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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BLYTH INDUSTRIES, INC.
(Exact name of Registrant as specified in charter)
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<S> <C> <C>
DELAWARE 3999 36-2984916
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
</TABLE>
100 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
(203) 661-1926
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
--------------------------
ROBERT B. GOERGEN
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
BLYTH INDUSTRIES, INC.
100 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
(203) 661-1926
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
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<S> <C>
BRUCE D. KREIGER, ESQ. HAROLD B. FINN III, ESQ.
Blyth Industries, Inc. Finn Dixon & Herling LLP
100 Field Point Road One Landmark Square
Greenwich, Connecticut 06830 Stamford, Connecticut 06901
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC: From
time to time after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.02 per share..... 331,239 shares $35.25 $11,676,174 $3,538.24
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) based upon the average of the high and low
prices of the Common Stock of the Registrant on the New York Stock Exchange
on April 25, 1997.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PROSPECTUS
331,239 SHARES
BLYTH INDUSTRIES, INC.
COMMON STOCK
All of the 331,239 shares (the "Shares") of Common Stock, par value $0.02
per share (the "Common Stock"), of Blyth Industries, Inc. (the "Company") being
offered hereby are being offered by the Selling Stockholders named below. The
Shares were issued in connection with the acquisition by the Company of New
Ideas International, Inc. The Company is registering the sale of the Shares
pursuant to the Registration Rights Agreement described under "Plan of
Distribution." See "Selling Stockholders" and "Plan of Distribution." The
Company will not receive any of the proceeds from the sale of Shares by the
Selling Stockholders.
The Common Stock is traded on the New York Stock Exchange ("NYSE") under the
symbol "BTH." On April 28, 1997, the last reported sales price of the Common
Stock on the NYSE was $35 3/8 per share.
SEE "RISK FACTORS" ON PAGE 2 FOR A DISCUSSION OF CERTAIN RISK AND OTHER
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
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.
No underwriting commissions or discounts will be paid by the Company in
connection with this offering. Estimated expenses payable by the Company in
connection with this offering are $35,000. The aggregate proceeds to the Selling
Stockholders from the sale of the Shares will be the purchase price of the
Shares which are sold less the aggregate agents' commissions and underwriters'
discounts, if any, and other expenses of distribution not borne by the Company.
The Shares may be offered and sold from time to time by the Selling
Stockholders. The Selling Stockholders will act independently of the Company in
making decisions with respect to the timing, manner and size of each sale. Under
the Registration Rights Agreement described below under "Plan of Distribution,"
the Selling Stockholders have agreed to sell the Shares offered hereby only to
or through Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") (so long
as DLJ charges fees that are normal and customary for nationally-known
investment banking houses for similar transactions). Sales may be made on the
New York Stock Exchange or in private transactions or in a combination of such
methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. See "Plan of Distribution." The Selling
Stockholders and any agents, broker-dealers or underwriters that participate in
the distribution of the Shares may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Act"), and any
commission received by them and any profit on the resale of the Common Stock
purchased by them may be deemed to be underwriting discounts or commissions
under the Act. The Company has agreed to indemnify the Selling Stockholders
against certain liabilities, including certain liabilities under the Act. See
"Plan of Distribution."
APRIL , 1997
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THE COMPANY
Blyth Industries, Inc. designs, manufactures and markets an extensive line
of candles and home fragrance products, including scented candles, outdoor
citronella candles, potpourri and other home and auto fragrance products, and
markets a broad range of related accessories and decorative gift bags. These
products are sold under various brand names, including the names Ambria-TM-,
Aromatic's-TM-, Candle Corporation of America-Registered Trademark-,
Canterbury-TM-, Carolina Designs-TM-, Colonial Candle of Cape
Cod-Registered Trademark-, Eternalux-Registered Trademark-, FilterMate-TM-,
Jeanmarie Creations-Registered Trademark-, L'Aroma-Registered Trademark-, Mrs.
Baker's Original Recipe-Registered Trademark-, and PartyLite
Gifts-Registered Trademark-. The Company markets its products through a wide
variety of distribution channels, including a network of sales representatives
and home party plan consultants serving the consumer market and distributors
serving the food service market and the religious market. Consumable products,
which include candles, scented candles, outdoor citronella candles, potpourri,
other fragrance products and decorative gift bags, account for approximately 65%
of the Company's net sales and candle accessories account for the balance of net
sales. The Company believes that it is a leading supplier in the candle industry
based on net sales and the breadth of distribution channels served.
The Company's net sales have grown substantially in the last 5 years, with
internal growth and acquisitions contributing approximately 90% and 10%,
respectively, to such growth. Internal growth has been generated by increased
sales to the consumer market (including increased sales of acquired product
lines), the introduction of new products and product line extensions and
geographic expansion.
The Company has completed numerous acquisitions and investments since its
formation in 1977, and has successfully integrated the acquired businesses and
product lines into the Company's operations. In February 1996, the Company
entered into a strategic partnering arrangement with Hallmark Cards,
Incorporated, pursuant to which the Company acquired the Canterbury candle
product line and related manufacturing equipment and agreed to provide candles
and candle accessories to certain Hallmark stores and other accounts. In
December 1996, the Company acquired New Ideas International, Inc., a
manufacturer of home and auto fragrance products, including FilterMate, a
scented accessory for home heating and air conditioning systems. In recent
years, the Company has also increased its equity ownership of 2 European candle
manufacturers, Colony Gifts and Eclipse Candles, to 50% and 75%, respectively,
and has certain rights to acquire the remaining equity. Finally, on March 25,
1997, the Company entered into an agreement to acquire Endar Corp., a
manufacturer of potpourri, scented candles and other fragrance products. The
Company expects to issue between 1,100,000 and 1,500,000 shares of its Common
Stock in the transaction. The transaction is subject to satisfaction of certain
conditions and is anticipated to be consummated prior to the end of June 1997.
The business strategy of the Company has evolved into a strategy focusing on
the broad category of home fragrance and candle products. This strategy flows
from the Company's belief that customers "wardrobe" their homes through the use
of candles, potpourri and other fragrance products in different fragrances,
colors and forms. As a result of this, the Company believes that candles and
potpourri are replacing scented air-freshener products. The Company's strategy
is to sell high-quality fragrance and candle products, with a primary focus on
the United States and international consumer markets, which provides greater
opportunities for growth and product differentiation and higher profit margins
than do other markets for fragrance and candle products. The Company believes
that increased expenditures on the home and garden, increased emphasis on home
entertaining and home fragrance and the gain in popularity of traditional,
natural--and now scented--products have resulted in growth in demand for candles
and related products and, recently, scented products. The Company's operating
strategy has been, and will continue to be, to focus on the consumer market, to
grow through new product development and geographic expansion, to market its
products through all major domestic distribution channels with product offerings
tailored to the requirements of each channel, to emphasize customer service, to
realize efficiencies and cost improvements in manufacturing and distribution and
to grow through international expansion and acquisitions. The Company has been
successful in identifying new product opportunities to
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balance its sales and operating results throughout the fiscal year. The Company
has identified international expansion as a key opportunity for future growth.
