As filed with the Securities and Exchange Commission on ___________, 2006
Registration No. 333-131709
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3 TO
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GALES INDUSTRIES INCORPORATED
(Name of small business issuer in its charter)
Delaware 3728 20-4458244
(State or Jurisdiction (Primary Standard (IRS Employer
of Incorporation Industrial Identification
or Organization) Classification Number)
Code Number)
1479 North Clinton Avenue
Bay Shore, NY 11706
(631) 968-5000
(Address and telephone number of principal executive offices)
1479 North Clinton Avenue
Bay Shore, NY 11706
(Address of principal place of business)
Michael A. Gales, Executive Chairman
Gales Industries Incorporated
1479 North Clinton Avenue
Bay Shore, NY 11706
(631) 968-5000
(Name, address and telephone number of agent for service)
Copies of communications to:
Vincent J. McGill, Esq.
Eaton & Van Winkle LLP
3 Park Avenue, 16th Floor
New York, New York 10016
(212) 779-9910
Approximate date 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. |X|
1
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 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 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. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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.
2
Item 27. Exhibits
Exhibit Nos.
- ------------
2.1 Debtor's Amended Plan of Reorganization (incorporated by
reference to Exhibit 2.1 of Registrant's Form 8-K, filed January
14, 2005.
2.2 Merger Agreement, dated as of November 14, 2005, among Gales
Industries Incorporated, two of its stockholders, Gales
Industries Merger Sub, Inc., and Ashlin Development Corporation
(incorporated herein by reference to Exhibit 10.1 of Registrant's
Form 8-K report filed November 21, 2005).
3.1 Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 of Registrant's Form 8-K report, filed
February 15, 2006).
3.2 By-Laws of the Registrant (incorporated by reference to Exhibit
3.2 of the Registrant's Form 8-K report, filed February 15,
2006).
4.2 Convertible Promissory Note, dated November 30, 2005, in the
amount of $332,631, from Gales Industries Incorporated (and
assumed by the Registrant) to Dario Peragallo (incorporated by
reference to Exhibit 4.2 of the Registrant's Form 8-K report,
filed December 6, 2005).
4.3 Form of Warrant to be issued by the Registrant to GunnAllen
Financial, Inc. after completion of the Offering (incorporated by
reference to Exhibit 4.3 of the Registrant's Form 8-K report,
filed December 6, 2005).
4.4 Form of Warrant issued by Original Gales to Atlas Private Equity,
LLC (and assumed by the Registrant) (Incorporated by reference to
Exhibit 4.4 of the Registrants Form 10-KSB, filed April 17,
2006).
4.5 Form of Warrant issued by Gales Industries Incorporated (and
assumed by the Registrant) to investors in the $45,000 Bridge
Financing in or about August 2005 (incorporated by reference to
Exhibit 4.5 of the Registrant's Form 8-K report, filed December
6, 2005).
4.6 Form of Warrant issued by Gales Industries Incorporated (and
assumed by the Registrant) to investors in the $105,000 Bridge
Financing in or about September, 2005 (incorporated by reference
to Exhibit 4.6 of the Registrant's Form 8-K report, filed
December 6, 2005).
4.7 Form of Warrant issued and to be issued to Porter, LeVay & Rose,
Inc. (incorporated herein by reference to the exhibit of the same
number to Registrant's Amendment No. 1 on form SB-2/A, filed June
16, 2006).
5.1* Opinion of Eaton & Van Winkle LLP
10.1 Asset Purchase Agreement between the Registrant and TeeZee, Inc.
dated October 15, 2004 (incorporated by reference of the
Registrant's Report of Form 8-K, filed on January 14, 2005).
10.2 Stock Purchase Agreement, dated as of July 25, 2005, by and among
Gales Industries Incorporated, Air Industries Machining, Corp.,
Luis Peragallo, Jorge Peragallo, Peter Rettaliata and Dario
Peragallo (incorporated by reference to Exhibit 10.2 of the
Registrant's Form 8-K report, filed December 6, 2005.
