As filed with the Securities and Exchange Commission on April 30, 2002
Registration Statement No. 333-
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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 of (I.R.S. Employer
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, $0.01 685,190 $11.23 $7,694,684 $708.00
(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 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 April 26, 2002.
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 April 30, 2002.
685,190 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
685,190 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 and Offering Price." 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 April 26, 2002, the last reported sale
price of the common stock was $11.10.
See "Risk Factors" beginning on page 3 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 [_________], 2002
TABLE OF CONTENTS
Page
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AVAILABLE INFORMATION........................................................2
A.M. CASTLE & CO.............................................................3
RECENT DEVELOPMENTS..........................................................3
RISK FACTORS.................................................................3
USE OF PROCEEDS..............................................................6
SELLING STOCKHOLDER..........................................................7
PLAN OF DISTRIBUTION AND OFFERING PRICE......................................7
VALIDITY OF STOCK............................................................8
EXPERTS......................................................................9
INFORMATION INCORPORATED BY REFERENCE.....................................II-1
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, New York, NY or
Chicago, IL. 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) Proxy Statement of A. M. Castle & Co. for the Annual Meeting of
Stockholders to be held on April 25, 2002, filed on March 14, 2002;
(b) Annual Report on Form 10-K of A. M. Castle & Co. for the fiscal
year ended December 31, 2001, filed on March 14, 2002; and
(c) 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.
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.
2
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.
A. M. CASTLE & CO.
We are a distributor of Ferrous and non-Ferrous highly engineered
material and value-added services to a wide range of industrial companies within
the $700 billion 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 is essential.
Our customer base includes many Fortune 500 companies as well as
thousands of medium and smaller sized companies spread across the entire
spectrum of metal using industries. We maintain a diverse customer base with no
significant geographical or customer concentration. Within our core specialty
metals business 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 the 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.
RECENT DEVELOPMENTS
During the first quarter of 2002, we announced a voluntary stock option exchange
program, or Offer, for our employees. Under the program, our employees had the
opportunity, if they so chose, to elect to cancel outstanding stock options held
by them in exchange for new options to be granted at a future date at the then
current fair market value. The number of new options granted to an employee who
participates in the Offer will equal one half of the number of outstanding stock
options tendered by such employee. The Offer remained outstanding until 5:00
p.m., on March 22, 2002. A total of 55 individuals elected to participate in the
Offer. These individuals tendered a total of 305,759 options to purchase common
stock in return for our promise to grant new options on the grant date of
September 27, 2002.
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
fluctuate over time.
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.
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, no assurance can be
given that we will be able to increase or maintain its level of sales in periods
of economic stagnation or downturn.
3
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 2000 and 2001. Our overall financial results in 2002
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.
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.
We are subject to environmental regulations and may incur substantial
environmental control and remediation costs
We are subject to federal, state and local environmental laws and
regulations concerning emissions into the air, discharges into waterways and the
generation, handling and disposal of waste materials. If there are changes in
these environmental regulations, we may incur substantial compliance costs.
Additionally, if new environmental issues requiring corrective measures are
discovered in the future, taking necessary corrective measures may increase
capital and operating costs which could result in a material adverse effect on
our earnings and competitive position.
Our industry is highly competitive.
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.
Ownership of our stock is concentrated.
Affiliates and family members of one of our directors, Michael W.
Simpson, collectively control over approximately 35% of our common stock through
various estates, partnerships, corporations, trusts and individual ownership.
This includes, without limitation, shares owned by Mr. Simpson, and shares
controlled by various trusts for which our director, Patrick J. Herbert, III,
acts as trustee. This concentration of ownership retains the voting power to
exercise significant influence over 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.
4
Dependence upon key personnel.
Our continued success will depend to a large extent upon the abilities
and continued efforts of our senior management and upon our ability to attract
and retain highly qualified personnel, including personnel associated with
businesses acquired by the company. The loss of key members of our management
team could adversely affect our results of operations and future growth
prospects.
Volatility of stock price; limited public float.
The market price of our common stock is affected by a number of
factors, including limited trading volume, 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. The
volatility can impact significantly the stock price of many companies for
reasons subject to unrelated to their performance.
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.
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.
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.
5
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 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" or the "Selling
Stockholder." The Trust will receive all offering proceeds 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. See "Selling Stockholder."
