Registration No. 33-84262
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-3
TO REGISTRATION STATEMENT ON FORM S-1
Under
THE SECURITIES ACT OF 1933
MVE Holdings, Inc.
(Exact name of co-registrant as specified in its charter)
DELAWARE 41-1641718
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
MVE, Inc.
(Exact name of co-registrant as specified in its charter)
DELAWARE 41-1396485
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Two Appletree Square, Suite 100
8011 34th Avenue South
Bloomington, MN 55425
(612) 853-9626
(Address, including zip code and telephone number, including
area code, of registrants' principal executive offices)
____________________
J. David O'Halloran
Two Appletree Square, Suite 100
8011 34th Avenue South
Bloomington, MN 55425
(612) 853-9626
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
C. Porter Vaughan, III
Hunton & Williams
951 East Byrd Street
Richmond, VA 23219
(804) 788-8200
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this
Registration Statement.
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.
<PAGE>
Prospectus
June __, 1996
MVE HOLDINGS, INC.
This Prospectus relates to the offer and sale (the
"Offering") by MVE Holdings, Inc., a Delaware corporation
("Holdings"), of 26,880 shares (the "Warrant Shares") of common
stock, no par value, of Holdings ("Holdings Common Stock")
issuable upon exercise of warrants (the "Warrants"). The
Warrants were issued by Holdings in February 1995 in connection
with the registered offering by Holdings and its wholly-owned
subsidiary, MVE, Inc., a Delaware corporation (the "Company") of
112,000 units (the "Units"), each consisting of $1,000 principal
amount of 12 1/2% senior secured notes due 2002 (the "Senior Secured
Notes") of the Company and one Warrant to purchase 0.24 shares of
Holdings Common Stock. Each Warrant is exercisable on or before
February 15, 2002 for an exercise price of $0.01 per share
issuable upon exercise. The Warrants are exercisable in the
aggregate for approximately 5.0% of Holdings Common Stock. The
number of shares of Holdings Common Stock for which, and the
price per share at which, a warrant is exercisable, are subject
to adjustment upon the occurrence of certain events as provided
in the Warrant Agreement (as defined herein). See "Description
of Warrants - Adjustments." Holdings will receive the proceeds
from the exercise of the Warrants. See "Use of Proceeds."
Holdings has not applied, and will not apply, for the listing of
the Warrants or the Warrant Shares on any national securities
exchange.
See "Risk Factors" for a discussion of certain factors that
should be considered in connection with investment in the Warrant
Shares.
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 COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
Underwriting
Price to Discounts Proceeds
the Public 1/ and Commissions to Holdings 1/
Per Share
of Holdings
Common Stock $0.01 n/a $0.01
Total $268.80 n/a $268.80
__________
1/ The number of shares of Holdings Common Stock for which, at
the price per share of which a warrant is exercisable, are
subject to adjustment upon the occurrence of certain events as
provided in the Warrant Agreement (as defined herein). See
"Description of Warrants - Adjustments."
<PAGE>
No person has been authorized to give any information or to make
any representation not contained in this Prospectus and, if given
or made, such information or representation must not be relied
upon as having been authorized by Holdings or the Company. This
Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, the Warrant Shares in any
jurisdiction 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 Holdings or the Company since the date hereof or that
information contained herein is correct as of any time subsequent
to its date.
Table of Contents
MVE HOLDINGS, INC. . . . . . . . . 3
AVAILABLE INFORMATION. . . . . . . 3
INFORMATION INCORPORATED BY
REFERENCE. . . . . . . . . . . 3
RISK FACTORS . . . . . . . . . . . 4
USE OF PROCEEDS. . . . . . . . . . 5
PLAN OF DISTRIBUTION . . . . . . . 5
DESCRIPTION OF THE WARRANTS. . . . 5
DESCRIPTION OF CAPITAL STOCK . . . 7
CERTAIN FEDERAL INCOME TAX
CONSIDERATIONS . . . . . . . . 8
EXPERTS. . . . . . . . . . . . . . 9
<PAGE>
MVE HOLDINGS, INC.
Holdings' principal executive offices are located at Two
Appletree Square, Suite 100, 8011 34th Avenue South, Bloomington,
Minnesota 55425-1636, telephone 612-853-9600.
