As filed with the Securities and Exchange Commission on February 28, 1997
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 43228
(Address of principal executive offices) (Zip Code)
Consulting Agreement between Gaylord Companies, Inc. and Gary Stein
(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
================================================================================
Title of Each Class Amount to Proposed Proposed Amount of
of Securities be Offering Price Aggregate Registration
to be Registered Registered Per Share(1) Offering Price Fee
- --------------------------------------------------------------------------------
Shares of Common Stock,
$.01 par value
("Common Stock")........... 150,000 $1.50 $225,000.00 $68.18
- --------------------------------------------------------------------------------
Total Registration Fee..... $68.18
================================================================================
(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.
-2-
<PAGE>
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Martin C. Licht, a director of the Company, is a member of Lane &
Mittendorf LLP, counsel to the Company.
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
-3-
<PAGE>
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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Number Description of Exhibit
4.1 -- Consulting Agreement between the Company and Gary Stein.
5.1 -- Opinion of Lane & Mittendorf LLP, 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
-4-
<PAGE>
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.
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.
-5-
<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 February 28, 1997.
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 February 28, 1997
John D. Critser Officer, Director
/s/John Gaylord
__________________ Chairman of the Board, Chief February 28, 1997
John Gaylord Executive Officer, Treasurer,
Chief Financial Officer, Director
/s/George Gaylord
__________________ Senior Chairman of the Board February 28, 1997
George Gaylord
/s/Martin C. Licht
__________________ Director February 28, 1997
Martin C. Licht
EXHIBIT 4.1
CONSULTING AGREEMENT
AGREEMENT dated as of February 27, 1997 by and between GAYLORD COMPANIES,
INC., a Delaware corporation having an office at 4006 Venture Court, Columbus,
Ohio 43228 (the "Company"), and GARY STEIN (the "Consultant"), having an office
at 124 North Ardmore Road, Columbus, Ohio 43209.
W I T N E S S E T H:
WHEREAS, the Company wishes to retain Consultant to provide the Company
with certain consulting services and Consultant is willing to provide such
consulting services, on the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements hereinafter contained, the parties hereby agree
as follows:
SECTION 1. Retention; Duties. 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 operations, 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 his best efforts to
perform all services required hereunder in a competent and timely manner.
<PAGE>
SECTION 2. Term of the Agreement.
(a) The term of this Agreement shall commence as of the date first set
forth above, and, unless earlier terminated pursuant hereto, shall continue for
a period of two (2) years.
(b) In the case of any material breach by Consultant of his 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.
(c) 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.
SECTION 3. Consultant's Compensation. The Company shall issue to Consultant
150,000 shares of the Company's common stock, $.01 par value (the "Common
Stock") for services previously rendered to the Company, and commencing July 1,
1997 shall pay to Consultant the sum of $6,000 per month on or before the tenth
day of each month.
SECTION 4. Other Benefits and Expenses
The Company shall pay or reimburse Consultant for all reasonable and
necessary expenses incurred by him in connection with his duties hereunder, upon
submission by Consultant to the Company of such written evidence of such expense
as the Company may
-2-
<PAGE>
require. The Consultant shall obtain the prior written approval of the Company
for any expense in excess of $200.
SECTION 5. Confidentiality. Consultant understands that, in performing his
responsibilities hereunder, he 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 his 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 (1)
disclosed in any filing by the Company pursuant to the Securities Exchange Act
of 1934, (2) available to the public other than as a result of a disclosure by
Consultant in violation of the terms hereof, (3) available to Consultant on a
non-confidential basis prior to disclosure to Consultant by the Company, or (4)
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.
-3-
<PAGE>
SECTION 6. No Solicitation. Consultant agrees that during the term of this
Agreement and for a period of one (1) year following the expiration of this
Agreement, he will not solicit the employment of any employee of the Company on
behalf of any other person, firm, corporation or other entity or otherwise
interfere with the employment relationship between any employee or officer of
the Company and the Company.
SECTION 7. Limitation of Liability; Indemnification.
(a) Consultant shall have no liability to the Company, its shareholders or
to any third party for any losses, liabilities, obligations, fines, injunctions
or other costs or expenses of any kind directly or indirectly sustained, or
incurred or arising as a result of the services that are the subject of this
Agreement (or any action or inaction of any third party retained by or acting on
behalf of Consultant hereunder) or for any other cause or reason, except as may
result from Consultant's gross negligence or wilful misconduct in the
performance of his duties hereunder.
(b) The Company agrees to indemnify and hold Consultant harmless from and
against any losses, claims, damages or liabilities, joint or several, to which
Consultant may become subject in connection with the services which are the
subject of this Agreement, and to reimburse Consultant for any out-of-pocket
expenses including reasonable fees and expenses of counsel (including the cost
of any investigation and preparation) incurred by Consultant in connection
therewith, whether or not resulting in any liability; provided, however, that
the Company shall not be liable under the foregoing indemnity to the extent that
a court having jurisdiction shall have determined by a final judgment that such
loss, claim, damage or liability resulted from the
-4-
<PAGE>
willful misconduct or gross negligence of Consultant. This indemnification shall
remain in full force and effect following the completion or termination of this
Agreement.
