AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 14, 2000
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MARKETING SERVICES GROUP, INC.
(Exact name of registrant as specified in its charter)
NEVADA 88-0085608
------ ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
--------------------------
333 SEVENTH AVENUE
NEW YORK, NEW YORK 10001
(917) 339-7100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------------
J. JEREMY BARBERA
MARKETING SERVICES GROUP, INC
333 SEVENTH AVENUE
NEW YORK, NEW YORK 10001
(917) 339-7100
(Name, address, including
zip code, and telephone number, including area code, of
agent for service)
--------------------------
COPIES TO:
MICHAEL L. PFLAUM, ESQ.
CAMHY KARLINSKY STEIN LLP
1740 BROADWAY
NEW YORK, NEW YORK 10019
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement number for the same offering. /X/ 333-33174
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please
check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed Maximum Aggregate
Title of Shares Maximum Amount Aggregate Price Offering Amount of
to be Registered to Per Security (1) Price (1) Registration
be Registered Fee
- --------------------------------------------------------------------------------
Common Stock,
par value $.01 18,000(2) $12.9065 $232,317 $61.33
per share
- --------------------------------------------------------------------------------
(1)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended. The
proposed maximum offering price per share, the proposed maximum aggregate
offering price and the amount of registration fee have been computed on the
basis of the average high and low prices per share of the common stock on the
Nasdaq National Market System on April 7, 2000.
(2)In addition to the shares set forth in the table, the amount to be
registered includes an indeterminate number of shares issuable upon exercise
of the warrants, as such number may be adjusted as a result of stock splits,
stock dividends and similar transactions in accordance with Rule 416.
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
================================================================================
SUBJECT TO COMPLETION, DATED APRIL 14, 2000
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 OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This registration statement is being filed to register an additional
18,000 shares of Common Stock, $.01 par value per share, of Marketing Services
Group, Inc., a Nevada corporation (the "Registrant"), pursuant to Rule 462(b)
under the Securities Act of 1933, as amended. The information in the
Registrant's earlier effective registration statement (Registration No.
333-33174) is incorporated herein by reference.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
All exhibits filed with or incorporated by reference in Registration Statement
No. 333-33174 are incorporated by reference into, and shall be deemed part of,
this Registration Statement, except the following which are filed herewith:
4.4 Warrant Certificate between Marketing Services
Group, Inc. and Jason Lyons. *
4.5 Warrant Certificate between Marketing Service
Group, Inc. and Kenneth A. Zitter *
5.1 Opinion of McDonald Carano Wilson McCune Bergin Frankovich &
Hicks LLP as to legality of securities being offered
(including consent)*
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of McDonald Carano Wilson McCune Bergin
Frankovich & Hicks LLP (contained in Exhibit 5.1)
24.1 Powers of Attorney (h)
* Filed herewith.
(h) Incorporated by reference to the Registrant's
Registration Statement on Form S-3, Registration
Statement No. 333-33174
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on April 14, 2000.
MARKETING SERVICES GROUP, INC.
By:/s/ JEREMY BARBERA
------------------
Name:J. Jeremy Barbera
Title:Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/J. JEREMY BARBERA Chairman of the Board and Chief April 14,
- -------------------- Executive Officer (Principal Executive 2000
J. Jeremy Barbera Officer)
/s/ALAN I. ANNEX Director April 14,
- ---------------- 2000
Alan I. Annex
/s/JAMES COPPERSMITH Director April 14,
- -------------------- 2000
James Coppersmith
/s/JOHN T. GERLACH Director April 14,
- ------------------ 2000
John T. Gerlach
/s/SEYMOUR JONES Director April 14,
- ---------------- 2000
Seymour Jones
/s/STEPHEN J. KILLEEN Director April 14,
- --------------------- 2000
Stephen J. Killeen
/s/MICHAEL E. PRALLE Director April 14,
- -------------------- 2000
Michael E. Pralle
/s/ANTHONY WAINWRIGHT Director April 14,
- --------------------- 2000
Anthony Wainwright
/s/CINDY H. HILL Chief Accounting Officer (Principal April 14,
- ---------------- Accounting Officer) 2000
Cindy H. Hill
<PAGE>
Exhibit 4.4
MARKETING SERVICES GROUP, INC.
