As filed with the Securities and Exchange Commission on December 15, 2011
Registration No. 333-204777 |
Registration No. 333-
Washington, D.C. 20549
FORM S-3
Amendment No. 1
REGISTRATION STATEMENT
UNDER |
PATRICK INDUSTRIES, INC.
(Exact name of registrant as specified in its charter) | ||
Indiana | 35-1057796 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer | |
107 W. Franklin Street, P.O. Box 638, Elkhart, IN (574) 294-7511 | ||
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices) | ||
Andy L. Nemeth Executive Vice President-Finance, Secretary-Treasurer, and ChiefFinancial Officer 107 W. Franklin St. Elkhart, IN 46515 Telephone: (574) 294-7511 | ||
(Name, address, including zip code, and telephone number, including area code, of agent for service) | ||
Copy to: Robert A. Schreck, Jr., P.C. Heidi J. Steele McDermott Will & Emery LLP 227 West Monroe Street, Suite 4700 Chicago, IL 60606 Telephone: (312) 372-2000 | ||
Copy to:
If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this formForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
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. o
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, please check the following box. o
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, please check the following box. o
Indicate by check mark whether the registrantRegistrant is a large 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.
Large accelerated filer | ☐ | Accelerated filer | ☒ | |
Non-accelerated filer | ☐ | Smaller reporting company | ☐ |
Title of each class of securities to be registered | Amount to be registered | Proposed maximum offering price per share (1)(2) | Proposed maximum aggregate offering price (1)(2) | Amount of registration fee (1) | ||||||||||||
| Common stock, without par value, including Preferred Share Purchase Rights (3) | 135,000 | $ | 3.38 | $ | 456,300 | $ | 52.30 | |||||||||
CALCULATION OF REGISTRATION FEE | ||||||
Title of Each Class of | Amount to be Registered | Proposed Maximum Offering Price | Proposed Maximum Aggregate | Amount of | ||||||
Debt Securities | ||||||||||
Common Stock | ||||||||||
Preferred Stock | ||||||||||
Warrants to Purchase Debt Securities | ||||||||||
Warrants to Purchase Common Stock or Preferred Stock | ||||||||||
Depositary Shares(3) | ||||||||||
Stock Purchase Contracts | ||||||||||
Stock Purchase Units | ||||||||||
Units(5) | ||||||||||
| Total Primary Offering(4) | $ | 200,000,000 | $ | 23,240 | (6)(7) | |||||
(1) | This registration statement also registers such indeterminate amounts of securities as may be issued upon conversion of, or in exchange for, the securities registered and pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), such indeterminable number of shares of common stock as may be issued from time to time upon conversion or exchange as a result of stock splits, stock dividends or similar transactions. | |||||
(2) | The proposed maximum offering price per security and the proposed maximum aggregate offering price per class of security will be determined from time to time in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. | |||||
(3) | Represents depositary shares, evidenced by depositary receipts, issued pursuant to a deposit agreement. In the event the Registrant issues fractional interests in shares of the preferred stock registered hereunder, depositary receipts will be distributed to purchasers of such fractional interests, and such shares of preferred stock will be issued to a depositary under the terms of a deposit agreement. | |||||
(4) | The Offering made pursuant to this registration statement relates to such indeterminate number or amount of shares of debt securities, common stock, preferred stock, warrants, depositary shares, stock purchase contracts, stock purchase units, and units of the Registrant as may from time to time be issued or sold by the Registrant at indeterminate prices, in U.S. Dollars or the equivalent thereof denominated in foreign currencies or units of two or more foreign currencies or composite currencies (such as the Euro). In no event will the maximum aggregate offering price of all shares of debt securities, common stock, preferred stock, warrants, depositary shares, stock purchase contracts, stock purchase units, and units issued or sold by the Registrant pursuant to this registration statement exceed $200,000,000 nor if any debt securities are issued with original issue discount, such greater amount as will result in an aggregate offering price of $200,000,000. These securities may be sold separately, together or as units with other securities registered hereby. | |||||
(5) | Each unit will be issued under a unit agreement and will represent an interest in two or more of the other securities offered herein, which may or may not be separable from one another. | |||||
(6) | Calculated pursuant to Rule 457(o) under the Securities Act. | |||||
| (7) | Previously paid. | |||||
The registrant is registering an aggregate of 135,000 shares of common stock to be offered by the selling shareholders pursuant to this registration statement. This registration statement also registers such number of additional shares of common stock to prevent dilution resulting from stock splits, stock dividends or similar transactions.
The information in this prospectus is not complete and may be changed.We may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 15, 2011
PROSPECTUS
PATRICK INDUSTRIES, INC.
Debt Securities
Common Stock
Units |
From time to time, we may sell up to an aggregate of 135,000 shares$200,000,000 of Patrick Industries, Inc. (“Patrick”) common stock. These shares were issued to the selling shareholders in transactions exempt from the registration requirementsany combination of the Securities Act of 1933, as amended (the “Securities Act”). The shares of our common stock are being registered pursuant to a registration rights agreement with the selling shareholders.
You should read this prospectus, and any prospectus supplements under federalsupplement and statethe information incorporated by reference herein or therein carefully before you invest.
Investing in our securities laws.
This prospectus may not know whenbe used to offer or in what amount the selling shareholders may offer the shares for sale. The selling shareholders may sell any all or none of the shares offeredsecurities unless accompanied by this prospectus.
Our common stock is listedquoted and traded on The NasdaqNASDAQ Global Select Market (“Nasdaq”) under the symbol “PATK.” On December 8, 2011,June 3, 2015, the last reported sale price of our common stock on NasdaqThe NASDAQ Global Select Market was $3.35 per share.
