<PAGE>
As filed with the Securities and Exchange Commission on May 24, 2000
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------------------------------
CONSOLIDATED PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
INDIANA 37-0684070
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 CENTURY BUILDING MARY E. HAM, VICE PRESIDENT, SECRETARY
36 SOUTH PENNSYLVANIA STREET AND GENERAL COUNSEL
INDIANAPOLIS, INDIANA 46204 CONSOLIDATED PRODUCTS, INC.
(317) 633-4100 500 CENTURY BUILDING
(Address, including zip code and telephone 36 SOUTH PENNSYLVANIA STREET
number, including area code, of registrant's INDIANAPOLIS, INDIANA 46204
principal executive offices) (317) 633-4100
(Name, address, including zip code, and telephone
number, including area code of agent for service)
</TABLE>
Copies to:
BERKLEY W. DUCK
ICE MILLER DONADIO & RYAN
ONE AMERICAN SQUARE, BOX 82001
INDIANAPOLIS, INDIANA 46282-0002
(317) 236-2270
Approximate date of commencement of proposed sale of the securities to
the public:
As determined by the selling shareholders.
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 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 in connection with dividend or reinvestment
plans, check the following. /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. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Title of each Proposed Proposed
class of Maximum maximum Amount of
securities being Amount to be Offering aggregate registration
registered registered price per unit(1) offering price (1) fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 125,133 Shares $9.44 $1,181,256 $312
$.50 stated value
==============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, based upon
the average of the high and low sale price of the Consolidated Products,
Inc.'s stock on May 19, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION ACTING PURSUANT
TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
PROSPECTUS
FOR THE PUBLIC OFFERING FOR SALE OF
125,133
SHARES OF COMMON STOCK
OF
CONSOLIDATED PRODUCTS, INC.
- --------------------------------------------------------------------------------
TERMS OF THE OFFERING
- --------------------------------------------------------------------------------
- Alva T. Bonda, Neal Gilliatt, Charles E. Lanham, J. Fred Risk,
James Williamson, Jr., some of our current and former directors,
and Robert P. Cronin, a former director of our subsidiary, Steak
n Shake, Inc., are offering to sell up to 125,133 shares of our
common stock.
- The selling shareholders will receive all of the net proceeds
from the sale of the shares.
- The selling shareholders will sell the shares over time through
brokers at market prices or in negotiated transactions.
- On May 19, 2000, the last reported sale price of the common stock
quoted on the New York Stock Exchange was $ $9.38 per share.
- The shares are traded on and price information is reported by the
New York Stock Exchange under the symbol "COP".
- As of the date of this prospectus, none of the selling
shareholders has any agreement with any broker or dealer with
respect to the sale of the shares.
- --------------------------------------------------------------------------------
THIS INVESTMENT INVOLVES RISK. SEE THE RISK FACTORS BEGINNING ON PAGE
3 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May 24, 2000.
Additional information regarding our business is available to you
without charge upon written or oral request to us. Please contact Mary E. Ham,
Secretary, by mail at Consolidated Products, 500 Century Building, 36 South
Pennsylvania Street, Indianapolis, Indiana 46204, or by telephone at (317)
633-4100.
2
<PAGE>
RISK FACTORS
WE WISH TO CAUTION YOU THAT THE FOLLOWING IMPORTANT FACTORS, AMONG
OTHERS, COULD CAUSE OUR ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE INDICATED
BY FORWARD-LOOKING STATEMENTS MADE IN THIS PROSPECTUS AND FROM TIME TO TIME IN
NEWS RELEASES, REPORTS, PROXY STATEMENTS, REGISTRATION STATEMENTS AND OTHER
WRITTEN COMMUNICATIONS, AS WELL AS ORAL FORWARD-LOOKING STATEMENTS MADE FROM
TIME TO TIME BY OUR REPRESENTATIVES. SUCH FORWARD-LOOKING STATEMENTS INVOLVE
RISKS AND UNCERTAINTIES, INCLUDE MATTERS SUCH AS FUTURE ECONOMIC PERFORMANCE,
RESTAURANT OPENINGS, OPERATING MARGINS, THE AVAILABILITY OF ACCEPTABLE REAL
ESTATE LOCATIONS FOR NEW RESTAURANTS, THE SUFFICIENCY OF OUR CASH BALANCES AND
CASH GENERATED FROM OPERATING AND FINANCING ACTIVITIES, OUR FUTURE LIQUIDITY AND
CAPITAL RESOURCE NEEDS AND OTHER MATTERS, AND ARE GENERALLY ACCOMPANIED BY WORDS
SUCH AS "BELIEVES," "ANTICIPATES," "ESTIMATES," "PREDICTS," "EXPECTS" AND
SIMILAR EXPRESSIONS THAT CONVEY THE UNCERTAINTY OF FUTURE EVENTS OR OUTCOMES.