Unless otherwise indicated, all references in this Prospectus to the Company
refer to Blyth Industries, Inc., a Delaware corporation incorporated in 1977,
and its subsidiaries. The Company's principal executive offices are located at
100 Field Point Road, Greenwich, Connecticut 06830 and its telephone number is
(203) 661-1926.
RISK FACTORS
Prospective purchasers of the Common Stock offered hereby should carefully
consider the following factors, in addition to the information contained
elsewhere in this Prospectus, in evaluating an investment in the Common Stock.
RISK OF INABILITY TO MAINTAIN GROWTH RATE
The Company has grown substantially in recent years. The Company expects
that its future growth will continue to be generated primarily by sales to the
faster growing consumer market, rather than the food service and religious
markets, which have grown more slowly than the consumer market and which the
Company expects will continue to do so. The Company believes that its ability to
continue to grow at a rate comparable to its historic growth rate will depend on
continuing market acceptance of its existing products, the successful
development and introduction of new products, the increase in production and
distribution capacity to meet demand and the continued successful implementation
of its strategy. The candle industry is driven by consumer tastes. Accordingly,
there can be no assurance that the Company's existing or future products will
maintain or achieve market acceptance. Although the Company's strategy has been
successful to date, the Company expects that, as the Company grows, it will
become more difficult to maintain its growth rate. In addition, the Company has
grown in part through acquisitions and there can be no assurance that the
Company will be able to continue to identify suitable acquisition candidates, to
consummate acquisitions on terms favorable to the Company, to finance
acquisitions or successfully to integrate acquired operations. No assurance can
be given that the Company will continue to grow at a rate comparable to its
historic growth rate.
ABILITY TO RESPOND TO INCREASED PRODUCT DEMAND
The Company's continuing and significant internal growth has necessitated
increases in personnel, expansion of its production and distribution facilities
and enhancement of its management information systems. The Company's ability to
meet future demand for its products in a timely and efficient manner will be
dependent upon its success in (1) training, motivating and managing new
employees, including a number of new senior managers, (2) bringing new
production and distribution facilities on line in a timely manner, (3) improving
management information systems in order to continue to be able to respond
promptly to customer orders and (4) improving its ability to forecast
anticipated product demand in order to continue to fill customer orders
promptly. If the Company were unable to meet future demand for its products in a
timely and efficient manner, its operating results could be materially adversely
affected.
RISKS ASSOCIATED WITH INTERNATIONAL SALES AND FOREIGN-SOURCED PRODUCTS
The Company sources a portion of its candle accessories and decorative gift
bags (which together accounted for approximately 35% of the Company's net sales
in fiscal 1997) from independent manufacturers in the Pacific Rim, Europe and
Mexico. In addition, since 1990, the Company's international business has grown
at a faster rate than sales in the United States, and international net sales
now represent approximately 15% of the Company's net sales. The Company is
subject to the following risks inherent in foreign sales and manufacturing:
fluctuations in currency exchange rates; economic and political instability;
transportation delays; difficulty in maintaining quality control; restrictive
actions by
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foreign governments; nationalizations; the laws and policies of the United
States affecting importation of goods (including duties, quotas and taxes); and
trade and foreign tax laws.
DEPENDENCE ON KEY MANAGEMENT PERSONNEL
The Company's success depends to a significant degree upon the continued
contributions of its key management personnel, particularly its Chairman, Chief
Executive Officer and President, Robert B. Goergen. The Company does not have
employment contracts with any of its key management personnel, nor does the
Company maintain any key person life insurance policies. The loss of any of the
Company's key management personnel could have a material adverse effect on the
Company.
COMPETITION
The Company's business is highly competitive, both in terms of price and new
product introductions. The candle and fragrance products industry is highly
fragmented, with numerous suppliers serving 1 or more of the distribution
channels served by the Company. The Company believes that it is the only
supplier of candles serving the breadth of distribution channels that it serves.
The Company's principal competitors include The Yankee Candle Company Inc.,
which supplies department and gift stores and specialty chains and which also
operates retail stores, and Candle Lite (a unit of Lancaster Colony
Corporation), which is the leading supplier of candles to mass merchants. The
Company's potpourri competitors include Aromatique, Inc., Tsumura International,
Inc., Seasons, Inc., Scentex, Inc. and Endar Corp. (which the Company has agreed
to acquire, as discussed above). In addition, S. C. Johnson & Son, Inc.'s
candles under the Off! and Glade brand names compete with the Company's
citronella and scented candle products. Similarly, other manufacturers of
fragrance products (such as Dial Corporation's Renuzit line of fragrance
products) compete with the Company's scented candle products, potpourri and home
fragrance products. Because there are relatively low barriers to entry to the
candle and fragrance products industry, the Company may face future competition
from other companies, which may have substantially greater financial and
marketing resources than those available to the Company. From time to time
during the year-end holiday season, the Company experiences competition from
candles manufactured in foreign countries, particularly China. In addition,
certain of the Company's competitors focus on a particular geographic or
single-product market and attempt to gain or maintain market share solely on the
basis of price.
POSSIBLE VOLATILITY OF STOCK PRICE
The market price of the Common Stock has fluctuated substantially in recent
months. The price of the Common Stock may be subject to fluctuations in the
future in response to operating results, general market movements and other
factors. In addition, the stock market in recent years has experienced price and
volume fluctuations that often have been unrelated or disproportionate to the
operating performance of companies. These fluctuations, as well as general
economic and market conditions, may adversely affect the market price of the
Common Stock.
STOCK OWNERSHIP OF AND CONTROL BY MANAGEMENT
Robert B. Goergen, the Chairman, Chief Executive Officer and President of
the Company, beneficially owns approximately 10,206,270 shares of the
outstanding Common Stock. Accordingly, although Mr. Goergen does not own a
majority of the outstanding Common Stock, he will continue to be the largest
single stockholder and therefore will have the ability effectively to control
the management and affairs of the Company. The directors and executive officers
of the Company as a group, including Mr. Goergen, beneficially own 12,070,982
shares of the outstanding Common Stock. If such persons vote their shares of
Common Stock in the same manner, they will have, as a practical matter,
sufficient voting power to elect the entire Board of Directors of the Company,
and, in general, to determine the outcome of any corporate transactions or other
matters submitted to the stockholders for approval, including mergers and sales
of
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assets, and to prevent, or cause, a change in control of the Company. Also,
because of their positions as executive officers and directors of the Company,
such persons will have the ability, if they act together, generally to direct
the business, affairs and operations of the Company.