The securities may be offered directly by us to investors, to or through underwriters or dealers or through agents. If any underwriters are involved in the sale of any securities offered by this prospectus and any prospectus supplement, their names, and any applicable purchase price, fee, commission or discount arrangement between or among them, and any applicable over-allotment options, will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy ofdetermined if this prospectus and any prospectus supplements.is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is December , 2011
TABLE OF CONTENTSTable of Contents
ABOUT THIS PROSPECTUS | 1 |
PATRICK INDUSTRIES, INC. | 1 |
RISK FACTORS | 1 |
FORWARD-LOOKING STATEMENTS | 2 |
RATIO OF EARNINGS TO FIXED CHARGES | 3 |
USE OF PROCEEDS | 3 |
DESCRIPTION OF DEBT SECURITIES | 3 |
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK | 8 |
DESCRIPTION OF WARRANTS | 9 |
DESCRIPTION OF DEPOSITARY SHARES | 9 |
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS | 11 |
DESCRIPTION OF UNITS | |
BOOK-ENTRY ISSUANCE | 12 |
PLAN OF DISTRIBUTION | 14 |
WHERE YOU CAN FIND MORE INFORMATION | 15 |
INCORPORATION OF INFORMATION BY REFERENCE | |
LEGAL MATTERS | |
EXPERTS | |
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, (the “SEC”)or the SEC, utilizing a “shelf” registration process. Under this shelf process, the selling shareholderswe may sell the common stocksecurities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the common stock thatsecurities we may be offered. The securities may be sold through underwriters or dealers or may be sold by the selling shareholders and/or through their respective agents designated from time to time.offer. Each time the selling shareholders offer thewe sell securities, the selling shareholders maywe will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also supplement, modifyadd, update or supersede otherchange information contained in this prospectus. You should carefully read both this prospectus and any applicable prospectus supplement together with theadditional information described below under the headings “Documents Incorporated by Reference” andheading “Where You Can Find Additional Information”.
We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.
Our BusinessPATRICK INDUSTRIES, INC.
We are a major manufacturer of component products and distributor of building products and materials tofor the recreational vehicle (“RV”) and manufactured housing (“MH”) industries. In addition, we are a supplier to certain other industrial markets, such as kitchen cabinet, office and household furniture, fixtures and commercial furnishings, marine, and other industrial markets. We manufacture a variety of products including decorative vinyl and paper laminated panels, countertops,fabricated aluminum products, wrapped vinyl, paper and hardwood profile mouldings, solid surface, granite, and quartz countertops, cabinet doors and components, hardwood furniture, fiberglass bath and shower fixtures, fiberglass and plastic component products including front and rear caps and marine helms, slide-out trim and fascia, interior passage doors, exterior graphics and RV painting, simulated wood and stone products, and slotwall panels and slotwall components.
We are also an independent wholesale distributor of pre-finished wall and ceiling panels, drywall and drywall finishing products, electronics, wiring, electrical and plumbing products, electronics, cement siding, fiber reinforced polyester (“FRP”) products, interior passage doors, roofing products, laminate and ceramic flooring, shower doors, furniture, fireplaces and surrounds, interior and exterior lighting products, and other miscellaneous products. We have a nationwide network of manufacturing and distribution centers for our products, thereby reducing in-transit delivery time and cost to the regional manufacturing plants of our customers. We believe that we are one of the few suppliers to the RV and MH industries that has such a nationwide network. We maintain five30 manufacturing plants and threenine distribution facilities near our principal offices in Elkhart, Indiana, and operate nineseven other warehouse and distribution centers and sixseven other manufacturing plants in elevennine other states.
We have two reportable business segments – Manufacturing and Distribution. For a more comprehensive overview of
Each prospectus supplement may include additional information about us.
RISK FACTORS
Before you invest in our business strategy, we refersecurities, in addition to the other information, documents or reports included or incorporated by reference in this prospectus and in any prospectus supplement, you toshould carefully consider the risk factors set forth in the section entitled “Risk Factors” in any prospectus supplement as well as in “Part I, Item 1 of1A. Risk Factors” in our Annual Reportmost recent annual report on Form 10-K for the fiscal year ended December 31, 2010 (the “Form 10-K”),and in “Part II, Item 1A. Risk Factors” in our quarterly reports on Form 10-Q filed subsequent to such Form 10-K, which isare incorporated by reference into this prospectus. See “Where You Can Find Additional Information.”
Information both included and incorporated by reference in this prospectus contains certain statements that constituteand in any prospectus supplement may contain forward-looking statements, withinconcerning, among other things, our outlook, financial projections and business strategies, all of which are subject to risks, uncertainties and assumptions. These forward-looking statements are identified by the meaninguse of the Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties. The terms such as “intend,” “plan,” “may,” “should,” “could,“will,” “anticipate,” “believe,” “could,” “estimate,” “expect,” “objective,“continue,” “plan,“potential,” “opportunity,” “project” and similar expressions are intended to identify forward-looking statements. Such forward-lookingterms. These statements are subject to inherentbased on certain assumptions and analyses that we believe are appropriate under the circumstances. Should one or more of these risks andor uncertainties that may causematerialize, or should our assumptions prove incorrect, actual results or events tomay differ materially from those contemplated by such forward-lookingindicated in these statements. In additionWe cannot guarantee that we will achieve these plans, intentions or expectations. Forward-looking statements speak only as of the date they are made, and we undertake no obligation to the assumptions and other factors referred to specificallypublicly update or revise any of them in connection with such statements, factorslight of new information, future events or otherwise.
