As filed with the Securities and Exchange Commission on August 12, 1997
Registration No. 33-74528
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-3
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
MOTORCAR PARTS & ACCESSORIES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
NEW YORK 11-2153962
- ------------------------------- ----------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2727 MARICOPA STREET
TORRANCE, CALIFORNIA 90503
(310) 212-7910
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(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
MR. RICHARD MARKS
PRESIDENT
MOTORCAR PARTS & ACCESSORIES, INC.
2727 MARICOPA STREET
TORRANCE, CALIFORNIA 90503
(310) 212-7910
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copy to:
Gary J. Simon, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
(212) 704-6000
---------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
If the only securities on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_] __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_] __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
<PAGE>
================================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
================================================================================
SUBJECT TO COMPLETION, DATED AUGUST 12, 1997
PROSPECTUS
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15,500 SHARES OF COMMON STOCK
(par value $.01 per share)
(Issuable upon exercise of Underwriter's Warrants)
MOTORCAR PARTS & ACCESSORIES, INC.
- --------------------------------------------------------------------------------
This Prospectus is being delivered to the holders of 15,500
underwriter's warrants (the "Underwriter's Warrants") that were issued by
Motorcar Parts & Accessories, Inc. (the "Company") as part of its initial public
offering (the "Initial Public Offering") of common stock, par value $.01 per
share (the "Common Stock"), which was declared effective on March 23, 1994 (the
"Effective Date"). The Underwriter's Warrants entitle the holder to purchase one
share of Common Stock at a price of $7.20, exercisable commencing one year from
the Effective Date for a period of four years. This Prospectus is being
delivered to facilitate the exercise of such Underwriter's Warrants. The
Underwriter's Warrants originally were issued to Laidlaw Equities, Inc.
("Laidlaw"), and its designees, which were the underwriters in the Company's
Initial Public Offering.
The Common Stock is quoted on NASDAQ under the symbol "MPAA". On July
30, 1997, the closing sale price of the Common Stock on NASDAQ was $18.88.
The Company's executive offices are located at 2727 Maricopa Street,
Torrance, California 90503 and its telephone number is (310) 212-7910.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK AND
PROSPECTIVE PURCHASERS SHOULD CAREFULLY CONSIDER THE
FACTORS SPECIFIED UNDER THE CAPTION "RISK FACTORS"
LOCATED ON PAGE 4 OF THIS PROSPECTUS.
---------------------------
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.
================================================================================
Underwriting
Price to Discounts and Proceeds to
Warrantholder(1) Commissions Company(2)
Per Share............. $7.20 --- $7.20
Total(2).............. $111,600 --- $111,600
================================================================================
(1) The exercise price of the Underwriter's Warrants was equal to 120% of the
price of the Common Stock in the Initial Public Offering, which was
arbitrarily determined in connection with the Initial Public Offering and
was not related to the Company's assets, book value, operating results or
net worth. There is no assurance that the market value of the shares of
Common Stock underlying such Underwriter's Warrants will at any time after
exercise thereof exceed the exercise price paid therefor.
(2) Assumes exercise of all of the Underwriter's Warrants. All funds received
from the exercise of such Underwriter's Warrants will be paid to the
Company.
---------------------------
THE DATE OF THIS PROSPECTUS IS AUGUST 12, 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 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, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: New York Regional Office, 7 World Trade Center, Suite
1300, New York, New York 10048; and Chicago Regional Office, Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. 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 an Internet site on the World Wide Web that contains
reports, proxy and information statements and other information filed
electronically by the Company (http://www.sec.gov). Such reports, proxy
statements and other information can also be inspected at the offices of The
Nasdaq Stock Market, 1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus does not contain all the information set forth in the
Post-Effective Amendment on Form S-3 to the Registration Statement on Form SB-2
(No. 33-74528) (the "Registration Statement") of which this Prospectus forms a
part, including exhibits relating thereto, which has been filed with the
Commission in Washington, D.C. Copies of the Registration Statement and the
exhibits thereto may be obtained, upon payment of the fee prescribed by the
Commission, or may be examined without charge, at the offices of the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K and the Company's Amendments
No. 1 and No.2 on Form 10-K/A for the fiscal year ended March 31, 1997 which
were heretofore filed by the Company with the Commission (File No. 0-23538)
pursuant to the 1934 Act and the description of the Company's Common Stock
contained in the Company's Registration Statement on Form 8-A filed on March 2,
1994 under the 1934 Act, are hereby incorporated by reference.
