S-3
1
FORM S-3 FOR EKCO GROUP, INC.
1
As filed with the Securities and Exchange Commission on March 30, 1995
Registration Statement No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EKCO GROUP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 11-2167167
(State of incorporation) (I.R.S. Employer Identification Number)
98 SPIT BROOK ROAD
SUITE 102
NASHUA, NEW HAMPSHIRE 03062
(603) 888-1212
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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JEFFREY A. WEINSTEIN
EXECUTIVE VICE PRESIDENT, SECRETARY,
GENERAL COUNSEL AND DIRECTOR
EKCO GROUP, INC.
98 SPIT BROOK ROAD
SUITE 102
NASHUA, NH 03062
(603) 888-1212
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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With copies to:
ANNE L. TULLY, ESQ.
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
ONE FINANCIAL CENTER
BOSTON, MA 02111
(617) 542-6000
Approximate date of commencement of proposed sale to 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. [x]
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. [ ]
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CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Registered Registered Price Per Share(1) Aggregate Offering Price(1) Registration Fee
-----------------------------------------------------------------------------------------------------------------------------------
Common Stock 500,000 $6.1875 $3,093,750 $1,066.73
===================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act of 1933,
based upon the average of the high and low sales prices of the Common Stock as reported on the New York Stock Exchange
consolidated tape on March 24, 1995.
===================================================================================================================================
2
Cross-Reference Sheet Between Items
In Part I of Form S-3 and the Prospectus
Location or Caption
Form S-3 Item No. and Caption In Prospectus
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1. Forepart of the Registration Outside Front Cover Page
Statement and Outside Front
Cover Page of Prospectus
2. Inside Front and Outside Back Inside Front and Outside Back
Cover Pages of Prospectus Cover Pages of Prospectus
3. Summary Information, Risk Not Applicable
Factors and Ratio of Earnings
to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price The Plan
6. Dilution Not Applicable
7. Selling Security Holders Not Applicable
8. Plan of Distribution The Plan
9. Description of Securities to Not Applicable
be Registered
10. Interest of Named Experts and Validity of Shares
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Documents Incorporated
Information by Reference by Reference
13. Disclosure of Commission Indemnification
Position on Indemnification for
Securities Act Liabilities
3
EKCO Group, Inc.
DIVIDEND
REINVESTMENT AND
STOCK PURCHASE
PLAN
[LOGO]
EKCO Group, Inc.
4
Dear Shareholder:
We are pleased to offer you the Ekco Group, Inc. Dividend Reinvestment and
Stock Purchase Plan. The Plan provides a convenient way for you to invest in
Ekco Group, Inc. Common Stock without paying brokerage fees or service charges.
All Ekco Group, Inc. shareholders of record are eligible to participate in
the Plan. Under the Plan, you may reinvest all or part of your cash dividends
and/or make optional cash payments toward the purchase of additional shares of
Ekco Group, Inc. Common Stock.
This prospectus contains a detailed discussion of the Plan, along with
instructions for participation. Shareholders participating in the Plan may
withdraw any time, within the limits described in the prospectus.
If your shares are registered in a name other than your own (for example,
in a broker's or nominee's name) and, you wish to participate in the Plan, you
should contact your broker or nominee.
Please give careful attention to this prospectus. It is our hope that after
you have reviewed it, you will view the Dividend Reinvestment and Stock Purchase
Plan as a convenient way to increase your investment in Ekco Group, Inc.
Sincerely,
Robert Stein
President and Chief Executive Officer
5
Prospectus
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EKCO GROUP, INC.
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DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
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Ekco Group, Inc. (the "Corporation") hereby offers participation in its
Dividend Reinvestment and Stock Purchase Plan (the "Plan"). The Plan provides
holders of record of shares of the Corporation's Common Stock, $.01 par value
(the "Common Stock"), with a convenient and economical way to purchase
additional shares of Common Stock without fees of any kind. Any holder of
record of shares of Common Stock is eligible to join the Plan. The Plan
currently provides for the purchase of an aggregate of 500,000 shares of Common
Stock by stockholders.
Participants in the Plan may:
- Automatically reinvest cash dividends on all shares of Common
Stock registered in their names.
- Automatically reinvest cash dividends on less than all their
shares of Common Stock and continue to receive cash dividends
on their remaining shares of Common Stock.
- Invest by making optional cash payments, at any time,
whether or not any dividends on their shares of Common
Stock are being reinvested. The Plan provides for a minimum
optional cash payment of $10 per remittance and a maximum
optional cash payment of $10,000 per calendar quarter.
The price of shares of Common Stock purchased under the Plan will be
either (a) if purchased from the Corporation, the average of the high and low
sales prices of the shares of Common Stock, as reported on the New York Stock
Exchange consolidated tape, on the relevant Investment Date, or (b) if
purchased in the market or from private sources, the average cost of all shares
purchased with respect to the relevant Investment Date. The closing price of
the Common Stock on March 24, 1995 as published in The Wall Street Journal was
$6.25 per share.
Stockholders who do not choose to participate in the Plan will continue
to receive cash dividends, as declared, in the usual manner.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is March 30, 1995
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EKCO GROUP, INC.
