As filed with the Securities and Exchange Commission on November 26, 1996
Registration No. _______________
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GAYLORD COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 31-1421571
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
4006 Venture Court, Columbus, Ohio 42228
(Address of principal executive offices) (Zip Code)
Option Agreement between Gaylord Companies, Inc. and
Alexander Troy Consultants, Inc.
(Full title of the plan)
Not applicable
(Name and address of agent for service)
(614) 771-2777
(Telephone number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Class of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share(1) Offering Price Registration Fee
================================================= ==================================================================
<S> <C>
Shares of Common Stock, $.01 par value
("Common Stock")............................... 100,000 1.25 125,000 37.88
Total Registration Fee...........................
================================================= ==================================================================
</TABLE>
(1) Pursuant to Rule 457, the offering price of such shares is estimated solely
for the purpose of determining the registration fee.
<PAGE>
PART 2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
registration statement.
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1995;
(c) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission
on August 3, 1995 under Section 12 of the Securities Exchange
Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of
this registration statement and prior to the filing of a post-effective
amendment to this registration statement which indicates that all securities
offered hereunder have been sold, or which deregisters all securities then
remaining unsold under this registration statement, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document or incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement. All
information in this Registration Statement is qualified in its entirety by the
information and financial statements (including the notes thereto) appearing in
the documents incorporated herein by reference, except to the extent set forth
in the immediately preceding statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be offered is registered
under Section 12 of the Securities Exchange Act of 1934.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Martin C. Licht, a director of the Company, is counsel to the Company.
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<PAGE>
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law ("DGCL") permits,
in general, a Delaware corporation to indemnify any person made, or threatened
to be made, a party to an action or proceeding by reason of the fact that he or
she was a director or officer of the corporation, or served another entity in
any capacity at the request of the corporation, against any judgment, fines,
amounts paid in settlement and expenses, including attorney's fees actually and
reasonably incurred as a result of such action or proceeding, or any appeal
therein, if such person acted in good faith, for a purpose he or she reasonably
believed to be in, or, in the case of service for another entity, not opposed
to, the best interests of the corporation and, in criminal actions or
proceedings, in addition had no reasonable cause to believe that his or her
conduct was unlawful. Section 145(e) of the DGCL permits the corporation to pay
in advance of a final disposition of such action or proceeding the expenses
incurred in defending such action or proceeding upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount as, and to the
extent, required by statute. Section 145(f) of the DGCL provides that the
indemnification and advancement of expense provisions contained in the DGCL
shall not be deemed exclusive of any rights to which a director or officer
seeking indemnification or advancement of expenses may be entitled.
The Company's Certificate of Incorporation provides, in general, that
the Company shall indemnify, to the fullest extent permitted by Section 145 of
the DGCL, any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities or other
matters referred to in, or covered by, said section. The Certificate of
Incorporation also provides that the indemnification provided for therein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to actions taken in his or her official capacity
and as to acts in another capacity while holding such office.
In accordance with that provision of the Certificate of Incorporation,
the Company shall indemnify any officer or director (including officers and
directors serving another corporation, partnership, joint venture, trust, or
other enterprise in any capacity at the Company's request) made, or threatened
to be made, a party to an action or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that he or she was
serving in any of those capacities against judgments, fines, amounts paid in
settlement and reasonable expenses (including attorney's fees) incurred as a
result of such action or proceeding. Indemnification would not be available if a
judgment or other final adjudication adverse to such director or officer
establishes that (I) his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty or (ii) he or she personally gained
in fact a financial profit or other advantage to which he or she was not legally
entitled.
There is no litigation pending, and neither the registrant nor any of
its directors know of any threatened litigation, which might result in a claim
for indemnification by any director or officer.
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<PAGE>
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Number Description of Exhibit
4.1 -- Consulting Agreement between the Company and Alexander Troy
Consultants, Inc.
5.1 -- Opinion of Martin C. Licht, Esq., counsel to the Company.
23.1 -- Consent of Feldman Radin & Co., P.C.
Item 9. UNDERTAKINGS.
1. The undersigned, Company, hereby undertakes:
(a) To file, during any period in which the Company offers
or sells securities, a post-effective amendment(s) to this registration
statement:
(1) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(2) To reflect in the prospectus any facts or
events which, individually or together
represent a fundamental change in the
information in the registration statement;
and
(3) To include any additional or changed
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;
Provided, however, that paragraphs 1(a)(1) and 1(a)(2) do
not apply if the information required to be included in a
post-effective, amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(b) 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; and
(COPYRIGHT) 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.
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<PAGE>
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission (the "Commission") such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on November 21, 1996.