Each document filed subsequent to the date of this Prospectus
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS IS DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY DOCUMENT INCORPORATED
BY REFERENCE IN THIS PROSPECTUS (OTHER THAN EXHIBITS UNLESS SUCH EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH DOCUMENTS). REQUESTS SHOULD BE
DIRECTED TO THE COMPANY, 2727 MARICOPA STREET, TORRANCE, CALIFORNIA 90503 (310)
212-7910, ATTENTION: RICHARD MARKS, PRESIDENT.
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<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be
read in conjunction with, the more detailed information and financial statements
and notes thereto appearing elsewhere or incorporated by reference in this
Prospectus. References to a fiscal year are to the Company's fiscal year ended
March 31 of that year (e.g., references to "fiscal 1997" are to the Company's
fiscal year ended March 31, 1997).
THE OFFERING
Securities Registered............15,500 shares of Common Stock to be issued upon
exercise of the Underwriter's Warrants issued
in connection with the Initial Public Offering.
Each Underwriter's Warrant entitles the holder
to purchase one share of Common Stock for $7.20
until March 22, 1999. The exercise price and
number of shares issuable upon exercise of the
Underwriter's Warrants are subject to
adjustment in certain circumstances.
Common Stock outstanding
prior to the offering hereby.....5,067,455 shares of Common Stock
Common Stock outstanding
after the offering hereby........5,082,955 shares of Common Stock (1)
Common Stock trading symbol
on NASDAQ .................MPAA
- ------------------------------
(1) Assumes exercise of all of the outstanding Underwriter's Warrants. Inasmuch
as the Company has received no firm commitments therefor, there can be no
assurance as to the number of Underwriter's Warrants which will be
exercised.
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<PAGE>
RISK FACTORS
An investment in the shares of Common Stock offered hereby involves a
high degree of risk. Prospective investors should carefully consider the
following risk factors, in addition to the other information set forth in this
Prospectus, in connection with an investment in the shares of Common Stock
offered hereby.
DEPENDENCE ON CERTAIN CUSTOMERS. A significant percentage of the
Company's sales has been concentrated among a relatively small number of
customers. The Company's three largest customers accounted for approximately
29%, 18% and 18%, respectively, of net sales during fiscal 1997. The Company's
four largest customers accounted for approximately 21%, 11%, 20% and 18%,
respectively, of the Company's net sales during fiscal 1996 and approximately
27%, 14% and 12%, respectively, of the Company's net sales during fiscal 1995.
There can be no assurance that this concentration of sales among customers will
not continue in the future. The loss of a significant customer or a substantial
decrease in sales to such a customer would have a material adverse effect on the
Company's sales and operating results. The Company's arrangements with most of
its customers are based on the receipt of purchase orders and otherwise are not
subject to long-term written contracts and generally may be terminated upon
short notice. In addition, customers may demand price concessions from the
Company that could adversely affect profit margins. Also, as of March 31, 1997,
approximately 57% of the Company's accounts receivable were from the Company's
largest customer.
MANAGEMENT OF GROWTH. The Company has experienced significant growth
of its remanufacturing operations, which has placed, and is expected to continue
to place, significant demands on the Company's managerial, technical, financial
and other resources. This growth will require the Company to continue to invest
in its operations, including its inventory control, financial and management
information systems, and to retain, motivate and effectively manage its
employees. If the Company's management is unable to manage growth effectively,
then the quality of the Company's products and services, as well as its
business, financial condition and results of operations, could be materially and
adversely affected.
