. Its
executive offices are located at 201 Woodland Drive, Sand Springs,
Oklahoma 74063, and its telephone number at that address is (918) 241-1000.
3
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RISK FACTORS
Prospective investors, prior to making an investment decision, should
carefully consider the following risk factors, together with the other matters
incorporated by reference herein. This section contains forward-looking
statements. See "Special Note Regarding Forward-Looking Statements."
Cyclicality of Demand for Company Products. Many of the Company's
products are sold to industries that experience significant fluctuations in
demand based on economic conditions or other matters beyond the control of the
Company. No assurance can be given that the Company will be able to increase
or maintain its level of sales in periods of economic stagnation or downturn.
Competition. Specialty steel tube manufacturing is a highly competitive
market in which companies compete on the basis of price, quality, service and
ability to fill orders on a timely basis. The Company has different
competitors within each of its markets served. Certain of these competitors
are larger and have greater financial resources than the Company. Sales of
some of the Company's products represent a high percentage of the market demand
for these products, and could be targeted by competitors.
Litigation. The Company has been identified as a potentially responsible
party in the cleanup of a site within the Sand Springs Petrochemical Complex
Superfund Site (the "Sand Springs Site") and the Hardage-Criner Superfund Site
(the "Hardage Site"). The Company became a potentially responsible party with
respect to the Sand Springs Site as a result of a licensed waste hauler,
without authorization from the Company, having dumped at the Sand Springs Site
non-hazardous cutting fluids generated by the Company. Cutting fluids and
acids generated by the Company were properly dumped at the Hardage Site. At
the time of such dumpings, both the Sand Springs Site and the Hardage Site had
all permits then required to receive such wastes. Under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended,
each responsible party is jointly and severally liable for all cleanup and
remedial costs at a site. However, potentially responsible parties generally
apportion liability based on the relative volumes of waste disposed by them.
The Company's percentages of the liabilities have been established at
approximately 2.2% and 1.0% at the Sand Springs Site and the Hardage Site,
respectively. The potential legal and cleanup costs allocated to the Company
are affected by the complexity of the environmental laws and regulations, the
uncertainty of the total legal and remediation costs for the sites, and
insurance policies in effect at the time the waste disposal occurred. However,
substantially all required remedial work has been completed at the Sand Springs
Site. The remedy at Hardage is also complete and proven effective, and the
cleanup has entered its 30 year operation and maintenance phase. At
October 31, 1996, the Company estimated its remaining potential liability for
remediation of the waste disposal sites and legal costs for both sites and
legal costs for both sites in the aggregate to be approximately $250,000
(primarily Hardage operation and maintenance) which has been recorded as an
accrued liability.
Impact of Changing Steel Prices on the Company's Results of Operations.
The Company's principal raw material is steel sheet coil. The steel industry
is highly cyclical in nature and prices for the Company's raw materials are
influenced by numerous factors beyond the control of the Company, including
general economic conditions, competition, labor costs, and import duties and
other trade restrictions. As steel producers change the effective selling
price for the Company's raw materials, competitive conditions will influence
the amount of the change, if any, in the Company's prices to its customers.
Changing steel prices could therefore affect the Company's net sales and net
income.
Backlog. The Company's firm backlog of orders at October 31, 1996 were
$20.2 million. Orders, including a portion of the orders considered firm, are
generally cancelable by the customer until work has commenced and the Company
has committed resources; thereafter, orders are generally cancelable by the
customer only upon payment of a cancellation penalty. There can be no
assurance that the Company's customers will or will not cancel any portion
of the backlog of orders. Cancellation of any portion of the orders currently
on backlog may have an effect on the revenues of the Company
4
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Mill 3. The core of the Company's most recent major capital investment
strategy is a highly-automated high frequency welded tube mill ("Mill 3") at
the Sand Springs, Oklahoma facility, which was placed into service near the end
of the second quarter of fiscal 1995. During fiscal 1992 through 1996, the
Company spent $20.9 million for capital projects, of which approximately 30%
was spent on the installation and enhancement of Mill 3. While Mill 3 is
currently producing approximately 20,000 tons annually, the Company anticipates
that it has the potential when fully staffed to double the Company's tonnage
production capacity to 140,000 tons annually, while improving operating
efficiency, reducing operating costs, and broadening the Company's product
line. Nonetheless, there can be no assurance that Mill 3 will be able to
attain or sustain such anticipated production capacity.