SHARES ELIGIBLE FOR FUTURE SALE
As of April 28, 1997, a total of 31,423,168 shares of Common Stock were
outstanding, including 19,406,186 shares of Common Stock (which includes the
331,239 shares of Common Stock offered in the offering made hereby (the
"Offering")) that are tradeable in the public market without restriction unless
purchased by affiliates of the Company and approximately 12,016,982 shares of
Common Stock that may be sold subject to the holding period, volume and other
limitations of Rule 144 under the Act. Also, the Company intends to issue Common
Stock in connection with the acquisition of Endar Corp., and is expected to be
contractually obligated to register the resale of such shares in the fall of
1997. Sales of a substantial number of shares of Common Stock in the public
market, or the perception that such sales could occur, could adversely affect
the prevailing market price of the Common Stock. Under certain circumstances,
the Company may also be contractually required to register additional shares of
Common Stock of the Selling Stockholders in May 1999, as described in "Plan of
Distribution."
ANTI-TAKEOVER PROVISIONS
The Company's Restated Certificate of Incorporation and Restated By-laws and
the Delaware General Corporation Law contain provisions which may delay or
prevent, or make more costly, a change in control of the Company or the
replacement of incumbent management.
DIVIDENDS
The Company does not intend to pay cash dividends on the Common Stock for
the foreseeable future. The Company intends to retain future earnings for
reinvestment in its business.
SELLING STOCKHOLDERS
The Selling Stockholders listed below received their shares of Common Stock
in connection with the Company's acquisition of New Ideas International, Inc., a
Georgia corporation ("New Ideas"), by way of a merger (the "Merger") of New
Ideas with and into a wholly owned subsidiary of the Company. The information
set forth below and under "Plan of Distribution" is based upon information
provided by the Selling Stockholders. The Selling Stockholders may sell all,
some or none of the Shares being offered. The Selling Stockholders were
shareholders, directors, officers, and/or employees of New Ideas. Except for Mr.
Gibbs, who now serves as president of a subsidiary of the Company, and Mr. Vick,
who initially served as an employee but has ceased to so serve, none of the
Selling Stockholders has had within the past 3 years any material relationship
with the Company or any of its predecessors or affiliates.
In connection with the Merger and pursuant to the terms of a Registration
Rights Agreement (the "Registration Rights Agreement"), dated as of December 31,
1996, among the Company and the Selling Stockholders, the Company agreed to use
its best efforts to register the Common Stock issued to the
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Selling Stockholders for offer or sale to the public. The registration of the
Shares, however, does not necessarily mean that all or any of the Shares will be
sold by the Selling Stockholders.
<TABLE>
<CAPTION>
NUMBER OF SHARES NUMBER OF SHARES
OF COMMON STOCK MAXIMUM NUMBER OF OF COMMON STOCK TO PERCENTAGE
BENEFICIALLY SHARES TO BE BE BENEFICIALLY OWNERSHIP AFTER
OWNED OFFERED BY SELLING OWNED AFTER COMPLETION OF THE
PRIOR TO OFFERING STOCKHOLDER AS PART COMPLETION OF THE OFFERING (1),
SELLING STOCKHOLDER (1) OF THE OFFERING OFFERING (1), (2) (2), (3)
- ---------------------------------- ----------------- ------------------- ------------------- -------------------------
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James T. Baxter 73,603 36,801 36,802 *
Langdon S. Flowers, Jr. 196,298 98,146 98,152 *
George T. Gibbs 196,298 98,146 98,152 *
Douglas M. Vick 196,298 98,146 98,152 *
</TABLE>
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* Less than 1 percent
(1) The persons named in the table have sole voting and investment power with
respect to all shares of Common Stock beneficially owned by them, subject to
community property laws, where applicable.
(2) Assumes the sale of all the Shares offered hereby.
(3) Based upon 31,423,168 shares of Common Stock outstanding on April 28, 1997.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the Shares
offered hereby.
PLAN OF DISTRIBUTION
The Shares may be offered and sold from time to time by the Selling
Stockholders. The Selling Stockholders will act independently of the Company in
making decisions with respect to the timing, manner and size of each sale. Under
the Registration Rights Agreement, the Selling Stockholders have agreed to sell
the Shares offered hereby only to or through DLJ (so long as DLJ charges fees
that are normal and customary for nationally-known investment banking houses for
similar transactions). Sales may be made on the New York Stock Exchange or in
private transactions or in a combination of such methods of sale, at fixed
prices that may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Selling Stockholders may from time to time enter into short sales and use the
Shares to cover such short positions. The Selling Stockholders will effect such
transactions by selling Shares to or through DLJ (so long as DLJ charges fees
that are normal and customary for nationally-known investment banking houses for
similar transactions), and DLJ (or any other brokers or other agents permitted
pursuant to the terms of the Registration Rights Agreement) may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders or the purchasers of the shares for whom DLJ or such other
brokers or agents may act as agents or to whom they sell as principal or both.
The Selling Stockholders and any persons who participate in the distribution of
the Shares may be deemed to be underwriters within the meaning of the Act, and
any discounts, commissions or concessions received by them and any discounts,
commissions or concessions provided pursuant to the sale of Shares by them might
be deemed to be underwriting discounts and commissions under the Act. In
addition, any Shares covered by this Prospectus which qualify for resale
pursuant to Rule 144 promulgated under the Act may be resold pursuant to Rule
144 rather than pursuant to this Prospectus.
In order to comply with the securities laws of certain states, if
applicable, the Common Stock may be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Common Stock may not be sold unless the Common Stock has been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.
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The Company has agreed in the Registration Rights Agreement to register the
shares of Common Stock received by the Selling Stockholders under applicable
federal securities laws under certain circumstances and at certain times.
Pursuant to the Registration Rights Agreement, the Company has filed a
registration statement related to the Shares offered hereby and has agreed to
keep such registration statement effective until the earlier of (i) the date on
which the Selling Stockholders may resell shares of Common Stock received by
them in the Merger pursuant to Rule 144 (January 1, 1998) and (ii) the
completion of the sale of all of the Shares registered thereunder. If any of the
Selling Stockholders are unable to sell all of the remaining shares of Common
Stock received by them in the Merger pursuant to Rule 144 within a 3-month
period on the date which is 15 business days after the date on which the Company
files its Annual Report on Form 10-K for its fiscal year ended January 31, 1999,
the Company is obligated to file another registration statement with respect to
the resale by the Selling Stockholders of those remaining shares of Common
Stock. Based upon the beneficial ownership of the Selling Stockholders, after
giving effect to the consummation of the Offering, the Company does not
presently expect that it will be required to file a registration statement in
1999 pursuant to the Registration Rights Agreement.
The Company will pay substantially all of the expenses incident to the
offering and sale of the Shares to the public, other than commissions,
concessions and discounts of underwriters, dealers or agents. Such expenses
(excluding such commissions, concessions and discounts) are estimated to be
$35,000. The Registration Rights Agreement provides for cross-indemnification of
the Selling Stockholders and the Company to the extent permitted by law for
certain liabilities, including liabilities arising under the Act.
There is no assurance that any of the Selling Stockholders will offer for
sale or sell any or all of the Shares covered by this Prospectus.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Finn Dixon &
Herling LLP, Stamford, Connecticut. As of the date hereof, certain attorneys who
are partners of, or employed by, Finn Dixon & Herling LLP, and who have provided
advice with respect to this Offering, beneficially own an aggregate of 10,100
shares of Common Stock.
