SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Rule 13e-3 Transaction Statement
(Pursuant to Section 13(e) of the Securities Exchange Act
of 1934 and Rule 13e-3 thereunder)
SKLAR CORPORATION
(Name of the Issuer)
SKLAR CORPORATION
Donald Taylor
Michael Malinowski
George Kellam
and
William Knepsheild
(Name of Person(s) Filing Statement)
Common Stock, $.10 par value
(Title of Class of Securities)
58405330
(CUSIP Number of Class of Securities)
Bari S. Krein, Esquire
REED SMITH SHAW & McCLAY LLP
1650 Market Street
2500 One Liberty Place
Philadelphia, PA 19103
Telephone Number: (215) 851-8110
--------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications of Behalf of
Person(s) Filing Statement)
This statement is filed in connection with (check the appropriate box):
a. [x] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities Act of
1933.
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: [ ]
Calculation of Filing Fee
Transaction Amount of filing fee
valuation
$250,435 50.09
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1. Price to be paid for an estimated 544,423 shares for which cash is to be
paid in lieu of fractional shares.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: $50.09
Form or Registration No.:
Filing Party:
Date Filed:
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The Notice of Special Meeting and Proxy Statement (the "Proxy") as filed
with the Securities and Exchange Commission simultaneously herewith are annexed
hereto and the information contained therein is incorporated by reference in
this statement to the extent indicated by the cross references to the captions
in the Proxy as indicated below:
CROSS REFERENCE SHEET
- --------------------------------------------------------------------------------
Item No. Location in Proxy Statement
- --------------------------------------------------------------------------------
1. Issuer and Class of NOTICE OF SPECIAL MEETING; PURPOSE OF SPECIAL
Security Subject to the MEETING; VOTING -- General; Quorum and
Transaction Vote Required; THE COMPANY -- Price
Range of Common Stock; Dividends;
Trading Volume; Other Information
concerning the Company and Affiliates
- --------------------------------------------------------------------------------
2. Identity and Background NOTICE OF SPECIAL MEETING; VOTING-- Quorum
and Vote Required; THE COMPANY --
Directors, Executive Officers of the
Company
- --------------------------------------------------------------------------------
3. Past Contacts, SPECIAL FACTORS -- Conduct of Company's
Transactions or Business after the Reverse Stock Split.
Negotiations
- --------------------------------------------------------------------------------
4. Terms of the Transaction PURPOSE OF SPECIAL MEETING; SPECIAL FACTORS
-- Background of the Proposed Reverse
Stock Split; The Effects of Reverse
Stock Split
- --------------------------------------------------------------------------------
5. Plans or Proposals of the PURPOSE OF SPECIAL MEETING; SPECIAL FACTORS
Issuer or Affiliate -- Conduct of the Company's Business
After the Reverse Stock Split;
Background of the Proposed Reverse Stock
Split; VOTING -- Purpose of Reverse
Stock Split
- --------------------------------------------------------------------------------
6. Source and Amounts of THE COMPANY -- Financing of the Reverse
Funds or Other Stock Split; Costs
Consideration
- --------------------------------------------------------------------------------
7. Purpose(s), Alternatives, SPECIAL FACTORS -- Background of the Proposed
Reasons and Effects Reverse Stock Split; The Effects of the
Reverse Stock Split; Recommendation of
the Special Committee and Board of
Directors; Valuation Opinion; THE
COMPANY --Security Ownership of Certain
Beneficial Owners and Management;
Certain Federal Income Tax Consequences
- --------------------------------------------------------------------------------
8. Fairness of the SPECIAL FACTORS -- Recommendation of the
Transaction Special Committee and Board of
Directors; Valuation Opinion
- --------------------------------------------------------------------------------
9. Reports, Opinions, SPECIAL FACTORS -- Background of Proposed
Appraisals and Certain Reverse Stock Split; Recommendation of
Negotiations the Special Committee and Board of
Directors; Fairness of Reverse Stock
Split; Valuation Opinion -- Opinion of
Woodward; (Exhibit B)
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
10. Interest in Securities of THE COMPANY -- Security Ownership of Certain
the Issuer Beneficial Owners and Management;
Directors, Executive Officers of the
Company; Other Information Concerning
the Company and Affiliates; Other
Matters
- --------------------------------------------------------------------------------
11. Contracts, Arrangements NOT APPLICABLE
or Understandings With
Respect to the Issuer's
Securities
- --------------------------------------------------------------------------------
12. Present Intention and SPECIAL FACTORS -- Recommendation of the
Recommendation of Certain Special Committee and Board of
Persons with Regard to Directors; Valuation Opinion; Potential
the Transaction Detriments of the Reverse Stock Split to
Shareholders; Accretion in Ownership and
Control of Shareholders; THE COMPANY --
Other Information Concerning the Company
and Affiliates
- --------------------------------------------------------------------------------
13. Other Provisions of the THE COMPANY -- Dissenters' Rights
Transaction
- --------------------------------------------------------------------------------
14. Financial Information SPECIAL FACTORS -- Financial Effect of the
Reverse Stock Split; THE COMPANY --
Selected Historical Financial Data
- --------------------------------------------------------------------------------
15. Persons and Assets THE COMPANY -- Cost; Other Matters; VOTING;
Employed, Retained or Quorum and Vote Required
Utilized
- --------------------------------------------------------------------------------
16. Additional Information Proxy Statement
- --------------------------------------------------------------------------------
17. Material to be Filed as Proxy Statement; The Woodward Opinion
Exhibits
- --------------------------------------------------------------------------------
Item 1. Issuer and Class of Security Subject to the Transaction.
(a) NOTICE OF SPECIAL MEETING; PURPOSE OF SPECIAL MEETING;
(b) NOTICE OF SPECIAL MEETING; VOTING -- General; Quorum and Vote
Required, Purpose of the Reverse Stock Split
(c) THE COMPANY -- Price Range of Common Stock; Dividends; Trading
Volume
(d) THE COMPANY -- Price Range of Common Stock; Dividends; Trading
Volume
(e) Not applicable
(f) Not applicable
Item 2. Identity and Background
(a)-(c) Sklar Corporation, Donald Taylor, Michael Malinowski, George
Kellam and William Knepshield are filing this Statement. See also,
Notice of Special Meeting; VOTING -- Quorum and Vote Required; THE
COMPANY -- Directors, Executive Officers of the Company.
(d) The identify of the persons to whom this item is responsive are
Michael Malinowski, Donald Taylor, George Kellam and William
Knepshield. For biographical information and other information
concerning such persons see THE COMPANY -- Directors and executive
Officers of the Company.
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(e)-(f) None of the individuals identified above has been convicted in a
criminal proceeding or was a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a
result of which such person was or is subject to a judgment, decree,
or final order enjoining further violations of, or prohibiting
activities subject to, federal or state securities laws or finding
any violation of such laws.
(g) All the individuals identified above are citizens of the United
States.
Item 3. Past Contacts, Transactions or Negotiations.
(a) Not applicable
(b) SPECIAL FACTORS -- Conduct of the Company's Business After the
Reverse Stock Split
Item 4. Terms of the Transaction.
NOTICE OF SPECIAL MEETING; PURPOSE OF SPECIAL MEETING; SPECIAL
FACTORS -- Background of the Proposed Reverse Stock Split; The
Effects of the Reverse Stock Split; Potential Detriments of the
Reverse Stock Split to Shareholders; Accretion in Ownership and
Control of Certain Shareholders; Financial Effects of the Reverse
Stock Split; Recommendation of the Special Committee and Board of
Directors; Fairness of the Reverse Stock Split; Valuation Opinion;
Conduct of the Company's Business after the Reverse Stock Split; THE
COMPANY -- Financing of the Reverse Stock Split; Exchange of
Certificates and Payment for Fractional Shares of New Common Stock.
Item 5. Plans or Proposals of the Issuer or Affiliate.
(a)-(e) special factors -- Conduct of the Company's Business After the
Reverse Stock Split.
(f),(g) PURPOSE OF SPECIAL MEETING; VOTING -- Purpose of Reverse Stock
Split; SPECIAL FACTORS -- Background of the Purposed Reverse Stock
Split.
Item 6. Source and Amounts of Funds or Other Consideration.
(a),(c),(d) THE COMPANY -- Financing of the Reverse Stock Split; Cost
(b) THE COMPANY -- Costs
Item 7. Purpose(s), Alternatives, Reasons and Effects.
(a) PURPOSE OF SPECIAL MEETING; SPECIAL FACTORS -- Background of the
Proposed Reverse Stock Split
(b) SPECIAL FACTORS -- Background of the Proposed Reverse Stock Split;
Recommendation of the Special Committee and Board of Directors;
Fairness of the Reverse Stock Split
(c) SPECIAL FACTORS -- Background of the Proposed Reverse Stock Split;
Recommendation of the Special Committee and Board of Directors;
Fairness of the Reverse Stock Split
-5-
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(d) PURPOSE OF SPECIAL MEETING; SPECIAL FACTORS -- Effects of the
Reverse Stock Split; THE COMPANY -- Certain Federal Income Tax
Consequences; Security Ownership of Certain Beneficial Owners and
Management
Item 8. Fairness of the Transaction.
(a)-(e) SPECIAL FACTORS -- Recommendation of the Special Committee and Board
of Directors; Valuation Opinion
(f) Not Applicable
Item 9. Reports, Opinions, Appraisals and Certain Negotiations.
(a)-(c) SPECIAL FACTORS -- Background of the Proposed Reverse Stock Split;
Recommendation of the Special Committee and Board of Directors;
Fairness of the Reverse Stock Split; Valuation Opinion -- Opinion of
The Woodward Group, Ltd.; Exhibit B
Item 10. Interest in Securities of the Issuer.
(a) THE COMPANY -- Security Ownership of Certain Beneficial Owners and
Management
(b) THE COMPANY -- Security Ownership of Certain Beneficial Owners and
Management; Directors, Executive Officers of the Company; Other
Information Concerning the Company and Affiliates
Item 11. Not Applicable
Item 12. Present Intention and Recommendation of Certain Persons with
Regard to the Transaction.
(a) SPECIAL FACTORS -- Recommendation of the Special Committee and Board
of Directors; Valuation Opinion; Potential Detriments of the Reverse
Stock Split to Shareholders; Accretion in Ownership and Control of
Shareholders; THE COMPANY -- Other Information concerning the
Company and Affiliates
(b) SPECIAL FACTORS -- Recommendation of the Special Committee and Board
of Directors; Fairness of the Reverse Stock Split; Valuation Opinion
Item 13. Other Provisions of the Transactions.