AVAILABLE INFORMATION
The Company and Holdings have filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement
under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Warrant Shares offered hereby. This
Prospectus does not contain all the information set forth in the
Registration Statement and the exhibits and schedules thereto, to
which reference is hereby made for further information.
Statements contained herein concerning the provisions of any
document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an
exhibit to the Registration Statement for a more complete
description of the matter involved and each such statement shall
be deemed qualified in its entirety by such reference.
The Registration Statement and the exhibits and schedules
thereto filed by the Company and Holdings with the Commission may
be inspected at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at the regional offices of the Commission located at 7
World Trade Center, New York, New York 10048 and Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such materials may be obtained
from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates.
INFORMATION INCORPORATED BY REFERENCE
The Annual Report on Form 10-K of Holdings and the Company
for the year ended February 29, 1996 filed with the Commission is
hereby incorporated by reference and made a part of this
Prospectus. All documents filed by Holdings and the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Securities and Exchange Act of 1934 (the "Exchange Act")
after the date of this Prospectus and prior to the termination of
the offering of the Warrant Shares offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be a
part hereof. Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document
which is incorporated by reference herein modifies or supersedes
such earlier 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.
Holdings will furnish without charge upon request to each
person to whom a copy of this Prospectus is delivered a copy of
any or all of the documents specifically incorporated herein by
reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference therein).
Requests should be addressed to: J. David O'Halloran, Two
Appletree Square, Suite 100, 8011 34th Avenue South, Bloomington,
Minnesota, 55425-1636 (telephone 612-853-9600).
<PAGE>
RISK FACTORS
Highly Leveraged Financial Position
Each of the Company and Holdings is highly leveraged and will
continue to be highly leveraged after all of the outstanding
Warrants are exercised. As of February 29, 1996, each of
Holdings and the Company had consolidated indebtedness of
approximately $133.2 million. Holdings would receive an
aggregate of $268.80 of proceeds if all of the outstanding
Warrants are exercised.
The substantial indebtedness of the Company and Holdings will
continue to limit their ability to respond to changing business
and economic conditions, which may affect the financial condition
or financing requirements of the Company and Holdings and could
impose risks on the holders of Holdings Common Stock. Moreover,
the indenture governing the Senior Secured Notes imposes
operating and financial restrictions on the Company. Such
restrictions will affect, and in many respects limit or prohibit,
among other things, the ability of the Company to incur
additional indebtedness, create liens, sell assets, engage in
mergers or consolidations or pay dividends or make certain other
payments.
The Company's $20 million revolving credit and letter of
credit facility (the "Credit Agreement") contains similar
restrictions and also requires the Company to satisfy certain
financial covenants. Any failure by the Company to comply with
these or other covenants and restrictions contained in the New
Credit Agreement could result in a default thereunder, which in
turn could cause such indebtedness to be declared immediately due
and payable. The ability of the Company to comply with these
covenants and restrictions may be affected by events beyond its
control.
The ability of the Company and Holdings to meet their debt
service obligations and pay dividends will depend on the future
operating performance and financial results of the Company, which
will be subject in part to factors beyond the control of the
Company, such as interest rates, prevailing economic conditions
and financial, business and other factors. The highly leveraged
position of the Company and the restrictive covenants contained
in the debt instruments of the Company could significantly limit
its ability to withstand competitive pressures or adverse
economic conditions, make acquisitions or take advantage of
business opportunities that may arise.
Holding Company Structure; Limitations on Access to Cash Flow and
Assets of the Company
Holdings conducts business through the Company and its direct
and indirect subsidiaries and has no operations of its own. The
only asset of Holdings is the common stock of the Company.
Holdings will be dependent on the cash flow of the Company in
order to pay dividends on Holdings Common Stock. The Credit
Agreement and the indenture governing the Senior Secured Notes
impose, and agreements entered into in the future may impose,
significant restrictions on the payment of dividends and the
making of loans by the Company to Holdings. The final amounts
outstanding under the Credit Agreement mature in 1998 and the
Senior Secured Notes mature in 2002.
Potential Absence of Active Market for Securities
There is currently no market for Holdings Common Stock and
Holdings does not intend to apply for listing of Holdings Common
Stock on any national securities exchange or admission of
Holdings Common Stock to trading on the NASDAQ National Market.