EXPERTS
The audited consolidated financial statements and schedules of the Company
as of January 31, 1996 and 1997 and for each of the 3 fiscal years ending
January 31, 1995, 1996 and 1997, incorporated by reference from the Company's
Annual Report on Form 10-K for the fiscal year ended January 31, 1997 into this
Prospectus and elsewhere in the Registration Statement of which this Prospectus
forms a part, have been incorporated by reference in reliance upon the reports
of Grant Thornton LLP, independent certified public accountants, and upon the
authority of said firm as experts in accounting and auditing.
AVAILABLE INFORMATION
A Registration Statement on Form S-3 under the Act, including amendments
thereto, relating to the Shares offered hereby has been filed by the Company
with the Securities and Exchange Commission (the "Commission"), Washington, D.C.
This Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Company and the Shares offered hereby, reference
is made to such Registration Statement and exhibits and schedules filed as a
part thereof. The Company also files periodic reports, proxy statements and
other information with the Commission. A copy of the Registration Statement and
such other materials may be inspected by anyone without charge at the Public
Reference Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the regional offices of the
Commission located at 7 World Trade Center, Suite 1300, New York, New York 10048
and Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of all or any portion
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of the Registration Statement and other such materials may be obtained from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, upon payment of prescribed fees. Copies of such documents may also
be inspected at the offices of the New York Stock Exchange located at 20 Broad
Street, New York, New York 10005. The Commission maintains a Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of the Commission's Web site is http://www.sec.gov.
Statements made in this Prospectus as to the contents of any contract,
agreement or other document are not necessarily complete. With respect to each
such contract, agreement or other document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
pursuant to the Exchange Act are hereby incorporated by reference:
(1) The Company's Annual Report on Form 10-K for the year ended January
31, 1997, including portions of the Company's Proxy Statement dated April
29, 1997 relating to the Company's 1997 Annual Meeting of Stockholders and
portions of the Company's Annual Report to Stockholders for the fiscal year
ended January 31, 1997, which are incorporated therein by reference.
(2) The Company's Proxy Statement dated April 29, 1997.
(3) The description of the Common Stock of the Company which is
contained in the registration statement on Form 8-A filed by the Company on
April 19, 1994.
(4) The Company's Current Reports on Form 8-K filed on April 11, 1997
and April 29, 1997.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of this offering shall be incorporated by reference into this
Prospectus and shall be deemed to be part of this Prospectus from the date of
filing of such reports and documents. Any statement contained herein or in a
document incorporated by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained in this
Prospectus or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide, upon request, without charge to each person to
whom a copy of this Prospectus has been delivered, a copy of any or all of the
documents which have been or may be incorporated in this Prospectus by
reference, other than certain exhibits to such documents. Requests for such
copies should be directed to: Blyth Industries, Inc., 100 Field Point Road,
Greenwich, Connecticut 06830 (Attention: Investor Relations Department)
(telephone: (203) 661-1926).
8
<PAGE>
331,239 SHARES
BLYTH INDUSTRIES, INC.
COMMON STOCK
---------------------
PROSPECTUS
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
The Company............................................................................ 1
Risk Factors........................................................................... 2
Selling Stockholders................................................................... 5
Use of Proceeds........................................................................ 6
Plan of Distribution................................................................... 6
Legal Matters.......................................................................... 7
Experts................................................................................ 7
Available Information.................................................................. 7
Incorporation of Certain Documents By Reference........................................ 8
</TABLE>
------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING
OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY SELLING STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER TO SELL OR SOLICITATION IS NOT AUTHORIZED, OR
IN WHICH THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO,
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
APRIL , 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 in connection with the
sale and distribution of the securities being registered, other than
underwriting discounts and commissions (which will not be borne by the
Registrant). All of the amounts shown are estimated except the Securities and
Exchange Commission registration fee.
<TABLE>
<S> <C>
SEC registration fee............................................ $3,538.24
Printing and engraving expenses................................. 2,000.00
Legal fees and expenses......................................... 20,000.00
Accounting fees and expenses.................................... 2,000.00
Transfer agent and registrar fees............................... 2,000.00
Miscellaneous................................................... 5,461.76
---------
Total................................................... $35,000.00
---------
---------
The foregoing fees and expenses will be borne by the Registrant.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Section 102(b)(7) of the Delaware Corporation Law (the "DGCL"),
Article VI of the Registrant's Restated Certificate of Incorporation (the
"Certificate of Incorporation") (filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (No. 33-77458)) eliminates the liability of
the Registrant's directors to the Registrant or its stockholders, except for
liabilities related to breach of duty of loyalty, actions not in good faith and
certain other liabilities.
Section 145 of the DGCL provides for indemnification by the Registrant of
its directors and officers. In addition, Article IX, Section 1 of the
Registrant's Restated By-Laws (the "By-laws") (filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (No. 33-77458)) requires the
Registrant to indemnify any current or former director or officer to the fullest
extent permitted by the DGCL. In addition, the Registrant has entered into
indemnity agreements with its directors (a form of which is filed as Exhibit
10.15 to the Registrant's Registration Statement on Form S-1 (No. 33-77458)),
which obligate the Registrant to indemnify such directors to the fullest extent
permitted by the DGCL.
Reference is made to the form of Registration Rights Agreement filed as
Exhibit 4.1 to this Registration Statement which provides for indemnification of
the directors and officers of the Registrant signing the Registration Statement
and certain controlling persons of the Registrant against certain liabilities,
including certain liabilities arising under the Securities Act of 1933, as
amended (the "Securities Act"), in certain instances by the Selling
Stockholders.
The Registrant maintains insurance for the benefit of its directors and
officers and the directors and officers of its subsidiaries insuring such
persons against liabilities, including liabilities under the securities laws.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ------------- -----------------------------------------------------------------------------------------------------
<C> <S>
4.1 Registration Rights Agreement, dated as of December 31, 1996, among the Registrant and the Holders
named therein
5. Opinion of Finn Dixon & Herling LLP (including the consent of such firm) regarding legality of
securities being offered
23.1 Consent of Finn Dixon & Herling LLP (included as part of its opinion filed as Exhibit 5 hereto)
23.2 Consent of Grant Thornton LLP, independent certified public accountants
24.1 Powers of Attorney
24.2 Certified Resolutions
</TABLE>
ITEM 17. UNDERTAKINGS.
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 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling person of the Registrant
pursuant to the DGCL, the Certificate of Incorporation and By-laws, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in such Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than 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 such
Securities Act and will be governed by the final adjudication of such issue.
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 a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
II-2
<PAGE>
ITEM 17. UNDERTAKINGS. (CONTINUED)
(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.
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 the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Greenwich, State of Connecticut, on the 29th day of
April, 1997.
BLYTH INDUSTRIES, INC.
