<PAGE>
As filed with the Securities and Exchange Commission on May 17, 1996
Registration No. 333-3162
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
----------
AMENDMENT NO. 1
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
ML DIRECT INC.
(Name of small business issuer in its charter)
Delaware 13-3842020
-------- ---------------------- --------------
(State or other juris- (Primary Standard Industrial (I.R.S. Employer
diction of organization) Classification Code No.) Identification No.)
300 Park Avenue
Suite 1700
New York, NY 10022
(212) 572-6209
(Address and telephone number
of principal executive offices and principal place of business)
James Lawless
President
300 Park Avenue
Suite 1700
New York, NY 10022
(Name, address and telephone number of agent for service)
Copies to:
Steven F. Wasserman, Esq. Michael F. Mulpeter, Esq.
Bernstein & Wasserman, LLP Cohn & Birnbaum P.C.
950 Third Avenue 100 Pearl Street
New York, NY 10022 Hartford, CT 06103
(212) 826-0730 (203) 493-2200
(212) 371-4730 (Fax) (203) 727-0361 (Fax)
Approximate date of proposed sale to the public: As soon as reasonably
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/
continued overleaf
<PAGE>
<TABLE>
<CAPTION>
===============================================================================================================================
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Title of Each Class of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered (1) Offering Price Per Aggregate Offering Registration
Security (2) Price
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.0001
per share(3) 1,150,000 $7.00 $8,050,000 $2,775.86
- -------------------------------------------------------------------------------------------------------------------------------
Class A Warrants (4) 1,150,000 $0.25 $287,500 $99.14
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.0001
per share, underlying Class A
Warrants(5) 1,150,000 $8.00 $9,200,000 $3,172.41
- -------------------------------------------------------------------------------------------------------------------------------
Representative's Option to purchase
shares of Common Stock and Class 100,000 $.001 $100 $0.03
A Warrants (6)
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.0001
and Class A Warrants per share
underlying Representative's 100,000 $8.70 $870,000 $300.00
Option(6)
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.0001
per share (7) 720,000 $7.00 $5,040,000 $1,737.93
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.0001
per share (8) 2,000,000 $7.00 $14,000,000 $4,827.59
- -------------------------------------------------------------------------------------------------------------------------------
Class A Warrants(8) 2,000,000 $0.25 $500,000 $172.41
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, Par value $.0001
per share Underlying Class A
Warrants(5)(8) 2,000,000 $8.00 $16,000,000 $5,517.24
- -------------------------------------------------------------------------------------------------------------------------------
Amount Due $18,602.62
===============================================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933 (the "Act"), this
Registration Statement covers such additional indeterminate number of
shares of Common Stock as may be issued by reason of adjustments in the
number of shares of Common Stock pursuant to anti-dilution provisions
contained in the Class A Warrants and the Representative's Option. Because
such additional shares of Common Stock will, if issued, be issued for no
additional consideration, no registration fee is required.
(2) Estimated solely for purposes of calculating registration fee.
(3) Includes 150000 shares of Common Stock and 150,000 Warrants which may be
issued upon the exercise of an option granted to the Representative to
cover over-allotments, if any. See "Underwriting."
(4) The Class A Warrants are exercisable over a four (4) year period
commencing one year from the effective date of this Offering into one (1)
share of Common Stock per Class
<PAGE>
A Warrant at an exercise price of $8.00 per share.
(5) The number of shares of Common Stock specified is the number which may be
acquired upon exercise of the Class A Redeemable Common Stock Purchase
Warrants ("Class A Warrants") at the maximum exercise price thereof.
(6) The Representative's Option entitles the Representative to purchase up to
100,000 shares of Common Stock and 100,000 Class A Warrants at 120% of the
offering price (the "Representative's Option").
(7) Common Stock which is included in the Preferred Stock Units.
(8) On behalf of Selling Securityholders.
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.
<PAGE>
ML DIRECT INC.
CROSS REFERENCE SHEET
(Showing Location in the Prospectus of Information
Required by Items 1 through 23, Part I, of Form SB-2)
Item in Form SB-2 Prospectus Caption
----------------- ------------------
1. Front of Registration
Statement and Outside Front
Cover of Prospectus................ Facing Page of Registration
Statement; Outside Front
Page of Prospectus
2. Inside Front and Outside Back
Cover Pages of Prospectus.......... Inside Front Cover Page of
Prospectus; Outside Back Cover
Page of Prospectus
3. Summary Information and Risk
Factors............................ Prospectus Summary; Risk Factors
4. Use of Proceeds.................... Use of Proceeds
5. Determination of Offering Price.... Outside Front Cover Page of
Prospectus; Underwriting;
Risk Factors
6. Dilution........................... Dilution; Risk Factors
7. Selling Security Holders........... Description of Securities; Selling
Security Holders
8. Plan of Distribution............... Outside Front Cover Page of
Prospectus; Risk Factors;
Underwriting
9. Legal Proceedings.................. Legal Proceedings
10. Directors, Executive Officers,
Promoters and Control Persons...... Management
11. Security Ownership of Certain
Beneficial Owners and Management... Principal Security Holders
12. Description of Securities.......... Description of Securities;
Underwriting
i
<PAGE>
Item in Form SB-2 Prospectus Caption
----------------- ------------------
13. Interest of Named Experts and
Counsel............................ Experts; Legal Matters
14. Disclosure of Commission Position
on Indemnification for
Securities Act Liabilities......... Underwriting; Certain Transactions
15. Organization Within Last 5 Years... Prospectus Summary; The Company;
Business
16. Description of Business............ Business; Risk Factors
17. Management's Discussion and Analysis
or Plan of Operation............... Management's Discussion and
Analysis of Financial Condition
and Results of Operations
18. Description of Property............ Business - Facilities
19. Certain Relationships and
Related Transactions............... Certain Transactions
20. Market for Common Equity and
Related Stockholder Matters........ Outside Front Cover Page of
Prospectus; Prospectus Summary;
Description of Securities;
Underwriting
21. Executive Compensation............. Management - Executive
Compensation
22. Financial Statements............... Selected Financial Data;
Financial Statements
23. Changes in and Disagreements
with Accountants on Accounting
and Financial Disclosures.......... *
- ----------
* Omitted because Item is not applicable.
ii
<PAGE>
Explanatory Note
This registration statement covers the primary offering of Common Stock and
Class A Warrants by ML Direct Inc. (the "Company") and the concurrent offering
of securities by certain selling securityholders ("Selling Securityholders").
The Company is registering, under the primary prospectus ("Primary Prospectus"),
1,150,000 shares of Common Stock and 1,150,000 Class A Warrants. The Selling
Securityholders are registering, under an alternate prospectus ("Alternate
Prospectus"), 2,720,000 shares of Common Stock, 2,000,000 Class A Warrants and
2,000,000 shares of Common Stock underlying Class A Warrants. The Alternate
Prospectus pages, which follow the Primary Prospectus, contain certain sections
which are to be combined with all of the sections contained in the Primary
Prospectus, with the following exceptions: The front and back cover pages and
the sections entitled "Concurrent Sales," "Selling Securityholders,"
"Underwriting" and "Plan of Distribution" from the Alternate Prospectus pages
will be added to the Alternate Prospectus. Furthermore, all references contained
in the Alternate Prospectus to "the offering" or "this offering" shall refer to
the Company's offering under the Primary Prospectus.
iii
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH AN OFFER, SOLICITATION OF SALE WOULD BE UNLAWFUL
PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
PROSPECTUS
SUBJECT TO COMPLETION, DATED MAY , 1996
ML DIRECT INC.
1,000,000 Shares of Common Stock and
1,000,000 Class A Warrants
Offering Price Per Share - $7.00
Offering Price Per Warrant - $0.25
----------
ML Direct Inc., a Delaware corporation (the "Company"), hereby offers
1,000,000 shares of Common Stock $.0001 par value per share (the "Common Stock"
and "Shares") and 1,000,000 Class A Redeemable Common Stock Purchase Warrants
(the "Class A Warrants" and "Warrants"). See "Risk Factors" and "Description of
Securities." The Risk Factor Section begins on page __ of this Prospectus. It is
contemplated that the proceeds of this offering will be utilized by the Company
to, among other things, pay a stock subscription payable in connection with its
purchase of 50.02% of the outstanding equity of the Company's subsidiary KN2B,
Inc. and to redeem the Company's outstanding preferred stock which is held by
certain affiliated and non-affiliated persons. See "Use of Proceeds."
Each Class A Warrant entitles the holder to purchase one (1) share of
Common Stock at $8.00 per share during the four (4) year period commencing one
(1) year from the date of this Prospectus (the "Effective Date"). The Class A
Warrants are redeemable by the Company for $.01 per Warrant, at any time after
______, 1997, upon thirty (30) days' prior written notice, if the average
closing price or bid price of the Common Stock, as reported by the principal
exchange on which the Common Stock is traded, the Nasdaq SmallCap Market or that
National Quotation Bureau, Incorporated, as the case may be, equals or exceeds
____ per share for any twenty (20) consecutive trading days ending within five
(5) days prior to the date of the notice of redemption. Upon thirty (30) days'
written notice to all holders of the Class A Warrants, the Company shall have
the right to reduce the exercise price and/or extend the term of the Class A
Warrants in compliance with the requirements of Rule 13e-4 to the extent
applicable. See "Description of Securities."
The Company has applied for inclusion of the Common Stock and Class A
Warrants on the Nasdaq SmallCap Market, although there can be no assurances that
an active trading market will develop even if the securities are accepted for
quotation. Even if the Company's securities are accepted for quotation and
active trading develops, the Company is still required to maintain certain
minimum criteria established by Nasdaq, of which there can no assurance.
<PAGE>
In addition, if the Company's securities should be removed from listing by
Nasdaq at any time following the Effective Date, the Company's securities may be
subject to the "Penny Stock Regulations." See "Risk Factors - Lack of Prior
Market for Common Stock" and "Penny Stock Regulations May Impose Certain
Restrictions on Marketability of Securities."
Also, the registration statement of which this Prospectus forms a part
covers the offering of 2,720,000 shares of Common Stock, 2,000,000 Class A
Warrants and 2,000,000 shares of Common Stock underlying Class A Warrants owned
by certain affiliated and non-affiliated persons, hereinafter collectively
referred to as the "Selling Securityholders." The Company will not receive any
of the proceeds on the sale of the securities by the Selling Securityholders.
The securities held by the Selling Securityholders may be sold commencing 24
months from the date of this Prospectus, except that the holders of the
Preferred Stock Units, who hold an aggregate of 720,000 shares of Preferred
Stock and 720,000 shares of Common Stock, have agreed to a thirteen (13) lock-up
month period, subject to earlier release at the sole discretion of I.A.
Rabinowitz & Co., the representative (the "Representative") of the underwriters
of this offering (the "Underwriters"). The Representative may release the
securities held by the Selling Securityholders at any time after all securities
subject to the Over-Allotment Option have been sold or such option has expired.
The Representative has no agreements or understandings with any of the Selling
Securityholders with respect to release of the securities prior to the
respective periods and has no present intention of releasing any or all of such
securities prior to such periods. The Company does not presently intend to make
a public announcement in the event the Representative releases any securities
prior to the respective periods. The resale of the securities of the Selling
Securityholders are subject to Prospectus delivery and other requirements of the
Securities Act of 1933, as amended (the "Act"). Sales of such securities or the
potential of such sales at any time may have an adverse effect on the market
prices of the securities offered hereby. See "Selling Securityholders."
Prior to this offering, there has been no public market for the Common
Stock or the Class A Warrants. It is currently anticipated that the initial
public offering price will be $7.00 per share and $0.25 per Warrant. The price
of the Common Stock and the exercise price and the terms of the Warrants have
been determined by negotiations between the Company and the Representative and
do not necessarily bear any relationship to the Company's assets, book value,
net worth or results of operations or any other established criteria of value,
including recent sales of the securities of the Company at an average price of
$.10 per share. The Representative may enter into arrangements with one or more
broker-dealers to act as co-underwriters of this Offering. For additional
information regarding the factors considered in determining the initial public
offering price of the Common Stock, see "Risk Factors - Dilution," "Risk Factors
- - No Prior Public Market; Possible Volatility of Stock Price," "Risk Factors -
Arbitrary Determination of Offering Price," "Dilution," "Description of
Securities" and "Underwriting."
2
<PAGE>
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A HIGH DEGREE OF
RISK AND IMMEDIATE SUBSTANTIAL DILUTION OF THE BOOK VALUE OF THE COMMON STOCK
AND SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE
INVESTMENT. SEE "DILUTION" and "RISK FACTORS."
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
3
<PAGE>
- --------------------------------------------------------------------------------
Price Proceeds
To Underwriting Discounts To
Public And Commissions (1) Company (2)
- --------------------------------------------------------------------------------
Per Share..... $7.00 $.70 $6.30
Per Warrant... $0.25 $0.025 $0.225
Total (3)..... $7,250,000 $725,000 $6,525,000
- --------------------------------------------------------------------------------
The date of this Prospectus is May __, 1996
I.A. Rabinowitz & Co.
(Notes to Cover)
- ----------
(1) Does not reflect additional compensation to be received by the Underwriters
in the form of: (i) a non-accountable expense allowance of $217,500
($250,125 if the Representative's over-allotment option is exercised in
full) (ii) a five year financial advisory and investment banking agreement
providing for fees of $1,666.66 per month payable in advance at the closing
of this Offering, (iii) an option to purchase 100,000 Shares of Common
Stock and 100,000 Class A Warrants at $8.40 per Share and $.30 per Warrant
(the "Representative's Option"), exercisable for a period of four (4)
years, commencing one (1) year from the effective date of this offering,
(iv) a finders fee agreement between the Company and the Underwriter and
(v) the agreement by the Company to pay to the Underwriter a warrant
solicitation fee in connection with the possible exercise of warrants. The
Company and the Representative have agreed to indemnify each other against
certain liabilities, including liabilities under the Securities Act of
1933, as amended (the "Act"). The Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy and is therefore unenforceable. See "Underwriting."
(2) Before deducting expenses of the offering payable by the Company estimated
at $792,500 including the Representative's non-accountable expense
allowance and financial consulting fee referred to in Footnote (1) (not
assuming exercise of the Over-Allotment Option), registration fees,
transfer agent fees, NASD fees, Blue Sky filing fees and expenses, legal
fees and expenses, and accounting fees and expenses. See "Use of Proceeds"
and "Underwriting."
(3) Does not include 150,000 additional Shares and 150,000 additional Class A
Warrants to cover over-allotments which the Representative has an option to
purchase for thirty (30) days from the date of this Prospectus at the
initial public offering price, less the Representative's discount (the
"Over-Allotment Option"). If the Over-Allotment Option is exercised in
full, the total price to the public, the underwriting discounts and
commissions and the estimated expenses including the Representative's
non-accountable expense allowance will be $8,337,500, $833,750 and
$825,125, respectively, and the total proceeds to Company will be,
$7,503,750 (before expenses). See "Underwriting."
The shares of Common Stock and Class A Warrants are offered by the
Representative on a "firm commitment" basis, when, as and if delivered to and
accepted by the Representative, and subject to prior sale, allotment and
withdrawal, modification of the offer with notice, receipt and
4
<PAGE>
acceptance by the Representative named herein and subject to its right to reject
orders in whole or in part and to certain other conditions. It is expected that
the delivery of the certificates representing the Common Stock and Class A
Warrants and payment therefor will be made at the offices of the Representative
on or about _____ __, 1996.
AVAILABLE INFORMATION
The Company does not presently file reports and other information with the
Securities and Exchange Commission (the "Commission"). However, following
completion of this offering, the Company intends to furnish its stockholders
with annual reports containing audited financial statements examined and
reported upon by its independent public accounting firm and such interim
reports, in each case as it may determine to furnish or as may be required by
law. After the effective date of this offering, the Company will be subject to
the reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and in accordance therewith will file reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission").
Reports and other information filed by the Company can be inspected and
copied at the public reference facilities maintained at the Commission at Room
1024, 450 Fifth Street, N.W., Washington, DC 20549. Copies of such material may
be inspected and copies at the public reference facilities maintained by the
Securities and Exchange Commission upon written request addressed to the
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the Commission's Regional Offices at 7 World Trade Center, 13th
Floor, New York, NY 10007 and Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, IL 60661 at prescribed rates. The Company has filed
with the Commission a registration statement on Form SB-2 (herein together with
all amendments and exhibits referred to as the "Registration Statement") under
the Act of which this Prospectus forms a part. This Prospectus does not contain
all of the information set forth in the Registration Statement, certain parts of
which have been omitted in accordance with the rules and regulations of the
Commission. For further information reference is made to the Registration
Statement.
IN CONNECTION WITH THIS OFFERING, THE REPRESENTATIVE MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
COMPANY'S SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE NASDAQ MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
A SIGNIFICANT AMOUNT OF THE SHARES AND WARRANTS TO BE SOLD IN THIS OFFERING
MAY BE SOLD TO CUSTOMERS OF THE UNDERWRITERS WHICH MAY AFFECT THE MARKET FOR AND
LIQUIDITY OF THE COMPANY'S SECURITIES
5
<PAGE>
IN THE EVENT THAT ADDITIONAL BROKER-DEALERS DO NOT MAKE A MARKET IN THE
COMPANY'S SECURITIES, OF WHICH THERE CAN BE NO ASSURANCE. SUCH CUSTOMERS
SUBSEQUENTLY MAY ENGAGE IN TRANSACTIONS FOR THE SALE OR PURCHASE OF THE SHARES
OF COMMON STOCK AND CLASS A WARRANTS THROUGH AND/OR WITH THE REPRESENTATIVE.
ALTHOUGH IT HAS NO OBLIGATION TO DO SO, THE REPRESENTATIVE MAY FROM TIME TO
TIME ACT AS A MARKET MAKER AND OTHERWISE EFFECT TRANSACTIONS IN THE COMPANY'S
SECURITIES. THE REPRESENTATIVE, IF IT PARTICIPATES IN THE MARKET, MAY BECOME A
DOMINATING INFLUENCE IN THE MARKET FOR THE COMMON STOCK. HOWEVER, THERE IS NO
ASSURANCE THAT THE REPRESENTATIVE WILL OR WILL NOT CONTINUE TO BE A DOMINATING
INFLUENCE. THE PRICES AND LIQUIDITY OF THE SECURITIES OFFERED HEREUNDER MAY BE
SIGNIFICANTLY AFFECTED BY THE DEGREE OF ANY OF THE REPRESENTATIVE'S
PARTICIPATION IN SUCH MARKET. SEE "RISK FACTORS -LACK OF PRIOR MARKET FOR COMMON
STOCK AND CLASS A WARRANTS." THE REPRESENTATIVE MAY DISCONTINUE SUCH ACTIVITIES
AT ANY TIME OR FROM TIME TO TIME.
6
<PAGE>
PROSPECTUS SUMMARY
The following is a summary of certain information (including financial
statements and notes thereto) contained in this Prospectus and is qualified in
its entirety by the more detailed information appearing elsewhere herein. Unless
otherwise indicated to the contrary herein, all information pertaining to the
Company's business includes information relating to both the Company and its
KN2B, Inc. majority owned subsidiary. In addition, unless otherwise indicated to
the contrary, all information appearing herein does not give effect to (i)
150,000 shares of Common Stock and 150,000 Class A Warrants issuable upon
exercise of the Over-Allotment Option; (ii) 100,000 Shares of Common Stock
issuable upon exercise of the Representative's Option to purchase shares of
Common Stock and Class A Warrants; (iii) 3,000,000 shares of Common Stock
issuable upon exercise of the Class A Warrants. See "Business -Stock Option Plan
and Agreements." See "Description of Securities." Each prospective investor is
urged to read this Prospectus in its entirety. Unless otherwise indicated, all
per share information set forth in this Prospectus has been adjusted to reflect
a six-for-five stock split of the Company's Common Stock and Preferred Stock
effected by the Company in March, 1996. As used in this Prospectus, except when
the context otherwise requires, references to the "Company" or "ML Direct"
refers to the business of ML Direct and its majority owned subsidiary KN2B,
Inc..
THE COMPANY
ML Direct Inc. (the "Company" or "ML Direct") was incorporated in the
State of Delaware on June 22, 1995. The Company was founded to expand the
marketing opportunities of products that have already achieved sales success
through direct response television (DRTV) including both infomericals and
shopping networks. To do so, ML Direct has hired, and will continue to hire,
seasoned DRTV and consumer marketing industry executives and has pursued and
will continue to pursue affiliations with both product suppliers and various
channels of product distribution.
ML Direct intends to both acquire the rights to, and itself develop,
certain products for consumer distribution. In so doing, it will exploit both
domestic and international markets, and rely on distribution through
supermarkets, mass merchandisers, drug chains, and department stores (broad
retail distribution), as well as infomercials and shopping networks (electronic
retailing) and catalogs and print media (direct marketing). The Company's
initial focus, however, will be to capitalize and expand upon the already
established pattern of success that certain products which are first introduced
to the marketplace via electronic retailing enjoy when they are subsequently
made available at retail
The Company owns 50.02% of the outstanding equity of KN2B, Inc. which does
business under the name Home Shopping Showcase(Trademark) ("HSS(Trademark)" or
"Home Shopping Showcase(Trademark)"). The remaining 49.98% of Home Shopping
Showcase(Trademark) is owned by HSN Direct Joint Venture (HSN
7
<PAGE>
Direct), which was, until recently, a subsidiary of The Home Shopping Network,
Inc. (HSN), and is now a subsidiary of Flextech, P.L.C. (a UK company which
itself is a subsidiary of Telecommunications Company, Inc. (TCI)). HSN continues
to hold a minority equity position in HSN Direct. The Company has no affiliation
with the HSN.
Home Shopping Showcase(Trademark) will use the well established Home
Shopping brand name and product supply to create and launch permanent in-store
programs that the Company believes will establish it as a distribution source to
retail outlets for DRTV products seeking such distribution, especially
supermarkets, which the Company believes are underdeveloped as sellers of DRTV
merchandise.
Home Shopping Showcase(Trademark) believes that it will be able to achieve
success in the retail distribution of DRTV merchandise through its agreement
with HSN Direct. This strategic alliance entitles the Company to the exclusive
marketing rights to the products and services of HSN Direct and gives it easy
entree to products sold on HSN. The Company believes that it is uniquely
positioned for the next stage of growth in the retail marketplace through the
supermarket channel of distribution.
Home Shopping Showcase(Trademark): The Company
Home Shopping Showcase(Trademark) brings together HSN Direct, an
established producer of infomercials and infomercial products with an
experienced management team, and ML Direct, a marketing company with ties to the
supermarket and other retail industries. ML Direct's ties are the result of
years of experience that its founders, as well as the professionals they have
been able to recruit to join ML Direct or HSS(Trademark), have had in marketing
products through all forms of retail distribution. The Company believes that HSN
Direct and ML Direct contribute the following to Home Shopping
Showcase(Trademark): knowledge, credibility, and contacts, as well as all of
their existing rights and agreements respecting products, services, programs,
and promotions introduced through DRTV for sales and marketing within the field
of domestic retail distribution. The Company believes that these contributions
should make Home Shopping Showcase(Trademark) a leader in the retail marketing
of merchandise originally sold on TV.
The Company believes that Home Shopping Showcase(Trademark) can capture a
meaningful share of the current DRTV merchandise market, and then significantly
increase the size of this market by developing programs that will enable it to
exploit what the Company believes to be the currently underdeveloped, and
potentially, explosive supermarket channel of distribution. In order to achieve
this, HSS(Trademark) believes that it must secure the rights to the best-selling
DRTV products, enroll supermarket chains in its permanent store-within-a-store
kiosk program, and execute store support operations in an effective and
cost-efficient manner.
The Company maintains its executive offices at 300 Park Avenue, Suite 1700,
New York, NY, Telephone number (212) 572-6209.
8
<PAGE>
RISK FACTORS
Investment in the securities being offered hereby is highly speculative and
involves a high degree of risk including, but not limited to, the Company's lack
of an operating history, the Company's dependence on the proceeds of this
offering to continue in business, the possible need for additional financing and
the Company's history of losses. The foregoing risks may prevent the Company
from generating any meaningful revenues and achieving profitability. As a result
of these and other risks, there can be no assurance that the Company will not
continue to incur losses in the future. The above represents a summary of the
risks related to an investment in this offering. Investors are urged to read the
Risk Factors commencing on page __ for a discussion of the material risks that
should be considered in evaluating the Company and its business.
9
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Securities Offered by
the Company(1)...................... 1,000,000 shares of Common Stock at a
price of $7.00 per share and 1,000,000
Class A Warrants at a price of $0.25 per
Warrant. See "Description of
Securities."
Securities Outstanding Prior
to the Offering:
Common Stock........................ 3,120,000
Preferred Stock..................... 720,000
Class A Warrants.................... 2,000,000
Securities Outstanding
Subsequent to the Offering(2):
Common Stock........................ 4,120,000
Preferred Stock(3).................. 720,000
Class A Warrants.................... 3,000,000
Use of Proceeds..................... Payment for the Purchase of HSS Stock,
Working Capital, Acquisitions and New
Product Development and Redemption of
Series A Preferred Stock. See "Use of
Proceeds."
Risk Factors........................ An investment in the securities offered
hereby involves a high degree of risk
and immediate substantial dilution of
the book value of the Common Stock and
should be considered only by persons who
can afford the loss of their entire
investment. See "Dilution" and "Risk
Factors."
Proposed Nasdaq Small-Cap
Market Symbols (4)................. MLDR
</TABLE>
(1) Concurrently with this offering, the Company is also registering 2,720,000
shares of Common Stock offered by affiliated and non-affiliated persons as
Selling Securityholders. See "Selling Securityholders" and "Certain
Transactions."