There can be no assurance that an active trading market will
develop for Holdings Common Stock. If an active public market
does not develop, the market price and liquidity of the Holdings
Common Stock may be adversely affected.
Change of Control
In the event of a "Change of Control," as defined in the
indenture governing the Senior Secured Notes, each holder of the
Senior Secured Notes will have the right to require the Company
to repurchase any or all of the Senior Secured Notes owned by
such holder at the prices stated herein. In addition, the Credit
Agreement provides that, if a Change of Control (as defined
therein) occurs, it will constitute an event of default under the
Credit Agreement. In the event of such a Change of Control, the
Company would be required to repay the indebtedness outstanding
under the Credit Agreement and the Company may be required to
repay the Senior Secured Notes. There can be no assurance that
the Company would have the resources necessary to repay such
indebtedness or that a Change of Control would not have a
material adverse effect on the value of Holdings Common Stock.
<PAGE>
USE OF PROCEEDS
Holdings would receive an aggregate of $268.80 of proceeds if
all of the outstanding Warrants are exercised.
PLAN OF DISTRIBUTION
The Warrant Shares issuable upon exercise of the Warrants
will be issued directly by Holdings to the holders of the
Warrants upon submission of the Warrants for exercise. The
exercise of the Warrants is subject to the terms of the Warrant
Agreement (as defined herein). See "Description of Warrants."
DESCRIPTION OF THE WARRANTS
General
The Warrants were issued pursuant to a warrant agreement (the
"Warrant Agreement"), dated as of February 16, 1995, between
Holdings and American Bank National Association, as Warrant Agent
(the "Warrant Agent"). The following summary of certain
provisions of the Warrant Agreement does not purport to be
complete and is qualified in its entirety by reference to the
Warrant Agreement, including the definitions therein of certain
terms.
Each Warrant, when exercised, will entitle the holder thereof
to receive 0.24 shares of Holdings Common Stock (each such share,
a "Warrant Share") at an exercise price of $0.01 per share (the
"Exercise Price"). The Exercise Price and the number of Warrant
Shares issuable on exercise of a Warrant are both subject to
adjustment in certain cases referred to below. Unless exercised,
the Warrants will automatically expire on February 15, 2002. The
Warrants will entitle the holders thereof to purchase in the
aggregate approximately 5.0% of the outstanding shares of
Holdings Common Stock as of the date hereof.
The Warrants may be exercised at any time by surrendering to
Holdings the Warrant certificates evidencing such Warrants, if
any, with the accompanying form of election to purchase, properly
completed and executed, together with payment of the Exercise
Price. Payment of the Exercise Price may be made (i) in the form
of cash or a certified or official bank check payable to the
order of Holdings or (ii) by surrender of additional Warrants.
Upon surrender of the Warrant certificate and payment of the
Exercise Price, the Warrant Agent will deliver or cause to be
delivered, to or upon the written order of such holder, stock
certificates representing the number of whole Warrant Shares,
together with any cash payable to adjust for fractional interests
in Warrant Shares issuable upon such exercise. If less than all
of the Warrants evidenced by a Warrant certificate are to be
exercised, a new Warrant certificate will be issued for the
remaining number of Warrants.
No service charge will be made for any exercise, exchange or
registration of transfer of Warrant certificates, but Holdings
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
No fractional Warrant Shares will be issued upon exercise of
the Warrants. If any fraction of a Warrant Share would, except
for the foregoing provision, be issuable on the exercise of any
Warrants (or specified portion thereof), Holdings will pay an
amount in cash equal to the current market price per Warrant
Share, as determined on the day immediately preceding the date
the Warrant is presented for exercise, multiplied by such
fraction. The holders of the Warrants have no right to vote on
matters submitted to the stockholders of Holdings and have no
right to receive cash dividends. The holders of the Warrants are
not entitled to share in the assets of Holdings in the event of
the liquidation, dissolution or winding up of Holdings' affairs.
In the event a bankruptcy or reorganization is commenced by
or against Holdings, a bankruptcy court may hold that unexercised
Warrants are executory contracts which may be subject to
rejection by Holdings with approval of the bankruptcy court, and
the holders of the Warrants may, even if sufficient funds are
available, receive nothing or a lesser amount as a result of any
such bankruptcy case than they would be entitled to if they had
exercised their Warrants prior to the commencement of any such
case.