GAYLORD COMPANIES, INC.
By: /s/ John D. Critser
------------------------------
John D. Critser, President, Chief Operating Officer,
Director
By: /s/ John Gaylord
-------------------------------
John Gaylord, Chairman of the Board, Chief
Executive Officer, Treasurer, Chief Financial
Officer and Director
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>
Name Title Date
<S> <C>
/s/ John D. Critser President, Chief Operating Officer, November 21, 1996
- ---------------------- Director
John D. Critser
/s/ John Gaylord Chairman of the Board, Chief November 21, 1996
- ---------------------- Executive Officer, Treasurer, Chief
John Gaylord Financial Officer and Director
/s/ George Gaylord Senior Chairman of the Board November 21, 1996
- ----------------------
George Gaylord
/s/ Martin C. Licht Director November 21, 1996
- ----------------------
Martin C. Licht
</TABLE>
EXHIBIT 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of this 18th day
of November, 1996, by and between Gaylord Companies, Inc., Columbus, Ohio, a
Delaware corporation having an office at 4006 Venture Court, Columbus, Ohio
43228 (the "Company") and Alexander Troy Consultants, Inc., a Florida
corporation having an office at 1515 S. Orlando Avenue, Suite 1200, Maitland,
Florida 32751 (the "Consultant").
RECITALS
WHEREAS, the Company desires to engage the Consultant to provide
certain consulting services with respect to the Company's business and the
Consultant is willing to provide such services on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereby
agree as follows:
4. Consulting Engagement. On the terms and subject to the conditions
herein contained, the Company hereby engages Consultant as a consultant, and
Consultant hereby accepts such engagement. Consultant's duties shall be to
consult with the Board of Directors and management of the Company, from time to
time, as requested by the Company with regard to financial public relations,
strategic planning and business development, including targeting of acquisitions
for the Company and such other aspects of the business of the Company as
Consultant and the Company may agree from time to time. Consultant agrees to use
its best efforts to perform all services required hereunder in a competent and
timely manner. The Consultant shall be required to render on a monthly basis a
written report, within ten days of the end of each month, to the Company with
respect to the foregoing services and documenting its activities.
5. Compensation. In consideration of the consulting services to be
rendered as set forth herein, and subject to the terms and conditions set forth
herein, the Company shall issue to the Consultant 100,000 shares of the
Company's common stock, $.01 par value.
6. Term of the Agreement.
(a) The term of this Agreement shall commence as of the date first
set forth above, and, shall continue for a period of six months unless earlier
terminated pursuant hereto, such term may be extended for an additional six
months upon the mutual agreement of the Company and the Consultant.
(b) In the event that the Company is not satisfied with the
Consultant's services provided hereunder in the Company's sole discretion, then
within forty five days of the date hereof, the Company shall send written notice
to the Consultant terminating this Agreement and within five days thereafter,
the Consultant shall return all of the compensation received
-1-
<PAGE>
hereunder less the actual documented out-of-pocket expenses of the Consultant,
which amount of expenses shall not exceed the compensation received by the
Consultant.
(c) In addition to the rights provided in paragraph 3(b), in the
case of any material breach by Consultant of its obligations under this
Agreement, the Company may terminate this Agreement upon thirty (30) days
written notice, such notice to describe the breach in detail, unless Consultant
has cured the breach within such thirty (30) day period, or in the event that
the breach cannot be cured within such period, Consultant has commenced with due
diligence to cure such breach.
(d) The termination of this Agreement by either party hereto shall
not affect, restrict, diminish or remove any rights, obligations or remedies
held or arising by either party under the terms of this Agreement up to and
through the effective date of termination hereof.
7. Representations, Warranties and Covenants of the Consultant.
(a) The Consultant hereby represents and warrants that it has full
power and legal right and authority to execute, deliver and perform under this
Agreement, that the officers and individuals executing this Agreement on behalf
of the Consultant shall have full power and authority to do so.
(b) The Consultant hereby represents and warrants:
(i) This Agreement has been duly authorized by all
necessary corporate and individual action, executed
and delivered by the Consultant and constitutes the
legal, valid and binding obligation of the
Consultant, enforceable against the Consultant in
accordance with its terms, subject only to applicable
bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the rights of
creditors generally and to general principles of
equity.
(ii) Neither Consultant, nor its affiliates, officers or
directors, as such terms are defined under the
Securities Act, shall be engaged, directly or
indirectly, in capital-raising transactions in
connection with the services to be rendered
hereunder.
(iii) Consultant is an accredited investor as that term is
defined in the Securities Act of 1933.
(iv) David Heredia will perform substantially all of the
consulting tasks to be performed by Consultant
hereunder.