The Corporation, a Delaware corporation, is the issuer of the shares of
Common Stock offered hereunder. The principal executive office of the
Corporation is located at 98 Spit Brook Road, Suite 102, Nashua, New Hampshire
03062, telephone number (603) 888-1212.
The Corporation is a leading United States manufacturer and marketer of
broad lines of branded houseware products for everyday home use. The
Corporation is the leading United States supplier of metal bakeware, kitchen
tools and gadgets and non-poisonous and low-toxic pest control products and is
also a leading United States supplier of plastic storage products (including
crates, containers, baskets and office organizers), small animal care and
control products, and brushes, brooms and mops. The Corporation broadly
markets its products, primarily in the United States and Canada, through mass
merchandise stores, including Wal-Mart and Kmart (the Corporation's largest
customers), supermarkets, hardware stores, drug stores, specialty stores, home
and agricultural centers and other retail outlets. As used herein, unless the
context requires otherwise, the "Corporation" and the "registrant" refer to
Ekco Group, Inc. and its subsidiaries.
The Corporation's current business was established in 1987 through the
purchase of Ekco Housewares, Inc. and subsequently through five additional
acquisitions of leading consumer product businesses and product lines. The
following table lists the principal businesses and products which the
Corporation has acquired since 1987:
Date Business or Products
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October 1987 Ekco Housewares, Inc. (bakeware and kitchen tools
and gadgets)
January 1989 Woodstream Corporation (non-poisonous and low-toxic pest
control products)
December 1989 Non-poisonous pest control product line of McGill Metal
Products Company
December 1991 Animal care product line of Beacon Industries, Inc.
January 1992 Frem Corporation (molded plastic houseware and office
products)
April 1993 Kellogg Brush Manufacturing Co. (brushes, brooms and mops)
The Corporation's strategy is to continue pursuing acquisitions,
internal expansion and operating improvements. Management believes that there
continues to be significant acquisition opportunities due, among other things,
to the large number of companies in the consumer product and houseware
industries that are facing increased pressures from retailers to provide greater
levels of service and support. The Corporation intends to use available funds,
borrowed funds and proceeds from the issuance of additional debt or equity
securities to make acquisitions, to provide working capital and for general
corporate purposes to the extent permitted by the terms of its various financing
agreements or consented to by its lenders. There can be no assurance, however,
that capital to finance acquisitions will be available or that the terms with
respect thereto will permit the Corporation to complete strategic acquisitions
on a profitable basis in the future.
The Corporation markets its product lines directly through its own sales
force to major retail stores and through distributors and manufacturer
representatives. Products are primarily purchased from the Corporation by
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businesses located in the United States and Canada, including mass
merchandising stores, supermarkets, hardware stores, drug and variety stores,
office "superstores" and other retail outlets and by wholesalers who resell to
such retailers. The Corporation's products are marketed outside the United
States and Canada through distributors and agents who provide marketing support
to grocery stores, mass merchandising stores, specialty stores and department
stores.
---------------------------------
Ekco(R), Baker's Secret(R), Victor(R), Havahart(R), Beacon(R), Baker's Secret
Pro(R), Frem(R) and Frem Better by Design(R) are registered trademarks of
subsidiaries of the registrant. Best Results Professional(TM), Woodstream(TM),
Buddy Box(TM) and Captain Hook(TM) are trademarks of subsidiaries of the
registrant.
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THE PLAN
The text of the Plan consists of the following questions and answers:
PURPOSE
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1. What is the purpose of the Plan?
The purpose of the Plan is to provide stockholders with a convenient
and simple method of investing in additional shares of Common Stock without
fees of any kind. The shares acquired under the Plan will be purchased by the
Agent (as hereinafter defined) either from the Corporation, in the market or
from private sources. To the extent shares are sold by the Corporation, the
Plan will provide additional funds to the Corporation. The Corporation intends
to add the proceeds of such sales to the general funds of the Corporation for
general corporate purposes.
ADVANTAGES
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2. What are the advantages of the Plan?
A participant in the Plan may have cash dividends on all or less than
all shares of Common Stock automatically reinvested, or may invest in
additional shares of Common Stock by making optional cash purchases ("optional
payments") of a minimum of $10 per payment and up to $10,000 per calendar
quarter. Participants in the Plan pay no brokerage fee or service charge in
connection with purchases under the Plan. Funds are fully invested through the
purchase of fractions of shares, as well as full shares, and proportionate
cash dividends on fractions of shares will be used to purchase additional
shares. Participants may avoid the necessity of safekeeping their certificates
for shares credited to their accounts by leaving the shares with the Agent. A
statement of account will be provided to you after each quarterly investment
and each optional cash investment.
ADMINISTRATION
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3. Who will administer the Plan?
American Stock Transfer & Trust Company (the "Agent"), will administer
the Plan, keep records, send statements of account activity to participants and
perform other duties related to the Plan. Certificates for shares purchased
under the Plan will be held in safekeeping by the Agent in the Agent's name or
in the Agent's nominee's name unless a participant requests delivery of
certificates for some or all of his or her shares. Participants may contact
the Agent by writing to American Stock Transfer & Trust Company, 40 Wall
Street, 46th Floor, New York, New York 10005, Attention: Dividend Reinvestment,
or by telephoning the Agent at 1-800-278-4353.
