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Registration No. 333--
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BLYTH INDUSTRIES, INC.
(Exact name of Registrant as specified in charter)
Delaware 3999 36-2984916
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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)
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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:
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
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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
Title of Each Class of Amount to be Offering Price Aggregate Offering
Securities to be Registered Registered Per Share(1) Price(1) Amount of Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value
$.02 per share ........... 1,710,746 shares $26.5625 $45,441,690.63 $13,770.21
</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 October 8, 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
1,710,746 Shares
BLYTH INDUSTRIES, INC.
Common Stock
All of the 1,710,746 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 Endar Corp. 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 October 9, 1997, the last reported sales price of the
Common Stock on the NYSE was $26-3/16 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 $30,000. 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 market competitive
rates and provides reasonable execution for the transaction in question).
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."
October 10, 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-, Candle Corporation of America-Registered Trademark-,
Canterbury-TM-, Carolina Designs-TM-, Colonial Candle of Cape Cod-Registered
Trademark-, Eternalux-Registered Trademark-, FilterMate-TM-,
Florasense-Registered Trademark-, Jeanmarie Creations-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. On May 20,
1997, the Company acquired Endar Corp., a manufacturer of potpourri, scented
candles and other fragrance products. On September 30, 1997, the Company
entered into an agreement to acquire the portable heating fuel business,
including the Sterno-Registered Trademark- and Handy Fuel-Registered
Trademark-brand names, from a division of Colgate-Palmolive Company. The
purchase includes the related manufacturing and distribution facilities in
Texarkana, Texas. The transaction, to be accounted for as a purchase, is
valued at approximately $70 million in cash and is expected to close by
year-end pending the satisfaction of certain conditions, including expiration
of the applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended. The Company does not expect the
transaction to have a material impact on its financial results for the year
ending January 31, 1998. The Company intends to utilize a portion of the
proceeds of a replacement credit facility to finance some or all of the
purchase price. The Company is presently negotiating the terms of such a
facility. Finally, 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.
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
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acquisitions. The Company has been successful in identifying new product
opportunities to 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 to
successfully 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.
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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 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. and Seasons, Inc. 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.
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Stock Ownership of and Control by Management
Robert B. Goergen, the Chairman, Chief Executive Officer and President of
the Company, beneficially owns approximately 14,426,972 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
17,500,224 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 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 October 1, 1997, 49,071,631 shares of Common Stock were
outstanding, including over 31.4 million shares of Common Stock (which
includes the 1,710,746 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. 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.
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.
Safe Harbor for Forward-Looking Statements
The Company is including the following cautionary statement in this
Prospectus to make applicable and to take advantage of the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995 for any
forward-looking statements made by, or on behalf of, the Company. Certain
statements contained in, or incorporated by reference in, this Prospectus are
forward-looking statements and accordingly involve risks and uncertainties
which could cause actual results or outcomes to differ materially from those
expressed in the forward-looking statements. The forward-looking statements
contained in, or incorporated by reference in, this Prospectus include all
statements which are not statements of historical fact and are identified by
the words "believe," "expect," "anticipate," "project" and similar
expressions. The forward-looking statements contained in, or incorporated by
reference in, this Prospectus are based on various assumptions, many of which
are based, in turn, upon further assumptions. The Company's expectations,
beliefs and projections are expressed in good
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faith and are believed by the Company to have a reasonable basis, including
without limitation, management's examination of historical operating trends,
data contained in the Company's records and other data available from third
parties, but there can be no assurance that management's expectations,
beliefs or projections will result or be achieved or accomplished. The risk
factors set forth above and other factors and matters discussed elsewhere in
this Prospectus and in "Business" and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" in the Company's 1997
Annual Report on Form 10-K, which is incorporated by reference herein, are
important factors that, in the view of the Company, could cause actual
results to differ materially from those discussed in the forward-looking
statements. The Company disclaims any obligation to update any
forward-looking statements to reflect events or circumstances after the date
of this Prospectus.