(a) THE COMPANY -- Dissenters' Rights
(b) Not Applicable
(c) Not Applicable
-6-
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Item 14. Financial Information
(a) SPECIAL FACTORS -- Financial Effects of the Reverse Stock Split; THE
COMPANY -- Selected Historical Financial Data
(b) SPECIAL FACTORS -- Financial Effect of the Reverse Stock Split
Item 15. Persons and Assets Employed, Retained or Utilized.
(a) THE COMPANY -- Costs
(b) VOTING -- General; Quorum and Vote Required; THE COMPANY -- Other
Information Concerning the Company and Affiliates; Other Matters
Item 16. Additional information.
The Proxy Statement
Item 17. Material to be Filed as Exhibits.
(a) Not Applicable
(b) (1) Opinion of The Woodward Group, Ltd., dated December 11, 1998
(Exhibit B1) (1)
(2) Report of The Woodward Group, Ltd., dated November 30, 1998
(Exhibit B2) (1)
(c) Not Applicable
(d) Preliminary Proxy Statement (Exhibit A)
(e) Not Applicable
(f) Not Applicable
(1) Filed with the Company's 13e-3 dated April 29, 1999 and incorporated
herein by reference.
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<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
March 15, 2000
-------------------------------
(Date)
Sklar Corporation
/s/ Don Taylor
-------------------------------
(Signature)
President
-------------------------------
(Name and Title)
Don Taylor, President
/s/ Michael Malinowski
-------------------------------
Michael Malinowski
/s/ George Kellam
-------------------------------
George Kellam
/s/ William Knepshield
-------------------------------
William Knepshield
<PAGE>
EXHIBIT A
PROXY STATEMENT
<PAGE>
[Sklar Letterhead]
Dear Shareholder:
You are invited to attend a Special Meeting of Shareholders (the "Special
Meeting") of Sklar Corporation, a Pennsylvania corporation (the "Company"), to
be held on April ___, 2000, at ______ A.M. local time, at
_____________________________.
At this meeting you will be asked to consider and vote upon the following:
(i) an amendment to the Company's Certificate of Incorporation (the
"Amendment") which would effect a 1 for 50,000 reverse split of the Company's
Common Stock, $.10 par value (the "Common Stock"), by reducing the number of
shares of Common Stock issued and outstanding from 1,104,940 shares to 12
shares, and
(ii) a cash payment of $.46 per share of the currently outstanding
Common Stock, in lieu of the issuance of any resulting fractional shares of
Common Stock following the reverse split.
Items (i) and (ii) will be considered one proposal and shall be referred to
herein as the "Reverse Stock Split." If effected, the Reverse Stock Split will
enable the Company to change from public company status subject to the reporting
requirements of the Securities Acts as administered by the Commission to private
company status not subject to the reporting requirements of the Securities Acts.
The proposed Amendment is set forth in Exhibit A to the accompanying Proxy
Statement.
The Woodward Group, Ltd. ("Woodward") has been engaged by the Company in
connection with the proposed Reverse Stock Split to provide its opinion with
respect to the fairness, from a financial point of view, of the $.46 cash
payment for fractional shares to be made in the proposed Reverse Stock Split.
Woodward has rendered an opinion to the effect that the cash consideration to be
received by shareholders in lieu of fractional shares is fair from a financial
point of view. You are urged to read the opinion of Woodward, which is attached
to the accompanying Proxy Statement as Exhibit B. You are also urged to read
carefully the accompanying Proxy Statement in its entirety, including the
section entitled "Special Factors" for important information concerning the
proposed Reverse Stock Split.
THE BOARD OF DIRECTORS HAS FULLY REVIEWED AND CONSIDERED THE TERMS AND
CONDITIONS OF THE PROPOSED REVERSE STOCK SPLIT AND HAS UNANIMOUSLY DETERMINED
THAT THE PROPOSED REVERSE STOCK SPLIT, TAKEN AS A WHOLE, IS FAIR TO, AND IN THE
BEST INTERESTS OF, THE COMPANY AND ITS SHAREHOLDERS.
<PAGE>
Attendance in person or proxy of holders of more than 50% of the
outstanding shares is necessary for a quorum. Holders of more than 50% of the
shares in attendance at the meeting is necessary to approve the Reverse Stock
Split. The officers and directors of the Company own approximately 55.4% of the
outstanding shares entitled to vote at the Special Meeting and have indicated
that each will vote his shares in favor of the proposed Reverse Stock Split. If
these shares are voted as indicated, the Reverse Stock Split will be approved.
Promptly after consummation of the Reverse Stock Split, if approved, a
Letter of Transmittal will be mailed to all holders of Common Stock of the
Company for use in surrendering their stock certificates. Please do not send in
your stock certificates until you receive your Letter of Transmittal.
Sincerely,
Don Taylor
President
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS
OF SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION
CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
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<PAGE>
SKLAR CORPORATION
889 SOUTH MATLACK STREET
WEST CHESTER, PA 19382
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD April __, 2000
A Special Meeting of shareholders of SKLAR CORPORATION, will be held at
__________, _______________, ___________, Pennsylvania on ________, April __,
2000, at _______, local time, for the following purposes:
1. To consider and vote upon the following:
(i) an amendment to the Company's Certificate of Incorporation (the
"Amendment") which would effect a 1 for 50,000 reverse split of the
Company's Common Stock, $.10 par value (the "Common Stock"), by reducing
the number of issued shares of Common Stock from 1,104,940 shares to 12
shares and which will enable the Company to change from public company
status subject to the reporting requirements of the Securities Acts as
administered by the Commission to private company status not subject to the
Securities Acts, and
(ii) a cash payment of $.46 per share of the currently outstanding
Common Stock, in lieu of the issuance of any resulting fractional shares of
Common Stock following the reverse split.
2. To transact such other business pertaining or related to the foregoing
as may properly come before the Special Meeting.
Information relating to the above matters is set forth in the attached
Proxy Statement. The close of business on March __, 2000, has been set by the
directors as the record date for determination of shareholders eligible to
receive notice of and to vote at the meeting.
By Order of the Board of Directors,
Don Taylor
President
Pennsylvania
March __, 2000
PLEASE READ THE ATTACHED PROXY STATEMENT AND THEN PROMPTLY COMPLETE, EXECUTE AND
RETURN THE ENCLOSED PROXY CARD. IF YOU ATTEND THE SPECIAL MEETING, YOU MAY
REVOKE THE PROXY AND VOTE IN PERSON IF YOU SO DESIRE.
3
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TABLE OF CONTENTS
Page
PURPOSE OF SPECIAL MEETING......................................................
VOTING
General
Quorum And Vote Required...................................................
Proxies ...................................................................
Amendment Of Certificate Of Incorporation To Effect The
Reverse Stock Split...................................................
Purpose Of The Reverse Stock Split.........................................
SPECIAL FACTORS.................................................................
Background Of The Proposed Reverse Stock Split.............................
The Effects Of The Reverse Stock Split.....................................
Potential Detriments Of The Reverse Stock Split To Shareholders;
Accretion In Ownership And Control Of
Certain Shareholders..................................................
Financial Effect Of The Reverse Stock Split................................
Recommendation Of The Special Committee And Board Of Directors;
Fairness Of The Reverse Stock Split...............................
Valuation Opinion..........................................................
Conduct Of The Company's Business After The Reverse Stock Split............
THE COMPANY.....................................................................
Selected Historical Financial Data.........................................
Financing Of The Reverse Stock Split.......................................
Certain Federal Income Tax Consequences....................................
Price Range Of Common Stock; Dividends; Trading Volume.....................
Security Ownership Of Certain Beneficial Owners And Management.............
i
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Directors, Executive Officers Of The Company...............................
Exchange Of Certificates And Payment For Fractional Shares Of
New Common Stock..................................................
Dissenters' Rights.........................................................
Other Information Concerning The Company And Affiliates....................
Costs ..................................................................
Independent Public Accountants.............................................
Other Matters..............................................................
Shareholders' Proposals For The 1999 Annual Meeting........................
Incorporation Of Certain Documents By Reference............................
Available Information......................................................
ii
<PAGE>
SKLAR CORPORATION
PROXY STATEMENT
APRIL __, 1999
This Proxy Statement is furnished to the shareholders of SKLAR CORPORATION
(the "Company"), in connection with the solicitation of proxies by the Board of
Directors of the Company to be voted at the Special Meeting of Shareholders and
at any adjournments thereof (the "Special Meeting"). The Special Meeting will be
held at ________________, _____________, ______________, Pennsylvania, on
___________, April __, 2000, at ______ local time.
The approximate date on which this Proxy Statement and form of proxy card
are first being sent or given to shareholders is March __, 2000.
PURPOSE OF SPECIAL MEETING
At the Special Meeting, shareholders of the Company will be asked to
consider and vote upon:
(i) an amendment to the Company's Certificate of Incorporation which would
effect a 1 for 50,000 reverse split of the Company's Common Stock, and reduce
the number of issued and outstanding shares of Common Stock from 1,104,940
shares to 12 shares.
(ii) a payment of $.46 per share of the currently outstanding Common Stock,
in lieu of the issuance of any resulting fractional shares of Common Stock
following the reverse split.
Items (i) and (ii) will be considered one proposal and shall be referred to
herein as "Reverse Stock Split." If effected, the Reverse Stock Split will
enable the Company to change from public company status subject to the reporting
requirements of the Securities Acts as administered by the Securities and
Exchange Commission (the "Commission") to private company status not subject to
the Securities Acts. The Company does not know of any other matters to come
before the Special Meeting. In the event any such matters properly are raised
for consideration and vote, the proxies will vote such shares in their
discretion, for or against such matters.
The proposed Reverse Stock Split is described in more detail in subsequent
sections of this Proxy Statement.
The Board of Directors of the Company, based upon the unanimous
recommendation of a special committee of outside directors of the Board (the
"Special Committee"), has determined that adoption of the proposed Reverse Stock
Split is fair to and in the best interest of the shareholders of the Company and
recommends that the shareholders approve the Reverse Stock Split. See "Special
Factors" - "Accretion of Ownership and Control of Certain Shareholders." In
arriving at its recommendation with respect to the Reverse Stock Split, the
Special Committee considered a number of factors described in the Proxy
Statement,
1
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including, among other things, the opinion of The Woodward Group Ltd., financial
advisor to the Special Committee, that the consideration to be received by the
shareholders in connection with the Reverse Stock Split is fair to such holders
from a financial point of view. The full text of such opinion, which sets forth,
among other things, the opinion expressed, procedures followed, matters
considered and limitations on review undertaken in connection with such opinion,
is attached as Exhibit B to this Proxy Statement. Shareholders are urged to read
the opinion in its entirety. The Board of Directors has unanimously adopted the
recommendation of the Special Committee as its own.
