-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GbbLaWiJwmZ5Zy/QPU5ud1lEd5zOjPmGU3BCMNs8K7ukXTfC1FDDqI87h0+x/D1l T6+8dphopb4+nQofp9ihRQ== 0000914190-97-000161.txt : 19970404 0000914190-97-000161.hdr.sgml : 19970404 ACCESSION NUMBER: 0000914190-97-000161 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970403 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: EAGLE PACIFIC INDUSTRIES INC/MN CENTRAL INDEX KEY: 0000852426 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS PLASTIC PRODUCTS [3080] IRS NUMBER: 411642846 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-08953 FILM NUMBER: 97574318 BUSINESS ADDRESS: STREET 1: 2430 METROPOLITAN CENTRE STREET 2: 333 S SEVENTH ST CITY: MINNEAPOLIS STATE: MN ZIP: 55402 BUSINESS PHONE: 6123719650 MAIL ADDRESS: STREET 1: 2430 METROPOLITAN CENTRE STREET 2: 333 S SEVENTH STREET CITY: MINNEAPOLIS STATE: MN ZIP: 55402 FORMER COMPANY: FORMER CONFORMED NAME: BLACK HAWK HOLDINGS INC /MN/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: BHH INC DATE OF NAME CHANGE: 19891019 S-3/A 1 AMENDMENT NO. 1 TO FORM S-3 As filed with the Securities and Exchange Commission on April 3, 1997 Registration No. 333-8953 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 PRE-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EAGLE PACIFIC INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Minnesota 41-1642846 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 333 South Seventh Street 2430 Metropolitan Centre Minneapolis, Minnesota 55402 (612) 371-9650 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) WILLIAM H. SPELL, Chief Executive Officer Eagle Pacific Industries, Inc. 333 South Seventh Street 2430 Metropolitan Centre Minneapolis, Minnesota 55402 (612) 371-9650 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: DOBSON WEST DANIEL A. YARANO Fredrikson & Byron, P.A. 1100 International Centre 900 Second Avenue South Minneapolis, Minnesota 55402 (612) 347-7000 Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement as determined by market conditions and other factors. 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 offered 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, please check the following box. [ X ] CALCULATION OF REGISTRATION FEE
========================================================================================================================== Proposed Maximum Proposed Maximum Amount of Title of Each Class of Amount Offering Price per Aggregate Registration Securities to be Registered to be Registered Unit (1) Offering Price (1) Fee (1) - -------------------------------------------------------------------------------------------------------------------------- Common Stock to be offered by 871,010 $3.50 $3,048,535 $1,051 Selling Shareholders - -------------------------------------------------------------------------------------------------------------------------- Common Stock to be offered 200,000 $3.50 $ 700,000 $ 241 by Selling Warrantholders Upon Exercise of Outstanding Options (2) - -------------------------------------------------------------------------------------------------------------------------- Total 1,071,010 $3,748,535 $1,293 ==========================================================================================================================
(1) For purposes of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, such amount is based upon the average of the high and low prices of the registrant's Common Stock on July 19, 1996 (a date within five business days prior to the date of filing). The number of shares of Common Stock to be registered has been reduced by 23,700 and the registration fee has been adjucated accordingly. The registration fee was paid on July 26, 1996. (2) Options are exercisable at $3.125 per share. The registrant 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 this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. PROSPECTUS EAGLE PACIFIC INDUSTRIES, INC. 1,071,010 Shares of Common Stock This Prospectus relates to the offer and sale of up to 1,071,010 shares of Common Stock par value of $.01 per share, (the "Shares"), of Eagle Pacific Industries, Inc., a Minnesota corporation (the "Company") by certain Selling Shareholders (the "Selling Shareholders"). Of such Shares, (i) an aggregate of 871,010 Shares may be offered and sold by certain Selling Shareholders of the Company's Common Stock, and (ii) an aggregate of 200,000 Shares may be offered and sold by certain Selling Shareholders who may exercise outstanding Options and resell the Shares pursuant to this Prospectus. See "Principal and Selling Shareholders." The Company will receive proceeds from any Options that may be exercised in connection herewith, but will not receive any proceeds from the sale of any Shares by the Selling Shareholders. The Selling Shareholders have advised the Company that all or a portion of the Shares offered by them may be sold from time to time by the Selling Shareholders or by pledgees, donees, transferees or other successors in interest. Such sales may be made in the over-the-counter market or otherwise at prices and at terms then prevailing or at prices related to the then current market price, or in negotiated transactions. The Shares may be sold through one or more of the following: (a) ordinary brokerage or market making transactions and transactions in which the broker or dealer solicits purchasers; (b) a block trade in