SELLING STOCKHOLDERS
The Selling Stockholders listed below received their shares of Common
Stock in connection with the Company's acquisition of Endar Corp., a
California corporation ("Endar"), by way of a merger (the "Merger") of a
wholly owned subsidiary of the Company with and into Endar. 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. Each of the Selling Stockholders
was a shareholder and/or warrantholder of Endar, but, except as indicated
below, has not 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 May 20,
1997, among the Company and the Selling Stockholders, the Company agreed to
use its best efforts to register the Common Stock issued to the 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. Each Selling Stockholder has agreed in
the Registration Rights Agreement to refrain from selling 45% of the Shares
offered hereby by each such Selling Stockholder until the second calendar day
after the Company files its Quarterly Report on Form 10-Q for its fiscal
quarter ended October 31, 1997.
<TABLE>
<CAPTION>
Number of Shares Percentage
Number of Shares Maximum Number of Common Stock Ownership
of Common Stock of Shares To Be to be Beneficially After
Beneficially Offered by Selling Owned After Completion Of
Owned Prior to Stockholder as part Completion of the the Offering
Selling Stockholder Offering (1) of the Offering Offering (1), (2) (1), (2), (3)
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<S> <C> <C> <C> <C>
Ennio V. Racinelli (4), 651,788 586,618 65,170 *
Trustee of the Ennio
V. Racinelli and
Darlene Racinelli Trust
Judy Lobensommer 113,538 102,187 11,351 *
Roberts
Terry L. Cutter (4), 156,356 140,722 15,634 *
Trustee of the Cutter
Family Trust
Stephen C. Scheele (4) 140,953 126,861 14,092 *
Gregory E. Presson 11,002 9,003 1,999 *
Andre D. Guardi 2,283 2,055 228 *
</TABLE>
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<TABLE>
<CAPTION>
Number of Shares Percentage
Number of Shares Maximum Number of Common Stock Ownership
of Common Stock of Shares To Be to be Beneficially After
Beneficially Offered by Selling Owned After Completion Of
Owned Prior to Stockholder as part Completion of the the Offering
Selling Stockholder Offering (1) of the Offering Offering (1), (2) (1), (2), (3)
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<S> <C> <C> <C> <C>
George Eadington, 2,755 2,481 274 *
Trustee of the
Eadington, Merhab &
Eadington Profit
Sharing Plan Trust
George Eadington, 20,331 18,302 2,029 *
Trustee of the George
Eadington and Mary
D. Eadington Family
Trust
Marlan M. Merhab,
Trustee of the Merhab
Family Trust 10,986 9,888 1,098 *
Rosemary Ruiz, 33,944 30,553 3,391 *
Trustee of the
Rosemary Ruiz
Revocable Trust
Ermalinda Diaz, 33,945 30,554 3,391 *
Trustee of the
Ermalinda Diaz
Revocable Trust
Michael F. McCoy 5,221 4,699 522 *
Michael F. McCoy, 18,053 16,249 1,804 *
Trustee of the McCoy
1988 Inter Vivos Trust
David Roberts 950 856 94 *
Richard W. Truelick 35,976 32,379 3,597 *
Silicon Valley Bancshares 9,086 8,179 907 *
Patricia Chacon 6,230 5,608 622 *
John and Richelle 2,491 2,242 249 *
Chacon
L.H. Friend, Weinress 10,051 9,046 1,005 *
& Frankson, Inc.
</TABLE>
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<TABLE>
<CAPTION>
Number of Shares Percentage
Number of Shares Maximum Number of Common Stock Ownership
of Common Stock of Shares To Be to be Beneficially After
Beneficially Offered by Selling Owned After Completion Of
Owned Prior to Stockholder as part Completion of the the Offering
Selling Stockholder Offering (1) of the Offering Offering (1), (2) (1), (2), (3)
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<S> <C> <C> <C> <C>
Triumph California - 635,847 572,264 63,583 *
Limited Partnership, A
California Limited
Partnership
</TABLE>
* Less than 1 percent
(1) The Selling Stockholders have sole voting and investment power
with respect to all Shares beneficially owned by him, her or it,
subject to community property laws, where applicable.
(2) Assumes the sale of all the Shares offered hereby.