WARRANT CERTIFICATE
THIS WARRANT CERTIFICATE (the "Warrant Certificate") certifies that for
value received Jason Lyons, having an address at 5432 Old Pirate Way, Huntington
Beach, California 92649 (the "Holder") is the owner of this warrant (the
"Warrant"), which entitles the Holder thereof to purchase at any time on or
before the Expiration Date (as defined below) twelve thousand (12,000) shares
(the "Warrant Shares") of fully paid non-assessable shares of the common stock,
par value $.01 per share, (the "Common Stock"), of MARKETING SERVICES GROUP,
INC., a Nevada corporation (the "Company"), at a purchase price of $1.00 per
Warrant Share, in lawful money of the United States of America by bank or
certified check, subject to adjustment as hereinafter provided.
THE WARRANT REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND IS SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. THIS
WARRANT MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION
OF COUNSEL, REASONABLY ACCEPTABLE TO COUNSEL FOR THE COMPANY, TO THE EFFECT
THAT THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT
REGISTRATION UNDER THE ACT.
1. WARRANT; PURCHASE PRICE.
This Warrant shall entitle the Holder thereof to purchase twelve thousand
(12,000) shares of Common Stock. The purchase price payable upon exercise of the
Warrant (the "Purchase Price") shall be $1.00 per share. The Purchase Price and
the number of Warrant Shares evidenced by this Warrant Certificate are subject
to adjustment as provided in Section 2 below.
2. EXERCISE; EXPIRATION DATE.
(a) This Warrant is exercisable, at the option of the Holder, at any time after
date of issuance and on or before the Expiration Date by delivering to the
Company written notice of exercise (the "Exercise Notice"), stating the
number of Warrant Shares to be purchased thereby, either (i) accompanied by
either a bank or certified check payable to the order of the Company for
the Warrant Shares being purchased or (ii) by returning the Exercise Notice
and indicating that a cashless exercise is selected by the Holder. Within
ten (10) business days of the Company's receipt of the Exercise Notice
accompanied by the consideration for the Warrant Shares being purchased,
the Company shall issue and deliver to the Holder a certificate
representing the Warrant Shares being purchased. In the case of exercise
for less than all of the Warrant Shares represented by this Warrant
Certificate, the Company shall cancel this Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate
for the balance of such Warrant Shares.
(b) Cashless Exercise. The Holder may elect to convert this Warrant, without
the payment by the Holder of any additional consideration, into shares of
Warrant Shares having a value equal to the product of the Purchase Price
and the number of shares of Warrant Shares for which this Warrant is being
exercised, or any portion thereof, by the surrender of this Warrant or such
portion to the Company, at the principal offices of the Company. Thereupon,
the Company will issue to the Holder such number of shares of Warrant
Shares as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder pursuant to Section 1.
Y = the number of shares covered by this Warrant in respect of which
the cashless exercise is made pursuant to this Section 1.
A = the fair market value of one share of Warrant Shares as determined
by the closing price of one share of the Company's freely trading
common stock one day prior to the date the election is made pursuant
to this Section .
B = the Purchase Price for one Warrant Share in effect at the time the
election is made pursuant to this Section 2(b).
(c) Expiration. The term "Expiration Date" shall mean 5:00 p.m., New
York time, on January 20, 2004 or, if such date shall in the State
of New York be a holiday or a day on which banks are authorized to
close, then 5:00 p.m., New York time, the next following day which
in the State of New York is not a holiday or a day on which banks
are authorized to close.
3. RESTRICTIONS ON TRANSFER.
(a) Restrictions. This Warrant, and the Warrant Shares or any other
security issuable upon exercise of this Warrant may not be assigned,
transferred, sold, or otherwise disposed of unless (i) there is in effect a
registration statement under the Act covering such sale, transfer, or other
disposition or (ii) the Holder furnishes to the Company an opinion of counsel,
reasonably acceptable to counsel for the Company, to the effect that the
proposed sale, transfer, or other disposition may be effected without
registration under the Act, as well as such other documentation incident to such
sale, transfer, or other disposition as the Company's counsel shall reasonably
request.
(b) Legend. Any Warrant Shares issued upon the exercise of this Warrant
shall bear the following legend: "The shares evidenced by this certificate were
issued upon exercise of a Warrant and may not be sold, transferred, or otherwise
disposed of in the absence of an effective registration under the Securities Act
of 1933 (the "Act") or an opinion of counsel, reasonably acceptable to counsel
for the Company, to the effect that the proposed sale, transfer, or disposition
may be effectuated without registration under the Act."