(2) Assumes no exercise of (i) the Over-Allotment Option to purchase 150,000
Shares and 150,000 Class A Warrants; (ii) the Representative's Option to
purchase up to 100,000 shares of Common Stock and 100,000 Class A Warrants;
and (iii) 3,000,000 Class A Warrants. See "Description of Securities" and
"Selling Securityholders."
(3) Assumes no redemption of Preferred Stock.
(4) Although the Company has applied for inclusion of the Common Stock on
Nasdaq, there can be no assurance that the Company's securities will be
included for quotation on Nasdaq, or if so included, that the Company will
be able to continue to meet the requirements for continued quotation, or
that a public trading market will develop or that if such
10
<PAGE>
market develops, it will be sustained. See "Risk Factors - Lack of Prior
Market for Common Stock."
SUMMARY FINANCIAL INFORMATION
The summary financial information presented below for the Company's
statement of earnings for the period June 22, 1995 (date of inception) through
November 30, 1995 and the three (3) months ended February 29, 1996 are derived
from the Company's financial statements and which appear elsewhere in this
report. See "Financial Statements. "
SUMMARY BALANCE SHEET DATA
<TABLE>
<CAPTION>
As Adjusted Actual
Feb. 29, 1996(2) Feb. 29, 1996 Nov. 30, 1995
---------------- ------------- -------------
<S> <C> <C> <C>
Working Capital (Deficit) 5,025,298 (107,202) 355,821
Total Assets ............ 9,555,075 4,422,575 4,521,204
Total Liabilities ....... 284,455 284,455 114,118
Stockholders Equity ..... 9,370,620 4,138,120 4,407,086
</TABLE>
SUMMARY STATEMENT OF OPERATIONS
<TABLE>
For the Period
For the three June 26, 1995
Months ended (date of inception)
Feb. 29, 1996 through November 30, 1995
------------- -------------------------
<S> <C> <C>
Net Revenue ................. 66,440 759,622
Gross Profit ................ 942 92,257
Loss from Operations ........ (278,763) (95,290)
Net Loss .................... (191,656) (2,578,038)
Net Loss Per Share(1) ....... (.05) (.66)
Weighed Average Number of
Common Shares outstanding(1) 3,900,000 3,900,000
</TABLE>
(1) Does not include the sale of 1,000,000 shares of Common Stock or 1,000,000
Class A Warrants in the proposed public offering. Does include the 720,000
additional preferred and common shares issued in connection with financings
in August and September of 1995 and March of 1996 (See Footnotes 8B and 10C
to the financial statements) and the options for 60,000 shares of Common
Stock at an exercise price of $2.50 issued to an employee of the Company
(see footnote 9 to financial statements).
(2) Gives effect to the net proceeds of the proposed public offering, the
issuance of an additional 120,000 preferred stock units for $100,000 and
the redemption of the preferred stock of $600,000.
11
<PAGE>
RISK FACTORS
An investment in the securities offered hereby is speculative and involves
a high degree of risk and substantial dilution and should only be purchased by
investors who can afford to lose their entire investment.
1. Dependence on Proceeds of this Offering to Continue in Business and
Implement Business Plan. The Company is dependent on the proceeds of this
Offering or other financings to continue in business and commence full
implementation of operations. Although the Company believes that the proceeds of
this offering will be adequate to enable the Company to implement its business
plan, there can be no assurance that the Company will not require additional
funds. If the Company should require such additional funds to sustain its
business, and if such funds are unavailable (by additional equity or debt
financing, loans or other financings), the Company will have to reduce its
operations to a level consistent with its available funding.
2. Qualified Auditor's Report of Accountants. As a result of the Company's
current financial conditions, the Company's independent auditors have qualified
their report on the Company's financial statement for the period ended November
30, 1995. The Company incurred a net loss for the period from inception June 22,
1995 to November 30, 1995 of approximately $2,600,000. For the three (3) months
ended February 29, 1996 the Company incurred a net loss of $191,656. The Company
expects to continue to utilize cash for operating activities for the foreseeable
future. The Company's independent auditor's report on the financial statements
includes an explanatory paragraph stating that the Company's ability to continue
in the normal course of business is dependent upon successful completion of its
planned public offering of equity securities to raise capital and the success of
future operating activities. These factors raise a substantial doubt about the
Company's ability to continue as a going concern. There can be no assurance that
the Company will not continue to incur net losses in the future. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Business," "Use of Proceeds" and "Financial Statements and Notes."
3. Possible Need For Additional Financing. The Company's cash requirements
are anticipated to be significant. The Company may require additional funds to
sustain its business. Such financing, if obtainable at all, may be on terms
significantly adverse to the Company's present stockholders and persons who
purchase Shares and Warrants in this Offering, in terms of dilution of book
value, dividend preferences, liquidation preferences or other factors. The
Company has no commitments for any additional financing. See "Management's
Discussion and Analysis of Financial Condition and Plan of Operation."
4. Recent Organization; History of Losses. The Company was organized in
June 1995. Potential investors should be aware of the problems, delays,
expenses and difficulties encountered by any new company. The Company will be
subject to numerous risks, expenses,
12
<PAGE>
problems and difficulties typically encountered in establishing a new business,
including unanticipated problems and additional costs relating to development
and testing of products, regulatory compliance and marketing and product
introductions. From inception June 22, 1995 to February 29, 1996, the Company
sustained a net loss in the amount of approximately $2,800,000 and the Company
expects to continue to incur operating losses until such time as it derives
meaningful revenues. See "Management's Discussion and Analysis of Financial
Condition and Plan of Operation" and "Business."
5. No Revenue; Probable Future Losses. The Company has not generated
significant revenue to date and does not expect to generate any significant
revenue until at least nine (9) months following the consummation of this
Offering. The Company intends to increase substantially its level of activities
following the consummation of this Offering. The Company anticipates that it
will incur losses until the Company generates sufficient revenues to offset its
operating costs and the costs of its proposed continuing expansion. See
"Management's Discussion and Analysis of Financial Condition and Plan of
Operation," "Business" and "Financial Statements."
6. Dependence on Third Parties and Limited Duration of License Rights. The
Company's business consists largely of its agreement with HSN Direct to create
and develop Home Shopping Showcase(Trademark). The agreement provides that HSN
Direct give KN2B, Inc. an exclusive license within the United States to use the
name Home Shopping Showcase(Trademark) and the Home Shopping Showcase(Trademark)
trademarks, logo and servicemarks for at least three years after KN2B, Inc.
commences the use of such name at any given retail location. The agreement
further provides that KN2B, Inc. cannot initiate the use of the HSS(Trademark)
name after December 31, 2000. The agreement does not contain any specific
provisions for the distribution of profits; however it provides for a 6% royalty
on net sales for each of ML Direct and HSN Direct and further provides for the
first two (2) years of the agreement, no more than 50% of the profits of
HSS(Trademark) will be distributed. The agreement provides that, if after the
first three (3) years HSS(Trademark) has not achieved $5,000,000 in gross
revenues, either ML Direct or HSN Direct shall have the option to terminate the
agreement. Any termination of the agreement will have a material adverse effect
on the Company. Further, the success of Home Shopping Showcase(Trademark) is
dependent or in part on HSN Direct's success in securing agreements for
marketing products and services from suppliers, distributors, and other third
parties for DRTV and retail distribution. There can be no assurance that HSN
Direct or Home Shopping Showcase(Trademark) will be able to secure such
agreements from such third parties or that the merchandise or services marketed
on DRTV will be successful in the retail markets. Similarly, there can be no
assurance that the Company will be able to capitalize on its connection with the
supermarket and other retail industries to establish retail distribution outlets
for Home Shopping Showcase(Trademark). The failure of either HSN Direct or the
Company to so contribute to the success of Home Shopping Showcase(Trademark)
will have a material adverse effect on the Company. In addition, the name
recognition provided by the HSN Direct trademarks, logos, and servicemarks,
including Home Shopping Showcase(Trademark) will contribute directly to the
success of the Company. Home Shopping Showcase(Trademark) and therefore the
Company, would be materially adversely affected by the
13
<PAGE>
loss of use of such intellectual property or if the value of such intellectual
property is diminished, either by HSN Direct's lack of success in the DRTV venue
or by infringement or misappropriation by an outside third party.
7. Uncertainty of Market Acceptance. Achieving retail market acceptance for
the products the Company is distributing will require substantial marketing
efforts. The Company intends to apply a portion of the proceeds of the Offering
to its marketing efforts. See "Use of Proceeds." Even if the Company consummates
the Offering, it may be required to seek additional financing to achieve its
marketing objectives. There can be no assurance that such additional financing
will be available, or that such financing will be on terms acceptable to the
Company.
8. Management to Maintain Broad Discretion in Application of Proceeds.
Approximately $632,500 (11%) of the estimated $5,732,500 of net proceeds from
the offering of the Common Stock will be applied to working capital.
Accordingly, the management of the Company will have broad discretion as to the
application and allocation of the net proceeds of this Offering. See "Use of
Proceeds."
9. Dilution. Upon completion of this Offering assuming no exercise of the
Representative's Over-Allotment Option, and without giving effect to the
exercise of the Over-Allotment Option or the Representative's Option or the
exercise of the Class A Warrants, but giving effect to the redemption of the
Preferred Stock for $600,000 and the issuances of 120,000 shares of common stock
in March 1996, the net tangible book value per share of the Company's Common
Stock will be $1.22. At the initial public offering price of $7.00 per Share,
investors in this offering will experience an immediate dilution of
approximately $5.78 or 83% in net tangible book value per share and existing
investors will experience an increase of approximately $1.22 per Share. In
addition, in the event of the exercise of the Representative's over-allotment
option, the Company will have a pro forma net tangible book value of $1.40 per
Share which will result in dilution to the public investors of $5.60 per Share.
See "Dilution."
10. Highly Competitive Industry. The Company expects to encounter intense
competition in the establishment of its program. Many of the Company's
competitors and potential competitors have substantially greater resources,
including capital, marketing capabilities and product pipeline. See "Business-
Competition."
11. Control by Stockholders. Upon completion of the offering of the Shares,
the current stockholders of the Company will, as a group, have the power to vote
approximately 69% of the total outstanding shares of Common Stock and 100% of
the Preferred Stock (assuming no exercise of the Over-allotment Option and the
Representative's Option). This means that the current holders of equity
securities of the Company will be able to elect all of the Company's directors
and to otherwise control the vote of most matters submitted to a vote of the
Company's stockholders. See "Principal Stockholders." Such control could also
preclude an unsolicited
14
<PAGE>
acquisition of the Company and consequently adversely affect the market price of
the Common Stock and Class A Warrants. See "Description of Securities."
12. Anti-Takeover Effect of General Corporation Law of Delaware. The
Company is governed by the provisions of Section 203 of the General Corporation
Law of Delaware, an anti-takeover law enacted in 1988. As a result of Section
203, potential acquirors of the Company may be discouraged from attempting to
effect acquisition transactions with the Company, thereby possibly depriving
holders of the Company's securities of certain opportunities to sell or
otherwise dispose of such securities at above-market prices pursuant to such
transactions. See "Description of Securities."
13. No Prior Public Market; Possible Volatility of Stock Price. Prior to
this offering there has been no public market for the Company's Common Stock or
Class A Warrants. The initial public offering price of the Common Stock and the
exercise price and the terms of the Warrants were arbitrarily determined by
negotiation between the Company and the representatives of the Representative,
and may not be indicative of the market price for the Common Stock or the Class
A Warrants in the future. See "Underwriting" for a discussion of the factors
considered in determining the initial public offering price. Prices for many
stocks fluctuate widely, often for reasons that may be unrelated to the
operating performance of such companies. Announcements of new offerings by the
Company or its competitors, economic and other external factors, as well as
period-to-period fluctuations in financial results, may have a significant
impact on the market price and marketability of the Company's Common Stock and
the Class A Warrants.
14. Lack of Prior Market for Common Stock; No Assurance of Public Trading
Market. Prior to this offering, no public trading market existed for the Common
Stock or the Class A Warrants. There can be no assurances that a public trading
market for the Common Stock or Class A Warrants will develop, or if so
developed, will be sustained. Although the Company anticipates that the Common
Stock and the Class A Warrants will be eligible for inclusion on the Nasdaq
Small-Cap Market System ("Nasdaq"), no assurance can be given that the Company's
securities will be listed on Nasdaq as of the Effective Date. Under prevailing
rules of the National Association of Securities Dealers, Inc ("NASD"), in order
to qualify for initial quotation of securities on Nasdaq, a company, among other
things, must have at least $4,000,000 in total assets, $2,000,000 in total
capital and surplus, $1,000,000 in market value of public float and a minimum
bid price of $3.00 per share. For continued Nasdaq listing, a company, among
other things, must have $2,000,000 in total assets, $1,000,000 in total capital
and surplus, $1,000,000 in market value of public float and a minimum bid price
of $1.00 per share. If the Company is unable to satisfy the requirements for
initial or continued quotation on Nasdaq, trading, if any, in the Common Stock
offered hereby would be conducted in the over-the-counter market in what are
commonly referred to as the "pink sheets" or on the NASD OTC Electronic Bulletin
Board. As a result, an investor may find it more difficult to dispose of, or to
obtain accurate quotations as to the price of, the securities offered hereby.
The above-described rules may materially adversely affect the liquidity of the
market for the Company's securities. See "Underwriting."
15
<PAGE>
15. Representative's Influence on the Market May Have Adverse Consequences.
Although it has no legal obligation to do so, the Representative from time to
time may act as market maker and otherwise effect transactions in the Company's
securities. However, there is no assurance that the Representative will continue
to be a dominating influence. The prices and liquidity of the Company's
securities may be significantly affected by the degree, if any, of the
Representative's participation in the market. The Representative may voluntarily
discontinue such participation at any time. Further, the market for, and
liquidity of, the Company's securities may be adversely affected by the fact
that a significant amount of the Shares or Warrants may be sold to customers of
the Representative.
16. "Penny Stock" Regulations May Impose Certain Restrictions on
Marketability of Securities. The Securities and Exchange Commission
("Commission") has adopted regulations which generally define"penny stock" to be
any equity security that has a market price (as defined) less than $5.00 per
share or an exercise price of less than $5.00 per share, subject to certain
exceptions. If the securities offered hereby are removed from listing by Nasdaq
at any time following the Effective Date, the Company's securities may become
subject to rules that impose additional sales practice requirements on
broker-dealers who sell such securities to persons other than established
customers and accredited investors (generally those with assets in excess of
$1,000,000 or annual income exceeding $200,000, or $300,000 together with their
spouse). For transactions covered by these rules, the broker-dealer must make a
special suitability determination for the purchase of such securities and have
received the purchaser's written consent to the transaction prior to the
purchase. Additionally, for any transaction involving a penny stock, unless
exempt, the rules require the delivery, prior to the transaction, of a risk
disclosure document mandated by the Commission relating to the penny stock
market. The broker-dealer must also disclose the commission payable to both the
broker-dealer and the registered representative, current quotations for the
securities and, if the broker-dealer is the sole market-maker, the broker-dealer
must disclose this fact and the broker-dealer's presumed control over the
market. Finally, monthly statements must be sent disclosing recent price
information for the penny stock held in the account and information on the
limited market in penny stocks. Consequently, the "penny stock" rules may
restrict the ability of broker-dealers to sell the Company's securities and may
affect the ability of purchasers in this Offering to sell the Company's
securities in the secondary market.
17. Arbitrary Determination of Offering Price. The initial public offering
price of the Common Stock and the exercise price and terms of the Warrants have
been arbitrarily determined by negotiations between the Company and the
Representative and does not bear any relationship to the Company's assets, book
value, net worth or results of operations of the Company or any other
established criteria of value. There is no relationship whatsoever between the
offering price of the Common Stock on the one hand and the Company's net worth,
projected earnings, book value, or any other objective criteria of value on the
other. See "Underwriting - Pricing of the Offering." See "Underwriting" and
"Description of Securities."
18. No Cash Dividends. The Company has paid no cash dividends on its Common
16
<PAGE>
Stock since its inception and does not intend to pay cash dividends on its
Common Stock in the foreseeable future. Any earnings which the Company may
realize in the foreseeable future will be retained to finance the growth of the
Company. See "Description of Securities."
19. Requirements of Current Prospectus and State Blue Sky Registration in
Connection with the Exercise of Class A Warrants. The Company will be able to
issue the securities offered hereby and/or shares of its Common Stock upon the
exercise of the Class A Warrants and Representative's Option only if (i) there
is a current prospectus relating to the Common Stock issuable upon the exercise
of the Class A Warrants or Representative's Option under an effective
registration statement filed with the Securities and Exchange Commission, and
(ii) such Common Stock is then qualified for sale or exempt therefrom under
applicable state securities laws of the jurisdictions in which the various
holders of Class A Warrants or Representative's Option reside. There can be no
assurance, however, that the Company will be successful in maintaining a current
registration statement. The Company will be prevented, however, from issuing
Common Stock upon exercise of the Class A Warrants in those states where
exemptions are unavailable and the Company has failed to qualify the Common
Stock issuable upon exercise of the Class A Warrants. The Company may decide not
to seek, or may not be able to obtain, qualification of the issuance of such
Common Stock in all of the states in which the ultimate purchasers of the Class
A Warrants reside. In such a case, the Class A Warrants of those purchasers will
expire and have no value if such Class A Warrants cannot be exercised or sold.
Accordingly, the market for the Class A Warrants may be limited because of the
Company's obligation to fulfill both of the foregoing requirements. See
"Description of Securities."
20. Representative's Option. In connection with this offering, the Company
will sell to the Representative, for nominal consideration, an option to
purchase up to an aggregate of 100,000 shares of Common Stock and 100,000 Class
A Warrants (the "Representative's Option"). The Representative's Option will be
exercisable commencing one (1) year from the Effective Date of this Offering and
ending five (5) years from the Effective Date, at an exercise price of $8.40 per
Share and $.30 per Warrant subject to certain adjustments. The holders of the
Representative's Option will have the opportunity to profit from a rise in the
market price of the Common Stock, if any, without assuming the risk of
ownership. The Company may find it more difficult to raise additional equity
capital if it should be needed for the business of the Company while the
Representative's Option is outstanding. At any time when the holders thereof
might be expected to exercise them, the Company would probably be able to obtain
additional capital on terms more favorable than those provided by the
Representative's Option. See "Dilution" and "Underwriting."
21. Shares Eligible for Future Sale May Adversely Affect the Market. All of
the Company's currently outstanding shares of Common Stock are "restricted
securities" and, in the future, may be sold upon compliance with Rule 144,
adopted under the Securities Act of 1933, as amended. Prospective investors
should be aware that the possibility of sales may, in the future, have a
depressive effect on the price of the Company's Common Stock in any market which
may
17
<PAGE>
develop and therefore, the ability of any investor to market his shares may be
dependent directly upon the number of shares that are offered and sold.
Affiliates of the Company may sell their shares during a favorable movement in
the market price of the Company's Common Stock which may have a depressive
effect on its price per share. See "Description of Securities."
22. Limitation on Director Liability. As permitted by Delaware corporation
law, the Company's Certificate of Incorporation limits the liability of
Directors to the Company or its stockholders for monetary damages for breach of
a Director's fiduciary duty except for liability in certain instances. As a
result of the Company's charter provision and Delaware law, stockholders may
have more limited rights to recover against Directors for breach of fiduciary
duty than as existing prior to the enactment of the law. See "Description of
Securities - Limitation on Liability of Directors."
23. Authorization of Preferred Stock and Potential Anti-Takeover Effect.
The Company's Certificate of Incorporation authorizes the issuance of preferred
stock with designations, rights and preferences determined from time to time by
the Board of Directors. Accordingly, the Board of Directors is empowered,
without stockholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting or other rights which could adversely affect the
voting power or other rights of the holders of Common Stock. In the event of
issuance, the preferred stock could be utilized, under certain circumstances, as
a method of discouraging, delaying or preventing a change in control of the
Company. The issuance of preferred stock with anti-takeover measures could have
a depressive effect on the market price of the Common Stock and could discourage
hostile bids in which stockholders may receive premiums for their shares. See
"Description of Securities - Preferred Stock."
24. Effect of Future Exercise of Options and Warrants. Sales of the
Company's Common Stock upon exercise of outstanding options and warrants and
options that may be issued in the future may have a depressive effect on the
price of the Units, the Common Stock and the Warrants, and issuance of
additional Common Stock upon the exercise of options, the Warrants, the
Underwriter's Options or otherwise will also dilute the proportionate ownership
of the then current stockholders of the Company. The Company has agreed with the
Representative not to issue shares of Common Stock without the Underwriter's
prior written consent during the 24-month period following the Closing Date,
other than pursuant to the Stock Option Plan and the Warrants.
18
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Shares of Common Stock
and Class A Warrants offered hereby, are estimated to be $5,732,500 (after
deducting approximately $725,000 in underwriting discounts and other expenses of
this Offering estimated to be $792,500, which includes the Representative's
nonaccountable expense allowance of $217,500 and a $100,000 financial consulting
fee payable to the Representative at the closing) (but not considering any
exercise of the Representative's over allotment option, or the Representative's
Option). There can be no assurance that the use of proceeds as indicated will
result in increased revenues from operations. The Company, based upon all
currently available information, intends to utilize such proceeds approximately
as follows:
<TABLE>
<CAPTION>
Approximate
Approximate Percentage(%)
Amount of of Net
Net Proceeds Proceeds
------------ --------
<S> <C> <C>
Purchase of HSS Stock (1) ...................... $4,000,000 69.8%
Working Capital ................................ $ 632,500 11.0%
Acquisitions and New Product Development(2) ... $ 500,000 8.7%
Redemption of Series A Preferred Stock ......... $ 600,000 10.5%
---------- ----
Total .......................................... $5,732,500 100%
</TABLE>
- ----------
(1) The Company intends to use $4,000,000 of the proceeds of this offering
to pay a stock subscription payable to HSS in connection with its
acquisition of 50.02% of the outstanding equity of KN2B, Inc. HSS
intends to use the proceeds of the subscription as follows:
Development and Production of In-Store Units ($1,500,000), Purchase of
Product Inventory ($1,357,000) Marketing and Advertising ($550,000)
and Working Capital ($593,000).
(2) The Company intends to acquire products and product rights as well as
to develop its own products for retail and other distribution.
The amounts set forth above are estimates. Should a reapportionment or
redirection of funds be determined to be in the best interests of the Company,
the actual amount expended to finance any category of expenses may be increased
or decreased by the Company's Board of Directors, at its discretion.
To the extent that the Company's expenditures are less than projected
and/or the proceeds of this offering increase as a result of the exercise by the
Representative of their Over-Allotment Option, the resulting balances will be
retained and used for general working capital purposes. Conversely, to the
extent that such expenditures require the utilization of funds in excess of the
amounts anticipated, additional financing may be sought from other sources, such
as debt financing from financial institutions, although there can be no
assurance that such additional
19
<PAGE>
financing, if available, will be on terms acceptable to the Company. See "Risk
Factors - Need For Additional Financing." The net proceeds of this Offering that
are not expended immediately may be deposited in interest bearing accounts, or
invested in government obligations or certificates of deposit.
20
<PAGE>
DILUTION
At February 29, 1996, the Company had outstanding an aggregate of 3,000,000
shares of Common Stock having an aggregate net tangible deficit value of
($107,202) or ($.04) per share, based on operating activity through February 29,
1996. Net tangible book value per share consists of total assets less intangible
assets and liabilities, divided by the total number of shares of Common Stock
outstanding. The shares of capital stock described above do not include any
securities subject to any outstanding warrants or options.
After giving effect to the sale of 1,000,000 shares of Common Stock and
1,000,000 Class A Warrants with net proceeds of $5,732,500, the redemption of
720,000 shares of Preferred Stock for $600,000 with the net proceeds of the
proposed public offering and the issuance of an additional 120,000 shares of
common stock in connection with the March 1996 $100,000 bridge loan, the pro
forma net tangible book value of the Common Stock would be $5,025,298 or
approximately $1.22 per share. This represents an immediate increase in pro
forma net tangible book value of $1.26 per share to the present shareholders and
an immediate dilution of $5.78 per share (83%) to the public purchasers. The
following table illustrates the dilution which investors participating in this
offering will incur and the benefit to current stockholders as a result of this
offering:
Public offering price of Common Stock offered hereby (1) 7.00
Net tangible deficit book value per
share prior to the offering.............. (.04)
Increase per share attributable
to Shares offered hereby................. 1.26
----
Pro Forma net tangible book value
per share after offering of 1,000,000
shares of Common Stock and 1,000,000
Class A Warrants(2)...................... 1.22
----
Dilution of net tangible book
value per share to purchasers
in this offering......................... 5.78
====
- ----------
(1) Before deduction of underwriting discounts, commission, fees and offering
expenses.
(2) Assumes redemption of 720,000 shares of Preferred Stock for $600,000.
21
<PAGE>
The following table shows the number and percentage of shares of capital
stock purchased and acquired and the amount and percentage of consideration and
average price per share paid by existing stockholders as of February 29, 1996
and to be paid by purchasers pursuant to this offering (based upon the
anticipated public offering price of $7.00 per share and $.25 per Warrant before
deducting underwriting discounts and commissions and estimated offering
expenses).
Shares of Aggregate
Common Percent Cash Percent of Average
Stock of Equity Consideration Total Cash Price Per
Purchased Owned Paid Consideration Share
--------- --------- ------------- ------------- ---------
New
Shareholders 1,000,000 24% $7,000,000 95.9% $7.00
Existing
Shareholders 3,120,000 76% $ 300,240 4.1% $ .10
- --------------------------------------------------------------------------------
TOTAL 4,120,000 100% $7,300,240 100%
The foregoing table gives effect to the sale of the Common Stock offered
hereby but without giving effect to the exercise of the Representative's Option,
or any securities issuable upon the exercise of the Representative's
Over-Allotment Option or any outstanding options or warrants, including those
held by the Selling Securityholders.