(3) Based upon 49,071,631 shares of Common Stock outstanding on
October 1, 1997.
(4) Presently an employee and/or officer of a subsidiary of the
Company.
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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 market competitive rates for the transaction in question and
provides reasonable execution for the transaction in question). 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 market competitive
rates for the transaction in question and provides reasonable execution for
the transaction in question), 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
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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.
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 (May 20, 1998) and (ii)
the completion of the sale of all of the shares of Common Stock registered
thereunder. Each Selling Stockholder has agreed in the Registration Rights
Agreement to refrain from selling 45% of the Shares offered hereby by each
such Selling Stockholder until the second calendar day after the Company
files its Quarterly Report on Form 10-Q for its fiscal quarter ended October
31, 1997.
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
$30,000. 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 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 15,150 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.
-8-
<PAGE>
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 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 Securities Exchange Act of 1934, as amended (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 Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended April 30, 1997 and July 31, 1997.
(4) 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.
(5) The Company's Current Reports on Form 8-K filed on
April 11, 1997, April 29, 1997, May 2, 1997, May 21,
1997, June 3, 1997 and June 5, 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
-9-
<PAGE>
directed to: Blyth Industries, Inc., 100 Field Point Road, Greenwich,
Connecticut 06830 (Attention: Investor Relations Department)
(telephone: (203) 661-1926).
-10-
<PAGE>
- --------------------------------------------------------------------------------
1,710,746 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..................................................... 7
Plan of Distribution................................................ 7
Legal Matters....................................................... 8
Experts............................................................. 8
Available Information............................................... 8
Incorporation of Certain Documents By Reference..................... 9
</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 the Selling Stockholders. 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.
October 10, 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.
SEC registration fee............................. $13,770.21
Printing and engraving expenses.................. 2,000.00
Legal fees and expenses.......................... 10,000.00
Accounting fees and expenses..................... 2,000.00
Transfer agent and registrar fees................ 2,000.00
Miscellaneous 229.79
----------
Total....................................... $30,000.00
----------
----------
The foregoing fees and expenses will be borne by the Registrant.
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.
Item 16. Exhibits.
Exhibit No. Description of Exhibit
4.1 Registration Rights Agreement, dated as of May 20,
1997, among the Registrant and the Holders named
therein
<PAGE>
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
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 persons 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
(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.
II-2
<PAGE>
(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 10th day of October, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert B. Goergen Chairman, Chief Executive October10, 1997
- ------------------------------- Officer and President,
Robert B. Goergen Director (Principal
Executive Officer)
/s/ Howard E. Rose Vice President and Chief October 10, 1997
- ------------------------------- Financial Officer
Howard E. Rose (Principal Financial and
Accounting Officer)
/s/ Roger A. Anderson Director October 10, 1997
- -------------------------------
Roger A. Anderson
/s/ John W. Burkhart Director October 10, 1997
- -------------------------------
John W. Burkhart
/s/ Pamela M. Goergen Director October 10, 1997
- -------------------------------
Pamela M. Goergen
/s/ Neal I. Goldman Director October 10, 1997
- -------------------------------
Neal I. Goldman
/s/ John E. Preschlack Director October 10, 1997
- -------------------------------
John E. Preschlack
/s/ Roger H. Morley Director October 10, 1997
- -------------------------------
Roger H. Morley
/s/ Frederick H. Stephens, Jr. Director October 10, 1997
- ---------------------------------
Frederick H. Stephens, Jr.
</TABLE>
II-4
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit Page No.
- ----------- ---------------------- --------
<S> <C> <C>
4.1 Registration Rights Agreement, dated as of May 20,
1997, 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>
Exhibit 4.1
<PAGE>
----------------------------------------
BLYTH INDUSTRIES, INC.
REGISTRATION RIGHTS AGREEMENT
May 20, 1997
----------------------------------------
<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........................................ 4
1.7 Registration Procedures......................................... 4
1.8 Indemnification................................................. 5
1.9 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.................................................... 8
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 May 20, 1997, by and among BLYTH INDUSTRIES, INC., a Delaware
corporation (the "Parent"), and the persons identified on Schedule A attached
hereto (the "Holders").