4. RESERVATION OF SHARES.
The Company covenants that it will at all times reserve and keep available
out of its authorized Common Stock, solely for the purpose of issuance upon
exercise of this Warrant, such number of shares of Common Stock as shall then be
issuable upon the exercise of this Warrant. The Company covenants that all
shares of Common Stock which shall be issuable upon exercise of this Warrant
shall be duly and validly issued and fully paid and non-assessable and free from
all taxes, liens, and charges with respect to the issue thereof.
5. LOSS OR MUTILATION.
Upon receipt by the Company of reasonable evidence of the loss, theft,
destruction, or mutilation of this Warrant Certificate and, in the case of loss,
theft, or destruction, of indemnity reasonably satisfactory to the Company, or
in the case of mutilation, upon surrender and cancellation of the mutilated
Warrant Certificate, the Company shall execute and deliver in lieu thereof, a
new Warrant Certificate representing an equal number of Warrant Shares
exercisable thereunder.
6. ANTI-DILUTION PROVISIONS.
(a) The number of shares of Common Stock and the Purchase Price per
Warrant Share pursuant to this Warrant shall be subject to adjustment from time
to time as provided for in this Section 6(a). Notwithstanding any provision
contained herein, the aggregate Purchase Price for the total number of Warrant
Shares issuable pursuant to this Warrant shall remain unchanged. In case the
Company shall at any time change as a whole, by subdivision or combination in
any manner or by the making of a stock dividend or otherwise, the number of
outstanding shares of Common Stock into a different number of shares, (i) the
number of shares which the Holder of this Warrant shall have been entitled to
purchase pursuant to this Warrant shall be increased or decreased in direct
proportion to such increase or decrease of shares, as the case may be, and (ii)
the Purchase Price per Warrant Share (but not the aggregate Purchase Price) in
effect immediately prior to such change shall be increased or decreased in
inverse proportion to such increase or decrease of shares, as the case may be.
(b) In case of any capital reorganization or any reclassification of the
capital stock of the Company or in case of the consolidation or merger of the
Company with another corporation (or in the case of any sale, transfer, or other
disposition to another corporation of all or substantially all the property,
assets, business, and goodwill of the Company), the Holder of this Warrant shall
thereafter be entitled to purchase the kind and amount of shares of capital
stock which this Warrant entitled the Holder to purchase immediately prior to
such capital reorganization, reclassification of capital stock, consolidation,
merger, sale, transfer, or other disposition; and in any such case appropriate
adjustments shall be made in the application of the provisions of this Section 6
with respect to rights and interests thereafter of the Holder of this Warrant to
the end that the provisions of this Section 6 shall thereafter be applicable, as
near as reasonably may be, in relation to any shares or other property
thereafter purchasable upon the exercise of this Warrant.
(c) Fractional Shares - No certificate for fractional shares shall be
issued upon the exercise of this Warrant, but in lieu thereof the Company shall
purchase any such fractional shares calculated to the nearest cent.
(d) Rights of the Holder - The Holder of this Warrant shall not be
entitled to any rights of a shareholder of the Company in respect of any Warrant
Shares purchasable upon the exercise hereof until such Warrant Shares have been
issued to it.
7. REPRESENTATIONS AND WARRANTIES.
The Holder, by acceptance of this Warrant, represents and warrants to, and
covenants and agrees with, the Company as follows;
(i) The Warrant is being acquired for the Holder's own account for
investment and not with a view toward resale or distribution of any part
thereof, and the Holder has no present intention of selling, granting any
participation in, or otherwise distributing the same.
(ii) The Holder is aware that the Warrant is not registered under the
Act or any state securities or blue sky laws and, as a result, substantial
restrictions exist with respect to the transferability of the Warrant and the
Warrant Shares to be acquired upon exercise of the Warrant.
(iii) The Holder is an accredited investor, as defined in Rule 501(a)
of Regulation D under the Act and is a sophisticated investor familiar with the
type of risks inherent in the acquisition of securities such as the Warrant, and
its financial position is such that it can afford to retain the Warrant and the
Warrant Shares for an indefinite period of time without realizing any direct or
indirect cash return on this investment.