which the broker or dealer so engaged will attempt to sell the Shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; and (c) purchase by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this Prospectus. In effecting sales, brokers or dealers engaged by the Selling Shareholders may arrange for other brokers or dealers to participate. Brokers or dealers will receive commissions or discounts from the Selling Shareholders in amounts to be negotiated immediately prior to the sale. Such brokers or dealers and any other participating brokers or dealers may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, as amended, (the "Securities Act") in connection with such sales. In addition, any Shares covered by this Prospectus which qualify for sale pursuant to Rule 144 under this Securities Act may be sold under Rule 144 rather than pursuant to this Prospectus. The Company has agreed to maintain this registration until the earlier of the date the Selling Shareholders sell all of their Shares, Rule 144 is available to such Selling Shareholders or two years from the date of this Prospectus. See "Plan of Distribution." The Company will bear all expenses of the offering (estimated to be $15,000), except that the Selling Shareholders will pay any applicable underwriter's commissions and expenses, brokerage fees or transfer taxes, as well as any fees and disbursements of counsel and experts for the Selling Shareholders. The Company and the Selling Shareholders have agreed to indemnify each other against certain liabilities, including liabilities arising under the Securities Act. The Company's Common Stock is traded on the Nasdaq SmallCap Market under the symbol "EPII." The closing bid price of the Company's Common Stock on March 24, 1997, as reflected on the Nasdaq SmallCap Market was $3.9375 per share. ----------------------- FOR INFORMATION CONCERNING CERTAIN RISKS RELATING TO AN INVESTMENT IN THE COMPANY'S COMMON STOCK SEE "RISK FACTORS." ----------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is March ____, 1997. 2 No person is authorized to give any information or to make any representations, other than those contained or incorporated by reference in this Prospectus, in connection with the offering contemplated hereby, and, if given or made, such information or representations must not be relied upon as having been authorized by the Company. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities other than the registered securities to which it relates. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Neither the delivery of this Prospectus nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the Company since the date hereof or that the information contained or incorporated by reference herein is correct as of any time subsequent to its date. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C., 20549, and at the Commission's regional offices in New York (7 World Trade Center, Suite 1300, New York, New York 10048) and Chicago (Suite 1400, Northwestern Atrium Center, 500 West Madison, Chicago, Illinois 60661). Copies of such material can be obtained from the Public Reference Section of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. DOCUMENTS INCORPORATED BY REFERENCE The following documents filed by the Company with the Commission are hereby incorporated by reference in this Prospectus: 1. The Company's annual report on Form 10-K (Commission File No. 0-18050) for its fiscal year ended December 31, 1996. 2. The description of the Company's Common Stock, $.01 par value, which is contained or incorporated by reference in the Company's Registration Statement on Form 8-A (Commission File No. 0-18050) filed under the Securities Exchange Act of 1934, as amended, including any amendment or report filed for the purpose of updating such description. 3 All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of the offering of the Shares shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference or deemed to be incorporated by reference in this Prospectus shall be deemed to be modified or superseded for all purposes of this Prospectus to the extent that a statement contained herein, therein or in any subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person, including any beneficial owner, to whom a copy of this Prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the documents incorporated herein by reference (not including the exhibits to such documents, unless such exhibits are specifically incorporated by reference in such documents). Requests for such copies should be directed to William H. Spell, Chief Executive Officer, Eagle Pacific Industries, Inc., 333 South Seventh Street, 2430 Metropolitan Centre, Minneapolis, Minnesota 55402; Telephone (612) 371-9650. THE COMPANY Eagle Pacific Industries, Inc., a Minnesota corporation, (the "Company") is a holding company of Eagle Plastics, Inc. ("Eagle"), Pacific Plastics, Inc., ("Pacific") and Arrow Plastics, Inc., ("Arrow") (collectively the "Subsidiaries") leading extruders of polyvinyl chloride (PVC) pipe and polyethylene (PE) tubing products. The Company ranks among the top six producers of small to medium diameter plastic pipe and tubing products in the United States. The Company operates manufacturing facilities in Hastings, Nebraska, Hillsboro, Oregon and Midvale, Utah. The Company produces an average of 150 miles of pipe each day on 37 extrusion lines, using an estimated 120 million pounds of resin annually. The Company's diverse customer base includes more than 1,000 purchasers of products for the building and construction, commercial and residential plumbing, turf irrigation, municipal water and sewage, natural gas distribution and telecommunications industries. The Company's products are sold in 30 states throughout the continental United States, Alaska and Hawaii and in three western Canadian provinces. The Company's principal executive offices are located at 333 South Seventh Street, 2430 Metropolitan Centre, Minneapolis, Minnesota 55402 and its telephone number is (612) 371-9650. RISK FACTORS Prospective investors should carefully consider the following risk factors. 