As filed with the Securities and Exchange Commission on May 5, 2010
Registration No. 333-165816
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PALM HARBOR
HOMES, INC.
(Exact name of registrant as specified in its charter)
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Florida
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59-1036634
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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15303 Dallas Parkway, Suite 800
Addison, Texas 75001
(972) 991-2422
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Larry H. Keener
President and Chief Executive Officer
15303 Dallas Parkway, Suite 800
Addison, Texas 75001
(972) 991-2422
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Gina E. Betts
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
Approximate date of commencement
of proposed sale to the public: From time to time after the effective date of this Registration Statement as determined by market conditions.
If the only securities being registered on this form are being 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, as amended, or Securities Act, 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 this form is a registration statement pursuant to
General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Securities and Exchange Commission pursuant to Rule 462(e) under the Securities Act, check the following
box.
¨
If this form is a post-effective amendment to a
registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box.
¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act of 1934, as amended. (Check
one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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x
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CALCULATION OF
REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to be
Registered
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Proposed Maximum
Aggregate Price Per
Share(1)
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, par value $0.01 per share
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104,848
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$1.92
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$201,308.16
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$14.35(2)
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(1)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based on the high and low sales prices of the common stock on the Nasdaq
Stock Market on March 30, 2010.
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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.
The information in this prospectus is not complete and may be changed. The securities may not be
sold 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 MAY 5, 2010
PROSPECTUS
PALM
HARBOR HOMES, INC.
104,848 SHARES OF COMMON STOCK
We are registering the common stock being offered by this prospectus in order to permit the holders thereof to sell such shares without
restriction, in the open market or otherwise; however, the registration of such common stock does not necessarily mean that they will be sold. We will not receive any proceeds from this offering.
Our common stock is quoted on the NASDAQ Global Market under the symbol “PHHM.” On March 30, 2010, the last reported
closing price of our common stock on NASDAQ was $1.88 per share.
The securities offered hereby involve a high degree of
risk. See “Risk Factors” on page 3, as well as the risk factors relating to our business that are incorporated by reference in this prospectus from our annual report on Form 10-K for the year ended March 27, 2009 and our quarterly
reports on Form 10-Q for the quarterly periods ending June 26, 2009, September 25, 2009 and December 25, 2009.
The selling shareholders are offering these shares of common stock. The selling shareholders may sell all or a portion of these shares
from time to time in market transactions through any market on which our common stock is then traded, in negotiated transactions or otherwise, and at prices and on terms that will be determined by the then prevailing market price or at negotiated
prices directly or through a broker or brokers, who may act as agent or as principal or by a combination of such methods of sale. The selling shareholders will receive all proceeds from the sale of the common stock. For additional information on the
methods of sale, you should refer to the section entitled “Plan of Distribution.”
Neither the
Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities discussed in the prospectus, nor have they determined whether this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The date of this preliminary prospectus is
, 2010
You should rely only on the information contained herein or specifically incorporated by
reference in this prospectus. We have not authorized anyone to provide you with different information. The selling shareholders are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the
information contained in this prospectus or any document incorporated herein by reference is accurate as of any date other than the date of this prospectus.
TABLE OF CONTENTS
i
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities and Exchange Act of 1934, as amended, or Exchange Act, and file annual,
quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You can request copies of these
documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the public reference room. Our SEC filings are also available to the public at the SEC’s
web site at
www.sec.gov.
In addition, you may read and copy our SEC filings at the offices of The NASDAQ Stock Market, One Liberty Plaza, 165 Broadway, New York, NY 10006. Our SEC filings are also available through our website at
www.palmharbor.com
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This prospectus is only part of a registration statement we filed with the SEC under the
Securities Act of 1933, as amended, or Securities Act, and therefore omits certain information contained in the registration statement. We have also filed exhibits and schedules to the registration statement that we have excluded from this
prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or document. You may inspect or obtain a copy of the registration statement, including exhibits and
schedules, as described in the previous paragraph.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING
STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated by reference herein or therein may
contain statements, estimates or projections that constitute “forward-looking statements,” as defined under U.S. federal securities laws. Generally, the words “believe,” “experts,” “intend,”
“estimate,” “anticipate,” “project,” “may” and similar expressions identify forward-looking statements. These may include statements regarding our growth opportunities, our ability to maintain current or meet
projected house sales, the availability of mortgages for our products, including wholesale financing opportunities for such mortgages, the effect of current economic developments, including the effects of speculative building and the government $700
billion bail out plan that includes the Troubled Asset Relief Program (TARP) and the effect of other government regulations. Actual results may therefore differ materially from those described in our forward-looking statements. Important factors
that could cause actual results to differ materially from our forward-looking statements are set forth in this prospectus, including under the heading “
Risk Factors
,” as well as the risk factors relating to our business that are
incorporated by reference in this prospectus from our annual report on Form 10-K for the year ended March 27, 2009 and our quarterly reports on Form 10-Q for the quarterly periods ending June 26, 2009, September 25, 2009 and
December 25, 2009. Readers should carefully review these sections, as well as our financial statements and the notes thereto in our annual report on Form 10-K for the fiscal year ended March 27, 2009, and the other documents we file from
time to time with the SEC, including our quarterly reports on Form 10-Q and our current reports on Form 8-K.
