As filed with the Securities and Exchange Commission on December 31, 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 LISA MARUSTER
(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> <C> <C> <C>
Shares of Common Stock, $.01 par value
("Common Stock")........................... 10,000 $1. 25 $12,500 3.79
Total Registration Fee...........................
</TABLE>
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(1) Pursuant to Rule 457, the offering price of such shares is estimated solely
for the purpose of determining the registration fee.
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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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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 -- Option Agreement between the Company and Lisa Maruster.
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
(c) 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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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 December 19, 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.
NAME
TITLE DATE
/S/ JOHN D. CRITSER President, Chief Operating Officer, December 19,
John D. Critser Director 1996
/S/ JOHN GAYLORD Chairman of the Board, Chief December 19,
John Gaylord Executive Officer, Treasurer, Chief 1996
Financial Officer and Director
/S/ GEORGE GAYLORD Senior Chairman of the Board December 19,
George Gaylord 1996
/S/ MARTIN C. LICHT Director December 19,
Martin C. Licht 1996
<PAGE>
EXHIBIT 4.1
GAYLORD COMPANIES, INC.
STOCK OPTION AGREEMENT
This Agreement, dated as of December 1, 1996 by and between Gaylord
Companies, Inc., a Delaware corporation (the "Company"), and Lisa Maruster (the
"Optionee").
W I T N E S S E T H:
WHEREAS, the Company considers it to be in its best interests and in
the best interests of its stockholders that the Optionee be given the
opportunity to acquire a proprietary interest in the Company by possessing an
option to purchase certain shares of common stock, par value $.01 per share (the
"Common Stock"), of the Company in accordance with the provisions set forth
below;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, it is agreed by and between the parties as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee the right,
privilege and option (the "Option") to purchase all or any part of 10,000 shares
of Common Stock (the "Option Shares") at a purchase price of $.01 per share in
the manner and subject to the conditions provided herein.
2. TIME OF EXERCISE OF OPTION. The Option is exercisable in full
commencing on the date hereof, subject to the terms of this Agreement.
3. METHOD OF EXERCISE. The Option shall be exercised by written
notice directed to the Company at the Company's principal place of business,
accompanied by a check in payment of the option price for the number of Option
Shares specified and paid for in full. The Company shall make prompt delivery of
such Option Shares once payment clears, provided that if any law or regulation
requires the Company to take any action with respect to the Option Shares
specified in such notice before the issuance thereof, then the date of delivery
of such Option Shares shall be extended for the period necessary to take such
action. If the Optionee fails to pay for any of the Option Shares specified in
such notice or fails to accept delivery thereof, the Optionee's right to
purchase such Option Shares may be terminated by the Company. The date specified
in the Optionee's notice as the date of exercise shall be deemed the date of
exercise of the Option, provided that payment in full for the Option Shares to
be purchased upon such exercise shall have been received by such date. No
fractional shares may be purchased hereunder.
4. TERMINATION OF OPTION. The Option and all rights granted by this
Agreement, to the extent such rights have not been exercised, will terminate and
become null and void one year from the date hereof.
<PAGE>
5. LIMITATIONS ON TRANSFER. The rights granted to the Optionee
hereunder may not be transferred, pledged, assigned or hypothecated in any way.
6. ADJUSTMENTS IN EVENT OF CHANGE IN COMMON STOCK. In the event of
any change in the Common Stock by reason of any stock dividend,
recapitalization, reorganization, merger, consolidation, split-up, combination
or exchange of shares, or rights offering to purchase Common Stock at a price
substantially below fair market value, or of any similar change affecting the
Common Stock, the number and kind of Option Shares subject to Option hereunder
and the purchase price per Option Share thereof shall be appropriately adjusted
consistent with such change in such manner as the Committee may deem equitable.
7. RIGHTS PRIOR TO EXERCISE OF OPTION. The Optionee shall have no
rights as a stockholder of the Company with respect to the Option Shares until
full payment of the option price and delivery of such Option Shares as herein
provided. Nothing contained herein or in the Plan shall be construed as creating
or evidence of any agreement on the part of the Company to employ or retain the
Optionee in any capacity.
8. INVESTMENT REPRESENTATION. This Option may not be exercised if
the issuance of shares of Common Stock of the Company upon such exercise would
constitute a violation of any applicable Federal or state securities or other
laws or regulations. The Optionee, as a condition to the Optionee's exercise of
this Option, shall represent to the Company that the shares of Common Stock that
the Optionee acquires hereunder are being acquired by the Optionee for
investment and not with a view to distribution or resale thereof, unless counsel
for the Company is then of the opinion that such a representation is not
required under the Securities Act of 1933, as amended, or any other applicable
law, regulation or rule of any governmental agency.
9. WAIVER; ENTIRE AGREEMENT. No waiver of any breach or condition of
this Agreement shall be deemed to be a waiver of any other or subsequent breach
or condition, whether of like or different nature. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof.
10. GOVERNING LAW. The validity, construction, interpretation and
effect of this Agreement shall exclusively be governed by and determined in
accordance with the internal laws of the State of Delaware. which is the sole
jurisdiction in which any issues relating to this Agreement may be litigated.
11. BINDING EFFECT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the date and year first above written.
GAYLORD COMPANIES, INC.
By: /S/ JOHN D. CRITSER
John D. Critser, President
THE OPTIONEE
/S/ LISA MARUSTER
LISA MARUSTER
<PAGE>
EXHIBIT 5.1
MARTIN C. LICHT
12 East 49th Street, 37th Floor
New York, N.Y. 10017
(212) 317-8872
Facsimile: (212) 371-9735
December 19, 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"):
1. 10,000 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
<PAGE>
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
December 31, 1996