(c) Consultant agrees to indemnify and hold the Company harmless from and
against any losses, claims, damages or liabilities, joint or several, to which
the Company may become subject in connection with the services which are the
subject of this Agreement, and to reimburse the Company for any out-of-pocket
expenses including reasonable fees and expenses of counsel (including the cost
of any investigation and preparation) incurred by the Company in connection
therewith, whether or not resulting in any liability; provided, however, that
Consultant shall not be liable under the foregoing indemnity except to the
extent that a court having jurisdiction shall have determined by a final
judgment that such loss, claim, damage or liability resulted from the willful
misconduct or gross negligence of Consultant. The indemnity agreement in this
paragraph shall, upon the same terms and conditions, extend to and inure to the
benefit of each person, if any, who may be deemed to control the Company and to
the respective officers, directors, employees and advisors of the Company and
such control persons. This indemnification shall remain in full force and effect
following the completion or termination of this agreement.
(d) If any lawsuit or enforcement action is filed against any party
entitled to the benefit of indemnity under this Section 7 by any third party,
written notice thereof shall be given to the indemnifying party as promptly as
practicable; provided that the failure of any indemnified party to give timely
notice shall not affect rights to indemnification hereunder except to the extent
that the indemnifying party demonstrates that such failure was prejudicial to
the ability of the indemnifying party to defend such lawsuit or action and
resulted in increased cost to the indemnifying party pursuant to this Section 7.
After such notice, if the indemnifying party shall
-5-
<PAGE>
acknowledge in writing to such indemnified party that such indemnifying party
shall be obligated under the terms of its indemnity hereunder in connection with
such lawsuit or action, then the indemnifying party shall be entitled, if it so
elects, to take control of the defense and investigation of such lawsuit or
action and to employ and engage attorneys of its own choice to handle and defend
the same, at the indemnifying party's cost, risk and expense; and such
indemnified party shall cooperate in all reasonable respects, at the
indemnifying party's cost, risk and expense, with the indemnifying party and
such attorneys in the investigation, trial and defense of such lawsuit or action
and any appeal arising therefrom; provided, however, that the indemnified party
may, at its own cost, participate in such investigation, trial and defense of
such lawsuit or action and any appeal arising therefrom. However, if the
defendants in any action involve both the indemnifying party and the indemnified
party, and the indemnified party concludes that representation of both the
indemnifying party and the indemnified party by the same counsel is
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them or for some other reason, then the
indemnifying party shall have the right, at the expense of the indemnifying
party, to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of the indemnified party.
(e) In the case of any legal action directly between the Company and
Consultant with regard to any matter covered by the provisions of this Section
7, the non-prevailing party shall pay all reasonable attorney's fees and
expenses of the prevailing party incurred solely as a result of such action.
-6-
<PAGE>
SECTION 8. Authorization. Each party hereto has taken all necessary action
to duly authorize the execution, delivery and performance of this Agreement.
SECTION 9. 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.
SECTION 10. 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.
SECTION 11. 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 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.
-7-
<PAGE>
SECTION 12. Survival. The indemnification granted under Section 7 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.
SECTION 13. 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 him in carrying out and administering his duties
and responsibilities hereunder.
SECTION 14. 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.
SECTION 15. 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.
-8-
<PAGE>
SECTION 16. 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.
SECTION 17. 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.
SECTION 18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, 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.
/s/ John Gaylord
By: -----------------------------------
Name: John Gaylord
Title: Chairman and Chief
Executive Officer
/s/Gary Stein
-------------------------------------------
GARY STEIN
EXHIBIT 5.1
LANE & MITTENDORF LLP
320 Park Avenue
New York, New York 10022
(212) 508-3200
Facsimile: (212) 508-3230
February 28, 1997
Gaylord Companies, Inc.
4006 Venture Court
Columbus, Ohio 43228
Attn: John Gaylord:
Re: Registration Statement on Form S-8
Gentlemen:
We refer to the offering (the "Offering") of 150,000 shares of common
stock, $.01 par value (the "Common Stock"), of Gaylord Companies, Inc., a
Delaware corporation (the "Company"), being registered on behalf of 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").
In furnishing our opinion, we have examined copies of the Registration
Statement and the Exhibits thereto. We 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 we have deemed
relevant and necessary under the circumstances as the basis of the opinion
expressed herein. In all such examinations, we have assumed the authenticity of
all documents submitted to us 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, we have obtained from officers of
the Company such assurances as we 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 we have deemed relevant in the circumstances, and in
reliance thereon, it is our 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 shares of Common Stock to be
sold for the account of the Company shall have been sold as contemplated in the
Registration Statement, then all of the shares of common Stock, upon
<PAGE>
execution and delivery of proper certificates therefor, will be duly authorized,
validly issued and outstanding, fully paid and nonassessable.
We hereby consent to the use of our name in the Registration Statement and
to the inclusion of this opinion in the Exhibits to the Registration Statement.
It should be noted that Martin C. Licht, a partner of this firm, serves in
a business capacity on the Board of Directors of the Company. No knowledge that
he may have as a result of his business association with the Company is to be
imputed to this firm.
We are admitted to the practice of law only in the State of New York. The
opinions set forth herein are based upon the laws 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
shares of Common Stock pursuant to and as contemplated by the Registration
Statement.
Very truly yours,
LANE & MITTENDORF LLP
-2-
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
February 28, 1997