COMPETITION. The restaurant business is highly competitive with
respect to price, service, restaurant location and food quality, and is often
affected by changes in consumer tastes, economic conditions, population and
traffic patterns. We compete within each market with locally-owned restaurants
as well as national and regional restaurant chains, some of which operate more
restaurants and have greater financial resources and longer operating histories
than we do. There is active competition for management personnel and for
attractive commercial real estate sites suitable for restaurants. In addition,
factors such as inflation, increased food, labor and benefits costs, and
difficulty in attracting hourly employees may adversely affect the restaurant
industry in general and our restaurants in particular.
GOVERNMENTAL REGULATIONS. Each of our restaurants is subject to
licensing and regulation by health, sanitation, safety and fire agencies in the
state and/or municipality in which the restaurant is located. We have not
experienced any failures in obtaining the required licenses or approvals that
could prevent the opening of a new restaurant and do not, at this time,
anticipate any occurring in the future.
We are subject to federal and state environmental regulations, but
these have not had a material negative effect on our operations. More stringent
and varied requirements of local and state governmental bodies with respect to
zoning, land use and environmental factors could delay or prevent development of
new restaurants in particular locations. We are also subject to the Fair Labor
Standards Act which governs such matters as minimum wages, overtime and other
working conditions, along with the Americans With Disabilities Act and various
family leave mandates. Changes in government regulations could have a material
adverse effect on us.
We are also subject to federal regulation and certain state laws which
govern the offer and sale of franchises. Many state franchise laws impose
substantive requirements on franchise agreements, including limitations on
noncompetition provisions and on provisions concerning the termination or
nonrenewal of a franchise. Some states require that certain materials be
registered before franchises can be offered or sold in that state. Changes in
government regulations could have a material adverse effect on us.
3
<PAGE>
EXPANSION STRATEGY: We intend to continue to expand our Steak n Shake
restaurants through both opening and operating Company-owned Steak n Shake
restaurants and franchising new restaurants with our current franchisees.
Meeting our expansion goal is dependent upon our continued success in addressing
the factors relevant to our expansion plan. Those factors include, but are not
limited to:
- selecting available and attractive sites for new restaurants;
- negotiating acceptable purchase or lease terms for restaurant
sites;
- obtaining adequate financing for our expansion;
- franchisees performing their obligations to us;
- hiring, training and retaining competent managers and other
personnel;
- obtaining necessary governmental permits and approvals; and
- suitable economic and business conditions existing in the markets
in which our restaurants are to be located.
Some of the factors on which the success of our plan depends are not within our
control.
DEPENDENCE ON KEY PERSONNEL. We are dependent upon the continued
availability of the services of Alan B. Gilman, our President and Chief
Executive Officer, and our other executive officers. These officers collectively
have been with us an average of approximately twelve years. The loss of the
services of Mr. Gilman or other key personnel could have a material adverse
effect on our business.
STOCK PRICE VOLATILITY. Quarterly operating results of Consolidated
Products or of other restaurant companies, changes in general conditions in the
economy, the financial markets or the restaurant industry, natural disasters,
changes in earnings estimates or recommendations by research analysts, or other
developments affecting us or our competitors could cause the market price of our
common stock to fluctuate substantially. In addition, in recent years the stock
market has experienced extreme price and volume fluctuations. This volatility
has had a significant effect on the market prices of securities issued by many
companies for reasons unrelated to the operating performance of these companies.
