As filed with the Securities and Exchange Commission on
April 5, 2006
File
No.
333-129830
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 7
to
FORM
S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENERAL FINANCE CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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6770
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32-0163571
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(State or other jurisdiction of incorporation or
organization)
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(Primary Standard Industrial Classification Code Number)
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(I.R.S. Employer Identification Number)
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260 S. Los Robles, Suite 217
Pasadena, CA 91101
(626) 795-0040
(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
Ronald F. Valenta,
Chief Executive Officer
260 S. Los Robles, Suite 217
Pasadena, CA 91101
(626) 584-9722
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
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Alan B. Spatz, Esq.
Troy & Gould P.C.
1801 Century Park East, Suite 1600
Los Angeles, California 90067
(310) 553-4441
(310) 201-4746 Facsimile
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Joel L. Rubinstein, Esq.
Philip R. Weingold, Esq.
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10017
(212) 547-5400
(212) 547-5444 Facsimile
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after the effective date of
this registration statement.
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 check the
following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
Explanatory Note
The sole purpose of this Amendment
No. 7 to the Registration Statement on Form S-1
(No. 333-129830) is to amend and restate Part II,
Item 16 (Exhibits and Financial Statement Schedules), and to
file Exhibit 3.1 Amended and Restated Certificate of Incorporation.
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Item 16.
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Exhibits and Financial Statement Schedules.
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(a) The following exhibits are filed as part of this
Registration Statement:
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Exhibit No.
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Description
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1
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.1
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Form of Underwriting Agreement.*
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3
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.1
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Amended and Restated Certificate of Incorporation.
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3
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.2
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By-laws.*
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4
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.1
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Specimen Unit Certificate.*
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4
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.2
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Specimen Common Stock Certificate.*
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4
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.3
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Specimen Warrant Certificate.*
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4
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.4
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Form of Unit Purchase Option to be granted to Morgan
Joseph & Co.*
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4
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.5
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Form of Warrant Agreement between Continental Stock
Transfer & Trust Company and the Registrant.*
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5
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.1
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Opinion of Troy & Gould P.C.*
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10
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.1
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Amended and Restated Letter Agreement dated March 3, 2006
among the Registrant, Morgan Joseph & Co., and each of
David M. Connell, Lawrence Glascott, Manuel Marrero, James B.
Roszak, John O. Johnson and Marc Perez. Amended and Restated
Letter Agreement dated March 3, 2006 among the Registrant,
Morgan Joseph & Co. Inc. and Ronald F. Valenta.*
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10
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.2
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Form of Investment Management Trust Agreement between
Continental Stock Transfer & Trust Company and the
Registrant.*
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10
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.3
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Form of Stock Escrow Agreement between the Registrant,
Continental Stock Transfer & Trust Company and the
existing stockholders.*
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10
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.4
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Third Amended and Restated Revolving Line of Credit Agreement,
dated as of February 3, 2005 by and between the Registrant
and Ronald F. Valenta.*
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10
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.5
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Amended and Restated Registration Rights Agreement dated
March 3, 2006 by and between the Registrant and each of
Ronald F. Valenta, John O. Johnson, Marc Perez, Lawrence
Glascott, David M. Connell, Manuel Marrero and James B. Roszak.*
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10
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.6
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Form of Amended and Restated Warrant Purchase Agreement by and
between Morgan Joseph & Co., Ronald F. Valenta and
John O. Johnson.*
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10
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.7
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Form of Indemnification Agreement by and between the Registrant
and each of Ronald F. Valenta, John O. Johnson, Marc Perez,
Lawrence Glascott, David M. Connell, Manuel Marrero and James B.
Roszak.*
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10
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.8
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Private Placement Warrant Purchase Agreement dated
March 22, 2006 by and among Registrant, Morgan
Joseph & Co. Inc., Ronald F. Valenta and
John O. Johnson.*
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14
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.1
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Code of Ethics.*
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23
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.1
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Consent of LaRue, Corrigan & McCormick LLP.*
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23
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.2
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Consent of Troy & Gould P.C. (included in
Exhibit 5.1)*
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24
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Power of Attorney*
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on
the 4th day of April, 2006.
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GENERAL FINANCE CORPORATION
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By:
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/s/ Ronald F. Valenta
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Ronald F. Valenta
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Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
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Name
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Position
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Date
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/s/ Ronald F. Valenta
Ronald F. Valenta
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Chief Executive Officer, Chief Financial Officer and Director
(Principal Executive, Financial and Accounting Officer)
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April 4, 2006
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*
James B. Roszak
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Director
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April 4, 2006
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*
Lawrence Glascott
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Director
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April 4, 2006
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*
Manuel Marrero
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Director
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April 4, 2006
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David M. Connell
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Director
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April 4, 2006
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*By:
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/s/ Ronald F. Valenta
Ronald F. Valenta, Attorney-in-fact
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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GENERAL FINANCE CORPORATION
General Finance Corporation, a corporation duly organized and existing under the General
Corporation Law of the State of Delaware (GCL), does hereby certify:
The original Certificate of Incorporation of General Finance Corporation was filed with the
Secretary of State of Delaware on October 14, 2005. The Amended and Restated Certificate of
Incorporation of General Finance Corporation was filed with the Secretary of State of Delaware on
March 6, 2006. This Amended and Restated Certificate of Incorporation amends and restates said
Amended and Restated Certificate of Incorporation. In accordance with Section 245 of the GCL
pursuant to a resolution proposed by its Board of Directors and adopted by its stockholders in the
manner and by the vote prescribed by Section 242 of the GCL, General Finance Corporation hereby
adopts the following Amended and Restated Certificate of Incorporation:
FIRST:
The name of the corporation is General Finance Corporation (hereinafter
sometimes referred to as the Corporation).
