As filed with the Securities and Exchange Commission on April 16, 2019
Registration No. 333-______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1997.
REGISTRATION NO. 333-21951
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MFRI, INC.
(Exact name of registrant as specified in its charter)
PERMA-PIPE INTERNATIONAL HOLDINGS, INC. (Exact name of registrant as specified in its charter) | |
Delaware (State or other jurisdiction | 36-3922969 (I.R.S. Employer |
6410 W. Howard Street Niles, Illinois 60714 (847) 966-1000 (Address, including zip code, and D. Bryan Norwood Vice President and Chief Financial Officer 6410 W. Howard Street Niles, Illinois 60714 (847) 966-1000 (Name, address, including zip code, and telephone number, including area code,of agent for service) | |
with a copy to:
Steven R. Barth
Spencer T. Moats
Foley & Lardner LLP
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 271-2400
Approximate date of commencement of proposed sale to the public: From time to time after the date on which this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer ☐ |
Non-accelerated filer ☐ | Smaller reporting company ☒ |
Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered | Amount to be registered(1)(2) | Proposed maximum offering price per unit(2) | Proposed maximum aggregate offering price(2)(3) | Amount of registration fee(2) |
Debt Securities |
| |||
Common Stock, $0.01 par value | ||||
Warrants | ||||
Stock Purchase Contracts | ||||
Stock Purchase Units | ||||
Total | $65,000,000(4) | $7,878(4) |
(1) | Includes an indeterminate aggregate principal amount and number of securities of each identified class of securities up to a proposed aggregate offering price of $65,000,000, which may be offered by the registrant from time to time in unspecified numbers and at indeterminate prices, and as may be issued upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including any applicable anti-dilution provisions. This registration statement also covers delayed delivery contracts that may be issued by the registrant under which the party purchasing such contracts may be required to purchase debt securities or common stock. Such contracts may be issued together with the specific securities to which they relate. Securities registered hereunder to be sold by the registrant may be sold either separately or as units comprised of more than one type of security registered hereunder. |
(2) | Pursuant to General Instruction II.D of Form S-3, the table lists each of the classes of securities being registered and the aggregate proceeds to be raised but does not specify by each class information as to the amount to be registered, proposed maximum offering price per unit, and proposed maximum aggregate offering price. |
(3) | If applicable, includes consideration to be received by the registrant for registered securities that are issuable upon exercise, conversion or exchange of other registered securities or that are issued in units. |
(4) | The proposed maximum aggregate offering price for the offering has been estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o) and General Instruction II. D. of Form S-3. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
| PROSPECTUS | Subject to completion dated April 16, 2019 |
PERMA-PIPE INTERNATIONAL HOLDINGS, INC.
Debt Securities
Common Stock
Warrants
Stock Purchase Contracts
Stock Purchase Units
We may offer and sell from time to time up to $65,000,000 of any combination of the securities described in this prospectus, from time to time, in one or more offerings, in amounts, at prices and on terms determined at the times of offerings.
This prospectus describes the general manner in which our securities may be offered using this prospectus. We will provide specific terms of the securities, including ZIP code,the offering prices, in one or more supplements to this prospectus. The supplements may also add, update or change information contained in this prospectus. You should read this prospectus and telephone number,
including area code,the prospectus supplement relating to the specific offering of registrant's principal executive
offices)
DAVID UNGER
CHAIRMAN OF THE BOARD OF DIRECTORS
MFRI, INC.
7720 LEHIGH AVENUE
NILES, ILLINOIS 60714
(847) 966-1000
(Name, address, including ZIP Code,securities carefully before you invest.
We may offer the securities for sale directly to the purchasers or through one or more underwriters, dealers and telephone number, including area code,agents to be designated at a future date. The supplements to this prospectus will provide the specific terms of agent for
service)
COPIES TO:
HAL M. BROWN, ESQ.
DORIAN R. WILLIAMS, ESQ.
RUDNICK & WOLFE
203 NORTH LASALLE STREET, SUITE 1800
CHICAGO, ILLINOIS 60601
(312) 368-4000
(312) 236-7516(TELECOPIER)
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 12, 1997
PROSPECTUS
2,124,298 Shares
MFRI, INC.
COMMON STOCK
This Prospectus relates to 2,124,298the plan of distribution.
Our common stock is listed on the Nasdaq Global Market under the symbol “PPIH.”
The aggregate market value of our outstanding common stock held by non-affiliates as of April 10, 2019 was approximately $68,490,792, which was calculated based on 7,883,522 shares ("Shares") of common stock par value $.01outstanding, of which 7,712,927 shares were held by non-affiliates, and a price per share of $8.88, which was the closing sale price of our common stock on the Nasdaq Global Market on April 10, 2019. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12 calendar month period that ends on and includes the date of this prospectus, and will update this information on any applicable prospectus supplement we file. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in a public primary offering with a value of more than one-third of the aggregate market value of our common stock held by non-affiliates in any twelve-month period, so long as the aggregate market value of our common stock held by non-affiliates remains below $75 million.
Investing in our securities involves risk. Please read carefully the section entitled “Risk Factors” on Page 2 of this prospectus and any similar section contained in the applicable prospectus supplement and/or other offering material concerning factors you should consider before investing in our securities which may be offered hereby.
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 of this prospectus. Any representation to the contrary is a criminal offense.
The information in this prospectus is not complete and may be changed. We may not sell 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.
The date of this prospectus is ____________, 2019.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS | 1 |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS | 2 |
OUR COMPANY | 3 |
RISK FACTORS | 3 |
USE OF PROCEEDS | 3 |
Securities to be Offered | 3 |
DESCRIPTION OF DEBT SECURITIES | 4 |
DESCRIPTION OF CAPITAL STOCK | 17 |
Description of Warrants | 22 |
Description of Stock Purchase Contracts and Stock Purchase Units | 23 |
Plan of Distribution | 23 |
Where You Can Find More Information | 25 |
LEGAL MATTERS | 27 |
EXPERTS | 27 |
ABOUT THIS PROSPECTUS
Unless the context otherwise requires or as otherwise specifically stated, in this prospectus, “we,” “us,” “our” and “ours” refer to Perma-Pipe International Holdings, Inc.
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. Under this shelf process, we may, from time to time, sell the securities or combinations of the securities described in this prospectus in one or more offerings up to an aggregate dollar amount of $65,000,000. In no event, however, will we sell securities with a value exceeding more than one-third of our “public float” (the "Common Stock"),market value of MFRI,our common stock that is held by non-affiliates) in any 12-calendar month period, as long as our “public float” remains below $75 million. This prospectus provides you with a general description of the securities that we may offer. Each time we offer securities, we will provide a prospectus supplement and/or other offering material that will contain specific information about the terms of that offering. The prospectus supplement and/or other offering material may also add, update or change information contained in this prospectus. You should read this prospectus, any prospectus supplement and any other offering material together with the additional information described under the heading “Where You Can Find More Information.”
You should rely only on the information contained or incorporated by reference in this prospectus and in any prospectus supplement or other offering material. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making offers to sell or solicitations to buy the securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should not assume that the information in this prospectus or any prospectus supplement or any other offering material, as well as the information we file or previously filed with the SEC that we incorporate by reference in this prospectus or any prospectus supplement, is accurate as of any date other than its respective date. Our business, financial condition, results of operations and prospects may have changed since those dates.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any applicable prospectus supplement and/or any other offering material and the documents incorporated by reference in this prospectus, any applicable prospectus supplement and/or any other offering material contain or may contain “forward-looking statements” intended to qualify for the safe harbors from liability established by the Private Securities Litigation Reform Act of 1995, including, without limitation, statements regarding our expected future performance and operations. These statements should be considered as subject to the many risks and uncertainties that exist in our operations and business environment. Such risks and uncertainties include, but are not limited to, the following: (i) our ability to effectively execute our strategic plan and achieve profitability and positive cash flows; (ii) the impact of global economic weakness and volatility; (iii) fluctuations in steel prices and our ability to offset increases in steel prices through price increases in our products; (iv) the timing of orders for our products; (v) decreases in United States government spending on projects using our products, and challenges to our non-government customers’ liquidity and access to capital funds; (vi) our ability to successfully negotiate progress-billing arrangements for our large contracts; (vii) fluctuations in crude oil and natural gas prices; (viii) risks and uncertainties related to our international business operations; (ix) our ability to repay our debt and renew expiring international credit facilities; (x) aggressive pricing by existing competitors and the entrance of new competitors in the markets in which we operate; (xi) our ability to purchase raw materials at favorable prices and to maintain beneficial relationships with our suppliers; (xii) our ability to manufacture products free of latent defects and to recover from suppliers who may provide us with defective materials; (xiii) reductions or cancellations of orders included in our backlog; (xiv) our ability to attract and retain senior management and key personnel; (xv) our ability to achieve the expected benefits of our growth initiatives; (xvi) our ability to interpret changes in tax regulations and legislation; (xvii) reversals of previously recorded revenue and profits resulting from inaccurate estimates made in connection with our percentage-of-completion revenue recognition; (xviii) our failure to establish and maintain effective internal control over financial reporting; and (xix) the impact of cybersecurity threats on our information technology systems. Stockholders, potential investors and other readers are urged to consider these factors carefully in evaluating the forward-looking statements and are cautioned not to place undue reliance on such forward-looking statements. The forward-looking statements made herein are made only as of the date of this prospectus and we undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise.
OUR COMPANY
We are a global leader in pre-insulated piping and leak detection systems for oil and gas gathering, district heating and cooling, and other applications. We use our extensive engineering and fabrication expertise to develop piping solutions that solve complex challenges regarding the safe and efficient transportation of many types of liquids. Our specialty piping systems include (i) insulated and jacketed district heating and cooling piping systems for efficient energy distribution from central energy plants to multiple locations, (ii) primary and secondary containment piping systems for transporting chemicals, hazardous fluids and petroleum products, and (iii) the coating and/or insulation of oil and gas gathering and transmission pipelines. Our leak detection systems are sold with our piping systems or on a stand-alone basis, to monitor areas where fluid intrusion may contaminate the environment, endanger personal safety, cause a fire hazard, impair essential services or damage equipment or property. In total, we have operations at seven locations in five countries.
We are a Delaware corporation and our corporate headquarters are located at 6410 W. Howard Street, Niles, Illinois 60714. Our telephone number is (414) 966-1000, and our website address is www.permapipe.com. We do not incorporate the information on our website into this prospectus, and you should not consider it part of this prospectus.