<PAGE>
Adjustments
The number of Warrant Shares issuable upon the exercise of
the Warrants and the Exercise Price both will be subject to
adjustment in certain events including: (i) the payment by
Holdings of dividends (or other distributions) on Holdings Common
Stock payable in Holdings Common Stock or other shares of
Holdings' capital stock, (ii) subdivisions, combinations and
reclassifications of Holdings Common Stock, (iii) the issuance to
all holders of Holdings Common Stock of rights, options or
warrants entitling them to subscribe for Holdings Common Stock
within sixty (60) days after the record date for such issuance of
rights, options or warrants at an offering price which is less
than the current market price per share (as defined) of Holdings
Common Stock, (iv) the distribution to all holders of Holdings
Common Stock of any of Holdings' assets, debt securities or any
rights or warrants to purchase securities (excluding those rights
and warrants referred to in clause (iii) above), (v) the issuance
of shares of Holdings Common Stock for a consideration per share
less than the current market price for such a share, (vi) the
issuance of securities convertible into or exchangeable for
shares of Holdings Common Stock for a conversion or exchange
price less than the current market price for such shares of
Holdings Common Stock, (vii) the distribution to all holders of
Holdings Common Stock of cash in excess of certain specified
amounts or (viii) the consummation of a tender offer by Holdings
or any subsidiary of Holdings for Holdings Common Stock involving
consideration in excess of certain specified amounts. The events
described above are subject to certain exceptions described in
the Warrant Agreement.
In the event of a taxable distribution to holders of Holdings
Common Stock which results in an adjustment to the number of
Warrant Shares or other consideration for which a Warrant may be
exercised, the holders of the Warrants may in certain
circumstances be deemed to have received a distribution subject
to United States Federal income tax as a dividend. See "Certain
Federal Income Tax Considerations."
No adjustment in the Exercise Price will be required unless
such adjustment would require an increase or decrease of at least
one percent (1%) in the Exercise Price; provided, however, that
any adjustment which is not made will be carried forward and
taken into account in any subsequent adjustment. In addition,
Holdings may at any time reduce the Exercise Price to any amount
(but not less than the par value of Holdings Common Stock) for
any period of time (but not less than twenty (20) days) deemed
appropriate by Holdings.
In case of certain consolidations or mergers of Holdings, or
the sale of all or substantially all of the assets of Holdings to
another corporation, each Warrant shall thereafter be exercisable
for the right to receive the kind and amount of shares of stock
or other securities or property to which such holder would have
been entitled as a result of such consolidation, merger or sale
had the Warrants been exercised immediately prior thereto.
Amendment
From time to time, Holdings and the Warrant Agent, without
the consent of the holders of the Warrants, may amend or
supplement the Warrant Agreement for certain purposes, including
curing defects or inconsistencies or making any change that does
not materially adversely affect the rights of any holder of the
Warrants. Any amendment or supplement to the Warrant Agreement
that has a material adverse effect on the interests of the
holders of the Warrants shall require the written consent of the
holders of at least two-thirds of the then outstanding Warrants.
The consent of each holder of the Warrants affected shall be
required for any amendment pursuant to which the Exercise Price
would be increased, the number of Warrant Shares purchasable upon
exercise of Warrants would be decreased (other than pursuant to
adjustments provided in the Warrant Agreement) or the period for
exercise of the Warrants would be shortened.
Reports
Whether or not required by the rules and regulations of the
Commission, so long as any Warrants or Warrant Shares are
outstanding, Holdings will furnish to the holders of Warrants or
Warrant Shares all quarterly and annual financial information
that would be required to be contained in a filing with the
Commission on Forms 10-Q, 10-K and 8-K if Holdings were required
to file such forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by
Holdings' independent public accountants. In addition, whether
or not required by the rules and regulations of the Commission,
Holdings will file a copy of all such information and reports
with the Commission for public availability (unless the
Commission will not accept such a filing) and make such
information available to investors who request it in writing.