For these
statements, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. You are cautioned not to place undue reliance on our forward-looking statements, which speak
only as of the date of this prospectus and the applicable prospectus supplement or the date of any document that was incorporated by reference herein or therein. All subsequent written and oral forward-looking statements attributable to us or any
person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. We do not undertake any obligation to release publicly any revisions to our forward-looking statements to
reflect events or circumstances after the date of this prospectus and the applicable prospectus supplement.
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SUMMARY
This summary contains basic information about us and this offering. Because it is a summary, it does not contain all of the
information that you should consider before investing. You should read this entire prospectus carefully, including the section entitled “Risk Factors” before making an investment decision.
THE COMPANY
Founded in 1977, Palm Harbor Homes, Inc. with its subsidiaries (collectively, “we” or “Palm Harbor”) is a leading
manufacturer and marketer of factory-built homes in the United States. We market nationwide through vertically integrated operations, encompassing manufactured and modular housing, financing and insurance. At February 26, 2010, we operated nine
manufacturing facilities in seven states that sell homes through 77 of our company-owned retail sales centers and builder locations and over 130 independent retail dealers, builders and developers. Through our subsidiary, CountryPlace Mortgage, Ltd.
(CountryPlace), we currently offer conforming mortgages to purchasers of factory-built homes sold by company-owned retail sales centers and certain independent retail dealers, builders and developers. We provide property and casualty insurance for
owners of manufactured homes through our subsidiary, Standard Casualty Company (Standard).
Manufactured Housing
Operations
. We manufacture single and multi-section manufactured homes under various brand names and in a variety of floor plans and price ranges. Our typical manufactured home contains two to five bedrooms, a living
room, family room, dining room, kitchen, two or three bathrooms and features central air conditioning and heating, a range, refrigerator, carpeting and drapes. We also offer optional amenities such as dishwashers, washers, dryers, furniture packages
and specialty cabinets. Although we produce manufactured homes across a wide retail price range, the average retail sales price (excluding land) for the first 11 months of fiscal 2010 of our manufactured homes was approximately $67,000.
Modular Housing Operations
. We directed our focus to growth opportunities in the
modular housing business when we acquired Nationwide Custom Homes (Nationwide) in June 2002. We manufacture modular homes principally through Nationwide. We also manufacture, sell, finance and insure a line of modular homes called Discovery Custom
Homes
TM
. Modular homes are built in accordance with state
or local building codes. Our modular homes include single story ranch homes, split-levels and two and three story homes with a variety of floor plans and exteriors. The average retail sales price (excluding land) for the first 11 months of fiscal
2010 of our modular homes was approximately $164,000.
Consumer Financing
. There are three
basic types of consumer financing in the factory-built housing industry: chattel or personal property loans for purchasers of a home with no real estate involved (generally HUD-code homes); non-conforming mortgages for purchasers of the home and the
land on which the home is placed; and mortgage loans which comply with the requirements of Fannie Mae or Freddie Mac. Through CountryPlace, we currently offer conforming mortgages to certain home purchasers. CountryPlace is an approved
seller-servicer with Fannie Mae, and is approved by HUD to originate FHA-insured mortgages under its Direct Endorsement program. CountryPlace does not participate in the sub-prime market. The loans that are originated through CountryPlace are sold
to investors. CountryPlace also provides various loan origination and servicing functions for non-affiliated entities under contract.
Insurance.
We offer property and casualty insurance, as well as extended warranties for owners of
manufactured homes through our subsidiary, Standard. During fiscal 2009, 92% of homeowners who purchased a home through our own retail superstores purchased extended warranties and 70% purchased property and casualty insurance. As of
February 26, 2010, Standard had approximately 11,799 policies in force.
Please see “Item 1. Business” in our
Form 8-K dated March 18, 2010, which is incorporated by reference herein for further information regarding our business.