4 1. Raw Material Cost Fluctuations. The Company's operating results and financial condition may be adversely affected by uncontrollable market fluctuations in the availability and cost of its primary raw material: resin. While supplies are readily available, the Company has experienced, in the past, significant cost increases in resin prices. For example, in 1995, the Company's gross margins were adversely affected by fluctuations in resin prices. The Company believes that its competitors have also experienced similar price increases. The Company has historically attempted to pass such price increases onto its customers but has not always been able to do so due to its large inventories of resin. The Company has reduced its inventory of resin and instituted inventory control policies to control its inventory of resin. As a result, the Company believes it will be able to pass price increases of resin onto its customers, however, there is no assurance that it will be able to do so. If resin prices decline substantially and rapidly, the Company's gross margins may be adversely affected as in 1995. The Company's operations will be adversely affected if it is not able to pass on resin price increases to its customers. Furthermore, resin price increases may adversely affect the Company's sales as customers purchase less of its products due to the increase in prices. 2. Leveraged Purchase. To acquire the operations of its Subsidiaries, it was necessary for the Company to raise a substantial amount of debt resulting in the Company and its Subsidiaries being highly leveraged. If Eagle's, Pacific's and/or Arrow's businesses do not perform as anticipated, or consistent with past performance and it fully utilizes the funds available under its line-of-credit, the cash flow generated by the Company's Subsidiaries may not be sufficient to pay the Company's debt service obligations. In such event, the holder of such debt could foreclose on the assets of the Company's Subsidiaries and the Company's shareholders could lose their entire investment. 3. Competition. The business in which the Company is engaged is highly competitive and some of the Company's competitors have greater resources than the Company. There can be no assurance that the Company will be able to compete in the future. In particular, price is a very important competitive factor in the sale of plastic pipe and there can be no assurance that the Company will continue to be price competitive. 4. Sufficiency of Working Capital. As of December 31, 1996, the Company had a zero cash balance and $1.1 million in available working capital. The Company estimates that as of December 31, 1996, there is an additional $4.3 million that could be drawn under its bank lines of credit. The amount available under the bank lines of credit fluctuates daily based on the Company's eligible accounts receivable and inventory. The Company's lines of credit and term note are subject to a loan agreement containing standard covenants, representations and warranties, are secured by all the assets of Eagle and Pacific, except real property and guaranteed by the Company. A violation of the loan agreement could result in termination of the loan agreement which would require the Company to repay the loans in full. Although the Company believes it will be able to meet the requirements of the loan agreement, there is no assurance that the Company will not violate the covenants or that the bank will waive any violations. The Company's ability to fund its working capital requirements in the future will be dependent on generating sales which equal or exceed the Company's fiscal 1996 sales and in achieving profitable operations in fiscal 1997. In addition, any unforeseen expense of a material nature could materially and adversely affect the Company's ability to fund its ongoing operations. 5 In addition, in the event the Company decides to pursue growth through the acquisition of other companies, it may be required find additional sources of financing to finance such acquisitions. Such financing may be sought from a number of sources, including possible future sales of equity securities or loans from banks or other financial institutions. No assurance can be given that the Company will be able to sell future securities or obtain additional financing from any source. If the Company is able to sell additional shares of its securities, it may be required to do so at a price that is less than the price of the Shares offered hereby. Sales of equity securities could therefore result in substantial additional dilution to investors in the Shares offered hereby. Finally, additional debt financing could be very difficult to obtain due to the Company's highly leveraged financial condition as a result of its acquisition of Eagle, Pacific and Arrow. 