RISK FACTORS
Investing in our securities involves significant risks. Before making an investment decision, you should carefully consider the risks and other information we include or incorporate by reference in this prospectus and any prospectus supplement or other offering material. In particular, you should consider the risk factors under the heading “Risk Factors” included in our most recent Annual Report on Form 10-K, which is on file with the SEC and incorporated herein by reference, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are not the only ones facing our company. Additional risks and uncertainties not currently known to us or that we currently deem immaterial may also affect our business operations. Additional risk factors may be included in a prospectus supplement and/or other offering material relating to a particular offering of securities.
USE OF PROCEEDS
Unless otherwise described in the applicable prospectus supplement and/or other offering material, we intend to use the net proceeds from the sale of the securities for general corporate purposes, including potentially expanding existing businesses, acquiring businesses, investing in other business opportunities, and repaying existing debt. Pending such use, we may temporarily invest the net proceeds in short-term investments.
Securities to be Offered
We may offer debt securities, shares of common stock, warrants, stock purchase contracts and stock purchase units from time to time in one or more primary offerings. We will set forth in the applicable prospectus supplement a description of the securities that may be offered under this prospectus. The terms of the offering of securities, the initial offering price and the net proceeds to us will be contained in the prospectus supplement and/or other offering material relating to such offering.
DESCRIPTION OF DEBT SECURITIES
The following description of the debt securities sets forth the material terms and provisions of the debt securities to which any prospectus supplement and/or other offering material may relate. The particular terms of the debt securities offered by any prospectus supplement and/or other offering material and the extent, if any, to which the provisions described in this prospectus may apply to the offered debt securities will be described in the prospectus supplement and/or other offering material relating to the offered debt securities. As used in this section, the terms “we,” “us,” “our,” and the “company” refer to Perma-Pipe International Holdings, Inc., a Delaware corporation, (the "Company"and not any of its subsidiaries, unless the context requires.
Senior debt securities will be issued under an indenture between us and a U.S. banking institution named as trustee in a prospectus supplement and/or other offering material, a form of which is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part. The indenture relating to the senior debt securities, as amended or otherwise supplemented by any supplemental indentures, is referred to in this prospectus as the senior indenture. Subordinated debt securities will be issued under an indenture between us and a U.S. banking institution named as trustee in a prospectus supplement and/or other offering material, a form of which is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part. The indenture relating to the subordinated debt securities, as amended or otherwise supplemented by any supplemental indentures, is referred to in this prospectus as the subordinated indenture. The senior indenture and the subordinated indenture are sometimes referred to in this prospectus collectively as the indentures, and each individually, as an indenture.
The following summaries of the material provisions of the indentures and the debt securities do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the indentures, including the definitions of specified terms used in the indentures, and the debt securities. Wherever particular articles, sections or defined terms of an indenture are referred to, it is intended that those articles, sections or defined terms will be incorporated herein by reference, and the statement in connection with which reference is made is qualified in its entirety by the article, section or defined term in the indenture.
General
The indentures do not limit the amount of debt, either secured or unsecured, which we may issue under the indentures or otherwise. The debt securities may be issued in one or more series with the same or various maturities and may be sold at par, a premium or an original issue discount. Some of the debt securities may be issued under the applicable indenture as original issue discount securities to be sold at a substantial discount below their principal amount. Federal income tax and other considerations applicable to any original issue discount securities will be described in the related prospectus supplement and/or other offering material. We have the right to “reopen” a previous issue of a series of debt by issuing additional debt securities of such series.
We conduct a substantial amount of our operations through subsidiaries and expect that we will continue to do so. Our right to participate as a stockholder in any distribution of assets of any subsidiary upon its liquidation or reorganization or otherwise and the ability of a holder of debt securities to benefit as our creditor from any distribution are subject to prior claims of creditors of the subsidiary. The debt securities will also effectively rank junior in right of payment to any of our secured debt.
The prospectus supplement and/or other offering material relating to the particular series of debt securities offered thereby will describe the following terms of the offered debt securities:
| ● | the title of the offered debt securities; | |
● | any limit upon the aggregate principal amount of the offered debt securities which may be authenticated and delivered under the applicable indenture; |
● | the date or dates (or the manner of calculating the date or dates) on which the principal of the offered debt securities is payable; |
● | the rate or rates (or the manner of calculating the rate or rates) at which the offered debt securities shall bear interest, if any, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the regular record date for the interest payable on any interest payment date; |
● | the place or places where the principal of and premium, if any, and interest, if any, on the offered debt securities will be payable; |
● | the period or periods within which, the price or prices at which, the currency or currency units in which, and the terms and conditions upon which the offered debt securities may be redeemed, in whole or in part, at our option; |
● | our obligation, if any, to redeem or purchase the offered debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder thereof and the period or periods within which, the price or prices in the currency at which, the currency or currency units in which, and the terms and conditions upon which the offered debt securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
● | the denominations in which the offered debt securities shall be issuable if other than denominations of $1,000 and any integral multiple thereof; |
● | if other than the currency of the United States of America, the currencies in which payments of interest or principal of (and premium, if any, with respect to) the offered debt securities are to be made; |
● | if the interest on or principal of (or premium, if any, with respect to) the offered debt securities are to be payable, at our election or at the election of a holder thereof or otherwise, in a currency other than that in which such debt securities are payable, the period or periods within which, and the other terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the currency in which such debt securities are denominated or stated to be payable and the currency in which such debt securities or any of them are to be so payable; |
● | whether the amount of payments of interest on or principal of (or premium, if any, with respect to) the offered debt securities of such series may be determined with reference to an index, formula or other method (which index, formula or other method may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable; |
● | the extent to which any offered debt securities will be issuable in permanent global form, the manner in which any payments on a permanent global debt security will be made, and the appointment of any depository relating thereto; |
● | any deletions from, modifications of or additions to the events of default or covenants with respect to the offered debt securities of such series, whether or not such events of default or covenants are consistent with the events of default or covenants set forth herein; |
● | if any of the offered debt securities are to be issuable upon the exercise of warrants, and, if so, the time, manner and place for such debt securities to be authenticated and delivered; |
● | the terms of any right to convert the offered debt securities of such series into, or exchange the debt securities for, our common stock or other securities or property or cash in lieu of our common stock or other securities or property, or any combination thereof; and |
● | any other terms of the series (which terms shall not be inconsistent with the provisions of the related indenture). |
Payments
Unless otherwise indicated in any prospectus supplement and/or other offering material, principal of and premium, if any, and interest, if any, on the offered debt securities will be payable, and transfers of the offered debt securities will be registrable, at the corporate trust office of the trustee. Alternatively, at our option, payment of interest may be made by check mailed to the address of the person entitled thereto as it appears in the debt security register.
Denominations, Registration and Transfer
Unless otherwise indicated in any prospectus supplement and/or other offering material, the offered debt securities will be issued only in fully registered form without coupons in denominations of $1,000 or any integral multiple of $1,000, or the equivalent in foreign currency. No service charge will be made for any registration of transfer or exchange of offered debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any transfer or exchange.
If the purchase price of any of the offered debt securities is denominated in a foreign currency or currencies or if the principal of, premium, if any, or interest, if any, on any series of offered debt securities is payable in a foreign currency or currencies, the restrictions, elections, tax consequences, specific terms and other information with respect to the issue of offered debt securities and the foreign currency or currencies will be described in the related prospectus supplement and/or other offering material.
We will not be required to issue, register the transfer of, or exchange debt securities of any series for a period of 15 days preceding the date of a notice of redemption of debt securities of that series and ending at the close of business on the date of the notice of redemption. We will also not be required to register the transfer of or exchange any debt security so selected for redemption, except the unredeemed portion of any debt security being redeemed in part.
Conversion and Exchange
The terms, if any, on which debt securities of any series are convertible into or exchangeable for common stock or depositary shares, property or cash, or a combination of any of the foregoing, will be set forth in the related prospectus supplement and/or other offering material. Terms may include provisions for conversion or exchange that is either mandatory, at the option of the holder, or at our option. The number of shares of common stock or depositary shares to be received by the holders of the debt securities will be calculated in the manner, according to the factors and at the time as described in the related prospectus supplement and/or other offering material.
Merger
Each indenture provides that we may, without the consent of the holders of debt securities, consolidate with, or sell, lease or convey all or substantially all of our assets to, or merge into any other entity, provided that:
| ● | immediately after giving effect to the transaction, no default under the applicable indenture has occurred and is continuing; | |
● | the successor entity is an entity organized and existing under the laws of the United States or a state thereof; and |
● | the successor entity expressly assumes the due and punctual payment of the principal of and premium, if any, and interest on all debt securities, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of the applicable indenture to be performed by us. |
In addition, we must provide to the trustee an opinion of legal counsel that any such transaction and any assumption by a successor entity complies with the applicable provisions of the indenture and that we have complied with all conditions precedent provided in the indenture relating to such transaction.
Other than the covenants set forth in any prospectus supplement and/or other offering material, neither indenture contains any covenants or other provisions designed to afford holders of the debt securities protection in the event of a takeover, recapitalization or a highly leveraged transaction involving us.
Modification of the Indentures
With the consent of the holders of more than 50% in aggregate principal amount of any affected series of debt securities then outstanding under the applicable indenture, waivers, modifications and alterations of the terms of either indenture may be made which affect the rights of the holders of the series of debt securities. However, no modification or alteration may, without the consent of all holders of any series of debt securities then outstanding affected thereby:
| ● | extend the fixed maturity of any debt security of that series; | |
● | reduce the rate or extend the time of payment of interest thereon; |
● | reduce the principal amount thereof or any premium thereon; |
● | make the principal thereof or interest or premium thereon payable in any coin or currency other than that provided in the debt securities; or |
● | reduce the percentage of debt securities of that series, the holders of which are required to consent to: |
| ● | any supplemental indenture; | |
● | rescind and annul a declaration that the debt securities of that series are due and payable as a result of the occurrence of an event of default; |
● | waive any past event of default under the applicable indenture and its consequences; and |
● | waive compliance with other specified provisions of the applicable indenture. |
In addition, as described in the description of “Events of Default” set forth below, holders of more than 50% in aggregate principal amount of the debt securities of any series then outstanding may waive past events of default in specified circumstances and may direct the trustee in enforcement of remedies.