WHEREAS, on March 25, 1997, the Parent, WC Acquisition Corp., a
California corporation and a wholly owned subsidiary of the Parent (the
"Buyer"), Endar Corp., a California corporation (the "Company"), and the
shareholders and warrantholders of the Company entered into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which the Buyer will
merge with and into the Company, and certain warrants and options of the
Company shall be surrendered, in exchange for an aggregate of 1,267,205
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 such 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 (1) have
previously been registered or sold to the public or have been sold in a
private transaction or (2) constitute Escrow Shares (as defined in the Merger
Agreement).
"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 144" means Rule 144 promulgated under the Securities Act or
any similar successor rule, as the same shall be in effect from time to time.
"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 Holder/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
2
<PAGE>
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 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 (the
"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 100% 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 each of the Holder/Affiliate Letters
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 30 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 pursuant to the Merger Agreement to the public pursuant
to any of the provisions of 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 that DLJ charges market -
competitive rates for the transaction in question, and that DLJ provides
reasonable execution for the transaction in question.
(b) Notwithstanding the filing of the Shelf Registration Statement,
45% of the Registrable Securities held by each Holder (measured as of the
Closing Date (as defined in the Merger Agreement)) shall not be sold until
the second calendar day after the Parent files its Quarterly Report on Form
10-Q for its fiscal quarter ended October 31, 1997. Each of the Holders
understands that, until such second calendar day after the filing of such
Quarterly Report on Form 10-Q, stop transfer instructions will be given to
the Parent's transfer agents with respect to 45% of the Registrable
Securities held by such Holder and that, until such second calendar day after
the filing of such Quarterly Report on Form 10-Q, there will be placed on the
certificates for 45% of the Registrable Securities held by such Holder, or
any substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED
IN ACCORDANCE WITH THE TERMS OF SECTION 1.5(b) OF THE REGISTRATION
RIGHTS AGREEMENT DATED MAY 20, 1997, BETWEEN THE REGISTERED HOLDER
HEREOF, BLYTH INDUSTRIES, INC., AND OTHER HOLDERS OF SHARES OF
COMMON STOCK OF BLYTH INDUSTRIES, INC., A COPY OF WHICH AGREEMENT IS
ON FILE AT THE PRINCIPAL OFFICES OF BLYTH INDUSTRIES, INC."
(c) No Holder shall have the right to register securities under
this Agreement unless such Holder provides and/or confirms in writing prior
to or after the filing of the Shelf Registration
3
<PAGE>
Statement such information (including, without limitation, information as to
the number of Registrable Securities that such Holder has sold pursuant to
any such Shelf Registration Statement from time to time) 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 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 the Shelf Registration
Statement with respect to such Registrable Securities and use its diligent
efforts to cause the Shelf Registration Statement to become and remain
effective as provided herein.
(b) Prepare and file with the Commission such amendments and
supplements to the Shelf Registration Statement and the prospectus used in
connection therewith as may be necessary to keep the Shelf 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 the Shelf 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 the
Shelf 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 the Shelf 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.
4
<PAGE>
(f) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to the Shelf Registration Statement and a
CUSIP number of all such Registrable Securities in each case not later than
the effective date of such registration.