5. Dependence on Construction Industry. Many of the Company's products are used in the construction of residential and business properties. In the event such construction slows for any reason, including poor economic conditions or weather, the sale of Company products used in the construction of residential and business properties could be adversely affected. Early Spring flooding in the Midwest in 1995 caused a delay in many construction projects and resulted in the Company sales and income being less than projected. There can be no assurance that the Company will not encounter similar problems in the future. 6. Failure to Successfully Implement Growth Strategy. The Company has developed a strategy to expand the Company through internal growth and expansion of the basic business, by selling its existing products into new market niches and by the acquisition of other companies in the industry. The Company plans to make significant capital expenditures in 1997 to improve and increase the manufacturing capacities of its three manufacturing facilities to meet current and future demands for its products. Failure of the Company's capital expenditures to produce the Company's expected production capacity may require the Company to make additional expenditures. In the event the Company acquires another company, its operations may be adversely affected should it pay too much consideration for an acquired company, incur unforeseen liabilities, or the acquired company fails to perform as the Company anticipated. Current shareholders may experience substantial dilution of their investment if the Company issues shares of its Common Stock or Warrants or other rights to purchase Common Stock pursuant to an acquisition. 7. Company Net Operating Loss. As of December 31, 1996, the Company has a net operating loss carry-forward of approximately $43,100,000 million (the "NOL") that it intends to use to offset a substantial portion of future taxable income of the Company, if any. The rules concerning the availability of the NOL are complicated and include rules concerning ownership changes in Company Common Stock. If the rules applicable to the NOL are violated, the availability of the NOL may be limited or extinguished. 8. Immediate Substantial Dilution. Investors purchasing Shares in this offering pursuant to exercise of the options will experience an immediate and substantial dilution of their investment in the Company. 6 9. Dividends. The Company has never paid a cash dividend on its Common Stock and intends to retain any earnings to finance the development of its business. 10. Prior Market for Common Stock. The Company's Common Stock is traded on the Nasdaq SmallCap Market under the symbol "EPII." While the Common Stock has been admitted for trading on the Nasdaq SmallCap Market and the Company currently satisfies the requirements for continued listing, such trading could be halted in the future for failure to meet Nasdaq maintenance requirements. No assurances can be given that the Company will be able to continually satisfy the requirements for continued listing on the Nasdaq SmallCap Market. The high and low bid prices for shares of the Company's Common Stock for the year ended December 31, 1996 were $4.00 and $1.25 per share, respectively. On March 20, 1997, the closing price for the Company's Common Stock as quoted on the Nasdaq SmallCap Market was $3.625 per share. 11. Anti-Takeover Provisions. The Company's Articles of Incorporation provide that the Board of Directors may issue up to 50,000,000 shares, which shall consist of 30,000,000 shares of Common Stock and 20,000,000 Undesignated Shares with such rights and preferences as may be determined from time to time by the Board of Directors, without further shareholder approval. In September 1993, the Company authorized the establishment and issuance of 2,000,000 Series A 7% Convertible Preferred Stock from the Undesignated Shares, most of which were subsequently converted to shares of Common Stock. As a result, the Company has 18,000,000 Undesignated Shares remaining unissued. Issuance of additional Preferred or Common Stock could result in dilution of the voting power of Common Stock, adversely affect its holders in the event of liquidation of the Company, or delay or prevent a change in control of the Company. In addition, Section 302A.671 of the Minnesota Statutes, among other things, denies voting rights with respect to certain "control share" acquisitions of the Company's Common Stock without prior approval of the Company's shareholders and Section 302A.673 of the Minnesota Statutes prohibits business combinations with any shareholder within five years of that shareholder's control share acquisition, made without approval of a committee of the Company's Board of Directors. The ability of the Board of Directors to issue additional Preferred or Common Stock and Minnesota Statutes could impede or deter a tender offer or takeover proposal regarding the Company. USE OF PROCEEDS Assuming certain Selling Shareholders listed in this Prospectus exercise their Options to purchase an aggregate of 200,000 shares of Common Stock, the estimated net proceeds to be received by the Company are approximately $625,000 net of expenses. There is no obligation on the part of Selling Shareholders to exercise all or any portion of the outstanding Options. Based upon the current market price of the Company's Common Stock there is no assurance that the Warrants will be exercised. Thus, there can be no assurance that the Company will receive the estimated net proceeds or any proceeds from this offering. Any proceeds received will be used to repay existing debt and for general working capital purposes. 7 SELLING SHAREHOLDERS The following table sets forth, as of the date of this Prospectus, certain information the Selling Shareholders.