We and the trustee may, without the consent of any holders, modify and supplement the applicable indenture:
| ● | to evidence the succession of another entity to us under the applicable indenture, or successive successions, and the assumption by the successor entity of the covenants, agreements and obligations of us pursuant to the applicable indenture; | |
● | to add to the covenants applicable to us such further covenants, restrictions, conditions or provisions as our board of directors and the trustee shall consider to be for the protection of the holders of debt securities of any or all series, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions a default or event of default with respect to such series permitting the enforcement of all or any of the several remedies provided in the applicable indenture; provided, however, that in respect of any such additional covenant, restriction or condition, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the trustee upon such default; |
● | to cure any ambiguity or to correct or supplement any provision contained in the applicable indenture or in any supplemental indenture which may be defective or inconsistent with any other provision contained in the indenture or in any supplemental indenture; |
● | to convey, transfer, assign, mortgage or pledge any property to or with the trustee; |
● | to make other provisions in regard to matters or questions arising under the applicable indenture as shall not adversely affect the interests of the holders; |
● | to evidence and provide for the acceptance of appointment by another individual or entity as a successor trustee under the applicable indenture with respect to one or more series of debt securities and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee; |
● | to modify, amend or supplement the applicable indenture in such a manner as to permit the qualification of any supplemental indenture under the Trust Indenture Act of 1939 as then in effect, except that nothing contained in the indentures shall permit or authorize the inclusion in any supplemental indenture of the provisions referred to in Section 316(a)(2) of the Trust Indenture Act of 1939; |
● | to provide for the issuance under the applicable indenture of debt securities in coupon form (including debt securities registrable as to principal only) and to provide for exchangeability of such debt securities with debt securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose; |
● | to change or eliminate any of the provisions of the applicable indenture; provided, however, that any such change or elimination shall become effective only when there is no debt security outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; and |
● | to establish any additional form of debt security and to provide for the issuance of any additional series of debt securities. |
Covenant Defeasance and Satisfaction and Discharge of a Series
Covenant Defeasance of any Series
If we deposit with the trustee, in trust, at or before maturity or redemption:
| ● | lawful money; | |
● | direct obligations of the government which issued the currency in which the debt securities of a series are denominated, or obligations of a person controlled or supervised by and acting as an agency or instrumentality of such government and which obligations are guaranteed by such government (which direct or guaranteed obligations are full faith and credit obligations of such government, are denominated in the currency in which the debt securities of such series are denominated and which are not callable or redeemable at the option of the issuer there), and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such government obligation or a specific payment of interest on or principal of or other amount with respect to any such government obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the government obligation or the specific payment of interest on or principal of or other amount with respect to the government obligation evidenced by such depository receipt, in an amount and with a maturity so that the proceeds therefrom will provide funds; or |
● | a combination thereof, |
in each case in an amount sufficient, after payment of all federal, state and local taxes in respect thereof payable by the trustee, in the opinion of a nationally-recognized firm of independent public accountants expressed in a written certification thereof delivered to the trustee, to pay when due the principal, premium, if any, and interest to maturity or to the redemption date, as the case may be, with respect to any series of debt securities then outstanding, and any mandatory sinking fund payments or similar payments or payment pursuant to any call for redemption applicable to such debt securities of such series on the day on which such payments are due and payable in accordance with the terms of the applicable indenture and such debt securities, then the provisions of the applicable indenture would no longer be effective as to the debt securities to which such deposit relates, including the restrictive covenants described in any prospectus supplement and/or other offering material relating to such debt securities, except as to:
| ● | our obligation to duly and punctually pay the principal of and premium, if any, and interest on the series of debt securities if the debt securities are not paid from the money or securities held by the trustee; | |
● | certain of the events of default described under “Events of Default” below; and |
● | other specified provisions of the applicable indenture including, among others, those relating to registration, transfer and exchange, lost or stolen securities, maintenance of place of payment and, to the extent applicable to the series, the redemption and sinking fund provisions of the applicable indenture. |
Defeasance of debt securities of any series is subject to the satisfaction of specified conditions, including, among others, the absence of an event of default at the date of the deposit and the perfection of the holders’ security interest in the deposit.
Satisfaction and Discharge of any Series
Upon the deposit of money or securities contemplated above and the satisfaction of specified conditions, the provisions of the applicable indenture (excluding the exceptions discussed above under the heading “Covenant Defeasance of any Series”), would no longer be effective as to the related debt securities, we may cease to comply with our obligation to pay duly and punctually the principal of and premium, if any, and interest on a particular series of debt securities, the events of default in the applicable indenture no longer would be effective as to such debt securities and thereafter the holders of the series of debt securities will be entitled only to payment out of the money or securities deposited with the trustee.
The specified conditions include, among others, except in limited circumstances involving a deposit made within one year of maturity or redemption:
| ● | the absence of an event of default at the date of deposit or on the 91st day thereafter; | |
● | our delivery to the trustee of an opinion of nationally-recognized tax counsel, or our receipt or publication of a ruling by the Internal Revenue Service, to the effect that holders of the debt securities of the series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit and discharge, and the holders will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and discharge had not occurred; and |
● | that we receive an opinion of counsel to the effect that the satisfaction and discharge will not result in the delisting of the debt securities of that series from any nationally-recognized exchange on which they are listed. |
Events of Default
Unless otherwise provided in any supplemental indenture, as to any series of debt securities, an event of default is defined in the applicable indenture as being:
| ● | failure to pay any interest on the debt securities of that series when due, which failure continues for 30 days; | |
● | failure to pay principal or premium, if any, with respect to the debt securities of that series when due, which failure continues for 5 days; |
● | failure to pay or satisfy any sinking fund payment or similar obligation with respect to debt securities of that series when due, which failure continues for 30 days; |
● | failure to observe or perform any other covenant, warranty or agreement in the applicable indenture or debt securities of that series, other than a covenant, warranty or agreement, a default in whose performance or whose breach is specifically dealt with in the section of the applicable indenture governing events of default, if the failure continues for 90 days after written notice by the trustee or the holders of at least 25% in aggregate principal amount of the debt securities of that series then outstanding; |
● | specified events of bankruptcy, insolvency, receivership or reorganization; or |
● | any other event of default provided with respect to debt securities of that series. |
Notice and Declaration of Defaults
So long as the debt securities of any series remain outstanding, we will be required to furnish annually to the trustee a certificate of one of our corporate officers stating whether, to the best of such officer’s knowledge, we are in default under any of the provisions of the applicable indenture, and specifying all defaults, and the nature thereof, of which such officer has knowledge. We will also be required to furnish to the trustee copies of specified reports filed by us with the SEC.
Each indenture provides that the trustee will, within 90 days after the occurrence of a default with respect to any series for which there are debt securities outstanding which is continuing, give to the holders of those debt securities notice of all uncured defaults known to it, including events specified above without grace periods. Except in the case of default in the payment of principal, premium, if any, or interest on any of the debt securities of any series or the payment of any sinking fund installment on the debt securities of any series, the trustee may withhold notice to the holders if the trustee in good faith determines that withholding notice is in the interest of the holders of the debt securities.
If a specified event of bankruptcy, insolvency, receivership, or reorganization occurs and is continuing, then the principal amount of (or, if the debt securities of that series are original issue discount debt securities, such portion of the principal amount as may be specified in their terms as due and payable upon acceleration) and any accrued and unpaid interest on that series will immediately become due and payable without any declaration or other act on the part of the trustee or any holder. If any other event of default occurs and is continuing, the trustee or the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of any series may declare the debt securities of that series immediately due and payable. In some cases, the holders of a majority in principal amount of the debt securities of any series then outstanding may waive any past default and its consequences, except a default in the payment of principal, premium, if any, or interest, including sinking fund payments.
Actions upon Default
Subject to the provisions of the applicable indenture relating to the duties of the trustee in case an event of default with respect to any series of debt securities occurs and is continuing, the applicable indenture provides that the trustee will be under no obligation to exercise any of its rights or powers under the applicable indenture at the request, order or direction of any of the holders of debt securities outstanding of any series unless the holders have offered to the trustee reasonable indemnity. The right of a holder to institute a proceeding with respect to the applicable indenture is subject to conditions precedent including notice and indemnity to the trustee, but the holder has a right to receipt of principal, premium, if any, and interest on their due dates or to institute suit for the enforcement thereof, subject to specified limitations with respect to defaulted interest.
The holders of a majority in principal amount of the debt securities outstanding of the series in default will have the right to direct the time, method and place for conducting any proceeding for any remedy available to the trustee, or exercising any power or trust conferred on the trustee. Any direction by the holders will be in accordance with law and the provisions of the related indenture, provided that the trustee may decline to follow any such direction if the trustee determines on the advice of counsel that the proceeding may not be lawfully taken or would be materially or unjustly prejudicial to holders not joining in the direction. The trustee will be under no obligation to act in accordance with the direction unless the holders offer the trustee reasonable security or indemnity against costs, expenses and liabilities which may hereafter be offered incurred thereby.
Ranking
The senior debt securities will be our senior, unsecured and unsubordinated obligations, ranking equally and ratably with all our other existing and future senior, unsecured and unsubordinated obligations. The senior debt securities will be effectively subordinated to all of our existing and future secured indebtedness.
Except as set forth in the related prospectus supplement and/or soldother offering material, the subordinated debt securities will be subordinated, in right of payment, to the prior payment in full of the senior indebtedness, including the senior debt securities, whether outstanding at the date of the subordinated indenture or thereafter incurred, assumed or guaranteed. The term “senior indebtedness” means:
● | the principal, premium, if any, and unpaid interest on indebtedness for money borrowed; |
● | purchase money and similar obligations; |
● | obligations under capital leases determined in accordance with generally accepted accounting principles as in effect on July 1, 2018 (without giving effect to any phase-in of the effectiveness of any changes in generally accepted accounting principles that have been adopted as of such date); |
● | guarantees, assumptions or purchase commitments relating to, or other transactions as a result of which we are responsible for the payment of, indebtedness of others; |
● | renewals, extensions and refunding of any senior indebtedness; |
● | interest or obligations in respect of any senior indebtedness seeming after the commencement of any insolvency or bankruptcy proceedings; and |
● | obligations associated with derivative products, including interest rate and currency exchange contracts, foreign exchange contracts, commodity contracts, and similar arrangements unless, in each case, the instrument by which we incurred, assumed or guaranteed the indebtedness or obligations described in the foregoing clauses expressly provides that the indebtedness or obligation is not senior in right of payment to the subordinated debt securities. |
Upon any distribution of our assets in connection with any dissolution, winding up, liquidation or reorganization of our company, whether in a bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of our assets and liabilities or otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of our properties in accordance with the subordinated indenture, the holders of all senior indebtedness will first be entitled to receive payment of the full amount due on the senior indebtedness, or provision will be made for that payment in money or money’s worth, before the holders of any of the subordinated debt securities are entitled to receive any payment in respect of the subordinated debt securities.