PARTICIPATION
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4. Who is eligible to participate?
You are an eligible holder of Common Stock ("Eligible Stockholder") and
may therefore participate in the Plan if you qualify as either one of the
following: (a) you are a stockholder whose shares of Common Stock are
registered on the stock transfer books of the Corporation in your name (a
"Registered Owner") or (b) you are a stockholder who has beneficial ownership
of shares of Common Stock (a "Beneficial Owner") that are registered in a name
other than your own, such as in the name of a broker, a bank nominee or
trustee. While a Registered Owner may participate in the Plan directly, a
Beneficial Owner must either become a Registered Owner, by having
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such shares transferred into his or her own name, or must make arrangements
with his or her broker, bank nominee or trustee to participate in the Plan on
his or her behalf.
Your right to participate in the Plan is not transferable apart from a
transfer of your underlying Common Stock to another person.
You or, if appropriate, your broker, bank nominee or trustee must
supply the Agent with your valid social security number or taxpayer
identification number in order to be eligible to participate.
5. How does an Eligible Stockholder participate and when is participation
effective?
A holder of record may join the Plan at any time by signing the
Authorization Card which accompanies this Prospectus and returning it to the
Agent. An additional Authorization Card may be obtained at any time by written
request to the Agent. A shareholder electing to join the Plan may participate
with respect to any number of shares owned of record.
Reinvestment of dividends commences with the first dividend paid after
such stockholder joins the Plan, provided that an Authorization Card is
received from such stockholder by the Agent before the record date for such
dividend. Participation will begin with the next relevant Investment Date (see
answer to Question 8 below) following receipt by the Agent of the Authorization
Card for optional payments.
6. When and in what amounts may optional payments be made?
A participant may at any time make optional payments of a minimum of
$10 per payment and up to a maximum of $10,000 per calendar quarter. Since no
interest is paid, participants may wish to send optional payments so as to
reach the Agent shortly before an Investment Date for optional payments (see
answer to Question 8 below). A participant may make an optional payment upon
joining the Plan by enclosing a check or money order (payable in United States
dollars to "American Stock Transfer & Trust Company, Agent") with the
Authorization Card. Thereafter, optional payments may be made by such a
participant through the use of a cash payment form which will be attached to
each statement of account.
PURCHASES AND PRICE OF SHARES
-----------------------------
7. How will the price of shares purchased under the Plan be determined?
The Agent will purchase the shares from the Corporation to the extent
the Corporation makes shares available. The Agent will purchase any other
shares required for the Plan in the market or from private sources. The price
of shares purchased from the Corporation will be the average of the high and
low sales prices of the Common Stock on the relevant Investment Date as
reported on the New York Stock Exchange consolidated tape. The price of shares
purchased in the market or from private sources will be the average cost of all
shares so purchased with respect to the relevant Investment Date (see answers
to Questions 8 and 9 below).
8. When is the Investment Date?
In any calendar month in which a cash dividend is payable, the
Investment Date will be the dividend payment date if a business day; if not a
business day, the Investment Date will be the next succeeding business day.
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In all other calendar months, the Investment Date will be the tenth day
of that month if a business day; if not a business day, the Investment Date
will be the next succeeding business day. The first Investment Date will be May
10, 1995.
No shares will be purchased with optional payments in the thirty (30)
day period preceding any dividend payment date until the Common Stock is traded
ex-dividend.
9. How many shares will be purchased for participants?
The number of shares to be purchased for a participant will depend on
the amount of the participant's dividend or optional payment or both and the
price of the shares. Each participant's account will be credited with the
number of shares, including fractions to three decimal places, equal to the
total of a participant's funds available for investment, divided by the
purchase price described in the answer to Question 7 above.
10. When will the shares be purchased?
Shares acquired from the Corporation will be purchased for the accounts
of the participants as of the close of business on the relevant Investment
Date. Shares acquired in the market or from private sources will be purchased
promptly by the Agent and in no event later than thirty days after a relevant
Investment Date. Except where necessary under any applicable federal
securities law, these purchases may be made on any securities exchange where
such shares are traded, in the over-the-counter market or by negotiated
transactions, and are subject to such terms and conditions, including price and
delivery, to which the Agent may agree. Dividends and voting rights will
commence upon settlement, which will normally be three business days after the
purchase, whether from the Corporation or any other source. For the purpose of
making purchases, the Agent will commingle each participant's funds with those
of all other participants.
REPORTS TO PARTICIPANTS
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11. What kind of reports will be sent to participants in the Plan?
After each purchase, each participant will receive a statement of
cumulative investments for the year, including share price for tax purposes. In
addition, each participant will receive, from time to time, copies of all
communications sent to every other stockholder.
CERTIFICATES FOR SHARES
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12. Will certificates be issued for shares purchased?
Certificates for shares purchased under the Plan will be held in
safekeeping by the Agent in its name or the Agent's nominee's name. The number
of shares (including fractional interests) held for each participant will be
shown on each statement of account. No fractional share certificates will be
issued. Certificates for any number of whole shares credited to any account
will be delivered to a participant upon written request to the Agent. Any
remaining full or fractional shares will continue to be credited to the
account.
WITHDRAWALS
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13. How does a participant withdraw from the Plan and how are shares
distributed upon withdrawal?
