As filed with the Securities and Exchange Commission on July 1, 2003
Registration Statement No.
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================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
A. M. CASTLE & CO.
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(Exact Name of Registrant as Specified in Its Charter)
Maryland 36-0879160
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
3400 North Wolf Road
Franklin Park, Illinois 60131
(847) 455-7111
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(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
Jerry M. Aufox, Esq.
A. M. Castle & Co.
3400 North Wolf Road
Franklin Park, Illinois 60131
Telephone: (847) 349-2516
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
William E. Doran, Esq.
Sachnoff & Weaver, Ltd.
30 S. Wacker Drive, 29th Floor
Chicago, Illinois 60606-7484
(312) 207-6412
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Offering Aggregate Amount of
Class of Securities Amount to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
---------------- ------------- -------- -------- ---
Common Stock, $0.01 par 2,809,995 $5.00 $14,049,975 $1,136.64
value per share
(1) In accordance with Rule 416 under the Securities Act of 1933, the
common stock offered hereby shall also be deemed to cover additional
securities to be offered or issued in connection with stock splits,
stock dividends or similar transactions.
(2) Estimated solely for purposes of computing the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 on the basis
of the on the average of the high and low sales prices reported on
AMEX on June 26, 2003.
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, as amended, or until this registration statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. The
Selling Stockholders 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.
Subject to Completion, dated July 1, 2003.
2,809,995 Shares
of
A. M. CASTLE & CO.
Common Stock, par value $0.01 per share
The Selling Stockholders identified in this prospectus may sell up to
2,809,995 shares of our common stock. If the Selling Stockholders elect to sell
their shares, they may do so from time to time privately at prices individually
negotiated with the purchasers, publicly in transactions on the Chicago Stock
Exchange or the American Stock Exchange, or as otherwise discussed in "Plan of
Distribution." We will not receive any proceeds from the sale of shares by the
Selling Stockholders. See "Use of Proceeds."
Our common stock is traded on the American Stock Exchange and the
Chicago Stock Exchange under the symbol "CAS." On June 26, 2003, the last
reported sale price of the common stock was $5.00.
We will pay certain legal fees and other expenses of certain of the
Selling Stockholders in this offering, except that all Selling Stockholders will
bear their own costs of any brokerage commissions or discounts incurred in
connection with the sale of their shares. We have also agreed to indemnify
certain of the Selling Stockholders against certain liabilities, including
liabilities under the Securities Act. See "Plan of Distribution."
See "Risk Factors" beginning on page 5 for a discussion of factors
that you should consider before you invest in the common stock being offered
through this prospectus.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities or passed on the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
This prospectus is dated [_________], 2003
2
TABLE OF CONTENTS
Page
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AVAILABLE INFORMATION..............................................3
A.M. CASTLE & CO...................................................4
RISK FACTORS.......................................................5
USE OF PROCEEDS....................................................7
SELLING STOCKHOLDERS...............................................7
PLAN OF DISTRIBUTION...............................................8
VALIDITY OF STOCK.................................................10
EXPERTS...........................................................10
Available Information
We file reports, proxy statements and other information with the
Securities and Exchange Commission ("SEC"). Those reports, proxy statements and
other information may be obtained:
o At the Public Reference Rooms of the SEC in Washington, DC. Please call the
SEC at 1-800-SEC-0330, or write the SEC at Securities and Exchange
Commission, Public Reference Section, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, DC 20549, for further information.
o At the offices of the American Stock Exchange, 86 Trinity Place, New York,
NY 10006; or
o From the Internet site maintained by the Securities and Exchange Commission
at http://www.sec.gov, which contains reports, proxy and information
statements and other information regarding issuers that file electronically
with the Securities and Exchange Commission.
We have filed with the Securities and Exchange Commission a
registration statement on Form S-3 under the Securities Act covering the shares
of common stock offered by this prospectus. As permitted by the Securities and
Exchange Commission, this prospectus, which constitutes a part of the
registration statement, does not contain all the information included in the
registration statement. The information incorporated by reference is an
important part of this prospectus, and information we file later with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until all of the shares offered by this prospectus have been sold or we have
filed with the SEC an amendment to the registration statement relating to this
offering which deregisters all securities then remaining unsold.