In the event that a payment default occurs and is continuing with respect to the senior indebtedness, the holders of all senior indebtedness will first be entitled to receive payment of the full amount due on the senior indebtedness, or provision will be made for that payment in money or money’s worth, before the holders of any of the subordinated debt securities are entitled to receive any payment in respect of the subordinated debt securities. In the event that the principal of the subordinated debt securities of any series is declared due and payable pursuant to the subordinated indenture and that declaration is not rescinded and annulled, the holders of all senior indebtedness outstanding at the time of the declaration will first be entitled to receive payment of the full amount due on the senior indebtedness, or provision will be made for that payment in money or money’s worth, before the holders of any of the subordinated debt securities are entitled to receive any payment in respect of the subordinated debt securities.
This subordination will not prevent the occurrence of any event of default with respect to the subordinated debt securities. There is no limitation on the issuance of additional senior indebtedness in the subordinated indenture.
Governing Law
The indentures and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Concerning the Trustee
We may from time to time maintain lines of credit, and have other customary banking relationships, with the trustee or its affiliates under the senior indenture or the trustee or its affiliates under the subordinated indenture.
The indentures and provisions of the Trust Indenture Act of 1939, that are incorporated by reference therein, contain limitations on the rights of the trustee, should it become one of our creditors, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claim as security or otherwise. The trustee is permitted to engage in other transactions with us or any of our affiliates; provided, however, that if it acquires any conflicting interest (as defined under the Trust Indenture Act of 1939), it must eliminate such conflict or resign.
Book-Entry Delivery and Settlement
We will issue the debt securities in whole or in part in the form of one or more global certificates, which we refer to as global securities. We will deposit the global securities with or on behalf of The Depository Trust Company, which we refer to as DTC, and registered in the name of Cede & Co., as nominee of DTC. Beneficial interests in the global securities may be held through the Euroclear System, which we refer to as Euroclear, and Clearstream Banking, S.A., which we refer to as Clearstream (as indirect participants in DTC).
We have provided the following descriptions of the operations and procedures of DTC, Euroclear and Clearstream solely as a matter of convenience. These operations and procedures are solely within the control of DTC, Euroclear and Clearstream and are subject to change by them from time to time. Neither we, any underwriter nor the trustee take any responsibility for these operations or procedures, and you are urged to contact DTC, Euroclear or Clearstream directly to discuss these matters.
DTC has advised us that:
● | DTC 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 under Section 17A of the Securities Exchange Act of 1934; |
● | DTC holds securities that its direct participants deposit with DTC and facilitates the settlement among direct participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in direct participants’ accounts, thereby eliminating the need for physical movement of securities certificates; |
● | Direct participants include securities brokers and dealers, trust companies, clearing corporations and other organizations; |
● | DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, which is owned by the users of its regulated subsidiaries; |
● | Access to the DTC system is also available to indirect participants such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly; and |
● | The rules applicable to DTC and its direct and indirect participants are on file with the SEC. |
We expect that under procedures established by DTC:
● | Upon deposit of the global securities with DTC or its custodian, DTC will credit on its internal system the accounts of direct participants designated by the underwriters with portions of the principal amounts of the global securities; and |
● | Ownership of the debt securities will be shown on, and the transfer of ownership of the debt securities will be effected only through, records maintained by DTC or its nominee, with respect to interests of direct participants, and the records of direct and indirect participants, with respect to interests of persons other than participants. |
Investors in the global securities who are participants in DTC’s system may hold their interests therein directly through DTC. Investors in the global notes who are not participants may hold their interests therein indirectly through organizations (including Euroclear and Clearstream) which are participants in such system. Euroclear and Clearstream may hold interests in the global securities on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositories, which are Euroclear Bank S.A./N.V., as operator of Euroclear, and Citibank, N.A., as depository of Clearstream. All interests in global securities, including those held through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream may also be subject to the procedures and requirements of such systems.
The laws of some jurisdictions require that purchasers of securities take physical delivery of those securities in the form of a certificate. For that reason, it may not be possible to transfer interests in a global security to those persons. In addition, because DTC can act only on behalf of its participants, who in turn act on behalf of persons who hold interests through participants, the ability of a person having an interest in a global security to pledge or transfer that interest to persons or entities that do not participate in DTC’s system, or otherwise to take actions in respect of that interest, may be affected by the lack of a physical definitive security in respect of that interest.
So long as DTC or its nominee is the registered owner of a global security, DTC or that nominee will be considered the sole owner or holder of the debt securities represented by that global security for all purposes under the applicable indenture and under the debt securities. Except as described below, owners of beneficial interests in a global security will not be entitled to have debt securities represented by that global security registered in their names, will not receive or be entitled to receive the debt securities in the form of a physical certificate and will not be considered the owners or holders of the debt securities under the applicable indenture or under the debt securities, and may not be entitled to give the trustee directions, instructions or approvals. For that reason, each holder owning a beneficial interest in a global security must rely on DTC’s procedures and, if that holder is not a direct or indirect participant in DTC, on the procedures of the DTC participant through which that holder owns its interest, to exercise any rights of a holder of debt securities under the applicable indenture or the global security.
Neither we nor the trustee will have any responsibility or liability for any aspect of DTC’s records relating to the debt securities or relating to payments made by DTC on account of the debt securities, or any responsibility to maintain, supervise or review any of DTC’s records relating to the debt securities.
We will make payments on the debt securities represented by the global securities to DTC or its nominee, as the registered owner of the debt securities. We expect that when DTC or its nominee receives any payment on the debt securities represented by a global security, DTC will credit participants’ accounts with payments in amounts proportionate to their beneficial interests in the global security as shown in DTC’s records. We also expect that payments by DTC’s participants to owners of beneficial interests in the global security held through those participants will be governed by standing instructions and customary practice as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. DTC’s participants will be responsible for those payments.
Payments on the debt securities represented by the global securities will be made in immediately available funds. Transfers between participants in DTC will be made in accordance with DTC’s rules and will be settled in immediately available funds.
Transfers between participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.
Cross-market transfers between the participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by its depository; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depository to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant global security in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream.
DTC has advised us that it will take any action permitted to be taken by a holder of notes only at the direction of one or more participants to whose account DTC has credited the interests in the global securities and only in respect of such portion of the aggregate principal amount of the notes as to which such participant or participants has or have given such direction. However, if there is an event of default under the notes, DTC reserves the right to exchange the global securities for certificated notes, and to distribute such notes to its participants.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the global securities among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such procedures at any time. None of the company, the trustee or any of their respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective direct or indirect participants of their respective obligations under the rules and procedures governing their operations.
Exchange of Global Securities for Certificated Securities
We will issue certificated debt securities to each person that DTC identifies as the beneficial owner of debt securities represented by the global securities upon surrender by DTC of the global securities only if:
● | DTC notifies us that it is no longer willing or able to act as a depository for the global securities, and we have not appointed a successor depository within 90 days of that notice; |
● | An event of default with respect to the debt securities has occurred and is continuing; or |
● | We decide not to have the debt securities represented by a global security. |
Neither we nor the trustee will be liable for any delay by DTC, its nominee or any direct or indirect participant in identifying the beneficial owners of the related debt securities. We and the trustee may conclusively rely on, and will be protected in relying on, instructions from DTC or its nominee, including instructions about the registration and delivery, and the respective principal amounts, of the debt securities to be issued.
Same Day Settlement and Payment
We will make payments in respect of the notes represented by the global securities (including principal, premium, if any, and interest) by wire transfer of immediately available funds to the accounts specified by the global securities holder. We will make all payments of principal, interest and premium, if any, with respect to certificated notes by wire transfer of immediately available funds to the accounts specified by the holders of the certificated notes or, if no such account is specified, by mailing a check to each such holder’s registered address. The notes represented by the global securities are expected to be eligible to trade in DTC’s Same-Day Funds Settlement System, and any permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds. The company expects that secondary trading in any certificated notes will also be settled in immediately available funds.
Because of time zone differences, the securities account of persons named undera Euroclear or Clearstream participant purchasing an interest in a global security from a participant in DTC will be credited, and any such crediting will be reported to the caption
"Selling Stockholders."
The Shares were issuedrelevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised us that cash received in Euroclear or Clearstream as a result of sales of interests in global securities by or through a Euroclear or Clearstream participant to a participant in DTC will be received with value on the settlement date of DTC but will be available in the merger (the "Merger")relevant Euroclear or Clearstream cash account only as of Midwesco, Inc.the business day for Euroclear or Clearstream following DTC’s settlement date.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock summarizes general terms and provisions that apply to our capital stock. Because this is only a summary it does not contain all of the information that may be important to you. The summary is subject to and qualified in its entirety by reference to our Certificate of Incorporation, as amended (our “Certificate of Incorporation”), an Illinois corporation, with and our Fourth Amended and Restated Bylaws (our “Bylaws”), which are filed as exhibits to the registration statement of which this prospectus is a part and incorporated by reference into this prospectus. See “Where You Can Find More Information.”
Common Stock
Our authorized capital stock consists of 50,000,000 shares of common stock, $0.01 par value per share. As of April 10, 2019, there were 7,883,522 shares of common stock outstanding. All outstanding shares of common stock are fully paid and nonassessable.
Holders of common stock are entitled to one vote per share on all matters to be voted upon by our stockholders. Holders of common stock may not cumulate votes in the Company, which occurred on
December 30, 1996 (the "Merger Closing Date").
The Shareselection of directors.
Holders of common stock are entitled to receive ratably such dividends, if any, as may hereafter be offered or solddeclared from time to time by our board of directors out of funds legally available therefor. In the event of our liquidation, dissolution or winding up, holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities.
Holders of common stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock.