22
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
February 29, 1996 and as adjusted gives effect to the sale of 1,000,000 shares
of Common Stock and 1,000,000 Class A Warrants offered hereby and the
application of net proceeds therefrom. The table is not adjusted to give effect
to the exercise of the Over-Allotment Option, the Class A Warrants, the
Representative's Option or any other outstanding warrants or options. This table
should be read in conjunction with the Financial Statements of the Company,
including the notes thereto, appearing elsewhere in this Prospectus.
<TABLE>
<CAPTION>
Actual(1) Adjusted(2) Adjusted(3)
--------- ----------- -----------
<S> <C> <C> <C>
LONG TERM DEBT .................. -- -- --
----------- ------------ ------------
----------- ------------ ------------
STOCKHOLDERS' EQUITY:
REDEEMABLE
CONVERTIBLE
PREFERRED STOCK ................. 250,000 300,000 --
Common Stock, $.0001 par
value, 3,000,000 shares issued
and outstanding (4,120,000
shares outstanding as
adjusted) ....................... 300 412 412
Additional paid-in capital ...... $ 4,852,740 $ 11,235,128 $ 10,935,128
----------- ------------ ------------
----------- ------------ ------------
Common Stock
Subscribed ...................... $ 4,000,000 -- --
Retained Earnings (Deficit) ..... (2,769,694) $ (3,369,694) $ (3,369,694)
----------- ------------ ------------
----------- ------------ ------------
Non-Controlling Interest ........ 1,898,274 1,898,274 1,898,274
----------- ------------ ------------
----------- ------------ ------------
Less: Stock Subscription ........ (4,000,000) -- --
Less: Deferred
Compensation
Expense.......................... (93,500) (93,500) (93,500)
----------- ------------ ------------
----------- ------------ ------------
TOTAL STOCKHOLDERS'
EQUITY .......................... $ 4,138,120 $ 9,970,620 $ 9,370,620
----------- ------------ ------------
----------- ------------ ------------
TOTAL CAPITALIZATION ............ 4,138,120 $ 9,970,620 $ 9,370,620
----------- ------------ ------------
----------- ------------ ------------
</TABLE>
23
<PAGE>
(1) Does not include the sale of 1,000,000 shares of Common Stock or the sale
of 1,000,000 Class A Warrants hereby offered or the redemption of 720,000
shares of Preferred Stock for $600,000 with the net proceeds of the
proposed public offering.
(2) As adjusted reflects the net proceeds of approximately $5,732,500 from the
proposed sale of 1,000,000 shares of Common Stock and the sale of 1,000,000
Class A Warrants and the issuance of 120,000 preferred stock units for
$100,000 in March of 1996. The 120,000 Preferred Stock units consist of
120,000 shares of Preferred Stock and 120,000 shares of Common Stock. The
Company allocated $50,000 each to Preferred and Common Stock. The Company
recorded a deferred financing cost of $600,000 in March of 1996, which
represents the fair value for these shares of stock issued and also
recorded the $600,000 as additional paid in capital on the Common Stock.
(3) As adjusted reflects the redemption of Preferred Stock for $600,000 with
the net proceeds of the public offering.
24
<PAGE>
DIVIDEND POLICY
Holders of the Company's Common Stock are entitled to cash dividends when,
as and if declared by the Board of Directors out of funds legally available
therefore. The Company has not in the past and does not currently anticipate the
declaration or payment of any cash dividends in the foreseeable future. The
Company intends to retain earnings, if any, to finance the development and
expansion of its business. Future dividend policy will be subject to the
discretion of the Board of Directors and will be contingent upon future
earnings, if any, the Company's financial condition, capital requirements,
general business conditions and other factors. Therefore, there can be no
assurance that any cash dividends of any kind will ever be paid.
25
<PAGE>
SELECTED FINANCIAL DATA
The selected financial data presented below for the Company's statement of
earnings for the period June 22, 1995 (date of inception) through November 30,
1995 and the three (3) months ended February 29, 1996 are derived from the
Company's financial statements and which appear elsewhere in this report. See
"Financial Statements."
SUMMARY BALANCE SHEET DATA
<TABLE>
<CAPTION>
As Adjusted Actual
Feb. 29, 1996(2) Feb. 29, 1996 Nov. 30, 1995
---------------- ------------- -------------
<S> <C> <C> <C>
Working Capital (Deficit) 5,025,298 (107,202) 355,821
Total Assets 9,555,075 4,422,575 4,521,204
Total Liabilities 284,455 284,455 114,118
Stockholders Equity 9,370,620 4,138,120 4,407,086
<CAPTION>
SUMMARY STATEMENT OF OPERATIONS
For the Period
For the three June 22, 1995
Months ended (date of inception)
Feb. 29, 1996 through November 30, 1995
------------- -------------------------
<S> <C> <C>
Net Revenue 66,440 759,622
Gross Profit 942 92,257
Loss from Operations (278,763) (95,290)
Net Loss (191,656) (2,578,038)
Net Loss Per Share(1) (.05) (.66)
Weighed Average Number of
Common Shares outstanding(1) 3,900,000 3,900,000
</TABLE>
(1) Does not include the sale of 1,000,000 shares of Common Stock or 1,000,000
Class A Warrants in the proposed public offering. Does include the 720,000
additional preferred and common shares issued in connection with financings
in August and September of 1995 and March of 1996 (See Footnotes 8B and 10C
to the financial statements) and the options for 60,000 shares of Common
Stock at an exercise price of $2.50 issued to an employee of the Company
(see footnote 9 to financial statements).
(2) Gives effect to the net proceeds of the proposed public offering, the
issuance of an additional 120,000 preferred stock units for $100,000 and
the redemption of the preferred
26
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
- --------------------------------------------------------------------------------
The following discussion should be read in conjunction with the financial
statements of the Company and notes thereto included elsewhere herein:
Overview
ML Direct initiated its operations in June of 1995 with the intent of
establishing permanent display programs in retail outlets to sell direct TV
["DRTV"] merchandise. The success of DRTV merchandise in retail outlets is well
documented; however, management believes that it could be further enhanced as a
result of integrated strategic product selection and merchandising. This is
specially true in supermarkets, where there is neither the infrastructure nor
focus needed to exploit the success of hot new DRTV items on an ongoing basis.
ML Direct's agreement with HSN Direct will provide the necessary ingredients for
success with ML Direct providing the sales and marketing expertise and HSN
Direct contributing a strong brand name and access to a steady pipeline of
tested DRTV merchandise.
"HSS(Trademark) will present retailers with two types of opportunities:
permanent store-within-a-store kiosks [which are to be instituted initially in
supermarkets] and promotional sales programs [which will involve the
distribution of in-and-out displays of individual products or merchandise
grouped by "theme" ["the promotional sales business"]]. The kiosk program will
be rolled out in a measured manner, both to insure proper management of
operational complexities, and to stay in line with the available expansion
capital provided by a combination of ML Direct's initial cash infusion, as
supplemented with HSS(Trademark)'s own free operating cash flow. The best
selling DRTV and related merchandise will be marketed through all forms of
retail distribution via promotional sales programs. By employing experienced
professionals with extensive knowledge of, and relationships with, Home
Shopping Network, the Company will be able to select the best products, and
then refine and repackage them for retail success."
27
<PAGE>
Results of Operations
Discussion for the results of operations are presented in the following table:
<TABLE>
<CAPTION>
Period ended Three months ended
November 30, February 29,
1995 1996
------------ ------------
<S> <C> <C>
Revenues $ 759,622 $ 66,440
Gross Profit $ 92,257 $ 942
Operating Expenses $ 187,547 $ 279,705
Loss from Operations $ (95,290) $(278,763)
Net Loss $(2,578,038) $(191,656)
</TABLE>
For the Three Months ended February 29, 1996
Revenues for the period ended February 29, 1996 were approximately $66,000. The
revenue was comprised of approximately $55,000 from the promotional sales
business and approximately $11,000 from the Kiosk program. The Company's gross
profit on these sales was approximately $1,000 or 2% of revenue. This low gross
profit margin was attributed to a gross loss of approximately $5,600 in the
promotional business. This gross loss was mainly attributable to start-up costs
of this program. The gross profit for the promotional sales business was in line
with the Company's expectations. "HSS(Trademark) is currently operating a pilot
of its store-within-a-store kiosk program in four supermarkets. Each of these
four pilots is offering a mix of best-selling DRTV product, leading
"collectibles" and "gift" merchandise lines, and a variety of
celebrity-sponsored goods. The management of the supermarket chain within which
the pilot is being conducted is working closely with HSS(Trademark) to refine
the program prior to its broader rollout. Based on several presentations to
other supermarket chains, HSS(Trademark) and the Company believe that there is
sufficient interest in the kiosk program to meet or exceed its rollout plans.
In addition, HSS(Trademark) has already garnered the rights to represent two
manufacturers of DRTV products, including one of the industry's leaders, for
retail distribution, and has hired an experienced Director of Promotional
Sales, to launch its promotional sale business.
28
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
- --------------------------------------------------------------------------------
Results of Operations [Continued]
For the Three Months ended February 29, 1996
Operating expenses for the period ended February 29, 1996 were approximately
$280,000. The most significant expense was reimbursed expenses to related
parties. The Company reimbursed a partnership in which both of the partners are
shareholders in the Company. The Company reimbursed this partnership for
expenses incurred for the Company through February 29, 1996 as follows:
<TABLE>
<S> <C>
Rent and Utilities $20,765
Travel and Entertainment 17,488
Outside Services 38,240
Compensation and Benefits 811
Other Services 1,055
-------
Total $78,359
=======
</TABLE>
The Company's net loss for the three months ended February 29, 1996 was
approximately $192,000 after allocating to the minority interest their
applicable portion of the loss. The majority of this net loss was attributable
to compensation expense of approximately $66,000 and reimbursed expenses to a
related party of approximately $78,000. The minority interest's portion of the
net loss was $85,809.
For the Period Ended November 30, 1995
Revenues for the period ended November 30, 1995 were approximately $760,000 with
a gross profit of approximately $92,000 or 12% of revenues. The Company's net
revenues were from one customer who is a non-supermarket retail outlet. The
revenue realized by the Company for the period ended November 30, 1995 was in
keeping with HSS(Trademark) promotional sales business plan [See overview of
MD&A for detailed discussion of promotional sales]
Operating expenses for the period ended November 30, 1995 were approximately
$188,000. The most significant expense was reimbursed expenses to related
parties. The Company reimbursed a partnership in which both of the partners are
shareholders in the Company. The Company reimbursed this partnership for
expenses incurred for the Company through November 30, 1995 as follows:
29
<PAGE>
Rent and Utilities $ 11,782
Travel and Entertainment 47,786
Outside Services 57,000
Compensation and Benefits 7,795
Other Services 3,989
--------
Total $128,352
========
The Company's net loss for the five months ended November 30, 1995 was
approximately $2,600,000 after allocating to the minority interest their
applicable portion of the loss. The majority of this net loss was attributable
to the non-cash stock issuance cost of $2,500,000 that was charged to operations
for the 600,000 shares of preferred and common stock issued in August and
September of 1995 in connection with the $500,000 financing transaction. The
minority's interest portion of the net loss was $15,116.
30
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
- --------------------------------------------------------------------------------
Liquidity and Capital Resources
For the Three Month Ended February 29, 1996
The Company has a working capital deficit of $107,202 at February 29, 1996.
Operating activities for the three month period ended February 29, 1996 utilized
$119,189 in cash. The Company also utilized $130,120 in cash for investing
activities. ML Direct has no material commitments for capital expenditures. The
Company expended approximately $125,000 in the period ended February 29, 1996 on
display costs. Financing activities utilized approximately $65,000 for deferred
offering costs.
The cash balance at February 29, 1996 was approximately $22,000. The Company
believes that its proposed public offering, with net proceeds of approximately
$5,732,500, will provide sufficient working capital for approximately the next
15 months and will enable the Company to pay the $4,000,000 stock subscription
for the 1,500 shares of common stock issued for its investment in KN2B, Inc.,
doing business as Home Shopping Showcase ["HSS"]. Should the Company be
unsuccessful in its ability to pay the $4,000,000 and as a result HSND demands
the return of their trademarks and other non-monetary assets contributed, the
Company believes that it could and would continue to operate the program and
control 100% of HSS. HSS intends to spend the proceeds of approximately
$4,000,000 for the development and production of In Store Units in the amount of
$1,500,000, $1,400,000 for product inventory, $550,000 for marketing and
advertising, and the balance of approximately $600,000 for working capital.
The Company is dependent on the proceeds of the proposed public offering to
continue operations. However, if such funds are unavailable, the Company will
have to continue to pursue other debt or equity financing and reduce its
operations to a level consistent with available funding. There can be no
assurances that the Company will be successful in obtaining the necessary
financing should the proposed public offering not be completed.
There are no known trends or uncertainties which have had or are expected to
have a material impact on the Company's operations.
For the Period Ended November 30, 1995
The Company has working capital of $355,821 at November 30, 1995. Operating
activities from the period of inception, June 29, 1995, through November 30,
1995 utilized $61,211 in cash. The Company also utilized $100,565 in cash for
investing activities during this
31
<PAGE>
period. ML Direct has no material commitments for capital expenditures. The
Company expended approximately $40,000 in the period ended November 30, 1995 on
display costs. Financing activities in the period ended November 30, 1995
generated approximately $500,000 resulting from preferred stock units being
issued.
Cash and equivalents at November 30, 1995 were approximately $337,000. The
Company believes that its proposed public offering, with net proceeds of
approximately $5,732,500, will provide sufficient working capital for
approximately the next 15 months and will enable the Company to pay the
$4,000,000 stock subscription receivable for the 1,500 shares of common stock
issued for its investment in KN2B, Inc., doing business as Home Shopping
Showcase ["HSS"]. Should the Company be unsuccessful in its ability to pay the
$4,000,000 and as a result HSND demands the return of their trademarks and other
non-monetary assets contributed, the Company believes that it could and would
continue to operate the program and control 100% of the HSS. HSS intends to
spend the proceeds of approximately $4,000,000 for the development and
production of In Store Units in the amount of $1,500,000, $1,400,000 for product
inventory, $550,000 for marketing and advertising, and the balance of
approximately $600,000 for working capital.
There are no known trends or uncertainties which have had or are expected to
have a material impact on the Company's operations.
32
<PAGE>
BUSINESS
General
ML Direct Inc. (the "Company" or "ML Direct") was incorporated in the State
of Delaware on June 22, 1995. The Company was founded to expand the marketing
opportunities of products that have already achieved sales success through
direct response television (DRTV) including both infomercials and shopping
networks. To do so, ML Direct has hired, and will continue to hire, seasoned
DRTV and consumer marketing industry executives and has pursued and will
continue to pursue affiliations with both product suppliers and various channels
of product distribution.
ML Direct intends to both acquire the rights to, and itself develop,
certain products for consumer distribution. In so doing so, it will exploit both
domestic and international markets, and rely on distribution through
supermarkets, mass merchandisers, drug chains, and department stores (broad
retail distribution), as well infomercials and shopping networks (electronic
retailing) and catalogs and print media (direct marketing). The Company's
initial focus, however, will be to capitalize and expand upon the already
established pattern of success that certain products which are first introduced
to the marketplace via electronic retailing enjoy when they are subsequently
made available at retail.
The Company owns 50.02% of the outstanding equity of KN2B, Inc., which does
business under the name Home Shopping Showcase(Trademark), Inc.
("HSS(Trademark)" or "Home Shopping Showcase(Trademark)"). The remaining 49.98%
of Home Shopping Showcase(Trademark) is owned by HSN Direct Joint Venture (HSN
Direct), which was, until recently, a subsidiary of The Home Shopping Network,
Inc. (HSN), and is now a subsidiary of Flextech P.L.C. (a UK company which
itself is a subsidiary of Telecommunications Company, Inc. (TCI)). HSN
continues to hold a minority equity position in HSN Direct. The Company has no
affiliation with the HSN. Home Shopping Showcase(Trademark) intends to
capitalize and expand upon the already established pattern of success that
certain products first introduced to the marketplace via direct response
television (DRTV) enjoy when they are subsequently made available at retail.
See "Certain Transactions."
Home Shopping Showcase(Trademark) will use the well established Home
Shopping brand name and will focus its resources on creating and implementing
permanent in-store programs that will the Company believes will establish it as
a distribution source to retail outlets for DRTV products seeking such
distribution. The Company will utilize the Home Shopping brand name to launch
its programs, relying on the familiarity of the name with consumers. The
Company believes that as it expands its programs and sources of product, the
Home Shopping Showcase(Trademark) name will become less prominent and replaced
with a more descriptive new brand name.
33
<PAGE>
Home Shopping Showcase(Trademark) believes that it will be able to achieve
success in the retail distribution of DRTV merchandise through its agreement
with HSN Direct. This strategic alliance entitles the Company to the exclusive
marketing rights to the products and services of HSN Direct and gives it easy
entree to products sold on HSN. The Company believes that it is uniquely
positioned for the next stage of growth in the retail marketplace through the
supermarket channel of distribution.
Home Shopping Showcase(Trademark): The Company
Home Shopping Showcase(Trademark) brings together HSN Direct, the
infomercial division of The Home Shopping Network, Inc. and ML Direct, an
innovative marketing company with strong ties to the supermarket and other
retail industries. HSN Direct and ML Direct contribute the following to Home
Shopping Showcase(Trademark): knowledge, credibility, and contacts, as well as
all of their existing rights and agreements respecting products, services,
programs, and promotions introduced through DRTV for sales and marketing within
the field of domestic retail distribution. The Company believes that these
contributions should make Home Shopping Showcase(Trademark) a leader in the
retail marketing of merchandise sold on television.
Home Shopping Showcase(Trademark)'s plan is to quickly capture a
meaningful share of the current DRTV market, and then to significantly increase
the size of this market by developing programs that will enable it to exploit
new avenues of distribution, including what the Company believes the currently
underdeveloped, and potentially explosive, supermarket channel.
HSS(Trademark) intends to present retailers with two types of
opportunities: (i) permanent store-within-a-store kiosks, which are to be
instituted initially in supermarkets, and (ii) promotional sales programs,
which will provide them with in-and-out display programs of individual products
or "themed" merchandise groupings to all forms of retail distribution. The
Company intends to implement the kiosk program gradually to insure proper
management of operational complexities and to stay in line with the available
expansion capital provided by a combination of ML Direct's initial cash
infusion and HSS(Trademark)'s positive cash flow. Best-selling DRTV and related
merchandise will be marketed to all forms of retail distribution by promotional
sales programs. By employing experienced professionals with extensive knowledge
of, and relationships within HSN, the Company believes that it will be able to
select the best products and then refine and repackage them for optimal retail
success.
Background
The "As Seen On TV" Retail Marketplace:
In 1984, the Federal Communication Commission removed certain regulations
which limited television commercial time, thereby permitting the creation of
long-form commercials (or "infomercials") as well as dedicated television
shopping channels, which were quickly
34
<PAGE>
recognized as new outlets of distribution for both new and established consumer
products. These new methods of marketing have afforded undercapitalized
manufacturers of lesser known products an inexpensive testing ground for new
product introductions. These direct response channels of distribution have grown
to over five (5) billion dollars in annual consumer sales.
New products which show promise in DRTV are often repackaged, repositioned,
and repromoted to retail as "As Seen On TV" merchandise. To date, the retail
distribution sought and realized for such products has been largely limited to
the mass merchants, such as Kmart and WalMart. Yet even this limited amount of
distribution has resulted in impressive retail sales.
Examples of the retail success of products first introduced through DRTV by
companies unrelated to HSS(Trademark) include:
o Tripledge Wiper Blades, which sold over 1,000,000 units on
television, has already sold over 25,000,000 units at retail.
o Smart Mop began by selling 500,000 units on television. During
its first three months on the market it sold over 1 million units
a month at retail.
o Ambervision has sold over 15 million pairs of sunglasses in
stores over the past five years; Morgan Fairchild's Dental White
sold 3 million units in one year and, over 8 million Magic
Hangers were sold at retail last year alone.
Not all products that were initially introduced through DRTV have achieved
retail success and there can be no guarantee that HSS(Trademark) will be able to
achieve success with any or all of its retail product offerings.
Despite its already impressive size, the DRTV retail marketplace is less
than seven years old and still in its formative stage. The Company believes that
important channels of retail distribution, particularly supermarket chains, are
still largely undeveloped.
The Supermarket
DRTV products have, to date, realized very limited distribution in
supermarkets which the Company believes is a result of both the selling behavior
of DRTV product distributors and the buying behavior of supermarket retailers.
Home Shopping Showcase(Trademark) was formed to overcome the obstacles that the
Company believes has prevented supermarkets and certain other retail accounts
from achieving their potential in DRTV products, and to create and implement
the programs that the Company believes will allow them to quickly become full
participants in this significant, high margin product
35
<PAGE>
category. The Company believes that some of these obstacles have included (i)
DRTV merchandise suppliers not knowing how, and not being willing, to undertake
the expense to penetrate the fragmented supermarket industry and (ii) the lack
of credible information on DRTV merchandise sales available to general
merchandise buyers in supermarkets which these buyers require to support their
choosing appropriate merchandise for retail sale.
The Company believes that DRTV is a product-driven industry in which
hundreds of products are tested on television each year, and those which prove
successful on DRTV are brought to the retail marketplace. Management believes
that it is virtually impossible for the retail distributor of any given DRTV
product to navigate the complex supermarket marketplace in an effective and
cost-efficient manner. At the same time, the breadth of general merchandise
opportunities presented to a typical grocery chain buyer is staggering, with the
vision to pinpoint the right ones for his particular customer base often beyond
his savvy. A few DRTV merchandise distribution organizations exist with the
wherewithal to develop sales and merchandising forces capable of selling to and
servicing supermarket accounts, but their success has been limited.
Nonetheless, Home Shopping Showcase(Trademark) believes that supermarkets
present the single biggest retail opportunity for DRTV products, and expects
supermarket sales to quickly surpass those of mass merchandisers, as
significant penetration is made into this channel of distribution with the
development of a Home Shopping Showcase(Trademark) program.
Although supermarkets and mass merchandisers share a customer base
(everyone in America), supermarkets have the important advantage of seeing these
customers with significantly more frequency (2.2 visits each week vs. 1.5 visits
each week). The Company believes that supermarket "exposures" to DRTV products
act like media impressions to reinforce the advertising message delivered via
television, thus helping to build a broad consumer "intent to purchase" the
items so "advertised."
Furthermore, supermarkets get their customers at a time when they are in a
unique, and ideal, frame of mind: with money to spend in their pockets and
little idea of what they're going to spend it on (70+% of all supermarket
purchases are unplanned). DRTV items are, by their very nature, designed for an
impulse purchase, whether that purchase is made on television or in a store.
Moreover, supermarket shoppers typically visit every aisle of the store in
the course of making their purchase decisions. When a shopper goes to a mass
merchandiser, he or she tends to have a specific product purchase in mind, and
thus heads right to the location of the desired item. Little, if any, additional
time is committed to exploring the store to consider unplanned purchases.
Home Shopping Showcase(Trademark) believes that it can realize significant
penetration for "As Seen On TV" products in supermarkets by following the proven
strategy of certain other non-
36
<PAGE>
food product categories, such as videos, greeting cards, film processing and
fresh flowers. Each has become a rapidly growing and highly profitable category
of supermarket sales. Distributors of these products initially had to convince a
supermarket to stock items that at first blush seem so incongruous with the
environment. However, several companies have now made it easy and profitable for
supermarkets to become major players in these categories by managing product
selection and merchandising.
Through its association with ML Direct and HSN Direct, Home Shopping
Showcase(Trademark) has acquired the expertise and contacts necessary to create
and implement similar turn-key, "DRTV" merchandise programs in the leading
supermarkets throughout the country. The Company's management includes
individuals with years of industry experience. See "Management." Home Shopping
Showcase(Trademark) will organize and manage a store's entire selection and
display of "DRTV" merchandise under the Home Shopping Showcase(Trademark) name.
Home Shopping Showcase(Trademark) will regularly supply and rotate the product
mix at each and every supermarket location to assure that the newest and most
popular DRTV products are always available. Home Shopping Showcase(Trademark)
will draw from a large selection of successful DRTV products, using the wealth
of information it has at its disposal from HSN Direct, to actualize a highly
scientific approach to product distribution, and will closely monitor each
store's sales and adjust the product assortment in that store to meet the
specific demands of its unique customer base. To fulfill this plan, Home
Shopping Showcase(Trademark) will operate with a revolving purchase order from
the store, making all the decisions for that store based on its knowledge of
the "As Seen On TV" industry. To date, the Company has not signed any
agreements with any supermarkets.
Home Shopping Showcase(Trademark) has exclusive domestic retail
distribution rights to all of HSN Direct's products, some of which extend
beyond supermarkets to other retail channels of distribution. Through its
relationship with HSN Direct, it will continue to have sufficient product to
fulfill all of those distribution needs. Moreover, ML Direct has obtained
world-wide distribution rights on one product and may seek to obtain rights to
additional products in the future.
Through its association with HSN Direct, Home Shopping Showcase(Trademark)
can avail itself of the full resources of a large distribution company. Under
the terms of the agreement, the Company will be able to contract with HSN
and/or HSN Direct at cost for almost all of its operational needs. HSN is one
of the largest and most sophisticated companies in the DRTV business with
state-of-the-art fulfillment capabilities to receive and process orders for its
retail accounts.