Before the Offering After the Offering Shares Percentage of Shares Shares Percentage of Beneficially Outstanding Being Beneficially Outstanding Name and Address of Owned(1) Shares(1)(2) Offered(3) Owned(1) Shares(1)(2) Beneficial Owner SELLING SHAREHOLDERS(3) Kenneth G. Bryfogle 5,500 * 5,500 --- * Keith Oehlschlager 6,000 * 6,000 --- * Jones University Retirement Fund 12,000 * 12,000 --- * Edith Von Bibra 25,000 * 25,000 --- * Conrad Von Bibra 20,000 * 20,000 --- * Beachlawn Mortgage 25,000 * 25,000 --- * Amguard Ins. Co. 6,400 * 6,400 --- * Norguard Ins. Co. 10,400 * 10,400 --- * James R. Savage 24,000 * 24,000 --- * Hayes & Associates 4,500 * 4,500 --- * Thomas E. Rassieur 8,000 * 8,000 --- * Citizens Auto Corp. 16,000 * 16,000 --- * Martha R. Morgan 6,000 * 6,000 --- * Miriam Foundation 2,500 * 2,500 --- * Barnard J. Gottstein 5,000 * 5,000 --- * Okabena Partnership K 425,000 7.4% 400,000 25,000 * Loyal Sorensen 190,650 3.3% 190,650 --- * Zelda Sorensen 45,849 * 45,849 --- * Jarred Thompson 185,256 3.2% 185,256 --- * Sharron Sorensen 40,455 * 40,455 ___ * David Paul Schnase (4) 10,000 * 10,000 ___ * Richard Alan Schnase 2,500 * 2,500 ___ * James Edward Schnase 10,000 * 10,000 ___ * Joan Elizabeth Johnson 10,000 * 10,000 ___ *
8 * Less than one percent (1) Shares not outstanding but deemed beneficially owned by virtue of the individual's right to acquire them as of the date of this Prospectus, or within 60 days of such date, are treated as outstanding when determining the percent of the class owned by such individual and when determining the percent owned by the group. For purposes of calculation, the percent of class owned after this offering, it was assumed that the officers, directors and principal shareholders will not be purchasing shares in this offering, unless otherwise indicated, each person named or included in the group has sole voting and investment power with respect to the shares of Common Stock set forth opposite his/her name. (2) Based on 6,443,247 shares of common stock issued and outstanding as of March 28, 1997. Each percentage calculation assumes the exercise of only those options and warrants held by the corresponding person or persons which are exercisable as of March 28, 1997. (3) Selling Shareholder may sell, at each Selling Shareholder's discretion, all or a portion of the Common Stock being offered pursuant to this Prospectus. There is no obligation on the part of the Selling Shareholders to sell any Shares pursuant to this offering or exercise any outstanding Warrants or sell the Common Stock received by such exercise. (4) Mr. David Paul Schnase is a Senior Vice President of Sales and Marketing for Eagle Plastics, Inc. He is the son of Larry Schnase, a director of the Company. Richard Alan Schnase, James Edward Schnase and Joan Elizabeth Johnson are affiliates of David Schnase. 9 PLAN OF DISTRIBUTION The Selling Shareholders have advised the Company that all or a portion of the Shares offered by the Selling Shareholders hereby may be sold from time to time by the Selling Shareholders or by pledges, donees, transferees or other successors in interest. Such sales may be made in the over-the-counter market or otherwise at prices and at terms then prevailing or at prices related to the then current market price, or in negotiated transactions. The Shares may be sold by one or more of the following means: (a) ordinary brokerage or market making transactions and transactions in which the broker or dealer solicits purchasers; (b) block trades in which the broker or dealer so engaged will attempt to sell the Shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; and (c) purchases by a broker or dealer as principal and resales by such broker or dealer for its account pursuant to this Prospectus. In effecting sales, brokers or dealers engaged by the Selling Shareholders may arrange for other brokers or dealers to participate. Brokers or dealers will receive commissions or discounts from the Selling Shareholders in amounts to be negotiated immediately prior to the sale. Such brokers or dealers and any other participating brokers or dealers may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales. In addition, any securities covered by this Prospectus which qualify for sale pursuant to Rule 144 under the Act may be sold under Rule 144 rather than pursuant to this Prospectus. The Company and the Selling Shareholders have agreed to indemnify each other against certain liabilities, including liabilities arising under the Securities Act. 10 PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. The following expenses will be paid by the Company in connection with the distribution of the shares registered hereby. The Company is paying all Selling Shareholders' expenses related to this offering, except the Selling Shareholders will pay any applicable broker's commissions and expenses, transfer taxes, as well as fees and disbursements of counsel and experts for the Selling Shareholders. All of such expenses, except for the SEC Registration Fee, are estimated. SEC Registration Fee ..........................................