THE COMPANY
We are primarily engaged in the ownership, operation and franchising
of Steak n Shake restaurants through our wholly owned subsidiary, Steak n Shake,
Inc. Founded in 1934 in Normal, Illinois, we are one of the oldest restaurant
chains in the country. As of September 29, 1999, our fiscal year end, we had 278
Company-owned restaurants and 50 franchised restaurants, located in 16
midwestern and southeastern states. Steak n Shake restaurants are generally open
24 hours a day, seven days a week, and in addition to the core menu, offer a
breakfast menu during breakfast hours. During fiscal 1999, lunch and dinner
sales accounted for approximately 36% and 44% of sales, respectively, while
breakfast and late night sales accounted for 7% and 13% of sales, respectively.
USE OF PROCEEDS
The shares being offered were issued by us to the selling shareholders
pursuant to their exercise of stock options granted to them in their capacities
as directors pursuant to our 1994 and 1995 Nonemployee Director Stock Option
Plans. We will receive none of the proceeds from the sale of the shares being
offered. All proceeds from the sale will be paid to the individual selling
shareholders.
SELLING SHAREHOLDERS
The following table sets forth certain information with respect to the
selling shareholders as of the date of this prospectus. Charles E. Lanham, J.
Fred Risk and James Williamson, Jr. are currently directors of Consolidated
Products. Neal Gilliatt is a Director Emeritus, which means that he attends
board meetings, but
4
<PAGE>
does not vote. He also serves us as a marketing consultant. Alva T. Bonda
retired from the Board of Directors on February 9, 2000, and Robert P. Cronin
resigned as a director of our subsidiary, Steak n Shake, Inc., on January 7,
1997. Since the selling shareholders may sell all or some of the shares, or
other shares held by them, no accurate estimate can be made of the aggregate
amount of shares which will be owned by each selling shareholder upon completion
of the offering to which this prospectus relates.
<TABLE>
<CAPTION>
Percentage Owned After
Common Shares Common Shares Sale of All Shares
Name Owned Registered Hereunder Registered Hereunder(8)
---- ----- -------------------- -----------------------
<S> <C> <C> <C>
Alva T. Bonda 2,468,860(1)(2) 24,020 8.36%
Neal Gilliatt 57,545(3) 24,020 *
Charles E. Lanham 437,721(4) 24,020 1.41%
J. Fred Risk 175,660(5) 24,020 *
James Williamson, Jr 2,291,655(1)(6) 24,020 7.76%
Robert P. Cronin 243,412 5,033 *
--------- ------- -----
3,644,058(1)(7) 125,133 12.04%
</TABLE>
*Less than 1%
Notes To Table:
(1) Includes 2,030,805 shares owned of record and beneficially by
Kelley & Partners, Ltd., of which Messrs. Bonda and Williamson are
General Partners.
(2) Includes 9,426 shares which may be acquired pursuant to stock
options exercisable within 60 days. Also includes 86,375 shares owned
of record by Mr. Bonda as executor of his wife's estate.
(3) Includes 9,426 shares which may be acquired pursuant to stock
options exercisable within 60 days by Mr. Gilliatt. Also includes
5,032 shares owned of record and beneficially by Mr. Gilliatt's wife,
with respect to which he disclaims beneficial ownership.
(4) Includes 15,665 shares which may be acquired pursuant to the
stock options exercisable within 60 days. Also includes 10,928 shares
owned of record and beneficially by Mr. Lanham's wife, with respect to
which he disclaims beneficial ownership.
(5) Includes 7,269 shares which may be acquired pursuant to stock
options exercisable within 60 days. Also includes 7,726 shares owned
of record and beneficially by Mr. Risk's wife, with respect to which
he disclaims beneficial ownership.
(6) Includes 15,665 shares which may be acquired pursuant to stock
options exercisable within 60 days. Also includes 19,011 shares owned
of record and beneficially by Mr. Williamson's wife, with respect to
which he disclaims beneficial ownership.
(7) Includes 57,451 shares which may be acquired pursuant to stock
options exercisable within 60 days.
(8) Based upon 29,238,110 total shares of common stock outstanding as
of May 12, 2000, as listed on our most recent Form 10-Q for the period
ended April 12, 2000, and filed with the Securities and Exchange
Commission on May 19, 2000.