HSN has four distribution centers strategically located throughout the
United States with a combined warehouse and storage of approximately three
million square feet and is able to ship and track approximately 50,000 packages
a day. Home Shopping Showcase(Trademark) may use any or all of these facilities
and benefit from HSN's considerable distribution expertise and cost-saving
volume discounts. HSN Direct has offered to supply Home Shopping
Showcase(Trademark)
37
<PAGE>
with corporate offices, equipment, and office services under the same beneficial
terms. The Company has not utilized and it does not anticipate utilizing the
operational or logistic resources of HSN Direct or Home Shopping Network in the
forseeable future.
Home Shopping Showcase(Trademark) is supported by the expertise of HSN
Direct and ML Direct. Each partner contributes a unique dimension to the
operation of Home Shopping Showcase(Trademark). HSN Direct provides insights
and access to the realm of DRTV products while ML Direct provides insights and
access to retail distribution for these products.
Home Shopping Showcase(Trademark)
In June 1995, the Company entered into an agreement with HSN Direct which
provided for the creation of KN2B, Inc. which does business under the name Home
Shopping Showcase(Trademark). The agreement provides that HSS will develop
program to support the retail sale of products that have been introduced
through direct response television by establishing a "store within a store"
concept. The agreement provides that the Company owns 50.02% of HSS and HSN
Direct owns 49.98% of HSS. The Company has agreed that it will secure financing
of $4,000,000 for HSS. HSN Direct will provide HSS with a license to the Home
Shopping Showcase(Trademark) trademarks, logos and service marks within the
field of domestic retail distribution so that HSS may exploit all manner of
retail opportunities in the United States using such trademarks, logos and
service marks. This license provides for use of the HSS logo and name until
December 31, 2000, at retails sites established on or before January 1, 1998
and until the earlier of (i) December 31, 2003 or (ii) three (3) years after
establishment of retail sites established between January 1, 1998 and December
31, 2000. In addition, HSN Direct will contribute its rights and agreements for
the domestic retail distribution of its own and/or third-party products,
services, programs and promotions introduced through DRTV. The agreement also
provides that HSS will be managed by a board of directors consisting of two
representatives from each of HSN Direct and the Company. The Company has
appointed Nancy Shalek, Chairman of the Company's Board of Directors, and Alan
Kerzner, Executive Vice President of the Company to the Board of Directors of
HSS(Trademark). A representative of the Company will be the Chairman of the
Board who will be responsible for overseeing the day-to-day management of HSS.
The Chairman of the Board will have the right to cast an additional vote to
break a tie on all but certain matters before the Board of Directors as
specified in the Articles of Incorporation of KN2B, Inc. The matters for which
the chairman can not break a tie include among other things amendment of the
Certificate of Incorporation or By-laws, creation of any encumbrance not in the
ordinary course of business in excess of $50,000, acquisition of another
business and the making any material change in the business. There are no
provisions governing the resolution of the votes in situations where the
Chairman is not authorized to cast the deciding vote.
Employees
As of May 15, 1996, ML Direct has four (4) full-time employees, and
HSS(Trademark) has seven (7) full-time and two (2) part-time employees. Both
companies have plans for expanded work forces, with ML Direct looking to add
product sourcing and sales representatives. HSS(Trademark) will require a
visual merchandising executive, an operations manager, as well as additional
field marketing support.
38
<PAGE>
Legal Proceedings
The Company is not a party to any material pending legal proceedings.
39
<PAGE>
MANAGEMENT
Directors and Executive Officers
The names and ages of the directors, executive officers and significant
employees, and promoters of the Company are set forth below.
<TABLE>
<CAPTION>
Name Age Position Held
---- --- -------------
<S> <C> <C>
Nancy Shalek 41 Chairman of the Board and Director of ML
Direct and HSS(Trademark)
James M. Lawless 58 President, Chief Operating Officer and
Principal Accounting Officer, ML Direct,
Inc.
Alan Kerzner 38 Executive Vice President and Director of ML
Direct, Inc. and President and Chief
Operating Officer, Home Shopping
Showcase(Trademark)
Benedict V. White, Jr. 49 Executive Vice President, ML Direct, Inc.
</TABLE>
Background of Executive Officers and Directors
Nancy Shalek is the Chairman of the Board and a Director of the Company and
Chairman of the Board of HSS. She is currently President of On Site Media, Inc.,
a position which she has held since 1992 and she is currently a director of
Com/Tech Communications Technologies, Inc. and Advanced Voice Technologies, Inc.
Previously she served as Chairman of the Board of Directors of Site Holdings,
Inc., a public corporation, and as President of The Shalek Agency, an
advertising agency that she formed in 1988. From 1987 to 1988, Ms. Shalek served
as Executive Vice President and West Coast Director of the W.B. Doner
advertising agency. W.B. Doner acquired Wexler & Shalek, an agency which she co-
founded in 1983. From 1983 through 1987, Ms. Shalek served as President of
Wexler & Shalek. Prior to that time, she was employed by the Carnation Company
and by the Voit division of AMF Corporation. Ms. Shalek has received national
and western "Advertising Woman of the Year" awards and has lectured at
advertising industry conferences and business schools throughout the country.
Ms. Shalek holds a B.A. from the University of Pennsylvania and an M.B.A. from
the University of Southern California.
40
<PAGE>
James M. Lawless is President and Chief Operating Officer of the Company. From
1994 through 1996 he served as Chairman of the Board and President of Silver
King Communications Inc., a company which owns and operates television stations
and television production facilities. Prior to joining Silver King, Mr. Lawless
was an executive at the Home Shopping Club, a subsidiary of the Home Shopping
Network. He served as the Club's Senior Vice President of Network Operations
from 1987 to 1989, and as its President from 1990 to 1993. Mr. Lawless holds a
BA from La Salle University in Philadelphia.
Alan Kerzner is the Executive Vice President of the Company and President and
Chief Operating Officer of HSS, as well as a Director of both the Company and
HSS(Trademark). From 1991 to 1995 he served as a marketing director of Johnson &
Johnson's Consumer Products, Inc. Operating Company. Mr. Kerzner served as Vice
President of Marketing at The Rocking Horse Child Care Centers of America from
1989 to 1991. Prior to that, Mr. Kerzner held marketing positions at
Richardson-Vicks, a division of Procter & Gamble. He holds a B.A. from the
University of Rochester and an M.B.A. from the Wharton School of The University
of Pennsylvania.
Benedict V. White, Jr. is Executive Vice President of the Company. Prior to
joining the Company, Ben was the President of Celebrity Marketing, a division of
the Home Shopping Network. At the Home Shopping Network, Mr. White was at
various times, President of HSN Lifeway Health Products, a position he held for
5 years, and President, HSN Cosmetics
Executive Compensation
The following table provides summary information concerning cash and
certain other compensation paid or accrued by the Company to or on behalf of the
Company's Chief Executive Officer and each of the other most highly compensated
executive officers of the Company whose compensation exceeded $100,000 during
the last two (2) fiscal years.
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG-TERM COMPENSATION
AWARDS PAYOUTS
- ------------------------------------------------------------------------------------------------------------------------------
Name and Year Salary Bonus Other Annual Restricted Securities LTIP All
Principal Position ($) ($) Compensation Stock Underlying Payouts Other
($) Award(s) Options ($) Comp-
($) SARs ensation
(#) ($)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Alan Kerzner(1)
President 1995 12,500 -- -- -- 60,000 -- --
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Mr. Kerzner has an annual sale of $150,000 and was only paid for one (1)
month in the calendar year 1995.
41
<PAGE>
OPTION/SAR GRANTS IN LAST FISCAL YEAR
(Individual Grants)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Number of Percent of Total
Securities Options/SARs
Underlying Granted to
Options/SAR's Employees in Exercise or Base
Name Granted (#) Fiscal Year Price ($/Sh) Expiration Date
(a) (b) (c) (d) (e)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Alan Kerzner 60,000 100% $2.50 June 30, 2000
B............. ______________ ______________ ______________ ______________
C............. ______________ ______________ ______________ ______________
D............. ______________ ______________ ______________ ______________
- --------------------------------------------------------------------------------
</TABLE>
Each director of the Company is entitled to receive reasonable expenses not to
exceed $150.00 incurred in attending meetings of the Board of Directors of the
Company. The members of the Board of Directors intend to meet at least quarterly
during the Company's fiscal year, and at such other times duly called.
42
<PAGE>
Employment Agreements
The Company has entered into a three (3) year agreement, which expires
November 30, 1998, with Alan Kerzner pursuant to which Mr. Kerzner serves as the
Company's Executive Vice President. The agreement provides for Mr. Kerzner to
receive a salary of $150,000 per annum as well as payment of a bonus at the sole
discretion of the Board of Directors. The agreement also provides that the
Company purchase life insurance for Mr. Kerzner of not less than $500,000 which
shall be payable to his estate. Additionally, Mr. Kerzner was granted an option
to purchase 60,000 shares of ML Direct's Common Stock for $2.50 per share at any
time on or after July 1, 1996 and on or before June 30, 2000.
On April 15, 1996, the Company entered into a one (1) year employment
agreement with James Lawless pursuant to which Mr. Lawless serves as the
Company's President. The agreement provides that Mr. Lawless will receive a
salary of $120,000 per annum and a bonus at the discretion of the Board of
Directors. The agreement also provides that Mr. Lawless be issued an option to
purchase up to 100,000 shares of Common Stock at any time between January 1,
1997 and December 31, 2002 at a price of $4.20 per share. The agreement also
provides for the Company to purchase life insurance of not less than $500,000
which shall be payable to his estate.
On April 15, 1996, the Company entered into a one (1) year employment
agreement with Benedict White pursuant to which Mr. White serves as the
Company's Executive Vice President. The agreement provides that Mr. White will
receive a salary of $200,000 per annum and a bonus at the discretion of the
Board of Directors. The agreement also provides that Mr. White be issued an
option to purchase up to 100,000 shares of Common Stock at any time between
January 1, 1997 and December 31, 2002 at a price of $4.20 per share. The
agreement also provides that Mr. White has the right to receive an additional
500,000 options at fair market value in increments of 100,000 options during the
ensuing five year, if he is employed by the Company. The agreement also provides
for the Company to purchase life insurance of not less than $500,000 which shall
be payable to his estate.
Stock Option Plans and Agreements
Incentive Option and Stock Appreciation Rights Plan -- As of March 1996,
the Directors of the Company adopted and the stockholders of the Company
approved the adoption of, the Company's 1995 Incentive Stock Option and Stock
Appreciation Rights Plan ("Incentive Option Plan"). The purpose of the Incentive
Option Plan is to enable the Company to encourage key employees and Directors to
contribute to the success of the Company by granting such employees and
Directors incentive stock options ("ISOs") as well as non-qualified options and
stock appreciation rights ("SARs").
43
<PAGE>
The Incentive Option Plan will be administered by the Board of Directors or
a committee appointed by the Board of Directors (the "Committee") which
Committee will consist solely of independent directors (directors who are not
officers or employees of the Company), which will determine, in its discretion,
among other things, the recipients of grants, whether a grant will consist of
ISOs, non-qualified options or SARs or a combination thereof, and the number of
shares to be subject to such options and SARs.
The Incentive Option Plan provides for the granting of ISOs to purchase
Common Stock at an exercise price to be determined by the Board of Directors or
the Committee not less than the fair market value of the Common Stock on the
date the option is granted. Non-qualified options and freestanding SARs may be
granted with any exercise price. SARs granted in tandem with an option have the
same exercise price as the related option.
The total number of shares with respect to which options and SARs may be
granted under the Incentive Option Plan is 2,000,000. ISOs may not be granted to
an individual to the extent that in the calendar year in which such ISOs first
become exercisable the shares subject to such ISOs have a fair market value on
the date of grant in excess of $100,000. No option or SAR may be granted under
the Incentive Option Plan after April 15, 2005 and no option or SAR may be
outstanding for more than ten years after its grant. Additionally, no option or
SAR can be granted for more than five (5) years to a shareholder owning 10% or
more of the Company's outstanding Common Stock.
Upon the exercise of an option, the holder must make payment of the full
exercise price. Such payment may be made in cash or in shares of Common Stock,
or in a combination of both. The Company may lend to the holder of an option
funds sufficient to pay the exercise price, subject to certain limitations. SARs
may be settled, in the Board of Directors' discretion, in cash, Common Stock, or
in a combination of cash and Common Stock. The exercise of SARs cancels the
corresponding number of shares subject to the related option, if any, and the
exercise of an option cancels any associated SARs. Subject to certain
exceptions, options and SARs may be exercised any time up to three months after
termination of the holder's employment.
The Incentive Option Plan may be terminated or amended at any time by the
Board of Directors, except that, without stockholder approval, the Incentive
Option Plan may not be amended to increase the number of shares subject to the
Incentive Option Plan, change the class of persons eligible to receive options
or SARs under the Incentive Option Plan or materially increase the benefits of
participants.
To date no options or SARs have been granted under the Incentive Option
Plan. No determinations have been made regarding the persons to whom options or
SARs will be granted in the future, the number of shares which will be subject
to such options or SARs or the exercise prices to be fixed with respect to any
option or SAR.
44
<PAGE>
Non-Qualified Option Plan -- As of March 1996, the Directors and
stockholders of the Company adopted the 1995 Non-Qualified Stock Option Plan
(the "Non-Qualified Option Plan"). The purpose of the Non-Qualified Option Plan
is to enable the Company to encourage key employees, Directors, consultants,
distributors, professionals and independent contractors to contribute to the
success of the Company by granting such employees, Directors, consultants,
distributors, professionals and independent contractors non-qualified options.
The Non-Qualified Option Plan will be administered by the Board of Directors or
the Committee in the same manner as the Incentive Option Plan.
The Non-Qualified Option Plan provides for the granting of non-qualified
options at such exercise price as may be determined by the Board of Directors,
in its discretion. The total number of shares with respect to which options may
be granted under the Non-Qualified Option Plan is 2,000,000.
Upon the exercise of an option, the holder must make payment of the full
exercise price. Such payment may be made in cash or in shares of Common Stock
(based on the fair market value of the Common Stock on the date prior to
exercise), or in a combination of both. The Company may lend to the holder of an
option funds sufficient to pay the exercise price, subject to certain
limitations. Subject to certain exceptions, options may be exercised any time up
to three months after termination of the holder's employment.
The Non-Qualified Option Plan may be terminated or amended at any time by
the Board of Directors, except that, without stockholder approval, the
Non-Qualified Option Plan may not be amended to increase the number of shares
subject to the Non-Qualified Option Plan, change the class of persons eligible
to receive options under the Non-Qualified Option Plan or materially increase
the benefits of participants.
To date 966,000 options have been granted under the 1995 Non-Qualified
Option Plan.
45
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth information as of the date of this
Prospectus with respect to the beneficial ownership of the outstanding shares of
the Company's Common Stock by (i) any holder of more than five (5%) percent of
the outstanding shares; (ii) the Company's directors; and (iii) the directors
and officers of the Company as a group.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Percentage
(%) of Percentage
Share of Common (%) of
Common Stock Common Shares of
Name and Address of Stock Before Stock After Preferred
Beneficial Owner Owned Offering(1) Offering Stock(2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Alan Kerzner(3) 120,000 3.8 1.4 0
- --------------------------------------------------------------------------------
Sherbrooke Consulting, 553,500 17.7 0 0
Ltd.(4)
- --------------------------------------------------------------------------------
Special Equities, Inc.(5) 1,095,000 35.1 0 0
- --------------------------------------------------------------------------------
The MarketLink Group, 685,500 22.0 0 110,000
Ltd.(6)
- --------------------------------------------------------------------------------
Nancy Shalek (4) (7) 553,500 17.7 0 0
- --------------------------------------------------------------------------------
James Lawless -- -- -- --
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
All officers and directors as
a group (two (3) persons) 613,500 19.6 0 0
- --------------------------------------------------------------------------------
</TABLE>
- ----------
(1) Does not include the Common Stock issued pursuant to the over-allotment
option and the Representative's Option.
(2) Each share of Preferred Stock is convertible into two (2) shares of Common
Stock if not redeemed within six (6) months of the Closing of the public
offering.
(3) Includes 60,000 shares of Common Stock issuable upon exercise of 60,000
options. Does not include shares of Common Stock issuable upon exercise of
50,000 Class A Warrants..
(4) Sherbrooke Consulting, Ltd., a corporation wholly owned by Nancy Shalek,
Chairman of the Board of Directors of the Company is the record holder of
such shares. Ms. Shalek may be deemed to hold sole investment and voting
power over such shares. Does not include 60,000 shares of Common Stock and
shares of Common Stock issuable upon exercise of 60,000 Class A Warrants
and shares of Common Stock issuable upon the possible conversion of 60,000
shares of preferred stock owned by James Shalek, the husband of Ms. Shalek,
and 461,250 shares of Common Stock issuable upon exercise of 461,250 Class
A Warrants held by Sherbrooke.
(5) Special Equities, Inc. is a corporation whose sole shareholder is Michael
Lulkin. Does not include shares of Common Stock issuable upon the possible
exercise of 90,000 Class A Warrants.
(6) The MarketLink Group, Ltd. is a corporation whose sole shareholder is
Carole Landau. Does not include shares of Common Stock issuable upon the
possible conversion of 110,000 shares of Preferred Stock and shares of
Common Stock issuable upon exercise of 461,250 Class A Warrants.
(7) Includes 553,500 shares of Common Stock owned by Sherbrooke Consulting,
Ltd, a corporation wholly owned by Nancy Shalek.
46
<PAGE>
CERTAIN TRANSACTIONS
In June 1995, the Company entered into an agreement with HSN Direct which
provided for the creation of KN2B, Inc., which does business under the name Home
Shopping Showcase(Trademark). The agreement provides that HSS will develop
programs to support the retail sale of products that have been introduced
through direct response television by executing a "store within a store"
concept. The agreement provides that the Company owns 50.02% of HSS and HSN
Direct owns 49.98% of HSS. The Company has agreed that it will secure financing
of $4,000,000 for HSS. HSN Direct will provide HSS with a license to the Home
Shopping Showcase(Trademark) trademarks, logos and service marks within the
field of domestic retail distribution so that HSS may exploit all manner of
retail opportunities in the United States using such trademarks, logos and
service marks. This license provides use of the HSS logo and names until
December 31, 2000, at retail sites established on or before January 1, 1998 and
the earlier of (i) December 31, 2003 or (ii) three (3) years after
establishment of retail sites established between January 1, 1998 and December
31, 2000. In addition, HSN Direct will contribute its rights and agreements for
the domestic retail distribution of its own and/or third party products,
services, programs and promotions introduced through DRTV. The agreement also
provides that HSS will be managed by a Board of Directors consisting of two
representatives from each of HSN Direct and the Company. A representative of
the Company will be Chairman of the Board and take primary responsibility for
overseeing the day-to-day management of HSS. The Chairman of the Board will
have the right to cast an additional vote to break a tie on all but certain
matters before the Board of Directors as specified in the Articles of
Incorporation of KN2B, Inc. The matters for which the chairman can not break a
tie include among other things amendment of the Certificate of Incorporation or
By-laws, creation of any encumbrance not in the ordinary course of business in
excess of $50,000, acquisition of another business and the making any material
change in the business. There are no provisions governing the resolution of the
votes in situations where the Chairman is not authorized to cast the deciding
vote.
The Company has made payment in the amount of $128,352 to Marketlink, a
partnership consisting of two partners, The MarketLink Group, Ltd. ("MLG") and
Sherbrooke Consulting, Inc. to reimburse the partnership for expenses it
advanced on behalf of the Company. MLG is a principal stockholder of the Company
and Sherbrooke Consulting, Inc. is a corporation wholly owned by Nancy Shalek,
an officer and director and a principal stockholder of the Company.
In August and September 1995 and March 1996, the Company issued 720,000
shares of Preferred Stock that are a part of the Preferred Stock Units for
$600,000. The 720,000 Preferred Stock Units consisted of 720,000 shares of
Preferred Stock and 720,000 shares of Common Stock. The Preferred Stock is
convertible into one (1) share of Common Stock, unless, if after six (6) months
after the close of the proposed public offering, the Company has not redeemed
the Preferred Stock, in which case the conversion rate is two (2) shares of
Common Stock for one (1) share of Preferred Stock. The Company can redeem the
Preferred Stock for $.83 per share.
On March 1, 1996, the Company effected a six-for-five stock split.
47
<PAGE>
The Company believes that the terms of all of the transactions discussed in
this section were no less favorable to the Company than those which could have
been obtained from non-affiliated parties. Transactions between the Company and
its officers, directors, employees and affiliates will be on terms no less
favorable to the Company than can be obtained from unaffiliated parties.
48
<PAGE>
DESCRIPTION OF SECURITIES
The Company is offering 1,000,000 Shares of Common Stock, par value $.0001
per share, and 1,000,000 Class A Warrants.
Common Stock
The Company is authorized to issue up to 15,000,000 shares of Common Stock,
of which 3,120,000 shares were issued and outstanding as of the date of this
Prospectus. All of the issued and outstanding shares of Common Stock are fully
paid, validly issued and non-assessable.
Subject to the rights of holders of preferred stock, if any, holders of
shares of Common Stock of the Company are entitled to share equally on a per
share basis in such dividends as may be declared by the Board of Directors out
of funds legally available therefor. There are presently no plans to pay
dividends with respect to the shares of Common Stock. See "Dividend Policy."
Upon liquidation, dissolution or winding up of the Company, after payment of
creditors and the holders of any senior securities of the Company, including
preferred stock, if any, the assets of the Company will be divided pro rata on a
per share basis among the holders of the shares of Common Stock. The Common
Stock is not subject to any liability for further assessments. There are no
conversion or redemption privileges nor any sinking fund provisions with respect
to the Common Stock and the Common Stock is not subject to call. The holders of
Common Stock do not have any pre-emptive or other subscription rights.
Holders of shares of Common Stock are entitled to cast one vote for each
share held at all stockholders' meetings, including the annual meeting, for all
purposes, including the election of directors. The Common Stock does not have
cumulative voting rights.
Preferred Stock
The Company's Certificate of Incorporation authorizes 1,000,000 shares of
"blank check" preferred stock, 720,000 of which are outstanding, whereby the
Board of Directors of the Company shall have the authority, without further
action by the holders of the outstanding Common Stock, to issue shares of
preferred stock from time to time in one or more classes or series, to fix the
number of shares constituting any class or series and the stated value thereof,
if different from the par value, and to fix the terms of any such series or
class, including dividend rights, dividend rates, conversion or exchange rights,
voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price and the liquidation preference of such class
or series. The Company has agreed with the Representative that it will not issue
any such shares for a period of 24 months from the date of this Prospectus
without the prior written consent of the Representative.
49
<PAGE>
Series A Preferred Stock
Designation and Amount; Par Value. The shares of such series are designated
as Series A Preferred Stock and the number of shares constituting such series is
720,000, all of which are issued and outstanding prior to the Effective Date of
the offering hereof. The Series A Preferred Stock has $.0001 par value per
share.
Dividends. The Company shall pay preferential dividends to the holders of
the Series A Preferred Stock at the rate of eight percent (8%) per annum of the
liquidation preference or $.08 per share. The amount of dividends payable for
the initial dividend period shall be computed on the basis of 360-day year from
the Effective Date through January 1, 1997. Such dividends shall accrue whether
or not they have been declared and whether or not there are profits, surplus or
other funds of the Company legally available for the payment of dividends. The
Company may in its discretion issue in lieu of a cash dividend shares of Common
Stock having a fair market value equal to the dividend amount.
Conversion. Each share of Series A Preferred Stock is convertible into,
at the option of the holder, provided however, that in the event the Company has
not redeemed the Preferred Stock within six (6) months after the closing of this
offering, then each share of Preferred Stock is convertible into two (2) shares
of Common Stock.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company, each share
of Series A Preferred Stock shall have a liquidation preference of $.83 per
share plus unpaid annual dividends that have accrued to date of payment.
Voting Rights. The holders of Series A Preferred Shares shall have no right
to vote on matters presented to the stockholders of the Company.
Redemption. The Series A Preferred Stock is subject to redemption by the
Company, upon thirty (30) days prior written notice at a price of approximately
$.833 per share.
Rank. The shares of Series A Preferred Stock rank senior to all series of
preferred stock in all respects.
Class A Warrants
Each Class A Warrant (the "Class A Warrants" or "Warrants") represents the
right to purchase one share of Common Stock at an exercise price of $8.00 per
share, for a period of four (4) years, commencing one year after the Effective
Date of this Offering. Each Class A Warrant is redeemable by the Company for
$.05 per Class A Warrant at any time after March 5, 1997, upon thirty (30) days'
prior written notice, if the closing price of the Common Stock, as reported by
the principal exchange on which the Common Stock is traded, the Nasdaq Small Cap
Market or the National Quotation Bureau Incorporated, as the case may be,
exceeds $____ per share for twenty (20) consecutive trading days prior to
50
<PAGE>
the date of the notice of redemption. Upon thirty (30) days' written notice to
all holders of Class A Warrants, the Company shall have the right, subject to
compliance with Rule 13E-4 under the Securities Act of 1934 and the filing of
Schedule 13E-4 and, if required, a post-effective amendment to this registration
statement, to reduce the exercise price and/or extend the term of the Class A
Warrant. After expiration, the Warrants will be void and of no value. The
Warrants underlying the Representative's Options have the same terms and
conditions as the Warrants to be sold to the public in this Offering.
The Class A Warrants can only be exercised when there is a current
effective registration statement covering the shares of Common Stock underlying
the Class A Warrants. If the Company does not or is unable to maintain a current
effective registration statement, the Warrant holders will be unable to exercise
the Class A Warrants and the Class A Warrants may become valueless. Moreover, if
the shares of Common Stock underlying the Class A Warrants are not registered or
qualified for sale in the state in which a warrantholder resides, such holder
might not be permitted to exercise the Class A Warrants.