8. REGISTRATION
(a) Piggyback Registration. The Company agrees that if, at any time on or
before the Expiration Date the Company registers any of its securities under the
Act, whether for its own account or on behalf of selling stockholders the
Company will provide the Holder with at least forty-five (45) days prior written
notice of such intention and, upon request from the Holder, will seek, subject
to underwriter and Securities & Exchange Commission approval, to have the
underlying shares issuable under this Warrant designated by the Holder to be
registered under the Act (such event, a "Piggyback Registration"), at no expense
to the Holder except as otherwise herein provided.
(b) Piggyback Registration Procedures. A registration statement referred
to in Section 8(a) shall be prepared and processed in accordance with the
following terms and conditions:
(i) The Holder agrees to cooperate in furnishing promptly to the
Company in writing any information requested by the Company in connection with
the preparation, filing, and processing of such registration statement.
(ii) The Company shall include in the registration statement the shares
of Common Stock proposed to be included in the Piggyback Registration, subject
to the limitations set forth in Section 8(c).
(iii) The Company shall prepare and file with the Securities and
Exchange Commission (the "SEC") such amendments and supplements to such
registration statement and the prospectuses used in connection therewith as may
be required to comply with the provisions of the Act.
(iv) The Company shall furnish to the Holder such number of copies of
each prospectus, including preliminary prospectuses, in conformity with the
requirements of the Act, and such other documents, as the Holder may reasonably
request in order to facilitate the public sale or other disposition of the
shares owned by it.
(v) The Company shall provide a transfer agent and registrar for all
such Common Stock registered pursuant to this Section 8 not later than the
Effective Date of such registration statement.
(vi) The Company shall, in connection with an underwritten offering,
enter into an underwriting agreement on terms customarily contained in
underwriting agreements with respect to secondary distributions or combined
primary and secondary distributions, as appropriate.
(vii) The Holder shall not (until further notice) effect sales of the
shares covered by the registration statement after receipt of telegraphic or
written notice from the Company to suspend sales to permit the Company to
correct or update a registration statement or prospectus.
(c) Limitations. Notwithstanding the foregoing, if a Piggyback
Registration is an underwritten offering and the managing underwriter advises
the Company in writing that in its opinion the total amount of securities
requested to be included in such registration exceeds the amount of securities
which can be sold in such offering, the Company will include in such
registration: (i) first, all securities the Company proposes to sell, and (ii)
second, up to such amount of securities requested to be included in such
registration by the Holders of the Company, which in the opinion of such
managing underwriter can be sold.
9. FURNISH INFORMATION.
The Company agrees that it shall promptly deliver to the Holder copies of
all financial statements, reports and proxy statements which the Company is
required to send to its shareholders generally.
10. INDEMNIFICATION.
(a) The Company may require, as a condition to including any Common Stock
in any Piggyback Registration pursuant to Section 8 hereof that the Company
shall have received an undertaking satisfactory to it from the Holder to
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such registration statement, each person
who participates as an underwriter (if such underwriter so requests) in the
offering or sale of such securities and each other person, if any, who controls
such underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities or expenses, joint or several, to which such person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment
thereof or supplement thereto, or any document incorporated by reference
therein, or (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only if such actual or alleged statement or omission
described in (i) or (ii) above was made in reliance upon and in conformity with
written information furnished to the Company by such Holder for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer, participating person or
controlling person and shall survive the transfer of such securities by such
Holder.
(b) The Company shall agree, in connection with any registration statement
filed pursuant to Section 8 hereof, that the Company shall indemnify each Holder
selling Common Stock pursuant to such registration statement and each other
person, if any, who controls such Holder within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, against any losses, claims, damages,
liabilities or expenses, joint or several, to which such person may become
subject under the Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment thereof or
supplement thereto or any document incorporated by referenced therein, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Holder for use in preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement.
(c) If the indemnification provided for in Sections 10(a) or 10(b) above
is unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party in lieu of
indemnifying such indemnified party thereunder shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
parties on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party, or by the indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Holder agree that it would not be just and equitable
if contribution pursuant to this Section 10(c) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities or actions in respect thereof referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
11. MISCELLANEOUS.
(a) Transfer Taxes; Expenses. The Holder shall pay any and all
underwriters' discounts, brokerage fees, and transfer taxes incident to the sale
or exercise of this Warrant or the sale of the underlying shares issuable
thereunder, and shall pay the fees and expenses of any special attorneys or
accountants retained by it.
(b) Notice. Any notice or other communication required or permitted to be
given to the Company shall be in writing and shall be delivered by certified
mail with return receipt or by federal express or delivered in person against
receipt, as follows:
Marketing Services Group, Inc.