BY: /S/ ROBERT B. GOERGEN
-----------------------------------------
Robert B. Goergen
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ ROBERT B. GOERGEN Chairman, Chief Executive April 29, 1997
- ------------------------------ Officer and President,
Robert B. Goergen Director (Principal
Executive Officer)
/s/ HOWARD E. ROSE Vice President and Chief April 29, 1997
- ------------------------------ Financial Financial
Howard E. Rose Officer (Principal
Financial and Accounting
Officer)
* Director
- ------------------------------
Roger A. Anderson
* Director
- ------------------------------
John W. Burkhart
* Director
- ------------------------------
Pamela M. Goergen
* Director
- ------------------------------
Neal I. Goldman
* Director
- ------------------------------
John E. Preschlack
* Director
- ------------------------------
Roger H. Morley
* Director
- ------------------------------
Frederick H. Stephens, Jr.
*By: /s/ ROBERT B. GOERGEN
------------------------
Robert B. Goergen April 29, 1997
ATTORNEY-IN-FACT
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NO.
- ------------- ------------------------------------------------------------------------------------------- -------------
<C> <S> <C>
4.1 Registration Rights Agreement, dated as of December 31, 1996, among the Registrant and the
Holders named therein
5. Opinion of Finn Dixon & Herling LLP (including the consent of such firm) regarding legality
of securities being offered
23.1 Consent of Finn Dixon & Herling LLP (included as part of its opinion filed as Exhibit 5
hereto)
23.2 Consent of Grant Thornton LLP, independent certified public accountants
24.1 Powers of Attorney
24.2 Certified Resolutions
</TABLE>
<PAGE>
--------------------------------------
--------------------------------------
BLYTH INDUSTRIES, INC.
REGISTRATION RIGHTS AGREEMENT
December 31, 1996
--------------------------------------
--------------------------------------
<PAGE>
TABLE OF CONTENTS
SECTION 1..................................................................1
RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS..............................1
1.1 Restrictions on Transfer............................................1
1.2 Certain Definitions.................................................1
1.3 Restrictive Legends.................................................2
1.4 Notice of Proposed Transfers........................................2
1.5 Form S-3 Registration...............................................3
1.6 Expenses of Registration............................................3
1.7 Registration Procedures.............................................4
1.8 Indemnification.....................................................5
1.9 Rule 144 Reporting..................................................7
1.10 Termination of Registration Rights.................................7
SECTION 2..................................................................7
MISCELLANEOUS..............................................................7
2.1 Governing Law.......................................................7
2.2 Successors and Assigns; Assignment of Rights........................7
2.3 Entire Agreement; Amendment; Waiver.................................7
2.4 Notices, etc........................................................7
2.5 Delays or Omissions.................................................8
2.6 Rights; Separability................................................8
2.7 Titles and Subtitles................................................8
2.8 Counterparts........................................................8
2.9 No Third Party Beneficiaries........................................8
2.10 Remedies...........................................................8
<PAGE>
BLYTH INDUSTRIES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of December 31, 1996, by and among BLYTH INDUSTRIES, INC., a Delaware
corporation (the "Parent"), and the persons identified on Schedule A attached
hereto (the "Holders").
WHEREAS, on December 31, 1996, the Parent, NII Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of the Parent (the "Buyer"), New Ideas
International, Inc., a Georgia corporation (the "Company"), and the shareholders
of the Company entered into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which the Company will merge with and into the Buyer, in
exchange for 662,500 shares, subject to adjustment as provided in the Merger
Agreement, of the common stock of the Parent, $0.02 par value per share ("Parent
Common Stock"), pursuant to the Merger Agreement; and
WHEREAS, it is a condition precedent to the closing under the Merger
Agreement that the parties hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto agree as follows:
SECTION 1
RESTRICTIONS ON TRANSFER; REGISTRATION RIGHTS
1.1 RESTRICTIONS ON TRANSFER. No Registrable Securities (as defined below)
shall be sold, assigned, transferred, or pledged by any Holder except upon the
conditions specified in this Section 1, which conditions are intended to ensure
compliance with the provisions of the Securities Act. Each Holder shall cause
any proposed transferee of the Restricted Securities held by a Holder to agree
in writing to take and hold such securities subject to the provisions and upon
the conditions specified in this Section 1.
1.2 CERTAIN DEFINITIONS. As used in this Agreement, the following
definitions shall apply:
"Closing Date" means the closing date specified in the Merger Agreement.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or any
similar successor federal statute and the rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
<PAGE>
The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed), and the declaration or ordering of the effectiveness of
such registration statement.
"Registrable Securities" means the Parent Common Stock (i) issued pursuant
to the Merger Agreement and held continuously from the Closing Date by the
Holders, and (ii) any Parent Common Stock issued as a dividend or other
distribution with respect to or in exchange for or in replacement of the shares
referenced in (i) above; provided, however, that Registrable Securities shall
not include any shares of Parent Common Stock which have previously been
registered or sold to the public or have been sold in a private transaction.
"Registration Expenses" means all expenses incurred by the Parent in
complying with Section 1.5, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Parent, blue sky fees and expenses, and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Parent, which shall
be paid in any event by the Parent). Registration Expenses shall not include:
Selling Expenses or other compensation paid to underwriters or other agents or
brokers to effect the sale or the fees of counsel or accountants for the
Holders.
"Rule 145" means Rule 145 promulgated under the Securities Act, or any
similar successor rule, as the same shall be in effect from time to time.
"Rule 415" means Rule 415 promulgated under the Securities Act, or any
similar successor rule, as the same shall be in effect from time to time.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, as shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the sale of Registrable
Securities.
1.3 RESTRICTIVE LEGENDS. Each certificate representing the Registrable
Securities, and any other securities issued or issuable, directly or indirectly,
in respect of any of the foregoing securities upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event, shall be
stamped or otherwise imprinted with legends in substantially the forms set forth
in the Affiliate Letters (as defined in the Merger Agreement) (in addition to
any legend(s) required hereunder or under applicable state securities laws).
1.4 NOTICE OF PROPOSED TRANSFERS. Prior to any proposed transfer of any
Registrable Securities, unless there is in effect a registration statement under
the Securities Act covering the proposed transfer, the holder thereof shall give
written notice (the "Notice") to the Parent of such holder's intention to make
such transfer. The Notice shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and shall be accompanied by a written
opinion of legal counsel who shall be reasonably satisfactory to the Parent,
addressed to the Parent and reasonably satisfactory in form and substance to the
Parent's counsel, to the effect that the proposed transfer of the Restricted
Securities may be effected without registration under the Securities Act. Each
certificate evidencing the Registrable Securities so transferred shall bear the
appropriate restrictive legends set forth in Section
2
<PAGE>
1.3, except that such certificate shall not bear such restrictive legends if
in the opinion of counsel for the Parent such legends are not required in
order to establish compliance with any provisions of the securities laws.