Factors that may cause actual results or events to differ materially from those contemplated by suchimpact forward-looking statements include, without limitation, the impact of any economic downturns especially in the residential housing market, a decline in consumer confidence levels, pricing pressures due to competition, costs and availability of raw materials, availability of commercial credit, availability of retail and wholesale financing for residential and manufactured homes, availability and costs of labor, inventory levels of retailers and manufacturers, levels of repossessed residential and manufactured homes, the financial condition of our customers, retention and concentration of significant customers, the ability to generate cash flow or obtain financing to fund growth, the ability to effectively manage the costs and the implementation of the new enterprise resource management system, future growth rates in ourthe Company’s core businesses, the seasonality and cyclicality in the industries to which our products are sold, the successful integration of acquisitions, interest rates, oil and gasoline prices, the outcome of litigation, adverse weather conditions impacting retail sales, and our ability to remain in compliance with our credit agreement covenants. In addition, national and regional economic conditions and consumer confidence may affect the retail sale of recreational vehicles and residential and manufactured homes andhomes. We are affected by other factors thatidentified in our filings with the Securities and Exchange Commission, some of which are set forth in the section entitled “Part I, Item 1A. Risk Factors” in our most recent Annual Report on Form 10-K and in “Part II, Item 1A. Risk Factors,” in our quarterly reports on Form 10-Q filed subsequent to such Form 10-K, which are incorporated by reference into this prospectus and any prospectus supplement in their entirety, as the same may be referred to or noted in the Company’s reports filed with the SECupdated from time to time. The Company doestime by our future filings under the Exchange Act. Although we have attempted to list these important factors, we also wish to caution investors that other factors may prove to be important in the future in affecting our operating results. New factors emerge from time to time, and it is not undertakepossible for us to update forward-looking statements to reflect circumstancespredict all of these factors, nor can we assess the impact each factor or events that occur aftercombination of factors may have on our business.
These risks and uncertainties, along with the date the forward-looking statements are made, except as required by law.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for the periods indicated:
Three Months Ended | Fiscal Year | |||||||||||||||||||||||
2015 | 2014 | 2013 | 2012 | 2011 | 2010 | |||||||||||||||||||
Ratio of Earnings to Fixed Charges | 14.5 | 15.4 | 14.1 | 5.6 | 2.7 | 1.2 | ||||||||||||||||||
For purposes of computing these ratios, earnings consists of pre-tax income from continuing operations plus fixed charges. Fixed charges consist of interest expense (including amortization of debt financing costs) and the interest portion of rental expense.
For further information on these ratios, see Exhibit 12.1, “Computation of Ratio of Earnings to Fixed Charges,” filed with Registration Statement of which this prospectus is a part.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net proceeds from the sale of the securities by the Company will be used for general corporate purposes, including, without limitation, working capital, capital expenditures, acquisitions, repayment or refinancing of indebtedness and stock repurchases.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the matters addressed in “Cautionary Note Regarding Forward-Looking Statements,” you should consider the matters described below, as well as those containedadditional information we include in any applicable prospectus supplement, before deciding whether to invest in our common stock. If anysummarizes the material terms and provisions of the following risks actually occur, they could have a material adverse effect ondebt securities that we may offer under this prospectus. The debt securities will be our business and results of operations.
The following summaries of material provisions of the economic recovery.
General
We will describe in each prospectus supplement the following terms relating to a material adverse affect on our financial condition and resultsseries of operations.
● | The title or designation; |
● | Any limit on the principal amount that may be issued; |
● | Whether or not we will issue the series of debt securities in global form, the terms and the Depositary; |
● | The maturity date; |
● | The annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
● | Whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
● | The terms of the subordination of any series of subordinated debt; |
● | The place where payments will be payable; |
● | Our right, if any, to defer payment of |
● | The date, if any, after which, and the price at which, we may, at our |
● | The date, if any, on which, and the |
● | Whether the indenture will restrict our ability to pay dividends, or |
● | Whether we will be restricted from incurring any additional indebtedness; |
● | A discussion on any material or special U.S. federal income tax considerations applicable to the debt securities; |
● | The denominations in which we |
● | Any other specific terms, preferences, rights or limitations of, or restrictions on, the |
Conversion or Exchange Rights
We will set forth in the stock market may have an adverse effect uponprospectus supplement the price of our common stock.
Consolidation, Merger or Sale
The indentures will not contain any covenant which has therestricts our ability to control all matters requiring shareholder approval and whose interests may not be aligned with the interests of our other shareholders. In addition, the ownership of a significant portion of our common stock is concentrated in the hands of a few holders.
Events of Default Under the Indenture
The following may be events of default under the indentures with respect to any series of debt securities that we may issue:
● | If we fail to pay interest when due and our failure continues for a number of days to be stated in the indenture and the time for payment has not been extended or deferred; |
● | If we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed; |
● | If we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for a number of days to be stated in the indenture after we receive notice from the indenture trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
● | If specified events of bankruptcy, insolvency or reorganization occur as to us. |
If an event of default with respect to debt securities of any series occurs and is continuing, the indenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding Tontine Capital hasdebt securities of that series, by notice to us in writing, and to the indenture trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately; provided that if an event of bankruptcy, insolvency or reorganization occurs, such amounts shall automatically become due and payable without any declaration or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver will cure the default or event of default.
Subject to the terms of the indentures, if an event of default under an indenture occurs and is continuing, the indenture trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the indenture trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to appoint one nomineedirect the time, method and place of conducting any proceeding for any remedy available to our board;the indenture trustee, or (ii) holds at least 15%exercising any trust or power conferred on the indenture trustee, with respect to the debt securities of our common stock then outstanding, Tontine Capital hasthat series, provided that:
● | The direction given by the holder is not in conflict with any law or the applicable indenture; and |
● | Subject to its duties under the Trust Indenture Act, the indenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series will only have the right to institute a proceeding under the indentures or to appoint two nomineesa receiver or trustee, or to our board. Asseek other remedies if:
● | The holder has given written notice to the indenture trustee of a continuing event of default with respect to that series; |
● | The holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request, and such holders have offered reasonable indemnity to the indenture trustee to institute the proceeding as trustee; and |
● | The indenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 60 days after the notice, request and offer. |
These limitations do not apply to a suit instituted by a holder of October 28, 2011, Tontine Capital has one directordebt securities if we default in the payment of the principal, premium, if any, or interest on, the Company’s boarddebt securities.
We will periodically file statements with the indenture trustee regarding our compliance with specified covenants in the indentures.