A participant may withdraw from the Plan at any time by written notice
to the Agent. Upon withdrawal from the Plan, certificates for whole shares
held for a participant will be sent to the participant with a cash payment for
any fraction of a share being held. Fractions of shares will be valued at the
closing market price of the
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Common Stock as reported on the New York Stock Exchange consolidated tape on
the date the withdrawal is effective, less any applicable stock transfer tax.
14. When does a withdrawal from the Plan become effective?
Withdrawal is normally effective when notice is received by the Agent.
However, if the notice of withdrawal is received after a dividend record date
and before the related dividend payment date, the withdrawal will be effective
after that dividend payment date. The dividend paid on that date and any
optional payment will be invested under the Plan. The withdrawal will be
processed after the participant's account has been credited with the shares
purchased. When a participant withdraws from the Plan, or upon termination of
the Plan by the Corporation, certificates for whole shares credited to the
participant's account under the Plan will be issued to the participant and a
cash payment will be made for any fraction of a share based on the valuation as
described in the answer to Question 13 above.
15. May a participant request return of an optional payment?
Any optional payment not already invested will be refunded upon the
participant's written request received by the Agent at least 48 hours prior to
the relevant Investment Date.
RESALE RESTRICTIONS
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16. Are employees restricted in any way from reselling Common Stock
acquired under the Plan?
Some employees are so restricted. Employees who are "affiliates" of
the Corporation, as that term is defined in Rule 405 promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), may not publicly re-offer shares
acquired under the Plan except pursuant to Rule 144 of the Securities Act or
pursuant to an effective registration statement. Rule 405 defines an
"affiliate" as a person who, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or under common control with the
Corporation. Directors and certain officers of the Corporation may be
"affiliates" of the Corporation under this definition. The Corporation has no
present intention of filing a registration statement which would permit the
Corporation's "affiliates" to re-offer Common Stock acquired under the Plan
other than pursuant to Rule 144 of the Securities Act.
Provided that employees who are not affiliates of the Corporation
comply with all relevant federal and state securities laws and regulations,
they are free to sell, at any time, the Common Stock acquired under the Plan.
Directors and certain executive officers of the Corporation
participating in the Plan are subject to the reporting obligations of Section
16(a) and the short-swing profit recovery provisions of Section 16(b) of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act"), with respect
to purchases of Common Stock made under the Plan with optional cash payments.
While such directors and officers are not subject to the short-swing profit
recovery provisions of Section 16(b) of the Exchange Act with respect to
purchases of Common Stock made under the Plan with reinvested dividends, such
purchases must be disclosed on annual reports filed pursuant to Section 16(a)
of the Exchange Act.
LIMITATIONS ON PARTICIPATION
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17. Are there limitations on participation in the Plan other than those
described above?
The Corporation reserves the right to limit participation in the Plan
for any reason, even if a stockholder is otherwise eligible to participate.
Some stockholders may be residents of jurisdictions in which the Corporation
determines that it may not legally or economically offer its shares under the
Plan, and accordingly residents of such jurisdictions may be precluded from
participating in the Plan. The Corporation has no present plans to limit
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participation in the Plan by any stockholder of record for reasons other than
those set forth above, but it reserves such right in the event that it
determines in its sole discretion that such limitation may be in the best
interests of the Corporation.
TAX CONSEQUENCES
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18. What are the federal income tax consequences of participation in the
Plan?
The amount of cash dividends paid by the Corporation must be included
in income even though reinvested under the Plan. The cost basis for federal
income tax purposes of any shares acquired through the Plan will be the price
at which the shares are purchased by the Agent for the account of the
participant. That is, (a) for shares purchased from the Corporation, the
average of the high and low sales prices for the shares on the relevant
Investment Date as reported on the New York Stock Exchange consolidated tape,
or (b) for shares purchased in the market or from private sources, the average
cost of all shares so purchased with respect to the relevant Investment Date.
In connection with market purchases, brokerage commissions paid by the
Corporation on a participant's behalf are to be treated as distributions
subject to income tax in the same manner as dividends, and such amounts will be
included in the cost basis of shares purchased. The information return sent to
participants and the IRS at year-end will show such amounts paid on behalf of
participants.
A participant will realize gain or loss when shares are sold or
exchanged after withdrawal from, or termination of, the Plan and, in the case
of a fractional share, when the participant receives a cash payment for a
fraction of a share credited to his or her account. The amount of such gain or
loss will be the difference between the amount that the participant receives
for the shares or fraction of a share and the tax basis therein. Gain will be
long term if the participant's holding period for the shares exceeds one year.
The holding period for shares acquired pursuant to the Plan will begin on the
day following the Investment Date.
The Corporation believes the foregoing is an accurate summary of the
tax consequences of participation in the Plan as of the date of this
Prospectus, but participants should consult with their own advisers for advice
applicable to their particular situations.
SALE OF PLAN SHARES
-------------------
19. When and how may a participant sell shares held in this Plan?
Any participant, including a participant who is withdrawing from the
Plan, may sell some or all of his or her shares in the Plan in the market
through the participant's broker. If a participant elects to sell through a
broker, he or she must first request the Agent to send the participant a
certificate or certificates representing the requested number of shares in the
Plan credited to the participant's account. As soon as practicable after
receipt of such request, the Agent will issue a certificate or certificates
representing such number of shares to the participant in his or her name as it
appears in the participant's Plan account, unless other instructions are
provided in writing.