AVAILABILITY OF CORES. In its remanufacturing operations, the Company
obtains used alternators and starters, commonly known as "cores," from various
sources, principally the Company's existing customers, as trade-ins. The Company
also obtains cores from core brokers, who are dealers specializing in buying and
selling cores. The ability to obtain cores of the types and quantities required
by the Company is essential to the Company's ability to meet demand and expand
production. A sufficient supply of cores may not always be available to the
Company to permit it to fully respond to customer demands for the Company's
remanufactured products. Shortages of cores could result from, among other
things, (i) a time lag between the initial customer demand for a remanufactured
product and the return of cores for such product, (ii) an inability to salvage
cores for re-use due to excessive wear or deterioration or (iii) an inability by
the Company to acquire cores because of increased demand by other
remanufacturers or increased prices charged by core brokers. Although the
Company has not experienced any material core shortages, there can be no
assurance that the Company at all times will have an adequate supply of cores to
meet the demand for its remanufactured products.
ENTRANCE INTO NEW MARKET. During fiscal 1997, the Company entered
into the domestic automotive after-market industry for alternators and starters.
Prior thereto, the Company had remanufactured alternators and starters
exclusively for the import automotive after-market industry. Although the
Company believes that the domestic market represents substantial growth
opportunities, there can be no assurance that the Company's entrance into that
market will be as successful as the Company's historical operations, if at all.
In addition, the entrance into the domestic market involves certain expense,
management resources and preparation for anticipated growth. In particular, the
Company's inventory as of March 31, 1997 was $41,862,000, which
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<PAGE>
represents an increase of $13,311,000 or 46.6% over inventory as of March 31,
1996. The increase includes the addition of approximately $10,800,000 of
inventory during the last half of fiscal 1997 in connection with the Company's
entrance into the domestic market.
COMPETITION. The Company competes with companies involved in the
remanufacture, assembly and distribution of alternators and starters for
imported and domestic automobiles and, to a lesser extent, with companies that
manufacture, assemble and distribute ignition wire sets for automobiles. The
Company also competes with importers and distributors of alternators and
starters for imported and domestic automobiles. Elements of competition in the
Company's industry include price, quality, product performance and service. The
automotive after-market industry is highly competitive and several companies
with which the Company competes are substantially larger and have significantly
greater financial and other resources than the Company. The Company's
competitors include several other relatively large sources of remanufactured
units and numerous smaller, regional rebuilders. Certain of the Company's
competitors sell a wide variety of other automotive parts, thereby establishing
broader name recognition in the entire automotive after-market, including the
Company's market. The entrance of new competitors into or expansion of
operations by existing competitors could have a material adverse effect on the
Company's results of operations.
DEPENDENCE ON KEY PERSONNEL. The Company is dependent on the efforts
and abilities of its Chairman of the Board and Chief Executive Officer, Mel
Marks, its President and Chief Operating Officer, Richard Marks, and its Vice
President of Operations, Steven Kratz. If the Company were to lose the services
of any of Messrs. Marks or Mr. Kratz before a qualified replacement could be
obtained, its business could be materially adversely affected. Each of Messrs.
Marks and Mr. Kratz are a party to employment agreements with the Company, each
of which contain confidentiality and non-competition provisions. In addition,
the Company maintains and is the sole beneficiary of key-person life insurance
policies on the lives of Mel Marks, Richard Marks and Steven Kratz in the
amounts of $1,400,000, $1,650,000 and $1,000,000, respectively.
ENVIRONMENTAL REGULATION. The Company's operations are subject to
federal, state and local laws and regulations governing, among other things,
emissions to air, discharge to waters and the generation, handling, storage,
transportation, treatment and disposal of waste and other materials. The Company
is not subject to any such laws and regulations which are specific to the
automotive after-market industry. The Company believes that its business,
operations and facilities have been and are being operated in compliance in all
material respects with applicable environmental and health and safety laws and
regulations, many of which provide for substantial fines and criminal sanctions
for violations. However, the operation of automotive parts remanufacturing
plants entails risks in these areas, and there can be no assurance that the
Company will not incur material costs or liabilities. In addition, potentially
significant expenditures could be required in order to comply with evolving
environmental and health and safety laws, regulations or requirements that may
be adopted or imposed in the future. The Company believes, although there can be
no assurance, that the overall impact of compliance with regulations and
legislation protecting the environment will not have a material effect on the
Company's future financial position or results of operations.