Modification of directorsIndenture; Waiver
We and has not exercised its rightthe indenture trustee may change an indenture without the consent of any holders with respect to nominatespecific matters, including:
● | To fix any ambiguity, defect or inconsistency in the indenture; and |
● | To change anything that does not materially adversely affect the interests of any holder of debt securities of any series. |
In addition, under the indentures, the rights of holders of a second directorseries of debt securities may be changed by us and the indenture trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, we and the indenture trustee may only make the following changes with the consent of each holder of any outstanding debt securities affected:
● | Changing the fixed maturity of the series of debt securities or any installment of principal of or interest on any series of debt securities; |
● | Reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption of any debt securities; or |
● | Reducing the percentage of debt securities, the holders of which are required to consent to any amendment. |
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
● | Register the transfer or exchange of debt securities of the series; |
● | Replace stolen, lost or mutilated debt securities of the series; |
● | Maintain paying agencies; |
● | Hold monies for payment in trust; |
● | Compensate and indemnify the indenture trustee; and |
● | Appoint any successor indenture trustee. |
In order to exercise our rights to be discharged, we must deposit with the indenture trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depositary Trust Company or another Depositary named by us and identified in a prospectus supplement with respect to that series. See “Book-Entry Issuance” for a further description of the terms relating to any book-entry securities.
Subject to the board.
Subject to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, no service charge will be required for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
● | Issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
● | Register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check which we will mail to the holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the indenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the indenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter may look only to us for payment thereof.
Governing Law
The interests of Tontine Capital may notindentures and the debt securities will be governed by and construed in all cases be alignedaccordance with the interestslaws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Notes
The subordinated notes will be unsecured and will be subordinate and junior in priority of payment to certain of our other shareholders.indebtedness to the extent described in a prospectus supplement. The influencesubordinated indenture does not limit the amount of Tontine Capitalsubordinated notes which we may issue. It also havedoes not limit us from issuing any other secured or unsecured debt.
Regarding the effect of deterring hostile takeovers, delaying or preventing changes in control or changes in management, or limitingIndenture Trustee
We will name the ability of our shareholders to approve transactions that they may deem to be in their best interests. In addition, Tontine Capital and its affiliates areindenture trustee for debt securities issued under the applicable indenture in the business of investingapplicable supplement to this prospectus and, unless otherwise indicated in companiesa prospectus supplement, the indenture trustee will also act as Transfer Agent and may, from timePaying Agent with respect to time, invest in companies that compete directly or indirectly with us. Tontine Capital and its affiliates may also pursue acquisition opportunities thatthe debt securities. The indenture trustee may be complementary to our business and, as a result, those acquisition opportunities may not be available to us.
DESCRIPTION OF CAPITALCOMMON STOCK AND PREFERRED STOCK
General
We are currently authorized to issue 20,000,000 shares of common stock, without par value, and 1,000,000 shares of preferred stock, without par value. Each share of our common stock has the same relative rights as, and is identical in all respects to, each other share of our common stock. On October 28, 2011,June 5, 2015, there were 9,841,495approximately 15,451,900 shares of our common stock outstanding. There are no shares of preferred stock outstanding.
Common Stock
Issuance of Common Stock.Stock. Shares of common stock may be issued from time to time as our board shall determine and on such terms and for such consideration as shall be fixed by the board. The authorized number of shares of common stock may, without a class or series vote, be increased or decreased from time to time by the affirmative vote of the holders of a majority of the stock of the Company entitled to vote.
Dividends and Rights Upon Liquidation.Liquidation. After the requirements with respect to preferential dividends on preferred stock, if any, are met, the holders of our outstanding common stock are entitled to receive dividends out of assets legally available at the time and in the amounts as the board may from time to time determine. Our common stock is not convertible or exchangeable into other securities. Upon our liquidation, dissolution or winding up, the holders of our common stock are entitled to receive the assets that are legally available for distribution on a pro rata basis, after payment of all of our debts and other liabilities and subject to the prior rights of holders of any preferred stock then outstanding. The Company does not currently pay a dividend on its common stock.
Voting Rights. The holders of the common stock are entitled to vote at all meetings of the shareholders and are entitled to cast one vote for each share of common stock held by them respectively and standing in their respective names on the books of the Company.
Preemptive Rights. Holders of our common stock do not have preemptive rights with respect to any shares that may be issued. Shares of our common stock are not subject to redemption.
The Indiana Business Corporation Law (the “IBCL”) limits some transactions between an Indiana company and any person who acquires 10% or more of the company’s common stock (an “interested shareholder”). During the five-year period after the acquisition of 10% or more of a company’s common stock, an interested shareholder cannot enter into a business combination with the company unless, before the interested shareholder acquired the common stock, the board of directors of the company approved the acquisition of common stock or approved the business combination. After the five-year period, an interested shareholder can enter into only the following three types of business combinations with the company: (i) a business combination approved by the board of directors of the company before the interested shareholder acquired the common stock; (ii) a business combination approved by holders of a majority of the common stock not owned by the interested shareholder; and (iii) a business combination in which the shareholders receive a price for their common stock at least equal to a formula price based on the highest price per common share paid by the interested shareholder.
In addition, under Indiana law, a person who acquires shares giving that person more than 20%, 33 1/3%, and 50% of the outstanding voting securities of an Indiana corporation is subject to the “Control Share Acquisitions Statute” of the IBCL and may lose the right to vote the shares which take the acquiror over these respective levels of ownership. Before an acquiror may vote the shares that take the acquiror over these ownership thresholds, the acquiror must obtain the approval of a majority of the shares of each class or series of shares entitled to vote separately on the proposal, excluding shares held by officers of the corporation, by employees of the corporation who are directors of the corporation and by the acquiror. An Indiana corporation subject to the Control Share Acquisitions Statute may elect not to be covered by the statute by so providing in its articles of incorporation or by-laws. We have adopted a provision in our Amended and Restated By-laws which states that the Control Share Acquisitions Statute shall not apply to the issued and outstanding shares of our common stock. We opted out of the Control Share Acquisitions Statute when we sold Tontine Capital shares of our common stock in connection with the acquisition of Adorn Acquisition.
DESCRIPTION OF WARRANTS
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the warrants that we may offer under this prospectus. The following statements with respect to the warrants are summaries of, and subject to, the detailed provisions of a warrant agreement to be entered into by Patrick and a warrant agent to be selected at the time of issue (the “warrant agent”), a form of which will be filed with the SEC.