A participant who wishes to sell some or all of his or her shares in
the Plan should be aware of the risk that the price of the Common Stock may
decrease between the time that the participant determines to sell shares in the
Plan and the time that the sale is completed. This risk is borne solely by the
participant.
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MISCELLANEOUS
-------------
20. What happens if a participant sells or transfers all the shares held
of record in the participant's name?
A participant may continue to reinvest cash dividends on shares held
under the Plan even though all shares held of record in the participant's name
have been sold or transferred.
21. What happens if the Corporation declares a stock split, stock dividend
or makes a rights offering?
Any stock dividends or split shares distributed by the Corporation on
shares credited to a participant's Plan account will be added to the account.
Stock dividends or split shares distributed on shares registered in a
participant's name will be mailed directly to the participant in the same
manner as to shareholders who are not participating in the Plan.
In the event of a rights offering, the participant will receive rights
based upon the total number of whole shares owned (that is, the total number of
shares registered in the participant's name and the total number of whole
shares held in the account).
22. How will shares be voted at shareholders' meetings?
Shares held in a dividend reinvestment account may be voted in person
or by the same proxy sent for the shares registered in the participant's own
name. If no shares are registered in a participant's name, a proxy will be
sent for any whole shares held under the Plan. Shares held pursuant to the
Plan for which no proxy is received will not be voted.
23. Are there limitations on the liabilities of the Corporation and the
Agent under the Plan?
Neither the Corporation nor the Agent will be liable in administering
the Plan for any act done in good faith nor for any good faith omission to act,
including, without limitation, any claim of liability arising from failure to
terminate a participant's account upon such a participant's death or with
respect to the prices, or times at which, or sources from which, shares are
purchased for participants.
24. May the Plan be changed or terminated?
The Corporation may suspend, modify or terminate the Plan at any time.
Notice of such suspension, modification or termination will be sent to all
participants. No such event will affect any shares then credited to a
participant's account.
25. Who bears the risk of market price fluctuations in the Common Stock?
A participant's investment in shares acquired under the Plan is no
different from an investment in any equity security purchased and held
directly. The participant bears the risk of loss and realizes the benefits of
any gain from market price changes with respect to all such shares held by him
or her in the Plan or otherwise. However, because purchase prices for shares
purchased under the Plan are established on an Investment Date, a participant
loses any advantage otherwise available from being able to select the timing of
share purchases. A participant should also note that the timing of
distributions and processing of distributions and requests for issuance of
certificates for Plan shares may affect the availability of the shares to the
participant for resale.
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USE OF PROCEEDS
The Corporation intends to use the proceeds from the sale of its Common
Stock for general corporate purposes, including making acquisitions.
COMMON STOCK
Holders of Common Stock of the Corporation are entitled to share
equally, share for share, in dividends payable in cash, stock or other
property, where, as and if declared by the Corporation's Board of Directors. In
the event of any liquidation, dissolution or winding-up, holders of Common
Stock are entitled to receive, on a share for share basis, any assets or funds
of the Corporation that are distributable to its holders of Common Stock upon
such events. Holders of Common Stock are entitled to one vote for each share
held on all matters voted upon by stockholders. Holders of Common Stock are
not entitled to preemptive rights or to cumulative voting rights. The shares
of Common Stock issued or to be issued upon receipt of payment therefor by the
Corporation in accordance with the terms set forth in the Plan will be validly
issued, fully paid and non-assessable.
In 1987, the Board of Directors of the Corporation declared a dividend
payable to stockholders of record as of April 9, 1987, of one preferred share
purchase right ("Right") for each outstanding share of Common Stock. In 1988,
1989 and 1992, the Corporation's Board of Directors amended the preferred share
purchase rights plan. The amended plan provides that each Right, when
exercisable, will entitle the holder thereof until April 9, 1997, to purchase
one one-hundredth of a share of Series A Junior Participating Preferred Stock,
par value $.01 per share, at an exercise price of $20, subject to certain
anti-dilution adjustments. The Rights will not be exercisable or transferable
apart from shares of Common Stock until the earlier of (i) the tenth day after
a public announcement that a person or group has acquired beneficial ownership
of 15% or more of the outstanding shares of common stock, other than, so long
as certain conditions are met, as a result of the beneficial ownership of
certain Common Stock or securities convertible into Common Stock held by The
1818 Fund, L.P., a Delaware limited partnership, (an "Acquiring Person"), or
(ii) the tenth day after a person commences, or announces an intention to
commence, a tender or exchange offer for 15% or more of the outstanding shares
of Common Stock. The Rights are redeemable by the Corporation at $.02 per
Right at any time prior to the time that a person or group becomes an Acquiring
Person.
In the event that the Corporation is a party to a merger or other
business combination transaction in which the Corporation is not the surviving
entity, each Right will entitle the holder to purchase, at the exercise price
of the Right, that number of shares of the common stock of the acquiring
company which, at the time of such transaction would have a market value of two
times the exercise price of the Right. In addition, if a person or group
becomes an Acquiring Person, each Right not owned by such person or group would
become exercisable for the number of shares of Common Stock which, at that
time, would have a market value of two times the exercise price of the Right.