No seller of Registrable Securities shall (until further notice)
effect sales of shares covered by the Shelf Registration Statement after
receipt of telegraphic, telecopied 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 ninety
(90) days, the Parent shall not be obligated to prepare and file, or be
prevented from delaying or abandoning, or by written notice to the Selling
Shareholders, may suspend the use of (and the Selling Shareholders hereby
agree not to use the Shelf Registration Statement during such period) the
Shelf 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 90-day period, it may, with the
consent of the holders of a majority of the Registrable Securities subject
(or to be subject) to the Shelf Registration Statement, which consent shall
not be unreasonably withheld, extend such 90-day period for an additional 30
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
5
<PAGE>
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 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 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
6
<PAGE>
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
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 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 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, without the consent of the Parent; provided, however, that, no
later than the 10th day prior to the filing of the Shelf Registration
Statement under Section 1.5(a) hereof, the rights and benefits of a Holder
hereunder may be transferred in connection with a transfer or assignment of
any Registrable Securities held by such Holder (i) by gift to immediate
family members of such Holder, or trusts or other entities for the sole
benefit thereof, (ii) by gift to any entity in which such Holder, his or her
immediate family members, or trusts or other entities for the sole benefit
thereof beneficially own all of the voting securities, and (iii) in the case
of Triumph-California Limited Partnership, a California Limited Partnership,
to not more than ten employees and/or limited partners of such limited
partnership; provided, however, that in each case, the transferee executes an
instrument pursuant to which the transferee agrees to be bound by the terms
and conditions hereof as a Holder, and such other documents as the Parent or
its counsel may reasonably require. Any transfer of Registrable Securities,
and rights hereunder, shall be subject to compliance with applicable
securities laws and the restrictions contained in the Holder/Affiliate Letter
executed by each Holder pursuant to the Merger Agreement.
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
7
<PAGE>
among the parties with regard to the subjects hereof and thereof. Without
limiting the foregoing, the rights of the Holders to registration pursuant to
the terms of this Agreement shall be subject to the limitations on resale
contained in the Holder/Affiliate Letters (as defined in the Merger
Agreement). 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 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 Holders 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 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
8
<PAGE>
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]
9
<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/Robert B. Goergen
------------------------------------------------------
Name: Robert B. Goergen
Title: Chairman, Chief Executive Officer and President
ENNIO V. RACINELLI, TRUSTEE
By: /s/Ennio V. Racinelli
------------------------------------------------------
Ennio V. Racinelli, Trustee
/s/Darlene Racinelli
------------------------------------------------------
Darlene Racinelli
ENNIO V. RACINELLI AND DARLENE RACINELLI TRUST
By: /s/Ennio V. Racinelli
------------------------------------------------------
Ennio V. Racinelli, Trustee
/s/Terry L. Cutter
------------------------------------------------------
Terry L. Cutter
/s/Phyllis L. Cutter
------------------------------------------------------
Spouse of Terry L. Cutter, if applicable
10
<PAGE>
ENNIO V. RACINELLI, PLEDGEE F/B/O TERRY CUTTER
By: /s/Ennio V. Racinelli
------------------------------------------------------
Ennio V. Racinelli, Pledgee
/s/Stephen C. Scheele
------------------------------------------------------
Stephen C. Scheele
/s/Zana Scheele
------------------------------------------------------
Spouse of Stephen C. Scheele, if applicable
TERRY CUTTER, PLEDGEE F/B/O STEPHEN C. SCHEELE UNDER
PLEDGE AGREEMENT
By: /s/Terry Cutter
------------------------------------------------------
Terry Cutter, Pledgee
ENNIO V. RACINELLI, PLEDGEE F/B/O STEPHEN C. SCHEELE
By: /Ennio V. Racinelli
------------------------------------------------------
Ennio V. Racinelli, Pledgee
/s/Judy Lobensommer Roberts
------------------------------------------------------
Judy Lobensommer Roberts
/s/David Roberts
------------------------------------------------------
Spouse of Judy Lobensommer Roberts, if applicable
11
<PAGE>
/s/David Roberts
------------------------------------------------------
David Roberts
/s/Judy Lobensommer Roberts
------------------------------------------------------
Spouse of David Roberts, if applicable
SILICON VALLEY BANK
By:
------------------------------------------------------
Name:
Title:
GOLDEN CITRUS, INC.
By:
------------------------------------------------------
Name:
Title:
TRIUMPH - CALIFORNIA LIMITED PARTNERSHIP, A CALIFORNIA
LIMITED PARTNERSHIP
By: /s/Michel Glouchevitch
------------------------------------------------------
Name: Michel Glouchevitch
Title: Managing Director
/s/Patricia Chacon
------------------------------------------------------
Patricia Chacon
------------------------------------------------------
Spouse of Patricia Chacon, if applicable
/s/Richelle Chacon
------------------------------------------------------
Richelle Chacon
13
<PAGE>
/s/John Chacon
------------------------------------------------------
John Chacon
/s/Richard W. Truelick
------------------------------------------------------
Richard W. Truelick
/s/Barbara A. Truelick
------------------------------------------------------
Spouse of Richard W. Truelick, if applicable
/s/Andre Guardi
------------------------------------------------------
Andre Guardi
------------------------------------------------------
Spouse of Andre Guardi, if applicable
/s/ Gregory Presson
------------------------------------------------------
Gregory Presson
/s/Patricia Presson
------------------------------------------------------
Spouse of Gregory Presson, if applicable
L.H. FRIEND, WEINRESS, AND FRANKSON, INC.
