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As filed with the Securities and Exchange Commission on July 19, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CHAMPION ENTERPRISES, INC.
(Exact name of Registrant as specified in its charter)
Michigan 38-2743168
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2701 Cambridge Ct., Suite 300
Auburn Hills, Michigan 48326
(248) 340-9090
(Address, including zip code, and telephone
number, including area code, of Registrant's principal executive offices)
John J. Collins, Jr., Esq.
Senior Vice President, General Counsel and Secretary
Champion Enterprises, Inc.
2701 Cambridge Ct., Suite 300
Auburn Hills, Michigan 48326
(248) 340-9090
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
copy to:
D. Richard McDonald, Esq.
Dykema Gossett PLLC
39577 Woodward Avenue, Suite 300
Bloomfield Hills, MI 48304
Approximate date of commencement of proposed sale to public: From time
to time after this Registration Statement is declared effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or investment 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 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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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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. [ ]
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CALCULATION OF REGISTRATION FEE
--------------------------------------- ---------------------- --------------- ---------------- --------------------
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Each Class of Securities to Amount to be Price Per Offering Registration Fee
be Registered Registered(1) Share(2) Price
--------------------------------------- ---------------------- --------------- ---------------- --------------------
Common Stock, $1 par value, Issuable 2,328,003 Shares $10.575 $24,618,632 $6,155
Upon Conversion of Series B-1
Cumulative Convertible Preferred Stock
(1) The shares of common stock that may be offered pursuant to this
Registration Statement consist of shares issuable upon conversion or
redemption of and as dividends upon 20,000 shares of Series B-1 Cumulative
Convertible Preferred Stock. For purposes of estimating the number of
shares of common stock to be included in this Registration Statement, we
included (a) 2,196,193 shares, representing 150% of the number of shares of
common stock issuable upon conversion of the Series B-1 Cumulative
Convertible Preferred Stock, determined as if the Series B-1 Convertible
Preferred Stock were converted in full at a conversion price of $13.66;
plus (b) 131,810 shares, representing 150% of the number of shares of
common stock issuable as dividends on the Series B-1 Cumulative Convertible
Preferred Stock within one year from July 3, 2001, assuming the price used
to calculate this number of shares was $11.38 per share. Pursuant to Rule
416 under the Securities Act of 1933, this Registration Statement also
covers an indeterminate number of shares of common stock issuable upon
conversion or redemption of or as dividends on the Series B-1 Cumulative
Convertible Preferred Stock by reason of stock splits, stock dividends and
other anti-dilution adjustments.
(2) Estimated solely for the purpose of determining the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
based upon the average of the high and low reported sales prices of the
Common Stock for July 12, 2001 ($10.575).
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH 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.
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PROSPECTUS
CHAMPION ENTERPRISES, INC.
2,328,003 SHARES OF
COMMON STOCK, $1 PAR VALUE
This prospectus offers up to 2,328,003 shares of common stock of
Champion Enterprises, Inc. that may be sold from time to time in the market or
in other transactions by a certain selling shareholder named in this prospectus.
No underwriters are involved in any sale of stock under this prospectus.
Our common stock is traded on the New York, Chicago and Pacific Stock
Exchanges under the trading symbol "CHB." On July 12, 2001, the closing price
for the common stock as traded on the New York Stock Exchange was $11.15, as
reported in The Wall Street Journal.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------------
The date of this Prospectus is July __, 2001
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING DESCRIBED IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY CHAMPION ENTERPRISES, INC. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE UNDER THIS PROSPECTUS SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF CHAMPION SINCE THE DATE OF THIS PROSPECTUS. THIS PROSPECTUS DOES NOT
CONSTITUTE ANY OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
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TABLE OF CONTENTS
Page
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ABOUT THIS PROSPECTUS.............................................................................................2
WHERE YOU CAN FIND MORE INFORMATION...............................................................................2
USE OF PROCEEDS...................................................................................................3
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS........................................................3
CHAMPION ENTERPRISES, INC.........................................................................................4
DESCRIPTION OF COMMON STOCK.......................................................................................4
SELLING SHAREHOLDER...............................................................................................5
PLAN OF DISTRIBUTION..............................................................................................6
LEGAL MATTERS.....................................................................................................9
EXPERTS...........................................................................................................9
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission. This prospectus provides you with a
general description of the securities we may offer. The securities may be sold
from time to time by the selling shareholders named in this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
Champion Enterprises, Inc. files reports, proxy statements, and other
information with the SEC. Such reports, proxy statements, and other information
concerning Champion can be read and copied at the SEC's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room. The SEC
maintains an internet site at http://www.sec.gov that contains reports, proxy
and information statements, and other information regarding issuers that file
electronically with the SEC, including Champion. Champion's common stock is
listed on the New York Stock Exchange, the Chicago Stock Exchange, and the
Pacific Stock Exchange under the trading symbol "CHB." These reports, proxy
statements, and other information are also available for inspection at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005 and the Pacific Stock Exchange, 301 Pine Street, San Francisco, California
94104.