5
<PAGE>
PLAN OF DISTRIBUTION
TRANSACTIONS. The selling shareholders may offer and sell their shares
in one or more of the following transactions:
- on the New York Stock Exchange
- in negotiated transactions
- in a combination of any of these transactions
PRICES. The selling shareholders may sell their shares at any of the
following prices:
- fixed prices which may be changed
- market prices prevailing at the time of sale
- prices related to prevailing market prices
- negotiated prices
DIRECT SALES; AGENTS, DEALERS AND UNDERWRITERS. The selling
shareholders may sell their shares in any of the following ways:
- directly to purchasers
- to or through agents, dealers or underwriters designated from
time to time
Agents, dealers or underwriters may receive compensation in the form
of underwriting discounts, concessions or commissions from the selling
shareholders and/or the purchasers of shares for whom they act as agent or to
whom they sell as principals, or both. The selling shareholders and any agents,
dealers or underwriters that act in connection with the sale of shares might be
deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any discount or commission received by them and any profit
on the resale of shares as principal might be deemed to be underwriting
discounts or commissions under the Securities Act.
SUPPLEMENTS. To the extent required, we will set forth in a supplement
to this prospectus filed with the SEC the number of shares to be sold, the
purchase price and public offering price, the name or names of any agent, dealer
or underwriter, and any applicable commissions or discounts with respect to a
particular offering.
STATE SECURITIES LAW. Under the securities laws of some states, the
selling shareholders may only sell the shares in those states through registered
or licensed brokers or dealers. In addition, in some states the selling
shareholders may not sell the shares unless they have been registered or
qualified for sale in that state or an exemption from registration or
qualification is available and is satisfied.
EXPENSES; INDEMNIFICATION. We will not receive any of the proceeds
from the sale of the shares sold by the selling shareholders under this
prospectus. We will bear all expenses related to the registration of this
offering but will not pay for any underwriting commissions, fees or discounts,
if any. The expenses we will pay include:
- all registration and filing fees
- all fees and expenses of complying with state blue sky or
securities laws
- all costs of preparation of the registration statement
- all fees and disbursements of our counsel and independent
auditors
6
<PAGE>
LEGAL MATTERS
Certain legal matters relating to the issuance of the shares have been
passed on for us by Ice Miller Donadio & Ryan, Indianapolis, Indiana.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on form 10-K for the year
ended September 29, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a
registration statement under the Securities Act of 1933 that registers the
shares of Consolidated Products common stock offered by this prospectus. The
registration statement, including the attached exhibits and schedules, contains
additional relevant information about us and Consolidated Products common stock.
The rules and regulations of the Securities and Exchange Commission allow us to
omit certain information included in the registration statement from this
prospectus.
In addition, we file reports, proxy statements and other information
with the Securities and Exchange Commission under the Securities Exchange Act of
1934. You may read and copy this information at the following locations of the
Securities and Exchange Commission:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Washington, DC 20549 Suite 1300 500 West Madison Street
1-800-SEC-0330 New York, NY 10048 Suite 1400
Chicago, IL 60661-2511
You may also obtain copies of this information by mail from the Public
Reference Room of the Securities and Exchange Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. You may obtain information on
the operation of the Public Reference Room by calling the Securities and
Exchange Commission at 1-800-SEC-0330.
The Securities and Exchange Commission also maintains an Internet
world wide web site that contains reports, proxy statements and other
information about issuers, like Consolidated Products, that file electronically
with the Securities and Exchange Commission. The address of that site is
http://www.sec.gov.
The Securities and Exchange Commission allows us to "incorporate by
reference" information into this prospectus. This means that we can disclose
important information to you by referring you to another document filed
separately with the Securities and Exchange Commission. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document.
This prospectus incorporates by reference the documents listed below
that we have previously filed with the Securities and Exchange Commission. They
contain important information about us and our
7
<PAGE>
financial condition.
1) Annual Report on Form 10-K for the year ended September 29, 1999.
2) Quarterly Report on Form 10-Q for the quarter ended December 22,
1999.
3) Quarterly Report on Form 10-Q for the quarter ended April 12,
2000.