General
The warrants, evidenced by warrant certificates, may be issued under the warrant agreement independently or together with any securities offered by any prospectus supplement and may be attached to or separate from such securities. If warrants are offered, the prospectus supplement will describe the terms of the warrants, including the following:
● | The offering price, if any; |
● | If applicable, the designation, aggregate principal amount, and terms of the debt securities purchasable upon exercise of the debt warrants; |
● | If applicable, the principal amount of debt securities purchasable upon exercise of one debt warrant and the price at which such principal amount of debt securities may be purchased upon such exercise; |
● | If applicable, the number of shares of preferred stock or common stock purchasable upon exercise of each warrant and the initial price at which such shares may be purchased upon exercise; |
● | If applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security; |
● | If applicable, the date on and after which the warrants and the related securities will be separately transferable; |
● | The date on which the right to exercise the warrants shall commence and the date on which such right shall expire; |
● | Federal income tax consequences; |
● | Call provisions of such warrants, if any; |
● | Anti-dilution provisions of the warrants, if any; |
● | Whether the warrants represented by the warrant certificates will be issued in registered or bearer form; and |
● | Any additional or other terms, procedures, rights, preferences, privileges, limitations and restrictions relating to the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
The shares of preferred stock or common stock issuable upon the exercise of the warrants will, when issued in accordance with the warrant agreement, be fully paid and non-assessable.
DESCRIPTION OF DEPOSITARY SHARES
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the depositary shares that we may offer under this prospectus. The following statements with respect to the depositary shares and depositary receipts are summaries of, and subject to, the detailed provisions of a deposit agreement to be entered into by Patrick and a depositary to be selected at the time of issue (the “depositary”) and the form of depositary receipt. The form of deposit agreement and the form of depositary receipt will be filed with the SEC.
We may, at our option, elect to issue fractional shares of Contentspreferred stock, rather than full shares of preferred stock. In the event such option is exercised, we may elect to have a depositary issue receipts for depositary shares, each receipt representing a fraction, to be set forth in the prospectus supplement relating to a particular series of preferred stock, of a share of a particular series of preferred stock as described below.
The shares of any series of preferred stock represented by depositary shares will be deposited under a deposit agreement between us and a bank or trust company that we select. Subject to the terms of the deposit agreement, each owner of a depositary share will be entitled, in proportion to the applicable fraction of a share of preferred stock represented by such depositary share, to all the rights and preferences of the preferred stock represented by the depositary share, including dividend, voting, redemption and liquidation rights.
Depositary Receipts
The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of an offering of the preferred stock.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the office of the depositary and upon payment of the charges provided in the deposit agreement, a holder of depositary receipts may have the depositary deliver to the holder the whole shares of preferred stock relating to the surrendered depositary receipts. Holders of depositary shares may receive whole shares of the related series of preferred stock on the basis set forth in the related prospectus supplement for such series of preferred stock, but holders of such whole shares will not after the exchange be entitled to receive depositary shares for their whole shares. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of the related series of preferred stock to be withdrawn, the depositary will deliver to the holder at the same time a new depositary receipt evidencing such excess number of depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received for the preferred stock to the record holders of depositary shares relating to the preferred stock in proportion to the numbers of such depositary shares owned by such holders.
In the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary shares entitled thereto, unless the depositary determines that it is not feasible to make distribution of the property. In that case the depositary may, with our approval, sell such property and distribute the net proceeds from the sale to such holders.
Redemption of Depositary Shares
If a series of preferred stock represented by depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole or in part, of the series of preferred stock held by the depositary. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share payable with respect to the series of the preferred stock. Whenever we redeem shares of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositary shares representing shares of preferred stock redeemed by us. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as may be determined by the depositary.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the information contained in such notice of meeting to the record holders of the depositary shares relating to such preferred stock. Each record holder of such depositary shares on the record date, which will be the same date as the record date for the preferred stock, will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of the preferred stock represented by such holder’s depositary shares. The depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and we will agree to take all action which may be deemed necessary by the depositary in order to enable the depositary to do so. The depositary will not vote the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock.
Amendment and Termination of the Deposit Agreement
We and the depositary at any time may amend the form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement. However, any amendment which materially and adversely alters the rights of the holders of depositary shares will not be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. We or the depositary may terminate the deposit agreement only if all outstanding depositary shares have been redeemed, or there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of depositary receipts.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and such other charges as are expressly provided in the deposit agreement to be for their accounts.
Miscellaneous
The depositary will forward to the record holders of the depositary shares relating to such preferred stock all reports and communications from us which are delivered to the depositary.
Neither we nor the depositary will be liable if either one is prevented or delayed by law or any circumstance beyond their control in performing the obligations under the deposit agreement. The obligations of Patrick and the depositary under the deposit agreement will be limited to performance in good faith of their duties thereunder, and they will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. The depositary may rely upon written advice of counsel or accountants, or information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the depositary, any such resignation or removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment. Such successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, representing contracts obligating holders to purchase from us, and we may sell to the holders, a specified number of shares of common stock at a future date or dates. The price per share of common stock may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. Stock purchase contracts may be issued separately or as a part of units (“stock purchase units”) consisting of a stock purchase contract and either (i) senior debt securities or subordinated debt securities or (ii) debt obligations of third parties, including U.S. Treasury securities, securing the holder’s obligations to purchase the common stock under the stock purchase contracts. The stock purchase contracts may require us to make periodic payments to the holders of the stock purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The stock purchase contracts may require holders to secure their obligations thereunder in a specified manner, and in certain circumstances we may deliver newly issued prepaid stock purchase contracts (“prepaid securities”) upon release to a holder of any collateral securing such holder’s obligations under the original stock purchase contract.
The applicable prospectus supplement will describe the terms of any stock purchase contracts or stock purchase units and, if applicable, prepaid securities. Certain material United States Federal income tax considerations applicable to the stock purchase units and stock purchase contracts will be set forth in the prospectus supplement relating thereto.