This prospectus is part of a registration statement filed with the SEC
by Champion. The full registration statement can be obtained from the SEC as
indicated above, or from Champion.
The SEC allows Champion to "incorporate by reference" the information
it files with the SEC. This permits Champion to disclose important information
to you by referencing these filed documents. Any information referenced in this
way is considered part of this prospectus, and any information filed with the
SEC subsequent to this prospectus will automatically update and
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supersede this information. Champion incorporates by reference the documents
listed below which have been filed with the SEC:
- Annual Report on Form 10-K for the year ended December 30,
2000
- Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2001
- Current Reports on Form 8-K filed March 20, 2001, April 18,
2001, May 16, 2001, June 19, 2001, July 9, 2001, and July
19, 2001
Champion incorporates by reference any future filings made with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities and
Exchange Act of 1934 from the date of this prospectus until the termination of
the offering of the securities covered by this prospectus.
Any statement contained in a document incorporated by reference in
this registration statement will be considered to be modified or superseded for
purposes of this prospectus to the extent that a statement contained in this
registration statement or in any subsequently filed document that is
incorporated by reference modifies or supersedes such statement. Any statement
that is modified or superseded will not, except as so modified or superseded,
constitute a part of this prospectus.
Champion will provide without charge, upon written or oral request, a
copy of any or all of the documents which are incorporated by reference in this
prospectus, other than exhibits which are specifically incorporated by reference
into such documents. Requests should be directed to John J. Collins, Jr., Senior
Vice President, General Counsel and Secretary at our principal executive
offices, located at 2701 Cambridge Ct., Suite 300, Auburn Hills, Michigan 48326
(telephone number: (248) 340-9090).
USE OF PROCEEDS
The selling shareholder will receive all of the proceeds from the sale
of the common stock offered under this prospectus.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
Some statements incorporated by reference in this document constitute
forward-looking statements as such term is defined in Section 27A of the
Securities Act and Section 21E of the Securities Exchange Act. These statements
are subject to certain factors that could cause actual results to differ
materially from those projected in the forward-looking statements. These factors
are discussed in and are incorporated by reference to our most recently filed
Form 10-K under the section entitled "Forward Looking Statements."
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CHAMPION ENTERPRISES, INC.
Champion Enterprises, Inc. is the world's largest homebuilder, with 49
manufacturing facilities in 16 states and two Canadian provinces. Since the
company was founded in 1953, we have built more than 1.5 million homes. The
homes are constructed in a quality-controlled environment at our off-site
manufacturing facilities, sold through our national retailer network, then
transported to the home site.
We are also one of the industry's leading retailers, operating 230
retail housing centers in 28 states. In addition, our homes are sold through
over 1,000 independent retail locations that have joined either our Champion
Home Center or Alliance of Champions retail distribution networks.
Through HomePride Finance Corp., our finance business, we provide
retailers, builders and developers with access to credit at competitive rates by
consolidating significant loan origination volume. Champion Development Corp.,
our development arm, is one of the nation's leading manufactured housing
community developers, with investments in 16 communities in 7 states.
Champion has approximately 11,000 employees. Our principal executive
offices are located at 2701 Cambridge Court, Suite 300, Auburn Hills, Michigan
48326. Our telephone number is (248) 340-9090. Our web site is
www.championhomes.net. The information contained on our web site is not
incorporated by reference in this prospectus.