CONTROL BY PRINCIPAL SHAREHOLDERS. Messrs. Marks, The Richard Marks
Trust and The Debra Schwartz Trust (the trusts, collectively, the "Family
Trusts") currently own approximately 27.8% of the outstanding Common Stock. As a
result of their holdings, these principal shareholders, voting together, have
the ability to significantly influence the election of the members of the
Company's Board of Directors and control the affairs and management of the
Company and the outcome of any issues which may be subject to a vote of the
Company's shareholders, including amendments to the Company's Certificate of
Incorporation, mergers, share
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<PAGE>
exchanges, the sale of all or substantially all of the Company's assets, going
private transactions and other fundamental transactions. Such control could
adversely affect the market price of the Common Stock.
ABSENCE OF DIVIDENDS. Except for distributions made to shareholders
in amounts sufficient to reimburse the shareholders for federal and state income
tax liabilities arising from the Company's former status as an "S" corporation,
the Company has not declared or paid dividends on its Common Stock since its
inception and does not intend to declare or pay any dividends to its
shareholders in the foreseeable future. The Company currently intends to
reinvest earnings, if any, in the development and expansion of its business. The
Company's current agreement with its bank prohibits payment of dividends without
the bank's prior consent.
POSSIBLE VOLATILITY OF STOCK PRICE. The market price of the Common
Stock could be subject to significant fluctuations in response to variations in
financial results or announcements of material events by the Company or its
competitors. Regulatory changes or changes in the general condition of the
economy or the financial markets could also adversely affect the market price of
the Common Stock.
ANTI-TAKEOVER EFFECTS OF PREFERRED STOCK. The Company's Certificate
of Incorporation authorizes the issuance of "blank check" preferred stock with
such designations, rights and preferences as may be determined from time to time
by the Board of Directors. Accordingly, the Board of Directors is empowered,
without shareholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting or other rights which could adversely affect the
relative voting power or other rights of the holders of the Company's Common
Stock. In the event of issuance, the preferred stock could be used, under
certain circumstances, as a method of discouraging, delaying or preventing a
change in control of the Company. Although the Company has no present intention
to issue any shares of its preferred stock, there can be no assurance that the
Company will not do so in the future. If the Company issues preferred stock, the
issuance may have a dilutive effect upon the holders of the Company's Common
Stock, including the purchasers of the shares being offered hereby.
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<PAGE>
USE OF PROCEEDS
The net proceeds which may be realized by the Company upon the
exercise of all of the Underwriter's Warrants, after deduction of expenses of
this offering, will be approximately $105,600. Inasmuch as the Company has
received no firm commitments for the exercise of the Underwriter's Warrants, no
assurance can be given that all or a substantial portion of the Underwriter's
Warrants will be exercised. The Company currently intends to use all of the net
proceeds received from the exercise of the Underwriter's Warrants for working
capital purposes.
SELLING WARRANTHOLDERS
The Underwriter's Warrants were issued in connection with the Initial
Public Offering to the Underwriters, and their designees, and are currently held
by the following selling warrantholders (the "Selling Warrantholders"):
Shares of
Common Stock Owned
after Offering
-----------------
Shares of
Common Stock Shares of
Owned Prior to Common Stock
Offering (1) to be Sold (1) Number Percent
-------------- -------------- -------- -------
Andrew J. Cahill 8,500 8,500 0 0%
Caesar Fraschilla 4,000 4,000 0 0%
Ambrose William Jackson III 1,000 1,000 0 0%
Frank Whitmarsh 1,000 1,000 0 0%
Robin Wittgenstein 1,000 1,000 0 0%
---------- ----------
Total 15,500 15,500
---------- ----------
- -----------------
(1) Represents Common Stock issuable upon exercise of the Underwriter's
Warrants.