333 Seventh Avenue
New York, New York 10001
Attention: Jeremy Barbera
(c) Governing Law. This Warrant Certificate shall be governed by, and
construed in accordance with, the laws of the State of Nevada, without reference
to the conflicts of laws.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed as of the date set forth below.
MARKETING SERVICES GROUP, INC.
By:/s/Jeremy Barbera
-----------------
Name: Jeremy Barbera
Title: Chairman of the Board and Chief
Executive Officer
Attest:
Name:
Title:
Date: January 20, 2000
<PAGE>
FORM OF EXERCISE OF WARRANT
The undersigned hereby elects to exercise the Warrant as to ________
shares of common stock covered thereby.
Enclosed herewith is a bank or certified check in the amount of
$__________.
Exercise of the Warrant shall be by cashless exercise.
Date:
Name:
Address:
Signature Guarantor
Exhibit 4.5
MARKETING SERVICES GROUP, INC.
WARRANT CERTIFICATE
THIS WARRANT CERTIFICATE (the "Warrant Certificate") certifies that for
value received Kenneth A. Zitter, having an address at 260 Madison Avenue, New
York, New York 10016 (the "Holder") is the owner of this warrant (the
"Warrant"), which entitles the Holder thereof to purchase at any time on or
before the Expiration Date (as defined below) six thousand (6,000) shares (the
"Warrant Shares") of fully paid non-assessable shares of the common stock, par
value $.01 per share, (the "Common Stock"), of MARKETING SERVICES GROUP, INC., a
Nevada corporation (the "Company"), at a purchase price of $1.00 per Warrant
Share, in lawful money of the United States of America by bank or certified
check, subject to adjustment as hereinafter provided.
THE WARRANT REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND IS
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS
CERTIFICATE. THIS WARRANT MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO
COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT REGISTRATION
UNDER THE ACT.
1. WARRANT; PURCHASE PRICE.
This Warrant shall entitle the Holder thereof to purchase six thousand
(6,000) shares of Common Stock. The purchase price payable upon exercise of the
Warrant (the "Purchase Price") shall be $1.00 per share. The Purchase Price and
the number of Warrant Shares evidenced by this Warrant Certificate are subject
to adjustment as provided in Section 2 below.
2. EXERCISE; EXPIRATION DATE.
(a) This Warrant is exercisable, at the option of the Holder, at any time after
date of issuance and on or before the Expiration Date by delivering to the
Company written notice of exercise (the "Exercise Notice"), stating the
number of Warrant Shares to be purchased thereby, either (i) accompanied by
either a bank or certified check payable to the order of the Company for
the Warrant Shares being purchased or (ii) by returning the Exercise Notice
and indicating that a cashless exercise is selected by the Holder. Within
ten (10) business days of the Company's receipt of the Exercise Notice
accompanied by the consideration for the Warrant Shares being purchased,
the Company shall issue and deliver to the Holder a certificate
representing the Warrant Shares being purchased. In the case of exercise
for less than all of the Warrant Shares represented by this Warrant
Certificate, the Company shall cancel this Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate
for the balance of such Warrant Shares.
(b) Cashless Exercise. The Holder may elect to convert this Warrant, without
the payment by the Holder of any additional consideration, into shares of
Warrant Shares having a value equal to the product of the Purchase Price
and the number of shares of Warrant Shares for which this Warrant is being
exercised, or any portion thereof, by the surrender of this Warrant or such
portion to the Company, at the principal offices of the Company. Thereupon,
the Company will issue to the Holder such number of shares of Warrant
Shares as is computed using the following formula:
X = Y (A-B)
------
A
where X = the number of shares to be issued to the Holder pursuant to
Section 1.
Y = the number of shares covered by this Warrant in respect of which
the cashless exercise is made pursuant to this Section 1.
A = the fair market value of one share of Warrant Shares as determined
by the closing price of one share of the Company's freely trading
common stock one day prior to the date election is made pursuant to
this Section .
B = the Purchase Price of one Warrant Share in effect at the time the
election is made pursuant to this Section 2(b).
(c) Expiration. The term "Expiration Date" shall mean 5:00 p.m., New York time,
on January 20, 2004 or, if such date shall in the State of New York be a
holiday or a day on which banks are authorized to close, then 5:00 p.m.,
New York time, the next following day which in the State of New York is not
a holiday or a day on which banks are authorized to close.