DESCRIPTION OF COMMON STOCK
Our authorized capital stock is 120,000,000 shares of common stock,
$1.00 par value, and 5,000,000 shares of preferred stock, no par value. At July
3, 2001, 47,946,715 shares of common stock and 20,000 shares of Series B-1
Cumulative Convertible Preferred Stock were outstanding. In addition to the
summary of our common stock that follows, we encourage you to review our
articles of incorporation and bylaws, which we have filed with the SEC.
Holders of our common stock are entitled to one vote for each share
held of record on all matters on which shareholders are generally entitled to
vote. The vote of the holders of a majority of the stock represented at a
meeting at which a quorum is present is generally required to take shareholder
action, unless a greater vote is required by law. Directors are elected by a
plurality of the votes cast at any election and there is no cumulative voting of
shares.
Holders of common stock have no preemptive rights. Subject to the
applicable laws and the rights of the holders of the preferred stock, holders of
common stock are entitled to such dividends as may be declared by our board of
directors. The common stock is not entitled to any sinking fund, redemption or
conversion provisions. Upon our dissolution, liquidation or winding up, the
holders of our common stock are entitled to share ratably in our net assets
remaining after
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the payment of all creditors and liquidation preferences of preferred stock. The
outstanding shares of common stock are duly authorized, validly issued, fully
paid and nonassessable.
SELLING SHAREHOLDER
The 2,328,003 shares of our common stock offered by this prospectus are
being offered for the account of the selling shareholder, Fletcher
International, Ltd. These shares consist of shares of our common stock issuable
upon conversion or redemption of our Series B-1 Cumulative Convertible Preferred
Stock and as dividends on the Series B-1 Cumulative Convertible Preferred Stock
within one year following the effective date of the Registration Statement of
which this prospectus is a part.
The following table provides certain information with respect to the
selling shareholder, including the selling shareholder's beneficial ownership of
our common stock as of July 12, 2001, and as adjusted to give effect to the sale
of the shares offered by this prospectus. The shares of common stock offered by
this prospectus may be offered from time to time by the selling shareholder
named below or its nominees.
SHARES OF
SHARES OF COMMON STOCK SHARES OF
COMMON STOCK OFFERED COMMON STOCK
OWNED PRIOR TO BY THIS OWNED AFTER
NAME AND ADDRESS OFFERING(1) PROSPECTUS(2) OFFERING
---------------- -------- ---------- --------
Fletcher International, Ltd. 1,257,901 1,257,901 0
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(1) Consists of shares of our common stock issuable upon conversion of our
Series B-1 Cumulative Convertible Preferred Stock and as dividends on the
Series B-1 Cumulative Convertible Preferred Stock as of July 12, 2001.
(2) The actual number of shares of our common stock offered by this prospectus
and included in the Registration Statement of which this prospectus is a
part includes, pursuant to Rule 416 under the Securities Act of 1933, an
additional number of shares of our common stock which may be issuable with
respect to the Series B-1 Cumulative Convertible Preferred Stock to prevent
dilution resulting from stock splits, stock dividends or other similar
transactions.
The securities listed above include outstanding securities held in one
or more accounts managed by Fletcher Asset Management, Inc. ("FAM") for the
selling shareholder. FAM is an investment adviser to the selling shareholder and
is registered under Section 203 of the Investment Advisors Act of 1940, as
amended. Pursuant to an investment advisory agreement between FAM and the
selling shareholder, FAM has the authority to vote and dispose of the securities
in these accounts. By reason of the provisions of Rule 13d-3 under the
Securities Exchange Act of 1934, the selling shareholder and FAM may each be
deemed to own
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beneficially the securities registered under the Registration Statement of which
this prospectus is a part. In addition, by virtue of Alphonse Fletcher, Jr.'s
position as Chairman and Chief Executive Officer of FAM, Mr. Fletcher may be
deemed to have the shared power to vote or direct the vote of, and the shared
power to dispose or direct the disposition of, these securities. Therefore, Mr.
Fletcher may be deemed to be the beneficial owner of the securities.