Control by Principal Stockholders; Anti-Takeover Provisions. The members
of the Weber family (or trusts established by them) (the "Weber Family"), which
include the Chief Executive Officer and the Chief Operating Officer of the
Company, beneficially own approximately 50% of the outstanding shares of Common
Stock and, accordingly, are able to elect all of the Company's directors, amend
the Company's Amended and Restated Certificate of Incorporation (the "Restated
Certificate") and By-Laws (including indemnification and anti-takeover
provisions), and approve significant corporate transactions and other actions
pertaining to the Company which require stockholder approval.
Mr. Weber, the Chief Executive Officer, and Dana S. Weber ("Ms. Weber"),
the Chief Operating Officer, are entitled to certain payments in the event of
a change of control (as defined in their employment agreements). In addition,
the Company's staggered Board of Directors, authorized preferred stock which
may be issued with such terms as the Board of Directors may determine, and
certain anti-takeover provisions of the Company's organizational documents and
the Oklahoma General Corporation Act may discourage unsolicited takeover bids
by third parties.
Dependence on Senior Management. The success of the Company depends to a
significant degree on the efforts of its senior management, particularly Mr.
Weber, its Chairman of the Board and Chief Executive Officer, and Ms. Weber,
its Vice Chairman, President and Chief Operating Officer. The loss of the
services of either Mr. Weber or Ms. Weber could have a material adverse effect
on the Company. Mr. Weber and Ms. Weber have each entered into a three-year
employment agreement with the Company. The Company maintains $2,000,000 key
man life insurance on Mr. Weber.
No Dividends. The company currently intends to retain earnings to support
its growth strategy and does not anticipate paying dividends in the foreseeable
future. Payment of dividends is restricted by the Company's loan agreements.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Shares.
SELLING STOCKHOLDERS AND PLAN OF DISTRIBUTION
The 223,732 Shares offered hereby were or may be acquired by four
executives of the Company from Mr. Weber pursuant to Option Agreements
executed in 1992 between Mr. Weber and those four executives. The options to
acquire 200,404 Shares have been exercised, and options to acquire an
additional 23,328 Shares by Mr. H. Lee Beard remain outstanding. The Shares
were acquired at prices ranging from $2.07 to $2.92 per Share.
The following table sets forth the name of each Selling Stockholder and
the maximum number of shares of Common Stock to be offered by each Selling
Stockholder hereby. There is no assurance that any of the Selling Stockholders
will sell any or all of the Shares offered by them hereunder.
5
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Selling Stockholder Number of Shares Shares Covered Number of Shares
Owned Prior to by this Prospectus Owned after the
Offering Offering
William F. Obermark 82,918(1) 72,162 10,756(1)
Thomas M. Lewis 78,607(1) 72,162 6,445(1)
H. Lee Beard 46,928(1)(2) 43,328(2) 3,600(1)
David E. Boyer 55,341(1) 36,080 19,261(1)
________________
(1) Includes 3,600 shares of Common Stock that each such Selling
Stockholder had the right to acquire within 60 days of the date of this
Prospectus pursuant to the Company's 1994 Stock Incentive Plan.
(2) Includes 23,328 shares of Common Stock that Mr. Beard may currently
acquire pursuant to options granted to him in 1992 by F. William Weber and
remain unexercised.
During the three years prior to the consummation of this Offering,
(i) William F. Obermark has served as Vice President and General Manager of
Sand Springs Operations of the Company; (ii) Thomas M. Lewis has served as Vice
President and General Manager of Oil City Operations of the Company;
(iii) H. Lee Beard has served as Vice President of Management Systems of the
Company; and (iv) David E. Boyer has served as Vice President of Sales and
Marketing of the Company.
The Selling Stockholders are offering the Shares for their own account,
and not for the account of the Company. The Company will not receive any of
the net proceeds of the offering.
The Shares to be offered by the Selling Stockholders may be sold, from
time to time, on the American Stock Exchange in regular brokerage transactions,
in transactions directly with market makers or in privately negotiated
transactions at market prices prevailing at the time of sale, at prices related
to such prevailing prices, or at negotiated prices. The Selling Stockholders
also may pledge the shares as collateral, and such shares could be sold
pursuant to the terms of such pledges.
Agents through whom the Shares may be offered may receive compensation in
the form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of such Shares for whom they may act as agent. The
Selling Stockholders and any such agents that participate in the distribution
of the Shares may be deemed to be underwriters, and any profits on the sale of
the Shares by them and any discounts, commissions or concessions received by
any such agents might be deemed to be underwriting discounts and commissions
under the Securities Act. To the extent the Selling Stockholders may be deemed
to be an underwriter, the Selling Stockholders may be subject to certain
statutory liabilities of the Securities Act, including but not limited to
Sections 11 and 12 of the Securities Act and Rule 10b-5 under the Exchange Act.