SECOND:
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle, Delaware 19801. The name of the Corporations registered agent in the State of Delaware is
The Corporation Trust Company.
THIRD:
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized under the GCL.
FOURTH:
The total number of shares of all classes of capital stock that the
Corporation shall have authority to issue is 101,000,000 of which 100,000,000 shares shall be
common stock of the par value of $.0001 per share (Common Stock) and 1,000,000 shares shall be
preferred stock (Preferred Stock) of the par value of $.0001 per share.
A.
Preferred Stock
. The Board of Directors is expressly granted authority
to issue shares of the Preferred Stock, in one or more series, and to fix for each such series such
voting powers, full or limited, and such designations, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or restrictions thereof as
shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a Preferred Stock Designation) and as may be permitted by
the GCL. The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting together as a single
class, without a separate vote of the holders of the Preferred Stock, or any series thereof,
unless a vote of any such holders is required pursuant to any Preferred Stock Designation.
B.
Common Stock
. Except as otherwise required by law or as otherwise
provided in any Preferred Stock Designation, the holders of the Common Stock shall exclusively
possess all voting power and each share of Common Stock shall have one vote.
FIFTH:
The name and mailing address of the sole incorporator of the Corporation
are as follows:
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Name
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Address
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Linda Kaufman
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Troy & Gould PC
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1801 Century Park East, Suite 1600
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Los Angeles, CA 90067-2367
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SIXTH:
A. For purposes of this Article Sixth and Article Seventh, the following terms shall have
the following meanings:
(i) Business Combination shall mean the first merger, capital stock exchange,
asset or stock acquisition or other similar type business combination between the Corporation and
an operating business or businesses.
(ii) Distribution Date shall mean the date which is 18 months after the
effective date of the Registration Statement or if a letter of intent, an agreement in principle or
a definitive agreement to complete a Business Combination shall have been executed but shall not
have been consummated within such 18-month period, then the date that is 24 months after the
effective date of the Registration Statement.
(iii) IPO shall mean the initial public offering by the Corporation of Common
Stock (with or without other securities) pursuant to a registration statement filed with and
declared effective by the Securities and Exchange Commission under the Securities Act.
(iv) IPO Shares shall mean the shares of Common Stock issued by the Corporation
in the IPO, excluding any shares of Common Stock issued upon exercise of warrants issued in the
IPO.
(v) Registration Statement shall mean the registration statement filed with and
declared effective by the Securities and Exchange Commission under the Securities Act for the IPO.
(vi) Securities Act shall mean the Securities Act of 1933, as amended.
(vii) Trust Account shall mean the trust account established by the Corporation
into which the Corporation shall deposit a portion of the net proceeds of the IPO, which proceeds
will be distributed either to (A) the Corporation and any holders of IPO Shares exercising their
rights under paragraph C of this Article Sixth if the Company consummates the
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Business Combination on or prior to the Distribution Date or (B) the holders of the IPO Shares
if the Company does not consummate the Business Combination on or prior to the Distribution Date.
B. The Corporation may not consummate the Business Combination: (i) without (a)
submitting the proposed Business Combination to its stockholders for approval, regardless of
whether stockholder approval is required under the GCL; and (b) the approval of the holders of a
majority of the IPO Shares that are voted on the proposed Business Combination by the holders of
the IPO Shares; or (ii) if the holders of 20% or more of the IPO Shares vote against the Business
Combination and give notice of exercise of their conversion rights described in paragraph C of this
Article Sixth.
C. If the conditions to the Business Combination under paragraph B of this Article
Sixth above are met and the Corporation consummates the Business Combination, any holder of IPO
Shares who voted against the Business Combination and contemporaneously with such vote properly
demanded, in accordance with procedures established by the Corporation, that the Corporation
convert such holders IPO Shares into cash from the Trust Account, shall be entitled to receive,
promptly after consummation of the Business Combination, in exchange for such holders IPO Shares
and against delivery of such IPO Shares, cash at a per share exchange price equal to the quotient
determined by dividing (i) the amount in the Trust Account immediately prior to the Business
Combination, inclusive of any interest thereon (net of taxes on such interest), calculated as of
two business days prior to the consummation of the Business Combination, by (ii) the total number
of IPO Shares.