There is no affiliation, under Rule 405 of the Securities Act of 1933,
between either us and the selling shareholder or between the selling shareholder
and any of our affiliates.
PLAN OF DISTRIBUTION
We are registering all 2,328,003 shares on behalf of the selling
shareholder. We will not receive any of the proceeds from sales by the selling
shareholder of the offered shares of common stock. The selling shareholder named
in the table above or pledgees, donees, transferees or other
successors-in-interest selling shares received from the selling shareholder as a
gift, distribution or other non-sale related transfer after the date of this
prospectus may sell the shares at different times under this prospectus. The
selling shareholder will act independently of us in making decisions for the
timing, manner and size of each sale. The sales may be made on one or more
exchanges or quotation systems or in the over-the-counter market or in other
transactions, at prices and at terms then prevailing or at prices related to the
then current market price, or at otherwise negotiated prices.
The shares may be sold by one or more of, or a combination of, the
following in addition to any other method permitted under this prospectus:
- a block trade in which the broker-dealer so engaged will
attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate
the transaction;
- purchase by a broker-dealer as principal and resale by
this broker-dealer for its account;
- an exchange or quotation system sale that complies with
the rules of the exchange or quotation system;
- an ordinary brokerage transaction or a transaction in
which the broker solicits purchasers;
- a privately negotiated transaction;
- an underwritten offering;
- by pledge to secure debts and other obligations;
- to cover hedging transactions (other than short sales)
made pursuant to this prospectus; or
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- by a combination of the above methods of sale.
If required, this prospectus may be amended or supplemented on a
continual basis to describe a specific plan of distribution. In effecting sales,
broker-dealers engaged by the selling shareholder may arrange for other
broker-dealers to participate in the resales. The selling shareholder may enter
into hedging transactions with broker-dealers relating to distributions of the
shares or other transactions, but may not engage in short sales. The selling
shareholder may enter into option or other transactions with broker-dealers that
require the delivery to the broker-dealer of the shares. The broker-dealer may
then resell or transfer these shares through this prospectus. The selling
shareholder may also loan or pledge the shares to a broker-dealer. The
broker-dealer may sell the shares which are loaned, or upon a default the
broker-dealer may sell the pledged shares by use of this prospectus. Some or all
of the shares offered in this prospectus also may be sold to or through an
underwriter or underwriters. Any shares sold in that manner will be acquired by
the underwriters for their own accounts and may be resold at different times in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. These shares
may be offered to the public through underwriting syndicates represented by one
or more managing underwriters or may be offered to the public directly by one or
more underwriters. Any public offering price and any discounts or concessions
allowed or disallowed or paid to dealers may be changed at different times.
Underwriters, broker-dealers or agents may receive compensation in the
form of commissions, discounts or concessions from the selling shareholder.
Underwriters, broker-dealers or agents may also receive compensation from the
purchasers of the shares for whom they act as agents or to whom they sell as
principals, or both. Compensation for or to a particular underwriter or
broker-dealer might be in excess of customary commissions and will be in amounts
to be negotiated at the time of the sale. Underwriters, broker-deals or agents
and any other participating broker-deals or the selling shareholders may be
considered to be underwriters within the meaning of section 2(11) of the
Securities Act relating to the sales of the shares. Underwriters are defined in
this section as any person who has purchased from an issuer with a view to, or
offers or sells for an issuer in connection with, the distribution of any
security, or participates or has a direct or indirect participation in any
undertaking, or participates or has a participation in the direct or indirect
underwriting of any undertaking. Any commission, discount or concession received
by them and any profit on the resale of the shares purchased by them may be
considered to be underwriting discounts or commissions under the Securities Act.