VOTING
GENERAL
The securities that can be voted at the Special Meeting consist of (i)
Common Stock of the Company, $.10 par value, with each share entitling its owner
to one vote on each matter submitted to the shareholders and (ii) Preferred
Stock, stated value $.01 per share, with each share entitling its owner to one
vote on each matter submitted to the shareholders. The record date for
determining the holders of Common Stock and Preferred Stock who are entitled to
receive notice of and to vote at the Special Meeting is March ___, 2000 (the
"Record Date"). On the Record Date, 1,104,940 shares of Common Stock and 22,078
shares of Preferred Stock were outstanding and eligible to be voted at the
Special Meeting.
QUORUM AND VOTE REQUIRED
The presence, in person or by proxy, of a majority of the total number of
outstanding shares of the Company's stock, including Common Stock and Preferred
Stock is necessary to constitute a quorum at the Special Meeting. In counting
the votes to determine whether a quorum exists at the Special Meeting, the
proposal receiving the greatest number of all votes "for," "against," or
"withheld" and abstentions (including instructions to withhold authority to
vote) will be used.
The Company believes that approximately 624,559 voting shares owned or
controlled on the Record Date by directors and executive officers of the
Company, constituting approximately 55.4% of the outstanding Common and
Preferred Stock (together the "Voting Stock"), will be voted in favor of the
proposal.
Adoption of the Reverse Stock Split requires the affirmative vote of a
majority of the outstanding shares of Company Voting Stock cast at the Special
Meeting. Don Taylor, President and Director of the Company, Michael Malinowski,
Executive Vice President, Chief Financial Officer and Director of the Company,
and Michael Viner, Vice President of the Company, together beneficially own and
have authority to vote 624,489 shares of Company Voting Stock or 55.4% of the
shares of Company Voting Stock which were issued and outstanding on the Record
Date. Messrs. Taylor, Malinowski and Viner plan to vote all shares of Company
Voting Stock over which they have voting authority to approve the Reverse Stock
Split. If Messrs. Taylor, Malinowski and Viner vote all of their shares of
Company Voting Stock over which they have voting authority to approve the
Reverse Stock Split, the requisite vote for
2
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adoption of the Reverse Stock Split will have been obtained regardless of the
vote of any other shareholder. Nevertheless, the Board of Directors of the
Company has decided to solicit proxies due to the potential beneficial effect
shareholder approval of the Reverse Stock Spilt could have on future litigation
against the Company and its affiliates pertaining to the proposal. In this
regard, the Company and its affiliates would likely assert shareholder approval
of the transaction as a defense in any such litigation.
The Reverse Stock Split does not require the approval of a majority of the
unaffiliated shareholders or of the majority of the shareholders who will
receive payment of $.46 per share in lieu of fractional shares. The Board
believes the Reverse Stock Split should and will be favored by non-affiliates
and by those receiving cash in lieu of fractional shares. Because the Company
has not historically attained a high level of participation among its
unaffiliated holders at meetings for which their proxies have been solicited and
the fact that the Company has lost contact with a number of the holders, the
Company does not expect to attain a high level of participation in the Special
Meeting. Because the likelihood of significant participation in the Special
Meeting by unaffiliated holders of Common Stock is so low, the Board does not
believe that it makes sense to require a majority vote of unaffiliated holders
in order for the Reverse Stock Split to be consummated. Further, the Board
anticipates, based on previous votes taken at annual meetings, that the vote of
non-affiliates who do decide to participate may not be of sufficient size to be
meaningful. Therefore the Board has decided not to condition the approval of the
Reverse Stock Split on approval by unaffiliated holders.
Any shareholder of Common Stock entitled to vote on the Amendment has the
right under Pennsylvania law to dissent from the transaction and exercise his or
her appraisal rights and demand "fair value" for his or her shares. This right
is subject to a number of restrictions and technical requirements. In order to
exercise appraisal rights you must not vote in favor of the Reverse Stock Split
and you must make a written demand for appraisal before the vote on the Reverse
Stock Split. See "Dissenters' Rights."
The Company's principal executive offices are located at 889 South Matlack
Street, West Chester, Pennsylvania, 19382 and its telephone is (610) 430-3200.
The date of this Proxy Statement is March __, 2000.
PROXIES
Shareholders should specify their choices with regard to the proposal on
the enclosed proxy card. All properly executed proxies delivered by shareholders
to the Company in time to be voted at the Special Meeting and not revoked will
be voted at the Special Meeting in accordance with directions given. IN THE
ABSENCE OF SUCH INSTRUCTION, THE SHARES REPRESENTED BY A SIGNED AND DATED PROXY
CARD WILL BE VOTED "FOR" THE PROPOSAL LISTED ON THE PROXY CARD AND DESCRIBED
HEREIN. If any other matters properly come before the Special Meeting, the
persons named as proxies will vote upon such matters according to their
judgement.
3
<PAGE>
Any shareholder delivering a proxy has the power to revoke it any time
before it is voted by giving written notice to the President of the Company at
889 South Matlack Street, West Chester, Pennsylvania, 19382, by executing and
delivering to the President a proxy card bearing a later date or by voting in
person at the Special Meeting.
In addition to soliciting proxies through the mail, the Company may solicit
proxies through its directors, officers and employees in person and by
telephone. Brokerage firms, nominees, custodians and fiduciaries also may be
requested to forward proxy material to the beneficial owners of shares held of
record by them. All expenses incurred in connection with the solicitation of
proxies will be borne by the Company.
AMENDMENT OF CERTIFICATE OF INCORPORATION TO EFFECT THE REVERSE STOCK SPLIT
The Board of Directors of the Company has unanimously determined that it is
advisable to amend the Company's Certificate of Incorporation to effect a 1 for
50,000 reverse split of the Company's Common Stock, and to provide for the cash
payment of $.46 per share of the currently outstanding Common Stock in lieu of
the issuance of any resulting fractional shares of new Common Stock following
the Reverse Stock Split. The Board has proposed the Amendment and the Reverse
Stock Split to the shareholders for approval at the Special Meeting. The
Amendment will reduce the number of issued shares of the Company's Common Stock
from 1,104,940 shares to 12 shares. Following the Reverse Stock Split, based on
the Company's shareholder records, it is anticipated that only Don Taylor,
Michael Malinowski and Michael Viner will continue to be shareholders of the
Company.
PURPOSE OF THE REVERSE STOCK SPLIT
The purpose of the Reverse Stock Split is to terminate the equity interests
in the Company of the approximately 766 record holders of Common Stock that own
fewer than 50,000 shares of Common Stock, at a price determined to be fair by
both the Special Committee as well as the entire Board of Directors in order (i)
to eliminate the cost of maintaining small shareholder accounts, (ii) to permit
small shareholders to receive a fair price for their shares without having to
pay brokerage commissions, (iii) to determine a set monetary value of the shares
of most lost shareholders, whose interests may eventually have to be turned over
to the states under abandoned property laws (iv) to allow management and
Preferred Shareholders to own the Company at no additional expense, and (v) to
relieve the Company of the administrative burden and cost and competitive
disadvantages associated with filing reports and otherwise complying with the
requirements of registration under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), by deregistering its Common Stock under the 1934 Act.
The Board believes that the Company derives no benefit from the continued
registration of the Common Stock under the 1934 Act and that the monetary
expense and burden to the Company of continued registration significantly
outweigh any material benefit that may be received by the Company as a result of
such registration. To the extent to which the Reverse Stock Split is
effectuated, management will benefit in that they alone will hold Common Stock
in the Company and therefore any future increase in the Company's earnings will
benefit management and the Preferred Shareholders.
4
<PAGE>
However, the benefit to management is somewhat speculative because it is
unlikely the Common Stock of the Company will achieve significant value given
the structure and overwhelming dividend requirements of the Preferred Stock.
Moreover, any benefit to management derived from being the sole holders of the
Company's Common Stock is minimized by the fact that management currently owns
more than 64% of the outstanding Preferred Stock of the Company.
The Company presently has approximately 769 shareholders of record and
approximately 1000 beneficial owners of its Common Stock. Of the approximate 769
record shareholders, approximately 702 own fewer than 500 shares. In the
aggregate, the shares held by these small holders comprise less than 3% of the
outstanding Common Stock. The administrative burden and cost to the Company of
maintaining records in respect of these numerous small accounts and the
associated cost of printing and mailing information to them is, in the Board's
view, excessive given the Company's size. These expenditures result in no
material benefit to the Company. The Reverse Stock Split will enable the Company
to eliminate much of this cost.
The Company had determined to remain a public corporation in the past to
help facilitate a public market for its shares, although the Company has made no
effort to disseminate financial information to the market makers or to the
media. The market for the Company's stock has been illiquid for the past twelve
years. Although the Company has numerous shareholders, its stock is thinly
traded. Because the stock is so thinly traded, small shareholders lack
opportunities to realize the fair market value of their shares. Through the
Reverse Stock Split, small holders will liquidate their interest. See "Price
Range of Common Stock; Dividends; Trading Volume."
The Company lost contact with approximately 324 of its shareholders. Each
year the Company attempts to contact its shareholders through dissemination of
its Annual Meeting Proxy,1 however, each year a significant number of the
proxies are returned to the Company with addressee unknown. Through its own
internal efforts, the Company has been unable to re-establish contact with these
shareholders. Of the approximately 324 holders with whom the Company has lost
contact, nearly all hold less than 500 shares; 266 of such holders hold less
than 100 shares. Most of these shareholders purchased their shares over twenty
years ago. The Company will be entitled to retain the cash proceeds to which
such shareholders are entitled in the Reverse Stock Split until such
shareholders deliver to the Company certificates for their shares of Common
Stock and claim such proceeds. Eventually, the Company may be required to turn
the interest of those holders over to the states pursuant to abandoned property
laws. The Board believes it is in the Company's best interest to fix at a fair
price the value of the Company's obligation to lost holders. This will avoid
having the states become equity holders in the Company. Of course, the Reverse
Stock Split will eliminate these small inactive accounts as shareholders of
record.
____________
1 The Company did not hold an Annual Meeting in 1998. In 1997, the Company
disseminated proxy materials to its shareholders and held an Annual Meeting
but filed such materials incorrectly with the SEC, because it failed to file
the materials on Edgar.
5
<PAGE>
The Board believes that the disadvantages to being a public company
outweigh any advantages. The Board has no present intention to raise capital
through sales of securities in a public offering in the future or to acquire
other business entities using stock as the consideration for any such
acquisition. Accordingly, the Company is not likely to make use of any advantage
(for raising capital, effecting acquisitions or other purposes) that the
Company's status as a reporting company may offer.