We have previously filed the following documents with the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as amended,
and they are incorporated into this prospectus by reference:
(a) Annual Report on Form 10-K of A. M. Castle & Co. for the fiscal
year ended December 31, 2002, filed on March 3, 2003;
(b) Proxy Statement of A. M. Castle & Co. for the Annual Meeting of
Stockholders held on April 24, 2003, filed on March 18, 2003;
(c) Current Report on Form 8-K filed on May 6, 2003;
(d) Quarterly Report on Form 10-Q of A.M. Castle & Co. for the fiscal
quarter ended March 31,2003, filed on May 15, 2003; and
(e) The description of our common stock contained in the Proxy
Statement of A. M. Castle & Co. for the Annual Meeting of Stockholders held on
April 26, 2001, filed on March 23, 2001.
3
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone to provide you with information that is different. We are not making an
offer of these securities in any jurisdiction where the offer is not permitted.
You should not assume that the information in this prospectus or any prospectus
supplement or any other document incorporated by reference herein is accurate as
of any date other than the date of such document.
On request, we will provide anyone who receives a copy of this
prospectus with a copy of any or all of the documents incorporated in this
prospectus by reference. Written or telephone requests for such copies should be
directed to our principal office: A. M. Castle & Co., Investor Relations
Department, 3400 North Wolf Road, Franklin Park, Illinois 60131, (847) 455-7111.
This prospectus contains forward-looking statements. Some of the
information contained or incorporated into in this prospectus, may be
forward-looking statements under the federal securities laws. Such statements
often contain words such as "anticipates," "intends," "seeks," "believes,"
"estimates," "plans," and "expects." These statements discuss expectations for
the future, contain projections concerning the results of our operations or our
future financial condition or state other forward-looking information. We
believe it is important to communicate our expectations to our investors.
However, there will be events in the future that we are not able to accurately
predict or over which we have no control. The risk factors listed in this
section, as well as any other cautionary language in this prospectus, provide
examples of risks, uncertainties and events that may cause our actual results to
differ materially from the expectations we describe in our forward-looking
statements. Before you invest in our common stock, you should be aware that the
occurrence of the events described in these risk factors and elsewhere in this
prospectus, or in our other publicly filed reports which are or later will be
incorporated herein, could have a material adverse effect on our business,
operating results and financial condition.
A. M. CASTLE & CO.
We are a distributor of highly engineered metal and plastic materials
and a provider of value-added services associated with these materials. Our
metal materials are commonly classified as either Ferrous (such as mild steel,
cast steel and cast iron) and Non-Ferrous (such as aluminum, cooper, brass and
lead). Our customers are a wide range of industrial companies within the
producer durable equipment sector of our economy. We are classified as being in
the metals distribution industry and we are known as a steel service center. We
deliver highly engineered materials for critical applications where exact
conformance to specifications provided to us by our customers is essential.
Our customer base includes a variety of companies in the durable goods
industry spread across the entire spectrum of the metal using sector. We
maintain a diverse customer base with no significant geographical or customer
concentration. Within our core specialty metals business we believe we are
recognized as North America's leading industrial distributor of carbon, alloy
and stainless steels; nickel alloy; aluminum; titanium; copper and brass as well
as an industry pioneer and premier provider of material management programs that
are designed to reduce our customer's total cost.
Through our subsidiary Total Plastics, Inc. we also distribute a broad
range of value-added industrial plastics. Together Castle and our affiliated
companies operate in over 50 locations throughout North America.
4
RISK FACTORS
You should carefully consider the risks described below before making
a decision to invest in our common stock. The risks and uncertainties described
below are examples only and are not the only ones that we face. Additional risks
and uncertainties that are not presently known to us or that we do not currently
believe are important to an investor may also harm our business operations. If
any of the events, contingencies, circumstances or conditions described in the
following risks actually occur, our business, financial condition or results of
operations could be seriously harmed. If that occurs, the trading price of our
common stock could decline, and you may lose part or all of your investment.