10.3 Secured Subordinated Promissory Note, dated November 30, 2005, in
the amount of $962,000, from Gales Industries Incorporated (and
assumed by the Registrant) to Luis Peragallo (incorporated by
reference to Exhibit 10.3 of the Registrant's Form 8-K report,
filed December 6, 2005).
10.4 Security Agreement, dated as of November 30, 2005, by and between
Gales Industries Incorporated (and assumed by the Registrant) and
Luis Peragallo (incorporated by reference to Exhibit 10.4 of the
Registrant's Form 8-K report, filed December 6, 2005).
10.5 Contract of Sale, dated as of November 7, 2005, by and between
DPPR Realty Corp. and Gales Industries Incorporated for the
purchase of the property known as 1480 North Clinton Avenue, Bay
Shore, NY (incorporated by reference to Exhibit 10.5 of the
Registrant's Form 8-K report, filed December 6, 2005).
II-1
Exhibit Nos.
- ------------
10.6 Contract of Sale, dated as of November 7, 2005, by and between
KPK Realty Corp. and Gales Industries Incorporated for the
purchase of the property known as 1460 North Fifth Avenue and
1479 North Clinton Avenue, Bay Shore, NY (incorporated by
reference to Exhibit 10.6 of the Registrant's Form 8-K report,
filed December 6, 2005).
10.7 Employment Agreement, dated as of September 26, 2005, by and
between Gales Industries Incorporated (and assumed by the
Registrant) and Michael A. Gales (incorporated by reference to
Exhibit 10.7 of the Registrant's Form 8-K report, filed December
6, 2005).
10.8 Employment Agreement, dated as of September 26, 2005, by and
between Louis A. Giusto and Gales Industries Incorporated (and
assumed by the Registrant) (incorporated by reference to Exhibit
10.8 of the Registrant's Form 8-K report, filed December 6,
2005).
10.9 Employment Agreement, dated as of September 26, 2005, by and
among Gales Industries Incorporated (and assumed by the
Registrant), Air Industries Machining, Corp. and Peter D.
Rettaliata (incorporated by reference to Exhibit 10.9 of the
Registrant's Form 8-K report, filed December 6, 2005).
10.10 Employment Agreement, dated as of September 26, 2005, by and
among Gales Industries Incorporated (and assumed by the
Registrant), Air Industries Machining, Corp. and Dario Peragallo
(incorporated by reference to Exhibit 10.10 of the Registrant's
Form 8-K report, filed December 6, 2005).
10.11 Form of Placement Agency Agreement, dated as of September 26,
2005, between GunnAllen Financial Inc. and Gales Industries
Incorporated (including Amendments No.1 and No.2 thereto, dated
October 25, 2005 and November 10, 2005, respectively).
(Incorporated by reference to Exhibit 10.11 of Registrant's
registration statement on Form SB-2, No. 333-131709, filed on
February 9, 2006).
10.12 [Intentionally left blank.]
10.13 Registrant's 1998 Stock Option Plan (incorporated by reference to
Exhibit 10.18 of the Registrant's annual report on Form 10-KSB,
filed April 12, 2002).
10.14 2005 Stock Incentive Plan of Gales Industries Incorporated
(incorporated by reference to Exhibit 10.14 of the Registrant's
Form 8-K report, filed December 6, 2005).
10.15 Stock Option Agreement, dated as of September 26, 2005, by Gales
Industries Incorporated (and assumed by the Registrant) with
Michael A. Gales (incorporated by reference to Exhibit 10.15 of
the Registrant's Form 8-K report, filed December 6, 2005).
10.16 Stock Option Agreement, dated as of September 26, 2005, by Gales
Industries Incorporated (and assumed by the Registrant) with
Louis A. Giusto (incorporated by reference to Exhibit 10.16 of
the Registrant's Form 8-K report, filed December 6, 2005).