COMMON STOCK PRICE
The Common Stock is listed on the New York Stock Exchange under the
symbol "EKO." On March 24, 1995, the last reported sale price of the
Corporation's Common Stock on the New York Stock Exchange was $6.25 as
reported by The Wall Street Journal.
AVAILABLE INFORMATION
The Corporation is subject to the information requirements of the
Exchange Act and, in accordance therewith, files reports and other information
with the Commission. Proxy statements, reports and other information
concerning the Corporation can be inspected and copied at the facilities
maintained by the Commission's office at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549 and the Commission's Regional
- 10 -
15
Offices in New York (7 World Trade Center, 13th Floor, New York, New York
10048), and Chicago (Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511), and copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Reports, proxy
material and other information concerning the Corporation also may be inspected
at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005. This Prospectus does not contain all information set forth in the
Registration Statement and Exhibits thereto which the Corporation has filed
with the Commission under the Securities Act and to which reference is hereby
made which may be obtained from the Public Reference Section of the Commission
at its principal office, at 450 Fifth Street, N.W., Washington, D.C. 20549,
upon payment of the prescribed fees.
DOCUMENTS INCORPORATED BY REFERENCE
There are incorporated hereby by reference the following documents:
1. The Corporation's Annual Report on Form 10-K for the year
ended January 2, 1994, filed with the Commission pursuant to the Exchange Act.
2. The Corporation's Quarterly Reports on Form 10-Q for the
quarters ended April 3, 1994; July 3, 1994 and October 2, 1994, filed with the
Commission pursuant to the Exchange Act.
3. The Corporation's Current Report on Form 8-K filed with the
Commission on April 20, 1994 pursuant to the Exchange Act.
4. The description of the Corporation's common stock and
preferred stock purchase rights contained in its registration statements on
Form 8-A filed with the Commission on November 7, 1973 and April 7, 1987,
respectively, including any amendments or reports filed for the purpose of
updating such descriptions.
Such incorporation by reference shall not be deemed to specifically
incorporate herein the information referred to in Item 402(a)(8) of Regulation
S-K. All other documents filed with the Commission by the Corporation pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of this offering of Common
Stock are to be incorporated herein by reference and such documents shall be
deemed to be a part hereof from the date of filing of such documents into this
Prospectus. Any statement contained in this Prospectus or 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 that
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
Any person receiving a copy of this Prospectus may obtain, without
charge, upon written or oral request, a copy of any of the documents
incorporated by reference herein, except for the Exhibits to such documents.
Written requests should be mailed to Neil R. Gordon, Treasurer, Ekco Group,
Inc., 98 Spit Brook Road, Suite 102, Nashua, New Hampshire 03062. Telephone
requests may be directed to (603) 888-1212.
VALIDITY OF SHARES
The validity of the shares of Common Stock offered hereby has been
passed upon for the Corporation by Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., Boston, Massachusetts.
- 11 -
16
EXPERTS
The consolidated balance sheet of the Corporation as of January 2, 1994
and the related statements of operations, stockholders' equity, and cash flows
for each of the three fiscal years in the three year period ended January 2,
1994 appearing in the Corporation's current report on Form 8-K filed April 20,
1994 and the related consolidated financial statement schedules for the three
fiscal years ended January 2, 1994 appearing in or incorporated by reference in
the Corporation's 1993 Annual Report on Form 10-K for the fiscal year ended
January 2, 1994 and this Form S-3 have been audited and reported upon by KPMG
Peat Marwick LLP, independent certified public accountants, as set forth in
their reports included therein and incorporated herein by reference. Such
consolidated financial statements and schedules are incorporated by reference
herein in reliance upon the reports of KPMG Peat Marwick LLP pertaining to such
financial statements and schedules and upon the authority of said firm as
experts in auditing and accounting.
INDEMNIFICATION
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 145 of the General Corporate Law of the State of Delaware
provides for the indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes Delaware corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been an officer or director.
The Corporation's Certificate of Incorporation provides that, from and
after February 12, 1987, a director will not be liable for monetary damages for
breaches of his or her fiduciary duty of care except for liability when the
director (a) breaches his or her duty of loyalty to the Corporation or its
stockholders, (b) acts or fails to act otherwise than in good faith or engages
in intentional misconduct or knowingly violates the law, (d) authorizes payment
of a dividend or stock repurchase which is illegal under Delaware law, or (d)
enters into a transaction from which he obtains an improper personal benefit.
The Bylaws of the Corporation authorize the Corporation to indemnify,
to the fullest extent permitted by law, its present and former directors and
officers (and their heirs, executors and administrators) with respect to
expenses (including attorneys' fees), judgments, fines and settlement payments
incurred because of any claim made after July 30, 1986 in any threatened,
pending or completed action against them while serving in their capacities as
directors or officers of the Corporation or with another entity at the
Corporation's request. The Bylaws state that any agreement for indemnification
of any director or officer may provide indemnification rights which are broader
or otherwise different from those set forth in the Bylaws. The Bylaws provide
that the indemnity provisions are intended to grant an enforceable right to
indemnification in accordance with their terms. The Bylaws, therefore, require
indemnification under certain circumstances where Delaware law permits but does
not require such indemnification and may require or permit indemnification in a
specific case without compliance with the terms of one or more of the
provisions of Delaware law.