The Company will deliver Warrant certificates to the purchasers for each
Class A Warrant purchased. Thereafter, Warrant certificates may be exchanged for
new certificates of different denominations, and may be exercised or transferred
by presenting them at the offices of the Transfer Agent. Holders of the Class A
Warrants may sell the Class A Warrants if a market exists rather than exercise
them. However, there can be no assurance that a market will develop or continue
as to such Class A Warrants. If the Company is unable to qualify the Common
Stock underlying such Class A Warrants for sale in certain states, holders of
the Company's Class A Warrants in those states will have no choice but to either
sell such Class A Warrants or allow them to expire.
Each Warrant may be exercised by surrendering the Warrant certificate, with
the form of election to purchase on the reverse side of the Warrant certificate
properly completed and executed, together with payment of the exercise price to
the Warrant Agent. The Class A Warrants may be exercised in whole or from time
to time in part. If less than all of the Class A Warrants evidenced by a Warrant
certificate are exercised, a new Warrant certificate will be issued for the
remaining number of Class A Warrants.
Holders of the Class A Warrants are protected against dilution of the
equity interest represented by the underlying shares of Common Stock upon the
occurrence of certain events, including, but not limited to, issuance of stock
dividends. If the Company merges, reorganizes or is acquired in such a way as to
terminate the Class A Warrants, the Class A Warrants may be exercised
immediately prior to such action. In the event of liquidation, dissolution or
winding up of the Company, holders of the Class A Warrants are not entitled to
participate in the Company's assets.
For the life of the Class A Warrants, the holders thereof are given the
opportunity, at nominal cost, to profit from a rise in the market price of the
Common Stock. The exercise of the Class A Warrants will result in the dilution
of the then book value of the Common Stock of the Company held by the public
investors and would result in a dilution of their percentage
51
<PAGE>
ownership of the Company. The terms upon which the Company may obtain additional
capital may be adversely affected through the period that the Class A Warrants
remain exercisable. The holders of these Class A Warrants may be expected to
exercise them at a time when the Company would, in all likelihood, be able to
obtain equity capital on terms more favorable than those provided for by the
Class A Warrants.
Because the Class A Warrants being offered hereby may be transferred, it is
possible that the Class A Warrants may be acquired by persons residing in states
where the Company has not registered, or is not exempt from registration such
that the shares of Common Stock underlying the Class A Warrants may not be sold
or transferred upon exercise of the Class A Warrants. Warrant holders residing
in those states would have no choice but to attempt to sell their Class A
Warrants or to let them expire unexercised. Also, it is possible that the
Company may be unable, for unforeseen reasons, to cause a registration statement
covering the shares underlying the Class A Warrants to be in effect when the
Class A Warrants are exercisable. In that event, the Class A Warrants may expire
unless extended by the Company's permitted by the terms of the Warrants because
a registration statement must be in effect, including audited financial
statements, in order for warrantholders to exercise their Class A Warrants.
Limitation on Liability of Directors
In connection with the Offering, the Representative has agreed to indemnify
the Company, its directors, and each person who controls it, within the meaning
of Section 15 of the Securities Act, with respect to any statement in or
omission from the registration statement or the Prospectus or any amendment or
supplement thereto, if such statement or omission was made in reliance upon
information furnished in writing to the Company by the Representative
specifically for or in connection with the preparation of the registration
statement, the Prospectus, or any such amendment or supplement thereto.
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of the performance of their duties as directors and
officers provided that this provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
arising under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
The Delaware General Corporation Law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's by-laws, any agreement, vote of shareholders or otherwise.
Article Nine of the Company's Certificate of Incorporation eliminates the
personal liability of directors to the fullest extent permitted by Section 102
of the Delaware General Corporation Law.
52
<PAGE>
The effect of the foregoing is to require the Company to indemnify the
officers and directors of the Company for any claim arising against such persons
in their official capacities if such person acted in good faith and in a manner
that 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 his conduct was unlawful. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed 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.
The Company does not currently have any liability insurance coverage for
its officers and directors.
Transfer Agent & Registrar
The transfer agent and registrar for the Company's securities is American
Stock Transfer & Trust Company.
53
<PAGE>
SELLING SECURITYHOLDERS
This registration statement, of which this Prospectus forms a part, also
covers the registration of 2,720,000 shares of Common Stock, 2,000,000 Class A
Warrants and 2,000,000 shares of Common Stock underlying Class A Warrants owned
by certain affiliated and non-affiliated persons, hereinafter collectively
referred to as the "Selling Securityholders". See "Certain Transactions." The
shares of Common Stock and Class A Warrants held by the Selling Securityholders
have been issued prior to the Effective Date of this offering. The Common Stock
has been registered under the Securities Act of 1933, as amended ("Act"),is not
part of the underwriting, and may be sold commencing thirteen months from the
date of this Prospectus with regard to the Preferred Stock Units and 24 months
from the date of this Prospectus with regard to the other securities, subject to
the earlier release by the Representative. The resale of the securities by the
Selling Securityholders is subject to Prospectus delivery and other requirements
of the Act.
The securities offered hereby may be sold from time to time directly by the
Selling Securityholders. Alternatively, the Selling Securityholders may from
time to time offer such securities through underwriters, dealers or agents. The
distribution of securities by the Selling Securityholders may be effected in one
or more transactions that may take place on the over-the-counter market,
including ordinary broker's transactions, privately-negotiated transactions or
through sales to one or more broker-dealers for resale of such shares as
principals, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. Usual and customary or
specifically negotiated brokerage fees or commissions may be paid by the Selling
Securityholders in connection with such sales of securities. The securities
offered by the Selling Securityholders may be sold by one or more of the
following methods, without limitations: (a) a block trade in which a broker or
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; (b)
purchases by a broker or dealer as principal and resale by such broker or dealer
for its account pursuant to this Prospectus; (c) ordinary brokerage transactions
and transactions in which the broker solicits purchasers, and (d) face-to-face
transaction between sellers and purchasers without a broker-dealer. In effecting
sales, brokers or dealers engaged by the Selling Securityholders may arrange for
other brokers or dealers to participate. The Selling Securityholders and
intermediaries through whom such securities are sold may be deemed
"underwriters" within the meaning of the Act with respect to the securities
offered, and any profits realized or commissions received may be deemed
underwriting compensation.
At the time a particular offer of securities is made by or on behalf of a
Selling Securityholder, to the extent required, a Prospectus will be distributed
which will set forth the number of shares being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents, if
any, the purchase price paid by any underwriter for sales purchased from the
Selling Securityholder and any discounts, commissions or concessions allowed or
reallowed or paid to dealers and the proposed selling price to the public.
54
<PAGE>
Sales of securities by the Selling Securityholder or even the potential of
such sales would likely have an adverse effect on the market prices of the
securities offered hereby. As of the date of this Prospectus, the freely
tradeable securities of the Company will be 3,720,000 shares of Common Stock and
1,000,000 Class A Warrants.
55
<PAGE>
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, a copy
of which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part, the Underwriters, as set forth below and for whom I.A.
Rabinowitz & Co. is the representative, have agreed to purchase from the Company
1,000,000 shares of Common Stock and 1,000,000 Class A Warrants offered hereby
from the Company on a "firm commitment" basis, if any are purchased.
Underwriter Number of Units
----------- ---------------
I.A. Rabinowitz & Co. ________________
_____________________ ________________
The Underwriters have advised the Company that they proposes to offer the
Shares to the public at $7.00 per Share and the Warrants at $0.25 per Warrant as
set forth on the cover page of this Prospectus and that they may allow to
certain dealers who are NASD members concessions not to exceed $_____ per Share,
of which not in excess of $ per Share may be reallowed to other dealers who are
members of the NASD. After the initial public offering, the public offering
price, concession and reallowance may be changed by the Underwriters. The
Underwriter does not intend to sell any of the securities of the Company to
accounts for which it exercises discretionary authority.
The public offering price of the Shares and the exercise price and the
terms of the Warrants were arbitrarily determined by negotiations between the
Company and the Representative and do not necessarily relate to the assets, book
value or results of operations of the Company or any other established criteria
of value.
The Company has granted an option to the Representative, exercisable during
the 30-day period from the date of this Prospectus, to purchase up to a maximum
of 150,000 additional Shares and 150,000 Warrants at the offering price, less
the underwriting discount, to cover over-allotments, if any.
The Underwriting Agreement provides for reciprocal indemnification between
the Company and the Representative against certain liabilities in connection
with the Registration Statement, including liabilities arising under the 1933
Act. Insofar as indemnification for liabilities arising under the 1933 Act may
be provided to officers, directors or persons controlling the Company, the
Company has been informed that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy and is therefore
unenforceable.
The Company has agreed to pay to the Representative a non-accountable
expense allowance of 3% of the aggregate offering price of the Shares offered
hereby, including any Shares purchased pursuant to the Over-Allotment Option.
56
<PAGE>
The Company has agreed to sell to the Representative, or its designees, for
an aggregate purchase price of $100, an option (the "Representative's Option")
to purchase up to an aggregate of 100,000 shares of Common Stock and 100,000
Class A Warrants. The Representative's Option shall be exercisable during a
four-year period commencing one (1) year from the Effective Date. The
Representative's Option may not be assigned, transferred, sold or hypothecated
by the Representative until twelve months after the Effective Date of this
Prospectus, except to officers or partners of the Representative or to selling
group members in this Offering. Any profits realized upon the sale of the Shares
and Warrants issuable upon exercise of the Representative's Option may be deemed
to be additional underwriting compensation. The exercise price of the Shares and
Warrants issuable upon exercise of the Representative's Option during the period
of exercisability shall be 120% of the initial public offering price of the
Shares. The exercise of the Representative's Option and the number of shares
covered thereby are subject to adjustment in certain events to prevent dilution.
For the life of the Representative's Option, the holders thereof are given, at a
nominal cost, the opportunity to profit from a rise in the market price of the
Company's Common Stock and Warrants with a resulting dilution in the interest of
other stockholders. The Company may find it more difficult to raise capital for
its business if the need should arise while the Representative's Option is
outstanding. At any time when the holders of the Representative's Option might
be expected to exercise it, the Company would probably be able to obtain
additional capital on more favorable terms.
If the Company enters into a transaction (including a merger, joint
venture, equity financing, debt financing, or the acquisition of another entity)
introduced to the Company by the Representative, the Company has agreed to pay
the Representative a finder's fee equal to 5% of the first $4,000,000 of
consideration involved in the transaction, ranging in $1,000,000 increments down
to 2% of the excess, if any, over $6,000,000.
The Company has agreed with the Representative that the Company will pay to
the Underwriter a warrant solicitation fee (the "Warrant Solicitation Fee")
equal to four percent (4%) of the exercise price of the Class A Warrants
exercised beginning one (1) year after the Effective Date and to the extent not
inconsistent with the guidelines of the NASD and the rules and regulations of
the Commission. Such Warrant Solicitation Fee will be paid to the Representative
if (a) the market price of the Common Stock on the date that any Class A
Warrants is exercised is greater than the exercise price of the Class A Warrant;
(b) the exercise of such Class A Warrant was solicited by the Underwriter; (c)
prior specific written approval for exercise is received from the customer if
the Class A Warrant is held in a discretionary account; (d) disclosure of this
compensation agreement is made prior to or upon the exercise of such Class A
Warrant; (e) solicitation of the exercise is not in violation of Rule 10b-6 of
the Exchange Act; and (f) solicitation of the exercise is in compliance with
NASD Notice to Member 81-38. In addition, unless granted an exemption by the
Commission from Rule 10b-6 under the Exchange Act, the Representative will be
prohibited from engaging in any market making activities or solicited brokerage
activities with respect to the Company's securities for the period from nine (9)
business days prior to any solicitation of the exercise of any Class A Warrant
or nine (9) business days prior to the exercise of any Class A Warrant based on
a prior solicitation until the later of the termination of such solicitation
activity or the termination
57
<PAGE>
(by waiver or otherwise) of any right the Representative may have to receive
such a fee for the exercise of Class A Warrants following such solicitation. As
a result, the Representative may be unable to continue to provide a market for
the Company's securities during that certain period while the Class A Warrants
are exercisable. See "Risk Factors -Lack of Prior Market for Units, Common Stock
and Class A Warrants; No Assurance of Public Trading Market."
Upon the closing of the sale of the Shares offered hereby, the Company will
enter into a five-year financial advisory and investment banking agreement with
the Representative pursuant to which the Company will be obligated to pay
$100,000 payable in advance upon the closing of the Offering, for financial and
investment advisory services to the Company.
Prior to the date of this Prospectus, all of the shareholders of the
Company's Common Stock and Class A Warrants as of the Effective Date have agreed
in writing not to sell, assign or transfer any of their shares of the Company's
securities without the Representative's prior written consent for a period of
twenty four (24) months from the closing of the offering, except for the holders
of the Preferred Stock Units, who have agreed to a thirteen (13) month period.
In addition, the Company has agreed not to issue any securities for a period of
twenty four (24) months from the closing of the offering.
The Representative shall have the option to appoint one individual to serve
on the Company's Board of Directors for a period of three (3) years from the
Effective Date. In lieu of nominating a director, the Representative may
designate a non-director observer to attend meetings of the Company's Board of
Directors for three (3) years after the Effective Date.
The foregoing is a summary of certain provisions of the Underwriting
Agreement and Representative's Option Agreement which have been filed as
exhibits hereto.
58
<PAGE>
Determination of Public Offering Price
Prior to this offering, there has been no public market for the Common
Stock. The initial public offering price for the Shares and the exercise price
and the terms of the Warrants have been determined by negotiations between the
Company and the Representative. Among the factors considered in the negotiations
were the market price of the Company's Common Stock and Warrants, an analysis of
the areas of activity in which the Company is engaged, the present state of the
Company's business, the Company's financial condition, the Company's prospects,
an assessment of management, the general condition of the securities market at
the time of this Offering and the demand for similar securities of comparable
companies. The public offering price of the Shares and Warrants does not
necessarily bear any relationship to assets, earnings, book value or other
criteria of value, including recent sales of the securities of the Company at an
average price of $.10 per share.
The Company anticipates that the Common Stock and Class A Warrants will be
listed for quotation on Nasdaq under the symbol MLDR, but there can be no
assurances that an active trading market will develop, even if the securities
are accepted for quotation. The Representative intends to make a market in all
of the publicly-traded securities of the Company.
LITIGATION
The Company is not a party to any legal proceedings and, to the best of its
information, knowledge and belief, none is contemplated or has been threatened.
LEGAL MATTERS
The validity of the securities being offered hereby will be passed upon for
the Company by Bernstein & Wasserman, LLP, 950 Third Avenue, New York, NY 10022.
Bernstein & Wasserman, LLP, has served, and continues to serve, as counsel to
the Representative in matters unrelated to this Offering. Certain legal matters
will be passed upon for the Representative by Cohn & Birnbaum P.C., 100 Pearl
Street, Hartford, Connecticut 06103.
EXPERTS
Certain of the financial statements of the Company included in this
Prospectus and elsewhere in the Registration Statement, to the extent and for
the periods indicated in their reports, have been examined by Mortenson and
Associates, P.C., independent certified public accountants, whose reports
thereon appear elsewhere herein and in the Registration Statement.
59
<PAGE>
ADDITIONAL INFORMATION
This Prospectus constitutes part of a Registration Statement on Form SB-2
filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act and omits certain information contained
in the Registration Statement. Reference is hereby made to the Registration
Statement and to its exhibits for further information with respect to the
Company and the Common Stock offered hereby. Statements contained herein
concerning provisions of documents are necessarily summaries of such documents,
and each statement is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission.
The Registration Statement, including the exhibits thereto, may be
inspected without charge at the public reference facilities maintained by the
Commission at: 450 Fifth Street, Washington, D.C. 20549; and at the offices of
the Commission located at 7 World Trade Center, New York, NY 10048; and copies
of such material may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, Washington, D.C. 20549 at prescribed rates.
60
<PAGE>
INDEPENDENT AUDITOR'S REPORT
The Board of Directors and Stockholders of
ML Direct Inc.
New York, New York
We have audited the accompanying consolidated balance sheet of ML Direct
Inc. and its subsidiary as of November 30, 1995, and the related consolidated
statement of operations, stockholders' equity, and cash flows for the period
from June 22, 1995 [date of inception] to November 30, 1995. These consolidated
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
consolidated financial statement presentation. We believe that our audit
provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
ML Direct Inc. and its subsidiary as of November 30, 1995, and the consolidated
results of their operations, and their cash flows for the period from June 26,
1995 [date of inception] to November 30, 1995, in conformity with generally
accepted accounting principles.
The accompanying consolidated financial statements have been prepared
assuming that ML Direct Inc. will continue as a going concern. As discussed in
Note 7 to the consolidated financial statements, the Company's lack of operating
history and insufficient cash to achieve its operating objectives raise
substantial doubt about the Company's ability to continue as a going concern.
Management's plans in regard to these matters are also described in Note 7. The
consolidated financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
MORTENSON AND ASSOCIATES, P. C.
Certified Public Accountants.
Cranford, New Jersey
December 20, 1995
F-1
<PAGE>
ML DIRECT INC.
- --------------------------------------------------------------------------------
CONSOLIDATED BALANCE SHEETS
- --------------------------------------------------------------------------------
February 29, November 30,
1996 1995
------------ ------------
[Unaudited]
Assets:
Current Assets:
Cash and Cash Equivalents $ 22,475 $ 336,884
Inventory 30,387 --
Accounts Receivable 11,113 --
Note Receivable - Related Party 50,000 50,000
Due from Related Parties 24,183 48,982
Prepaid Expenses 37,559 33,834
Interest Receivable 1,536 239
---------- ----------
Total Current Assets 177,253 469,939
---------- ----------
Other Assets:
License [1] [6] 4,000,000 4,000,000
Display Costs 165,359 40,000
Organizational Costs - Net 13,283 9,685
Deferred Offering Costs 66,680 1,580
---------- ----------
Total Other Assets 4,245,322 4,051,265
---------- ----------
Total Assets $4,422,575 $4,521,204
========== ==========
The Accompanying Notes are an Integral Part of these Consolidated Financial
Statements.
F-2
<PAGE>
ML DIRECT INC.
- --------------------------------------------------------------------------------
CONSOLIDATED BALANCE SHEETS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Historical Pro Forma Historical
February 29, February 29, November 30,
1996 1996 1995
------------ ------------ ------------
[Unaudited] [Note 8B]
<S> <C> <C> <C>
Liabilities and Stockholders' Equity:
Current Liabilities:
Accounts Payable $ 170,289 $ 170,289 $ 24,282
Accrued Returns and Allowances 74,498 74,498 72,415
Accrued Expenses 17,986 17,986 14,177
Payroll Taxes Payable 21,682 21,682 3,244
----------- ----------- -----------
Total Current Liabilities 284,455 284,455 114,118
----------- ----------- -----------
Commitments -- -- --
----------- ----------- -----------
Stockholders' Equity:
Redeemable Convertible Series A Preferred
Stock - Authorized 1,000,000 Shares of
"Blank Check" Preferred, Issued and
Outstanding 600,000 Shares, Par Value
.0001 [8B] 60 -- 60
Additional Paid-in Capital - Preferred Stock 249,940 -- 249,940
Common Stock - Authorized 15,000,000 Shares,
Issued and Outstanding 3,000,000 Shares,
Par Value .0001 300 300 300
Additional Paid-in Capital - Common Stock 4,852,740 4,602,740 4,750,740
Common Stock Subscribed [1] 4,000,000 4,000,000 4,000,000
Retained Earnings [Deficit] (2,769,694) (2,769,694) (2,578,038)
Less: Stock Subscription Receivable (4,000,000) (4,000,000) (4,000,000)
Deferred Compensation Expense (93,500) (93,500) --
----------- ----------- -----------
Total Controlling Interest 2,239,846 1,739,846 2,423,002
Plus: Non-Controlling Interest 1,898,274 1,898,274 1,984,084
----------- ----------- -----------
Total Stockholders' Equity 4,138,120 3,638,120 4,407,086
----------- ----------- -----------
Total Liabilities and Stockholders' Equity $ 4,422,575 $ 3,922,575 $ 4,521,204
=========== =========== ===========
</TABLE>
The Accompanying Notes are an Integral Part of these Consolidated Financial
Statements.
F-3
<PAGE>
ML DIRECT INC.
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF OPERATIONS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Period
For the three June 22, 1995
months ended through
February 29, November 30,
1996 1995
------------- ---------------
[Unaudited]
<S> <C> <C>
Revenues - Net $ 66,440 $ 759,622
Cost of Sales 65,498 667,365
----------- -----------
Gross Profit 942 92,257
----------- -----------
Selling, General and Administrative Expenses:
Commissions 36,402 21,721
Travel and Entertainment 14,277 326
Display Materials 8,622 750
Reimbursed Expenses to Related Party 78,359 128,352
Compensation and Benefits 66,346 13,909
Consulting Fees 8,125 16,425
Other 27,108 6,064
Warehouse Expenses 31,966 --
Compensation Expense - Stock Issuance Cost 8,500 --
----------- -----------
Total Selling, General and Administrative Expenses 279,705 187,547
----------- -----------
Loss from Operations (278,763) (95,290)
----------- -----------
Other Income [Expense]:
Interest Income 1,298 2,136
Interest Expense - Stock Issuance Cost (2,500,000)
-----------
Total Other Income [Expense] (2,497,864)
-----------
Loss Before Income Taxes (277,465) (2,593,154)
Provision for Income Taxes -- --
----------- -----------
Loss Before Non-Controlling Interest (277,465) (2,593,154)
Non-Controlling Interest in Loss of Subsidiary (85,809) (15,116)
----------- -----------
Net Loss $ (191,656) $(2,578,038)
=========== ===========
Weighted Average Number of Shares 3,900,000 3,900,000
=========== ===========
</TABLE>
F-4
<PAGE>
<TABLE>
<S> <C> <C>
Net Loss Per Share $ (.05) $ (.66)
=========== ===========
</TABLE>
The Accompanying Notes are an Integral Part of these Consolidated Financial
Statements.
F-5
<PAGE>
ML DIRECT INC.
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Preferred Stock Common Stock
--------------- ------------
Excess Additional Common Retained
Number of Amount Over Number of Amount Paid-in Stock Earnings
Shares At Par Par Shares At Par Capital Subscribed [Deficit]
------- -------- -------- --------- ------- ----------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Stock Issued to Founders -
June 22, 1995 -- $ -- $ -- 2,400,000 $ 240 $ -- $ -- $ --
Common and Preferred Stock
Issued as part of Preferred
Stock Units sold in August
and September of 1995
issued for $500,000 cash [8B] 600,000 60 249,940 600,000 60 2,749,940 -- --
Contract and Trademarks
Contributed by HSND -
November 1995 [Allocated
Portion of Controlled Interest] -- -- -- -- -- 2,000,800 -- --
Common Stock Subscribed [1] -- -- -- -- -- -- 4,000,000 --
Net Loss for the Period
June 22, 1995 through
November 30, 1995 -- -- -- -- -- -- (2,578,038)
------- -------- -------- --------- ------ ---------- ---------- -----------
Balance - November 30,
1995 600,000 60 249,940 3,000,000 300 4,750,740 4,000,000 (2,578,038)
Stock Options Issued [9] -- -- -- -- -- 102,000 -- --
Compensation Expense [9] -- -- -- -- -- -- -- --
Net Loss for the three months
ended February 29, 1996 -- -- -- -- -- -- -- (191,656)
------- -------- -------- --------- ------ ---------- ---------- -----------
Balance - February 29, 1996
[Unaudited] 600,000 $ 60 $249,940 3,000,000 $ 300 $4,852,740 $4,000,000 $(2,769,694)
======= ======== ======== ========= ====== ========== ========== ===========
<CAPTION>
Deferred Stock Equity
Compensation Subscription Controlling
Expense Receivable Interest
----------- ------------- -----------
<S> <C> <C> <C>
Stock Issued to Founders -
June 22, 1995 $ -- $ -- $ 240
Common and Preferred Stock
Issued as part of Preferred
Stock Units sold in August
and September of 1995
issued for $500,000 cash [8B] -- -- 3,000,000
Contract and Trademarks
Contributed by HSND -
November 1995 [Allocated
Portion of Controlled Interest] -- -- 2,000,800
Common Stock Subscribed [1] -- (4,000,000) --
Net Loss for the Period
June 22, 1995 through
November 30, 1995 -- (2,578,038)
-------- ----------- ----------
Balance - November 30,
1995 -- (4,000,000) 2,423,002
Stock Options Issued [9] (102,000) -- --
Compensation Expense [9] 8,500 -- 8,500
Net Loss for the three months
ended February 29, 1996 -- -- (191,656)
-------- ----------- ----------
Balance - February 29, 1996
[Unaudited] $(93,500) $(4,000,000) $2,239,846
======== =========== ==========
</TABLE>
The Accompanying Notes are an Integral Part of these Consolidated Financial
Statements.
F-6
<PAGE>
ML DIRECT INC.