10.17 Stock Option Agreement, dated as of September 26, 2005, by Gales
Industries Incorporated (and assumed by the Registrant) with
Peter Rettaliata (incorporated by reference to Exhibit 10.17 of
the Registrant's Form 8-K report, filed December 6, 2005).
10.18 Stock Option Agreement, dated as of September 26, 2005, by Gales
Industries Incorporated (and assumed by the Registrant) with
Dario Peragallo (incorporated by reference to Exhibit 10.18 of
the Registrant's Form 8-K report, filed December 6, 2005).
II-2
Exhibit Nos.
- ------------
10.19 Revolving Credit, Term Loan, Equipment Line and Security
Agreement, dated as of November 30, 2005, by and between Air
Industries Machining, Corp., PNC Bank, National Association, as
Lender, and PNC Bank, National Association, as Agent
(incorporated by reference to Exhibit 10.19 of the Registrant's
Form 8-K report, filed December 6, 2005).
10.20 Mortgage and Security Agreement, dated as of November 30, 2005,
by and between Air Industries Machining, Corp. and PNC Bank
(incorporated by reference to Exhibit 10.20 of the Registrant's
Form 8-K report, filed December 6, 2005).
10.21 Long Term Agreement, dated as of August 18, 2000, between Air
Industries Machining, Corp. and Sikorsky Aircraft Corporation
(incorporated by reference to Exhibit 10.21 of the Registrant's
Form 8-K report, filed December 6, 2005).
10.22 Long Term Agreement, dated as of September 7, 2000, between Air
Industries Machining, Corp. and Sikorsky Aircraft Corporation
(incorporated by reference to Exhibit 10.22 of the Registrant's
Form 8-K report, filed December 6, 2005).
16.1 Letter of Daszkal Bolton LLP to the Securities and Exchange
Commission pursuant to the requirements of Item 304(a)(3) of
Regulation S-K (incorporated by reference to Exhibit 16.1 of the
Registrant's Form 8-K/A report, filed December 28, 2005).
21.1 List of Subsidiaries (incorporated by reference to Exhibit 21.1
of the Registrant's Form 8-K report, filed December 6, 2005).
23.1* Consent of Counsel (contained in the opinion referenced herein as
Exhibit 5.1).
23.2 Consent of Goldstein Golub Kessler LLP for use of its report
(incorporated herein by reference to the exhibit of the same
number to Registrant's Amendment No. 2 on Form SB-2/A, filed on
July 20, 2006).
23.3 Consent of Bildner & Giannasco LLP for use of its report
(incorporated herein by reference to the exhibit of the same
number to Registrant's Amendment No. 2 on Form SB-2/A, filed on
July 20, 2006).
Numbers with (*) are filed herewith.
II-3
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form SB-2/A and authorized this amended
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Bay Shore, New York on August 4, 2006.
GALES INDUSTRIES INCORPORATED
By: /s/ Michael A. Gales
------------------------
Michael A. Gales
Executive Chairman
In accordance with the Securities Act of 1933, as amended, this amended
registration statement has been signed below by the following persons on behalf
of the registrant and in the capacities and on the dates indicated.
Signature Capacities Date
/s/ Michael A. Gales Executive Chairman August 4, 2006
- -------------------------
Michael A. Gales
/s/ Louis A. Giusto Vice Chairman, Chief Financial
- ------------------------- Officer and Treasurer August 4, 2006
Louis A. Giusto
/s/ Michael A. Gales,
attorney-in-fact Director, President and Chief
- ------------------------- Executive Officer August 4, 2006
Peter D. Rettaliata
/s/ Michael A. Gales,
attorney-in-fact Director, Executive Vice
- ------------------------- President August 4, 2006
Dario A. Peragallo
/s/ Michael A. Gales,
attorney-in-fact Director August 4, 2006
- -------------------------
Seymour G. Siegel
/s/ Michael A. Gales,
attorney-in-fact Director August 4, 2006
- -------------------------
Rounsevelle W. Schaum
/s/ Michael A. Gales,
attorney-in-fact Director August 4, 2006
- -------------------------
Ira A. Hunt Jr.