SELLING STOCKHOLDER
The Trust owns all of the shares offered hereby. Northern Trust
Company is the trustee for the Trust. 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.
The Trust beneficially owns 685,190 shares of common stock,
representing approximately 4.8% of our outstanding common stock. Of these
shares, 520,173 are held by the Trust on behalf of the Salaried Plan and 165,017
shares are held by the Trust on behalf of the Hourly Plan.
PLAN OF DISTRIBUTION AND OFFERING PRICE
The Selling Stockholder is offering for resale under this prospectus
an aggregate of 550,055 shares of our common stock. The Selling Stockholder, or
its 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
Stockholder 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 Stockholder to sell a
specified number of such shares at a stipulated price per share;
o A combination of any such methods of sale; or
o Any other method permitted pursuant to applicable law.
6
The Selling Stockholder may also sell shares under Rule 144 as
promulgated under the Securities Act of 1933, if available, rather than under
this prospectus.
The Selling Stockholder may, together with any agent of the Selling
Stockholder, 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 Stockholder.
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 Stockholder, 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
Stockholder 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 Stockholder may also engage in short sales against the
box, puts and calls and other transactions in our securities or derivatives of
our securities and may sell or deliver shares in connection with these trades.
The Selling Stockholder may pledge its shares to brokers under the margin
provisions of customer agreements or other lenders under the terms of the loan
agreements. If the Selling Stockholder defaults on a margin loan or other loan,
the broker or lender may offer and sell, from time to time, the pledged shares.
The Selling Stockholder 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 Stockholder 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 Stockholder does 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 Stockholder 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 Stockholder 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.
We are paying all fees and expenses incident to the registration of
the shares. The Selling Stockholders will pay any sales commissions or other
seller's compensation applicable to these transactions.
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 Stockholder, or its agents.
VALIDITY OF STOCK
Jerry M. Aufox, Secretary and Corporate Counsel of A.M. Castle, will
issue 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.
7
EXPERTS
The financial statements of A. M. Castle & Co. as of December 31, 2001
and 2000, and for each of the three years in the period ended December 31, 2001,
incorporated in this registration statement by reference to the Annual Report on
Form 10-K of A. M. Castle & Co. for the year ended December 31, 2001, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, and are included herein in reliance upon the
authority of that firm as experts in accounting and auditing.
8
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....................$725
Printing expenses........................-0-
Legal fees and expenses...............10,000
Accounting fees and expenses...........3,275
Miscellaneous expenses................15,000
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.
II-1
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:
5 Opinion of Jerry M. Aufox regarding the legality of the
securities being registered
23.1 Consent of Arthur Andersen LLP, independent auditors
23.2 Consent of Jerry M. Aufox (included in Exhibit 5)
24 Powers of Attorney (included on the signature page)
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;
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(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.
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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 April 30, 2002.
A. M. CASTLE & CO.
BY: /s/ G. THOMAS MCKANE
--------------------------------
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 THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
--------- ----- ----
/s/ G. THOMAS MCKANE President & Chief Executive April 30, 2002
----------------------------- Officer (Principal Executive
G. Thomas McKane Officer) and Director
/s/ EDWARD F. CULLITON Principal Financial and April 30, 2002
----------------------------- Accounting Officer and
Edward F. Culliton Director
/s/ ROBERT W. GRUBBS Director April 30, 2002
-----------------------------
Robert W. Grubbs
/s/ WILLIAM K. HALL Director April 30, 2002
-----------------------------
William K. Hall
/s/ ROBERT S. HAMADA Director April 30, 2002
-----------------------------
Robert S. Hamada
/s/ PATRICK J. HERBERT, III Director April 30, 2002
-----------------------------
Patrick J. Herbert, III
/s/ JOHN P. KELLER Director April 30, 2002
-----------------------------
John P. Keller
/s/ JOHN W. MCCARTER, JR. Director April 30, 2002
-----------------------------
John W. McCarter, Jr.
/s/ JOHN MCCARTNEY Director April 30, 2002
-----------------------------
John McCartney
/s/ JOHN W. PUTH Director April 30, 2002
-----------------------------
John W. Puth
/s/ MICHAEL SIMPSON Director April 30, 2002
-----------------------------
Michael Simpson
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