3. RESTRICTIONS ON TRANSFER.
(a) Restrictions. This Warrant, and the Warrant Shares or any other
security issuable upon exercise of this Warrant may not be assigned,
transferred, sold, or otherwise disposed of unless (i) there is in effect a
registration statement under the Act covering such sale, transfer, or other
disposition or (ii) the Holder furnishes to the Company an opinion of counsel,
reasonably acceptable to counsel for the Company, to the effect that the
proposed sale, transfer, or other disposition may be effected without
registration under the Act, as well as such other documentation incident to such
sale, transfer, or other disposition as the Company's counsel shall reasonably
request.
(b) Legend. Any Warrant Shares issued upon the exercise of this Warrant
shall bear the following legend:
"The shares evidenced by this certificate were issued upon exercise
of a Warrant and may not be sold, transferred, or otherwise disposed
of in the absence of an effective registration under the Securities
Act of 1933 (the "Act") or an opinion of counsel, reasonably
acceptable to counsel for the Company, to the effect that the
proposed sale, transfer, or disposition may be effectuated without
registration under the Act."
4. RESERVATION OF SHARES.
The Company covenants that it will at all times reserve and keep available
out of its authorized Common Stock, solely for the purpose of issuance upon
exercise of this Warrant, such number of shares of Common Stock as shall then be
issuable upon the exercise of this Warrant. The Company covenants that all
shares of Common Stock which shall be issuable upon exercise of this Warrant
shall be duly and validly issued and fully paid and non-assessable and free from
all taxes, liens, and charges with respect to the issue thereof.
5. LOSS OR MUTILATION.
Upon receipt by the Company of reasonable evidence of the loss, theft,
destruction, or mutilation of this Warrant Certificate and, in the case of loss,
theft, or destruction, of indemnity reasonably satisfactory to the Company, or
in the case of mutilation, upon surrender and cancellation of the mutilated
Warrant Certificate, the Company shall execute and deliver in lieu thereof, a
new Warrant Certificate representing an equal number of Warrant Shares
exercisable thereunder.
6. ANTI-DILUTION PROVISIONS.
(a) The number of shares of Common Stock and the Purchase Price per
Warrant Share pursuant to this Warrant shall be subject to adjustment from time
to time as provided for in this Section 6(a). Notwithstanding any provision
contained herein, the aggregate Purchase Price for the total number of Warrant
Shares issuable pursuant to this Warrant shall remain unchanged. In case the
Company shall at any time change as a whole, by subdivision or combination in
any manner or by the making of a stock dividend or otherwise, the number of
outstanding shares of Common Stock into a different number of shares, (i) the
number of shares which the Holder of this Warrant shall have been entitled to
purchase pursuant to this Warrant shall be increased or decreased in direct
proportion to such increase or decrease of shares, as the case may be, and (ii)
the Purchase Price per Warrant Share (but not the aggregate Purchase Price) in
effect immediately prior to such change shall be increased or decreased in
inverse proportion to such increase or decrease of shares, as the case may be.
(b) In case of any capital reorganization or any reclassification of the
capital stock of the Company or in case of the consolidation or merger of the
Company with another corporation (or in the case of any sale, transfer, or other
disposition to another corporation of all or substantially all the property,
assets, business, and goodwill of the Company), the Holder of this Warrant shall
thereafter be entitled to purchase the kind and amount of shares of capital
stock which this Warrant entitled the Holder to purchase immediately prior to
such capital reorganization, reclassification of capital stock, consolidation,
merger, sale, transfer, or other disposition; and in any such case appropriate
adjustments shall be made in the application of the provisions of this Section 6
with respect to rights and interests thereafter of the Holder of this Warrant to
the end that the provisions of this Section 6 shall thereafter be applicable, as
near as reasonably may be, in relation to any shares or other property
thereafter purchasable upon the exercise of this Warrant.
(c) Fractional Shares - No certificate for fractional shares shall be
issued upon the exercise of this Warrant, but in lieu thereof the Company shall
purchase any such fractional shares calculated to the nearest cent.
(d) Rights of the Holder - The Holder of this Warrant shall not be
entitled to any rights of a shareholder of the Company in respect of any Warrant
Shares purchasable upon the exercise hereof until such Warrant Shares have been
issued to it.