Our future operating results depend on a number of factors beyond our
control such as the prices for metals, which could cause our results to be
adversely affected.
The prices we pay for raw materials and the prices we charge for
products may change depending on many factors not in our control, including
general economic conditions (both domestic and international), competition,
production levels, import duties and other trade restrictions, and currency
fluctuations. To the extent metals prices decline, this generally would mean
lower sales and possibly lower net income, depending on the timing of the price
changes. To the extent we are not able to pass on to our customers any increases
in our raw materials prices, our results of operations may be adversely
affected.
We service industries that are highly cyclical, and any downturn in
our customers' industries could reduce our revenue and profitability which could
result in a negative impact on our stock price.
Many of our products are sold to industries that experience
significant fluctuations in demand based on economic conditions, energy prices,
consumer demand and other factors beyond our control. As a result of the
volatility in the industries we serve, we may have difficulty increasing or
maintaining our level of sales of profitability if we are not able to divert
sales of our products to customers in other industries when one or more of our
customers' industries experiencing a decline. Therefore, we may not be able to
increase or maintain its level of sales in periods of economic stagnation or
downturn.
The success of our business is affected by general economic
conditions, and, accordingly, our business has been and could continue to be
adversely impacted by an economic slowdown or recession.
Periods of economic slowdown or recession in the United States, or the
public perception that one may occur, can decrease the demand for our products,
affect the availability and cost of our products and adversely impact our
business. The current general economic slowdown has suppressed activity and
demand in our industry over the past several years. This has been reflected in
our financial losses in 2001 and 2002. Our overall financial results in 2003
will be substantially dependent upon the extent to which conditions in our
industry and the general economy improve during the remainder of the year. A
prolonged slowdown or slower than expected recovery will adversely affect our
business.
Production time and the cost of our products could increase if we were
to lose one of our primary suppliers, which could adversely affect our ability
to meet our customer demands.
If, for any reason, our primary suppliers of metals should curtail or
discontinue their delivery of such raw materials to us in the quantities we need
and at prices that are competitive, our business could suffer since we have few
long-term contracts to purchase metals. If, in the future, we are unable to
obtain sufficient amounts of the necessary raw materials at competitive prices
and on a timely basis from our traditional suppliers, we may not be able to
obtain such raw materials from alternative sources at competitive prices to meet
our delivery schedules, which could have an adverse impact on our revenues and
profitability.
Our industry is highly competitive, which may force us to lower our
prices thus causing an adverse affect on net income.
The principal markets that we serve are highly competitive.
Competition is based principally on price, service, quality, production
capabilities, inventory availability and timely delivery. We compete in a highly
fragmented industry. Competition in the various markets in which we participate
comes from a large number of value-added metals processors, service centers on a
regional and local basis, some of which have greater financial resources than we
do and some of which have more established brand names in the local markets we
serve. We also compete to a lesser extent with primary metals producers who
typically sell to very large customers requiring shipments of large volumes of
metal. Increased competition could force us to lower our prices or to offer
increased services at a higher costs to us, which could reduce our gross margins
and net income.
5
Ownership of our stock is concentrated, which may limit stockholder
ability to influence corporate matters.
Affiliates and family members of one of our directors, Michael W.
Simpson, collectively control over approximately 48% of our common stock (and
common obtainable upon conversion of preferred stock) through various estates,
partnerships, corporations, trusts and individual ownership, including, without
limitation, shares owned by Mr. Simpson, and shares controlled by various trusts
for which our director, Patrick J. Herbert, III, acts as trustee (collectively,
the "Related Entities"). This concentration of ownership retains the voting
power to substantially control the outcome of matters requiring a stockholder
vote, including the election of directors and the approval of significant
corporate matters. Such a concentration of control could adversely affect the
market price of our common stock or prevent a change in control. In addition,
the Related Entities, including without limitation, W.B. & Co. ("WB Co.") hold a
majority of the Company's outstanding Series A Cumulative Convertible Preferred
Stock, which gives the Related Entities the right, under the terms of the terms
of the Series A Cumulative Convertible Preferred Stock, to restrict the Company
from taking certain actions, including amending its certificate of incorporation
or bylaws in a manner adverse to the rights of the Series A Cumulative
Convertible Preferred Stock, paying or declaring dividends on or redeeming
common stock or issuing any capital stock senior in right of liquidation or
dividends to the Series A Cumulative Convertible Preferred Stock. These consent
rights impose further control upon the Company and may prevent the Company from
taking actions in the interest of the Common Stock.