The Company incurs direct and indirect costs associated with compliance
with the Commission's filing and reporting requirements imposed on public
companies. The Company will realize a savings of approximately $65,000 annually
as follows:
Independent Auditors: $5,0002
SEC Counsel 30,0003
Printing and Mailing 7,000
Internal Compliance Costs 16,000
Transfer Agent 4,000
Miscellaneous Costs 3,000
The Company incurs substantial indirect costs as a result of, among other
things, the executive time expended to prepare and review such filings which the
Company estimates to be approximately 200 hours per year. Since the Company has
relatively few executive personnel, these indirect costs can be substantial and
although there will be no direct monetary savings if the Reverse Stock Split is
effected, the time currently devoted to the public process could be devoted to
other purposes such as sales, marketing and/or operational projects to further
promote the Company's business.
Additionally, to the Company's knowledge, most of the Company's competitors
are private and those that are public are small divisions of large Fortune 500,
multi-national corporations in which their individual performance is not
reported due to the financial size of the division in relation to the
corporation. The Company believes it suffers a competitive disadvantage from
being required to disclose certain information that these other companies are
not required to disclose.
Although all of these factors have existed for some time, the Company began
to considering options that could accomplish the Company's objectives in
December 1997. This lead to the Company hiring SEC counsel. Counsel provided a
clear and detailed analysis of the
____________
2 This represents the difference between the Company's current auditing
expenses ($30,000) and the cost following the Reverse Stock Split ($25,000).
The Company will continue to incur some auditing expenses because the
Company's commercial lending agreement requires the Company to obtain
audited financial statements.
3 This amount pertains to the hiring of SEC counsel in 1998. Prior to 1998,
the Company had not incurred legal fees related to being a public company.
6
<PAGE>
Company's options, risks and expenses relative to the public market. The
Company's analysis of these issues which is detailed in this Proxy Statement,
led it to a Reverse Stock Split decision. In addition, prior to this point, the
Company had no available cash for the Reverse Stock Split, all its working
capital and all amounts available under its line of credit were required under
its commercial lending agreement to be used to operate the business. The Company
currently has credit available for the Reverse Stock Split due to lowered
inventory and its new line of credit. With the exception of the Company's second
quarter of 1998 financial results, the Company does not believe that there has
been any significant change in profitability of the Company in recent years.
Since the Board began considering a reverse split transaction prior to the end
of fiscal year 1998, there is no relationship between the Company's recent
operating results and the timing of the proposed Reverse Stock Split.
The Board has determined that the Reverse Stock Split is the most
expeditious and economical way of liquidating small shareholders and changing
the Company's status from that of a reporting company to that of a more closely
held, non-reporting company. See "Special Factors -- Recommendations of the
Special Committee and Board of Directors; Fairness of the Reverse Stock Split."
The Board has determined the reverse split ratio to be 50,000 to 1. The
Board believes that it would be in the best interests of the shareholders to
maximize the number of common stockholders who would receive fair value for
their shares. Several factors were considered in reaching its determination.
First, during the past twelve years the trading market for the Common Stock
has been illiquid. The majority of the communication from shareholders in this
period were requests for information on how to sell their shares and to receive
value. Given the lack of liquidity for common stockholders, the Company chose to
maximize the number of common stockholders who would receive fair market value
for their shares.
Second, the Board believed that it is highly speculative whether the Common
Stock would ever achieve significant market value given the structure and
overwhelming dividend requirements of the Preferred Stock. The Company expects
this "over-shadowing" of the Common Stock by the Preferred to continue for the
foreseeable future. Therefore the Board determined to provide value, which is
higher than what can be achieved in the open market, to as many of the common
stockholders as possible. The Company did not consider redeeming the Preferred
Stock because there was no cash available for such purpose and the terms of the
Company's previous line of credit prohibited such. In light of the Company's
objectives as stated above, the Company believed a Reverse Stock Split better
accomplished its goals.
Third, although the Company's financial condition has experienced slow
improvement during the past five years, there is no assurance that the Company's
growth will continue. In addition, given the recent consolidation in the health
care industry, the Company believes there is additional risk in the industry.
The Company believes that it is in the best interest of the common stockholders
to provide liquidity today to the maximum number of shareholders.
7
<PAGE>
Shareholders owning fewer than 50,000 shares of Common Stock will no longer
have any equity interest in the Company and will not participate in any future
earnings of the Company or any increases in the value of the Company's assets or
operations. Thus, only management and the Preferred Shareholders will benefit
from any future increase in the Company's earnings. The three shareholders that
will continue to have a common equity interest in the Company after the Reverse
Stock Split will own a security; the liquidity of which will be restricted. The
fractional share price offered by the Company for fractional share interests was
not determined in arms length negotiations or on the basis of over the counter
trading of the Common Stock and therefore does not necessarily reflect an actual
market value of the Common Stock. (See "SPECIAL FACTORS" -- "Recommendation of
the Special Committee and Board of Directors; Fairness of the Reverse Stock
Split" and "Valuation Opinion. ")
The Reverse Stock Split is structured to be a "going private" transaction
as defined in Rule 13e-3 promulgated under the Exchange Act because it is
intended to, and, if completed, will likely terminate the Company's reporting
requirements under Section 12(g) of the 1934 Act. In connection with the Reverse
Stock Split, the Company has filed with the Commission a Schedule 13E-3 pursuant
to Rule 13e-3 under the 1934 Act.
The Reverse Stock Split will (i) cause the Company to redeem shares held by
approximately 766 holders of record of Common Stock, (ii) not eliminate three
record holders who hold 50,000 or more shares of Common Stock, (iii) reduce the
number of shares, on a pro-rata basis, held by the holders of record who hold
50,000 more shares of Common Stock, and (iv) change the percent of Common Stock
held by the remaining three shareholders to 100%.
SPECIAL FACTORS
BACKGROUND OF THE PROPOSED REVERSE STOCK SPLIT
Of the Company's approximately 769 record shareholders, 708 hold 500 or
fewer shares and represent less than 3% of the outstanding Common Stock. The
Board and the Company's management have long held the view that the continued
expense and burden of maintaining so many small shareholder accounts is not cost
efficient for a business the size of the Company. Many of the Company's
shareholders have lost contact, making it impossible for the Company to
communicate with them. Some others' interests are so small that brokerage
commissions or administrative inconvenience deter them from selling shares. The
Board also holds the view that the Company generally derives no material benefit
from continued registration under the 1934 Act, and in certain respects
registration under the 1934 Act places the Company at a competitive disadvantage
vis-a-vis its competitors who are not required to file reports under the 1934
Act. In this regard, in July 1998, the Company filed a Form 15 to deregister its
Series A Preferred Stock. The Company has remained a public corporation in the
past to help facilitate a public market for the shares. That market has not been
as active or liquid as management had desired. The Board decided to consider a
Reverse Stock Split as a means to liquidate the interest of lost shareholders
and its many small shareholder accounts at a fair price and then to deregister
under the 1934 Act. For a discussion as to why the Reverse Stock Split is being
proposed at this time, see "Purpose of the Reverse Stock Split."
8
<PAGE>
In December, 1997, the Company began considering options that could
accomplish the Company's objectives. The Company considered establishing a stock
repurchase program. A stock repurchase program would be expected to cash out
some shareholders and increase earnings per share; however, the Company rejected
this alternative because it would not relieve the administrative inconvenience
of having such a large number of small shareholders or eliminate the costs
associated with being a public company. The Company also considered a tender
offer, various types of mergers, a corporate reorganization, and a reverse stock
split.
As the Company continued to consider its options, it became apparent that
the Reverse Stock Split was the best alternative for the shareholders and the
Company. The lack of assurance that a significant number of shareholders would
tender or exchange their shares made a tender offer and the costs associated
with such something the Company could not justify.
A merger transaction was not an option as the Company was unaware of a
suitable merger candidate nor did it look for one as management believed that
the expense of the required documentation and regulatory requirement made a
merger transaction prohibitive. The Reverse Stock Split was chosen because its
outcome was certain, expenses incurred by the Company were moderate, and
shareholders would receive cash for their factional shares as opposed to
corporate reorganization where shareholders would receive no payment. Further,
from a timing standpoint, the other alternatives would have delayed the
Company's deregistration under the 1934 Act as compared to the Reverse Stock
Split. Other than as discussed below, the Company gave no consideration to
finding a buyer for the entire Company and no third party has expressed an
interest in purchasing the entire Company. See "Fleet Foot Offer" below. To the
extent that a buyer could be found for the entire Company, all shareholders,
including the preferred stockholders, would no longer have an equity interest in
the Company.
In March, 1998, Don Taylor and Michael Malinowski, the Company's President
and Vice President met with counsel regarding the different options available in
light of the composition of the Company's shareholders. After several
discussions concerning the legal and technical aspects, management presented
pertinent considerations and a proposal of the Reverse Stock Split to the Board
in April, 1998. The Board of Directors then approved the creation of a Special
Committee of Directors, composed of all Board members except Don Taylor and
Michael Malinowski, to represent the interest of the shareholders who would
receive cash in lieu of the issuance of fractional shares of the new Common
Stock in the proposed Reverse Stock Split. The Board appointed these Directors
to the Special Committee because they are not employees of the Company and did
not own Common Stock in the Company. Several of these Directors do own Preferred
Stock in the Company, and thus will continue to have an equity interest in the
Company following the Reverse Stock Split.4 See "Security Ownership of Certain
Beneficial Owners And Management." During April and May of 1998, the Special
Committee headed by William Knepshield interviewed investment bankers in the
healthcare industry for the
____________
4 These outside Directors will own less than 1% of outstanding shares of Capital
Stock in the Company following the Reverse Stock Split.
9
<PAGE>
purpose of evaluating the market value of the Common Stock. In May, 1998, the
Special Committee selected The Woodward Group, Ltd. ("Woodward") to assist it in
evaluating the fairness of the consideration to be given to the shareholders who
would receive cash in lieu of fractional shares pursuant to the proposed Reverse
Stock Split.
After contacting Woodward regarding its retention, representatives of
Woodward visited the Company on numerous occasions, discussed the business of
the Company with management and spoke with the Company's counsel and its
independent auditors. During July, 1998, the Board discussed the relative merits
of Woodward providing either a Valuation or a full Fairness Opinion. The Board
concluded that it was in the best interest of the Company and the shareholders
for Woodward to assist the Company in both determining the value of the Common
Stock and evaluating the fairness of the transaction. It authorized Woodward to
proceed and formally engaged Woodward on August 18, 1998. During the five month
period from July through November, Woodward conducted financial analysis,
studies, investigations and interviews as they deemed necessary so as to form
the basis for their recommendation of fair market value for the Common Stock.