DESCRIPTION OF UNITS
We may issue units under one or more unit agreements, each referred to as a unit agreement, to be entered into between us and a third party, as unit agent. The unit agent will act solely as our agent in connection with the units governed by the unit agreement and will not assume any obligation or relationship of agency or trust for or with any holders of units or interests in those units. We may issue units comprising one or more of the securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit also is the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before a specified date.
The applicable prospectus supplement relating to the units we may offer will include specific terms relating to the offering, including, among others: the designation and terms of the units and of the securities comprising the units, and whether and under what circumstances those securities may be held or transferred separately; any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising those units; and whether the units will be issued in fully registered or global form.
The description in the applicable prospectus supplement and other offering material of any units we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable unit agreement and unit certificate, which will be filed with the SEC if we offer units.
BOOK-ENTRY ISSUANCE
Unless otherwise indicated in a prospectus supplement, the debt securities of a series offered by us will be issued in the form of one or more fully registered global securities. We anticipate that these global securities will be deposited with, or on behalf of, The Depository Trust Company (“DTC”), which will act as depository, and registered in the name of its nominee. Except as described below, the global securities may be transferred, in whole and not in part, only to DTC or to another nominee of DTC.
DTC has advised us that it is:
● | A limited-purpose trust company organized under the New York Banking Law; |
● | A “banking organization” within the meaning of the New York Banking Law; |
● | A member of the Federal Reserve System; |
● | A “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
● | A “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. |
DTC was created to hold securities for institutions that have accounts with DTC (“participants”) and to facilitate the clearance and settlement of securities transactions among its participants through electronic book-entry changes in participants’ accounts. Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own DTC. Access to DTC’s book-entry system is also available to others that clear through or maintain a custodial relationship with a participant, either directly or indirectly. DTC administers its book-entry system in accordance with its rules and bylaws and legal requirements.
Upon issuance of a global security representing offered securities, DTC will credit on its book-entry registration and transfer system the principal amount to participants’ accounts. Ownership of beneficial interests in the global security will be limited to participants or to persons that hold interests through participants. Ownership of interests in the global security will be shown on, and the transfer of those ownership interests will be effected only through, records maintained by DTC (with respect to participants’ interests) and the participants (with respect to the owners of beneficial interests in the global security). The selling shareholderslaws of some jurisdictions may require that certain purchasers of securities take physical delivery of those securities in definitive form. These limits and laws may impair the ability to transfer beneficial interests in a global security.
So long as DTC (or its nominee) is the registered holder and owner of a global security, DTC (or its nominee) will be considered, for all purposes under the applicable indenture, the sole owner and holder of the related offered securities. Except as described below, owners of beneficial interests in a global security will not:
● | Be entitled to have the securities registered in their names; or |
● | Receive or be entitled to receive physical delivery of certificated securities in definitive form. |
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser of each global security (“beneficial owner”) is in turn recorded on the direct and indirect participants’ records. A beneficial owner does not receive written confirmation from DTC of its purchase, but is expected to receive a written confirmation providing details of the transaction, as well as periodic statements of its holdings, from the direct or indirect participants through which such beneficial owner entered into the action. Transfers of ownership interests in securities are accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners do not receive certificates representing their ownership interests in securities, except in the event that use of the book-entry system for the securities is discontinued.
To facilitate subsequent transfers, the securities are registered in the name of DTC’s partnership nominee, Cede & Co. The deposit of the securities with DTC and their registration in the name of Cede & Co. will effect no change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the securities; DTC records reflect only the identity of the direct participants to whose accounts securities are credited, which may or may not be the beneficial owners. The participants remain responsible for keeping account of their holdings on behalf of their customers.
Delivery of notice and other communications by DTC to direct participants, by direct participants to indirect participants, and by direct participants and indirect participants to beneficial owners are governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. consents or votes with respect to the securities. Under its usual procedures, DTC mails a proxy (an “Omnibus Proxy”) to the issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those direct participants to whose accounts the securities are credited on the record date (identified on a list attached to the Omnibus Proxy).
Redemption proceeds, distributions and dividend payments, if any, on the securities will be made to DTC. DTC’s practice is to credit direct participants’ accounts on the payment date in accordance with their respective holdings as shown on DTC’s records, unless DTC has reason to believe that it will not receive payment on the payment date. Payments by participants to beneficial owners are governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name,” and are the responsibility of such participant and not of DTC, the trustee or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal and interest, if any, to DTC is our or the trustee’s responsibility, disbursement of such payments to direct participants is DTC’s responsibility, and disbursement of such payments to the beneficial owners is the responsibility of direct and indirect participants.
DTC may discontinue providing its services as securities depository with respect to the securities at any time by giving reasonable notice to us or, if applicable, the trustee. Under such circumstances, in the event that a successor securities depository is not appointed, debt security certificates are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry transfers through DTC or a successor securities depository. In that event, debt security certificates will be printed and delivered.
We have obtained the information in this section concerning DTC and DTC’s book-entry system from sources that we believe to be reliable, but we take no responsibility for the accuracy of this information.
None of us, any underwriter or agent, the trustee or any applicable paying agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in a global security, or for maintaining, supervising or reviewing any records relating to such beneficial interest.
PLAN OF DISTRIBUTION
Patrick may sell the securities in one or more of the following ways (or in any combination thereof) from time to time:
● | Through underwriters or dealers; |
● | Directly to one or more purchasers; |
● | Through agents; or |
● | Through any other methods described in a prospectus supplement. |
The applicable prospectus supplement will state the terms of the offering of any securities, including:
● | The name or names of any underwriters, dealers or agents and the amount of securities underwritten or purchased by each of them; |
● | The purchase price of such securities and the proceeds to be received by the Company; |
● | Any discounts, commissions or concessions or other items constituting compensation allowed, reallowed or paid to underwriters, dealers or agents, if any; |
● | Any public offering price; |
● | Any over-allotment options under which underwriters may purchase additional securities from the Company; |
● | Any securities exchanges on which the securities may be listed. |
Any public offering price and any discounts, commissions or concessions or other items constituting compensation allowed or reallowed or paid to underwriters, dealers or agents may be changed from time to time.