Anti-Takeover Effects of Our Certificate of Incorporation, Bylaws, and Rights Agreement and Various Provisions of Delaware Law
Certificate of Incorporation andBylaws
Because our stockholders do not have cumulative voting rights, our stockholders holding a majority of the shares of common stock outstanding will be able to elect all of our directors. In addition, our Bylaws establish an advance notice procedure for stockholder approvals to be brought before an annual meeting of our stockholders, including proposed nominations of persons for election to our board of directors.
While our Bylaws provide that stockholders holding at least ten percent of the outstanding shares of our common stock may call a special meeting of stockholders, such right is limited if the purpose of the meeting is to consider a matter which is substantially the same as a matter voted on at any special meeting of stockholders in the preceding twelve months (a “Prior Matter”). In particular, our Bylaws provide that that our board of directors shall not call a special meeting of stockholders to consider a Prior Matter unless (a) such meeting is requested by stockholders holding a majority of the outstanding shares of our common stock and (b) the Prior Matter received the affirmative vote of at least one-third of the outstanding shares of our common stock at the prior meeting. Our Bylaws also provide that vacancies occurring on our board of directors for any reason and newly-created directorships resulting from an increase in the authorized number of directors may be filled only by a vote of the majority of the remaining members of our board of directors.
The combination of the lack of cumulative voting, the advance notice provisions, and the ability of our board of directors to fill vacancies make it more difficult for our existing stockholders to replace our board of directors as well as for another party to obtain control of us by replacing our board of directors. Since our board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change in management.
These provisions may have the effect of deterring hostile takeovers or delaying changes in our control or management. These provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its policies and to discourage certain types of transactions that may involve an actual or threatened acquisition of us. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. These provisions also are intended to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover attempts.
Rights Agreement
On September 15, 1999, we entered into a Rights Agreement (as amended, the “Rights Agreement”) pursuant to which each share of common stock issued, or to be issued, after the date of the Rights Agreement has, or will have, one right (a “Right”) to purchase one share of our common stock for $25.00 (as may be adjusted from time to time, the “Purchase Price”). The Rights may not be exercised until 10 days after a person or group acquires 15% or more of our common stock, or announces a tender offer that, if consummated, would result in 15% or more ownership of our common stock. Should an acquirer become the beneficial owner of 15% or more of our common stock, Rights holders other than the acquirer would have the right to buy our common stock, or common stock in the surviving enterprise if we are acquired, having a value of two times the Purchase Price. Our board of directors may exchange the Rights (other than those of the acquirer, which will have become void), in whole or in part, at an exchange ratio of one share of our common stock (and/or other securities, cash or other assets having equal value) per Right subject to adjustment. The Rights do not apply to an acquisition, merger or consolidation approved by our board of directors.
The Rights will expire on September 15, 2019, unless exchanged or redeemed prior to that date. The redemption price is $0.01 per Right. Our board of directors may redeem the Rights by a majority vote at any time prior to the 20th day following public announcement that a person or group has acquired 15% of our common stock. Under certain circumstances, the decision to redeem requires the concurrence of a majority of the independent directors. The Rights Agreement may discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable.
The above summary of the Rights Agreement does not purport to be complete. You should refer to the Rights Agreement which is filed as an exhibit to the registration statement of which this prospectus is a part and incorporated by reference into this prospectus.
Section 203 of the Delaware General Corporation Law
We are subject to Section 203 of the Delaware General Corporation Law (the “DGCL”), which prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
● | before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
● | upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
● | on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder. |
In general, Section 203 defines business combination to include the following:
● | any merger or consolidation involving the corporation and the interested stockholder; |
● | any sale, transfer, pledge, or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
● | subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
● | any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or |
● | the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges, or other financial benefits by or through the corporation. |
In general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person’s affiliates and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock of the corporation.
Limitations of Liability and Indemnification
Our Certificate of Incorporation provides that we will indemnify our directors and officers to the fullest extent permitted by the DGCL, which prohibits our Certificate of Incorporation from limiting the liability of our directors for the accountfollowing:
● | any breach of the director’s duty of loyalty to us or to our stockholders; |
● | acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
● | unlawful payment of dividends or unlawful stock repurchases or redemptions; and |
● | any transaction from which the director derived an improper personal benefit. |
If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of persons nameda director, then the liability of our directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Our Certificate of Incorporation does not eliminate a director’s duty of care and, in appropriate circumstances, equitable remedies, such as injunctive or other forms of non-monetary relief, remain available under the caption "Selling Stockholders"DGCL. This provision also does not affect a director’s responsibilities under any other laws, such as the federal securities laws or other state or federal laws.
Under our Bylaws, we are required to indemnify our officers or directors to a greater extent than under the current provisions of the DGCL. Our Bylaws generally provide that our directors and officers will be indemnified against expenses, amounts paid in settlement and judgments, fines, penalties or other amounts incurred with respect to any threatened, pending or completed proceeding, provided that such person did not engage in conduct that constitutes a “Breach of Duty” (as defined in our Bylaws). Breach of Duty generally means that such director or officer breached or failed to perform his or her duties to us, and such breach of or failure to perform those duties constituted: (i) a breach of his or her duty of loyalty to us or our stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) a violation of Section 174 of the DGCL, or (iv) a transaction from which such director or officer derived a material improper direct personal financial profit (unless such profit is determined to be immaterial in light of all the circumstances), as further detailed in our Bylaws. Our Bylaws also provide that we are required to advance expenses to our directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified, provided such director or officer supplies us with a written certificate stating that he or she believes in good faith that he or she has met the applicable standard of conduct and that he or she will repay such advances in the event it is ultimately determined that such director or officer is not entitled to be indemnified for such amounts.
In addition to the indemnification required in our Certificate of Incorporation and Bylaws, we have entered into indemnification agreements with each of our directors and officers. These agreements provide for indemnification against any and all expenses incurred in connection with, as well as any and all judgments, fines and amounts paid in settlement resulting from, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (collectively, an “Action”), by reason of the fact that such person is or was our director or officer, or is or was serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnification agreements provide that if any payment, advance or indemnification of the director or officer requires that he or she acted in good faith, in a manner he or she reasonably believed to be for or not opposed to our best interests or without reasonable cause to believe his or her conduct was unlawful, then it shall be presumed that he or she so acted unless proven otherwise by clear and convincing evidence. The indemnification agreements also provide for the advancement of all expenses, including reasonable attorneys’ fees, arising from the investigation of any claim, preparation for the defense or defense or settlement of an Action. The indemnification agreements authorize us to participate in the defense of any action and to assume the defense thereof, with counsel who shall be reasonably satisfactory to the director or officer, provided that the director or officer shall be entitled to separate counsel of his or her choosing if he or she reasonably believes that (i) there exists conflicting interests between himself or herself and us or other parties (the defense of whom we shall have assumed) or (ii) there is any substantial likelihood that we will be financially or legally unable to satisfy our obligations under the indemnification agreement. The indemnification agreements provide that the rights of a director or officer under such contract are not exclusive of any other indemnification rights he or she may have under any provision of law, our Certificate of Incorporation or Bylaws, the vote of our stockholders or disinterested directors, other agreements or otherwise.
We believe that the provisions of our Certificate of Incorporation, Bylaws, and indemnification agreements described above are necessary to attract and retain qualified persons as directors and officers. We also maintain directors’ and officers’ liability insurance.
The limitation of liability and indemnification provisions in our Certificate of Incorporation, Bylaws, and indemnification agreements may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duties. Such provisions may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and our stockholders. A stockholder’s investment may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act of 1933, and is therefore unenforceable.
There is no pending litigation or proceeding naming any of our directors or officers as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director or officer.
Listing
Our common stock is listed on the Nasdaq National Market, or otherwise, at prices and on terms then
obtainable, in broker's transactions, special offerings, exchange
distributions, negotiated transactions, block transactions, or otherwise.
See "Selling Stockholders" and "Plan of Distribution." The Company will
not realize any proceeds from any sale of the Shares.
SEE "RISK FACTORS" ON PAGE 2 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
The Common Stock is traded on the Nasdaq NationalNASDAQ Global Market under the symbol MFRI. On July 31, 1997,“PPIH.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Broadridge Corporate Issuer Solutions, LLC.
Description of Warrants
We may issue warrants for the last reported salepurchase of debt securities, common stock or other securities. Warrants may be issued independently or together with debt securities or common stock offered by any prospectus supplement and/or other offering material and may be attached to or separate from any such offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent, all as will be set forth in the prospectus supplement and/or other offering material relating to the particular issue of warrants. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants.
The following summary of certain provisions of the warrants does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all provisions of the warrant agreements.
Reference is made to the prospectus supplement and/or other offering material relating to the particular issue of warrants offered pursuant to such prospectus supplement and/or other offering material for the terms of and information relating to such warrants, including, where applicable:
● | the designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities purchasable upon exercise of warrants to purchase debt securities and the price at which such debt securities may be purchased upon such exercise; |
● | the number of shares of common stock purchasable upon the exercise of warrants to purchase common stock and the price at which such number of shares of common stock may be purchased upon such exercise; |
● | the designation and number of units of other securities purchasable upon the exercise of warrants to purchase other securities and the price at which such number of units of such other securities may be purchased upon such exercise; |
● | the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
● | U.S. federal income tax consequences applicable to such warrants; |
● | the number of warrants outstanding as of the most recent practicable date; and |
● | any other terms of such warrants. |
Warrants will be issued in registered form only. The exercise price for warrants will be subject to adjustment in accordance with provisions described in the applicable prospectus supplement and/or other offering material.
Each warrant will entitle the holder thereof to purchase such principal amount of debt securities or such number of shares of common stock or other securities at such exercise price as shall in each case be set forth in, or calculable from, the prospectus supplement and/or other offering material relating to the warrants, which exercise price may be subject to adjustment upon the occurrence of certain events as set forth in such prospectus supplement and/or other offering material. After the close of business on the expiration date, or such later date to which such expiration date may be extended by us, unexercised warrants will become void. The place or places where, and the manner in which, warrants may be exercised shall be specified in the prospectus supplement and/or other offering material relating to such warrants.