On November 30, 1998, the Board determined to pursue the Reverse Stock
Split at a ratio of 1 for 50,000 and cause the Company to purchase any
fractional shares resulting therefrom, subject to receipt of a written report by
Woodward with respect to the fairness of the transaction to the shareholders.
The Board determined the reverse split ratio of 50,000 to 1, because it desired
to cash out all of the shareholders except for major shareholders. This would
allow the smaller shareholders to liquidate their shares at a fair price rather
than remaining minority shareholders in a private company. The ratio of 50,000
to 1 would have the effect of cashing out all shareholders except the major
shareholders, Don Taylor, Michael Malinowski and Michael Viner. See "Purpose of
the Reverse Stock Split." Woodward did not assist the Board in setting the
ratio.
At the December 11, 1998 Board meeting, Woodward presented its written
analysis of the Company's value and advised the Special Committee that an
appropriate fair value of the Company's Common Stock with respect to determining
the cash consideration to be paid to shareholders to be cashed out in the
Reverse Stock Split would be $.43 per share. After the presentation by Woodward,
the Special Committee met and determined that a price of $.46 per share would be
fair from a financial point of view to the shareholders receiving cash in lieu
of fractional shares in the transaction. The price of $.46 per share was
communicated to Woodward and Woodward rendered an oral fairness opinion with
respect to the cash consideration to be paid to the shareholders cashed out in
the Reverse Stock Split which was followed up in writing after the meeting. See
"Recommendation of the Special Committee and Board of Directors; Fairness of the
Reverse Stock Split."
On December 16, 1998, the Special Committee determined to proceed with the
transaction and to submit the Reverse Stock Split to the shareholders for
approval. On December 16, 1998, the entire Board voted to adopt the
recommendation of the Special Committee as its own.
10
<PAGE>
The Fleet Foot Offer
On February 25, 1998, the Company received an offer from Fleet Foot
Consulting Group, Inc. ("Fleet Foot") to purchase "the assets and business" of
the Company for approximately $5.5 million (the "Offer"). Fleet Foot's
principal, Charles Wilson, is the Company's former Chief Financial Officer. Mr.
Wilson and a corporation owned by Mr. Wilson, Endo-Surgical Systems, Inc., are
defendants and counter-claimants in litigation commenced by the Company.
The Board determined not to accept the Fleet Foot Offer for several
reasons. First, the Board believed the fair market value of the Company exceeded
the amount of the Offer. The Board believed the fair market value of the Company
to be approximately $7 million. Second, the Offer lacked information regarding
funding and or financing sources for the transaction or any "earnest money"
deposit in lieu thereof. Third, the Offer was unclear with respect to the
specific balance sheet items which Fleet Foot wanted to purchase, and did not
include a per share price for the Company's capital stock thus making it
virtually impossible for the Company to determine what, if anything, the
shareholders would receive as a result of the Offer. Finally, the Board
considered the litigious nature of the relationship between Mr. Wilson,
Endo-Surgical and the Company and the affiliation of Fleet Foot to those
parties, and determined that the true purpose for the Offer was unclear and that
it was in the best interest of the Company and its shareholders not to pursue a
transaction with Fleet Foot. The Reverse Stock Split was not prompted by the
Fleet Foot Offer.
In July 1997, the Company terminated Mr. Wilson based on their belief that
he had misappropriated Company funds. On or about December 1997, the Company
filed a writ of action against Mr. Wilson in the Court of Common Pleas of
Chester County, Pennsylvania. On May 27, 1998, the Company filed a complaint
(amended June 22, 1998) against Mr. Wilson alleging the following causes of
action: (i) misappropriation of trade secrets and conversion; (ii) breach of
fiduciary duties and confidential relationship; (iii) tortuous interference with
existing contractual relationships; (iv) tortuous interference with prospective
economic advantage; (v) defamation and trade libel; (vi) breach of contract; and
(vii) fraud and misrepresentation. The Company asked for damages in the amount
of $130,000 plus punitive damages, interest and legal fees. Mr. Wilson
counter-claimed in the amount of $3,800 for unpaid wages. The Wilson action
remains ongoing. On February 19, 1998, the Company commenced an action against
Endo-Surgical Systems, Inc. ("Endo") by complaint filed in the Court of Common
Pleas of Chester County, Pennsylvania. The complaint alleges the following
causes of action: (i) misappropriation of trade secrets and conversion; (ii)
tortuous interference with existing contractual relations; and (iii) tortuous
interference with prospective economic advantage. The Endo action also remains
ongoing. Based on discovery conducted in connection with these actions, the
Company believes that Fleet Foot's motives for making the Offer were improper
and based on Fleet Foot's desire to gain access and acquire certain information
regarding the Company which, to date, Mr. Wilson and Endo have been unable to
procure through their discovery efforts in the above-described litigation.
In a letter dated January 20, 1999, Mr. Wilson, on behalf of Fleet Foot,
again expressed his desire to meet with the Board to discuss his continued
interest in purchasing the assets of the Company. The Company responded by
letter dated January 27, 1999 and requested
11
<PAGE>
additional information from Fleet Foot and Mr. Wilson prior to deciding whether
to meet. To date, neither Fleet Foot nor Mr. Wilson have provided the requested
information, which included, among other things, information regarding the
financing or source of funds for a transaction and the execution of a
confidentiality and non-disclosure agreement.
Stock Grants and Option Exercises within the Past 12 Months
Within the past year the Company has granted to its executive officers a
total of 150,000 shares of Common Stock. In addition, the Company's executive
officers have exercised a total of 200,000 options to purchase Common Stock
which options had been granted to such individuals over five years ago. These
options were exercised on the date that the Board approved the Reverse Stock
Split to ensure that management would control the majority of outstanding shares
of Common Stock, and thereby assure passage of the Reverse Stock Split Proposal.
See "Other Information Concerning the Company and Affiliates." As a result of
these recent stock transactions, the total equity ownership in the Company by
the Company's executive officers and directors has increased from 35.3% to
55.4%. Passage of the Reverse Stock Split proposal is assured if all the
Company's executive officers and directors vote in favor of such proposal.
However, these stock grants and option exercises had no effect on the
consideration offered of $.46 per share as these transactions were excluded from
the calculation of shares outstanding in determining the fair market value of
the Common Stock. This was done so that non-management shareholders would not be
impacted by the effect of the stock grants or option exercises by management.
See "Recommendation of the Special Committee and Board of Directors; Fairness of
the Reverse Stock Split;" and "Valuation Opinion."
THE EFFECTS OF THE REVERSE STOCK SPLIT
The Company believes that the Reverse Stock Split will reduce the number of
record shareholders from approximately 769 to 3. The number of shares which
might otherwise trade publicly will change from 1,104,940 to 12. The Company
also believes that completion of the Reverse Stock Split will cause the public
market for shares of Common Stock, which at present is virtually nonexistent, to
be eliminated.
The Common Stock is currently registered under the 1934 Act. Such
registration may be terminated by the Company if the Common Stock is no longer
held by 300 or more shareholders of record. Termination of registration of the
Common Stock under the 1934 Act would substantially reduce the information
required to be furnished by the Company to its shareholders and to the
Commission and would make certain provisions of the 1934 Act, such as the
short-swing profit recovery provisions of Section 16(b) of the 1934 Act in
connection with shareholders meetings and the related requirement of an annual
report to shareholders, no longer applicable to the Company. Accordingly, for a
total expenditure by the Company of approximately $400,000, the Company will
eliminate the cost and expense to the Company of the 1934 Act registration,
which is approximately $65,000 on an annual basis. The Company intends to apply
for such termination as soon as practicable following completion of the Reverse
Stock Split.
12
<PAGE>
POTENTIAL DETRIMENTS OF THE REVERSE STOCK SPLIT TO SHAREHOLDERS; ACCRETION IN
OWNERSHIP AND CONTROL OF CERTAIN SHAREHOLDERS
Shareholders owning fewer than 50,000 shares immediately prior to the
effective time of the Reverse Stock Split will, after the Reverse Stock Split
takes place, no longer have any equity interest in the Company and therefore
will not participate in its future potential earnings or growth. It is expected
that all owners, except Don Taylor, Michael Malinowski and Michael Viner, will
be cashed out in the Reverse Stock Split. It will not be possible for cashed out
shareholders to re-acquire an equity interest in the Company unless they
purchase an interest from the remaining shareholders. Transfers by the remaining
shareholders of their shares to third parties are not anticipated.
Potential detriments to Company shareholders who remain as shareholders if
the Reverse Stock Split is effected include decreased access to information and
decreased liquidity. If the Reverse Stock Split is effected, the Company intends
to terminate the registration of its Common Stock under the 1934 Act. As a
result of such termination, the Company will no longer be subject to the
periodic reporting requirements and the proxy rules of the 1934 Act.
FINANCIAL EFFECT OF THE REVERSE STOCK SPLIT
The Reverse Stock Split and the use of approximately $400,000 cash to
complete the Reverse Stock Split, which includes legal costs and other expenses
related to the transaction are not expected to have any material effect on the
Company's capitalization, liquidity, results of operations or cash flow.
The following pro forma financial information presents the effect on the
Company's historical financial position of the Reverse Stock Split and the cash
payment of $232,272 for all fractional shares which represents the total cash
outlay attributable to all post reverse split fractional shares (1,104,940
shares - 600,000 shares x $.46 per share).The unaudited pro forma balance sheet
reflects the transaction as if it occurred on the balance sheet date. The
unaudited pro forma statement of operations reflects the transaction as if it
occurred at the beginning of the periods presented.
The unaudited pro forma balance sheet is not necessarily indicative of what
the Company's financial position would have been if the Reverse Stock Split had
been effected on the dates indicated, or will be in the future. The information
shown on the unaudited pro forma statement of operations is not necessarily
indicative of the results of operations.
As a result of incurred reorganizational costs paid or accrued at March 31,
1999, short-term debt increased by $264,329 rather than $400,000. This amount
represents the payment for fractional shares ($232,272) plus the balance of
estimated costs remaining to be incurred for organizational costs ($32,0567).