Trading volume of our stock is small which increases the volatility of
our stock price, which may have an adverse affect on stockholder's investment.
Although a public market exists for our common stock, trading activity
has been limited. Due to the relatively small number of shares currently
outstanding, the trading of a relatively small number of shares could subject
the stock price to volatility and significantly affect the market price of our
common stock. The market price of our common stock is affected by a number of
other factors, including variations in our operating results, evolving business
prospects and competitors, as well as general conditions in the economy and the
financial markets. Also, the equity markets generally have experienced
significant price and volume fluctuations in recent years.
We have various mechanisms in place that may prevent a change in
control that stockholders may otherwise consider favorable.
In addition to the high concentration of inside ownership described
above, our certificate of incorporation and by-laws and the Maryland General
Corporation Law include provisions that may be deemed to have antitakeover
effects and may delay, defer or prevent a takeover attempt that stockholders
might consider in their best interests. Our certificate of incorporation
contains provisions that require the approval of two-thirds of the stockholders
entitled to vote to amend our certificate of incorporation (unless our Board of
Directors has unanimously approved the amendment). In addition, our by-laws may
be amended only by our board of directors, and they contain certain advance
notice procedures for nominating candidates for election to the board of
directors. Our board of directors is empowered to issue up to 10,000,000 shares
of preferred stock and to determine the price, rights, preferences and
privileges of such shares, without any further stockholder action. The existence
of this "blank-check" preferred stock could make more difficult or discourage an
attempt to obtain control of the Company by means of a tender offer, merger,
proxy contest or otherwise. In addition, this "blank check" preferred stock, and
an issuance thereof, may have an adverse effect on the market price of our
common stock. Furthermore, we are subject to the antitakeover provisions of the
Maryland General Corporation Law that prohibit us from engaging in a "business
combination" with an "interested stockholder" for a period of five years after
the date of the transaction in which the person first becomes an "interested
stockholder," unless the business combination or stockholder interest is
approved in a prescribed manner. The application of these and certain other
provisions of the certificate of incorporation could also have the effect of
delaying or preventing a change of control of the Company, which could adversely
affect the market price of our common stock.
6
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of
common stock covered by this prospectus. All of the proceeds will be received by
the Selling Stockholders. A total of 1,793,722 of the shares offered hereby are
shares obtainable by certain Selling Stockholders upon conversion of all
outstanding shares of our Series A Cumulative Convertible Preferred Stock,
together with an additional 298,000 shares assuming the conversion of two years'
of accrued dividends at 8% per annum. The Series A Cumulative Convertible
Preferred Stock has an aggregate liquidation preference equal to $12,000,000,
and accrues dividends (whether or not declared) at the per annum rate of 8%. To
the extent that the Selling Stockholders convert their shares of Series A
Cumulative Convertible Preferred Stock into shares of common stock sold
hereunder, we will benefit from the elimination of the liquidation preference
and dividend obligation with respect to all shares so converted.
SELLING STOCKHOLDER
We are registering shares of common stock for sale by those persons
and entities identified in the table set forth below (individually, a "Selling
Stockholder" and collectively, the "Selling Stockholders").