<PAGE>
Registration Rights
Pursuant to the Warrant Agreement, Holdings has agreed to
file a shelf registration statement under the Securities Act
covering the issuance of the Warrant Shares to the holders of the
Warrants upon exercise of the Warrants and resales of the Warrant
Shares by the holders thereof, and to use its best efforts to
cause such shelf registration statement to become effective on or
before 180 days after an initial public offering of Holdings
Common Stock (after the Offering) and to remain effective until
February 16, 1998. In addition, in the event Holdings engages in
such a public offering of Holdings Common Stock, the holders of
Warrants or Warrant Shares will, upon providing any information
required in connection therewith, be permitted to include their
Warrant Shares in such public offering, subject to certain
limitations. These undertakings are in addition to Holdings'
obligations under the Securities Act to update this Prospectus
periodically.
DESCRIPTION OF CAPITAL STOCK
The following summary description of the capital stock of
Holdings does not purport to be complete and is qualified in its
entirety by reference to the Certificate of Incorporation and
Bylaws of Holdings, copies of which are available from Holdings
upon request.
General
The authorized capital stock of Holdings consists of
1,500,000 shares of Holdings Common Stock, no par value, and
200,000 shares of preferred stock, par value $100 per share.
Common Stock
Subject to the rights of holders of preferred stock then
outstanding, holders of Holdings Common Stock are entitled to
receive such dividends as may from time to time be declared by
the Board of Directors of Holdings. Holders of Holdings Common
Stock are entitled to one vote per share on all matters on which
the holders of Holdings Common Stock are entitled to vote.
Because holders of Holdings Common Stock do not have cumulative
voting rights, the holders of a majority of the shares of
Holdings Common Stock represented at a meeting can select all of
the directors.
Holders of Holdings Common Stock have no preemptive rights to
subscribe to any additional securities that Holdings may issue
and there are no redemption provisions or sinking fund provisions
applicable to Holdings Common Stock, nor is Holdings Common Stock
subject to calls or assessments by Holdings. All outstanding
shares of Holdings Common Stock are legally issued, fully paid
and nonassessable. In the event of the liquidation, dissolution
or winding up of Holdings, holders of the shares of Holdings
Common Stock are entitled to share equally, share-for-share, in
the assets available for distribution after payment to all
creditors of Holdings, subject to the rights, if any, of the
holders of any outstanding shares of preferred stock.
As of June 1, 1996, 510,000 shares of Holdings Common Stock
were issued and outstanding and no shares of Holdings preferred
stock were issued and outstanding.
Preferred Stock
Pursuant to the Certificate of Incorporation of Holdings, the
Board of Directors of Holdings is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of preferred stock from time to time in one or more series
and to establish the number of shares to be included in each such
series and to fix the designation, powers, preferences and
relative, participating, optional and other special rights of the
shares of each such series and any qualifications, limitations or
restrictions thereof. Because the Board of Directors of Holdings
has such power to establish the powers, preferences and rights of
each series, it may afford the holders of any preferred stock
preferences, powers and rights (including voting rights) senior
to the rights of the holders of Holdings Common Stock. The
future issuance of shares of preferred stock, or the issuance of
rights to purchase such shares, could be used to discourage an
unsolicited acquisition proposal.
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain United States federal income
tax consequences of the ownership and disposition of the Warrants
is based on the opinion of Hunton & Williams. This summary deals
only with Warrants held as capital assets within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as amended to
the date hereof (the "Code"), by Holders (as defined herein).
Moreover, it does not discuss all of the tax consequences that
may be relevant to a Holder in light of his particular
circumstances or to Holders subject to special rules, such as
certain financial institutions, insurance companies, dealers in
securities, individual retirement and certain tax deferred
accounts. Prospective investors should consult their own tax
advisors with regard to the application of the tax considerations
discussed below to their particular situations as well as the
application of any state, local or other tax laws. This summary
is based on laws, existing and proposed regulations, and
applicable judicial and administrative determinations, all of
which are subject to change at any time, and any such changes may
be retroactively applied in a manner that could adversely affect
Holders.
As used herein, the term "Holder" means a beneficial owner of
a Warrant that for United States federal income tax purposes is
(i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity created or organized in
or under the laws of the United States or of any political
subdivision thereof, or (iii) an estate or trust the income of
which is subject to United States federal income taxation
regardless of its source. Thus, the following does not address
any tax consequences that apply specifically to nonresident
aliens or foreign entities.