All pre Reverse Stock Split Common Shares included in treasury stock (393,012
shares with a book value of $79,143) are retired with a reduction to treasury
stock and a corresponding reduction of Common Stock (393,012 @ $.10 share) and
additional paid-in capital. All post Reverse Stock Split fractional outstanding
shares are eliminated from Common Stock (504,940 x $.10 per share) and
additional paid-in capital
13
<PAGE>
with a corresponding increase in short-term borrowing ($232,272), representing
the cash payment for fractional shares. A tabular presentation with explanatory
footnotes outlining the financial effect of the Reverse Stock Split as of
September 30, 1999 is as follows:
<TABLE>
<CAPTION>
Historical Adjustment Proforma
<S> <C> <C> <C>
Stockholders' equity: (Debit) Credit
Series A preferred $ 248 $ 248
Series A subordinated preferred 0 0
Common stock 149,795 (39,301) (1)
(50,494) (2)
(59,999) (3) 1
Additional paid-in capital 2,165,958 (39,842) (1)
(181,778) (2)
59,999 (3) 2,004,337
Retained earnings 793,531 (28,557) (4) 764,974
Treasury stock (131,038) 79,143 (1) (51,895)
<FN>
(1) Reduction of pre Reverse Stock Split common stock held in treasury (at cost)
and related reduction of common stock issued (at par) and additional paid-in
capital.
(2) Reduction of post Reverse Stock Split fractional shares (at par) and related
reduction of additional paid-in capital equal in total to fractional share
liability.
(3) Conversion of post Reverse Stock Split common stock book value with
offsetting adjustment to paid-in capital related to 50,000 to 1 reverse split.
Six post reverse split shares will be issued with a book value of $.10 per
share. $1 reflects the rounded book value of the six shares.
(4) Retained earnings adjusted for additional reorganizational cost less related
tax benefit ($3,500).
</FN>
</TABLE>
The unaudited pro forma financial statements should be read in conjunction
with the historical financial statements and accompanying footnotes of the
Company which are incorporated by reference into this Proxy Statement. See
"Incorporation of Certain Documents by Reference."
14
<PAGE>
SKLAR CORPORATION
CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
ASSETS
Historical Proforma
CURRENT ASSETS:
<S> <C> <C>
Cash $ 87,209 $ 87,209
Accounts receivable 2,309,549 2,309,549
Inventories 3,114,313 3,114,313
Prepaid expense 374,852 374,852
----------------- -----------------
Total current assets 5,885,923 5,885,923
----------------- -----------------
EQUIPMENT and IMPROVEMENTS 650,731 650,731
GOODWILL 375,511 375,511
OTHER ASSETS 249,220 249,220
----------------- -----------------
TOTAL ASSETS $ 7,161,385 $ 7,161,385
================= =================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-term borrowings 762,000 $ 1,026,329
Current portion of long-term debt and
capital lease obligation 131,250 131,250
Trade accounts payable 2,127,826 2,127,826
Accrued expenses 1,128,106 1,128,106
Accrued income taxes 24,658 21,158
Total current liabilities 4,173,840 4,434,669
LONG-TERM DEBT AND CAPITAL LEASE 9,051 9,051
Total liabilities 4,182,891 4,443,720
----------------- -----------------
CONTINGENCIES 0 0
STOCKHOLDERS' EQUITY:
Series A preferred stock, par value $.01, per share,
authorized 35,000 shares, 24,825 issued and 22,078 outstanding 248 248
Series B subordinate preferred stock, no par value,
authorized 4,000 shares, issued and outstanding 0 0 0
Common stock, par value $.10 share, authorized 1,500,000 (30 proforma)
shares, 1,497,952 (6proforma) issued and
1,104,940 (6 proforma) outstanding 149,795 1
Additional paid-in capital 2,165,958 2,004,337
Retained earnings 740,123 694,101
----------------- -----------------
3,109,532 2,769,560
Less treasury stock 131,038 51,895
----------------- -----------------
Total stockholders' equity 2,978,494 2,717,665
----------------- -----------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 7,161,385 $ 7,161,385
================= =================
</TABLE>
15
<PAGE>
SKLAR CORPORATION
CONSOLIDATED BALANCE SHEET
March 31, 1999
<TABLE>
<CAPTION>
ASSETS
<S> <C>
CURRENT ASSETS:
Cash $ 63,344
Accounts receivable 1,906,287
Inventories (Note 5) 3,341,331
Prepaid expense 272,652
-----------------
Total current assets 5,583,614
-----------------
EQUIPMENT AND IMPROVEMENTS (Note 6) 670,708
GOODWILL (Note 7) 439,248
OTHER ASSETS 198,050
-----------------
TOTAL ASSETS $ 6,891,620
=================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-term borrowings (Note 2) 938,000
Current portion of long-term debt 117,130
Current portion of capital lease obligation 15,561
Accounts payable 2,157,953
Accrued expenses and taxes 817,182
-----------------
Total current liabilities 4,045,826
LONG-TERM PORTION OF NOTES AND CAPITAL LEASE
PAYABLE 14,538
Total liabilities 4,060,364
---------
CONTINGENT LIABILITIES
STOCKHOLDERS' EQUITY: (Note 9)
Series A preferred stock, par value $.01, per share, authorized
35,000 shares, 24,825 issued and 22,078 outstanding 248
Series B subordinate preferred stock, no par value, authorized
4,000 shares, issued and outstanding 0 0
Common stock, par value $.10 share, authorized 1,500,000 (30 proforma)
shares, 1,497,952 (6 proforma) issued 1,104,940 (6 proforma) outstanding 149,795
Additional paid-in capital 2,165,958
Retained earnings 646,293
-----------------
2,962,294
Less treasury stock 131,038
-----------------
Total stockholders' equity 2,831,256
-----------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 6,891,620
=================
</TABLE>
16
<PAGE>
SKLAR CORPORATION
CONSOLIDATED STATEMENT OF INCOME
SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
Historical Pro Forma
<S> <C> <C>
NET SALES $ 6,739,037 $ 6,739,037
Cost of goods sold 3,619,886 3,619,886
----------------- -----------------
GROSS PROFIT 3,119,151 3,119,151
Selling, general and administrative expenses 2,895,267 2,927,324
----------------- -----------------
INCOME FROM OPERATIONS 223,884 191,827
OTHER INCOME (EXPENSE):
Interest expense 58,638 58,638
----------------- -----------------
Other expenses - net 58,638 58,638
----------------- -----------------
INCOME BEFORE TAXES 165,246 133,189
Provision for income taxes 18,008 14,508
----------------- -----------------
NET INCOME 147,238 118,681
Preferred dividend requirement 137,988 137,988
----------------- -----------------
INCOME (LOSS) APPLICABLE TO COMMON SHARES $ 9,250 $ (19,307)
================= =================
PER SHARE DATA:
Weighted average common shares outstanding 1,104,940 6
----------------- -----------------
Basic and diluted earnings (loss) per share $ .01 $ (3,218)
================= =================
</TABLE>
17
<PAGE>
SKLAR CORPORATION
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED
MARCH 31, 1999
<TABLE>
<CAPTION>
Historical Pro Forma
<S> <C> <C>
NET SALES $ 13,206,557 $ 13,206,557
Cost of goods sold 6,982,450 6,982,450
----------------- -----------------
GROSS PROFIT 6,224,107 6,224,107
Selling, general and administrative expenses 5,731,813 5,797,399
----------------- -----------------
INCOME FROM OPERATIONS 492,294 426,708
OTHER INCOME (EXPENSE):
Interest expense (163,643) (163,643)
------------------ ------------------
Other expenses - net (167,070) (167,070)
------------------ ------------------
INCOME BEFORE TAXES 325,224 259,638
Provision for income taxes 41,800 35,300
----------------- -----------------
NET INCOME 283,424 224,338
Preferred dividend requirement 275,975 275,975
----------------- -----------------
INCOME APPLICABLE TO COMMON SHARES $ 7,449 $ (51,637)
================= ==================
PER SHARE DATA:
Weighted average common shares outstanding 892,885 6
----------------- -----------------
Basic and diluted income (loss) per share $ 0.01 $ (8,606)
================= ==================
</TABLE>
18
<PAGE>
RECOMMENDATION OF THE SPECIAL COMMITTEE AND BOARD OF DIRECTORS; FAIRNESS OF THE
REVERSE STOCK SPLIT
The Board believes that the Reverse Stock Split, taken as a whole, is fair
to, and in the best interests of, the shareholders of the Company who will
receive cash in lieu of fractional shares, those who will receive shares of new
Common Stock and those who will receive both cash and shares. The Board also
believes that the process by which the transaction is to be approved is fair.
The Board recommends that the shareholders vote for approval and adoption of the
Amendment and the payment of cash in lieu of fractional shares as described
above. Each member of the Board and each officer of the Company who owns shares
of Common Stock has advised the Company that he intends to vote his shares in
favor of the Reverse Stock Split. Don Taylor and Michael Malinowski will also
receive a cash payment for their fractional share interests in the amount of
$1,709 and $4,611, respectively, in the Reverse Stock Split.
Before proposing the Reverse Stock Split, the Board considered alternative
means of achieving its objectives for the Company. See "Background of the
Proposed Stock Split."
The Board of Directors established the Special Committee to evaluate the
fairness of the Reverse Stock Split. The Special Committee was composed of the
Company's three outside directors, George Kellam, William Knepshield and Albert
Wicks, none of whom own shares of Common Stock in the Company and own less than
1% of the Preferred Stock in the Company. The Special Committee had absolute
authority to reject the Reverse Stock Split if it determined the Reverse Stock
Split was unfair or not in the best interest of the Company and its
shareholders. The Special Committee retained The Woodward Group, Ltd., an
independent financial advisory firm to assist it in determining the value of the
Common Stock and the fairness of the transaction. The Special Committee and
Woodward considered the value of the Company if liquidated, and determined that
the Company was more valuable as a going-concern. Woodward determined that,
based on representations by the Company, that the value of the Company achieved
in liquidation would be expected to approximate book value, which is
significantly less than the fair market value of the Company as determined in
their fairness opinion.
The Special Committee unanimously approved the Reverse Stock Split and
recommended that the full Board of Directors recommend the Reverse Stock Split
to the Company's shareholders for approval. The Board has unanimously adopted
the recommendation of the Special Committee as its own.
The Special Committee believes that the Reverse Stock Split is fair to all
shareholders of the Company, including the unaffiliated shareholders who will
receive cash in lieu of shares in the transaction. Messrs. Malinowski, Taylor,
Kellam and Knepshield believe the transaction is fair based on the opinion of
Woodward and the Special Committee. Therefore, Messrs. Malinowski, Taylor,
Kellam and Knepshield each adopt the analysis and opinion of Woodward as his
own. The Special Committee's conclusion is based, in part, upon the fairness
opinion issued to the Company by Woodward. Part of the Special Committee's
purpose in
19
<PAGE>
engaging Woodward was to obtain an independent estimate of the fair value of the
Company's Common Stock on a going concern basis. The Special Committee has given
significant weight to the views of Woodward.