On November 22, 2002, we issued a total of 12,000 shares of Series A
Cumulative Convertible Preferred Stock to a group of existing stockholders for a
total purchase price of $12,000,000 (the "Preferred Transaction"). The Series A
Cumulative Convertible Stock accrues a preferential dividend at the per annum
rate of 8%. The Series A Cumulative Convertible Preferred is convertible by
dividing the purchase price thereof plus accrued dividend by the conversion
price of $6.69 per share. Of the shares offered hereby, 1,793,722 represent the
shares issuable upon conversion of all outstanding Series A cumulative
Convertible Preferred, and an additional 298,000 represent the conversion of an
assumed two years' of accrued dividends. Depending on the amount and timing of
conversion and sale, the accrued dividends and resulting number of conversion
shares of common stock available for sale hereunder may be less.
A total of 17,937 of the shares offered hereby represent shares issued
by us to William Blair & Co., LLC in consideration for services rendered in
connection with the Preferred Transaction.
The remaining 700,336 shares offered hereby are held by the A. M.
Employee's Trust, U/T/A 12/28/50, subtrust under the Master Trust Agreement
between A. M. Castle & Co. and Northern Trust Company, dated as of January 1,
1997, which we refer to herein as the "Trust." The Trust will receive all
proceeds from the share offered hereby under the A. M. Castle & Co. Salaried
Employees Pension Plan (the "Salaried Plan") and the A. M. Castle & Co. Hourly
Employees Retirement Plan (the "Hourly Plan" and collectively with the Salaried
Plan, the "Plans"), for the benefit of eligible participants under the Plans.
The following table sets forth, for each Selling Stockholder, the
number of shares beneficially owned by such Selling Stockholder prior to this
offering, the maximum number of shares offered hereby and the number of shares
beneficially owned by such Selling Stockholder after this offering, assuming
that all of the shares offered hereby are in fact sold by such Selling
Stockholder.
Selling Stockholder Number of Shares Number of Shares Number of Shares Percentage of
------------------- Owned Prior to Being Offered(1) After Offering Class After
Offering(1) ------------- -------------- Offering
-------- --------
A. M. Employee's Trust, 1,622,562 700,336 922,226 9.07%
U/T/A 12/28/50, subtrust
under the Master Trust
Agreement between A. M.
Castle & Co. and Northern
Trust Company, dated as of
January 1, 1997 (2)
William Blair & Co., LLC 17,937 17,937 -0- 0.1%
WB Co. 6,167,326 (3)(4) 2,091,722 (4) 4,075,604 34.39%
7
(1) The shares owned and offered hereby shall include, in addition to
the numbers indicated, any additional shares of our Common Stock that become
issuable by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration that results
in an increase in the number of outstanding shares of our Common Stock.
(2) Of the shares held by the Trust, 1,210,067 are held by the Trust
on behalf of the Salaried Plan and 412,495 shares are held by the Trust on
behalf of the Hourly Plan. The trustee has responsibility to prudently manage
the common stock held by the Trust on behalf of each of the Plans a manner
consistent with maximizing the value of its investment in common stock and in
accordance with its determination of the extent to which it may prudently
continue to hold such shares consistent with the diversification and related
fiduciary requirements of ERISA. The trustee has the authority to cause the
Trust to sell shares of common stock on behalf of the Plans from time to time as
it may deem appropriate, and to vote the shares of common stock held by the
Trust on behalf of the Plans. The trustee intends to manage the sale of the
common stock in a manner consistent with maintaining an orderly market for the
shares. The Trustee intends to allocate sales of common stock between the Plans
in such manner as it deems to be in the best interests of each respective Plan.
The trustee has retained GreatBanc Trust Company to serve as its investment
advisor regarding the management and sale of the common stock offered hereby.
The compensation received by the trustee and its investment advisor is not
contingent in any way on the sale or continued ownership of common stock by the
Trust.
(3)Holds no shares for its own benefit, 4,060,904 shares as nominee
for Simpson Estates, Inc. and the remainder as nominee for other individuals and
entities that are affiliates and/or family members of our director, Michael W.
Simpson. Such individuals and entities may hereafter offer the shares held by
them directly pursuant to the Plan of Distribution. However, WB Co. currently
maintains dispositive power over all shares offered hereby that are obtainable
upon conversion of the Preferred Stock. Several of such entities are trusts of
which our director, Patrick J Herbert, III, acts as trustee.