Because selling shareholders may be considered to be underwriters within the
meaning of section 2(11) of the Securities Act, the selling shareholders may be
subject to the prospectus delivery requirements of the Securities Act. Neither
the delivery of any prospectus, or any prospectus supplement, nor any other
action taken by Champion, the selling shareholder or any purchaser relating to
the purchase or sale of shares under this prospectus shall be considered or
treated as an admission that any of them is an underwriter within the meaning of
the Securities Act relating to the sale of any shares. Additionally, any
securities covered by this prospectus that qualify for sale through Rule 144
under the Securities Act may be sold under Rule 144 rather than through this
prospectus.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities law. Additionally, in some
states the shares may not be sold
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unless they have been registered or qualified for sale in the applicable state
or an exemption from the registration or qualification requirement is available
and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the shares may not engage in market-making
activities for our common stock during some restricted periods. Additionally,
the selling shareholder will be subject to applicable provisions of the Exchange
Act and the associated rules and regulations under the Exchange Act, including
Regulation M, that may limit the timing of purchases and sales of shares of our
common stock by the selling shareholder. We will make copies of this prospectus
available to the selling shareholder and have informed the selling shareholder
of the need for delivery of copies of this prospectus to purchasers at or before
the time of any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to
Rule 424(b) under the Securities Act upon being notified by a selling
shareholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. This supplement will disclose:
- the name of each selling shareholder and of the
participating broker-dealer(s),
- the number of shares involved,
- the price at which these shares were sold,
- the commissions paid or discounts or concessions allowed
to the broker-dealer(s), where applicable,
- that the broker-dealer(s) did not conduct any
investigation to verify the information in this prospectus
or incorporated by reference into this prospectus, and
- other facts material to the transaction.
We will bear all costs, expenses and fees for the registration of the
shares. The selling shareholder will bear all commissions and discounts, if any,
attributable to their individual sales of the shares. The selling shareholder
may agree to indemnify any broker-dealer or agent that participates in
transactions involving sales of the shares against some liabilities, including
liabilities arising under the Securities Act.
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LEGAL MATTERS
Legal matters relating to the validity of the securities being offered
by this prospectus have been passed upon for Champion by Dykema Gossett PLLC,
Bloomfield Hills, Michigan.
EXPERTS
The financial statements incorporated in this prospectus by reference
to our Annual Report on Form 10-K for the year ended December 30, 2000, have
been so incorporated in reliance on the report of PricewaterhouseCoopers, LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following statement sets forth the estimated amounts of expenses
to be borne by the Company in connection with the distribution of the Common
Stock offered hereby:
Securities and Exchange Commission Registration Fee............................. $ 6,155.00
Accounting Fees and Expenses.................................................... * 3,000.00
Legal Fees and Expenses......................................................... * 5,000.00
Miscellaneous Expenses.......................................................... * 1,000.00
Total Expenses.................................................................. $15,155.00
=========
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* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is organized under the Michigan Business Corporation Act
(the "MBCA") which, in general, empowers Michigan corporations to indemnify a
person who is a party or threatened to be made a party to any civil, criminal,
administrative or investigative action, suit or proceeding (other than actions
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or of another
enterprise at such corporation's request, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection
therewith if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders and, in the case of a criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
If a person is successful in defending against a derivative action or
third-party action, the MBCA requires that a Michigan corporation indemnify the
person against expenses incurred in the action.
The MBCA also empowers Michigan corporations to provide similar
indemnity against amounts paid in settlement and expenses actually and
reasonably incurred by such a person in actions or suits by or in the right of
the corporation except in respect of any claim, issue or matter as to which such
person is adjudged to be liable to the corporation, unless and only to the
extent that a court determines that, despite the adjudication of the liability
but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity.
The Company's bylaws generally require the Company to indemnify its
directors and officers to the fullest extent permissible under Michigan law,
require the advancement and
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reimbursement of expenses under certain circumstances and establish a procedure
for determination of when indemnification is proper.
The MBCA permits Michigan corporations to limit the personal liability
of directors for a breach of their fiduciary duty. The Company's Articles of
Incorporation, which limit liability to the maximum extent permitted by law,
provide that a director of the Company will not be personally liable to the
Company or its shareholders for monetary damages for breach of the director's
fiduciary duty. However, the MBCA and the Articles of Incorporation do not
eliminate or limit the liability of a director for any of the following: (i) a
breach of the director's duty of loyalty to the Company or its shareholders;
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law; (iii) declaration of an unlawful dividend, stock
purchase or redemption; (iv) a transaction from which the director derives an
improper personal benefit; and (v) an act or omission occurring prior to the
date when the provision becomes effective. As a result of the inclusion of such
a provision, shareholders of the Company may be unable to recover monetary
damages against directors for actions taken by them which constitute negligence
or gross negligence or which are in violation of their fiduciary duties,
although it may be possible to obtain injunctive or other equitable relief with
respect to such actions.