1.5 Form S-3 Registration.
(a) The Parent shall file a registration statement on Form S-3 (a "Shelf
Registration Statement") providing for the sale by the Holders, pursuant to Rule
415, and/or any similar rule that may be adopted by the Commission, of 50% of
the Registrable Securities (or such lesser number of Registrable Securities as
is necessary in order for the representations and warranties of the Holders
contained in the Affiliate Letters (as defined in the Merger Agreement) to
remain accurate) and the Parent shall use all commercially reasonable efforts to
cause such Shelf Registration Statement to become and remain effective for the
period beginning on the date which is 15 business days after the date on which
the Parent publishes financial statements containing combined financial results
of the Parent and the Company covering the period specified by the Commission's
Accounting Series Release No. 135 (January 18, 1973) and to keep such Shelf
Registration Statement continuously effective for a period ending on the date on
which the Holders may sell Registrable Securities received in the Merger to the
public pursuant to Commission Rule 144, or if earlier, on the date the
distribution described in the Shelf Registration Statement is complete. Such
registration shall be conditioned on all Selling Shareholders (as defined below)
agreeing that all sales made pursuant to such Shelf Registration Statement shall
be made to or through Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ") (provided, however, that this condition is conditioned upon DLJ charging
fees that are normal and customary for nationally-renowned investment banking
houses for similar transactions).
(b) If and only if the Holders are unable to sell all of the remaining
Registrable Securities received in the Merger to the public pursuant to
Commission Rule 144, without any volume limitations, on the date which is 15
business days after the date on which the Parent files its Annual Report on
Form 10-K for its fiscal year ended January 31, 1999 (the "1999 10-K Date"),
the Parent shall file a Shelf Registration Statement providing for the sale
by the Holders, pursuant to Rule 415, with respect to all of the Registrable
Securities issued in the Merger not previously sold or transferred by Holders
pursuant to Section 1.5(a) above or otherwise (or such lesser amount as may
be requested by such Holders), and the Parent shall use all commercially
reasonable efforts to cause such Shelf Registration Statement to become and
remain effective for the period beginning on the 1999 10-K Date and ending on
the date Holders may sell Registrable Securities received in the Merger to
the public pursuant to SEC Rule 144 or, if earlier, on the date the
distribution described in the Registration Statement is complete. Such
registration shall be conditioned on all Selling Shareholders agreeing that
all sales made pursuant to such Shelf Registration Statement shall be made to
or though DLJ.
(c) No Holder shall have the right to register securities under this
Agreement unless such Holder confirms in writing prior to the filing of any
registration statement and provides such information as the Parent requests in
connection with such registration statement (each such Holder being referred to
as a "Selling Shareholder"). Unless the Selling Shareholders agree to a
different allocation, the Parent shall allocate the full number of shares being
registered pro rata in accordance with the percentages set forth on Schedule A
hereto.
1.6 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with the registration, qualification or compliance pursuant to
Section 1.5 shall be borne by the Parent; provided, however, that in connection
with any registration of securities, the Parent shall not be responsible for
3
<PAGE>
the fees and costs of counsel or accountants for the Holders. All Selling
Expenses and the fees and costs of counsel or accountants to the Holders
relating to securities so registered shall be borne by the Holders pro rata
on the basis of the number of shares of securities so registered on their
behalf.
1.7 REGISTRATION PROCEDURES. If and whenever the Parent is required by the
provisions of this Section 1 to effect the registration of Registrable
Securities, the Parent shall:
(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use its diligent efforts to cause
such registration statement to become and remain effective as provided herein.
(b) Prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and current and
to comply with the provisions of the Securities Act with respect to the sale of
or other disposition of all Registrable Securities covered by such registration
statement, including such amendments and supplements as may be necessary to
reflect the intended method of disposition of the prospective seller or sellers
of such Registrable Securities during the applicable periods as specified in
Section 1.5.
(c) Furnish to each prospective seller of Registrable Securities such number
of copies of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other documents, as such
seller may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities of such seller.
(d) Notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing.
(e) Cause all such Registrable Securities registered pursuant hereunder to
be listed on each securities exchange or approved for quotation on any
inter-dealer quotation system on which similar securities issued by the Parent
are then listed or quoted.
(f) Provide a transfer agent and registrar for all Registrable Securities
registered pursuant to such registration statement and a CUSIP number of all
such Registrable Securities in each case not later than the effective date of
such registration.
Each seller of Registrable Securities shall not (until further notice)
effect sales of shares covered by any registration statement after receipt of
telegraphic or written notice from the Parent to suspend sales to permit the
Parent to correct or update a registration statement or prospectus.
Notwithstanding the foregoing, for a period not to exceed one hundred eighty
(180) days, the Parent shall not be obligated to prepare and file, or be
prevented from delaying or abandoning,
4
<PAGE>
or by written notice to the Selling Shareholders, may suspend the use of (and
the Selling Shareholders hereby agree not to use a Registration Statement
during such period) a Registration Statement pursuant to this Agreement at
any time when the Parent, in its good faith judgment, reasonably believes:
(i) that the filing thereof, at the time requested, or the offering of
Parent Common Stock pursuant thereto, would materially and adversely affect (A)
a pending or scheduled public offering or private placement of securities of the
Parent, (B) an acquisition, merger, consolidation or similar transaction by or
of the Parent, (C) preexisting and continuing negotiations, discussions or
pending proposals with respect to any of the foregoing transactions, or (D) the
financial condition of the Parent in view of the disclosure of any pending or
threatened litigation, claim, assessment or governmental investigation which
might be required thereby, or
(ii) that the failure to disclose any material information with respect to
the foregoing would cause a violation of the Securities Act or the Exchange Act.
In the event the Parent, in good faith, reasonably believes that such
conditions are continuing after such 180-day period, it may, with the consent of
the holders of a majority of the Registrable Securities subject (or to be
subject) to the registration statement, which consent shall not be unreasonably
withheld, extend such 180-day period for an additional 60 days. Any further
delay shall require the consent of the holders of all such shares.
The Parent represents and warrants to the Holders that it is not currently
aware of any facts or conditions that would cause it to conclude that there is a
material likelihood that it would exercise its right to delay the filing of the
Shelf Registration Statement contemplated by Section 1.5 (a) pursuant to the
second preceding paragraph.
1.8 INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) The Parent will indemnify each Holder against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained, on the effective date
thereof, in any registration statement, any prospectus contained therein, or
any amendment or supplement thereto, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in the
light of the circumstances under which they were made) not misleading, or any
violation by the Parent of any rule or regulation promulgated under the
Securities Act applicable to the Parent in connection with any such
registration, qualification or compliance, and the Parent will reimburse each
such Holder for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided, however that the Parent will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and
in conformity with written information furnished to the Parent by an
instrument duly executed by such Holder or underwriter and stated to be
specifically for use therein; provided, further, that the Parent shall not be
liable to any such person under the indemnity agreement in this Section
1.8(a) to the extent that any such expense, claim, loss, damage or liability
(or action or proceeding, whether commenced or threatened, in respect
thereof) results from the fact that Registrable Securities were sold
5
<PAGE>
to a person to whom there was not sent or given a copy of the Registration
Statement or prospectus (as then amended or supplemented).