(4)The shares owned and offered hereby assume that all 12,000
outstanding shares of its Series A Cumulative Convertible Preferred Stock is
ultimately convertible for (and is in fact converted into) the maximum number of
possible shares of Common Stock, and assumes 298,000 additional shares upon the
conversion of accrued dividends over two years.
PLAN OF DISTRIBUTION
The Selling Stockholders are offering for resale under this prospectus
an aggregate of up to 2,809,995 shares of our common stock. The Selling
Stockholders, or their assignees and successors-in-interest may sell, from time
to time, any or all of the shares of common stock covered by this prospectus on
any stock exchange, market or trading facility on which the shares are traded or
in private transactions. These sales may be at fixed or negotiated prices. The
Selling Stockholders may use any one or more of the following methods when
selling shares:
o Sales on the Chicago Stock Exchange or the American Stock Exchange, 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;
o Underwritten offerings;
o Ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o Block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o Purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o An exchange distribution in accordance with the rules of the
applicable exchange;
o Privately negotiated transactions;
o Short sales;
o Broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
8
o A combination of any such methods of sale; or
o Any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 as
promulgated under the Securities Act of 1933, if available, rather than under
this prospectus.
The Selling Stockholders may, together with any agent of the Selling
Stockholders, accept or reject in whole or in part any proposed purchase of the
shares of common stock offered by this prospectus. We will not receive any
proceeds from the offering of shares by the Selling Stockholders.
Under applicable rules and regulations under the Securities Exchange
Act of 1934, any person engaged in a distribution of the shares of common stock
covered by this prospectus may be limited in its ability to engage in market
activities with respect to such shares. The Selling Stockholders, for example,
will be subject to applicable provisions of the Securities Exchange Act of 1934
and the rules and regulations under it, including, without limitation,
Regulation M, which provisions may restrict activities of the Selling
Stockholders and limit the timing of purchases and sales of any shares of common
stock by the Selling Stockholder. Furthermore, under Regulation M, persons
engaged in a distribution of securities are prohibited from simultaneously
engaging in market making and other activities with respect to such securities
for a specified period of time prior to the commencement of such distributions,
subject to specified exceptions or exemptions. The foregoing may affect the
marketability of the shares offered by this prospectus.
The Selling Stockholders may also engage in short sales against the
box (where the seller actually owns the stock, but does not want to close out
the position, but instead sells a put option covered by the retained position),
puts (an option giving the holder of the option the right to sell the stock at a
given price by a given date) and calls (the opposite of a put, a call is an
option that gives the holder the right to buy stock at a given price in a given
period of time) and other transactions in our securities or derivatives of our
securities and may sell or deliver shares in connection with these trades. The
Selling Stockholders may pledge their shares to brokers under the margin
provisions of customer agreements or other lenders under the terms of the loan
agreements. If the Selling Stockholders default on a margin loan or other loan,
the broker or lender may offer and sell, from time to time, the pledged shares.
The Selling Stockholders may sell shares directly to market makers
acting as principals and/or broker-dealers acting as agents for themselves or
their customers. Broker-dealers engaged by the Selling Stockholders may arrange
for other broker-dealers to participate in sales. Broker-dealers may receive
commissions, concessions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated. The Selling Stockholders do not expect these
commissions and discounts to exceed what is customary in the types of
transactions involved. Market makers and block purchasers that purchase the
shares will do so for their own account and at their own risk. It is possible
that the Selling Stockholders will attempt to sell shares in block transactions
to market makers or other purchasers at a price per share that may be below the
then-current market price. We cannot make assurances that all or any of the
shares of common stock will be sold by the Selling Stockholders.
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be underwriters within the
meaning of the Securities Act of 1933 in connection with such sales. In such
event, any commissions received by such broker-dealers or agents and any profit
on the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933.
We have not registered or qualified the shares of common stock offered
by this prospectus under the laws of any country, state or jurisdiction, other
than the United States.