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RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks described in “Item 1A—
Risk Factors” of our most recent annual report on Form 10-K for the year ended March 27, 2009 and under “Forward-Looking Information/Risk Factors” in our quarterly reports on Form 10-Q for the quarterly periods ending
June 26, 2009, September 25, 2009 and December 25, 2009 that have been filed with the SEC and incorporated herein by reference in their entirety, as well as other information in this prospectus and in any other documents
incorporated into this prospectus by reference before purchasing any of our securities. Each of the risks described in these sections and documents could adversely affect our business, financial condition, and results of operations, and could result
in a complete loss of your investment. This prospectus and the incorporated documents also contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including the risks mentioned above.
USE OF PROCEEDS
We will not receive any proceeds from the resale of the common stock by selling shareholders. We will bear all expenses in connection
with the registration of the shares, other than underwriting discounts and selling commissions.
SELLING SHAREHOLDERS
We initially issued the common stock registered hereby to certain of our employees in transactions exempt from registration under the
Securities Act. The shares of common stock that may be offered pursuant to this prospectus will be offered by the selling shareholders, which includes their transferees, distributees, pledgees or donees or their successors. The following table sets
forth certain information concerning the number of shares of common stock beneficially owned by each selling shareholder that may be offered from time to time pursuant to this prospectus. Greg Aplin is the President and Lyle Zeller is the Executive
Vice President of CountryPlace Mortgage, Ltd. our wholly-owned subsidiary.
On February 15, 2008 we entered into an
agreement with the selling shareholders pursuant to which the selling shareholders exchanged 500,000 shares of CountryPlace Acceptance Corporation in return for cash and a promissory note. Pursuant to the agreement, we offered to issue, or purchase
on the open market for the benefit of the selling shareholders, 52,424 shares of our common stock if they remained in their management capacity with CountryPlace Acceptance Corporation through February 10, 2010. Since the February 15, 2008
agreement, CountryPlace Acceptance Corporation has been our wholly-owned subsidiary. CountryPlace Acceptance Corporation owns all of the interests in CountryPlace Mortgage, Ltd. Because the selling shareholders remained officers of our wholly-owned
subsidiary throughout the term of the agreement, we issued 52,424 shares of our common stock to each of Messrs. Zeller and Aplin. Messrs. Zeller and Aplin advised the Company that at the time of receipt of these securities, they did not have any
agreements or understandings, directly or indirectly, with any person to distribute the securities.
SELLING
SHAREHOLDERS TABLE
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Name
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Shares of common
stock owned before
the offering
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Shares of
common stock
offered
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Shares of common
stock owned after
the offering
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Percentage of
common stock owned
after the offering(1)
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Greg Aplin
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52,424
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52,424
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0
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*
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Lyle Zeller
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52,424
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52,424
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0
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*
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* Less than 1%
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(1)
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We have determined the number and percentage of shares of common stock owned after the offering by assuming that each of the selling shareholders will sell all of his
or her shares being offered pursuant to this prospectus, but will not sell any other shares that they own. In fact, the selling shareholders may sell none, all or some portion of their holdings.
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PLAN OF DISTRIBUTION
The selling shareholders and their successors, which includes their transferees, distributees, pledgees or donees or their successors,
may sell the common stock directly to purchasers or through underwrites, brokers or agents. Underwriters, broker-dealers or agents may receive compensation in the form of discounts, concessions or commissions from the selling shareholders or the
purchasers. These discounts, concessions or commissions may be in excess of those customary in the types of transactions involved.
The common stock may be sold in one or more transactions at fixed prices:
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at prevailing market prices at the time of sale;
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at prices related to such prevailing market prices;
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at varying prices determined at the time of sale; or
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Such sales may be effected in transactions in the following manner (which may involve crosses or block transactions):
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on any national securities exchange or quotation service on which the notes or the common stock may be listed or quoted at the time of sale;
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in the over-the-counter market;
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in transactions otherwise than on such exchanges or services or in the over-the-counter market;
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through the writing of options, whether such options are listed on an options exchange or otherwise; or
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through the settlement of short sales.
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Selling shareholders may enter into hedging transactions with broker-dealers or other financial institutions which may in turn engage in
short sales of the notes or the underlying common stock and deliver these securities to close out such short positions, or loan or pledge the notes or the common stock into which the notes are convertible to broker-dealers that in turn may sell the
securities.