The Company will pay the expenses in connection with the Registration
Statement of which this Prospectus forms a part, including filing fees. The
Selling Stockholders will pay any brokerage or other fees or commissions, as
well as Selling Stockholders' incidental expenses, in connection with the
offering.
To the extent required, the Company will use its best efforts to file,
during any period in which offers or sales are being made, one or more
supplements to this Prospectus to describe any material information with
respect to the plan of distribution not previously disclosed in this Prospectus
or any material change to such information in this Prospectus.
6
<PAGE>
LEGAL MATTERS
The validity of the Shares has been passed upon for the Company by
Proskauer Rose Goetz & Mendelsohn LLP, New York, New York.
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated balance sheets as of July 31, 1996 and 1995, and the
consolidated statements of operations, stockholders' equity, and cash flows
for each of the three years in the period ended July 31, 1996, incorporated by
reference in this prospectus, have been included herein in reliance on the
report of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of that firm as experts in auditing and accounting. With respect to
the unaudited interim financial information for the periods ended October 31,
1996 and 1995, and January 31, 1997 and 1996, incorporated by reference in this
prospectus, the independent accountants have reported that they have applied
limited procedures in accordance with professional standards for a review of
such information. However, their separate report included in the company's
quarterly reports on Form 10-Q for the quarters ended October 31, 1996, and
January 31, 1997, and incorporated by reference herein, states that they did
not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report on such
information should be restricted in light of the limited nature of the review
procedures applied. The accountants are not subject to the liability
provisions of Section 11 of the Securities Act for their report on the
unaudited interim financial information because that report is not a "report"
or a "part" of the registration statement prepared or certified by the
accountants within the meaning of Sections 7 and 11 of the Securities Act.
7
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________________________________ ________________________________
No dealer, salesman or any other
person has been authorized to give any
information or to make any
representation not contained in this 223,732 Shares
prospectus in connection with the
offering made hereby, and if given or
made, such information or
representation by the Company or the
Selling Stockholders. This prospectus
does not constitute an offer to sell,
or a solicitation of an offer to buy, WEBCO INDUSTRIES, INC.
any of the securities offered hereby
in any jurisdiction to any person
to whom it is unlawful to make such an
offer or solicitation in such
jurisdiction. Neither the delivery
of this prospectus nor any sale made
hereunder shall under any circumstances
create any implication that there has
been no change in the affairs of the Common Stock
Company since the date hereof or that
the information contained herein is
correct as of any time subsequent to
the dates as of which such information
is furnished.
_______________________
TABLE OF CONTENTS
Page
Forward-Looking Statements 2 PROSPECTUS
Available Information 2
Incorporation of Certain Documents
by Reference 3 May 29, 1997
Special Note Regarding
The Company 3
Risk Factors 4
Use of Proceeds 5
Selling Stockholders and Plan
of Distribution 5
Legal Matters 7
Independent Public Accountants 7
_______________________
________________________________ ________________________________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<PAGE>
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth all expenses in connection with the
registration of the securities described in this Registration Statement,
all of which are payable by the Company. All amounts shown are estimates
except the Securities and Exchange Commission registration fee. No portion
of these expenses will be borne by the Selling Stockholders.
Securities and Exchange Commission registration fee $ 428
Accounting Fees and Expenses 2,000
Legal fees and expenses 7,000
Miscellaneous 572
-----
Total $10,000
Item 15. Indemnification of Directors and Officers
The Company is incorporated in Oklahoma. Under Section 1031 of the
General Corporation Act of the State of Oklahoma, an Oklahoma corporation has
the power, under specified circumstances, to indemnify its directors, officers,
employees, and agents in connection with actions, suits, or proceedings brought
against them by a third party or in the right of the corporation, by reason of
the fact that they were or are such directors, officers, employees, or agents,
against expenses incurred in any action, suit, or proceeding. The Amended and
Restated Certificate of Incorporation provides for indemnification of directors
and officers to the fullest extent permitted by the General Corporation Act of
the State of Oklahoma. Reference is made to the Amended and Restated
Certificate of Incorporation of the Company filed as an Exhibit hereto.