(v) No petition under any Federal or State bankruptcy or
insolvency law has been filed by or against
Consultant.
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<PAGE>
(vi) Neither Consultant nor any affiliate, officer or
director has been convicted in a criminal proceeding,
nor is the subject of a criminal proceeding which is
presently pending or threatened.
(vii) Neither Consultant nor any affiliate, officer or
director has been the subject of any order, judgment
or decree, not subsequently reversed, suspended or
vacated, which permanently or temporarily enjoined
them from any of the following activities:
(A) acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool
operator, floor broker, leverage transaction merchant
or any other person regulated by the Commodity
Futures Trading Commission; or as an associated
person of any of the foregoing; or as an investment
advisor, underwriter, broker or dealer in securities,
or as an affiliated person, director or employee of
an investment company, bank, savings and loan
association or insurance company or any other person
regulated by the Securities and Exchange Commission;
or engaging in or continuing any conduct or practice
in connection with such activities;
(B) engaging in any type of business practice;
(C) engaging in any activity in connection with the
purchase or sale of any security or commodity in
connection with any violation of Federal or State
securities laws or Federal commodities laws.
(viii) Neither Consultant nor any affiliate, officer or
director has been the subject of any order, judgment
or decree, not subsequently reversed, suspended or
vacated, of any Federal or State authority barring,
suspending or otherwise limiting for more than thirty
(30) days their right to engage in any of the
activities described above or their right to be
associated with persons engaged in any of such
activities.
(ix) Neither Consultant nor any affiliate, officer or
director has been found by a court in a civil or
criminal action or by the Securities and Exchange
Commission or the Commodity Futures Trading
Commission to have violated any Federal or State
securities law, or any Federal commodities law, where
such judgment has not subsequently been reversed,
suspended or vacated.
(x) Neither Consultant nor any affiliate, officer or
director has been the subject of any professional
disciplinary proceeding.
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<PAGE>
(xi) No administrative sanctions have been levied against
Consultant.
(c) The Consultant hereby covenants and agrees to indemnify and hold
harmless the Company from and against and in respect of (i) any and all losses
and damages resulting from any misrepresentation or breach of any warranty,
covenant or agreement by the Consultant made in paragraph 4(b) and (ii) any and
all actions, suits, proceedings, claims, demands, judgments, costs, and
expenses, including attorney's fees, incident to the foregoing.
8. Confidentiality. Consultant understands that, in performing its
responsibilities hereunder, it will have access to Confidential Information (as
hereinafter defined) of the Company. Consultant shall hold in strict confidence
unless compelled to disclose by judicial or administrative process, or, in the
opinion of counsel, by other requirements of law, Confidential Information (as
hereinafter defined) and shall not release or disclose such information to any
other person, except its employees, auditors, attorneys, representatives and
other advisors and agents in connection with this Agreement and the services to
be provided hereunder, provided that any such person shall have first been
advised of and agreed to the confidentiality provisions of this Section 5. For
purposes hereof, "Confidential Information" shall mean all information of any
kind which the Company deems to be confidential, except information (i)
disclosed in any filing by the Company pursuant to the Securities Exchange Act
of 1934, (ii) available to the public other than as a result of a disclosure by
Consultant in violation of the terms hereof, (iii) available to Consultant on a
non-confidential basis prior to disclosure to Consultant by the Company, or (iv)
available to Consultant on a non-confidential basis from a source other than the
Company, provided that such source is not known by Consultant to be bound by a
confidentiality agreement with the Company or otherwise is known by Consultant
to be prohibited by a contractual, legal or fiduciary obligation from
transmitting the information to Consultant.
9. Authorization. Each party hereto has taken all necessary action to
duly authorize the execution, delivery and performance of this Agreement.
10. Modification. Except as otherwise provided herein, this Agreement
may not be modified, changed, discharged, waived or terminated except by an
instrument in writing signed by the party against whom the enforcement of any
such modification, change, discharge, waiver or termination is sought.
11. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
12. Notices. All notices and other communications hereunder to any
party shall be in a written instrument delivered by hand or duly sent by first
class, registered or certified mail, return receipt requested and postage
prepaid, addressed to such party at the address set forth on the first page of
this Agreement or such other address as may hereafter by designated in
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<PAGE>
writing by the addressee. All such notices and communications shall be deemed to
have been received (a) in the case of personal delivery, on the date of such
delivery, and (b) in the case of mailing, on the fifth day following the date of
such mailing.
13. Survival. The indemnification granted under Section 4 above shall
survive the termination or cancellation of this Agreement and shall be binding
upon and inure to the benefit of the parties hereto, their successors and
assigns.
14. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
permitted assigns and representatives. This Agreement shall not be assignable in
whole or in part, in any of its terms, obligations, responsibilities or
provisions by any party hereto without the express written consent of the other
party; provided, however, that this provision shall in no way limit the right of
Consultant to enlist, hire or retain counsel, consultants, advisors, experts or
other third parties to assist it in carrying out and administering its duties
and responsibilities hereunder.
15. Relationship. The sole relationships existing between the Company
and Consultant shall be that as specifically provided under the terms of this
Agreement. This Agreement shall not be construed as creating any partnership,
joint venture or any other form of joint operation or organization wherein the
parties hereto are deemed to be partners.
16. Cooperation. The parties hereto agree to execute and deliver from
time to time such additional documents, instruments, agreements, and other
evidences of authority as may be necessary or prudent to carry out the intent of
this Agreement and the transactions contemplated hereby.
17. Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
18. Severability. The invalidity or unenforceability of any provision
hereof shall in no way effect the validity or enforceability of any other
provision. The parties to this Agreement agree and intend that this Agreement
shall be enforced as fully as it may be enforced consistent with applicable
statutes and rules of law.
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<PAGE>
19. 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 law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
GAYLORD COMPANIES, INC.
By: /s/ John D. Critser
-------------------------------
Name: John D. Critser
Title: President
ALEXANDER TROY CONSULTANTS, INC.
By: /s/ David S. Heredia
-------------------------------
Name: David S. Heredia
Title: President and Chief Executive Officer
-6-
MARTIN C. LICHT EXHIBIT 5.1
12 East 49th Street, 37th Floor
New York, N.Y. 10017
(212) 317-8872
Facsimile: (212) 371-9735
November 22, 1996
Gaylord Companies, Inc.
4006 Venture Court
Columbus, Ohio 43228
Attn: John Gaylord
Re: Registration Statement on Form S-8
Gentlemen:
I refer to the offering (the "Offering") of the following securities
(collectively, the "Securities") of Gaylord Companies, Inc., a Delaware
corporation (the "Company"), as described in the Registration Statement on Form
S-8 to be filed with the Securities and Exchange Commission as subsequently
amended from time to time (collectively, the "Registration Statement"):
A. 100,000 shares of Common Stock, $.01 par value (the "Common
Stock"), of the Company, being registered on behalf of the Company;
In furnishing my opinion, I have examined copies of the Registration
Statement and the Exhibits thereto. I have conferred with officers of the
Company and have examined the originals or certified, conformed or photostatic
copies of such records of the Company, certificates of officers of the Company,
certificates of public officials, and such other documents as I have deemed
relevant and necessary under the circumstances as the basis of the opinion
expressed herein. In all such examinations, I have assumed the authenticity of
all documents submitted to me as originals or duplicate originals, the
conformity to original documents of all document copies, the authenticity of the
respective originals of such latter documents, and the correctness and
completeness of such certificates. Finally, I have obtained from officers of the
Company such assurances as I have considered necessary for the purposes of this
opinion.
Based upon and subject to the foregoing and such other matters of
fact and questions of law as I have deemed relevant in the circumstances, and in
reliance thereon, it is our
<PAGE>
opinion that, when and if (a) the Registration Statement shall be declared
effective by the Securities and Exchange Commission, as the same may hereafter
be amended; and (b) the Securities to be sold for the account of the Company
shall have been sold as contemplated in the Registration Statement, then all of
the Securities, upon execution and delivery of proper certificates therefor,
will be duly authorized, validly issued and outstanding, fully paid and
nonassessable.
I hereby consent to the use of my name in the Registration Statement
and in the prospectus forming a part of the Registration Statement (the
"Prospectus"), to references to this opinion contained therein under the caption
of the Prospectus entitled "Legal Matters," and to the inclusion of this opinion
in the Exhibits to the Registration Statement.
I am a director of the Company.
I am a member of the Bar of the State of New York and I do not
express herein any opinion as to any matters governed by any law other than the
law of the State of New York, the corporate law of the State of Delaware, and
the Federal laws of the United States.
This opinion is limited to the matters set forth herein, and may not
be relied upon in any matter by any other person or used for any other purpose
other than in connection with the corporate authority for the issuance of the
Securities pursuant to and as contemplated by the Registration Statement.
Very truly yours,
MARTIN C. LICHT
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement on Form S-8 of our
report dated February 16, 1996, relating to the consolidated financial
statements of Gaylord Companies, Inc. and the reference to our firm in this
Registration Statement.
/s/ Feldman Radin & Co., P.C.
------------------------------
FELDMAN RADIN & CO., P.C.
Certified Public Accountants
New York, New York
November 22, 1996