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
For the Period
For the three June 22, 1995
months ended through
February 29, November 30,
1996 1995
------------- --------------
[Unaudited]
Operating Activities:
Net Loss $(191,656) $(2,578,038)
--------- -----------
Adjustments to Reconcile Net Loss to Net Cash
[Used for] Operating Activities:
Amortization 1,163 880
Minority Interest in Net Loss of
Consolidated Subsidiary (85,810) (15,116)
Stock Issuance Costs 8,500 2,500,000
Changes in Assets and Liabilities:
[Increase] Decrease in Assets:
Prepaid Expenses and Accrued Interest (5,022) (34,073)
Related Party Receivable 24,799 (48,982)
Accounts Receivable (11,113) --
Inventory (30,387) --
Increase [Decrease] in Liabilities:
Accounts Payable 146,007 24,282
Allowance for Returns 2,083 72,415
Accrued Expenses 3,809 14,177
Payroll Taxes Payable 18,438 3,244
--------- -----------
Total Adjustments 72,467 2,516,827
--------- -----------
Net Cash - Operating Activities (119,189) (61,211)
--------- -----------
Investing Activities:
Purchases of Displays (125,359) (40,000)
Organizational Costs (4,761) (10,565)
Note Receivable -- (50,000)
--------- -----------
Net Cash - Investing Activities (130,120) (100,565)
--------- -----------
Financing Activities:
Proceeds from Issuance of Preferred Stock
Units [8B] -- 500,000
Proceeds from Issuance of Common Stock -- 240
Deferred Offering Costs (65,100) (1,580)
--------- -----------
Net Cash - Financing Activities (65,100) 498,660
--------- -----------
Net Increase in Cash and Cash Equivalents (314,409) 336,884
Cash and Cash Equivalents - Beginning of Periods 336,884 --
--------- -----------
Cash and Cash Equivalents - End of Periods $ 22,475 $ 336,884
========= ===========
The Accompanying Notes are an Integral Part of these Consolidated Financial
Statements.
F-7
<PAGE>
ML DIRECT INC.
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
For the Period
For the three June 22, 1995
months ended through
February 29, November 30,
1996 1995
------------- --------------
[Unaudited]
Supplemental Disclosures of Cash Flow Information:
Cash paid during the periods for:
Interest $ -- $ --
State and Federal Income Taxes $ -- $ --
Supplemental Disclosure of Non-Cash Investing and Financing Activities:
See Note 1 to the financial statements.
The Accompanying Notes are an Integral Part of these Consolidated Financial
Statements.
F-8
<PAGE>
ML DIRECT INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
[Information as of and for the three months ended February 29, 1996
is Unaudited]
- --------------------------------------------------------------------------------
[1] Organization and Business
ML Direct Inc. [the "Company"], a Delaware Corporation, was incorporated on June
22, 1995. In June 1995, the Company entered into a binding letter of intent with
HSN Direct Joint Venture ["HSND"] which provided for the creation of KN2B, Inc.
doing business as Home Shopping Showcase ["HSS"]. HSND was a subsidiary of Home
Shopping Network, Inc. and is now a subsidiary of Flextech, P.L.C. [a UK
Company, which itself is a subsidiary of Telecommunications Company, Inc.
["TCI"]. HSN continues to hold a minority equity position in HSN. This agreement
was amended on February 15, 1996. This binding agreement provides that HSS will
develop programs to support the retail sale of products that have been
introduced through direct response television ["DRTV"] through implementing both
a "store within a store concept" and a promotions sales business. The Company as
a result of arm's length negotiations agreed to contribute $4,000,000 cash as
evidenced by a stock subscription agreement and its existing and future retail
rights to products and services as a capital contribution for the issued 1,500
shares of Class A Common Stock of HSS. The $4,000,000 stock subscription
receivable from the Company will be paid from a proposed public offering. HSND
contributed the right to use the name "Home Shopping Showcase" and certain
related trademarks, logos and service marks and its existing and future retail
rights to products and services for the issued 1,499 shares of Class B Common
Stock of HSS. Such trademarks, logos and service marks are valued at $4,000,000
for an interest in HSS.
[2] Summary of Significant Accounting Policies
[A] Principles of Consolidation - The consolidated financial statements include
the accounts of the Company and its majority owned subsidiary, KN2B, Inc. The
Company owns more than a 50% ownership in HSS and has operational control.
Therefore, consolidated financial statements are presented. Material
intercompany transactions and balances have been eliminated in consolidation.
[B] Revenue Recognition - The Company's policy is to record revenues when title
passes to the customer. These initial revenues are net of returns and allowance
of $37,216 and letters of credit costs of $1,791. There was an outstanding
letter of credit at November 30, 1995 of approximately $60,000 to be repaid upon
shipment of merchandise.
[C] Cash Equivalents - The Company considers all highly liquid instruments with
a maturity of three months or less when purchased to be cash equivalents. The
Company did not have any cash equivalents at November 30, 1995 and February 29,
1996.
[D] Net Loss Per Share - Net loss per share was calculated based on the number
of shares outstanding during the periods presented. Shares or equivalents issued
at below the IPO price are included for all periods presented. All share data
has been adjusted to reflect the six-for-five stock split in March 1996.
[E] Business Concentration - Economic Dependency - The Company's business
activity is with the retail marketplace primarily through the supermarket
channel of distribution. For the period ended November 30, 1995, the Company's
net revenues were from one customer with a non-supermarket retail outlet.
F-9
<PAGE>
[F] Reserve for Returns - The Company has provided an allowance for possible
returns for approximately 3.5% of gross revenues.
[G] Intangible Assets - Display costs and organizational costs are to be
amortized on the straight-line method over a five year period. Amortization for
the organization costs for the period ended November 30, 1995 was $880. There
was no amortization for the display costs as the displays have not been placed
in service. Trademarks and contracts are to be amortized over the lesser of
their legal or useful lives under the straight-line method. There has been no
amortization for the period ended November 30, 1995 because the use of this
trademark and contract has not begun.
F-10
<PAGE>
ML DIRECT INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Sheet #2
[Information as of and for the three months ended February 29, 1996
is Unaudited]
- --------------------------------------------------------------------------------
[2] Summary of Significant Accounting Policies [Continued]
[H] Risk Concentrations - Financial instruments, which potentially subject the
Company to concentrations of credit risk, consist principally of cash. At
November 30, 1995, the Company had deposits in financial institutions which
exceeded the $100,000 federally insured limit. The excess of the institution's
deposit liability to the Company over the federally insured limit amounted to
approximately $148,000.
The Company's business consists largely of an agreement with HSN Direct to
create and develop Home Shopping Showcase. Any termination of the agreement will
have a material adverse effect on the Company. Further, the success of Home
Shopping Showcase is dependent in large part on HSN Direct's success in securing
agreements for marketing products and services from suppliers, distributors, and
other third parties for DRTV and retail distribution. There can be no assurance
that HSN Direct or Home Shopping Showcase will be able to secure such agreements
from such third parties or that the merchandise or services marketed on DRTV
will be successful in the retail markets. Similarly, there can be no assurance
that the Company will be able to capitalize on its connection with the
supermarket and other retail industries to establish retail distribution outlets
for Home Shopping Showcase. The failure of either HSN Direct or the Company to
so contribute to the success of Home Shopping Showcase will have a material
adverse effect on the Company. In addition, the name recognition provided by the
HSN Direct trademarks, logos, and service marks, including Home Shopping
Showcase, and, therefore, the Company, would be materially adversely affected by
the loss of use of such intellectual property or if the value of such
intellectual property is diminished, either by HSN Direct's lack of success in
the DRTV venue or by infringement or misappropriation by an outside third party.
[I] Use of Estimates - The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect certain reported amounts and disclosures.
Accordingly, actual amounts could differ from those estimates.
[J] Stock Options and Similar Equity Instruments Issued to Employees - The
Company uses the intrinsic value method to recognize cost in accordance with APB
25 [Accounting for Stock Issued to Employees].
[3] Related Party Transactions
[A] In conjunction with the business agreement with HSND, there is a receivable
of $48,982 due to KN2B, Inc. from HSND that would be remitted upon the letter of
credit finalization. This was repaid in March of 1996.
[B] The Company pays approximately $2,000 per month on a month-to-month basis
for office space and services to a partnership wherein two of the partners are
principal shareholders in the Company. In addition, the Company reimbursed this
partnership for expenses incurred for the Company as follows:
F-11
<PAGE>
<TABLE>
<CAPTION>
December 1,
1995 through
November 30, February 29,
1996 1996
------------ -------------
<S> <C> <C>
Rent and Utilities $ 11,782 $20,765
Travel and Entertainment 47,786 17,488
Outside Services 57,000 38,240
Compensation and Benefits 7,795 811
Other Services 3,989 1,055
-------- -------
Total $128,352 $78,359
======== =======
</TABLE>
F-12
<PAGE>
ML DIRECT INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Sheet #3
[Information as of and for the three months ended February 29, 1996
is Unaudited]
- --------------------------------------------------------------------------------
[3] Related Party Transactions [Continued]
[C] The Company entered into demand note receivable from an entity whose
principal shareholders are also principal shareholders of the Company on
November 14, 1995 for $50,000 with interest of 2% over prime annually. Monthly
installments of interest shall be paid over 60 months commencing February 1,
1996. All principal and interest is due no later than January 1, 1999.
[4] Income Taxes
No provision for income taxes has been made because the Company incurred a loss
for both financial reporting and income tax purposes.
For tax purposes, the Company has a net operating loss of approximately $78,000
as of November 30, 1995. However, based upon present Internal Revenue
regulations governing the utilization of net operating loss carryovers where the
corporation has issued substantial additional stock, most of this loss carryover
may not be available to the Company.
Generally accepted accounting principles requires the establishment of a
deferred tax asset for all deductible temporary differences and operating loss
carryforwards. Because of the uncertainties discussed above and in Note 7 any
deferred tax asset established for utilization of the Company's tax loss
carryforwards would correspondingly require a valuation allowance of the same
amount pursuant to SFAS No. 109. Accordingly, no deferred tax asset is reflected
in these financial statements.
[5] New Authoritative Pronouncement
The Financial Accounting Standards Board ["FASB"] has issued SFAS 107,
"Disclosure about Fair Value of Financial Instruments" which is effective for
fiscal years beginning after December 15, 1992, except for entities with less
than $150 million in total assets for which the effective date is fiscal years
beginning after December 15, 1995. The Company will adopt SFAS 107 on January 1,
1996. Adoption of SFAS 107 and other recent pronouncements of the FASB are not
expected to have a material impact on the Company's financial position or
results of operations.
The FASB has also issued SFAS No. 123 "Accounting for Stock-Based Compensation,"
in October 1995. SFAS No. 123 uses a fair value based method of recognition for
stock options and similar equity instruments issued to employees as contrasted
to the intrinsic valued based method of accounting prescribed by Accounting
Principles board ["APB"]Opinion No. 25, "Accounting for Stock Issued to
Employees." The recognition requirements of SFAS No. 123 are effective for
transactions entered into in fiscal years that begin after December 15, 1995.
The Company will continue to apply Opinion No. 25 in recognizing its stock based
employee arrangements. The disclosure requirements of SFAS No. 123 are effective
for financial statements for fiscal years beginning after December 15, 1995. The
Company will adopt the disclosure requirements on December 1, 1996. SFAS 123
also applies to transactions in which an entity issues its equity instruments to
acquire goods or services from non-employees. Those transactions must be
accounting for based on the fair value of the consideration received or the fair
value of the equity instrument issued, whichever is more reliably measurable.
This requirement is effective for
F-13
<PAGE>
transactions entered into after December 31, 1995.
ML DIRECT INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Sheet #4
[Information as of and for the three months ended February 29, 1996
is Unaudited]
- --------------------------------------------------------------------------------
[6] License
In connection with the Company's agreement with HSND, HSND will provide HSS with
a royalty-free license to the Home Shopping Showcase(Trademark) trademarks,
logos and service marks within the field of domestic retail distributors so that
HSS may exploit all manner of retail opportunities in the United States using
such trademarks, logos and service marks.
This license provides for use of the HSS logo and name until December 31, 2000
at retail sites established on or before January 1, 1998 and until earlier of
(i) December 31 2003 or (ii) three years after establishment at retails sites
established between January 1, 1998 and December 31, 2000.
[7] Going Concern
As shown in the accompanying financial statements, the Company has incurred a
net loss of $2,578,038 for the period ended November 30, 1995, has utilized
$61,211 in cash for operating activities, and does not have sufficient cash to
achieve its operating objectives. These factors create uncertainty about the
Company's ability to continue as a going concern.
The Company is currently in the process of filing a registration statement to
raise approximately $5,540,000 of net proceeds. The ability of the Company to
continue as a going concern is dependent on the success of this registration
statement. The financial statements do not include any adjustments that might be
necessary if the Company is unable to continue as a going concern.
[8] Capital Stock
[A] Common Stock - The Company is authorized to issue 15,000,000 shares of
common stock with par value of .0001 per share. The Company issued 2,400,000
shares of common stock and 2,000,000 Class A warrants exercisable at $8.00 per
share for common stock for four years commencing one year from the close of the
proposed public offering to the founders of the Company for $240 in June 1995.
[B] Preferred Stock - The Company is authorized to issue 1,000,000 shares of
"Blank Check" preferred stock with par value of .0001 per share. The Company had
outstanding at November 30, 1995, 600,000 shares of Series A Preferred Stock
that were issued as a part of the preferred stock units issued in August and
September of 1995 for $500,000. The 600,000 Series A Preferred Stock units
consisted of 600,000 shares of Series A Preferred Stock and 600,000 shares of
common stock. The Company recorded a stock issuance cost of $2,500,000 which
represents the fair value of the shares issued. This amount has been charged to
operations as a financing cost and also has been recorded as additional paid-in
capital. The Series A preferred stock is convertible, at the option of the
holder, into one share of common stock. If, however, after six months after the
close of the proposed public offering, the Company has not redeemed the Series A
Preferred Stock, then the conversion rate is two shares of common stock for one
share of Series A Preferred Stock. The Company can redeem the Series A
F-14
<PAGE>
Preferred Stock for approximately $.833 per share. The Company can pay preferred
dividends to the holders of the Series A Preferred Stock at the rate of eight
percent [8%] per annum of the liquidation preference or $.08 per share. In the
event of any voluntary or involuntary liquidation, each share of Series A
Preferred Stock shall have a liquidation preference of $1.00 per share plus
unpaid annual dividends that have accrued to date of payment. The holders of the
Series A Preferred Stock have no right to vote on matters presented to the
stockholders of the Company. The shares of Series A Preferred Stock rank senior
to all series of Preferred Stock in all respects.
The Company intends to redeem for $500,000 the 600,000 shares of preferred stock
with the proceeds from the proposed public offering. A pro forma balance sheet
as of February 29, 1995 which gives effect to the proposed redemption of the
Series A Preferred Shares for $500,000, but not the expected proposed public
offering proceeds, is presented on the face of the balance sheet [See
Notes 10A and 10C].
F-15
<PAGE>
ML DIRECT INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Sheet #5
[Information as of and for the three months ended February 29, 1996
is Unaudited]
- --------------------------------------------------------------------------------
[8] Capital Stock [Continued]
The following supplementary earnings per share is furnished to show what they
would have been if the retirement of 720,000 shares had taken place at the
beginning of the respective periods [See Note 10C].
This calculation is based upon 3,120,000 shares outstanding:
<TABLE>
<CAPTION>
Periods ended
-------------
February 29, November 30,
1996 1995
------------ ------------
<S> <C> <C>
[Loss] Per Share $(.06) $(.83)
===== =====
</TABLE>
[C] Options and Warrants - A summary of stock options and warrants for the
period ended November 30, 1995 follows:
<TABLE>
<CAPTION>
Warrants Options
-------- -------
Number of Exercise Number of Exercise
Shares Price Shares Price
------ ----- ------ -----
<S> <C> <C> <C> <C>
Outstanding Balance -
June 1995 -- -- -- --
Issued/Grants 2,000,000 8.00 -- --
Exercised -- -- -- --
Canceled
Outstanding Balance -
November 1995 2,000,000 8.00 -- --
Exercisable at
November 30, 1995 -- -- -- --
</TABLE>
[9] Employment Agreements
The Company entered into a three year employment agreement with the Executive
Vice President of the Company for annual compensation of $150,000 effective
December 1, 1995. Additionally, the Executive Vice President shall have the
option to purchase 60,000 shares of the Company's common stock for $2.50 per
share at any time after July 1, 1996, but prior to June 30, 2000. The Company
recorded a deferred compensation cost of $102,000 for the options issued, which
represents the difference between the value of the options at the time of
issuance and the exercise price of $2.50. The deferred compensation will be
expensed over the life of the employment agreement or $8,500 per quarter.
[10] Subsequent Events [Unaudited]
[A] Proposed Public Offering - The Company reached an agreement with an
underwriter to file a registration statement for 1,000,000 shares of common
stock at $7.00 per share and 1,000,000 Class A
F-16
<PAGE>
Warrants at $.25 per warrant. The Class A Warrants are exercisable at $8.00 per
warrant and are exercisable one year from the close of the proposed public
offering for a term of four years. The anticipated net proceeds from this
offering are approximately $5,732,500.
F-17
<PAGE>
ML DIRECT INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Sheet #6
[Information as of and for the three months ended February 29, 1996
is Unaudited]
- --------------------------------------------------------------------------------
[10] Subsequent Events [Unaudited] [Continued]
[B] Stock Split - The Company declared a six-for-five stock split in March of
1996 for both the common and preferred stock. All share data has been adjusted
retroactively to reflect the six-for-five stock split.
[C] Preferred Stock Units - On March 29, 1996, the Company issued an additional
120,000 preferred stock units consisting of 120,000 shares of preferred stock
and 120,000 shares of common stock for an additional bridge loan of $100,000.
The Company can redeem the preferred stock for approximately $.833 per share.
The Company intends to redeem for $100,000 the 120,000 shares of preferred stock
with the proceeds from the proposed public offering. The Company recorded a
deferred financing cost of $600,000 in March of 1996, which represents the fair
value of the shares of stock issued that will be amortized over the life of the
bridge loan and also recorded the $600,000 as additional paid-in capital.
[D] Options to Employees
In April and May of 1996, the Company issued to three employees options to
purchase during the next five years 906,000 shares of the Company's common stock
at various prices ranging from $4.20 to $7.00 per share.
[E] Employments Agreements
On April 15, 1996, the Company entered into a one (1) year employment agreement
with James Lawless pursuant to which Mr. Lawless serves as the Company's
President. The agreement provides that Mr. Lawless will receive a salary of
$120,000 per annum and a bonus at the discretion of the Board of Directors. The
agreement also provides that Mr. Lawless be issued an option to purchase up to
100,000 shares of Common Stock at any time between January 1, 1997 and December
31, 2002 at a price of $4.20 per share. The agreement also provides for the
Company to purchase life insurance of not less than $500,000 which shall be
payable to his estate.
On April 15, 1996, the Company entered into a one (1) year employment agreement
with Benedict White pursuant to which Mr. White serves as the Company's
Executive Vice President. The agreement provides that Mr. White will receive a
salary of $200,000 per annum and a bonus at the discretion of the Board of
Directors. The agreement also provides that Mr. White be issued an option to
purchase up to 100,000 shares of Common Stock at any time between January 1,
1997 and December 31, 2002 at a price of $4.20 per share. The agreement also
provides that Mr. White has the right to receive an additional 500,000 options
at fair market value in increments of 100,000 options during the ensuing five
year if he is employed by the Company. The agreement also provides for the
Company to purchase life insurance of not less than $500,000 which shall be
payable to his estate.
F-18
<PAGE>
[11] Interim Financial Statements
The interim financial statements as of and for the three months ended February
29, 1996 include all adjustments which in the opinion of management are
necessary in order to make the financial statements not misleading.
. . . . . . . . . . .
F-19
<PAGE>
No dealer, salesman or other person has been authorized to give any information
or to make any representations not contained in this Prospectus and if given or
made, such information or representations must not be relied upon as having been
authorized by the Company or any Underwriter. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any circumstances create any
implication that there has been no change in the affairs of the Company since
the date hereof. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered hereby in any
jurisdiction to any person to make such offer or solicitation in such
jurisdiction.
----------
TABLE OF CONTENTS
Page
----
Available Information...........
Prospectus Summary..............
The Offering....................
Summary Financial
Information...................
Risk Factors....................
Use of Proceeds.................
Dilution........................
Capitalization..................
Dividend Policy.................
Selected Financial Data.........
Management's Discussion and
Analysis of Financial
Condition and Results of
Operations.....................
Business........................
Management......................
Principal Stockholders..........
Certain Transactions............
Description of
Securities.....................
Selling Securityholders.........
Underwriting....................
Litigation......................
Legal Matters...................
Experts.........................
Additional Information..........
Financial Statements............
----------
Until _______, 1995 (25 days after the date of this Prospectus), all dealers
effecting transactions in the registered securities, whether or not
participating in this distribution, may be required to deliver a Prospectus.
This is in addition to the obligation of dealers to deliver a Prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
--------------------------------
ML DIRECT INC.
PROSPECTUS
May __, 1996
--------------------------------
<PAGE>
ALTERNATE
PROSPECTUS
SUBJECT TO COMPLETION, DATED ___________, 1996
ML DIRECT INC.
2,720,000 Shares of Common Stock
2,000,000 Class A Warrants
The Prospectus relates to up to 2,720,000 shares (the "Shares") of common
stock, $.0001 par value (the "Common Stock") 2,000,000 Class A Warrants and
2,000,000 Shares of Common Stock underlying 2,000,000 Class A Warrants of ML
Direct Inc., a Delaware corporation (the "Company") held by certain affiliated
and non-affiliated persons (collectively, the "Selling Securityholders"). The
Shares are being voluntarily registered by the Company concurrently with the
Company's initial public offering, and are not part of the underwriting. The
Shares may not be transferred for twenty-four (24) months unless permitted
sooner by the Representative. The Representative may release the securities held
by the Selling Securityholders at any time after all securities subject to the
Over-Allotment Option have been sold or such option has expired. The Risk Factor
section begins on page __ of this Prospectus.
The Company has applied for inclusion of the Common Stock and Class A
Warrants on the Nasdaq Small Cap Market ("Nasdaq"), although there can be no
assurances that an active trading market will develop even if the securities are
accepted for quotation. Additionally, even if the Company's securities are
accepted for quotation and active trading develops, the Company is still
required to maintain certain minimum criteria established by Nasdaq, of which
there can be no assurance. See "Risk Factors - Lack of Prior Market for Common
Stock."
The Common Stock offered by this Prospectus may be sold from time to time
by the Selling Securityholders or by their transferees. No underwriting
arrangements have been entered into by the Selling Securityholders. The
distribution of the securities by the Selling Securityholders may be effected in
one or more transactions that may take place on the over-the-counter market
including ordinary broker's transactions, privately-negotiated transactions or
through sales to one or more dealers for resale of such shares as principals at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Usual and customary or
specifically negotiated brokerage fees or commissions may be paid by the Selling
Securityholders in connection with sales of such securities.
The Selling Securityholders and intermediaries through whom such securities
may be sold may be deemed "underwriters" within the meaning of the Securities
Act of 1933, as
<PAGE>
amended ("Securities Act"), with respect to the securities offered and any
profits realized or commissions received may be deemed underwriting
compensation. The Company has agreed to indemnify the Selling Securityholders
against certain liabilities, including liabilities under the Securities Act.
On the date hereof, the Company commenced, pursuant to a registration
statement, and initial public offering of 1,000,000 shares of Common Stock and
1,000,000 Class A Warrants. See "Concurrent Sales."
The Company will not receive any of the proceeds from the sale of the
securities by the Selling Securityholders. All costs incurred in the
registration of the securities of the Selling Securityholders are being borne by
the Company. See "Selling Securityholders."
----------
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A HIGH DEGREE OF
RISK AND IMMEDIATE SUBSTANTIAL DILUTION OF THE BOOK VALUE OF THE COMMON STOCK
INCLUDED IN THE UNITS AND SHOULD BE CONSIDERED ONLY BY PERSONS WHO CAN AFFORD
THE LOSS OF THEIR ENTIRE INVESTMENT. SEE "DILUTION" and "RISK FACTORS."
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Date of this Prospectus is _____________, 1996
Alt - ii
<PAGE>
ALTERNATE
CONCURRENT SALES
On the date of this Prospectus, a registration statement under the
Securities Act with respect to an underwritten public offering (the "Offering")
of 1,000,000 shares of Common Stock and 1,000,000 Class A Warrants by the
Company was declared effective by the Securities and Exchange Commission
("SEC"), and the Company commenced the sale of the shares of Common Stock and
Warrants offered thereby. Sales of securities under this Prospectus by the
Selling Securityholders or even the potential of such sales may have an adverse
effect on the market price of the Company's securities.
SELLING SECURITYHOLDERS
This registration statement, of which this Prospectus forms a part, also
covers the registration of 2,720,000 shares of Common Stock, 2,000,000 Class A
Warrants and 2,000,000 shares of Common Stock underlying 2,000,000 Class A
Warrants. The Shares may be sold commencing thirteen (13) months from the date
of this prospectus with regard to the Preferred Stock Units and twenty four (24)
months from the Effective Date, subject to the earlier release by the
Representative; provided, however, the Representative may release such
securities after full subscription of the securities being offered in the
offering at any time after the securities in the offering have been sold. The
resale of the securities by the Selling Securityholders is subject to Prospectus
delivery and other requirements of the Act. Accordingly, an additional 2,720,000
shares of Common Stock will become transferrable at such times.
The following table sets forth the holders of the shares of Common Stock
which are being offered by the Selling Stockholders and the number of shares
owned before the offering, the number of shares being offered and the number of
shares and the percentage of the class to be owned after the offering is
complete.