By: /s/Gregory E. Presson
------------------------------------------------------
Name: Gregory E. Presson
Title: President
/s/Michael F. McCoy
------------------------------------------------------
Michael F. McCoy
------------------------------------------------------
Spouse of Michael F. McCoy, if applicable
14
<PAGE>
CUTTER FAMILY TRUST
By: /s/Terry L. Cutter
------------------------------------------------------
Terry L. Cutter, Trustee
By: /s/Phyllis L. Cutter
------------------------------------------------------
Phyllis L. Cutter, Trustee
SILICON VALLEY BANCSHARES
By: /s/David Jaques
------------------------------------------------------
Name: David Jaques
Title: SVP & Treasurer
16
<PAGE>
Exhibit 5
<PAGE>
FINN DIXON & HERLING LLP
Attorneys at Law
ONE LANDMARK SQUARE
STAMFORD, CONNECTICUT 06901
Telephone (203) 325-5000
Facsimile (203) 348-5777
October 10, 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 1,710,746
shares of the Common Stock, $0.02 par value per share (the
"Common Stock"), of the Company, to be sold by the 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 1,710,746 shares of Common Stock of the Company which are to
be sold by the Selling Stockholders named in the Registration
Statement 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.
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
<PAGE>
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 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
October 10, 1997
<PAGE>
Exhibit 24.1
<PAGE>
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 1,710,746 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
10th day of October, 1997.
Signature Title Date
--------- ----- ----
/s/ Robert B. Goergen Chairman, Chief Executive October 10, 1997
- ------------------------------ and President, Director
Robert B. Goergen (Principal Executive Officer)
/s/ Howard E. Rose Vice President and Chief October 10, 1997
- ------------------------------ Financial Officer
Howard E. Rose (Principal Financial and
Accounting Officer)
/s/ Roger A. Anderson Director October 10, 1997
- ------------------------------
Roger A. Anderson
/s/ John W. Burkhart Director October 10, 1997
- -----------------------------
John W. Burkhart
/s/ Pamela M. Goergen Director October 10, 1997
- -----------------------------
Pamela M. Goergen
/s/ Neal I. Goldman Director October 10, 1997
- ----------------------------
Neal I. Goldman
/s/ Roger H. Morley Director October 10, 1997
- -----------------------------
Roger H. Morley
II-12
<PAGE>
/s/ John E. Preschlack Director October 10, 1997
- -----------------------------
John E. Preschlack
/s/ Frederick H. Stephens, Jr. Director October 10, 1997
- ------------------------------
Frederick H. Stephens, Jr.
<PAGE>
Exhibit 24.2
<PAGE>
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. at a special meeting on
September 11, 1997, 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 10th day of October, 1997.
/s/ Bruce D. Kreiger
Name: Bruce D. Kreiger
Title: Secretary
BLYTH INDUSTRIES, INC.
Board of Directors Resolutions
September 11, 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 May 20, 1997, between this Corporation and the
former shareholders and warrantholders of Endar Corp., to facilitate the
resale by such former shareholders and warrantholders (the "Selling
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 1,710,746 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).
<PAGE>
RESOLVED, that Robert B. Goergen, as Chairman, Chief Executive
Officer and President of this Corporation, be, and he hereby is, designated
to act on behalf of this Corporation as its agent for service to be named in
and with respect to all matters concerning the Registration Statement, and
that Mr. Goergen be, and he hereby is, authorized to receive on behalf of
this Corporation all notices and communications from the Securities and
Exchange Commission in connection with the Registration Statement;