7. REPRESENTATIONS AND WARRANTIES.
The Holder, by acceptance of this Warrant, represents and warrants to, and
covenants and agrees with, the Company as follows;
(i) The Warrant is being acquired for the Holder's own account for
investment and not with a view toward resale or distribution of any part
thereof, and the Holder has no present intention of selling, granting any
participation in, or otherwise distributing the same.
(ii) The Holder is aware that the Warrant is not registered under the
Act or any state securities or blue sky laws and, as a result, substantial
restrictions exist with respect to the transferability of the Warrant and the
Warrant Shares to be acquired upon exercise of the Warrant.
(iii) The Holder is an accredited investor, as defined in Rule 501(a)
of Regulation D under the Act and is a sophisticated investor familiar with the
type of risks inherent in the acquisition of securities such as the Warrant, and
its financial position is such that it can afford to retain the Warrant and the
Warrant Shares for an indefinite period of time without realizing any direct or
indirect cash return on this investment.
8. REGISTRATION
(a) Piggyback Registration. The Company agrees that if, at any time on or
before the Expiration Date the Company registers any of its securities under the
Act, whether for its own account or on behalf of selling stockholders the
Company will provide the Holder with at least forty-five (45) days prior written
notice of such intention and, upon request from the Holder, will seek, subject
to underwriter and Securities & Exchange Commission approval, to have the
underlying shares issuable under this Warrant designated by the Holder to be
registered under the Act (such event, a "Piggyback Registration"), at no expense
to the Holder except as otherwise herein provided.
(b) Piggyback Registration Procedures. A registration statement referred
to in Section 8(a) shall be prepared and processed in accordance with the
following terms and conditions:
(i) The Holder agrees to cooperate in furnishing promptly to the
Company in writing any information requested by the Company in connection with
the preparation, filing, and processing of such registration statement.
(ii) The Company shall include in the registration statement the shares
of Common Stock proposed to be included in the Piggyback Registration, subject
to the limitations set forth in Section 8(c).
(iii) The Company shall prepare and file with the Securities and
Exchange Commission (the "SEC") such amendments and supplements to such
registration statement and the prospectuses used in connection therewith as may
be required to comply with the provisions of the Act.
(iv) The Company shall furnish to the Holder such number of copies of
each prospectus, including preliminary prospectuses, in conformity with the
requirements of the Act, and such other documents, as the Holder may reasonably
request in order to facilitate the public sale or other disposition of the
shares owned by it.
(v) The Company shall provide a transfer agent and registrar for all
such Common Stock registered pursuant to this Section 8 not later than the
Effective Date of such registration statement.
(vi) The Company shall, in connection with an underwritten offering,
enter into an underwriting agreement on terms customarily contained in
underwriting agreements with respect to secondary distributions or combined
primary and secondary distributions, as appropriate.
(vii) The Holder shall not (until further notice) effect sales of the
shares covered by the registration statement after receipt of telegraphic or
written notice from the Company to suspend sales to permit the Company to
correct or update a registration statement or prospectus.
(c) Limitations. Notwithstanding the foregoing, if a Piggyback
Registration is an underwritten offering and the managing underwriter advises
the Company in writing that in its opinion the total amount of securities
requested to be included in such registration exceeds the amount of securities
which can be sold in such offering, the Company will include in such
registration: (i) first, all securities the Company proposes to sell, and (ii)
second, up to such amount of securities requested to be included in such
registration by the Holders of the Company, which in the opinion of such
managing underwriter can be sold.
9. FURNISH INFORMATION.
The Company agrees that it shall promptly deliver to the Holder copies of
all financial statements, reports and proxy statements which the Company is
required to send to its shareholders generally.
10. INDEMNIFICATION.
(a) The Company may require, as a condition to including any Common Stock
in any Piggyback Registration pursuant to Section 8 hereof that the Company
shall have received an undertaking satisfactory to it from the Holder to
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such registration statement, each person
who participates as an underwriter (if such underwriter so requests) in the
offering or sale of such securities and each other person, if any, who controls
such underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities or expenses, joint or several, to which such person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment
thereof or supplement thereto, or any document incorporated by reference
therein, or (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only if such actual or alleged statement or omission
described in (i) or (ii) above was made in reliance upon and in conformity with
written information furnished to the Company by such Holder for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer, participating person or
controlling person and shall survive the transfer of such securities by such
Holder.