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Parent, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Parent's securities covered by such a registration statement, and
each person who controls the Parent or such underwriter within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation commenced or threatened, arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained, on the effective date thereof, in any such registration
statement, any prospectus contained therein, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in the
light of the circumstances under which they were made) not misleading, and will
reimburse the Parent, and such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement or prospectus in reliance upon
and in conformity with written information furnished to the Parent by an
instrument duly executed by such or Holder and stated to be specifically for use
therein; provided, however, that the obligations of each Holder hereunder shall
be limited to an amount equal to the net proceeds to each such Holder of
Registrable Securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 1.8 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1 to the extent such failure is not
prejudicial. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Notwithstanding anything to the contrary contained in this Section
1.8(c), the Indemnified Party shall have the right to employ its own counsel in
any action, claim, litigation, proceeding or investigation, and the fees and
expenses thereof shall be borne by the Indemnified Party, unless the Indemnified
Party shall have reasonably concluded that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Indemnifying Party, in which case the Indemnifying Party shall
bear all of such Indemnified Party's legal and other fees and expenses which
arise in defense thereof. In such event, the Indemnifying Party shall not have
the right to direct the defense of such action, claim, litigation, proceeding or
investigation on behalf of the Indemnified Party.
(d) If the indemnification provided for in this Section 1.8 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying the
6
<PAGE>
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party with respect to such loss, liability, claim, damage or
expense in the proportion that is appropriate to reflect the relative fault
of the Indemnifying Party and the Indemnified Party in connection with the
statements or omissions that resulted in such loss, liability, claim, damage
or expense, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact or the omission (or alleged omission) to
state a material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
1.9 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration,
after such time as a public market exists for the Common Stock of the Parent,
the Parent shall use its best efforts to furnish to any Holder promptly upon
request, a written statement as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Parent, and such
other reports and documents of the Parent and other information in the
possession of or reasonably obtainable by the Parent as a Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without registration.
1.10 TERMINATION OF REGISTRATION RIGHTS. The rights of each Holder under
this Section 1 shall terminate at such time as such Holder's Registrable
Securities may be sold without registration in reliance upon Rule 144(k)
promulgated under the Securities Act.
SECTION 2
MISCELLANEOUS
2.1 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
principles of conflicts of laws thereof.
2.2 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF RIGHTS. The rights and benefits
of a Holder hereunder may not be assigned to a transferee or assignee.
2.3 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement, the Merger
Agreement and the other agreements contemplated thereby constitute the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and thereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated, except by a written instrument signed by the
Parent and the holders of at least fifty one percent (51%) of the Registrable
Securities and the Parent and any such amendment, waiver, discharge or
termination shall be binding upon all the parties hereto, but in no event shall
the obligation of any party hereto be materially increased, except upon the
written consent of such party.
2.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, sent by facsimile or delivered personally
by hand or nationally recognized courier addressed (a) if to a Holder, as
indicated on the list of Holder attached hereto as Schedule A, or at such
other address as such Holder or permitted assignee shall have furnished to
the Parent in writing, or (b) if to the Parent, at such address or facsimile
number as the Parent shall have furnished to each Holder in writing. All such
7
<PAGE>
notices and other written communications shall be effective on the date of
mailing, facsimile transfer or delivery.
2.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any Holder (in any capacity hereunder), upon any
breach or default of the Parent under this Agreement shall impair any such
right, power or remedy of such Holder nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any Holder (in any capacity
hereunder) of any breach or default under this Agreement or any waiver on the
part of any Holder of any provisions or conditions of this Agreement must be
made in writing and shall be effective only to the extent specifically set
forth in such writing.
2.6 RIGHTS; SEPARABILITY. Unless otherwise expressly provided herein, a
Holder's rights hereunder are several rights, not rights jointly held with any
of the other Holders. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
2.7 TITLES AND SUBTITLES. The titles of the paragraphs and subparagraphs
of this Agreement are for convenience of reference only and are not to be
considered in construing or interpreting this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
2.9 NO THIRD PARTY BENEFICIARIES. The covenants and agreements set forth
herein are for the sole and exclusive benefit of the parties hereto and their
respective successors and assigns and such covenants and agreements shall not be
construed as conferring, and are not intended to confer, any rights or benefits
upon any other persons.
2.10 REMEDIES. The parties to this Agreement acknowledge and agree that a
breach of any of the covenants of the Parent or the Holders set forth in this
Agreement may not be compensable by payment of money damages and, therefore,
that the covenants of the foregoing parties set forth in this Agreement may be
enforced in equity by a decree requiring specific performance. Without limiting
the foregoing, if any disputes arise concerning the sale or other disposition of
any of the Registrable Securities contained in Section 1 hereof, the parties to
this Agreement agree that an injunction may be issued restraining the sale or
other disposition of such Registrable Securities or interest or rescinding any
such sale or other disposition, pending resolution of such controversy. Such
remedies shall be cumulative and non-exclusive and shall be in addition to any
other rights and remedies the parties may have under this Agreement. Any
transfer or acquisition of Registrable Securities in violation of this Agreement
shall be null and void ab initio.
[Remainder of Page Intentionally Left Blank]
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement effective as of the day and year first above written.
BLYTH INDUSTRIES, INC.
By:/s/ Elwood L. La Forge, Jr.
-------------------------------
Name: Elwood L. La Forge, Jr.
Title: Vice President
/s/ James T. Baxter
--------------------------------
James T. Baxter
/s/ Langdon S. Flowers, Jr.
---------------------------------
Langdon S. Flowers, Jr.
/s/ George S. Gibbs
---------------------------------
George S. Gibbs
/s/ Douglas M. Vick
---------------------------------
Douglas M. Vick
9
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SCHEDULE A
SCHEDULE OF HOLDERS
HOLDER'S NAME AND ADDRESS PERCENTAGE OF SHARES OF PARENT
STOCK ISSUED IN THE MERGER
James T. Baxter 11.11%
Route 2, Box 1336
Hahira, Ga 31632
Langdon S. Flowers, Jr. 29.63%
P.O. Box 997
Thomasville, GA 31799
George S. Gibbs 29.63%
1512 Valwood Avenue
Thomasville, GA 31792
Douglas M. Vick 29.63%
107 Stratford Way
Thomasville, GA 31692
10
<PAGE>
Exhibit 5
FINN DIXON & HERLING LLP
Attorneys at Law
ONE LANDMARK SQUARE
STAMFORD, CONNECTICUT 06901
Telephone (203) 325-5000
Facsimile (203) 348-5777
April 29, 1997
Blyth Industries, Inc.
100 Field Point Road
Greenwich, Connecticut 06830
Re: Blyth Industries, Inc. -- Registration Statement on Form S-3
------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Blyth Industries, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a registration statement on Form S-3
(the "Registration Statement"), of the Company, covering 331,239 shares of the
Common Stock, $0.02 par value per share (the "Common Stock"), of the Company, to
be sold by certain selling stockholders.
In rendering the opinion set forth herein, we have examined executed
copies, telecopies or photocopies of: (i) the Registration Statement; (ii) the
Restated Certificate of Incorporation, the Restated By-laws and minute books of
the Company; and (iii) such other records, documents, certificates and other
instruments as in our judgment are necessary or appropriate as a basis for the
opinion expressed below. In our examination of such documents we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to this opinion which we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of the Company.