4) Definitive Proxy Statement on Schedule 14A, dated December 20,
1999.
5) Registration of certain classes of securities on Form 8-A, dated
October 28, 1996.
6) The description of Consolidated Products' common stock set forth
in Consolidated Products' registration statement filed on Form
S-3 on May 21, 1997; including any amendment or report filed with
the Securities and Exchange Commission for the purpose of
updating that description.
In addition, all documents and reports filed by us pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to
the date of this prospectus shall be deemed to be incorporated by reference in
this prospectus and to be a part hereof from the date of filing of such
documents or reports. Any statement contained in a document incorporated or
deemed to be 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 also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
You can obtain any of the documents incorporated by reference in this
document through us or from the Securities and Exchange Commission through its
web site at the address described above. Documents incorporated by reference are
available from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as a exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Mary E. Ham
Secretary, Consolidated Products, Inc.
500 Century Building
36 South Pennsylvania Street
Indianapolis, IN 46204
Telephone: (317) 633-4100
WE HAVE NOT AUTHORIZED ANYONE TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ABOUT THE OFFERING MADE BY THIS PROSPECTUS THAT IS DIFFERENT
FROM, OR IN ADDITION TO, THE INFORMATION CONTAINED IN THIS PROSPECTUS OR IN ANY
OF THE MATERIALS THAT WE HAVE INCORPORATED INTO THIS DOCUMENT. THEREFORE, IF
ANYONE DOES GIVE YOU INFORMATION OF THIS SORT, YOU SHOULD NOT RELY ON IT. IF YOU
ARE IN A JURISDICTION WHERE OFFERS TO EXCHANGE OR SELL, OR SOLICITATIONS OF
OFFERS TO EXCHANGE OR PURCHASE, THE SECURITIES OFFERED BY THIS DOCUMENT OR THE
SOLICITATION OF PROXIES IS UNLAWFUL, OR IF YOU ARE A PERSON TO WHOM IT IS
UNLAWFUL TO DIRECT THESE TYPES OF ACTIVITIES, THEN THE OFFER PRESENTED IN THIS
DOCUMENT DOES NOT EXTEND TO YOU. THE INFORMATION CONTAINED IN THIS DOCUMENT
SPEAKS ONLY AS OF THE DATE OF THIS DOCUMENT UNLESS THE INFORMATION SPECIFICALLY
INDICATES THAT ANOTHER DATE APPLIES.
8
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by
reference herein, contains certain forward-looking statements with respect to
our financial condition, results of operations, plans, objectives, future
performance and business including, without limitation, statements preceded by,
followed by or that include the words "believes," "expects," "anticipates,"
"estimates" or similar expressions. These forward-looking statements involve
certain risks and uncertainties. For those statements, we claim the protection
of the safe harbor for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995. Actual results may differ materially
from those contemplated by such forward-looking statements due to, among others,
the factors described under "Risk Factors" in this prospectus.
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below are estimates of all expenses incurred or to be
incurred by the registrant in connection with the issuance and distribution of
the securities to be registered:
<TABLE>
<S> <C>
Registration fees ................................... $ 312
Transfer agent's fees ............................... None
Printing and engraving .............................. None
Legal fees and expenses ............................. $2,500
Accounting fees and expenses ........................ $1,500
State blue sky fees and expenses .................... None
Miscellaneous ....................................... $2,000
------
Total .......................................... $6,312
All of the expenses will be borne by the registrant.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Indiana Business Corporation Law ("BCL"), the provisions of which
govern the registrant, empowers an Indiana corporation to indemnify present and
former directors, officers, employees or agents or any person who may have
served at the request of the corporation as a director, officer, employee or
agent of another corporation ("Eligible Persons") against liability incurred in
any proceeding, civil or criminal, in which the Eligible Person is made a party
by reason of being or having been in any such capacity, or arising out of his
status as such, if the individual acted in good faith and reasonably believed
that (a) the individual was acting in the best interests of the corporation, (b)
if the challenged action was taken other than in the individual's official
capacity as an officer, director, employee or agent, the individual's conduct
was at least not opposed to the corporation's best interests, or (c) if in a
criminal proceeding, either the individual had reasonable cause to believe his
or her conduct was lawful or no reasonable cause to believe his or her conduct
was unlawful.