D. A holder of IPO Shares shall be entitled to receive distributions from the
Trust Account only in the event the Corporation does not consummate the Business Combination on or
prior to the Distribution Date or in the event such holder demands conversion of his shares in
accordance with paragraph C of this Article Sixth. In no other circumstances shall a holder of IPO
Shares have any right or interest of any kind in or to the Trust Account.
E. This Article Sixth may not be amended after the initial closing of the IPO and
prior to the consummation of the Business Combination without the vote or written consent of
holders of not less than 100% of the outstanding shares of Common Stock of the Corporation.
F. This Article Sixth shall be effective commencing on the initial closing of the
IPO and shall terminate upon the earlier to occur of the consummation of a Business Combination and
date on which the Trust Account is liquidated.
SEVENTH:
If the Corporation does not consummate a Business Combination on or prior
to the Distribution Date, the officers of the Corporation shall take all such actions necessary to
dissolve and liquidate the Corporation as soon as reasonably practicable.
EIGHTH:
The number of directors constituting the entire Board of Directors shall
not be less than three, with the exact number to be fixed from time to time by a resolution adopted
by the Board of Directors. Subject to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, the Board of Directors shall be divided
into three classes: Class A, Class B and Class C. The number of directors in each class shall be
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as equal as possible. Directors in office prior to the first annual meeting of stockholders
shall be assigned to each class in accordance with a resolution adopted by the Board of Directors.
The directors in Class A shall serve for a term expiring at the first annual meeting of
stockholders; the directors in Class B shall serve for a term expiring at the second annual meeting
of stockholders; and the directors in Class C shall serve for a term expiring at the third annual
meeting of stockholders. Commencing at the first annual meeting of stockholders, and at each annual
meeting thereafter, each director elected to succeed a director whose term expires shall be elected
for a term of office to expire at the third succeeding annual meeting of stockholders after his or
her election or until the directors earlier death, resignation or removal. Except as the GCL may
otherwise require, in the interim between annual meetings of stockholders or special meetings of
stockholders called for the election of directors and/or the removal of one or more directors and
the filling of any vacancy in that connection, newly created directorships and any vacancies in the
Board of Directors, including unfilled vacancies resulting from the removal of directors for cause,
may be filled by the vote of a majority of the remaining directors then in office, although less
than a quorum, or by the sole remaining director. A director elected to fill a vacancy resulting
from the death, resignation or removal of a director shall serve for the remainder of the full term
of the director whose death, resignation or removal shall have created such vacancy and until his
or her successor shall have been elected and qualified or until the directors earlier death,
resignation or removal. Notwithstanding the foregoing, and except as otherwise required by law or
by the instrument governing the rights of the holders of any series of Preferred Stock, whenever
the holders of any series of Preferred Stock shall have the right, voting separately as a class, to
elect one or more directors of the Corporation, the terms of the director or directors elected by
such holders shall expire at the next annual meeting of stockholders.
NINTH:
The following provisions are inserted for the management of the business
and for the conduct of the affairs of the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its directors and stockholders:
A. Election of directors need not be by ballot unless the by-laws of the
Corporation so provide.
B. The Board of Directors shall have the power, without the assent or vote of the
stockholders, to make, alter, amend, change, add to or repeal the by-laws of the Corporation as
provided in the by-laws of the Corporation.
C. The directors in their discretion may submit any contract or act for approval
or ratification at any annual meeting of the stockholders or at any meeting of the stockholders
called for the purpose of considering any such act or contract, and any contract or act that shall
be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation
which is represented in person or by proxy at such meeting and entitled to vote thereat (provided
that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid
and binding upon the Corporation and upon all the stockholders as though it had been approved or
ratified by every stockholder of the Corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors interests, or for any other reason.
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D. In addition to the powers and authorities hereinbefore or by statute expressly
conferred upon them, the directors are hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this Certificate of Incorporation, and to any by-laws
from time to time made by the stockholders; provided, however, that no by-law so made shall
invalidate any prior act of the directors which would have been valid if such by-law had not been
made.
TENTH:
A. A director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which the
director derived an improper personal benefit. If the GCL is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent permitted by the
GCL, as so amended. Any repeal or modification of this paragraph A by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of the Corporation
with respect to events occurring prior to the time of such repeal or modification.
B. The Corporation, to the full extent permitted by Section 145 of the GCL, as
amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto.
Expenses (including attorneys fees) incurred by an officer or director in defending any civil,
criminal, administrative, or investigative action, suit or proceeding for which such officer or
director may be entitled to indemnification hereunder shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the Corporation as authorized hereby.
ELEVENTH:
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under Section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under Section 279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders
of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization of the Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made, be binding on all
the creditors or class of creditors, and/or on
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all the stockholders or class of stockholders, of the Corporation, as the case may be, and
also on the Corporation.
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IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of
Incorporation on behalf of the Corporation this 4th day of April, 2006.
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GENERAL FINANCE CORPORATION
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By:
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/s/ RONALD F. VALENTA
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Ronald F. Valenta
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Chief Executive Officer and Secretary
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