S-3/A 1 v210595_s3a.htm S-3/A Unassociated Document

AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 9, 2011
REGISTRATION NO. 333-171387
 
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

AMENDMENT NO. 3
TO
FORM S-3

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
 1933
 

ESSEX RENTAL CORP.
(Exact name of registrant as specified in its charter)

Delaware
(State or Other Jurisdiction of Incorporation)

20-5415048
(I.R.S. Employer Identification Number)

1110 Lake Cook Road, Suite 220
Buffalo Grove, Illinois 60089
(847) 215-6500
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)

Martin A. Kroll
Chief Financial Officer
Essex Rental Corp.
1110 Lake Cook Road, Suite 220
Buffalo Grove Illinois 60089
 (847) 215-6500
 
With copies to:

Todd J. Emmerman
Katten Muchin Rosenman LLP
575 Madison Avenue
New York, New York 10022
(212) 940-8800 (Telephone)
 (212) 940-8776 (Facsimile)

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

Approximate Date of Commencement of Proposed Sale to the Public: From time to time after the Registration Statement becomes effective.
 
 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 of 1933, please check the following box and list the Securities Act of 1933 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 of 1933, check the following box and list the Securities Act of 1933 registration statement number of the earlier effective registration statement for the same offering.   ¨
 
If this Form is a registration statement pursuant to General Instruction I.D or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
 
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.  (Check one):
 
Large accelerated filer
¨
Accelerated filer  x
     
Non-accelerated filer
¨ (Do not check if a smaller reporting company)
Smaller reporting company  ¨
 
CALCULATION OF REGISTRATION FEE
 
 
Title of each class of
securities to be registered
  
Amount
to be
registered
  
Proposed
maximum
offering price
per share (1)
    
Proposed
maximum
aggregate
offering price (1)
    
Amount of
registration
Fee*
  
Common stock, par value $.0001 per share
  
10,695,363 shares
  (2)  $ 5.56     $ 59,466,218.28     $ 4,240  
 
 
(1)
Estimated pursuant to Rule 457(c) under the Securities Act solely for the purpose of calculating the registration fee based upon the average of the high and low reported sale prices of the common stock on The Nasdaq Capital Market on December 21, 2010.
(2)
Consists of 9,592,624 shares of currently outstanding common stock, 469,828 shares of common stock issuable upon exercise of outstanding warrants and 632,911 shares of common stock issuable upon exchange of membership interests in a subsidiary of Registrant.  Pursuant to Rule 416 under the Securities Act, this Registration Statement also covers such number of additional securities as may be issued to prevent dilution from stock splits, stock dividends or similar transactions.
*
This amount was previously paid.
 

 
 

EXPLANATORY NOTE

This Amendment No. 3 to the Registration Statement on Form S-3 initially filed on December 23, 2010 (File No. 333-171387), as previously amended (the “Registration Statement”), is being filed for the sole purpose of providing an updated legal opinion and consent of Katten Muchin Rosenman LLP as Exhibits 5.1 and 23.2, respectively.  This Amendment does not modify any provision of the prospectus that forms a part of the Registration Statement and accordingly such prospectus has not been included herein.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
 
Expenses to be paid by us in connection with the issuance and distribution of the securities being registered are as follows:
 
Registration Fees
   $ 4,240  
Legal Fees and Expenses
   $ 75,000  
Accounting Fees and Expenses
   $ 22,575  
Miscellaneous
   $ 5,000  
Total
   $ 106,815  
 
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
 
The Registrant’s Amended and Restated Certificate of Incorporation provides that to the extent permitted by the Delaware General Corporation Law, or the DGCL, directors of the Registrant shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derives an improper personal benefit.

Section 145 of the DGCL empowers a Delaware corporation to indemnify its officers and directors and specific other persons to the extent and under the circumstances set forth therein.