Prior to the exercise of any warrants to purchase debt securities, common stock or other securities, holders of such warrants will not have any of the rights of holders of debt securities, common stock or other securities, as the case may be, purchasable upon such exercise, including the right to receive payments of principal of, premium, if any, or interest, if any, on the debt securities purchasable upon such exercise or to enforce covenants in the applicable indenture, or to receive payments of dividends, if any, on the common stock purchasable upon such exercise, or to exercise any applicable right to vote.
Description of Stock Purchase Contracts and Stock Purchase Units
We may issue stock purchase contracts, including contracts obligating holders to purchase from us, and obligating us to sell to the holders, a specified number of shares of common stock or other securities at a future date or dates, which we refer to in this prospectus as “stock purchase contracts.” The price per share of the securities and the number of shares of the securities 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. The stock purchase contracts may be issued separately or as part of units consisting of a stock purchase contract and debt securities, preferred securities, warrants, other securities or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase the securities under the stock purchase contracts, which we refer to herein as “stock purchase units.” The stock purchase contracts may require holders to secure their obligations under the stock purchase contracts in a specified manner. The stock purchase contracts also may require us to make periodic payments to the holders of the stock purchase units or vice versa, and those payments may be unsecured or refunded on some basis.
The stock purchase contracts, and, if applicable, collateral or depositary arrangements, relating to the stock purchase contracts or stock purchase units, will be filed with the SEC in connection with the offering of stock purchase contracts or stock purchase units. The prospectus supplement and/or other offering material relating to a particular issue of stock purchase contracts or stock purchase units will describe the terms of those stock purchase contracts or stock purchase units, including the following:
● | if applicable, a discussion of material U.S. federal income tax considerations; and |
● | any other information we think is important about the stock purchase contracts or the stock purchase units. |
Plan of Distribution
We may sell securities in any one or more of the following ways from time to time: (i) through agents; (ii) to or through underwriters; (iii) through brokers or dealers; (iv) directly to purchasers, including through a specific bidding, auction or other process; or (v) through a combination of any of these methods of sale. The applicable prospectus supplement and/or other offering material will contain the terms of the transaction, name or names of any underwriters, dealers, agents and the respective amounts of securities underwritten or purchased by them, the initial public offering price of the Common
Stocksecurities, and the applicable agent’s commission, dealer’s purchase price or underwriter’s discount. Any dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting discounts.
Any initial offering price, dealer purchase price, discount or commission may be changed from time to time.
The securities may be distributed from time to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that may be subject to change), at market prices prevailing at the time of sale, at various prices determined at the time of sale or at prices related to prevailing market prices.
Offers to purchase securities may be solicited directly by us or by agents designated by us from time to time. Any such agent may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933, of the securities so offered and sold.
If underwriters are utilized in the sale of any securities in respect of which this prospectus is being delivered, such securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at fixed public offering prices or at varying prices determined by the underwriters at the time of sale. Securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters. If any underwriter or underwriters are utilized in the sale of securities, unless otherwise indicated in the applicable prospectus supplement and/or other offering material, the obligations of the underwriters are subject to certain conditions precedent, and that the underwriters will be obligated to purchase all such securities if any are purchased.
If a dealer is utilized in the sale of the securities in respect of which this prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale. Transactions through brokers or dealers may include block trades in which brokers or dealers will attempt to sell shares as agent but may position and resell as principal to facilitate the transaction or in crosses, in which the same broker or dealer acts as agent on both sides of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities Act of 1933, of the securities so offered and sold.
Offers to purchase securities may be solicited directly by us and the sale thereof may be made by us directly to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act of 1933 with respect to any resale thereof.
If so indicated in the applicable prospectus supplement and/or other offering material, we may authorize agents and underwriters to solicit offers by certain institutions to purchase securities from us at the public offering price set forth in the applicable prospectus supplement and/or other offering material pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the applicable prospectus supplement and/or other offering material. Such delayed delivery contracts will be subject only to those conditions set forth in the applicable prospectus supplement and/or other offering material.
Agents, underwriters and dealers may be entitled under relevant agreements with us to indemnification by us against certain liabilities, including liabilities under the Securities Act of 1933, or to contribution with respect to payments which such agents, underwriters and dealers may be required to make in respect thereof. The terms and conditions of any indemnification or contribution will be described in the applicable prospectus supplement and/or other offering material.
We may also sell shares of our common stock through various arrangements involving mandatorily or optionally exchangeable securities, and this prospectus may be delivered in connection with those sales.
We may enter into derivative, sale or forward sale transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement and/or other offering material indicates, in connection with those transactions, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement and/or other offering material, including in short sale transactions and by issuing securities not covered by this prospectus but convertible into, or exchangeable for or representing beneficial interests in such securities covered by this prospectus, or the return of which is derived in whole or in part from the value of such securities. The third parties may use securities received under derivative, sale or forward sale transactions, or securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those transactions to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment) and/or other offering material.
Underwriters, broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers or agents may also receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals, or both. Compensation as to a particular underwriter, broker-dealer or agent might be in excess of customary commissions and will be in amounts to be negotiated in connection with transactions involving shares. In effecting sales, broker-dealers engaged by us may arrange for other broker-dealers to participate in the resales.
Each series of securities will be a new issue and, other than the common stock, which is listed on the Nasdaq NationalGlobal Market, was $9-3/8.
______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION PASSED OR ANY STATE SECURITIES COMMISSION UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
______________
AUGUST 12, 1997
NO DEALER, BROKER OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, IN CONNECTION WITH THE OFFERING MADE HEREBY, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED ON AS HAVING
BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE SECURITIES TO WHICH
IT RELATES IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM, IT IS
UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION OF AN OFFER. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE INFORMATION SET FORTH HEREIN OR IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF.
THIS PROSPECTUS, INCLUDING DOCUMENTS INCORPORATED BY REFERENCE,
CONTAINS FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF
THE SECURITIES ACT AND SECTION 21E OF THE EXCHANGE ACT. FORWARD-LOOKING
STATEMENTS ARE INHERENTLY SUBJECT TO RISKS AND UNCERTAINTIES, MANY OF WHICH
CANNOT BE PREDICTED WITH ACCURACY AND SOME OF WHICH MIGHT NOT EVEN BE
ANTICIPATED. FUTURE EVENTS AND ACTUAL RESULTS, FINANCIAL AND OTHERWISE,
MAY DIFFER MATERIALLY FROM THE RESULTS DISCUSSED IN THE FORWARD-LOOKING
STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE INCLUDE, BUT ARE
NOT LIMITED TO, THOSE DISCUSSED IN "RISK FACTORS" HEREIN AND IN
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION" INCORPORATED BY REFERENCE IN THE COMPANY'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED JANUARY 31, 1997, WHICH IS
INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
TABLE OF CONTENTS
PAGE
Available Information 2
Risk Factors 2
The Company 3
Selling Stockholders 5
Usewill have no established trading market. We may elect to list any series of Proceeds 8
Plansecurities on an exchange, and in the case of Distribution 8
Legal Matters 9
Experts 9
Information Incorporated by Reference 9
AVAILABLE INFORMATION
The Company is subjectthe common stock, on any additional exchange, but, unless otherwise specified in the applicable prospectus supplement and/or other offering material, we shall not be obligated to do so. No assurance can be given as to the informational requirementsliquidity of the trading market for any of the securities.
Agents, underwriters and dealers may engage in transactions with, or perform services for us and our respective subsidiaries in the ordinary course of business.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Securities Exchange Act of 1934,1934. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as amended (the "Exchange Act"),the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. An underwriter may carry out these transactions on the Nasdaq Global Market, in the over-the-counter market or otherwise.
The place and time of delivery for securities will be set forth in accordance therewith, files periodicthe prospectus supplement and/or other offering material for such securities.
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and other information with the SEC (File No. 1-32530). We also filed a registration statement on Form S-3, including exhibits, under the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements and other information can be inspected and
copied atAct of 1933 with respect to the public reference facilities maintainedsecurities offered by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and should also
be available for inspection and copying at the regional officesthis prospectus. This prospectus is a part of that registration statement, but does not contain all of the Commission located at 75 Park Place, 14th Floor, New York, New York 10007
and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such material can also be obtained frominformation included in the Public Reference Section ofregistration statement or the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates.exhibits to the registration statement. The CommissionSEC maintains a Webweb site, www.sec.gov,that contains reports, proxy and information statements and other information about the
Company. The address of the Web site maintained by the Commission is
"http://www.sec.gov".
This Prospectus constitutes a part of a registration statement on
Form S-3 (herein, together with all amendments and exhibits, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), filed by the Company. This Prospectus does not contain
all of the information set forth in the Registration Statement. For
further information, reference is hereby made to the Registration
Statement, including the financial schedules and exhibits filed or
incorporated by reference as a part thereof, which may be -examined at the
Public Reference Room of the Commission in Washington, D.C., without
charge, or copies of which may be obtained from the Commission upon payment
of the prescribed fees. Statements contained herein concerning the
provisions of documents filed herewith as exhibits are necessarily
summaries of such documents, and each such statement is qualified in its
entirety by reference to the copy of the applicable document filedregarding issuers that file electronically with the Commission.
RISK FACTORS
COMPETITION; BUSINESS. The businesses in which the Company is engaged
are highly competitive. In addition, new installations of baghouses are
subject to competition from alternative technologies and the sale of
specialty piping systems and electronic leak detection and location systems
are subject to competition from alternative products. The business of
Thermal Care is dependent on the plastics industry. Any adverse trends in
the plastics industrySEC. You may have a material adverse effect on the business of
Thermal Care. Thermal Care relies upon a single source for key components
of several of its products. Although the Company believes that there are
alternate sources available for such components, there can be no assurance
that the interruption of supplies of such components would not have an
adverse effect on the financial condition of the Company, and that the
Company, if required to do so, would be able to negotiate agreements with
alternative sources on acceptable terms.
GOVERNMENT REGULATION. The demand for the Company's leak detection
and location systems and secondary containment piping systems is driven
primarily by government regulation with respect to hazardous waste. Laws
such as the Federal Resource Conservation and Recovery Act ("RCRA"), and
standards such as the National Emission Standard for Hydrocarbon Airborne
Particulates ("NESHAP"), have increased the demand for the Company's leak
detection and location and secondary containment piping systems. The
Company's filtration products business to a large extent is dependent on
governmental regulation of air pollution at the federal and state levels.