Holding and Disposing of Warrants
Exercise of Warrant. The exercise of a Warrant generally
will not be a taxable event to the Holder of the Warrant, except
(i) with respect to the receipt of cash in lieu of a fractional
share of Holdings Common Stock and (ii) where another Warrant is
surrendered in payment of the Exercise Price, if ownership of a
Warrant is not treated as ownership of shares of common stock of
Holdings for federal income tax purposes.
The receipt of cash in lieu of a fractional share of Holdings
Common Stock will be taxable as if the fractional share had been
issued and then redeemed for the cash. As a result, a Holder
will recognize gain or loss equal to the difference between the
amount of cash received for the fractional share and the Holder's
tax basis (described below) in the fractional share.
Because of the nominal Exercise Price, owners of Warrants
likely will be treated for federal income tax purposes as owning
the Warrant Shares or other shares of Holdings common stock
equivalent to the Warrant Shares but without voting rights. It
is possible, nevertheless, that Warrants could be treated as
merely options to acquire Warrant Shares. If (as appears likely)
a Warrant is treated as constituting shares of common stock of
Holdings, the surrender of one or more Warrants in payment of the
Exercise Price upon the exercise of another Warrant should not
result in the recognition of gain or loss to the Holder. If,
however, a Warrant were treated as merely an option, the
surrender of one or more Warrants in payment of the Exercise
Price upon the exercise of another Warrant likely would result in
the recognition of gain or loss to the Holder in an amount equal
to the difference between (i) the amount of the Exercise Price so
paid and (ii) the Holder's tax basis in the Warrants used to pay
the Exercise Price.
A Holder's initial tax basis in Warrant Shares (including a
fractional share interest) acquired upon exercise of a Warrant
will equal the Holder's adjusted tax basis in the Warrant at the
time of exercise, plus (i) the amount of any cash paid upon
exercise, (ii) the Holder's adjusted tax basis at the time of
exercise in all or any portion of a Warrant surrendered in
payment of the Exercise Price, and (iii) the amount of any gain
recognized as a result of using such Warrant to pay all or part
of the Exercise Price. The holding period for Warrant Shares
acquired upon the exercise of a Warrant will depend on whether a
Warrant constitutes common stock of Holdings for federal income
tax purposes. If a Warrant is treated as common stock, the
holding period for Warrant Shares (including any fractional share
interest) acquired upon the exercise of a Warrant will include
(with respect to the fair market value of the Warrant Shares in
excess of the Exercise Price) the holding period for the
exercised Warrant and (with respect to the fair market value of
the Warrant Shares equal to the Exercise Price) the holding
period for any portion of a Warrant surrendered in payment of the
Exercise Price, provided that the Holder's Warrants are held as
capital assets at the time of exercise. To the extent the
Exercise Price is paid in cash, the holding period with respect
to the fair market value of the Warrant Shares equal to the
Exercise Price so paid would begin with the date on which the
Warrant is exercised. If Warrants were not held as capital
assets at the time of exercise or were not treated as
constituting common stock of Holdings for federal income tax
<PAGE>
purposes, the holding period for all Warrant Shares (including
any fractional share interest) acquired upon the exercise of a
Warrant would begin with the date on which the Warrant is
exercised.
Adjustments to Exercise Price. Adjustments to the Exercise
Price pursuant to the terms of the Warrants generally will not
constitute a taxable event for a Holder. However, under certain
circumstances, an adjustment to the Exercise Price would be
treated as a taxable constructive distribution to Holders of the
Warrants. Such circumstances include adjustments resulting from
Holdings' distribution of cash, assets, or evidences of
indebtedness on Holdings Common Stock, taxable stock dividends on
Holdings Common Stock, and taxable distributions of rights,
options, or warrants to acquire Holdings Common Stock. If a
taxable constructive distribution were to occur, a Holder's basis
in a Warrant would be increased by the amount of the taxable
distribution with respect to the Warrant.
Gain or Loss on Disposition or Expiration of Warrants. Any
gain or loss recognized on a sale or other taxable disposition of
a Warrant (including the use of a Warrant to pay all or part of
the Exercise Price of another Warrant), and any loss recognized
on the expiration of a Warrant, generally will constitute capital
gain or loss if (i) the Warrant constitutes common stock of
Holdings for federal income tax purposes or (ii) if the Warrant
does not constitute common stock, the Warrant Shares underlying
the Warrant would have been held as a capital asset by the Holder
if the Warrant had been exercised. Capital gain or loss
recognized upon a sale or other taxable disposition of a Warrant,
and any capital loss recognized on the expiration of a Warrant,
will be long term if the Holder's holding period for the Warrant
is more than one year at the time of such sale, other taxable
disposition, or expiration.