In determining to recommend the Reverse Stock Split to the shareholders,
the Board determined that only the Special Committee would vote on and approve
the transaction. All members of the Special Committee voted in favor of the
Reverse Stock Split.
In determining the cash consideration to be paid in lieu of the issuance of
fractional shares of the new Common Stock, the Special Committee reviewed and
considered: (1) the valuation and fairness opinion of Woodward; (2) the current
market price of the Common Stock and the lack of liquidity thereof; (3)
historical market prices of the Common Stock over the last five years; (4) the
purchase prices paid in previous purchases of the Common Stock by the Company
and its affiliates; (5) the lack of dividends declared or paid on the Common
Stock, the restriction on payment of dividends in light of the Preferred Stock
and the Bank's restriction on the payment of dividends in the future; and (6)
the Fleet Foot Offer and the absence of any other offers during the preceding
eighteen months for any type of merger or consolidation with or into another
corporation or the sale of all or part of the Company's assets. The Special
Committee did not assign any specific weight to the foregoing factors, however
in their considerations individual members of the Special Committee may have
given differing weights to different factors.
Neither the Special Committee nor Woodward gave any material weight in
determining the fairness of the transaction to the book value of Common Stock or
the liquidation value of the Company's assets. Based on the Company's unaudited
balance sheet at September 30, 1998, the book value of the Common Stock would be
$0 per share. The Special Committee and Woodward believe that the Company is
considerably more valuable as a going concern.
Because of its expertise and independence, the Special Committee has placed
particular weight on the opinion of Woodward. After considering the factors
discussed above and, in particular, the views expressed by Woodward at the
December 11, 1998 Board meeting that a price of at least $.43 per share of
Common Stock to be fair consideration for fractional shares in this transaction,
the Special Committee set the consideration for fractional shares in this
transaction to be $.46 per share of outstanding Common Stock and determined that
that price would be fair to the shareholders.
The Special Committee increased the consideration to be paid from the $.43
indicated as fair by Woodward to $.46 because it wanted to be certain that the
transaction was fair to all shareholders, including both affiliated and
unaffiliated shareholders. The Special Committee arrived at the price of $.46
per share by using the $.43 price determined by Woodward and adjusting it by
also excluding from the calculation of fair market value of Common Stock shares
issued to Mr. Viner, an affiliate of the Company, during 1998. The material
factors considered by the Special Committee regarding the fairness of
transaction at $.46 per share include: (i) the current market price of the
Company's Common Stock of $0.125; (ii) the fact that in determining a fair per
share value the calculation excluded the 350,000 shares of management stock
issued during 1998, thus increasing the per share value to common stockholders;
(iii) the fact that the forecasted results, in all cases, provided by the
Company to
20
<PAGE>
Woodward and utilized, in part, in determining the value of the Company,
indicated greater forecasted operating profits than has ever been the case
historically; and (iv) the fact that in the comparable analysis valuation ratios
that were applied to the Company's financial results were developed from
comparable businesses which possess significantly greater financial and other
resources relative to the Company.
In addition to that discussed above, the Board considered the opportunity
presented by the Reverse Stock Split for the shareholders owning fewer than
50,000 shares to liquidate their holdings without incurring brokerage costs,
particularly given the relatively illiquid market of the Common Stock, and the
future cost savings and competitive advantages that will inure to the benefit of
the Company and its continuing shareholders as a result of the Company
deregistering its Common Stock under the 1934 Act. The Board further considered
the competitive disadvantage the Company suffers from being required to disclose
certain information that its competitors do not disclose in that, to its
knowledge, most of the Company's competitors are privately held, and that those
that are publicly held are small divisions of large corporations and are not
required to disclose specific performance information due to the lack of
materiality of such information in relation to the larger corporations'
performance.
The Special Committee also believes that the transaction is being effected
in a manner that is fair procedurally to the shareholders who will be cashed out
in the transaction and cease being shareholders of the Company. The Reverse
Stock Split is being effected in accordance with all requirements under
Pennsylvania Law. The Board also determined to grant common shareholders the
right to exercise dissenters' rights under ss. 1571 of the Pennsylvania
Associations Code.
VALUATION OPINION
The Special Committee considered the opinion of The Woodward Group, Ltd.
(the "Valuation Opinion") that the consideration offered to the shareholders
(i.e., the "Fractional Share Price" of $.46 per share) was fair to such holders
from a financial point of view. The following discussion summarizes in all
material respects Woodward's fairness opinion and the procedures, findings and
recommendations related to it. The Valuation Opinion states that the Fractional
Share Price is a fair market value for the shares of the Company, where fair
market value is defined as: The price at which the property would change hands
between a willing buyer and a willing seller, neither being under any compulsion
to buy or sell, and both having reasonable knowledge of the relevant facts.
(This definition, used for federal estate and gift tax purposes, has taken on
universal application in the valuation of closely held securities.)
In arriving at its opinion, Woodward (i) reviewed certain business and
financial information relating to the Company, including the Company's last
eight 10-Q's of unaudited financial statements, the last five years of 10-K's,
the fiscal year 1999 budget and the Company's five year forecast; (ii) discussed
current and historical operations, the financial condition and prospects of the
Company with senior executives and toured the Company's facilities; (iii)
reviewed the current and historical market value of the Company's common stock;
(iv) reviewed and compared the Company's financial performance to that of
comparable, publicly traded companies; and (v) reviewed and compared the
Company's financial performance to the values achieved by comparable merger and
acquisition transactions.
21
<PAGE>
In arriving at its opinion, Woodward performed a variety of financial
analyses. These analyses must be considered in their entirety; considering only
a portion of these analyses without considering all the factors and analyses
would create an incomplete view of the analyses and the process underlying the
Woodward opinion. The following is a summary of selected analyses considered by
Woodward in connection with its opinion letter.
In arriving at its opinion Woodward analyzed: (i) the current market value
of the Company's Common Stock in addition to the accrued preferred stock
dividends, the preferred stock redemption provisions and the thinly traded
nature of the Company's Common Stock; (ii) comparable, publicly traded
businesses and their market values relative to such businesses' revenues,
earnings-before-interest-and-taxes ("EBIT"),
earnings-before-interest-and-taxes-and-depreciation-and-amortization ("EBITDA"),
net income and book values; (iii) comparable merger and acquisition transactions
and the implied values of comparable acquired businesses relative to such
businesses' revenues, net income and book values; and (iv) discounted cashflow
analyses utilizing the Company's management forecasts under the best and most
likely case scenarios.
The market value per common share of stock was determined to be $0.125 or
approximately $140,000 in the aggregate for the entire class of Common Stock.
Preferred stock accrued dividends and the preferred stock redemption value
aggregated approximately $6,040,000. This market analysis implied a total
Company value of approximately $6.18 million.
Comparable, publicly traded company analysis wherein such companies' ratios
of market values relative to revenues, earnings-before-interest-and-taxes
("EBIT"), earnings-before-interest-and-taxes-and-depreciation-and-amortization
("EBITDA"), net income and book values were applied to the Company's financial
results. In the opinion of Woodward, no publicly traded companies analyzed in
the Company's industry are truly comparable to the Company. This analysis
indicated relevant, comparable multiples of EBIT and EBITDA of 12.26x and 9.17x,
implying a total Company value of $7.2 million to $8.2 million.
Comparable merger and acquisition transactions that occurred in the
Company's industry were analyzed wherein consideration paid was reviewed
relative to such businesses' revenues, net incomes and book values. This
analysis indicated relevant, comparable multiples of net income and revenues of
18.73x and .54x, respectively, implying a total Company value of $4.7 million to
$7.6 million.
The discounted cashflow analysis utilized the Company's forecasted free
cashflows under both the best and most likely case scenarios which were provided
by the Company's management for the fiscal years 1999-2003 and computed the
present value of these cashflows. The computation of the present value utilized
a weighted average cost of capital of 11.02%. In both scenarios the revenue
growth rate exceeded growth rates for the fiscal years 1998 and as expected in
1999 and in both cases the forecasted operating profits exceed historical levels
achieved by the Company. This analysis implied a total Company value of $6.4 to
$8.4 million.
22
<PAGE>
Utilizing the above analyses and implied values, Woodward determined the
aggregate fair market value of the Company was $7,100,000 and that a price of at
least $0.43 per share of Common Stock was fair consideration. In this analysis,
Woodward excluded shares issued to management during 1998, given the assumed
knowledge which management would have had with respect to a potential
transaction. If such shares were included in the per share calculation, the
resultant implied per share fair market value of all issued and outstanding
common stock would have been $0.31.
Woodward was engaged by the Special Committee of Directors to determine a
fair value of the Common Stock, and, depending on the price determined by the
Board, to render an opinion on the fairness of the price to be paid to
shareholders receiving cash in lieu of fractional shares in the Reverse Stock
Split. Woodward believes the impact of the proposed transaction on unaffiliated
shareholders owning 34.4% of the preferred stock will be negligible. Given that
the Company expects to conserve funds by no longer filing with the SEC,
presumably such funds would then be available for payment of accrued, but unpaid
dividends. However, such savings being realized and utilized in this manner are
not assured. The Company imposed no limitations on Woodward with respect to the
scope of its investigation of the Company, the preparation of its valuation
report or its opinion as to the fairness of the amount of consideration to be
paid to holders of fewer than 50,000 shares.
The Woodward Group, Ltd. is a professional financial advisory firm
specializing in the valuation of closely held entities. At the time of its
selection, Woodward had no prior business relationships with the Company or any
of its officers or directors. The fee received by Woodward for its services was
not contingent upon the conclusions reached by Woodward in the Valuation
Opinion.
Prior to engaging Woodward, on behalf of the Special Committee, William
Knepshield contacted four appraisers. Mr. Knepshield interviewed these
appraisers to determine, among other factors, how much experience each appraiser
had with valuing similar businesses of a comparable size and nature to the
Company and the approximate time table required to complete an appraisal. After
interviewing the potential appraisers, the Special Committee selected Woodward,
because its expertise and experience in valuing businesses, including
familiarity with similar businesses, and its familiarity with valuing privately
held and thinly traded public companies, its willingness to make a thorough
examination of the Company, its reputation for high quality and thorough work,
and the cost Woodward would charge for such services.
For its services, including rendering its opinion, the Special Committee
contracted to pay a fee of approximately $30,000 to Woodward.