Section 1006.B.7. of the General Corporation Act of the State of Oklahoma
provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit 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 involve intentional misconduct or a knowing violation of law,
(iii) under Section 1053 (relating to liability for unauthorized acquisitions
or redemptions of, or dividends on, capital stock) of the General Corporation
Act of the State of Oklahoma, or (iv) for any transaction from which the
director derived an improper personal benefit. The Amended and Restated
Certificate of Incorporation contains such a provision.
The Company, its directors and officers are covered by directors' and
officers' insurance policy.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 Act and is therefore
unenforceable.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits:
Exhibit No. Description of ExhibitPages Pages
2.1 Option Agreements between Mr. Weber and the Selling
Stockholders.(4)
3.1 Form of Amended and Restated Certificate of
Incorporation of Registrant. (1)
3.2 By-Laws of Registrant. (1)
5.1 Opinion of Proskauer Rose Goetz & Mendelsohn LLP as to
the legality of the securities being registered. II-7
10.1 Form of 1994 Stock Incentive Plan, as amended.(2)
10.2 Loan and Security Agreement, dated as of June 15, 1993,
between American National Bank and Trust Company of
Chicago and the Company. (1)
10.3 Amendment, dated January 31, 1994, to the Loan and
Security Agreement. (1)
10.3(a) Amendment, dated June 30, 1995, to the Loan and
Security Agreement, item 10.2 above. (2)
10.3(b) Amendment, dated October 15, 1996, to the Loan and
Security Agreement, item 10.2 above. (3)
10.4 Engagement Agreement, dated September 11, 1993, between
the Company and Carreden Group, Inc. (1)
10.5 Lease, dated March 29, 1993, between the Company and
Crest, Inc. (1)
10.6 Employment Agreement, dated December 31, 1993, between
the Company and F. William Weber. (1)
10.7 Employment Agreement, dated December 31, 1993, between
the Company and Dana S. Weber. (1)
10.8 Promissory note effective August 15, 1994, between the
Company and F. William Weber. (3)
15.1 Letter re unaudited interim financial information II-9
23.1 Consent of Proskauer Rose Goetz & Mendelsohn LLP
(contained in opinion filed as Exhibit 5.1) II-7
23.2 Consent of Coopers & Lybrand, L.L.P. II-10
24.1 Powers of Attorney II-5
27.1 Financial Data Schedule. (3)
___________
(1) Previously filed and incorporated herein by reference from the
Registrant's Registration Statement on Form S-1 (File No. 33-72994).
(2) Previously filed and incorporated herein by reference from the
Registrant's Form 10-K for the fiscal year ended July 31, 1995 (File
No. 0-23242).
(3) Previously filed and incorporated herein by reference from the
Registrant's Form 10-K for the fiscal year ended July 31, 1996 (File
No. 0-23242).
(4) Previously filed as an exhibit to the Company's Registration
Statement on Form S-3 (File No. 333-22779).
II-3
<PAGE>
Item 17. Undertakings
(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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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 by governed by the final adjudication of such issue.
(i) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed
as part of this Registration Statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this Registration Statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sand Springs, State of
Oklahoma, on the 29th day of May, 1997.
WEBCO INDUSTRIES, INC.
By: /S/ F. William Weber
F. William Weber
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints F. William Weber and Dana S. Weber, or either
of them, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any or all amendments (including post-effective
amendments) to this Registration Statement and any related Registration
Statement filed under Rule 462(b), 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, each
acting alone, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully for all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, each
acting alone, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signatures Title Date
/S/ F. William Weber Chairman of the Board and
Chief Executive Officer May 29, 1997
/S/ Dana S. Weber Vice Chairman of the Board,
President and
Chief Operating Officer May 29, 1997
/S/ Michael P. Howard Vice President of Finance
and Administration and
Chief Financial Officer May 29, 1997
/S/ Frederick C. Ermel Director May 29, 1997
/S/ Neven C. Hulsey Director May 29, 1997
/S/ Kenneth E. Case Director May 29, 1997
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit Pages
5.1 Opinion of Proskauer Rose Goetz &
Mendelsohn LLP as to the legality of the
securities being registered. II-7
15.1 Letter re unaudited interim financial
information II-9
23.1 Consent of Proskauer Rose Goetz & Mendelsohn
LLP (contained in opinion filed as
Exhibit 5.1) II-7
23.2 Consent of Coopers & Lybrand, L.L.P. II-10
24.1 Powers of Attorney incorporated by
reference from page II-5. II-5
II-6
<PAGE>
EXHIBIT 5.1
PROSKAUER ROSE GOTZ & MENDELSOHN LLP
1585 BROADWAY NEW YORK, NY 10019
May 29, 1997
Webco Industries, Inc.