INDEMNITY AGREEMENTS
The Corporation has Indemnity Agreements with each person who has
served as an officer or director since April 1, 1987. The Indemnity Agreements
provide that the Corporation, in accordance with the terms and conditions
thereof, will pay on behalf of the indemnitee (and his executors,
administrators or assigns) any amount which he or she is or becomes legally
obligated to pay because of any claim made against him or her after July 30,
1986 because of any past, present or future act, omission or breach of duty,
including any actual or alleged error or misstatement or misleading statement
committed or suffered while the indemnitee was, is or may in the future be
acting in his or her capacity as, or solely because of his or her being, a
director or officer of the Corporation
- 12 -
17
and/or a subsidiary of the Corporation. The Corporation will not be liable
under the Indemnity Agreements to make any payment in connection with any claim
made against the indemnitee under certain circumstances, including a claim
based upon the indemnitee's gaining in fact any personal profit or advantage to
which he or she was not legally entitled. The Corporation must consent to
incurring any costs, charges and expenses covered by the Indemnity Agreements.
The Delaware General Corporation Law, the Corporation's Certificate of
Incorporation, the Bylaws and the Indemnity Agreements authorize the
Corporation's Board of Directors to grant indemnity to directors and officers
in terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities arising under the Securities Act. The
Corporation also has a policy insuring directors and officers of the
Corporation against certain liabilities, including liabilities under the
Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Corporation pursuant to the foregoing provisions, or otherwise, the Corporation
has been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
CORRESPONDENCE
All correspondence concerning the Plan should be addressed to:
AMERICAN STOCK TRANSFER & TRUST COMPANY
40 WALL STREET, 46TH FLOOR
NEW YORK, NY 10005
ATTENTION: DIVIDEND REINVESTMENT
Telephone Number: 1-800-278-4353
Facsimile Number: 1-718-234-1440
- 13 -
18
______________________
TABLE OF CONTENTS
Page
----
Ekco Group, Inc. . . . . . . . . . . . . . . . . 2 EKCO GROUP, INC.
The Plan . . . . . . . . . . . . . . . . . . . . 4
Purpose . . . . . . . . . . . . . . . . . . . . . 4
Advantages . . . . . . . . . . . . . . . . . . . 4
Administration . . . . . . . . . . . . . . . . . 4
Participation . . . . . . . . . . . . . . . . . . 4
Purchases and Price of Shares . . . . . . . . . . 5
Reports to Participants . . . . . . . . . . . . . 6
Certificates for Shares . . . . . . . . . . . . . 6
Withdrawals . . . . . . . . . . . . . . . . . . . 6
Resale Restrictions . . . . . . . . . . . . . . . 7
Limitations on Participation . . . . . . . . . . 7
Tax Consequences . . . . . . . . . . . . . . . . 8
Sale of Plan Shares . . . . . . . . . . . . . . . 8
Miscellaneous . . . . . . . . . . . . . . . . . . 9
Use of Proceeds . . . . . . . . . . . . . . . . . 10
Common Stock . . . . . . . . . . . . . . . . . . 10
Common Stock Price . . . . . . . . . . . . . . . 10
Available Information . . . . . . . . . . . . . . 10
Documents Incorporated by Reference . . . . . . . 11
Validity of Shares . . . . . . . . . . . . . . . 11
Experts . . . . . . . . . . . . . . . . . . . . . 12
Indemnification . . . . . . . . . . . . . . . . . 12
Limitation of Liability and DIVIDEND REINVESTMENT AND
Indemnification . . . . . . . . . . . . . . . . 12 STOCK PURCHASE PLAN
Indemnity Agreements . . . . . . . . . . . . . . 12
Correspondence . . . . . . . . . . . . . . . . . 13
______________________
No dealer, salesperson or other individual has
been authorized to give any information or make
any representations other than those contained or
incorporated by reference in this Prospectus in
connection with the offer made by this Prospectus
and, if given or made, such information or
representation must not be relied upon as having
been authorized by the Corporation. Neither the
delivery of this Prospectus nor any sale made
hereunder shall under any circumstances create an
implication that there has been a change in the
affairs of the Corporation since the date hereof.
This Prospectus does not constitute an offer or
solicitation by anyone in any jurisdiction which March 30, 1995
such offer or solicitation is not authorized or in
which the person making such offer or solicitation
is not qualified to do so or to anyone to whom it
is unlawful to make such offer or solicitation.
19
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fee are estimated):
Registration fee $ 1,066.73
NYSE fee 1,500.00
Blue sky expenses 1,300.00
Legal fees and expenses 15,000.00
Miscellaneous 3,800.00
----------
Total $22,666.73
______________________
All expenses in connection with the issuance and distribution of the
securities being offered will be borne by the Corporation.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Included in Part I of this registration statement.
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1(a) Copy of Restated Certificate of Incorporation dated
February 17, 1987, as amended (incorporated herein by
reference to Exhibit 3.1(a) to Form 10-K for the year
ended December 31, 1989).