Certain of the Selling Stockholders have agreed to indemnify such
broker-dealers with respect to the shares offered hereby against certain
liabilities, including certain liabilities under the Securities Act. In
addition, the Company has agreed to indemnify such Selling Stockholders with
respect to the shares offered hereby against certain liabilities, including
certain liabilities under the Securities Act or, if such indemnify is
unavailable, to contribute toward amounts required to be paid in respect of such
liabilities.
The Company will pay the registration expenses incident to the
offering and sale of the shares by the Selling Stockholders to the public. Such
expenses (estimated to be $15,000) include legal and accounting expenses, filing
fees payable to the Commission, applicable state "blue sky" filing fees and
printing expenses. The Company, however, will not pay for any expenses,
commissions or discounts of underwriters, dealers or agents for any of the
Selling Stockholders.
9
Our common stock is currently traded on the Chicago Stock Exchange and
the American Stock Exchange. The public offering price for any shares that are
sold will be determined by the price indicated on such system at the time such
sale occurs, or at such price as shall be determined through private
negotiations between the buyers and the Selling Stockholders, or their agents.
VALIDITY OF STOCK
Jerry M. Aufox, Secretary and Corporate Counsel of A.M. Castle, has
issued an opinion about the validity of the shares of common stock offered
hereby. Mr. Aufox is the beneficial owner of 22,422 shares of common stock.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from our Annual Report on Form 10-K
for the year ended December 31, 2002 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report (which report expresses an
unqualified opinion and includes an explanatory paragraph relating to the
Company's change in its method of accounting for goodwill and intangible assets
upon adoption of Statement of Financial Accounting Standards No. 142, "Goodwill
and Other Intangible Assets"), which is incorporated herein by reference, and
have been so incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable by us in
connection with the sale of our common stock being registered hereby. All the
amounts shown are estimated, except the Securities Exchange Commission
registration fee.
SEC registration fee........................$1,136.64
Printing expenses.................................500
Legal fees and expenses.........................5,000
Accounting fees and expenses....................5,000
Miscellaneous expenses.......................3,363.36
Total $ 15,000
Item 15. Indemnification of Directors and Officers.
We are a Maryland corporation, subject to the applicable
indemnification provisions of the General Corporation Law of the State of
Maryland (the "MGCL"). Section 2-418 of the MGCL empowers a Maryland corporation
to indemnify, subject to certain prescribed standards, any person in connection
with any action, suit or proceeding brought or threatened because such person is
or was a director, officer, employee or agent of the corporation or was serving
as such with respect to another corporation or other entity at the request of
such corporation.
Section 2-405.2 of the MGCL permits a Maryland corporation to include
in its certificate of incorporation a provision eliminating or limiting a
director's liability to a corporation or its stockholders for money damages. A
Maryland corporation may indemnify its present and former directors and
officers, among others, against (1) judgments, (2) penalties, (3) fines, (4)
settlements and (5) reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by reason of their service
in those or other capacities.
The MGCL does not permit a corporation to indemnify its present and
former directors, officers, agents or employees if it is established that:
o the act or omission of the director, officer, employee or agent was
material to the matter giving rise to the proceeding and was committed in
bad faith or was the result of active and deliberate dishonesty;
o the director, officer, employee or agent actually received an improper
personal benefit in money, property or services; or
o in the case of any criminal proceeding, the director, officer, employee or
agent had reasonable cause to believe that the act or omission was
unlawful.
Unless a corporation's charter provides otherwise, which our charter
does not, the MGCL requires a corporation to indemnify a director or officer who
has been successful, on the merits or otherwise, in the defense of any
proceeding to which he is made a party by reason of his service in that
capacity.
Under the MGCL, a Maryland corporation generally may not indemnify a
person for an adverse judgment in a suit by or in the right of the corporation.
Also, a Maryland corporation generally may not indemnify a person for a judgment
of liability on the basis that personal benefit was improperly received. In
either of these cases, a Maryland corporation may indemnify a person for
expenses only if a court so orders. Our bylaws obligate us to indemnify our
directors and officers, whether serving us or, at our request, any other entity,
to the maximum extent required or permitted by the MGCL, including the
advancement of expenses under the procedures and to the maximum extent permitted
by law.