The Selling Warrantholders have informed the Company that they intend
to offer and sell the Common Stock issuable upon exercise of the Underwriter's
Warrants pursuant to this Prospectus. See "Plan of Distribution." None of such
individuals is affiliated with the Company. Except as described herein, none of
the Selling Warrantholders has had any material relationship with the Company
within the past three years.
Each of the Selling Warrantholders is a current or former employee of
Laidlaw. The Underwriter's Warrants were purchased for $.01 per Warrant, or an
aggregate of $155. In addition, in connection with the Initial Public Offering,
the Company paid to the Underwriters underwriting discounts and commissions of
10% and a non-accountable expense allowance of 3% of the gross proceeds of the
Initial Public Offering.
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<PAGE>
PLAN OF DISTRIBUTION
The Common Stock issuable upon exercise of the Underwriter's Warrants
is being offered directly by the Company pursuant to the terms of the
Underwriter's Warrants. The distribution of the Common Stock issuable upon
exercise of the Underwriter's Warrants may be effected in one or more
transactions that may take place on NASDAQ, including ordinary broker's
transactions, privately-negotiated transactions or through sales to one or more
broker/dealers for resale of such securities as principals, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. Usual and customary or specifically negotiated
brokerage fees or commissions may be paid by these holders in connection with
such sales. No underwriter is being utilized in connection with this offering.
The Company will not receive any proceeds of such sales.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 722 of the New York Business Corporation Law ("NYBCL")
permits, in general, a New York corporation to indemnify any person made, or
threatened to be made, a party to an action or proceeding by reason of the fact
that he or she was a director or officer of the corporation, or served another
entity in any capacity at the request of the corporation, against any judgments,
fines, amounts paid in settlement and reasonable expenses, including attorneys'
fees actually and necessarily incurred as a result of such action or proceeding,
or any appeal therein, if such person acted in good faith, for a purpose he or
she reasonably believed to be in, or, in the case of service for another entity,
not opposed to, the best interests of the corporation and, in criminal actions
or proceedings, in addition had no reasonable cause to believe that his or her
conduct was unlawful. Section 723 of the NYBCL permits the corporation to pay in
advance of a final disposition of such action or proceeding the expenses
incurred in defending such action or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount as, and to the
extent, required by statute. Section 721 of the NYBCL provides that
indemnification and advancement of expense provisions contained in the NYBCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled, provided no
indemnification may be made on behalf of any director or officer if a judgment
or other final adjudication adverse to the director or officer establishes that
his or her acts were committed in bad faith or were the result of active or
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Article Seventh of the Company's Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), provides, in
general, that the Company may indemnify, to the fullest extent permitted by
applicable law, every person threatened to be made a party to any action, suit
or proceeding by reason of the fact that such person is or was an officer or
director or was serving at the request of the Company as a director, officer,
employee, agent or trustee of another corporation, business, partnership, joint
venture, trust, employee benefit plan, or other enterprise, against expenses,
judgments, fines and amounts paid in settlement in connection with such suit or
proceeding. Article Seventh also provides that the Company may indemnify and
advance expenses to those persons as authorized by resolutions of a majority of
the Board of Directors or shareholders' agreement, directors' or officers'
liability insurance policies, or any other form of indemnification agreement.
In accordance with that provision of the Certificate of
Incorporation, the Company shall indemnify any officer or director (including
officers and directors serving another corporation, partnership, joint
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<PAGE>
venture, trust, employee benefit plan or other enterprise in any capacity at the
Company's request) made, or threatened to be made, a party to an action or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that he or she was serving in any of those capacities against
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorneys' fees) incurred as a result of such action or proceeding.
Indemnification would not be available under Article Seventh of the Certificate
of Incorporation if a judgment or other final adjudication adverse to such
director or officer establishes that (i) his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and, in either
case, were material to the cause of action so adjudicated, or (ii) he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. Article Seventh of the Certificate of
Incorporation further stipulates that the rights granted therein are contractual
in nature.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "1933 Act") may be permitted to directors, officers
or persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act and is
therefore unenforceable.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
the Company by Parker Chapin Flattau & Klimpl, LLP, 1211 Avenue of the Americas,
New York, New York 10036.