The BCL further empowers a corporation to pay or reimburse the
reasonable expenses incurred by an Eligible Person in connection with the
defense of any such claim including counsel fees, and, unless limited by its
Articles of Incorporation, the corporation is required to indemnify an Eligible
Person against reasonable expenses if he or she is wholly successful in any such
proceeding, on the merits or otherwise. Under certain circumstances, a
corporation may pay or reimburse an Eligible Person for reasonable expenses
prior to final disposition of the matter. Unless a corporation's Articles of
Incorporation otherwise provide, an Eligible Person may apply for
indemnification to a court which may order indemnification upon a determination
that the Eligible Person is entitled to mandatory indemnification for reasonable
expenses or that the Eligible Person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances without regard to
whether his or her actions satisfied the appropriate standard of conduct.
10
<PAGE>
Before a corporation may indemnify any Eligible Person against
liability or reasonable expenses under the BCL, a quorum consisting of directors
who are not parties to the proceeding must (1) determine that indemnification is
permissible in the specific circumstances because an Eligible Person met the
requisite standard of conduct, (2) authorize the corporation to indemnify the
Eligible Person and (3) if appropriate, evaluate the reasonableness of expenses
for which indemnification is sought. If it is not possible to obtain a quorum of
uninvolved directors, the foregoing action may be taken by a committee of two or
more directors who are not parties to the proceeding, special legal counsel
selected by the Board of Directors or such a committee, or by the shareholders
of the corporation.
In addition to the foregoing, the BCL states that the indemnification
it provides shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any provision of the articles of
incorporation, bylaws, resolution or other authorization adopted, after notice
by a majority vote of all the voting shares then issued and outstanding. The BCL
also empowers an Indiana corporation to purchase and maintain insurance on
behalf of any Eligible Person against any liability asserted against or incurred
by him or her in any capacity as such, or arising out of his or her status as
such, whether or not the corporation would have had the power to indemnify him
or her against such liability.
The Amended Articles of Incorporation and the Bylaws of the registrant
contain provisions pursuant to which the officers and directors of the
registrant are entitled to indemnification as a matter of right against expenses
and liabilities incurred by them by reason of their having acted in such
capacities if such person has been wholly successful in the defense of such
claims or acted in good faith in what he or she reasonably believed to be in or
not opposed to the best interests of the registrant. Such rights are not
exclusive of any other rights of indemnification to which such persons may be
entitled by contract or a matter of law.
The registrant maintains directors' and officers' liability insurance,
the effect of which is to indemnify the directors and officers of the
corporation and its subsidiaries against certain losses caused by errors,
misleading statements, wrongful acts, omissions, neglect or breach of duty by
them of any matter claimed against them in their capacities as directors or
officers.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See Index to Exhibits.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement.
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
11
<PAGE>
(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 set
forth in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii)
shall 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 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
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 registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination
of the offering.
(4) That, for the 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the questions 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that is has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on behalf of Consolidated Products, Inc. by the
undersigned, thereunto duly authorized in the City of Indianapolis, State of
Indiana on May 24, 2000.
CONSOLIDATED PRODUCTS, INC.
By: /s/ Mary E. Ham
-----------------------
Vice President, Secretary and
General Counsel
12
<PAGE>
Each person whose signature appears below on this registration
statement hereby constitutes and appoints Mary E. Ham, Alan B. Gilman and each
of them, with full power to act without the other, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities (unless revoked in writing), to sign any and all amendments to the
registrant's Form S-3 Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might and could do in person,
hereby ratifying and confirming all that such attorney-in-fact and agents or any
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed by the following persons in
the capacities indicated as of May 24, 2000.