Our charter also contains provisions that eliminate and limit the
personal liability of directors to the full extent permitted by the MGCL.
Pursuant to the MGCL, our charter also limits the personal liability of officers
to the same extent as directors. Under the MGCL, limitation of personal
liability of directors or officers is permitted in all but the following two
situations: (1) for the amount of any improper benefit they actually receive or
(2) to the extent that a judgment or final adjudication adverse to the director
or officer in a proceeding based on the finding in that proceeding that the
person's action, or failure to act, was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding.
We may maintain insurance, at our expense, to protect us and any of
our directors, officers, employees or agents or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not we would have the power to indemnify such
person against expense, liability or loss under the MGCL.
Item 16. Exhibits.
(a) Exhibits (all filed herewith except where otherwise noted):
3.1 Articles of Incorporation (1)
3.2 Bylaws (1)
4.1 Series A Cumulative Convertible Preferred Stock Purchase
Agreement, dated November 22, 2002 (2)
4.2 Articles Supplementary--Series A Cumulative Convertible
Preferred Stock (2)
4.3 Registration Rights Agreement, dated November 22, 2002 (2)
5.1 Opinion of Jerry M. Aufox, General Counsel, regarding the
legality of the securities being registered
23.1 Consent of Deloitte & Touche LLP, independent auditors
23.2 Consent of Jerry M. Aufox (included in Exhibit 5.1)
24 Powers of Attorney (page II-4)
--------------------
(1) Incorporated by reference to the Company's Definitive Proxy Statement on
Form 14A filed on Mrch 15, 2002.
(2) Incorporated by reference to Item 7 to the Company's Current Report on Form
8K filed on December 2, 2002.
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 pursuant
to Rule 424(b) under the Securities Act of 1933, as amended, 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 registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in 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 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, as amended, 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, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933, as amended, and is, therefore, unenforceable. In
the event that a claim for the indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Franklin Park, State of Illinois, on July 1,
2003.
A. M. CASTLE & CO.
BY: /s/
--------------------------------
G. Thomas McKane
President &
Chief Executive Officer
The undersigned officers and directors of A. M. Castle & Co. hereby
severally constitute and appoint G. Thomas McKane and Jerry M. Aufox, and each
of them, our true and lawful attorneys and agents, with full power, to sign for
us and in our names in the capacities indicated below, the Registration
Statement on Form S-3 filed herewith and any and all pre-effective and
post-effective amendments to said Registration Statement, and generally to do
all such things in our names and on our behalf in our capacities as officers and
directors to enable A. M. Castle & Co. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, to said Registration Statement and any and all
amendments thereto.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY OR ON BEHALF OF
THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
--------- ----- ----
/s/ G. THOMAS MCKANE President & Chief Executive Officer (Principal July 1, 2003
----------------------------- Executive Officer) and Director
G. Thomas McKane
/s/ EDWARD F. CULLITON Principal Financial and July 1, 2003
----------------------------- Accounting Officer and Director
Edward F. Culliton
/s/ ROBERT W. GRUBBS Director July 1, 2003
-----------------------------
Robert W. Grubbs
/s/ WILLIAM K. HALL Director July 1, 2003
-----------------------------
William K. Hall
/s/ ROBERT S. HAMADA Director July 1, 2003
-----------------------------
Robert S. Hamada
/s/ PATRICK J. HERBERT, III Director July 1, 2003
-----------------------------
Patrick J. Herbert, III
/s/ JOHN P. KELLER Director July 1, 2003
-----------------------------
John P. Keller
/s/ JOHN W. MCCARTER, JR. Director July 1, 2003
-----------------------------
John W. McCarter, Jr.
/s/ JOHN MCCARTNEY Director July 1, 2003
-----------------------------
John McCartney
/s/ JOHN W. PUTH Director July 1, 2003
-----------------------------
John W. Puth
/s/ MICHAEL SIMPSON Director July 1, 2003
-----------------------------
Michael Simpson