EXPERTS
The financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K have been
audited by Richard A. Eisner & Co., LLP, independent certified public
accountants, as set forth in their report thereon included therein and
incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
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<PAGE>
====================================== ======================================
NO DEALER, SALESPERSON OR ANY OTHER
PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS
PROSPECTUS WITH RESPECT TO THE
OFFERING MADE HEREBY. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY
ANY OF THE SECURITIES OFFERED HEREBY
TO ANY PERSON OR BY ANYONE IN ANY 15,500 SHARES OF COMMON STOCK
JURISDICTION IN WHICH SUCH OFFER OR (Issuable upon the exercise of
SOLICITATION MAY NOT LAWFULLY BE MADE. Underwriter's Warrants)
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 INFORMATION SET FORTH
HEREIN OR IN THE BUSINESS OF THE
COMPANY SINCE THE DATE HEREOF.
TABLE OF CONTENTS
MOTORCAR PARTS & ACCESSORIES, INC.
PAGE
----
Available Information............... 2
Incorporation of Certain
Documents by Reference............. 2
Prospectus Summary.................. 3 ----------
Risk Factors........................ 4 PROSPECTUS
Use of Proceeds..................... 7 ----------
Selling Warrantholders ............. 7
Plan of Distribution ............... 8
Indemnification for Securities Act
Liabilities........................ 8
Legal Matters....................... 9
Experts ............................ 9 August 12, 1997
====================================== ======================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which will be
paid by the Company in connection with the issuance and distribution of the
securities being registered on this post-effective amendment. The Selling
Warrantholders will not incur any of the expenses set forth below. All amounts
shown are estimates.
Legal fees and expenses...................... $ 5,000
Miscellaneous expenses....................... $ 1,000
-------
Total.................................... $ 6,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 722 of the New York Business Corporation Law ("NYBCL")
permits, in general, a New York corporation to indemnify any person made, or
threatened to be made, a party to an action or proceeding by reason of the fact
that he or she was a director or officer of the corporation, or served another
entity in any capacity at the request of the corporation, against any judgments,
fines, amounts paid in settlement and reasonable expenses, including attorneys'
fees actually and necessarily incurred as a result of such action or proceeding,
or any appeal therein, if such person acted in good faith, for a purpose he or
she reasonably believed to be in, or, in the case of service for another entity,
not opposed to, the best interests of the corporation and, in criminal actions
or proceedings, in addition had no reasonable cause to believe that his or her
conduct was unlawful. Section 723 of the NYBCL permits the corporation to pay in
advance of a final disposition of such action or proceeding the expenses
incurred in defending such action or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount as, and to the
extent, required by statute. Section 721 of the NYBCL provides that
indemnification and advancement of expense provisions contained in the NYBCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled, provided no
indemnification may be made on behalf of any director or officer if a judgment
or other final adjudication adverse to the director or officer establishes that
his or her acts were committed in bad faith or were the result of active or
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
Article Seventh of the Company's Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), provides, in
general, that the Company may indemnify, to the fullest extent permitted by
applicable law, every person threatened to be made a party to any action, suit
or proceeding by reason of the fact that such person is or was an officer or
director or was serving at the request of the Company as a director, officer,
employee, agent or trustee of another corporation, business, partnership, joint
venture, trust, employee benefit plan, or other enterprise, against expenses,
judgments, fines and amounts paid in settlement in connection with such suit or
proceeding. Article Seventh also provides that the Company may indemnify and
advance expenses to those persons as authorized by resolutions of a majority of
the Board of Directors or shareholders' agreement, directors' or officers'
liability insurance policies, or any other form of indemnification agreement.
II - 1
<PAGE>
In accordance with that provision of the Certificate of
Incorporation, the Company shall indemnify any officer or director (including
officers and directors serving another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at the
Company's request) made, or threatened to be made, a party to an action or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that he or she was serving in any of those capacities against
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorneys' fees) incurred as a result of such action or proceeding.