From time to time, one or more of the selling shareholders may distribute, devise, gift, pledge, hypothecate or
grant a security interest in some or all of the securities owned by them. Any such distributees, devisees or donees will be deemed to be selling shareholders. Any such pledgees, secured parties or persons to whom the securities have been
hypothecated will, upon foreclosure in the event of default, be deemed to be selling shareholders.
The aggregate proceeds to
the selling shareholders from the sale of the common stock will be the sale price of the common stock less any discounts and commissions. A selling shareholder reserves the right to accept and, together with their agents, to reject, any proposed
purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from this offering.
Our common stock is quoted on The NASDAQ Global Market.
The common stock may be sold in some states only through registered or licensed brokers or dealers. The selling shareholders and any
underwriters, broker-dealers or agents that participate in the sale of the common stock may be “underwriters” within the meaning of Section 2(11) of the Securities Act.
In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 or Rule 144A of the Securities Act may
be sold under Rule 144 or Rule 144A rather than pursuant to this prospectus. A selling shareholder may not sell any of the common stock described herein and may not transfer, devise or gift such securities by other means not described in this
prospectus.
If required, the common stock to be sold, names of the selling security holders, the respective purchase prices
and public offering prices, the names of any agent, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this prospectus forms a part.
We have agreed to pay substantially all of the
expenses incidental to the registration, offering and sale of the common stock to the public other than applicable transfer taxes and commissions, fees and discounts of underwriters, brokers, dealers and agents.
4
LEGAL MATTERS
Unless otherwise noted in a prospectus supplement, Locke Lord Bissell & Liddell LLP, Dallas, Texas, will pass on the legality of
the securities offered through this prospectus and certain tax matters. Counsel for any underwriters or agents will be noted in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Palm Harbor Homes, Inc. appearing in Palm Harbor Homes, Inc.’s Current Report (Form 8-K)
dated March 18, 2010 for the year ended March 27, 2009 (including schedule appearing therein), have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included
therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This prospectus “incorporates by reference” information that we have filed with the SEC under the Exchange Act, which means
that we are disclosing important information to you by referring you to those documents. Any statement contained in this prospectus or in any document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be
modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any subsequently filed document which also is, or is deemed to be incorporated by reference into this prospectus modifies or
supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. We incorporate by reference the following documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than current reports furnished under Items 2.02 or 7.01 of Form 8-K):
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Our Current Report on Form 8-K dated March 18, 2010, which updated Part 1, Item 1. Business, Part II, Item 6, Selected Consolidated
Financial Data, Part II, Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations, Part II, Item 8. Consolidated Financial Statements, and Part II, Item 15. Exhibits and Financial Statement
Schedules from our annual report on Form 10-K for the fiscal year ended March 27, 2009
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Our Annual Report on Form 10-K for the fiscal year ended March 27, 2009;
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Our Quarterly Report on Form 10-Q for the three months ended June 26, 2009;
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Our Quarterly Report on Form 10-Q for the three months ended September 25, 2009;
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Our Quarterly Report on Form 10-Q for the three months ended December 25, 2009;
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Our Current Reports of Form 8-K filed May 1, 2009, May 21, 2009, January 4, 2010, February 2,
2010, February 3, 2010; and
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The description of our common stock contained in our registration statement on Form 8-A filed June 15, 1995.
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You may request a copy of these filings at no cost, by writing or telephoning us at the following address:
Palm Harbor Homes, Inc.
15303 Dallas Parkway, Suite 800
Addison, Texas 75001-4600
Attention: Investor Relations
(972) 991-2422
5
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth an estimate (other than with respect to the registration fee) of the expenses expected to be incurred in
connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions:
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Registration Fee—Securities and Exchange Commission
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$
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14
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Accounting Fees and Expenses
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15,000
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Legal Fees and Expenses
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10,000
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Total
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$
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25,014
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We will bear all
expenses shown above. The selling shareholders will bear all underwriting discounts and selling commissions and transfer taxes applicable to the sale of shares sold pursuant to this registration statement.
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Item 15.
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Indemnification of Directors and Officers.
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Section 607.0850 of the Florida Business Corporation Act, grants a corporation the power to indemnify its directors, officers,
employees, and agents for various expenses incurred resulting from various actions taken by its directors, officers, employees, or agents on behalf of the corporation. In general, if an individual acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the action was unlawful, then the corporation has the power to indemnify said
individual who was or is a party to any proceeding (including, in the absence of an adjudication of liability (unless the court otherwise determines), any proceeding by or in the right of the corporation) against liability expenses, including
counsel fees, incurred in connection with such proceeding, including any appeal thereof (and, as to actions by or in the right of the corporation, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of
directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof). To the extent that a director, officer,
employee, or agent has been successful on the merits or otherwise in defense of any proceeding, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith. The term “proceeding” includes any
threatened, pending, or completed action, suit, or other type of proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.