If a Warrant is sold to or redeemed by Holdings, the
transaction might not qualify for capital gain treatment even if
the Warrant is held as a capital asset. If Warrants constitute
common stock of Holdings for federal income tax purposes, the
sale of a Warrant to (or redemption of a Warrant by) Holdings
would be subject to provisions of the Code relating to
distributions in redemption of stock; under those provisions, the
entire amount received for a Warrant would be a dividend taxable
as ordinary income (to the extent of Holdings' earnings and
profits) unless the sale or redemption effected at least a
"meaningful reduction" in the Holder's actual and constructive
ownership of Holdings Stock. In the case of a meaningful
reduction (which would occur if all Warrants owned by a Holder
were sold to or redeemed by Holdings and if the Holder did not
otherwise actually or constructively own any Holdings stock), the
Holder would recognize gain or loss as described above for a sale
of a Warrant to a third party. If Warrants were not treated as
constituting common stock of Holdings for federal income tax
purposes, a Holder would recognize gain or loss on a sale of a
Warrant to (or redemption of a Warrant by) Holdings, but it is
not clear whether any such gain could qualify as capital gain or
would be ordinary income. Accordingly, if Warrants were not
treated as constituting common stock for federal income tax
purposes, gain recognized upon the use of a Warrant (or portion
thereof) to pay the Exercise Price upon the exercise of another
Warrant might be treated as ordinary income even if such Warrant
were held as a capital asset.
The federal income tax discussion set forth above may not be
applicable to a Holder, depending upon a Holder's particular
situation, and therefore each Holder should consult his tax
advisor with respect to the tax consequences of the ownership and
disposition of the Warrants, including the tax consequences under
state, local foreign and other tax laws and the possible effects
of changes in federal or other tax law.
EXPERTS
The financial statements included in Holdings' and the
Company's Annual Report on Form 10-K for the year ended February
29, 1996, and incorporated in this registration statement, have
been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto,
and are included therein and incorporated herein by reference in
reliance upon the authority of said firm as experts in accounting
and auditing in giving said reports.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 15. Indemnification of Directors and Officers.
Article Eight of the Certificate of Incorporation (the
"Charter") of MVE Holdings, Inc., a Delaware corporation
("Holdings"), provides that members of its Board of Directors
shall have no personal liability to Holdings or its stockholders
for monetary damages for breaches of certain of their fiduciary
duties to the full extent permitted by Section 102(b)(7) of the
General Corporation Law of Delaware (the "DGCL"). Section
102(b)(7) of the DGCL enables a corporation in its certificate of
incorporation to eliminate or limit the personal liability of
members of its board of directors to the corporation or its
stockholders for monetary damages for violations of a director's
fiduciary duty of care. Such a provision has no effect on the
availability of equitable remedies, such as an injunction or
rescission, for breach of fiduciary duty. In addition, no such
provision may eliminate or limit the liability of a director for
breaching his duty of loyalty, failing to act in good faith,
engaging in intentional misconduct or knowingly violating the
law, paying an unlawful dividend or approving an illegal stock
repurchase or obtaining an improper personal benefit.
Under Section 145(a) of the DGCL, a Delaware corporation
generally is authorized to indemnify its directors and offices in
civil or criminal actions if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, in the case of criminal
actions, had no reasonable cause to believe that the conduct was
unlawful. In addition, under Section 145(b) of the DGCL, a
Delaware corporation is authorized to indemnify its directors and
offices in stockholder or derivative actions if they acted in
good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation; however, if
the officer or director is found to be liable to the corporation,
indemnification is only available to the extent that the court in
which such action was brought finds that such person is fairly
and reasonably entitled to indemnification. Article Eight of the
Charter also provides that members of the Board of Directors
shall be indemnified to the full extent permitted by applicable
law, except as otherwise permitted by the bylaws of Holdings.
The bylaws of Holdings presently do not include a provision
regarding indemnification.