Indemnification would not be available under Article Seventh of the Certificate
of Incorporation if a judgment or other final adjudication adverse to such
director or officer establishes that (i) his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and, in either
case, were material to the cause of action so adjudicated, or (ii) he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. Article Seventh of the Certificate of
Incorporation further stipulates that the rights granted therein are contractual
in nature.
ITEM 16. EXHIBITS.
Number Description of Exhibit
- ------ ----------------------
5.1 Opinion of Parker Chapin Flattau & Klimpl, LLP.
23.1 Consent of Richard A. Eisner & Co., LLP.
23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (included in their
opinion filed as Exhibit 5.1).
II - 2
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II - 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 on Form S-3 to Form SB-2 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York on the 31st day of July, 1997.
MOTORCAR PARTS & ACCESSORIES, INC.
By: /S/ MEL MARKS
-------------------------------
Mel Marks
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 on Form S-3 to Form SB-2 has been signed below by
the following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/S/ MEL MARKS Chairman of the Board and Chief July 31, 1997
- -------------------------- Executive Officer
Mel Marks
/S/ RICHARD MARKS President and Chief Operating July 31, 1997
- -------------------------- Officer
Richard Marks
/S/ PETER BROMBERG Chief Financial Officer July 31, 1997
- --------------------------
Peter Bromberg
/S/ SELWYN JOFFE Director July 31, 1997
- --------------------------
Selwyn Joffe
/S/ MEL MOSKOWITZ Director July 31, 1997
- --------------------------
Mel Moskowitz
/S/ MURRAY ROSENZWEIG Director July 31, 1997
- --------------------------
Murray Rosenzweig
II - 4
[LETTERHEAD]
PARKER CHAPIN FLATTAU & KLIMPL, LLP
1211 Avenue of the Americas
New York, New York 10036
August 8, 1997
Motorcar Parts & Accessories, Inc.
2727 Maricopa Street
Torrance, California 90503
Gentlemen:
We have acted as counsel to Motorcar Parts & Accessories, Inc. (the
"Company") in connection with the Post-Effective Amendment No. 1 on Form S-3 to
the Registration Statement on Form SB-2 (Registration No. 33-74528) filed by the
Company with the Securities and Exchange Commission (the "Registration
Statement") relating to 15,500 shares (the "Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock"), which may be issued upon
the exercise of underwriter's warrants (the "Underwriter's Warrants").
In connection with the foregoing, we have examined, among other
things, the Registration Statement, the Underwriter's Warrants and originals or
copies, satisfactory to us, of all such corporate records and of all such
agreements, certificates and other documents as we have deemed relevant and
necessary as a basis for the opinion hereinafter expressed. In such examination,
we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity with the original
documents of documents submitted to us as copies. As to any facts material to
such opinion, we have, to the extent that relevant facts were not independently
established by us, relied on certificates of public officials and certificates,
oaths and declarations of officers or other representatives of the Company.
Based upon the foregoing, we are of the opinion that the Shares, when
paid for and issued in accordance with the terms of the Underwriter's Warrants,
will be legally issued, fully paid and non-assessable.
<PAGE>
We hereby consent to the use of our name under the caption "Legal
Matters" in the Prospectus constituting a part of the Registration Statement and
to the filing of a copy of this opinion as an exhibit thereto.
Very truly yours,
/s/ Parker Chapin Flattau & Klimpl, LLP
PARKER CHAPIN FLATTAU & KLIMPL, LLP
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of Motorcar Parts & Accessories, Inc. (the "Company") of our report
dated May 16, 1997 relating to the balance sheets of the Company as of March 31,
1997 and 1996 and the related statements of income, changes in shareholders'
equity and cash flows for each of the years in the three-year period ended March
31, 1997 included in the Company's annual report on Form 10-K for the fiscal
year ended March 31, 1997. We also consent to the reference to our firm under
the caption "Experts" in the prospectus.
/s/ Richard A. Eisner & Company, LLP
Richard A. Eisner & Company, LLP
New York, New York
August 5, 1997