Any indemnification in connection with the foregoing, unless pursuant to a determination by a court, shall be made by the corporation
upon a determination that indemnification is proper in the circumstances because the individual has met the applicable standard of conduct. The determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who are not parties to such proceeding; (ii) by majority vote of a committee duly designated by the board of directors consisting solely of two or more directors not at the time parties to the proceeding; (iii) by independent
legal counsel selected by the board of directors or such committee; or (iv) by the shareholders by a majority vote of a quorum consisting of shareholders who are not parties to such proceeding. Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible. However, if the determination of permissibility is made by independent legal counsel, then the directors or the committee
shall evaluate the reasonableness of expenses and may authorize indemnification. Expenses incurred by an officer or director in defending a civil or criminal proceeding may be paid by the corporation in advance of the final disposition of the
proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if he is ultimately found not to be entitled to indemnification by the corporation. Expenses incurred by other employees and agents may be paid
in advance upon such terms or conditions that the board of directors deems appropriate.
II-1
Section 607.0850 also provides that the indemnification and advancement of expenses
provided pursuant to that Section are not exclusive, and a corporation may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses may not be made if a judgment or other final
adjudication established that the individual’s actions, or omissions to act, were material to the cause of action so adjudicated and constitute (1) a violation of the criminal law (unless the individual had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct was unlawful); (2) a transaction from which the individual derived an improper personal benefit; (3) in the case of a director, a circumstance under which the liability
provisions of Section 607.0834 of the Florida Business Corporation Act are applicable; or (4) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to
procure a judgment in its favor in a proceeding by or in the right of a shareholder. Indemnification and advancement of expenses shall continue as, unless otherwise provided when authorized or ratified, to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such person, unless otherwise provided when authorized or ratified.
Section 607.0850 further provides that unless the corporation’s articles of incorporation provide otherwise, then
notwithstanding the failure of a corporation to provide indemnification, and despite any contrary determination of the board or of the shareholders in the specific case, a director, officer, employee, or agent of the corporation who is or was a
party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after
giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that (1) the individual is
entitled to mandatory indemnification under Section 607.0850 (in which case the court shall also order the corporation to pay the director reasonable expenses incurred in obtaining court-ordered indemnification or advancement of expenses);
(2) the individual is entitled to indemnification or advancement of expenses, or both, by virtue of the exercise by the corporation of its power under Section 607.0850; or (3) the individual is fairly and reasonably entitled to
indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of whether the person met the standard of conduct set forth in Section 607.0850. Further, a corporation is granted the power to purchase
and maintain indemnification insurance.
Our amended and restated articles of incorporation provide that we will indemnify any
director or officer to full extent permitted by law. In addition, we have entered into indemnification agreements with each of our directors and executive officers. These agreements provide that we will indemnify such persons against any costs
incurred by them in connection with any action, suit, arbitration or proceeding based upon, or arising from, such person’s service as our officer or director or one of our affiliates. Such indemnification will only be granted if the person
acted in good faith and in a manner reasonably believed to be in, or not opposed to, our best interests and, with respect to any criminal proceeding, the person had no reasonable cause to believe that his or her conduct was unlawful.
II-2
The following
exhibits, required by Item 601 of Regulation S-K, are filed as a part of this registration statement. Exhibit numbers in the left column correspond to those of Item 601 of Regulation S-K.
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Exhibit
No.
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Description
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3.1
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Amended and Restated Articles of Incorporation (Incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-1, Registration No. 33-79164 (the
“Form S-1”)).
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3.2
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Articles of Amendment (Incorporated by reference to Exhibit 3.2 to the Registrant’s Form S-1).
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3.3
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Restated Bylaws (Incorporated by reference to Exhibit 3.3 to the Registrant’s Form S-1).
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4.1
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Form of Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to the Registrant’s Form S-1).
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4.2
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Indenture dated May 11, 2004, by and between Palm Harbor Homes, Inc., as issuer, and American Stock Transfer & Trust Company, as trustee. (Incorporated by reference to Exhibit
4.2 to the Registrant’s Registration Statement on Form S-3, Registration No. 333-118669).
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4.3
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Form of 3.25% Convertible Senior Note due 2024 (Incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form S-3, Registration No.
333-118669).