$ 1,321 NASD Fee ..............................................................0 Nasdaq listing fee ....................................................0 Legal Fees and Expenses ...........................................6,000 Accountants' Fees and Expenses ....................................2,500 Printing Expenses .................................................1,000 Blue Sky Fees and Expenses ...................................... 3,500 Miscellaneous .................................................... 679 Total ..................................................$15,000 Item 15. Indemnification of Directors and Officers. Section 302A.521, subd. 2, of the Minnesota Statutes requires the Company to indemnify a person made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person with respect to the Company, against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys' fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions if such person (1) has not been indemnified by another organization or employee benefit plan for the same judgments, penalties or fines; (2) acted in good faith; (3) received no improper personal benefit, and statutory procedure has been followed in the case of any conflict of interest by a director; (4) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and (5) in the case of acts or omissions occurring in the person's performance in the official capacity of director or, for a person not a director, in the official capacity of officer, board committee member or employee, reasonably believed that the conduct was in the best interests of the Company, or, in the case of performance by a director, officer or employee of the Company involving service as a director, officer, partner, trustee, employee or agent of another organization or employee benefit plan, reasonably believed that the conduct was not opposed to the best interests of the Company. In addition, Section 302A.521, subd. 3, requires payment by the Company, upon written request, of reasonable expenses in advance of final disposition of the proceeding in certain instances. A decision as to required indemnification is made by a disinterested majority of the Board of Directors present at a meeting at which a disinterested quorum is present, or by a designated committee of the Board, by special legal counsel, by the shareholders, or by a court. Article 8 of the Company's Amended Articles of Incorporation provide that directors shall be personally liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by Minnesota statutes. II - 1 Item 16. Exhibits Exhibit No. Document 5 Opinion and Consent of Fredrikson & Byron, P.A. 23.1 Consent of Deloitte & Touche, LLP. 23.2 Consent of Fredrikson & Byron, P.A. (included in their opinion filed as Exhibit 5). 24 Power of Attorney from certain directors and officers (included on the "Signatures" pages hereto). 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, represents a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" Table in the effective registration statement. II - 2 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed 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. (2) That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by final adjudication of such issue. II - 3 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 the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on the 24th day of March, 1997. EAGLE PACIFIC INDUSTRIES, INC. By /s/ William H. Spell William H. Spell, Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated. Signature Title Date * Chairman of the Board March 24, 1997 Harry W. Spell and a Director * Vice Chairman, Treasurer and March 24, 1997 Bruce A. Richards Secretary and a Director * Director March 24, 1997 G. Peter Konen * Director March 24, 1997 George R. Long * Director March 24, 1997 Richard W. Perkins * Director March 24, 1997 Larry D. Schnase /s/ William H. Spell Director March 24, 1997 William H. Spell /s/ William H. Spell March 24, 1997 *William H. Spell as attorney in fact pursuant to the Power of Attorney filed with the Securities and Exchange Commission on July 26, 1996. II - 5 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 EXHIBITS to Form S-3 Registration Statement Eagle Pacific Industries, Inc. (Exact name of Registrant as specified in its charter) INDEX Sequential Page Number in Sequential Exhibit Numbered Form S-3 5* Opinion and consent of Fredrikson & Byron, P.A.......... 23.1 Consent of Deloitte & Touche, LLP....................... 23.2* Consent of Fredrikson & Byron, P.A...................... See Exhibit 5 24* Power of attorney from directors (Included in signature page of this Registration Statement).................... * Filed Previously EX-23.1 2 INDEPENDENT AUDITOR'S CONSENT EXHIBIT 23.1 INDEPENDENT AUDITOR'S CONSENT We consent to the incorporation by reference in this Amendment No. 1 to Registration Statement No. 33-79098 of Eagle Pacific Industries, Inc. on Form S-3 of our report dated February 14, 1997, appearing in the Annual Report on Form 10-K of Eagle Pacific Industries, Inc., for the year ended December 31, 1996. /s/ Deloitte & Touche, LLP Deloitte & Touche, LLP Minneapolis, Minnesota March 27, 1997 -----END PRIVACY-ENHANCED MESSAGE-----