/s/ E. W. Kelley Chairman and Director
- -----------------------------------
E. W. Kelley
/s/ Alan B. Gilman Chief Executive Officer, President and
- ----------------------------------- Director (Principal Executive Officer)
Alan B. Gilman
/s/ James W. Bear Senior Vice President and Treasurer
- ----------------------------------- (Principal Financial Officer)
James W. Bear
/s/ Gregory G. Fehr Vice President and Controller
- -----------------------------------
Gregory G. Fehr
/s/ S. Sue Aramian Director
- -----------------------------------
S. Sue Aramian
/s/ Stephen Goldsmith Director
- -----------------------------------
Stephen Goldsmith
/s/ Charles E. Lanham Director
- -----------------------------------
Charles E. Lanham
/s/ J. Fred Risk Director
- -----------------------------------
J. Fred Risk
/s/ John W. Ryan Director
- -----------------------------------
John W. Ryan
/s/ James Williamson, Jr. Director
- -----------------------------------
James Williamson, Jr.
13
<PAGE>
CONSOLIDATED PRODUCTS, INC.
FORM S-3
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number
Assigned in Page Number
Regulation S-K in Sequential
Item 601 Description of Exhibit Numbering System
- ------------------ ----------------- ----------------
<S> <C> <C>
(1) No Exhibit.
(2) No Exhibit.
(4) 4.01 Specimen certificate representing Common Stock of
Consolidated Products, Inc. (Incorporated by reference
to the Exhibits to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended April 9,
1997.)
(5) 5.01 Opinion of Ice Miller Donadio & Ryan. 16
(8) No Exhibit.
(12) No Exhibit.
(15) No Exhibit.
(23) 23.1 Consent of Ice Miller Donadio & Ryan. 16
(Included as a part of Exhibit 5.01.)
23.2 Consent of Ernst & Young LLP. 18
(24) Power of Attorney (See Signature Page.) 14
(25) No Exhibit.
(26) No Exhibit.
(27) No Exhibit.
(99) No Exhibit.
</TABLE>
14
<PAGE>
EXHIBIT 5.01
May 24, 2000
Board of Directors
Consolidated Products, Inc.
500 Century Building
36 South Pennsylvania Street
Indianapolis, IN 46204
Ladies and Gentlemen:
We have acted as counsel to Consolidated Products, Inc., an Indiana
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") for the purpose of registering under the
Securities Act of 1933, as amended (the "Securities Act"), an aggregate of
125,133 of the common shares of the Company (the "Shares") issued to Alva T.
Bonda, Neal Gilliatt, Charles E. Lanham, J. Fred Risk, James Williamson, Jr.,
and Robert P. Cronin, which Shares may be offered and sold by these shareholders
in resale transactions.
In connection therewith, we have investigated those questions of law
we have deemed necessary or appropriate for purposes of this opinion. We have
also examined originals, or copies certified or otherwise identified to our
satisfaction, of those documents, corporate or other records, certificates and
other papers that we deemed necessary to examine for the purpose of this
opinion, including:
1. The Articles of Incorporation of the Company;
2. The Bylaws of the Company;
3. Resolutions relating to the filing of the Registration Statement
adopted by the Company's Board of Directors (the "Resolutions");
and
4. The Registration Statement.
<PAGE>
Board of Directors
Consolidated Products, Inc.
March 29, 2000
Page Two
For purposes of this opinion, we have assumed (i) the authenticity of
all documents submitted to us as originals and the conformity to authentic
originals of all documents submitted to us as certified or photostatic copies;
(ii) that the Shares will be sold pursuant to the terms of the Registration
Statement; (iii) that the Resolutions will not be amended, altered or superseded
before the issuance of the Shares and (iv) that no changes will occur in the
applicable law or the pertinent facts prior to the sale of the Shares.
Based upon the foregoing and subject to the qualifications set forth
in this letter, we are of the opinion that the Shares are validly authorized,
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this Opinion Letter as an exhibit
to the Registration Statement and to the reference to this Firm under the
caption "Legal Matters" in the prospectus included as part of the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act or under the rules and regulations relating thereto.
Very truly yours,
ICE MILLER DONADIO & RYAN
/s/ Ice Miller Donadio & Ryan
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of
Consolidated Products, Inc. for the registration of 125,133 Shares of
Common Stock of Consolidated Products, Inc. and to the incorporation
by reference therein of our report dated November 22, 1999, with
respect to the consolidated financial statements and schedule of
Consolidated Products, Inc. included in its Annual Report (Form 10-K)
for the year ended September 29, 1999, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Indianapolis, Indiana
May 22, 2000