Alt - iii
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
Percent of
Shares of Shares of Shares of
Common Class A Shares of Common Common
Stock Warrants Common Class A Stock Stock
Name Owned Owned Stock Warrants Owned Owned
Before Before Offered Offered After After
Offering Offering Hereby Hereby Offering Offering
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
K.A.M. Group, Inc. 120,000 0 120,000 0 0 0
- ------------------------------------------------------------------------------------------------------------------
M.D. Funding, Inc. 198,000 0 198,000 0 0 0
- ------------------------------------------------------------------------------------------------------------------
Morgan Carlton, Inc.(1) 96,000 80,000 80,000 80,000 16,000 0.4%
- ------------------------------------------------------------------------------------------------------------------
Alan Kerzner(2) 60,000 50,000 50,000 50,000 10,000 0.25%
- ------------------------------------------------------------------------------------------------------------------
M&M Creative Services, 30,000 25,000 25,000 25,000 5,000 0.13%
Inc.(3)
- ------------------------------------------------------------------------------------------------------------------
Special Equities, Inc.(4) 1,080,000 900,000 900,000 900,000 180,000 4.5%
- ------------------------------------------------------------------------------------------------------------------
Sherbrooke Consulting, 553,500 461,250 461,250 461,250 92,250 2.31%
Ltd.(5)
- ------------------------------------------------------------------------------------------------------------------
Howard Goldfarb 60,000 0 60,000 0 0 0
- ------------------------------------------------------------------------------------------------------------------
Seymour and Rosalind 30,000 0 30,000 0 0 0
Shalek
- ------------------------------------------------------------------------------------------------------------------
The MarketLink Group, 685,500 461,250 593,250 461,250 92,250 2.31%
Ltd.(6)
- ------------------------------------------------------------------------------------------------------------------
James Shalek 60,000 0 60,000 0 0 0
- ------------------------------------------------------------------------------------------------------------------
Judith Pace(7) 27,000 22,500 22,500 22,500 4,500 0.11%
- ------------------------------------------------------------------------------------------------------------------
Ulster Investments, Ltd. 120,000 0 120,000 0 0 0
- ------------------------------------------------------------------------------------------------------------------
Nancy Shalek(5)(8) 553,500 461,250 461,250 461,250 92,250 2.31%
- ------------------------------------------------------------------------------------------------------------------
3,120,000 2,000,000 2,270,000 2,000,000 400,000
==================================================================================================================
</TABLE>
- ----------
(1) Does not include 80,000 Shares of Common Stock issuable upon exercise
of 80,000 Class A Warrants held by Morgan Carlton, Inc.
(2) Does not include 50,000 Shares of Common Stock issuable upon exercise
of 50,000 Class A Warrants held by Alan Kerzner. Includes 60,000
Shares of Common Stock issuable upon exercise of 60,000 Options.
(3) Does not include 25,000 Shares of Common Stock issuable upon exercise
of 25,000 Class A Warrants held by M&M Creative Services, Inc.
(4) Does not include 900,000 Shares of Common Stock issuable upon exercise
of 900,000 Class A Warrants held by Special Equities, Inc.
(5) Sherbrooke Consulting, Ltd., a corporation wholly owned by Nancy
Shalek, Chairman of the Board of Directors of the Company is the
record holder of such shares. Ms. Shalek may be deemed to hold sole
investment and voting power over such shares. Does not include 461,250
Shares of Common Stock issuable upon exercise of 461,250 Class A
Warrants held by Sherbrooke or 60,000 Shares of Common Stock issuable
upon the possible conversion of 60,000 Shares of Preferred Stock owned
by James Shalek, the husband of Ms. Shalek.
(6) Does not include 461,250 Shares of Common Stock issuable upon exercise
of 461,250 Class A Warrants held by The MarketLink Group, Ltd. and
Shares of Common Stock issuable upon the possible conversion of
110,000 Shares of Preferred Stock.
Alt - iv
<PAGE>
(7) Does not include 22,500 Shares of Common Stock issuable upon exercise
of 22,500 Class A Warrants held by Judith Pace.
(8) Includes shares of Common Stock and Class A Warrants owned by
Sherbrooke Consulting, Ltd., a corporation wholly owned by Ms. Shalek.
The securities offered hereby may be sold from time to time directly by the
Selling Securityholders. Alternatively, the Selling Securityholders may from
time to time offer such securities through underwriters, dealers or agents. The
distribution of securities by the Selling Securityholders may be effected in one
or more transactions that may take place on the over-the-counter market,
including ordinary broker's transactions, privately-negotiated transactions or
through sales to one or more broker-dealers for resale of such shares as
principals, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. Usual and customary or
specifically negotiated brokerage fees or commissions may be paid by the Selling
Securityholders in connection with such sales of securities. The securities
offered by the Selling Securityholders may be sold by one or more of the
following methods, without limitations: (a) a block trade in which a broker or
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; (b)
purchases by a broker or dealer as principal and resale by such broker or dealer
for its account pursuant to this Prospectus; (c) ordinary brokerage transactions
and transactions in which the broker solicits purchasers, and (d) face-to-face
transaction between sellers and purchasers without a broker-dealer. In effecting
sales, brokers or dealers engaged by the Selling Securityholders may arrange for
other brokers or dealers to participate. The Selling Securityholders and
intermediaries through whom such securities are sold may be deemed
"underwriters" within the meaning of the Act with respect to the securities
offered, and any profits realized or commissions received may be deemed
underwriting compensation.
At the time a particular offer of securities is made by or on behalf of a
Selling Securityholder, to the extent required, a Prospectus will be distributed
which will set forth the number of shares being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents, if
any, the purchase price paid by any underwriter for sales purchased from the
Selling Securityholder and any discounts, commissions or concessions allowed or
reallowed or paid to dealers and the proposed selling price to the public.
Sales of securities by the Selling Securityholder or even the potential of
such sales would likely have an adverse effect on the market prices of the
securities offered hereby. As of the date of this Prospectus, the freely
tradeable securities of the Company will be 3,720,000 shares of Common Stock,
provided, however, that shares of Common Stock held by Selling Securityholders
which are not transferable for thirteen (13) months from the date of this
prospectus with regard to the Preferred Stock Units and twenty four (24) months
from the Effective Date of this Prospectus or earlier with the consent of date
be permitted by the Representative. The Representative may release such
securities upon full subscription of the securities being offered hereby at any
time after the securities have been sold.
Alt - v
<PAGE>
PLAN OF DISTRIBUTION
The securities offered hereby may be sold from time to time directly by the
Selling Securityholders. Alternatively, the Selling Securityholders may from
time to time offer such securities through underwriters, dealers or agents. The
distribution of securities by the Selling Securityholders may be effected in one
or more transactions, privately-negotiated transactions or through sales to one
or more broker-dealers for resale of such shares as principals, including the
Representative, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Usual and
customary or specifically negotiated brokerage fees or commissions may be paid
by the Selling Securityholders in connection with such sales of securities. The
securities offered by the Selling Securityholders may be sold by one or more of
the following methods, without limitations: (a) a block trade in which a broker
or 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;
(b) purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus; (c) ordinary brokerage
transactions and transactions in which the broker solicits purchasers, and (d)
face-to-face transaction between sellers and purchasers without a broker-dealer.
In effecting sales, brokers or dealers engaged by the Selling Securityholders
may arrange for other brokers or dealers to participate. The Selling
Securityholders and intermediaries through whom such securities are sold may be
deemed "underwriters" within the meaning of the Securities Act with respect to
the securities offered, and any profits realized or commissions received may be
deemed underwriting compensation.
At the time a particular offer of securities is made by or on behalf of a
Selling Securityholder, to the extent required, a Prospectus will be distributed
which will set forth the number of shares being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents, if
any, the purchase price paid by any underwriter for shares purchased from the
Selling Securityholder and any discounts, commissions or concessions allowed or
reallowed or paid to dealers, and the proposed selling price to the public.
Alt - vi
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representations not contained in this Prospectus and
if given or made, such information or representations must not be relied upon as
having been authorized by the Company or any Underwriter. Neither the delivery
of this Prospectus nor any sale made hereunder shall under any circumstances
create any implication that there has been no change in the affairs of the
Company since the date hereof. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any of the securities offered hereby
in any jurisdiction to any person to make such offer or solicitation in such
jurisdiction.
----------
TABLE OF CONTENTS
Page
----
Available Information.........
Prospectus Summary............
The Offering..................
Summary Financial
Information.................
Risk Factors..................
Use of Proceeds...............
Dilution......................
Capitalization................
Dividend Policy...............
Selected Financial Data.......
Management's Discussion and
Analysis of Financial
Condition and Results of
Operations...................
Business......................
Management....................
Principal Stockholders........
Certain Transactions..........
Description of
Securities...................
Concurrent Sales..............
Selling Securityholders.......
Plan of Distribution..........
Underwriting..................
Litigation....................
Legal Matters.................
Experts.......................
Additional Information........
Financial Statements..........
----------
Until _____, 1996 (25 days after the date of this Prospectus), all dealers
effecting transactions in the registered securities, whether or not
participating in this distribution, may be required to deliver a Prospectus.
This is in addition to the obligation of dealers to deliver a Prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
ALTERNATE
ML DIRECT INC.
----------
PROSPECTUS
----------
May __, 1996
--------------------------
Alt - vii
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24. Indemnification of Directors and Officers.
In connection with the Offering, the Representative agreed to indemnify the
Company, its directors, and each person who controls it within the meaning of
Section 15 of the Securities Act with respect to any statement in or omission
from the registration statement or the Prospectus or any amendment or supplement
thereto if such statement or omission was made in reliance upon information
furnished in writing to the Company by the Representative specifically for or in
connection with the preparation of the registration statement, the prospectus,
or any such amendment or supplement thereto.
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of the performance of their duties as directors and
officers provided that this provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
arising under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
The Delaware General Corporation Law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's by-laws, any agreement, vote of shareholders or otherwise.
Article Nine of the Company's Certificate of Incorporation eliminates the
personal liability of directors to the fullest extent permitted by Section
102(b)(7) of the Delaware General Corporation Law.
The effect of the foregoing is to require the Company to indemnify the
officers and directors of the Company for any claim arising against such persons
in their official capacities if such person acted in good faith and in a manner
that 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 his conduct was unlawful. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed 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.
The Company does not currently have any liability insurance coverage for
its officers and directors.
II-1
<PAGE>
Items 25. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with this offering are as follows:
SEC filing fee....................................... $ 18,601
Nasdaq filing fee.................................... $ 11,000
NASD filing fee...................................... $ 5,894
Accounting fees and expenses*........................ $ 80,000
Legal fees and expenses*............................. $250,000
Blue Sky fees and expenses*.......................... $ 55,000
Printing and engraving*.............................. $ 50,000
Transfer Agent's and Registrar fees*................. $ 2,500
Miscellaneous expenses*.............................. $ 2,005
--------
Total................................................ $475,000
========
- ----------------
* Estimated
Item 26. Recent Sales of Unregistered Securities.
The following information sets forth all securities of the Company sold by
it since inception, which securities were not registered under the Securities
Act of 1933, as amended:
In June 1995, the Company, in reliance on Section 4(2) of the Securities
Act of 1933, as amended, issued 2,000,000 shares of Common Stock.
In August and September, 1995 and March 1996, in reliance on Section 4(2)
of the Securities Act of 1933, as amended, the Company issued 720,000 Preferred
Stock Units, each unit consisting of one (1) share of Preferred Stock and one
(1) share of Common Stock, to seven (7) stockholders for an aggregate amount of
$600,000. These were no underwriting discounts or commissions paid in connection
with the issuance. The issuance of the securities were in transactions not
involving any public offerings.
With respect to the above-described issuances of securities, the Company
has relied on Section 4(2) of the Securities Act of 1933, as amended, such that
the sales of the securities were transactions by an issuer not involving any
public offering.
All of the aforesaid securities have been appropriately marked with a
restricted legend and are "restricted securities," as defined in Rule 144 of the
rules and the regulations of the Securities and Exchange Commission, Washington
D.C. 20549. All of the aforesaid securities were issued for investment purposes
only and not with a view to redistribution, absent registration. All of the
aforesaid persons have been fully informed and advised concerning the
Registrant, its business, financial and other matters. Transactions by the
Registrant involving
II-2
<PAGE>
the sales of these securities set forth above were issued pursuant to the
"private placement" exemptions under the Securities Act of 1933, as amended, as
transactions by an issuer not involving any public offering. The Registrant has
been informed that each person is able to bear the economic risk of his
investment and is aware that the securities were not registered under the
Securities Act of 1933, as amended, and cannot be re-offered or re-sold until
they have been so registered or until the availability of an exemption
therefrom. The transfer agent and registrar of the Registrant will be instructed
to mark "stop transfer" on its ledgers to assure that these securities will not
be transferred absent registration or until the availability of an exemption
therefrom is determined.
Item 27. Exhibits.
<TABLE>
<S> <C>
1.01* Form of Underwriting Agreement.
1.02* Form of Selected Dealers Agreement.
3.01* Certificate of Incorporation of the Company.
3.02* Certificate of Correction of the Company.
3.03* Certificate of Designation Establishing a Series of Shares of Series A
Redeemable Convertible Preferred Stock of the Company.
3.04* By-Laws of the Company.
4.01* Form of Warrant Agreement by and among the Company and American Stock
Transfer & Trust Company.
4.02* Form of Representative's Purchase Option.
5.01** Opinion of Bernstein & Wasserman, LLP, counsel to the Company.
7.01 Opinion of Bernstein & Wasserman, LLP, counsel to the Company.
10.01* Form of Series A Preferred Stock Subscription Agreement.
10.02* Letter of Agreement by and between the Company and HSN Direct Joint
Venture dated June 12, 1995 and amendments thereto.
10.03* Employment Agreement by and between Alan Kerzner and the Company dated
as of December 1, 1995.
10.04* Form of Financial Consulting Agreement by and between the Company and
I.A. Rabinowitz & Co.
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
10.05 Employment Agreement by and between James Lawless and the Company dated
April 15, 1996.
10.06 Agreement by and between EGW Enterprises, Ltd. and the Company dated
April 8, 1996.
10.07 Employment Agreement by and between Benedict White and the Company
dated April 15, 1996.
23.01* Consent of Bernstein & Wasserman (included in Exhibit 5.01)
23.02 Consent of Mortenson & Associates, P.C.
</TABLE>
* Previously filed
** To be filed by Amendment
Item 28. Undertakings.
(a) Rule 415 Offering
The undersigned registrant will:
1. File, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) Reflect in the prospectus any facts or events which, individually or
in the aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) Include any additional or changed material information on the plan of
distribution;
2. For determining liability under the Securities Act, treat each such
post-effective amendment as a new registration statement of the securities
offered, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering.
3. File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
(b) Equity Offerings of Nonreporting Small Business Issuers
II-4
<PAGE>
The undersigned Registrant will provide to the Representative at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the Representative to
permit prompt delivery to each purchaser.
(c) Indemnification
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the provisions referred to in Item 22 of this Registration Statement
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.
(d) Rule 430A
The undersigned Registrant will:
(1) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of a
prospectus filed by the small business issuer under Rule 424(b)(1) or (4) or
497(h) under the Securities Act as part of this Registration Statement as of the
time the Commission declared it effective.
(2) For any liability under the Securities Act, treat each post-effective
amendment that contains a form of prospectus as a new Registration Statement for
the securities offered in the Registration Statement, and that the offering of
the securities at that time as the initial bona fide offering of those
securities.
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the Registrant, certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form SB-2 and authorized this
Registration Statement to be signed on its behalf by the undersigned, in the
City of New York, State of New York on May 16, 1996
ML DIRECT INC.
By: /s/James Lawless
--------------------------------
James Lawless
President and Chief Operating Officer
and Principal Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/James Lawless President and Chief Operating May 16, 1996
- ----------------------- Officer and Principal Accounting
James Lawless Officer
/s/Nancy Shalek Chairman of the Board May 16, 1996
- ----------------------- and Director
Nancy Shalek
/s/Alan Kerzner Executive Vice President and May 16, 1996
- ----------------------- Director
Alan Kerzner
</TABLE>
<PAGE>
- --------------------------------------------------------------------------------
EXHIBIT 7.01
<PAGE>
[Letterhead of BERNSTEIN & WASSERMAN, LLP]
May 16, 1996
ML Direct Inc.
300 Park Avenue
New York, New York 10022
Re: ML Direct Inc.
Registration Statement on Form SB-2
Registration No. 333-3162
Gentlemen:
You have requested our opinion as your counsel with respect to certain
matters in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of a
Registration Statement on Form SB-2 (Registration No. 333-3162) (the
"Registration Statement"), relating to the proposed public offering by ML Direct
Inc., a Delaware corporation (the "Company"), of certain shares of Series A
Preferred Stock, par value $.0001 per share (the "Series A Preferred Stock").
In connection with the filing of the Registration Statement, the Company
has requested that we provide an opinion as to: (1) whether, as a matter of law,
prior to the liquidation, dissolution or winding up of the affairs of the
Company, there will exist any restriction upon the surplus of the Company
available for the payment of dividends on capital stock of the Company solely by
reason of the fact that the liquidation preference of the Series A Preferred
Stock of the Company will exceed the par value of such Series A Preferred Stock;
and (2) the availability, as a matter of law, of any remedy to holders of the
Series A Preferred Stock before or after payment of any dividend which would
reduce or reduces the surplus of the Company to an amount less than the
difference between the liquidation preference of the Series A Preferred Stock
and the par value of the Series A Preferred Stock.
<PAGE>
BERNSTEIN & WASSERMAN, LLP
ML Direct Inc.
May 16, 1996
Page 2
For the purpose of rendering our opinion as stated herein, we have examined
the Certificate of Incorporation of the Company and the form of Certificate of
Designation with respect to the Series A Preferred Stock filed as an exhibit to
the Registration Statement. In such examination, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us
as copies. When we state our opinion "as a matter of law," we are opining as to
the legal meaning of the language of applicable statutes, as and to the extent
interpreted by reported cases addressing such statutes; we are not opining to
the effect that there are no facts and circumstances which could give rise to a
new and different interpretation of law which is contrary to such legal meaning
as it currently exists or as to equitable remedies, in which a court would
consider issues such as fairness or good faith, notwithstanding the absence of
remedies explicitly authorized by statute.
Section 170 of the General Corporation Law of the State of Delaware (the
"GCL") authorizes a Delaware corporation to pay dividends out of its surplus.
Surplus is defined by Section 154 of the GCL as the amount by which the net
assets of a corporation exceeds the capital of that corporation. Both "net
assets" under Section 154 of the GCL and "capital" under Sections 154 and 244
are determined without reference to the liquidation preference of any class or
series of a corporation's stock. Accordingly, the authorization in Section 170
of the GCL for payment of dividends out of surplus is not in any way limited or
restricted solely by the fact that a class or series of stock of a corporation,
such as the Series A Preferred Stock, has a liquidation preference in excess of
its par value.
By their terms, the Certificate of Incorporation of the Company and the
Certificate of Designation creating the Series A Preferred Stock do not provide
any rights on behalf of the holders of the Series A Preferred Stock to object or
take action with respect to the payment of a dividend, including a dividend that
reduces the surplus of the Company to an amount less than the difference between
the liquidation preference of the Series A Preferred Stock and the par value of
the Series A Preferred Stock. Section 173 of the GCL provides that no
corporation shall pay dividends except in accordance with the GCL. While Section
174 of the GCL provides rights to the corporation (and to its creditors in the
event of dissolution or insolvency) in the event of a willful or negligent
violation of Section 173 by the directors, we are aware of no case or other
statutory provision that would provide holders of Series A Preferred Stock with
remedies with respect to a lawful dividend, even in the case of a dividend paid
out of surplus that reduced the surplus of the Company to an amount less than
the difference between the liquidation preference of the Series A Preferred
Stock and the par value of the Series A Preferred Stock.
<PAGE>
BERNSTEIN & WASSERMAN, LLP
ML Direct Inc.
May 16, 1996
Page 3
Based on the foregoing and subject to the limitations herein, we are of the
opinion that, solely as a matter of law under the GCL as in effect on the date
hereof: (1) prior to a liquidation, dissolution or winding up of the affairs of
the Company, there will be no restriction upon the surplus of the Company
available for payment of dividends on capital stock of the Company solely by
reason of the fact that the liquidation preference of the Series A Preferred
Stock exceeds the par value of the Series A Preferred Stock; and (2) no remedy
would be available to holders of the Series A Preferred Stock either before or
after payment of any dividend, prior to a liquidation, dissolution or winding up
of the Company, solely by reason of the fact that payment of such dividend would
reduce or reduces the surplus of the Company to an amount less than the
difference between the liquidation preference of the Series A Preferred Stock
and the par value of the Series A Preferred Stock.
We render the foregoing opinion as members of the Bar of the State of New
York and express no opinion as to any law of any other jurisdiction other than
the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BERNSTEIN & WASSERMAN
BERNSTEIN & WASSERMAN, LLP
<PAGE>
- --------------------------------------------------------------------------------
EXHIBIT 10.05
<PAGE>
FINAL 4/5/96
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is entered into as of April
15, 1996 between ML Direct, Inc. ("ML/D" or the "Company"), a Delaware
corporation, and James Lawless ("Executive").
1. Employment.
(a) The Company hereby employs Executive, and Executive hereby accepts
employment with the Company, on the terms set forth in this Agreement. This
Agreement shall be for a term commencing on April 16, 1996 and ending on
April 15, 1997 unless it is earlier terminated pursuant to Section 7
hereof.
(b) Executive is hereby employed to serve as the President of the Company.
Executive shall provide senior management services and shall perform such
duties relating thereto as may be determined and assigned to Executive from
time to time by the Board of Directors, to whom Executive shall report.
(c) During the term of this Agreement, Executive shall devote his best
efforts, knowledge and skill and shall devote substantially all of his
working time and attention to the performance of his duties as aforesaid,
except during such periods as Executive shall be ill, disabled, or on
vacation as provided for by this Agreement.
(d) Executive agrees that, at the request of the Company's Board of
Directors, Executive will also perform services under this Agreement on
behalf of the Company for the Company's direct and indirect subsidiaries of
a nature and scope comparable to the services required of Executive by this
Agreement, including holding such directorships and offices of the
Company's direct and indirect subsidiaries to which Executive may be
appointed.
2. Place of Employment. Executive shall be afforded offices and support services
commensurate with Executive's position, in St. Petersburg, FL.
3. Compensation.
(a) Executive shall receive a salary of $120,000 per annum, payable twice
each month on the 15th and last day of each month. The payment of any bonus
shall be at the discretion of the Board of Directors.
<PAGE>
FINAL 4/5/96
(b) In addition, Executive shall be granted an option to purchase up to
100,000 shares of ML/D's Common Stock at any time on or after January 1,
1997 and on or before December 31, 2002. The option shall carry a price per
share equal to 60% of the price per share offered to the public in the
Company's anticipated initial public offering. The right to purchase such
shares shall vest on January 1st 1997, so long as the Executive is still
employed under this Agreement at that time.
4. Vacation. Executive shall be entitled to six weeks of paid vacation during
each calendar year.
5. Benefits. The Company agrees that Executive shall be entitled to participate
in all executive employee benefit plans and perquisites maintained or provided
by the Company. In particular, and not by way of limitation of the foregoing,
the Company shall:
(a) provide Executive with health and disability insurance commensurate
with Executive's position as President of the Company;
(b) provide Executive with life insurance in an amount not less than
$500,000, the proceeds of which shall be payable to Executive's estate or
to such beneficiaries as Executive may designate (it being agreed that if
this Agreement shall terminate for any reason Executive shall have the
right to maintain or convert said insurance policy and to thereafter make
all required payments thereon); and,
(c) put at Executive's disposal a new automobile and shall replace the same
at least once every three years if requested by Executive.
6. Expenses. The Company shall pay for or reimburse Executive for all expenses
incurred by Executive in performing Executive's services and carrying out
Executive's duties pursuant to this Agreement, in accordance with the Company's
standard policies for reimbursement of expenses incurred by its executive
officers.
7. Termination.
(a) This Agreement may be terminated by the Company, acting through its
Board of Directors, only upon any of the following events:
(i) the expiration of 30 days following written notice given by the
Board of Directors of the Company to Executive of the Company's
election to terminate this Agreement following Executive's Disability
(as defined below);
(ii) a determination by the Company's Board of Directors that Cause
(as defined below) exists to terminate this Agreement, and written
notice of termination for Cause is given by the Board of Directors of
the Company to Executive; or,
<PAGE>
FINAL 4/5/96
(iii) the death of Executive.
(b) "Disability" means the inability of Executive to perform substantially
all of the duties required of Executive by this Agreement by reason of
physical or mental incapacity for a period of six consecutive months, or a
period of more than 270 days in the aggregate in any 18 month period.
(c) "Cause" shall be limited to:
(i) a material breach by Executive of any material provision of this
Agreement;
(ii) fraud or other dishonest act by Executive involving the Company;
(iii) Executive's conviction of a felony; or
(iv) the failure of Executive to perform his duties under this
Agreement to the satisfaction of the Company's Board of Directors,
provided that in the case of the foregoing clause (i) and (iv), "Cause"
shall exist only if Executive fails to cure such breach within 30 days of
his receipt of written notice thereof, to the satisfaction of the Company's
Board of Directors, provided that if the Board of Directors (with Executive
abstaining, should he at that time be a member) is unable to reach
agreement as to whether such breach has been cured, the Chairman shall
determine whether such breach has been cured. Nothing contained herein
shall limit Executive's rights or remedies if a court shall determine that
Cause did not in fact exist to terminate this Agreement.
(d) During any period that Executive fails to perform the duties required
of Executive by this Agreement as a result of incapacity due to physical or
mental illness, Executive shall continue to receive the full compensation
provided for by this Agreement without abatement until this Agreement is
terminated in accordance with this Section 7.