Based upon the foregoing, and in reliance thereon, and subject to the
qualifications, assumptions and exceptions heretofore and hereinafter set forth,
we are of the opinion that the 331,239 shares of Common Stock of the Company to
be sold by the Selling Stockholders have been duly authorized and validly issued
and are fully paid and nonassessable.
We do not express, or purport to express, any opinion with respect to the
laws of any jurisdiction other than the General Corporation Law of the State of
Delaware.
<PAGE>
-2-
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and further consent to the use of our name under the
heading "Legal Matters" in the Registration Statement and the Prospectus which
forms a part thereof. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations promulgated
thereunder by the Securities and Exchange Commission. This opinion is given as
of the date hereof and we assume no obligation to update or supplement this
opinion to reflect any facts or circumstances which may hereafter occur or come
to our attention or any changes in law which may hereafter occur.
Very truly yours,
/s/ Finn Dixon & Herling LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated March 28, 1997 accompanying the
consolidated financial statements of Blyth Industries, Inc. and Subsidiaries
appearing in the 1997 Annual Report to Shareholders and accompanying the
schedule included in the Annual Report on Form 10-K for the year ended January
31, 1997, which are incorporated by reference into this Registration Statement
on Form S-3. We consent to the use and the incorporation by reference into this
Registration Statement on Form S-3 and the Registration Statement on Form S-8
(No. 33-91954) of the aforementioned reports, and to the use of our name as it
appears under the caption "Experts" in this Registration Statement on Form S-3.
/s/ Grant Thornton LLP
GRANT THORNTON LLP
Chicago, Illinois
April 29, 1997
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned directors
and/or officers of Blyth Industries, Inc., a Delaware corporation (the
"Company"), which is about to file with the Securities and Exchange Commission
under the provisions of the Securities Act of 1933, as amended (the "Securities
Act"), a Registration Statement for the registration of up to 335,000 shares of
common stock, par value $0.02 per share, of the Company (the "Registration
Statement"), constitutes and appoints each of ROBERT B. GOERGEN, HOWARD E. ROSE
and BRUCE D. KREIGER his or her true and lawful attorney-in-fact and agent, with
the full power of substitution, for him or her in any and all capacities, to
sign the Registration Statement and any and all amendments (including
post-effective amendments) or supplements to the Registration Statement and to
file the same, with all exhibits thereto (including, without limitation, this
power of attorney) and other instruments and documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing necessary and appropriate to be done with respect to the
Registration Statement or any amendments or supplements thereto, including
without limitation to make any and all state securities law or blue sky filings,
hereby ratifying and confirming all that each said attorney-in-fact and agent,
or his substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has set his or her hand this
eighth day of April, 1997.
Signature Title Date
--------- ----- ----
/s/ Robert B. Goergen Chairman, Chief Executive April 8, 1997
------------------------------ Officer and President, Director
Robert B. Goergen (Principal Executive Officer)
/s/ Howard E. Rose Vice President and Chief April 8, 1997
------------------------------ Financial Officer
Howard E. Rose (Principal Financial and
Accounting Officer)
/s/ Roger A. Anderson Director April 8, 1997
------------------------------
Roger A. Anderson
/s/ John W. Burkhart Director April 8, 1997
------------------------------
John W. Burkhart
/s/ Pamela M. Goergen Director April 8, 1997
------------------------------
Pamela M. Goergen
/s/ Neal I. Goldman Director April 8, 1997
------------------------------
Neal I. Goldman
/s/ Roger H. Morley Director April 8, 1997
------------------------------
Roger H. Morley
/s/ John E. Preschlack Director April 8, 1997
------------------------------
John E. Preschlack
/s/ Frederick H. Stephens, Jr. Director April 8, 1997
------------------------------
Frederick H. Stephens, Jr.
<PAGE>
Exhibit 24.2
BLYTH INDUSTRIES, INC.
CERTIFICATION
I, the undersigned Secretary of BLYTH INDUSTRIES, INC., a Delaware
corporation, certify that the attached is a true copy of resolutions adopted by
the Board of Directors of Blyth Industries, Inc. on April 8, 1997, at a meeting
throughout which a quorum was present, and that the same is still in full force
and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
Blyth Industries, Inc. this 29th day of April, 1997.
/s/ Bruce D. Kreiger
--------------------------
Name: Bruce D. Kreiger
Title: Secretary
BLYTH INDUSTRIES, INC.
Board of Directors Resolution
April 8, 1997
* * *
RESOLVED, that this Board acknowledges the responsibility of the
Corporation to file a registration statement pursuant to the Registration Rights
Agreement, dated as of December 31, 1996, between this Corporation and the
former shareholders of New Ideas International, Inc., to facilitate the resale
by such former shareholders of the Common Stock (the "Common Stock") of this
Corporation;
RESOLVED, that the proposed Registration Statement on Form S-3 and
proposed Prospectus included therein, substantially in the form of the draft
presented to and reviewed by this Board (the "Registration Statement"), covering
the registration under the Securities Act of 1933, as amended, of up to 335,000
outstanding shares of Common Stock to be sold by such Selling Shareholders, be,
and they hereby are, approved; and that the proper officers of this Corporation
be, and each of them hereby is, authorized and directed, in the name and on
behalf of this Corporation, to execute, by power of attorney or otherwise, the
Registration Statement, with such additions, deletions and modifications thereto
as the officers executing the same on behalf of this Corporation shall in their
discretion determine to be necessary or advisable (such determination to be
evidenced conclusively by their execution thereof), to file the Registration
Statement (together with the exhibits thereto) with the Commission and to
execute such other documents and to take such other actions with respect thereto
as they shall deem necessary or advisable;
RESOLVED, that the proper officers of this Corporation be, and each of
them hereby is, authorized and directed in the name and on behalf of this
Corporation, from time to time to execute, by power of attorney or otherwise,
and to file with the Commission, such amendments and supplements to the
Registration Statement (together with the exhibits thereto) as the proper
officer or officers of this Corporation shall in his or their discretion
determine to be necessary or advisable (such determination to be evidenced
conclusively by his or their execution thereof), and to execute such other
documents and take such other actions with respect thereto as the proper officer
or officers of this Corporation shall determine to be necessary or advisable;
RESOLVED, that Robert B. Goergen, Howard E. Rose, and Bruce D. Kreiger
be, and each of them (with full power to act with or without the others) hereby
is, authorized to sign the Registration Statement and any and all amendments and
supplements (including post-effective amendments and amendments pursuant to Rule
462 of the Securities Act of 1933) to the Registration Statement, on behalf of
and as true and lawful attorney or attorneys for the Corporation and on behalf
of and as true and lawful attorney or attorneys for the Principal Executive
Officer and/or the Principal Financial Officer and/or the Principal Accounting
Officer and/or other officers of the Corporation, including, without limitation,
the Chairman and/or the President and/or each Vice President and/or the
Treasurer and/or the Secretary (in attestation of the corporate seal of the
Corporation or otherwise).