(b) The Company shall agree, in connection with any registration statement
filed pursuant to Section 8 hereof, that the Company shall indemnify each Holder
selling Common Stock pursuant to such registration statement and each other
person, if any, who controls such Holder within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, against any losses, claims, damages,
liabilities or expenses, joint or several, to which such person may become
subject under the Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment thereof or
supplement thereto or any document incorporated by referenced therein, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by the Holder for use in preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement.
(c) If the indemnification provided for in Sections 10(a) or 10(b) above
is unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party in lieu of
indemnifying such indemnified party thereunder shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
parties on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party, or by the indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Holder agree that it would not be just and equitable
if contribution pursuant to this Section 10(c) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities or actions in respect thereof referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
11. MISCELLANEOUS.
(a) Transfer Taxes; Expenses. The Holder shall pay any and all
underwriters' discounts, brokerage fees, and transfer taxes incident to the sale
or exercise of this Warrant or the sale of the underlying shares issuable
thereunder, and shall pay the fees and expenses of any special attorneys or
accountants retained by it.
(b) Notice. Any notice or other communication required or permitted to be
given to the Company shall be in writing and shall be delivered by certified
mail with return receipt or by federal express or delivered in person against
receipt, as follows:
Marketing Services Group, Inc.
333 Seventh Avenue
New York, New York 10001
Attention: Jeremy Barbera
(c) Governing Law. This Warrant Certificate shall be governed by, and
construed in accordance with, the laws of the State of Nevada, without reference
to the conflicts of laws.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed as of the date set forth below.
MARKETING SERVICES GROUP, INC.
By: /s/Jeremy Barbera
-----------------
Name: Jeremy Barbera
Title: Chairman of the Board and Chief
Executive Officer
Attest:
Name:
Title:
Date: January 20, 2000
<PAGE>
FORM OF EXERCISE OF WARRANT
The undersigned hereby elects to exercise the Warrant as to ________
shares of common stock covered thereby.
Enclosed herewith is a bank or certified check in the amount of
$----------.
Exercise of the Warrant shall be by cashless exercise.
Date:
Name:
Address:
Signature Guarantor
EXHIBIT 5.1
April 14, 2000
Board of Directors
Marketing Services Group, Inc.
333 Seventh Avenue
New York, New York 10001
Gentlemen:
At your request, we have examined the Registration Statement on Form S-3
(No. 333-33174) filed by Marketing Services Group, Inc. (the "Company") with the
Securities and Exchange Commission on March 23, 2000 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of 6,130,000 shares (the "Initial Shares") of the
common stock, par value $.01 per share (the "Common Stock"), of the Company, and
the abbreviated Registration Statement on Form S-3 filed by the Company today
pursuant to Rule 462(b) promulgated under the Act (the "Additional Registration
Statement" and collectively with the Registration Statement, the "Registration
Statements") in connection with the registration of an additional 18,000 shares
of Common Stock (the "Additional Shares" and collectively with the Initial
Shares, the "Shares"), by various selling stockholders of the Company, as
identified in greater detail in the Registration Statements. In our capacity as
your counsel on matters of Nevada law, we are familiar with the proceedings
taken and proposed to be taken by the Company in connection with the
authorization, issuance, and sale of the Shares.
It is our opinion that the Shares have been duly authorized and, when sold
by the respective selling stockholders, will be legally and validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statements, including the prospectus constituting a part thereof, and any
amendments thereto.
Sincerely,
McDONALD CARANO WILSON McCUNE
BERGIN FRANKOVICH & HICKS LLP
By:/s/ A. J. HICKS
---------------
A.J. Hicks, Partner
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated September 24, 1999, relating to the
financial statements and financial statement schedule appearing in Marketing
Services Group, Inc.'s Annual Report on Form 10-K for the year ended June 30,
1999. We also consent to the incorporation by reference in this Registration
Statement of our reports dated March 12, 1999 and July 22, 1999, relating to the
financial statements of Stevens-Knox & Associates, Inc. and Affiliates and CMG
Direct Corporation, respectively, which appear in Marketing Services Group,
Inc.'s Current Reports on Form 8-K/A filed on April 6, 1999 and July 29, 1999,
respectively. We also consent to the reference to us under the heading "Experts"
incorporated by reference in this Registration Statement relating to the
Company's Registration Statement on Form S-3 (Registration No. 333-33174).
/s/ PricewaterhouseCoopers LLP
New York, New York
April 14, 2000