The Company believes that continuing growth in the sale of filtration
products and services will be materially dependent on continuing
enforcement of environmental laws such as the Federal Clean Air Act
Amendments of 1990 ("Clean Air Act Amendments"). Although changes in such
environmental regulations could significantly alter the demand for the
Company's products and services, the Company does not believe that such a
change is likely to decrease demand in the foreseeable future.
ECONOMIC FACTORS. Although demand for many of the Company's products
is generally affected by its customers' need to comply with governmental
regulations, purchases of the Company's products at times may be delayed by
customers due to adverse economic factors.
DIVIDENDS. The Company has not paid dividends in the past and does
not anticipate paying cash dividends on its common stock in the foreseeable
future. The Company's line of credit agreement contains certain
restrictions on payment of dividends. The primary restriction limits
dividends to a cumulative amount of up to 25% of net income.
LACK OF ARM'S-LENGTH NEGOTIATIONS; CONFLICTS OF INTEREST. The
agreements between the Company and Midwesco relating to the Merger and the
Perma-Pipe Transaction were not negotiated on an arm's-length basis.
However, the Company believes the consideration, representations,
warranties and covenants in such agreements are fair to the Company even
though they may not provide the same level of protection as similar
representations, warranties and covenants contained in comparable
agreements with persons that are not affiliates of the Company. Members of
the Board of Directors affiliated with Midwesco (Messrs. Unger, Ogilvie,
Elgendy, Gruenberg and Henry and Bradley Mautner) will have a conflict of
interest with respect to their obligations as directors and officers of the
Company, and enforcing the terms of such agreements against Midwesco, if
necessary.
THE COMPANY
The Company is engaged in the manufacture and sale of filter bags for
use in industrial air pollution control systems known as "baghouses", and
also engineers, designs and manufactures specialty piping systems and leak
detection and location systems, and industrial water cooling equipment.
The Company, which was incorporated in Delaware in October 1993, is the
successor corporation to Midwesco Filter Resources, Inc. ("Midwesco
Filter").
Midwesco Filter was incorporated in Delaware in October 1989 as a
wholly owned subsidiary of Midwesco. On December 13, 1989, Midwesco Filter
exchanged shares of its common stock for the net assets constituting its
Midwesco Filter Resources division ("Filter Division") of Midwesco. The
Filter Division was formed from certain assets of the Filter Media division
of the Kennecott Corporation, acquired by Midwesco in June 1982, and
certain assets of the Filter Resources Corporation, acquired by Midwesco in
December 1983.
On January 28, 1994 pursuant to a merger transaction ("Perma-Pipe
Transaction") between the Company, a subsidiary of the Company and Midwesco
Filter, the Company acquired the Perma-Pipe business ("Perma-Pipe") from
Midwesco for cash and 278,666 shares of Common Stock. Pursuant to the
Perma-Pipe Transaction, each share of common stock of Midwesco Filter was
exchanged for one share of Common Stock. Immediately prior to the
effective time of the Perma-Pipe Transaction, a public offering (the
"Offering") of shares of common stock of Midwesco Filter was consummated,
the net proceeds of which were used to repay bank debt related to
Perma-Pipe. Perma-Pipe is in the business of engineering, designing and
manufacturing specialty piping systems and leak detection and location
systems.
On September 30, 1994, the Company and an indirect wholly-owned
subsidiary of the Company, pursuant to a purchase agreement dated as of
such date ("Purchase Agreement"), acquired substantially all of the assets
of Ricwil Piping Systems Limited Partnership ("Ricwil LP") for cash and
55,710 shares of Common Stock, as adjusted in accordance with the terms of
the Purchase Agreement. Ricwil LP was a manufacturer of insulated piping
systems for district heating and cooling systems.
On December 6, 1995, Perma-Pipe acquired for cash the net assets and
leak detection business of Hagenuk GmbH.
On August 15, 1996, the Company, pursuant to an Asset Purchase
Agreement dated as of such date (the "Purchase Agreement"), acquired
substantially all of the assets of Eurotech Air Filtration, Inc., an Oregon
corporation ("Eurotech"), for cash and 30,571 shares of Common Stock.
Pursuant to the Purchase Agreement, Eurotech distributed such shares to its
four shareholders.
On December 30, 1996, the Company acquired the Thermal Care Division
("Thermal Care") and certain other specified assets and liabilities of
Midwesco by the merger of Midwesco with and into MFRI (the "Merger").
Through the Merger, an aggregate of 2,124,298 shares of Common Stock were
issued to the shareholders of Midwesco and the 1,717,666 shares of Common
Stock owned by Midwesco immediately prior to the consummation of the Merger
were cancelled. Thermal Care engineers, designs and manufactures
industrial water cooling equipment.
The Company's filtration products business is carried on by Midwesco
Filter, and the piping system products business is carried on by Perma-
Pipe, Inc. Midwesco Filter and Perma-Pipe, Inc. are wholly-owned
subsidiaries of MFRI. As used herein, unless the context otherwise
requires, the term Company includes MFRI, Inc., Midwesco Filter, Thermal
Care, Perma-Pipe, Inc., and its subsidiaries, and their predecessors.
The Company's principal executive offices are located at 7720 Lehigh
Avenue, Niles, Illinois 60714 and its telephone number is (847) 966-1000.
Other information concerning the Company's management, business,
securities, and results of operations is incorporated by reference from its
reports filed with the Commission. See "Information Incorporated by
Reference."
SELLING STOCKHOLDERS
The Shares may be offered from time to time for the account of the
Selling Stockholders whose names are set forth in the table below. The
table sets forth information as of January 31, 1997 with respect to the
beneficial ownership of the Shares by the Selling Stockholders. To the
knowledge of the Company, none of the Selling Stockholders has any material
relationship with the Company except as set forth in the footnotes to the
following table and as more fully described elsewhere in this Prospectus
(including the information incorporated by reference in this Prospectus).
We are “incorporating by reference” specified documents that we file with the Company's predecessorSEC, which means:
● | incorporated documents are considered part of this prospectus; |
● | we are disclosing important information to you by referring you to those documents; and |
● | information we file with the SEC will automatically update and supersede information contained in this prospectus. |
We incorporate by reference the documents listed below and any future filings we make with the SEC under Section 12(g) of the Securities Exchange Act of
1934;
(ii) the Company's Annual Report on Form 10-K for the
fiscal year ended January 31, 1997;
(iii) the Company's Quarterly Report on Form 10-Q for the
quarter ended April 30, 1997; and
(iv) the Company's Current Report on Form 8-K dated
August 11, 1997.
All documents filed by the Company pursuant to SectionSections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this Prospectusprospectus and before the end of the offering of the securities pursuant to this prospectus:
● | our annual report on Form 10-K for the fiscal year ended January 31, 2019; |
● | our current reports on Form 8-K dated January 8, 2019 and March 7, 2019 (in each instance, excluding information furnished under Items 2.02 or 7.01 or corresponding information furnished under Item 9.01 or included as an exhibit); |
● | the description of our Rights Agreement contained in the Registration Statement of MFRI, Inc., our predecessor, on Form 8-A filed on September 24, 1999, Amendment No. 1 to the Registration Statement of MFRI, Inc., our predecessor, on Form 8-A filed September 17, 2009, and any amendment or report updating that description; and |
● | the description of our common stock contained in the Registration Statement of MFRI, Inc., our predecessor, on Form 8-A filed on March 13, 1990, and any amendment or report updating that description. |
We will provide you with copies of these filings, and any exhibits specifically incorporated by reference in these filings, at no cost to you. We will provide you with copies of exhibits to these filings that are not specifically incorporated by reference in the filings upon advance payment of a fee of $0.25 per page, plus mailing expenses. You may request copies by writing to or telephoning us at our principal executive offices:
Perma-Pipe International Holdings, Inc.
Attn: Secretary
6410 W. Howard Street
Niles, Illinois 60714
(847) 966-1000
You should not assume that the information in this prospectus or any prospectus supplement, as well as the information we file or previously filed with the SEC that we incorporate by reference in this prospectus or any prospectus supplement, is accurate as of any date other than its respective date. Our business, financial condition, results of operations and prospects may have changed since those dates.
LEGAL MATTERS
Foley & Lardner LLP, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, our counsel, will pass upon the validity of the securities offered pursuant to this prospectus and the prospectus supplements and/or other offering materials. The opinion of Foley & Lardner LLP may be conditioned upon and may be subject to assumptions regarding future action required to be taken by us and any underwriters, dealers or agents in connection with the issuance and sale of any securities. The opinion of Foley & Lardner LLP may be subject to other conditions and assumptions, as indicated in the prospectus supplements and/or other offering materials.
EXPERTS
The financial statements incorporated by reference in this prospectus and elsewhere in the registration statement have been incorporated by reference in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various costs and expenses payable by the registrant in connection with the registration of the securities being registered. All amounts shown are estimates, with the exception of the Securities and Exchange Commission registration fee.
Amount | ||||
Securities and Exchange Commission registration fee | $ | 7,878 | ||
Printing expenses | * | |||
Accounting fees and expenses | * | |||
Legal fees and expenses | * | |||
Miscellaneous (including any applicable listing fees, rating agency fees, trustee and transfer agent fees and expenses) | * | |||
Total expenses | $ | 7,878 | ||
* | These fees and expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated at this time and will be reflected in the applicable prospectus supplement. |
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant is a Delaware corporation. Reference is made to Section 145 of the Delaware General Corporation Law (the “DGCL”), which authorizes indemnification of directors, officers, employees and agents of the registrant; allows the advancement of costs of defending against litigation; and permits companies incorporated in Delaware to purchase insurance on behalf of directors, officers, employees and agents against liabilities whether or not the corporation would have the power to indemnify such person against such liabilities under the provisions of the statute.
The registrant’s Certificate of Incorporation provides for indemnification of its directors and officers to the full extent permitted by Section 145 of the DGCL and eliminates, to the fullest extent permitted by Delaware law, liability of a director to the registrant or its stockholders for monetary damages for a breach of such director’s fiduciary duty of care except for liability where a director (i) breaches his or her duty of loyalty to the registrant or its stockholders, (ii) fails to act in good faith or engages in intentional misconduct or knowing violation of law, (iii) fails to dissent (unless absent) from payment of an unlawful dividend or an unlawful stock purchase or redemption or (iv) obtains an improper personal benefit.