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4.4
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Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) among Palm Harbor Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes
I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, and Textron Financial Corporation and the other Lenders named therein, as Lenders, and Textron Financial Corporation, as Administrative Agent and Arranger, dated May 25, 2004 (Incorporated by
reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed November 19, 2008).
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4.5
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First Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated June 30, 2005 (Incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed November
19, 2008).
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4.6
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Second Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated January 19, 2006 (Incorporated by reference to Exhibit 99.3 of the Registrant’s Current Report on Form 8-K filed
November 19, 2008).
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4.7
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Third Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated May 29, 2007 (Incorporated by reference to Exhibit 99.4 of the Registrant’s Current Report on Form 8-K filed November
19, 2008).
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4.8
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Fourth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated May 30, 2008 (Incorporated by reference to Exhibit 99.5 of the Registrant’s Current Report on Form 8-K filed November 19, 2008).
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*4.9
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Fifth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated April 21, 2009.
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II-3
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4.10
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Sixth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated May 30, 2008 (Incorporated by reference to Exhibit 10.5 of the Registrant’s Annual Report on Form 10-K filed June 9,
2009).
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4.11
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Common Stock Purchase Warrant dated April 24, 2009 issued to Capital Southwest Venture Corporation by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.1 of the
Registrant’s Current Report on Form 8-K filed May 1, 2009).
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4.12
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Common Stock Purchase Warrant dated April 24, 2009 issued to Sally Posey by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.2 of the Registrant’s Current
Report on Form 8-K filed May 1, 2009).
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4.13
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Common Stock Purchase Warrant dated April 24, 2009 issued to The Estate of Leroy Posey, Deceased, by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.3 of the
Registrant’s Current Report on Form 8-K filed May 1, 2009).
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4.14
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Senior Subordinated Secured Promissory Note dated April 24, 2009 issued to Capital Southwest Venture Corporation by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit
99.4 of the Registrant’s Current Report on Form 8-K filed May 1, 2009).
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4.15
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Senior Subordinated Secured Promissory Note dated April 24, 2009 issued to Sally Posey by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.5 of the Registrant’s
Current Report on Form 8-K filed May 1, 2009).
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4.16
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Senior Subordinated Secured Promissory Note dated April 24, 2009 issued to The Estate of Leroy Posey, Deceased, by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.6
of the Registrant’s Current Report on Form 8-K filed May 1, 2009).
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4.17
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Pledge and Security Agreement dated April 24, 2009 by and among Palm Harbor Homes, Inc., Capital Southwest Venture Corporation, Sally Posey and the Estate of Leroy Posey, Deceased
(Incorporated by reference to Exhibit 99.7 of the Registrant’s Current Report on Form 8-K filed May 1, 2009).
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4.18
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Intercreditor Agreement dated April 24, 2009 by and among Palm Harbor Homes, Inc., Sally Posey and the Estate of Leroy Posey, Deceased (Incorporated by reference to Exhibit 99.8 of
the Registrant’s Current Report on Form 8-K filed May 1, 2009).
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4.19
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Seventh Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm
Harbor Homes, Inc. and Palm Harbor Manufacturing, L.P., as Borrowers, and for purposes of Section 11 CountryPlace Acceptance Corporation, dated December 29, 2009 (Incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on
Form 8-K filed January 4, 2010).
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4.20
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Eighth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc. and Palm Harbor Manufacturing, L.P., as Borrowers, and for purposes of Section 29 CountryPlace Acceptance Corporation, dated January 27, 2010 (Incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K
filed February 1, 2010).
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4.21
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Warrant to purchase 62,542 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo—Sierra, LP. (Incorporated by reference to Exhibit 4.1 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
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4.22
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Warrant to purchase 987,998 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo— Redwood, LP. (Incorporated by reference to Exhibit 4.2 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
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4.23
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Warrant to purchase 158,705 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo—Willow, LP. (Incorporated by reference to Exhibit 4.3 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
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4.24
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Warrant to purchase 87,389 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo—Magnolia, LP. (Incorporated by reference to Exhibit 4.4 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
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II-4
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4.25
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Registration Rights Agreement dated January 29, 2010 by and among the Registrant, Virgo—Sierra, LP, Virgo—Redwood, LP, Virgo—Willow, LP, and Virgo—Magnolia,
LP. (Incorporated by reference to Exhibit 4.5 of the Registrant’s Current Report on Form 8-K filed February 3, 2010).
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*5.1
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Opinion of Locke Liddell & Sapp LLP as to the legality of the securities being registered.
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*23.1
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Consent of Ernst & Young LLP.
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23.2
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Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.1 hereto).