The Registrant’s By-laws provide that the Registrant shall indemnify and hold harmless, to the fullest extent permitted by the DGCL, any person against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred in connection with any threatened, pending or completed legal proceedings in which such person is involved by reason of the fact that he is or was a director, officer, employee or agent of the Registrant (or serving in any such capacity with another business organization at the request of the Registrant) if he acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe that his conduct was unlawful. If the legal proceeding, however, is by or in the right of the Registrant, such director, officer, employee or agent may not be indemnified in respect of any claim, issue or matter as to which he shall have been adjudged to be liable to the Registrant unless a court determines otherwise.

The Registrant maintains insurance policies that insure its directors and officers against damages arising out of claims which might be made against them based on their negligent acts or omissions while acting in their capacity as officers and directors.

 
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ITEM 16. EXHIBITS.
 
See the Exhibit Index immediately following the signature pages, which is incorporated by reference herein.

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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 paragraphs (a)(1)(i) and (a)(1)(ii) 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 registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
 
(b) 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.
 
(c) 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.
 
(d) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant hereby undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
 
(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
 
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

 
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(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
 
(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
(e) That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
 
(f) 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.
 
(g) 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 Securities Act of 1933 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 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.

 
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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, as amended, the 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 Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Buffalo Grove, State of Illinois, on February 9, 2011.  
 
 
ESSEX RENTAL CORP.
     
 
By:  
/s/ Ronald L. Schad
 
Name: Ronald L. Schad
 
Title: Chief Executive Officer
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
 
SIGNATURE
 
TITLE
 
DATE
 
/s/ Ronald L. Schad
Ronald L. Schad
 
 
Chief Executive Officer and Director
 
 
February 9, 2011
 
/s/ Martin A. Kroll
Martin A. Kroll
 
 
Chief Financial Officer (principal financial
officer and principal accounting officer) and
Senior Vice President
 
 
February 9, 2011
 
/s/Daniel H. Blumenthal
Daniel H. Blumenthal
 
 
Director
 
 
February 9, 2011
 
/s/ Edward Levy
Edward Levy
   
Director
 
February 9, 2011
 
/s/ Laurence S. Levy
Laurence S. Levy
 
 
Chairman of the Board
 
 
February 9, 2011
 
/s/ John Nestor
John Nestor
 
 
Director
 
 
February 9, 2011

 
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EXHIBIT INDEX
 
Exhibit Number
  
Description
     
2.1
  
Purchase Agreement, dated as of March 6, 2008, among the Registrant, Essex Crane Rental Corp., Essex Holdings, LLC and its members, and amendments thereto,  (incorporated herein by reference to Annex A of the Registrant’s Definitive Proxy Statement (File No. 000-52459) filed October 8, 2008).
     
2.2
  
Asset Purchase Agreement, dated as of November 1, 2010, between CC Bidding Corp. and Coast Crane Company  (incorporate herein by reference to Exhibit 2.1 of the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 17, 2010).
     
3.1
  
Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 6, 2008).
     
3.2
  
Amended and Restated Bylaws of the Corporation, effective as of September 28, 2007 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on September 28, 2007).
     
4.1
  
Specimen Common Stock certificate (incorporated herein by reference to Exhibit 4.2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-138452) declared effective by the Securities and Exchange Commission on November 6, 2006).
     
4.2
  
Specimen Warrant Certificate (incorporated herein by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-138452) declared effective by the Securities and Exchange Commission on November 6, 2006).
     
4.3
  
Form of Warrant Agreement between Continental Stock Transfer & Trust Company and the Registrant (incorporated herein by reference to Exhibit 4.5 to the Registrant’s Registration Statement on Form S-1 (File No. 333-138452) declared effective by the Securities and Exchange Commission on November 6, 2006).
     
4.4
  
Amended and Restated Limited Liability Company Agreement of Essex Holdings, LLC, dated October 31, 2008, among Essex Rental Corp., Ronald Schad, Martin Kroll, William Erwin and William O’Rourke (incorporated herein by reference to Exhibit 10.7 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 6, 2008).
     
5.1*
 
Opinion of Katten Muchin Rosenman LLP regarding the validity of the common stock being registered.
     
23.1**
 
Consent of Grant Thornton LLP.
     
23.2*
 
Consent of Katten Muchin Rosenman LLP (included in Exhibit 5.1).
 
*
Filed herewith.
**
Previously filed

 
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