201 Woodland Drive
Sand Springs, Oklahoma 74063
Ladies and Gentlemen:
You have requested our opinion in connection with the filing by Webco
Industries, Inc., an Oklahoma corporation (the "Company"), with the Securities
and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933 (the "Securities
Act") with respect to 223,732 shares of common stock, $.01 par value per share,
of the Company ("Common Stock"). The Registration Statement relates to the
proposed sale of 223,732 shares of Common Stock by certain stockholders (the
"Selling Stockholder Shares").
We have examined such records, documents and other instruments as we have
deemed relevant and necessary as a basis for the opinions hereinafter set
forth. We have also assumed without investigation the authenticity of any
document submitted to us as an original, the conformity to originals of any
document submitted to us as a copy, the authenticity of the originals of such
latter documents, the genuineness of all signatures and the legal capacity of
natural persons signing such documents.
Based upon the foregoing, it is our opinion that the Selling Stockholder
Shares were duly authorized and legally issued, and are fully paid and
non-assessable.
In rendering the foregoing opinion as to matters governed by the internal
law of the State of Oklahoma, we have relied on the opinion dated May 27, 1997
of Rosenstein, Fist & Ringold, a copy of which is attached hereto.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus contained in the Registration Statement.
In so doing, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ PROSKAUER ROSE GOETZ &
MENDELSOHN LLP
II-7
<PAGE>
ROSENSTEIN, FIST & RINGOLD
ATTORNEYS AT LAW
525 SOUTH MAIN, SUITE 700
TULSA, OKLAHOMA 74103-4508
(918) 585-9211
May 27, 1997
PROSKAUER ROSE GOETZ & MENDELSOHN
Attn: Gregory T. Walters, Esq.
1585 Broadway
New York, NY 10036-8299
Gentlemen:
RE: Webco Industries, Inc.
_________________________________
You have advised us that Webco Industries, Inc., an Oklahoma corporation (the
"Company"), has filed a Registration Statement on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission under the Securities
Act of 1933 (the "Securities Act") with respect to 223,732 shares of common
stock, $.01 par value per share, of the Company ("Common Stock"). The
Registration Statement relates to the proposed sale of the 223,732 shares of
Common Stock by certain stockholders (the "Selling Stockholder Shares") of the
Company.
We have examined such records, documents and other instruments as we have
deemed relevant and as necessary as a basis for the opinions hereinafter set
forth. Based on the foregoing, it is our opinion that the Selling Stockholder
Shares have been duly authorized and legally issued and are fully paid and
non-assessable under relevant Oklahoma law.
We do not require members of this firm to be licensed to practice law in any
state other than the State of Oklahoma, and do not purport to be experts on,
generally familiar with, or qualified to express legal conclusions based on
laws other than the laws of the State of Oklahoma and the laws of the United
States of America. Accordingly, the opinion expressed herein is specifically
limited to the laws of the State of Oklahoma and the United States of America.
With respect to matters relating to the laws of the State of Oklahoma and the
United States of America, the opinion expressed herein is based solely upon the
latest official compilations of such laws as are available to us.
You have our permission to state in your opinion that you have relied upon our
opinion for the foregoing. We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement. In so doing, we do not admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Yours very truly,
/S/ David L. Fist
FOR ROSENSTEIN, FIST & RINGOLD
II-8
<PAGE>
Exhibit 15.1
LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION
May 29, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Webco Industries, Inc.
Registration on Form S-3
We are aware that our reports dated November 25, 1996 and February 25, 1997 on
our reviews of interim financial information of Webco Industries, Inc. for the
periods ended October 31, 1996 and 1995 and January 31, 1997 and 1996, and
included in the Company's quarterly report on Form 10-Q for the quarters ended
October 31, 1996 and January 31, 1997, are incorporated by reference in this
registration statement. Pursuant to Rule 436(c) under the Securities Act of
1933, these reports should not be considered a part of the registration
statement prepared or certified by us within the meaning of Sections 7 and 11
of the Act.
COOPERS & LYBRAND L.L.P.
II-9
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3
(File No. 333-22779) of our report dated September 19, 1996, on our audits of
the consolidated financial statements and financial statement schedule of Webco
Industries, Inc. as of July 31, 1996 and 1995 and for the years ended
July 31, 1996, 1995 and 1994, which report is included in the Annual Report on
Form 10-K for the year ended July 31, 1996. We also consent to the reference
of our firm under the caption "Independent Public Accountants."