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24.1
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Power of Attorney (included on the signature page).
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II-5
(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, as amended, or Securities Act;
(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) 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 (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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
Securities and Exchange Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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 a time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(4)(i) Each prospectus filed pursuant to Rule 424(b)
and as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A shall be deemed to be part of and included in the registration
statement as of the it is first used after effectiveness. Provided,
however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
II-6
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 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 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 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 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 Securities Act and will be governed by the final adjudication of such issue.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Dallas, State of Texas, on May 5,
2010.
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P
ALM
H
ARBOR
H
OMES
, I
NC
.
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By:
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/
S
/ L
ARRY
H.
K
EENER
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Larry H. Keener
Chairman of the Board, President
and Chief Executive Officer
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POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Amendment to the Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates indicated.
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Signatures
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Title
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Date
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/
S
/ L
ARRY
H.
K
EENER
Larry
H. Keener
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Chairman of the Board, Director and Chief Executive Officer (Principal Executive Officer)
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May 5, 2010
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/
S
/ K
ELLY
T
ACKE
Kelly
Tacke
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|
Executive Vice President—Finance, Chief Financial Officer and Secretary (Principal Financial and Accounting
Officer)
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May 5, 2010
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*
Frederick R. Meyer
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Director
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May 5, 2010
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*
John H. Wilson
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Director
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May 5, 2010
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*
A. Gary Shilling
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Director
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May 5, 2010
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II-8
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Signatures
|
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Title
|
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Date
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|
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*
W. Christopher Wellborn
|
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Director
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May 5, 2010
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*
William M. Ashbaugh
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Director
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|
May 5, 2010
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*
Tim Smith
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Director
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|
May 5, 2010
|
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*
|
The undersigned, by signing his name hereto, does sign and execute this Registration Statement pursuant to the Power of Attorney executed by the above-named persons.
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By:
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/
S
/ L
ARRY
H. K
EENER
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Larry H. Keener
Attorney-in-fact
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II-9
INDEX TO EXHIBITS
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Exhibit
No.
|
|
Description
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|
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3.1
|
|
Amended and Restated Articles of Incorporation (Incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-1, Registration No. 33-79164 (the
“Form S-1”)).
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3.2
|
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Articles of Amendment (Incorporated by reference to Exhibit 3.2 to the Registrant’s Form S-1).
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3.3
|
|
Restated Bylaws (Incorporated by reference to Exhibit 3.3 to the Registrant’s Form S-1).
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4.1
|
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Form of Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to the Registrant’s Form S-1).
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4.2
|
|
Indenture dated May 11, 2004, by and between Palm Harbor Homes, Inc., as issuer, and American Stock Transfer & Trust Company, as trustee. (Incorporated by reference to Exhibit
4.2 to the Registrant’s Registration Statement on Form S-3, Registration No. 333-118669).
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|
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4.3
|
|
Form of 3.25% Convertible Senior Note due 2024 (Incorporated by reference to Exhibit 4.3 to the Registrant’s Current Report on Form S-3, Registration No.
333-118669).
|
|
|
|
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4.4
|
|
Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) among Palm Harbor Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes
I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, and Textron Financial Corporation and the other Lenders named therein, as Lenders, and Textron Financial Corporation, as Administrative Agent and Arranger, dated May 25, 2004 (Incorporated by
reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K filed November 19, 2008).
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|
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|
4.5
|
|
First Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated June 30, 2005 (Incorporated by reference to Exhibit 99.2 of the Registrant’s Current Report on Form 8-K filed November
19, 2008).
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|
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|
|
4.6
|
|
Second Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated January 19, 2006 (Incorporated by reference to Exhibit 99.3 of the Registrant’s Current Report on Form 8-K filed
November 19, 2008).
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|
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4.7
|
|
Third Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., Palm Harbor Homes I, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated May 29, 2007 (Incorporated by reference to Exhibit 99.4 of the Registrant’s Current Report on Form 8-K filed November
19, 2008).
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|
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|
|
4.8
|
|
Fourth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated May 30, 2008 (Incorporated by reference to Exhibit 99.5 of the Registrant’s Current Report on Form 8-K filed November 19, 2008).