Securities may also be sold in one or more of the following transactions, or in any transactions described in a prospectus supplement:
● | Block transactions in which a broker-dealer may sell all or a portion of the securities as agent but may position and resell all or a portion of the block as principal to facilitate the transaction; |
● | Purchase by a broker-dealer as principal and resale by the broker-dealer for its own account; |
● | A special offering, an exchange distribution or a secondary distribution in accordance with the rules of any exchange on which the securities are listed; |
● | Ordinary brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
● | Sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; or |
● | Sales in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
The securities we sell by any of the methods described above may be sold to the public, in one or more transactions, either:
● | At a fixed public offering price or prices, which may be changed; |
● | At market prices prevailing at the time of sale; |
● | At prices related to prevailing market prices; or |
● | At negotiated prices. |
If underwriters or dealers are used in the sale of any securities, the securities will be acquired by such underwriters or dealers for their own account and may be resold from time to time in one or more transactions described above. We may offer the securities to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters or dealers. Unless stated otherwise in the applicable prospectus supplement, the obligations of any underwriters to purchase securities will be subject to certain conditions set forth in the applicable underwriting agreement, and, subject to certain conditions, the underwriters or dealers will be obligated to purchase all the securities of the series offered by the prospectus supplement.
We may sell the securities through agents from time to time. The applicable prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from the Company, if applicable, at the public offering price set forth in the applicable prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the applicable prospectus supplement, and the applicable prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
Underwriters and agents may be entitled under agreements entered into with the Company to indemnification by the Company against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribution with respect to payments which the underwriters or agents may be required to make. Underwriters and agents may engage in transactions with, or perform services for the Company and its affiliates in the ordinary course of business.
In compliance with the guidelines of the Financial Industry Regulatory Authority (“FINRA”), the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement, as the case may be.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The public may read and copy any reports, statements or all ofother information that we file with the shares of common stock listed opposite their names below. When we referSEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information regarding the Public Reference Room. Our public filings also are available to the “selling shareholders”public from commercial document retrieval services and may be obtained without charge at the SEC’s website at www.sec.gov. Our filings with the SEC are also available on our website at www.patrickind.com. The information on our website is not incorporated by reference in this prospectus or any prospectus supplement, we mean those persons listed in the table at the endour other securities filings and you should not consider it a part of this section, as well as the pledgees and donees, assignees, transferees, successors and others who later hold any of the selling shareholders’ interests, provided those interests still are registrableprospectus or our other securities as defined in the Registration Rights Agreement.
As noted above, we have filed with the financing of the acquisition of AIA, we entered intoSEC a Secured Senior Subordinated Note and Warrant Purchase Agreement with Northcreek Mezzanine Fund I, L.P., a Delaware limited partnership (“Northcreek”), and Stinger Northcreek PATK LLC, a Delaware limited liability company and an affiliate of Northcreek (“Stinger Northcreek”) (the “Purchase Agreement”). Under the Purchase Agreement, we issued in the aggregate $2.7 million of secured senior subordinated notes to Northcreek and Stinger Northcreek (the “Notes”). The Notes are secured by a pledge of substantially all of our assets and are subordinated to the indebtedness under the Credit Agreement, dated as of March 31, 2011 (the “Credit Agreement”). The Notes bear interest at a rate equal to 13% per annum and matureregistration statement on March 31, 2016. The Company may prepay all or any portion of the Notes at any time based on pre-defined percentages of the principal amount being prepaid. The representations, warranties, covenants and events of default under the Purchase Agreement are consistent with those applicable under our Credit Agreement.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to incorporate information into this prospectus “by reference,” which means that we can disclose material, non-publicimportant information relatingby referring to a significant transaction. We will promptly notifyanother document or information filed separately with the selling shareholdersSEC. The information incorporated by reference is deemed to be part of this prospectus, except for any information amended or superseded by information contained in, or incorporated by reference into, this prospectus. This prospectus incorporates by reference the documents and information set forth below that we have previously filed (but not furnished) with the SEC. These documents contain important information about us and our financial condition.
● | The Company’s Annual Report on Form 10-K for the year ended December 31, 2014; |
● | The Company’s Quarterly Report on Form 10-Q for the quarter ended March 29, 2015; |
● | The Company’s Proxy Statement on Schedule 14A, as filed with the SEC on April 24, 2015 (other than such information that is included in the proxy statement but not deemed to be filed with the SEC); |
● | The Company’s Current Reports on Form 8-K filed with the SEC on April 2, 2015, April 22, 2015, May 1, 2015, and May 21, 2015; and |
● | The description of the Company’s common stock set forth in the Company’s Registration Statement on Form 8-A, as filed with the SEC, including all amendments and reports filed for the purpose of updating such description. |
The Company does not incorporate portions of any suspension,document that is either (a) described in paragraphs (d)(1) through (3) and amend(e)(5) of Item 407 of Regulation S-K promulgated by the SEC or supplement the prospectus, if necessary, so it does not contain(b) furnished under Item 2.02 or Item 7.01 of any untrue statementCurrent Report on Form 8-K. All documents that we file pursuant to Sections 13(a), 13(c), 14 or omission therein and furnish to the selling shareholders such numbers of copies15(d) of the prospectus as so amended or supplemented as the selling shareholders may reasonably request.
Name | Shares of Common Stock Owned Prior to the Offering | Percent of Common Stock Owned Before the Offering | Shares of Common Stock That May Be Offered Hereby | Common Stock Owned After the Offering (1) | Percent of Common Stock Owned After the Offering (1) | |||||||||||||||
| Northcreek Mezzanine Fund I, L.P. (2) | 210,000 | 2.1 | % | 85,000 | 125,000 | 1.3 | % | |||||||||||||
| Stinger Northcreek PATK LLC (3) | 50,000 | * | 50,000 | 0 | 0 | |||||||||||||||
The Company will provide without charge upon written or oral request, a copy of any or all expensesof the documents which are incorporated by reference into this prospectus, other than exhibits which are specifically incorporated by reference into those documents. Requests should be directed to Corporate Secretary, Patrick Industries, Inc., 107 W. Franklin St., Elkhart, Indiana 46515, and telephone: (574) 294-7511.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplements, certain legal matters in connection with this offering, including the fees and expenses of counsel or other advisors to the selling shareholders, but not including underwriting discounts, concessions or commissions of the selling shareholders.