II-4
/s/ Michael A. Gales,
attorney-in-fact Director, Secretary August 4, 2006
- -------------------------
Stephen M. Nagler
/s/ Michael A. Gales,
attorney-in-fact Director August 4, 2006
- -------------------------
James A. Brown
II-5
GALES INDUSTRIES INCORPORATED
INDEX OF EXHIBITS FILED WITH REGISTRATION STATEMENT
Exhibit Nos.
- ------------
5.1 Opinion of Eaton & Van Winkle LLP
23.1 Consent of Counsel (contained in the opinion referenced herein as
Exhibit 5.1).
II-6
Exhibit 5.1 - Opinion re legality of the common stock being registered
EATON & VAN WINKLE LLP
3 Park Ave, 16th Floor
New York, New York 10016
August 4, 2006
Gales Industries Incorporated
1479 North Clinton Avenue
Bay Shore, NY 11706
Re: Registration Statement on Form SB-2
Gentlemen:
We have acted as counsel to Gales Industries Incorporated, a Delaware
corporation (the "Company"), in connection with the filing of an amended
Registration Statement on Form SB-2/A (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Act"), of
61,024,388 shares (the "Shares") of the Company's $.001 par value per share
common stock (the "Common Stock"), of which 49,438,663 shares (the "Underlying
Shares") are issuable upon exercise or conversion of warrants, preferred stock
or convertible notes.
In our capacity as counsel, we are familiar with the proceedings taken by
the Company in connection with the authorization, issuance and sale of the
Shares. In addition, in connection with the registration of the foregoing
securities, we have reviewed such documents and records as we have deemed
necessary to enable us to express an opinion on the matters covered hereby,
including, but not limited to, certain agreements relating to the authorization,
issuance, registration and sale of such securities and copies of resolutions of
the Company's Board of Directors authorizing the issuance of such securities and
their registration pursuant to the Registration Statement.
In rendering this opinion, we have (a) assumed (i) the genuineness of all
signatures on all documents examined by us, (ii) the authenticity of all
documents submitted to us as originals, and (iii) the conformity to original
documents of all documents submitted to us as photostatic or conformed copies
and the authenticity of the originals of such copies; and (b) relied on (i)
certificates of public officials and (ii) as to matters of fact, statements and
certificates of officers and representatives of the Company.
Based upon the foregoing, we are of the opinion that the Shares have been
validly issued and are fully paid and non-assessable except that the Underlying
Shares will be validly issued, fully paid and non-assessable when issued in
accordance with the terms of the corresponding warrants, preferred stock or
convertible notes, as the case may be.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Nothing herein shall be deemed to relate to or constitute an opinion
concerning any matters not specifically set forth above. The foregoing opinions
relate only to matters of the internal law of the State of Delaware, including
II-1
the case law of the State of Delaware, without reference to conflict of laws and
to matters of federal law, and we do not purport to express any opinion on the
laws of any other jurisdiction. We assume no obligation to supplement this
opinion if, after the date hereof, applicable laws change, or we become aware of
any facts that might change our opinions, as expressed herein.
The opinion expressed herein may be relied upon by the Company in
connection with the registration of the Shares, as contemplated by, and in
conformity with, the Registration Statement. The opinion expressed herein may
also be relied upon by those investing in or purchasing the Shares. With the
exception of the foregoing, the opinion expressed herein may not be relied upon
by any other person without our prior written consent.
We express no opinion as to compliance with the securities or "blue sky"
laws of any state or country in which the Shares are proposed to be offered and
sold.
Very truly yours,
/s/ Eaton & Van Winkle LLP
II-2