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|
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|
|
*4.9
|
|
Fifth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated April 21, 2009.
|
|
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|
|
4.10
|
|
Sixth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc., Palm Harbor Manufacturing, L.P., and Palm Harbor Marketing, Inc., as Borrowers, dated May 30, 2008 (Incorporated by reference to Exhibit 10.5 of the Registrant’s Annual Report on Form 10-K filed June 9,
2009).
|
II-10
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|
|
|
|
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4.11
|
|
Common Stock Purchase Warrant dated April 24, 2009 issued to Capital Southwest Venture Corporation by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.1 of the
Registrant’s Current Report on Form 8-K filed May 1, 2009).
|
|
|
|
|
4.12
|
|
Common Stock Purchase Warrant dated April 24, 2009 issued to Sally Posey by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.2 of the Registrant’s Current
Report on Form 8-K filed May 1, 2009).
|
|
|
|
|
4.13
|
|
Common Stock Purchase Warrant dated April 24, 2009 issued to The Estate of Leroy Posey, Deceased, by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.3 of the
Registrant’s Current Report on Form 8-K filed May 1, 2009).
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|
|
|
|
4.14
|
|
Senior Subordinated Secured Promissory Note dated April 24, 2009 issued to Capital Southwest Venture Corporation by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit
99.4 of the Registrant’s Current Report on Form 8-K filed May 1, 2009).
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|
|
|
|
4.15
|
|
Senior Subordinated Secured Promissory Note dated April 24, 2009 issued to Sally Posey by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.5 of the Registrant’s
Current Report on Form 8-K filed May 1, 2009).
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|
|
|
|
4.16
|
|
Senior Subordinated Secured Promissory Note dated April 24, 2009 issued to The Estate of Leroy Posey, Deceased, by Palm Harbor Homes, Inc. (Incorporated by reference to Exhibit 99.6
of the Registrant’s Current Report on Form 8-K filed May 1, 2009).
|
|
|
|
|
4.17
|
|
Pledge and Security Agreement dated April 24, 2009 by and among Palm Harbor Homes, Inc., Capital Southwest Venture Corporation, Sally Posey and the Estate of Leroy Posey, Deceased
(Incorporated by reference to Exhibit 99.7 of the Registrant’s Current Report on Form 8-K filed May 1, 2009).
|
|
|
|
|
4.18
|
|
Intercreditor Agreement dated April 24, 2009 by and among Palm Harbor Homes, Inc., Sally Posey and the Estate of Leroy Posey, Deceased (Incorporated by reference to Exhibit 99.8 of
the Registrant’s Current Report on Form 8-K filed May 1, 2009).
|
|
|
|
|
4.19
|
|
Seventh Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm
Harbor Homes, Inc. and Palm Harbor Manufacturing, L.P., as Borrowers, and for purposes of Section 11 CountryPlace Acceptance Corporation, dated December 29, 2009 (Incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on
Form 8-K filed January 4, 2010).
|
|
|
|
|
4.20
|
|
Eighth Amendment to Amended and Restated Agreement for Wholesale Financing (Finished Goods—Shared Credit Facility) by and between Textron Financial Corporation, and Palm Harbor
Homes, Inc. and Palm Harbor Manufacturing, L.P., as Borrowers, and for purposes of Section 29 CountryPlace Acceptance Corporation, dated January 27, 2010 (Incorporated by reference to Exhibit 99.1 of the Registrant’s Current Report on Form 8-K
filed February 1, 2010).
|
|
|
|
|
4.21
|
|
Warrant to purchase 62,542 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo—Sierra, LP. (Incorporated by reference to Exhibit 4.1 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
|
|
|
|
|
4.22
|
|
Warrant to purchase 987,998 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo— Redwood, LP. (Incorporated by reference to Exhibit 4.2 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
|
|
|
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4.23
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|
Warrant to purchase 158,705 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo—Willow, LP. (Incorporated by reference to Exhibit 4.3 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
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|
|
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4.24
|
|
Warrant to purchase 87,389 shares of Common Stock, dated January 29, 2010, issued by the Registrant to Virgo— Magnolia, LP. (Incorporated by reference to Exhibit 4.4 of the
Registrant’s Current Report on Form 8-K filed February 3, 2010).
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|
|
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4.25
|
|
Registration Rights Agreement dated January 29, 2010 by and among the Registrant, Virgo—Sierra, LP, Virgo—Redwood, LP, Virgo—Willow, LP, and Virgo—Magnolia, LP.
(Incorporated by reference to Exhibit 4.5 of the Registrant’s Current Report on Form 8-K filed February 3, 2010).
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*5.1
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|
Opinion of Locke Liddell & Sapp LLP as to the legality of the securities being registered.
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|
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*23.1
|
|
Consent of Ernst & Young LLP.
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|
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23.2
|
|
Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.1 hereto).
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|
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24.1
|
|
Power of Attorney (included on the signature page).
|
II-11
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