The consolidated financial statements of the Company for the years ended December 31, 20102014, 2013 and 20092012 have been audited by Crowe Horwath LLP, independent registered public accounting firm, as set forth in their report thereon, included therein and incorporated by reference in this prospectus. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
Item 14. Other Expenses of Issuance and Distribution
Our estimated expenses other than discounts, commission and concessions payable to broker-dealers and agents, in connection with the offering and distribution of the securities being offered hereunder. Except forregistered, other than underwriting compensation, are as set forth in the SEC registration fee, all amounts are estimates. All of these fees and expenses will be borne by the registrant.
| SEC registration fee | $ | 52 | ||
| Legal fees and expenses* | 50,000 | |||
| Accounting fees and expenses* | 30,000 | |||
| Printing* | 5,000 | |||
| Miscellaneous expenses* | 5,000 | |||
| Total | $ | 90,052 | ||
| *Estimated. |
SEC Registration Fee | $ | 23,240 | ||
Print Expenses | 10,000 | * | ||
Legal Fees and Expenses | 75,000 | * | ||
Accounting Fees and Expenses | 30,000 | * | ||
Miscellaneous Expenses | 25,000 | * | ||
Total | $ | 163,240 |
* Estimated.
Item 15. Indemnification of Directors and Officers
Our Articles of Incorporation provide that we shall indemnify our directors and officers to the fullest extent permitted by the IBCL.Indiana Business Corporation Law. Our Amended and Restated By-laws require us to indemnify our directors and officers and such provisions require us, among other things, (i) to indemnify our officers and directors against certain liabilities that may arise by reason of their status or service as directors or officers provided such persons acted in good faith and in a manner reasonably believed to be in the best interests of Patrick and, with respect to any criminal action, had no cause to believe their conduct was unlawful; (ii) to advance the expenses actually and reasonably incurred by its officers and directors as a result of any proceeding against them as to which they could be indemnified and (iii) to obtain directors’ and officers’ insurance if available on reasonable terms. There is no action or proceeding pending or, to our knowledge, threatened which may result in a claim for indemnification by any director, officer, employee or agent.
Item 16. Exhibits and Financial Statement Schedules
Exhibits
1.1* | Form of Underwriting Agreement for Equity Securities | ||||
1.2* | Form of Underwriting Agreement for Debt Securities and Related Warrants | ||||
1.3* | Form of Underwriting Agreement for Stock Purchase Contracts and Stock Purchase Units and Units | ||||
3.1 | Articles of Incorporation of Patrick Industries, Inc. (filed as Exhibit 3.1 to the Company’s Form 10-K filed on March 30, 2010 and incorporated herein by reference). | ||||
3.2 | Amended and Restated By-laws | ||||
4.1** | Form of | ||||
4.2** | Form | ||||
4.3* | Form | ||||
4.4* | Form of Deposit Agreement | ||||
4.5* | Form | ||||
4.6* | Form of Stock Warrant Agreement | ||||
4.7* | Form of Debt Warrant Agreement | ||||
4.8* | Form of Stock Purchase Contract | ||||
4.9* | Form of Stock Purchase Unit | ||||
| 4.10* | Form of Unit | ||||
5.1**** | Opinion of McDermott Will & Emery | ||||
12.1**** | Computation of | ||||
23.1** | Consent of | ||||
23.4 | Consent of McDermott Will & Emery LLP | ||||
24**** | Powers of Attorney | ||||
25*** | Statement of Eligibility of the Trustee on Form T-1 with respect to the Indentures for Senior Debt Securities and Subordinated Debt Securities | ||||
| * | To be subsequently filed by amendment or as | ||||
| ** | Filed herewith. | ||||
| *** | To be filed separately under the electronic form type 305B2, if applicable. | ||||
| **** | Previously filed. | ||||
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, as amended, or the Securities Act; | ||
(ii) | to reflect in the prospectus any facts or events arising after the effective date of this 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% 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), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. | |||
(2) | That, for purposes 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. | ||
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser, | ||
(i) | each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and | ||
(ii) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i)(x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. | ||
(5) | That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, 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; | ||
(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. | ||
(b) | 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | ||
(c) | 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 SEC 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. | ||
(d) | The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act. | ||
PATRICK INDUSTRIES, INC. | ||||
By: | /s/ Todd M. Cleveland | |||
Name: | Todd M. Cleveland | |||
Title: | ||||
President and Chief | ||||
Pursuant to the requirements of them (each with full power to act alone), his or her true and lawful attorneys-in-fact and agents, 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, to sign any and all amendments to this registration statement and any related registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, (in each case including, without limitation, any post-effective amendments), 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 to perform each and every act and thing requisite and necessary to be done in and about the premises, as full and to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Signature | Title | |
/s/ Paul E. | Chairman of the Board | |
Paul E. Hassler | ||
/s/ Todd M. Cleveland* | President and Chief Executive Officer and Director | |
Todd M. Cleveland | (Principal Executive Officer) | |
/s/ Andy L. Nemeth* | Executive Vice President-Finance, Secretary- | |
Andy L. Nemeth | Treasurer, Chief Financial Officer and Director (Principal Financial and Accounting Officer) | |
/s/ Joseph M. Cerulli* | Director | |
Joseph M. Cerulli | ||
/s/ John A. Forbes* | Director | |
John A. Forbes | ||
/s/ Michael A. Kitson* | Director | |
Michael A. Kitson | ||
/s/ Larry D. Renbarger* | Director | |
Larry D. Renbarger | ||
/s/ M. Scott Welch* | Director | |
M. Scott Welch | ||
/s/ Walter E. Wells* | Director | |
Walter E. Wells | ||
| */s/ Andy L. Nemeth | ||
| Andy L. Nemeth, | ||
| Attorney-in-Fact |