4.1(b) Copy of Certificate of Designations of Series A
Junior Participating Preferred Stock (incorporated
herein by reference to Exhibit 3.1(b) to Form 10-K
for the year ended January 2, 1994).
4.1(c) Copy of Rights Agreement dated as of March 27, 1987,
including Form of Rights Certificate and Form of
Certificate of Designations of Series A Junior
Participating Preferred Stock, as amended
(incorporated herein by reference to Exhibit 4.1 to
Form 10-K for the year ended January 2, 1994).
4.2 Copy of Certificate of Designations of Series B ESOP
Convertible Preferred Stock (incorporated herein by
reference to Exhibit 3.1(d) to Form 10-K for the year
ended January 1, 1989).
4.3 Copy of Bylaws as currently in effect (incorporated
herein by reference to Exhibit 3.2 to Form 10-K for
the year ended December 29, 1991).
5 Opinion of counsel as to the legality of securities
being registered.
24.1 Consent of KPMG Peat Marwick LLP.
24.2 Consent of counsel. (Reference is made to Exhibit 5.)
25 Power of Attorney to file future amendments (Part II).
II-1
20
ITEM 17. UNDERTAKINGS.
A. Rule 415 Offering
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;
(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;
(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 (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
B. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE
The undersigned registrant hereby undertakes 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 section 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.
C. REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8
Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities 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 question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-2
21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Ekco
Group, Inc. 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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Nashua, New Hampshire, on the 30th day of
March, 1995.
EKCO GROUP, INC.
By: /s/ Robert Stein
---------------------------------
Robert Stein, President and Chief
Executive Officer
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints Robert Stein and Jeffrey A. Weinstein,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution and resubstitution in each of them for him and in his
name, place and stead, and in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
--------- -------- ----
/s/ Robert Stein
--------------------------------------- President, Chief Executive March 30, 1995
Robert Stein Officer and Director
(Principal Executive Officer)
/s/ Donato A. DeNovellis
--------------------------------------- Executive Vice President and March 30, 1995
Donato A. DeNovellis Chief Financial Officer
(Principal Financial Officer)
/s/ Brian R. McQuesten
--------------------------------------- Controller (Principal Accounting March 30, 1995
Brian R. McQuesten Officer)
II-3
22
/s/ Jeffrey A. Weinstein
--------------------------------------- Executive Vice President, Secretary, March 30, 1995
Jeffrey A. Weinstein General Counsel and Director
/s/ Andrew D. Dunn
--------------------------------------- Director March 30, 1995
Andrew D. Dunn
/s/ T. Michael Long
--------------------------------------- Director March 30, 1995
T. Michael Long
/s/ Stuart B. Ross
--------------------------------------- Director March 30, 1995
Stuart B. Ross
/s/ Bill W. Sorenson
--------------------------------------- Director March 30, 1995
Bill W. Sorenson
/s/ Herbert M. Stein
--------------------------------------- Director March 30, 1995
Herbert M. Stein
II-4
23
INDEX TO EXHIBITS FILED HEREWITH
Exhibit No. Description Page *
---------- ----------- ----
5 Opinion of counsel as to the legality of securities being registered.
24.1 Consent of KPMG Peat Marwick LLP.
24.2 Consent of counsel. (Reference is made to Exhibit 5.)
25 Power of attorney to file future amendments (Part II).
______________________
* Refers to sequentially numbered copy.
II-5
EX-5
2
OPINION OF COUNSEL
1
EXHIBIT 5
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000
Washington, D.C. 20004 Telex: 94-0198
Telephone: 202/434-7300 Fax: 617/542-2241
Fax: 202/434-7400
Direct Dial Number
March 30, 1995
Ekco Group, Inc.
98 Spit Brook Road
Suite 102
Nashua, NH 03062
Gentlemen:
We have acted as counsel to Ekco Group, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement"), pursuant to which the Company is registering the
issuance under the Securities Act of 1933, as amended, of a total of 500,000
shares (the "Shares") of its common stock, $.01 par value per share (the
"Common Stock"), for issuance in connection with a newly created Dividend
Reinvestment and Stock Purchase Plan (the "Plan"). This opinion is being
rendered in connection with the filing of the Registration Statement. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company's
Restated Certificate of Incorporation and Bylaws, both as currently in effect;
such other records of the corporate proceedings of the Company and certificates
of the Company's officers as we have deemed relevant; and the Registration
Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly and validly authorized by the Company and (ii) the Shares, when
sold, will have been duly and validly issued, fully paid and non-assessable
shares of the Common Stock.
Our opinion is limited to the General Corporation Laws of the State of
Delaware, and we express no opinion with respect to the laws of any other
jurisdiction. No opinion is expressed herein with respect to the qualification
of the Shares under the securities or blue sky laws of any state or any foreign
jurisdiction.
2
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Ekco Group, Inc.
March 30, 1995
Page 2
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto. We hereby further
consent to the reference to us under the caption "Validity of Shares" in the
prospectus included in the Registration Statement.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
EX-24.1
3
CONSENT OF KPMG PEAT MARWICK
1
Exhibit 24.1
The Board of Directors
Ekco Group, Inc.:
We consent to the use of our reports incorporated herein by reference and to
the reference of our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Boston, Massachusetts
March 28, 1995