Under an insurance policy maintained by the Company, the directors and
officers of the Company are insured, within the limits and subject to the
limitations of the policy, against certain expenses and liabilities incurred in
connection with the defense of certain claims, actions, suits or proceedings
which may be brought against them by reason of being or having been directors or
officers. In addition, a certain registration rights agreement to which the
Company is a party provides that the Company will indemnify, to the extent
permitted by law, each holder of "registrable securities" (as defined in such
agreement) against all losses, claims, damages, liabilities and expenses caused
by misstatements or omissions in any registration statement, prospectus or
preliminary prospectus, except insofar as such misstatements are caused by or
contained in information furnished to the Company by such holders.
ITEM 16. EXHIBITS
A list of exhibits included as part of this Registration Statement is
set forth below.
4.1 Certificate of Rights and Preferences of Series B-1 Cumulative
Convertible Preferred Stock of the registrant (1)
5 Opinion of Dykema Gossett PLLC
10.1 Agreement, dated as of June 29, 2001 between the registrant
and Fletcher International, Ltd. (1)
23(a) Consent of PricewaterhouseCoopers LLP
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23(b) Consent of Dykema Gossett PLLC (included in Exhibit 5)
24(a) Power of Attorney (set forth on signature page)
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(1) Incorporated by reference from the registrant's Current Report on Form 8-K
dated July 9, 2001.
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ITEM 17. UNDERTAKINGS
1. The undersigned registrant hereby undertakes 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 Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (i) and (ii) above 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 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
2. The undersigned registrant hereby undertakes 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. The undersigned registrant hereby undertakes 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.
4. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered
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therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
5. The undersigned registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Champion
Enterprises, Inc. certifies that it has reasonable grounds to believe that it
meets 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 Auburn Hills, in the State of Michigan on July
19, 2001.
CHAMPION ENTERPRISES, INC.
By: /s/ Walter R. Young
--------------------------------------------
Name: Walter R. Young
Title: President and Chief Executive Officer
Each of the undersigned whose signature appears below hereby
constitutes and appoints Walter R. Young and John J. Collins, Jr. and each of
them acting alone, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, under the Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on July 19, 2001.
/s/ Walter R. Young Chairman of the Board of Directors,
-------------------------------------------------------- President and Chief Executive Officer
Walter R. Young (Principal Executive Officer)
/s/ Anthony S. Cleberg Executive Vice President and Chief
-------------------------------------------------------- Financial Officer (Principal Financial
Anthony S. Cleberg Officer)
/s/ Richard Hevelhorst Vice President and Controller
-------------------------------------------------------- (Principal Accounting Officer)
Richard Hevelhorst
/s/ Robert W. Anestis Director
--------------------------------------------------------
Robert W. Anestis
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/s/ Selwyn Isakow Director
-----------------------------------------------------------
Selwyn Isakow
/s/ Ellen R. Levine Director
-----------------------------------------------------------
Ellen R. Levine
/s/ Brian D. Jellison Director
-----------------------------------------------------------
Brian D. Jellison
/s/ George R. Mrkonic Director
-----------------------------------------------------------
George R. Mrkonic
/s/ Carl L. Valdiserri Director
-----------------------------------------------------------
Carl L. Valdiserri
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EXHIBIT INDEX
Exhibit No. Description of Exhibits
----------- -----------------------
4.1 Certificate of Rights and Preferences of Series B-1 Cumulative
Convertible Preferred Stock of the registrant (1)
5 Opinion of Dykema Gossett PLLC
10.1 Agreement, dated as of June 29, 2001 between the registrant and
Fletcher International, Ltd. (1)
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of Dykema Gossett PLLC
(included in Exhibit 5)
24(a) Power of Attorney (set forth on signature page)
---------------
(1) Incorporated by reference from the registrant's Current Report on Form 8-K
dated July 9, 2001.
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