These provisions may have the effect of reducing the
likelihood of derivative litigation against directors or officers
and may also discourage or deter stockholders from bringing a
lawsuit against directors or officers for breach of their duty of
care, even though such an action, if successful, would benefit
Holdings, MVE, Inc., a Delaware corporation (the "Company"), or
their respective stockholders. In addition, under certain
circumstances the Company, Holdings and their respective
stockholders may, as a result of such provision, lose the
opportunity to obtain monetary damages from directors or
officers.
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
3.1 Certificate of Incorporation of MVE Holdings, Inc.*
3.1A Amendment to Certificate of Incorporation of MVE
Holdings, Inc.*
3.2 Bylaws of MVE Holdings, Inc.*
3.3 Certificate of Incorporation of MVE, Inc.*
3.3A Amendment to Certificate of Incorporation of MVE, Inc.*
3.4 Bylaws of MVE, Inc.*
4.7 Form of Warrant Agreement between MVE Holdings, Inc.
and American Bank National Association, as warrant
agent.*
4.8 Form of Warrant to purchase common stock of MVE
Holdings, Inc.*
5 Opinion of Hunton & Williams*
23.1 Consent of Hunton & Williams (included in Exhibit 5).*
23.2 Consent of Arthur Andersen LLP.**
24 Powers of Attorney.*
_____________
* Previously filed
** Filed herewith
Item 17. Undertakings
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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; 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; provided, however, that the undertakings
set forth in subparagraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrants pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering;
The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrants' annual report pursuant to
Section 13(a) or 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 this
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; and
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrants pursuant to the
provisions described under Item 15 above or otherwise, the
registrants have been advised that in the opinion of the
Securities and Exchange 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
registrants of expenses incurred or paid by a director, officer
or controlling person of the registrants in the successful
defense of any action, suit or proceeding)
<PAGE>
is asserted against the registrants by such director, officer or
controlling person in connection with the securities being
registered, the registrants 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 the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the undersigned registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Amendment No. 1 to
the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Bloomington, State of Minnesota, on June 10, 1996.
MVE HOLDINGS, INC.
By: /s/ J. David O'Halloran
J. David O'Halloran
Vice President - Finance,
Treasurer and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the registration statement has been
signed below by the following persons in the capacities indicated
on June 10, 1996.
* /s/ Robert E. Cieslukowski
Robert E. Cieslukowski
Chief Executive Officer
and President and Director
(Principal Executive Officer)
Frank M. Harris
Director
* /s/ H. Michael Lutgen
H. Michael Lutgen
Director
* /s/ Ralph Edwin Powell
Ralph Edwin Powell
Director
Joseph M. Shuster
Director
* /s/ Lewis Tyree, Jr.
Lewis Tyree, Jr.
Director
/s/ J. David O' Halloran
J. David O'Halloran
Vice President - Finance,
Treasurer and Chief Financial
Officer
(Principal Financial Officer
and Principal Accounting
Officer)
* By: /s/ J. David O' Halloran
J. David O'Halloran
Attorney-in-fact
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the undersigned registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Amendment No. 1 to
the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Bloomington, State of Minnesota, on June 10, 1996.
MVE, INC.
By: /s/ J. David O'Halloran
J. David O'Halloran
Vice President - Finance,
Treasurer and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the registration statement has been
signed below by the following persons in the capacities indicated
on June 10, 1996.
* /s/ Robert E. Cieslukowski
Robert E. Cieslukowski
Chief Executive Officer
and President and Director
(Principal Executive Officer)
Frank M. Harris
Director
* /s/ H. Michael Lutgen
H. Michael Lutgen
Director
* /s/ Ralph Edwin Powell
Ralph Edwin Powell
Director
Joseph M. Shuster
Director
* /s/ Lewis Tyree, Jr.
Lewis Tyree, Jr.
Director
/s/ J. David O' Halloran
J. David O'Halloran
Vice President - Finance,
Treasurer and Chief Financial
Officer
(Principal Financial Officer
and Principal Accounting
Officer)
* By: /s/ J. David O' Halloran
J. David O'Halloran
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Page No.
23.2 Consent of Arthur Andersen LLP.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated April 16, 1996 included in MVE Holdings, Inc. Form
10-K for the year ended February 29, 1996 and to all references
to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
June 7, 1996