(e) In the event of a breach of this Agreement by the Company, Executive
shall not be required to mitigate the amounts of any payments due and owing
to Executive by the Company by seeking other employment or otherwise, nor
shall any compensation received by Executive from any other employment
apply to or otherwise mitigate any amounts due by the Company to Executive
pursuant to this Agreement.
8. Competition; Confidentiality.
(a) Executive shall not, directly or indirectly, during the term of this
Agreement, and, in the case of (ii) below, thereafter:
(i) Engage or be interested, whether as owner, partner, consultant,
employee, agent or otherwise, in any business, activity or enterprise
which is in competition with the
<PAGE>
FINAL 4/5/96
Company's business (such competition to be determined at the sole
discretion of the Company's Board of Directors, with the Executive
having the obligation to disclose any and all such potentially
competitive situations,) provided, however, that notwithstanding the
foregoing Executive may own not more than 5% of any class of security
listed on a national securities exchange or traded in the
over-the-counter market; or
(ii) Use, divulge, furnish or make accessible to any third person or
organization any confidential or proprietary information concerning
the Company or its business except on behalf of the Company in the
regular course of the Company's business, except to the extent
required by law, and provided that information now or hereafter in the
public domain shall not be deemed confidential or proprietary
information.
(b) Executive acknowledges that inasmuch as the Company will suffer
immediate and irreparable harm in the event he breaches any of his
obligations under this Agreement and inasmuch as the Company will not have
an adequate remedy at law, the Company will, in addition to any other
remedy available at law or in equity, be entitled to temporary, preliminary
and permanent injunctive relief and a decree for specific performance of
the terms and provisions of this Agreement in the event of Executive's
breach or threatened or attempted breach hereof, without the necessity of
showing any actual damage or posting bond or furnishing other security.
9. Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given:
(a) When personally delivered;
(b) On the business day following deposit of such notice with a reputable
overnight courier service; or,
(c) Sent by certified mail, return receipt requested, postage prepaid, as
follows:
If to the Company: If to Executive:
ML Direct, Inc. James Lawless
369 Lexington Avenue 990 Boca Ciega Isle Dr.
New York, NY 10017 St. Petersburg Beach, FL 33706
With a copy to: With a copy to:
Sierchio & Albert ___________________, Esq.
41 E. 57th Street, Penthouse A ___________________
New York, NY 10022 ___________________
Attn: Stephen Albert, Esq.
<PAGE>
FINAL 4/5/96
Either party may change such party's address for the purpose of this Section 9
by written notice similarly given.
10. Severability. If any provision of this Agreement shall be held to be invalid
or unenforceable, such provision shall be construed and enforced to the extent
possible as if it had been more narrowly drawn so as not to be invalid or
unenforceable, and such invalidity or unenforceability shall not affect or
render invalid or unenforceable any other provision or this Agreement.
11. Entire Agreement. This Agreement sets forth the parties' final and entire
agreement, and supersedes any and all prior understandings, with respect to the
subject matter hereof.
12. Assignment; Ratification of Agreement. No right or obligation under this
Agreement may be assigned or delegated by either the Company or Executive
without the prior written consent of the other party, with such written consent
not to be unreasonably withheld, and any purported assignment or delegation of
any such right or obligation without such consent shall be null and void.
13. Indemnification. The Company shall indemnify and defend Executive and hold
Executive harmless to the maximum extent permitted by law against claims,
judgments, fines, amounts paid in settlement and reasonable expenses, including
reasonable attorneys' fees, incurred by Executive, in connection with the
defense of, or as a result of any action or proceeding (or any appeal from any
action or proceeding) in which Executive is made or is threatened to be made a
party by reason of Executive's acts or omissions in the performance of his
services hereunder if Executive acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, regardless of whether such action or proceeding is one brought by or in
the right of the Company , to procure a judgment in the Company's favor, or
other than by or in the right of the Company, provided that the Company shall
have no obligation to so indemnify Executive if it shall be determined by a
court of competent jurisdiction that Executive's actions were felonies or
illegal activities involving moral turpitude, including, without limitation,
dishonesty, fraud, and other business-related crimes. The rights of Executive
pursuant to this Section 13 shall be in addition to and not in derogation of any
other rights of indemnification, defense, or being held harmless to which
Executive may be entitled pursuant to law or otherwise.
14. No Waiver. No failure or delay by either party in exercising any right,
option, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof, or the exercise of any other right, option, power or
privilege.
15. Amendment. This Agreement can only be amended, waived or terminated by a
writing signed by both the Company and Executive.
<PAGE>
FINAL 4/5/96
16. Applicable Law. This Agreement shall be governed by and construed and
interpreted in accordance with the internal law of the State of New York,
without reference to its rules as to conflicts of law.
17. Headings. The section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
Executive The Company
ML DIRECT, INC.
/s/ James Lawless By: [ILLEGIBLE]
- ----------------------------- ---------------------------
James Lawless Title: Chairman
<PAGE>
- --------------------------------------------------------------------------------
EXHIBIT 10.06
<PAGE>
ML DIRECT, INC.
369 Lexington Avenue
New York, New York 10017
Tel: (212) 885-0700; Fax: (212) 697-9236
April __, 1996
EGW Enterprises, Ltd.
Suite 114
2845 Aventura Blvd.
Aventura, Florida 33180
Att: Dr. Jay Ellenby
Dear Dr. Ellenby:
Pursuant to our discussions, this letter sets forth the terms of the
agreement between ML Direct, Inc. ("ML Direct") and EGW Enterprises, Ltd.
("EGW") regarding Sistema Vital por Paloma San Basilio.
1. Marketing and Distribution Rights. EGW hereby grants to ML Direct the
following rights, which ML Direct may, but shall not be obligated to, exercise
alone or through any one or more of its affiliates: the exclusive right (subject
to paragraph 6 below) to advertise, promote, market, sell and otherwise
distribute the Products (as defined below) and the Sistema Vital por Paloma San
Basilio instructional video (the "Video") by broadcast, cable, satellite and all
other forms of television transmission now existing or hereafter developed,
radio, electronic and computer retailing media, all print media, direct
solicitation, direct sales, inbound and outbound telemarketing, credit card
syndication, catalog sales, CD-ROM, in-store retail sales, wholesale sales and
such additional means, media and channels of distribution as currently exist or
may hereafter be developed, throughout the world (excluding the United States).
It is the present intent of the parties that the Products initially will be
distributed in the following countries: Argentina, Brazil, Chili, Columbia,
Costa Rica, Ecuador, El Salvador, Honduras, Mexico, Panama, Spain, Peru and
Venezuela. In each country other than the afore-named countries, the
distribution right provided in the first sentence of this paragraph 1 shall
become non-exclusive if ML Direct or its agent do not show the infomercial in
such country within six months after the Test Period Date (as defined in
paragraph 6).
2. The Products. The intial product covered by this Agreement is the 3-Step
Alpha Hydroxy System (the "Hydroxy System") of which each unit consists of (i)
Alpha Prep, (ii) Alpha "C" Treatment Gel, (iii) Vitamin C Moisture Cream, (iv)
Eye "C" Revival Gel, and (v) a blend of mixed fruit acids with Vitamin C and
antioxidents. Improvements to the Hydroxy
1
<PAGE>
System, and other skin care products that hereafter are marketed under the name
Paloma San Basilio (or any variation thereof) or are otherwise identified with
Paloma San Basilio shall also be covered by this Agreement. All such products
are referred to herein singularly as a "Product" and collectively as the
"Products".
3. Term. This Agreement shall commence on the date set forth under EGW's
signature below (the "Effective Date"), and shall continue so long as the
Promotion Memorandum and Marketing Agreement dated September 12, 1985 between
EGW and Paloma San Basilio (the "Rights Agreement") continues in effect. EGW
hereby agrees to take all such actions as may be necessary to maintain the
Rights Agreement in full force and effect through the termination date provided
therein and, if ML Direct so directs EGW, through any extensions of the Rights
Agreement that EGW may obtain under the terms of the Rights Agreement.
4. Purchase Price of the Hydroxy System.
(a) EGW hereby represents and warrants that the manufacturing cost
currently charged by Marlene D'Arcy, Inc. ("D'Arcy") is $6.82 per unit. The
purchase price to ML Direct for the first 3,000 units of the Hydroxy System
shall be $12.00 per unit, and thereafter the price to ML Direct for each unit of
the Hydroxy System shall be $11.25 per unit. The foregoing purchase prices to ML
Direct shall be reduced by the amount of, and concurrently with, any reduction
in manufacturing costs. The purchase price for the units of the Hydroxy System
purchased by ML Direct shall be due and payable 30 days after the units are
shipped by EGW within the United States to the destination designated by ML
Direct. ML Direct shall be under no obligation to purchase any minimum number of
units.
(b) For any purchase order in excess of 1,000 units, ML Direct and EGW
shall negotiate in good faith appropriate financing of the manufacturing costs
of such order in excess of the manufacturing costs of 1,000 units.
(c) ML Direct shall use good faith efforts to cause the units of the
Hydroxy System to be sold for not less than $49.95 per unit, plus shipping and
handling costs.
5. Payment of Manufacturing Costs and Royalties. EGW shall pay all
manufacturing costs (subject to the provisions of paragraph 4(b)) and royalties
for the products, including without limitation the royalty payable to Paloma San
Basilio for each unit of the Hydroxy System purchased by ML Direct.
6. Promotional Efforts.
(a) ML Direct will use reasonable commercial efforts to cause an
infomercial or similar promotional endeavor to be televised on or before the
120th day (the "Test Period Date") following the effective date of this
Agreement, so as to assist the parties in determining the commercial viability
of the Hydroxy System. If such promotional endeavor does not occur on or before
the Test Period Date, the rights granted to ML Direct hereunder shall become
non-
2
<PAGE>
exclusive. ML Direct shall have no obligation to purchase any units during
the 120 day period ending on the Test Period Date, and its failure to purchase
any units during that period shall not affect ML Direct's exclusive distribution
rights under this Agreement.
(b) Exhibit A sets forth the minimum number of units of the Hydroxy
System to be sold by ML Direct in each country named on Exhibit A in each of the
five successive 12-month periods following the Test Period Date, the first of
which shall begin on the day immediately following the Test Period Date. If, in
any of such 12 month periods, ML Direct does sell in any country named on
Exhibit A the number of units set forth opposite the name of such country on
Exhibit A, the rights granted to ML Direct hereunder shall become non-exclusive
in such country.
(c) No part of the cost of the promotional efforts hereunder,
including the cost of television air-time, shall be borne by EGW.
7. Ownership of Rights. EGW represents and warrants to ML Direct that EGW
owns or has valid licenses to all rights to commercially exploit the Products
and to perform this Agreement (including the granting of rights to ML Direct as
provided herein) without infringing on the rights of others and without the
obligation to pay any royalties or other fees to any third party, except for
the royalty payable under the Rights Agreement. A complete and correct copy of
the Rights Agreement is attached hereto as Exhibit B. EGW shall not enter into
any amendments to the Rights Agreement without the prior written consent of ML
Direct. Other than the Rights Agreement, there are no agreements, arrangements,
understandings or commitments regarding the payment of royalties or commissions
for the Products.
8. Manufacturing. ML Direct shall have the right to arrange for the
manufacturing of the Hydroxy System by third parties, subject to the right of
the current manufacturer, D'Arcy to meet competitive bids. Any competitive bids
shall be submitted in writing to EGW and D'Arcy, and shall include such
information as shall be reasonably necessary to demonstrate such manufacturer's
ability to perform its obligations under such proposal. D'Arcy shall have 30
days from its receipt of such proposal to notify ML Direct that it will meet the
terms of such proposal in manufacturing the units, provided that in all events
the determination as to the manufacturer of the Hydroxy System shall be made by
ML Direct. In the case of manufacturers other than D'Arcy, ML Direct shall
assure that the manufacturer maintains adequate insurance, including but not
limited to products liability insurance, and in the case of D'Arcy, EGW shall
assure that D'Arcy maintains adequate insurance, including but not limited to
products liability insurance. EGW shall have the right to approve the quality of
the Products, such approval not to be unreasonably withheld.
9. Notices. All notices, waivers, requests, correspondence and other
communications hereunder must be in writing and shall be deemed to have been
duly given upon the day of delivery to the recipient if sent by personal
delivery, facsimile transmission, or reputable overnight courier, if to ML
Direct to the address set forth on the first page hereof, and
3
<PAGE>
if to EGW to EGW Enterprises, Ltd.,Suite 114, 2845 Aventura Blvd., Aventura,
Florida 33180, Fax (305) 424-7093, Att: Dr. Jay Ellenby or at such address as
either party hereafter may designate by notice to the other as set forth above.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principals thereof.
11. Fees and Expenses. Each party will bear it own respective legal fees
and expenses incurred in connection with the negotiation, execution, delivery
and performance of this Agreement and all other agreements and documents entered
into in connection herewith.
12. Severability. If any provision of this Agreement is judicially
determined to be invalid or otherwise determined to be unenforceable for any
reason, such provision shall, if possible, be reduced to such extent as shall
make such provision enforceable as so reduced, and if such reduction is not
possible such provision shall be severed from this Agreement, and in either such
event the remaining provisions of the Agreement shall remain in full force and
effect.
13. Amendment. This Agreement may not be amended or terminated, nor any
provision hereof waived, except by a written instrument executed by both
parties.
14. Additional Documentation. The parties agree to negotiate in good faith
such additional agreements and documentation, including a more detailed overall
agreement, as may be necessary or desirable to accomplish the purposes and
intent of this Agreement, provided that the parties agree that this Agreement
shall be fully binding on the parties until such time, if ever, as it is
replaced by a more detailed agreement.
15. Assignment. Neither party may assign its rights or obligations
hereunder without the written consent of the other party, provided that ML
Direct may assign or sublicense its rights and obligations hereunder to Home
Shopping Network Direct International or Home Shopping Showcase, or to any
entity in which ML Direct and/or Home Shopping Network Direct International
and/or Home Shopping Showcase has an interest.
16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one agreement.
4
<PAGE>
17. Entire Agreement. This Agreement represents the entire agreement
between the parties covering the subject matter hereof, and supersedes all oral
and written agreements and understandings concerning the subject matter hereof.
If you agree with the foregoing, please sign and return the enclosed copy
of this letter, whereupon this Agreement will be effective as of the date set
forth under your signature.
ML Direct, Inc.
By: /s/ Alan Kerzner
-------------------
Name: Alan Kerzner
Title: President
AGREED:
EGW Enterprise, Ltd.
By: /s/ Jay Ellenby MD
---------------------
Name: Dr. Jay Ellenby, General Partner
By: /s/ Richard Greene MD
---------------------
Name: Dr. Richard Greene
Date: 4/8/96
5
<PAGE>
Exhibit A
Country Minimum Number of Units
- ------- -----------------------
Argentina 10,000
Brazil 25,000
Chile 5,000
Colombia 7,000
Ecuador 3,000
El Salvador 3,000
Honduras 2,500
Mexico 10,000
Panama 2,500
Peru 3,000
Spain 22,000
Venezuela 5,000
Costa Rica 2,000
---------
100,000 * These are units per year.
6
<PAGE>
- --------------------------------------------------------------------------------
EXHIBIT 10.07
<PAGE>
FINAL 4/5/96
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is entered into as of April
15, 1996 between ML Direct, Inc. ("ML/D" or the "Company"), a Delaware
corporation, and Benedict V. White, Jr. ("Executive"). ML Direct, Inc. hereby
offers employment to Benedict V. White, Jr., under the following terms and
conditions.
1. Employment.
(a) The Company hereby employs Executive, and Executive hereby accepts
employment with the Company, on the terms set forth in this Agreement. This
Agreement shall be for a term commencing on April 16, 1996 and ending on
April 15, 2001 unless it is earlier terminated pursuant to Section 7
hereof.
(b) Executive is hereby employed to serve as the Executive Vice President
of the Company. Executive shall provide senior management services and
shall perform such duties relating thereto as may be determined and
assigned to Executive from time to time by the President, to whom Executive
shall report.
(c) During the term of this Agreement, Executive shall devote his best
efforts, knowledge and skill and shall devote substantially all of his
working time and attention to the performance of his duties as aforesaid,
except during such periods as Executive shall be ill, disabled, or on
vacation as provided for by this Agreement.
(d) Executive agrees that, at the request of the Company's Board of
Directors, Executive will also perform services under this Agreement on
behalf of the Company for the Company's direct and indirect subsidiaries of
a nature and scope comparable to the services required of Executive by this
Agreement, including holding such directorships and offices of the
Company's direct and indirect subsidiaries to which Executive may be
appointed.
2. Place of Employment. Executive shall be afforded offices and support services
commensurate with Executive's position, in both St. Petersburg, FL and New York,
NY.
3. Compensation.
<PAGE>
FINAL 4/5/96
(a) Executive shall receive a salary of $200,000 per annum, payable twice
each month on the 15th and last day of each month. The payment of any bonus
shall be at the discretion of the Board of Directors.
(b) In addition, Executive shall be granted an option to purchase up to
600,000 shares of ML/D's Common Stock at any time on or after January 1,
1997 and on or before December 31, 2002. The option shall carry a price per
share equal to 60% of the price per share offered to the public in the
Company's anticipated initial public offering. The right to purchase
one-sixth of such shares (100,000) shall immediately vest and shall become
irrevocable upon the execution of this agreement. An additional 100,000
shares shall vest on January 1st of each of 1997, 1998, 1999, 2000, and
2001, so long as the Executive is still employed under this Agreement at
that time.
4. Vacation. Executive shall be entitled to six weeks of paid vacation during
each calendar year.
5. Benefits. The Company agrees that Executive shall be entitled to participate
in all executive employee benefit plans and perquisites maintained or provided
by the Company. In particular, and not by way of limitation of the foregoing,
the Company shall:
(a) provide Executive with health and disability insurance commensurate
with Executive's position as Executive Vice President of the Company;
(b) provide Executive with life insurance in an amount not less than
$500,000, the proceeds of which shall be payable to Executive's estate or
to such beneficiaries as Executive may designate (it being agreed that if
this Agreement shall terminate for any reason Executive shall have the
right to maintain or convert said insurance policy and to thereafter make
all required payments thereon); and,
(c) put at Executive's disposal a new automobile and shall replace the same
at least once every three years if requested by Executive.
6. Expenses. The Company shall pay for or reimburse Executive for all expenses
incurred by Executive in performing Executive's services and carrying out
Executive's duties pursuant to this Agreement, in accordance with the Company's
standard policies for reimbursement of expenses incurred by its executive
officers. In addition, the Company shall provide Executive with an expense
allowance of $5,000 per month, payable on the 1st day of each month, to be used
at Executive's discretion in the furtherance of the Company's business
interests.
7. Termination.
<PAGE>
FINAL 4/5/96
(a) This Agreement may be terminated by the Company, acting through its
Board of Directors, only upon any of the following events:
(i) the expiration of 30 days following written notice given by the
Board of Directors of the Company to Executive of the Company's
election to terminate this Agreement following Executive's Disability
(as defined below);
(ii) a determination by the Company's Board of Directors that Cause
(as defined below) exists to terminate this Agreement, and written
notice of termination for Cause is given by the Board of Directors of
the Company to Executive; or,
(iii) the death of Executive.
(b) "Disability" means the inability of Executive to perform substantially
all of the duties required of Executive by this Agreement by reason of
physical or mental incapacity for a period of six consecutive months, or a
period of more than 270 days in the aggregate in any 18 month period.
(c) "Cause" shall be limited to:
(i) a material breach by Executive of any material provision of this
Agreement;
(ii) fraud or other dishonest act by Executive involving the Company;
(iii) Executive's conviction of a felony; or
(iv) the failure of Executive to perform his duties under this
Agreement to the satisfaction of the Company's Board of Directors,
provided that in the case of the foregoing clause (i) and (iv), "Cause"
shall exist only if Executive fails to cure such breach within 30 days of
his receipt of written notice thereof, to the satisfaction of the Company's
Board of Directors, provided that if the Board of Directors (with Executive
abstaining, should he at that time be a member) is unable to reach
agreement as to whether such breach has been cured, the Chairman shall
determine whether such breach has been cured. Nothing contained herein
shall limit Executive's rights or remedies if a court shall determine that
Cause did not in fact exist to terminate this Agreement.
(d) During any period that Executive fails to perform the duties required
of Executive by this Agreement as a result of incapacity due to physical or
mental illness, Executive shall continue to receive the full compensation
provided for by this Agreement without abatement until this Agreement is
terminated in accordance with this Section 7.
(e) In the event of a breach of this Agreement by the Company, Executive
shall not be required to mitigate the amounts of any payments due and owing
to Executive by the Company by seeking other employment or otherwise, nor
shall any compensation received by Executive from any other employment
apply to or
<PAGE>
FINAL 4/5/96
otherwise mitigate any amounts due by the Company to Executive pursuant to
this Agreement.
8. Competition; Confidentiality.
(a) Executive shall not, directly or indirectly, during the term of this
Agreement, and, in the case of (ii) below, thereafter:
(i) Engage or be interested, whether as owner, partner, consultant,
employee, agent or otherwise, in any business, activity or enterprise
which is in competition with the Company's business (such competition
to be determined at the sole discretion of the Company's Board of
Directors, with the Executive having the obligation to disclose any
and all such potentially competitive situations,) provided, however,
that notwithstanding the foregoing Executive may own not more than 5%
of any class of security listed on a national securities exchange or
traded in the over-the-counter market; or
(ii) Use, divulge, furnish or make accessible to any third person or
organization any confidential or proprietary information concerning
the Company or its business except on behalf of the Company in the
regular course of the Company's business, except to the extent
required by law, and provided that information now or hereafter in the
public domain shall not be deemed confidential or proprietary
information.
(b) Executive acknowledges that inasmuch as the Company will suffer
immediate and irreparable harm in the event he breaches any of his
obligations under this Agreement and inasmuch as the Company will not have
an adequate remedy at law, the Company will, in addition to any other
remedy available at law or in equity, be entitled to temporary, preliminary
and permanent injunctive relief and a decree for specific performance of
the terms and provisions of this Agreement in the event of Executive's
breach or threatened or attempted breach hereof, without the necessity of
showing any actual damage or posting bond or furnishing other security.
9. Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given:
(a) When personally delivered;
(b) On the business day following deposit of such notice with a reputable
overnight courier service; or,
(c) Sent by certified mail, return receipt requested, postage prepaid, as
follows:
If to the Company: If to Executive:
ML Direct, Inc. Benedict V. White, Jr.
369 Lexington Avenue 1340 Gulf Blvd., #16F
<PAGE>
FINAL 4/5/96
New York, NY 10017 Clearwarer, FL 34630
With a copy to: With a copy to:
Sierchio & Albert ___________________, Esq.
41 E. 57th Street, Penthouse A ___________________
New York, NY 10022 ___________________
Attn: Stephen Albert, Esq.
Either party may change such party's address for the purpose of this Section 9
by written notice similarly given.
10. Severability. If any provision of this Agreement shall be held to be invalid
or unenforceable, such provision shall be construed and enforced to the extent
possible as if it had been more narrowly drawn so as not to be invalid or
unenforceable, and such invalidity or unenforceability shall not affect or
render invalid or unenforceable any other provision or this Agreement.
11. Entire Agreement. This Agreement sets forth the parties' final and entire
agreement, and supersedes any and all prior understandings, with respect to the
subject matter hereof.
12. Assignment; Ratification of Agreement. No right or obligation under this
Agreement may be assigned or delegated by either the Company or Executive
without the prior written consent of the other party, with such written consent
not to be unreasonably withheld, and any purported assignment or delegation of
any such right or obligation without such consent shall be null and void.
13. Indemnification. The Company shall indemnify and defend Executive and hold
Executive harmless to the maximum extent permitted by law against claims,
judgments, fines, amounts paid in settlement and reasonable expenses, including
reasonable attorneys' fees, incurred by Executive, in connection with the
defense of, or as a result of any action or proceeding (or any appeal from any
action or proceeding) in which Executive is made or is threatened to be made a
party by reason of Executive's acts or omissions in the performance of his
services hereunder if Executive acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, regardless of whether such action or proceeding is one brought by or in
the right of the Company, to procure a judgment in the Company's favor, or
other than by or in the right of the Company, provided that the Company shall
have no obligation to so indemnify Executive if it shall be determined by a
court of competent jurisdiction that Executive's actions were felonies or
illegal activities involving moral turpitude, including, without limitation,
dishonesty, fraud, and other business-related crimes. The rights of Executive
pursuant to this Section 13 shall be in addition to and not in derogation of any
other rights of indemnification, defense, or being held harmless to which
Executive may be entitled pursuant to law or otherwise.
<PAGE>
FINAL 4/5/96
14. No Waiver. No failure or delay by either party in exercising any right,
option, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof, or the exercise of any other right, option, power or
privilege.
15. Amendment. This Agreement can only be amended, waived or terminated by a
writing signed by both the Company and Executive.
16. Applicable Law. This Agreement shall be governed by and construed and
interpreted in accordance with the internal law of the State of New York,
without reference to its rules as to conflicts of law.
17. Headings. The section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
Executive The Company
ML DIRECT, INC.
/s/ Benedict V. White, Jr. By: [ILLEGIBLE]
- ---------------------------- ----------------------------
Benedict V. White, Jr. Title: Chairman
<PAGE>
- --------------------------------------------------------------------------------
EXHIBIT 23.02
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders of
ML Direct Inc.
New York, New York
We hereby consent to the use in the Prospectus constituting a part of this
Registration Statement on Form SB-2 of our report dated December 20, 1995,
relating to the consolidated financial statements of ML Direct Inc. which is
contained in the Prospectus.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ MORTENSON AND ASSOCIATES, P.C.
MORTENSON AND ASSOCIATES, P.C.
Certified Public Accountants.
Cranford, New Jersey
May 16, 1996