Under the provisions of the registrant’s Fourth Amended and Restated By-Laws (the “Bylaws”), the registrant is required to indemnify its officers and directors to a greater extent than under the current provisions of Section 145 of the DGCL. The Bylaws generally provide that the director or officer will be indemnified against expenses, amounts paid in settlement and judgments, fines, penalties and/or other amounts incurred with respect to any threatened, pending or completed proceeding, provided that such person did not engage in conduct that constitutes a “Breach of Duty” (as defined in the Bylaws). Breach of Duty generally means that such director or officer breached or failed to perform his or her duties to the registrant, and such breach of or failure to perform those duties constituted (i) a breach of his or her duty of loyalty to the registrant or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) a violation of Section 174 of the DGCL, or (iv) a transaction from which such director or officer derived a material improper direct personal financial profit (unless such profit is determined to be immaterial in light of all the circumstances), as further detailed in the Bylaws. The Bylaws also provide that the registrant is required to advance expenses to its directors and officers as incurred in connection with legal proceedings against them for which they may be indemnified, provided such director or officer supplies a written certificate to the registrant stating that he or she believes in good faith that he or she has met the applicable standard of conduct and that he or she will repay such advances in the event it is ultimately determined that such director or officer is not entitled to be indemnified for such amounts.
The registrant has entered into indemnification agreements in the form described below with each person who is currently a director or officer of the registrant and will enter into such agreements with persons who in the future become directors or officers of the registrant. Such indemnification agreements provide for indemnification against any and all expenses incurred in connection with, as well as any and all judgments, fines and amounts paid in settlement resulting from, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (collectively an “Action”), by reason of the fact that such person is or was a director or officer of the registrant, or is or was serving at the request of the registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnification agreements provide that if any payment, advance or indemnification of the director or officer requires that he or she acted in good faith, in a manner he or she reasonably believed to be for or not opposed to the best interests of the registrant or without reasonable cause to believe his or her conduct was unlawful, then it shall be presumed that he or she so acted unless proven otherwise by clear and convincing evidence. The indemnification agreements also provide for the advancement of all expenses, including reasonable attorneys’ fees, arising from the investigation of any claim, preparation for the defense or defense or settlement of an Action. The indemnification agreements authorize the registrant to participate in the defense of any action and to assume the defense thereof, with counsel who shall be reasonably satisfactory to the director or officer, provided that the director or officer shall be entitled to separate counsel of his or her choosing if he or she reasonably believes that (i) there exists conflicting interests between himself or herself and the registrant or other parties (the defense of whom the registrant shall have assumed) or (ii) there is any substantial likelihood that the registrant will be financially or legally unable to satisfy its obligations under the indemnification agreement. The indemnification agreements provide that the rights of a director or officer under such contract are not exclusive of any other indemnification rights he or she may have under any provision of law, the registrant’s Certificate of Incorporation or Bylaws, the vote of the registrant’s stockholders or disinterested directors, other agreements or otherwise.
Item 16. EXHIBITS
The exhibits listed in the accompanying Exhibit Index are filed or incorporated by reference as part of this registration statement.
Item 17. UNDERTAKINGS
a. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) 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 (i), (ii) and (iii) of this section 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 Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 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 the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the 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 offeringoffering;
(4) that, for the purpose of sharesdetermining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Common Stockregistration 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 hereby are hereby incorporatedpursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by reference,Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such documents areform 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 part hereof from thenew effective date of filingthe registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such documents. Anysecurities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement containedmade in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed to be incorporated by reference herein shallinto 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; and
(5) That, for the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be modifieda seller to the purchaser and will be considered to offer or supersededsell 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 this Prospectusdetermining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the extentSecurities 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 ais incorporated by reference in the registration statement contained herein or in any other subsequently
filed document which is or isshall be deemed to be incorporated by reference
herein modifies or supersedes such statement. Any sucha new registration statement so
modified or superseded shall not, except as so modified or
superseded, constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER OF COMMON STOCK, TO WHOM A COPY OF
THIS PROSPECTUS IS DELIVERED, UPON THE ORAL OR WRITTEN REQUEST OF
SUCH PERSON, A COPY OF ANY AND ALL OF THE INFORMATION THAT HAS BEEN
INCORPORATED BY REFERENCE IN THIS PROSPECTUS (NOT INCLUDING EXHIBITS
TO THE INFORMATION THAT IS INCORPORATED BY REFERENCE UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH
INFORMATION). SUCH REQUEST SHOULD BE DIRECTED TO MICHAEL D. BENNETT,
SECRETARY, MFRI, INC., 7720 LEHIGH AVENUE, NILES, ILLINOIS 60714
(TELEPHONE (847) 966-1000).
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. EXHIBITS.
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
2.1 Agreement for Merger by and between Midwesco, Inc. and
MFRI, Inc. [Incorporated by reference to Appendix A
to the Company's Proxy Statement dated November 12,
1996 relating to the Company's Special Meetingsecurities offered therein, and the offering of Stockholders held on December 16, 1996 (SEC File
No. 0-18370)].
2.2 Agreementsuch 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 of 1933 may be permitted to directors, officers and Plancontrolling persons of Merger by and between Midwesco,
Inc. and MFRI, Inc. [Incorporated by reference to
Exhibit 2.2the registrant pursuant to the Company's Current Report on
Form 8-K dated December 30, 1996 (SEC File
No. 0-18370)].
5 Opinion of Rudnick & Wolfe with respect toforegoing provisions, or otherwise, the legalityregistrant has been advised that in the opinion of the Common Stock being registered.*
23.1 ConsentCommission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of Deloitte & Touche LLP.
23.2 Consent of Rudnick & Wolfe (contained in Exhibit 5
hereof).*
24.1 Power of Attorney of Directors and certain officersexpenses incurred or paid by a director, officer or controlling person of the Company.*
24.2 Powerregistrant in the successful defense of Attorneyany 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 certain Directorsits counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
d. The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the Company.*
* Previously filed.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to registration statementRegistration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Niles, State of Illinois, on August 12, 1997.
MFRI, INC.
By:/S/ DAVID UNGER
David Unger
Chairmanthis 16th day of the Board and
Chief
Executive Officer
April, 2019.
Perma-Pipe International Holdings, Inc. | |||
By: | /s/ David J. Mansfield | ||
David J. Mansfield | |||
President and Chief Executive Officer | |||
Pursuant to the requirements of the Securities Act of 1933, this amendment to registration statementRegistration Statement has been signed below on April 16, 2019 by the following persons in the capacities indicated. Each person whose signature appears below constitutes and onappoints David J. Mansfield and D. Bryan Norwood, and each of them individually, 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 (including post-effective amendments) to this Registration Statement, and any additional registration statement to be filed pursuant to Rule 462(b) under the date indicated.
SIGNATURE TITLE DATE
David Unger* DirectorSecurities Act of 1933, as amended, and Chairmanto 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 the
Boardthem, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of Directors (Principal
Executive Officer) August 12, 1997
Henry M. Mautner* Director, them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Name |
/s/ David J. Mansfield David J. Mansfield President, Chief Executive Officer and Director (Principal Executive Officer) |
/s/ D. Bryan Norwood D. Bryan Norwood Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
/s/ David S. Barrie David S. Barrie Director and Chairman of the Board of Directors |
/s/ Cynthia Boiter Cynthia Boiter Director |
/s/ David B. Brown David B. Brown Director |
/s/ Jerome T. Walker Jerome T. Walker Director |
EXHIBIT INDEX | |
Exhibit Number | Document Description |
1.1 | Form of Equity Underwriting Agreement.1 |
1.2 | Form of Debt Underwriting Agreement.1 |
4.1 | Certificate of Incorporation of Perma-Pipe International Holdings, Inc. [Incorporated by reference to Exhibit 3.3 to Registration Statement No. 033-70298 filed on October 15, 1993] |
4.2 | Certificate of Amendment to Certificate of Incorporation of Perma-Pipe International Holdings, Inc. [Incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on March 20, 2017] |
4.3 | Fourth Amended and Restated By-Laws of Perma-Pipe International Holdings, Inc. [Incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on February 22, 2018] |
4.4 | Specimen Common Stock Certificate [Incorporated by reference to Exhibit 4 to Registration Statement No. 33-70794] |
4.5 | Rights Agreement [Incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on September 24, 1999] |
4.6 | Amendment to Rights Agreement [Incorporated by reference to Exhibit 4.1 of |
4.7 | |
4.8 | Form of Senior Debt Securities.1 |
4.9 | |
4.10 | Form of Subordinated Debt Securities.1 |
4.11 | Form of Warrant.1 |
4.12 | Form of Warrant Agreement.1 |
4.13 | Form of Stock Purchase Contract.1 |
5 | Opinion of Foley & Lardner LLP (including consent of counsel). |
23.1 | Consent of Independent Registered Public Accounting Firm (Grant Thornton LLP). |
23.2 | |
24 | Powers of Attorney (contained on the signature page hereto). |
25.1 | Statement of Eligibility and Qualification of Trustee on Form T-1.2 |
25.2 | Statement of Eligibility and Qualification of Trustee on Form T-1.2 |
1 To be filed by amendment or as an exhibit to a Current Report on Form 8-K dated
December 30, 1996 (SEC file No. 0-18370)].
5 Opinionand incorporated herein by reference.
2 To be filed in accordance with the requirements of Rudnick & Wolfe with respect to the legalitySection 305(b)(2) of the Common Stock being registered.*
23.1 ConsentTrust Indenture Act of Deloitte & Touche LLP.
23.2 Consent of Rudnick & Wolfe (contained in Exhibit 5
hereof).*
24.1 Power of Attorney of the Directors1939 and certain officers of
the Company.*
24.2 Power of Attorney of certain Directors of the Company.*
* Previously filed.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of MFRI, Inc. on Form S-3 of our report dated April 18,
1997 with respect to the Consolidated Financial Statements of MFRI,
Inc. and subsidiaries appearing in the Annual Report on Form 10-K of
MFRI, Inc. for the year ended January 31, 1997, and of our report
dated May 28, 1996 (August 14, 1996 as to the second paragraph of
Note 6) with respect to the Consolidated Financial Statements of
Midwesco, Inc. and subsidiaries appearing in the Current Report on
Form 8-K of MFRI, Inc. dated August 11, 1997, and to the reference to
us under the caption "Experts" in the Prospectus, which is part of
this Registration Statement.
/S/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Chicago, Illinois
August 12, 1997