COOPERS & LYBRAND, L.L.P.
Tulsa, Oklahoma
May 29, 1997
II-10
<PAGE>
PROSKAUER ROSE GOETZ & MENDELSOHN LLP
1585 BROADWAY
NEW YORK, NEW YORK 10036-8299
May 29, 1997
Via EDGAR
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
On behalf of our client, Webco Industries, Inc. (the "Company"),
we transmit herewith pursuant to the Securities Act of 1933, as amended,
Amendment No. 3 to a previously filed registration statement on Form S-3 (the
"Registration Statement") with exhibits (file no. 333-22779).
The Registration Statement covers the sale of 223,732 shares of
Common Stock, par value $.01 per share, of the Company (the "Common Stock"),
all of which are being offered by Selling Stockholders of the Company.
The required registration fee was sent by Federal Reserve Wire to the
U.S. Treasury designated lockbox at Mellon Bank, Pittsburgh, PA on
February 27, 1997. The Company received wire confirmation #237.
If the staff has any questions or requires additional information,
please do not hesitate to call me (212-969-3514) or Lawrence H. Budish, Esq.
(212-969-3225).
Respectfully,
/s/ Gregory T. Walters
Gregory T. Walters, Esq.
<PAGE>
Webco Industries, Inc.
PO BOX 100
Sand Springs, Ok. 74063
918-241-1000
May 29, 1997
Mr. Steven C. Duvall
Assistant Director
U.S. Securities and Exchange Commission
Judiciary Square
Mail Stop 3-5
450 Fifth Street, NW
Washington DC, 20549
Re: Webco Industries, Inc. ("Registrant")
Registration Statement on Form S-3
Filed March 5, 1997 as Amended
on May 2, 1997 (File No. 333-22779)
("Registration Statement")
Dear Mr. Duvall:
We respectfully submit the following responses to the comments of the
staff ("Staff") of the Securities and Exchange Commission that were included in
its supplemental comment letter dated May 20, 1997 (the "Letter"), attached as
Exhibit A. Your original comment letter and our initial response are included
as Exhibit B and C. The responses below are numbered to correspond to the
numbered comments in the Letter.
Response to Comment 1
The opinion of Rosenstein Fist and Ringold has been amended to expressly
consent to the attachment of its opinion to Exhibit 5.1 to the Registration
Statement.
Response to Comment 2
AIN No. 1 to APB No. 25 (the "AIN"), paragraph 3, states that compensation
should be recognized for stock gifts in accordance with APB No. 25 "unless ....
(3) the corporation clearly does not benefit from the transaction (e.g., the
stockholder transfers shares to a minor employee with whom he has had a close
relationship over a number of years)." The particular stock gift in question
was directed to substantially all of the Company's non-executive employees
(i.e., predominantly blue-collar workers). In addition, the average stock
grants to these employees were between 75 and 200 shares, with the average
being around 80 shares. This gift was not made out of commitment or moral
obligation, but was made out of the generosity of the owner and as a result of
his long personal relationships with the workers in the plant. As a result,
the exception contained in the AIN was applied and no compensation was
recognized. The only accounting for the transaction that was necessary was for
the related tax benefit to the Company of approximately $190,000, which was
recorded as additional paid-in capital in accordance with APB No. 25, paragraphs
16 and 17.
Our independent accountants, Coopers & Lybrand LLP, reviewed this transaction
at the time and did (as they still do currently) concur with our accounting
treatment and application of the AIN.
<PAGE>
Mr. Steven C. Duvall
May 22, 1997
Page 2
Response to Comment 3
We believe that the aspects of our response to comments 12a and 12b that
detailed the variety of welded products we produce and the wide variation in
processes that are applied to our products does obviate the need for the
specific disclosures you requested as such disclosures in the aggregate are not
meaningful and are therefore not material. As we indicated in our original
response, we are desirous of producing a meaningful, informative and well-
balanced discussion of the Company's financial position, results of operations
and cash flows in MD&A. As a result, each time we prepare a filing, we will
disclose all information we believe material to understanding the historical
results or future trends.
If you have any questions or require additional information, please contact the
undersigned at (918) 241-1094.
Very truly yours,
/s/ Mike Howard
Mike Howard
Vice President of Finance and
Administration and Chief
Financial Officer
Cc Tom Price, American Stock Exchange
George Schulz, Coopers & Lybrand LLP
Lawrence H. Budish, Proskauer Rose Goetz & Mendelsohn LLP