A copy of Woodward's fairness opinion, dated December 11, 1998, is included
as Exhibit B to this Proxy Statement. Copies of Woodward's valuation report to
the Board of Directors, dated November 30, 1998, will be made available for
inspection and copying at the principal executive offices of the Company during
regular business hours by any interested common shareholder of the Company or
his representative, who has been so designated in writing. The summary set forth
above does not purport to be a complete description of Woodward's written
analysis.
23
<PAGE>
In June 1999 Woodward reviewed its fairness opinion analysis completed as
of November 30, 1998 in light of the Company's most recent financial results.
Based on their review, by letter to the Company dated June 16, 1999, Woodward
re-affirmed their analysis that an of $.46 per share of Sklar Common Stock is
fair to shareholders. A copy of Woodward's letter is included as Exhibit C to
this Proxy Statement.
CONDUCT OF THE COMPANY'S BUSINESS AFTER THE REVERSE STOCK SPLIT
The Company expects its business and operations to continue as they are
currently being conducted and, except as disclosed below, the Reverse Stock
Split is not anticipated to have any effect upon the conduct of such business.
If the Reverse Stock Split is consummated, all persons beneficially owning fewer
than 50,000 shares at the effective time of the Reverse Stock Split will no
longer have any equity interest in, and will not be shareholders of, the Company
and therefore will not participate in its future potential or earnings and
growth. Instead, each such beneficial owner of Common Stock will have the right
to receive $.46 per share in cash, without interest.
If the Reverse Stock Split is effected, the Company believes that, based on
the Company's shareholder records, only Don Taylor, Michael Malinowski and
Michael Viner will remain as shareholders, beneficially owning 100% of the
outstanding Common Stock. Such individuals now own approximately 55.9% of the
fully diluted Common Stock. See "Security Ownership of certain Beneficial Owners
and Management." If the Company's shareholder records are incomplete or
inaccurate and there are presently shareholders other than Don Taylor, Michael
Malinowski and Michael Viner who hold 50,000 shares or more, or if prior to the
effective date of the Reverse Stock Split another person becomes a shareholder
of 50,000 shares or more, then the Company is willing to purchase the shares of
such shareholder(s) for the price per share to shareholders who receive cash in
lieu of fractional shares ($0.46 per share), at the request of such shareholder.
The Company plans, as a result of the Reverse Stock Split, to become a
privately held company. The registration of the Common Stock under the 1934 Act
will be terminated. In addition, because the Common Stock will no longer be
publicly held, the Company will be relieved of the obligation to comply with the
proxy rules of Regulation 14A under Section 14 of the 1934 Act, and its officers
and directors and shareholders owning more than 10% of the Common Stock will be
relieved of the stock ownership reporting requirements and "short swing" trading
restrictions under Section 16 of the 1934 Act. Further, the Company will no
longer be subject to the periodic reporting requirements of the 1934 Act and
will cease filing information with the Commission. Among other things, the
effect of this change will be a savings to the Company in not having to comply
with the requirements of the 1934 Act.
The Amendment will decrease the number of issued and outstanding shares of
Common Stock from 1,104,940 to 12 shares. With the exception of the number of
outstanding shares, the terms of the Common Stock before and after the Reverse
Stock Split will remain the same. As stated throughout this Proxy Statement, the
Company believes that there are significant advantages in effecting the Reverse
Stock Split and "going private" and the Company plans to avail itself of any
opportunities it has as a private Company, including, but not limited
24
<PAGE>
to, making itself a more viable candidate with respect to a merger or
acquisition transaction with any one of its competitors or entering into some
type of joint venture or other arrangement. Although management does not
presently have an interest in any such transaction nor is management currently
in negotiations with respect to any such transaction, there is always a
possibility that the Company may enter into such an arrangement in the future
and the remaining shareholders of the Company may receive payment for their
shares in any such transaction in excess of the $.46 which will be paid to
shareholders in lieu of fractional shares in the Reverse Stock Split.
Other than as described in this Proxy Statement, neither the Company nor
its management has any current plans or proposals to effect any extraordinary
corporate transaction; such as a merger, reorganization or liquidation; to sell
or transfer any material amount of its assets; to change its Board of Directors
or management; to change materially its indebtedness or capitalization; or
otherwise to effect any material change in its corporate structure of business.
THE COMPANY
The Company was incorporated in 1938 in the State of Delaware under the
name Misdom-Frank Corporation. The Company became a reporting company in 1972.
In 1983, the Company merged with Medco Jewelry Corporation and the Company's
name was changed to Medco Group Incorporated ("Medco"). In 1985, Medco purchased
substantially all of the assets (other than real estate) and certain liabilities
of the J. Sklar Manufacturing Co., Inc., a well respected manufacturer and
distributor of surgical instruments that had been in continuous operation since
1892. In 1986, the Company's operations were moved to West Chester, Pennsylvania
and, in 1990, the Company was reincorporated in the Commonwealth of
Pennsylvania. In 1993, the Company changed its name to Sklar Corporation. The
Company imports and distributes high quality surgical instruments, including
dental and veterinary instruments in the United States. Between 1986 and 1996,
the Company made numerous additional acquisitions in the medical instrument
industry in order to strengthen its strategic position in its industry.
The Company currently has two divisions, the surgical instrument division
and the orthodontics division. The surgical instrument division is made up of
product lines that are primarily hand held surgical instruments, products that
are complementary such as the instrument care and cleaning line, line extensions
such as sterile procedure kits, and new low cost/low margin disposable
instruments such as scalpels and blades. The surgical instrument division
accounts for 95% of the Company's revenues. The orthodontics division accounts
for 5% of the Company's revenue as a "direct seller" to a niche market of
orthodontics.
25
<PAGE>
SELECTED HISTORICAL FINANCIAL DATA
The following table summarizes certain historical financial data which have
been derived from the audited consolidated financial statements of the Company
for each of the two most recent fiscal years ended March 31, 1999 and March 31,
1998 and six months ended September 30, 1999 and September 30, 1998.
Selected Statement of Operations Data
<TABLE>
<CAPTION>
Six Months Ended September 30 Fiscal Year Ended March 31
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Sales $ 6,739,037 $ 6,651,867 $ 13,206,557 $ 13,766,868
Gross profit $ 3,119,151 $ 3,098,844 6,224,107 6,126,002
Income before taxes 165,246 214,786 325,224 293,004
Net income (loss) $ 147,238 $ 185,890 $ 283,424 $ 253,004
Preferred Dividend
Requirement $ 137,988 $ 137,988 $ 275,975 $ 275,975
Income (loss) applicable
to Common Shares $ 9,250 $ (47,902) $ 7,449 $ (22,971)
Weighted average number of
common shares 1,104,940 783,629 892,885 744,423
Basic and diluted earnings (loss) per common share $ .01 $ (.06) $ .01 $ (.03)
</TABLE>
26
<PAGE>
Summary Balance Sheet Data
<TABLE>
<CAPTION>
Six Months Ended September 30 Fiscal Year Ended March 31
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Total Assets $ 7,161,385 $ 6,944,584 $ 6,891,620 $ 7,518,426
Working Capital 1,712,083 1,420,428 1,537,788 915,939
Long Term Obligations 9,051 23,172 14,538 90,337
Shareholders' equity 2,918,494 2,642,722 2,831,256 2,442,332
Book value per share $ 0 $ 0 $ 0 $ 0
Ratio of earnings to fixed charges 2.72 2.52 2.39 1.78
</TABLE>
FINANCING OF THE REVERSE STOCK SPLIT
The Board estimates that the total cost to the Company of the Reverse Stock
Split for payment of the fractional share interests and the estimated
transactional fees and expenses will be approximately $400,000. The Company
intends to finance the Reverse Stock Split by using funds available to it under
its line of credit facility at PNC Bank, N.A. Available borrowing under this
line of credit amounted to $758,000 at March 31, 1999 and $767,000 at June 30,
1999. This line of credit was established on December 1, 1998 to replace its
existing line of credit and provides the Company with better terms including a
1.25% drop in the interest rate, no scheduled audits, and a reduction in fees.
It was not established to pay the cost of this transaction.
The terms of the credit arrangements with PNC Bank. N.A. provide the
Company with a credit line up to $2,000,000 based on 80% of the Company's
eligible accounts receivables and/or 50% of the Company's eligible inventory at
an interest rate equal to the Bank's Prime Rate. The term of the credit line is
one year with an additional year extension at the discretion of the bank.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The payment for fractional shares for the Company's Common Stock pursuant
to the Reverse Stock Split is expected to be a fully taxable transaction.
Accordingly, each exchanging shareholder will recognize gain or loss for federal
income tax purposes measured by the difference between such shareholder's basis
in the shares exchanged and the cash received by the shareholder for the
fractional shares. Such gain or loss will be capital gain or loss if the shares
were held as a capital asset. All shareholders are urged to consult with their
own tax advisors as to the tax consequences of the Reverse Stock Split.
PRICE RANGE OF COMMON STOCK; DIVIDENDS; TRADING VOLUME
Except for limited or sporadic transactions, there is no established public
trading market for the Common Stock of the Company.
27
<PAGE>
The Company is not aware of any purchases or sales involving its Common
Stock since April, 1996 other than one transaction in June, 1996 in which Don
Taylor purchased from another stockholder 800 shares of Common Stock at a price
of $.20 per share.
As of March ___, 2000 the Company had approximately 769 holders of record
of its Common Stock. The Company believes there are approximately 1000
beneficial owners of the Company's Common Stock.
The Company has not paid any dividends on its Common Stock and does not
foresee that it will pay dividends on its Common Stock in the near future. Under
the terms of the Company's bank agreements, the Company may not pay any
dividends without the consent of the bank. Additionally, under the terms of the
Company's Series A Preferred Stock, no dividends may be paid on the Common Stock
until full cumulative dividends have been paid upon the Preferred Stock. Under
the terms of the Company's Series A Preferred Stock, an annual dividend of
$12.50 per share accrues cumulatively on June 30. No dividends are payable
unless declared by the Board of Directors. On June 17, 1985 the Board of
Directors voted not to declare the first such dividend (which would have been
paid June 30, 1985). Due to operating cash requirements and bank restrictions,
the Board of Directors has continued to decline to declare dividends in all
subsequent years.
Under the terms of the Preferred Stock, if there exists cumulative unpaid
preferred dividends, the holders of the Series A Preferred Stock, voting
separately as a class, are entitled to elect a number of additional directors to
the Board of Directors of the Company sufficient to cause such directors to be a
majority of the Board. Currently of the five Board members four are holders of
Preferred Stock. These Board members and preferred stockholders own or control
approximately 64.6% of the outstanding preferred stock. The Company has no
current plans to pay dividend in arrears or to declare dividends of the
Preferred Stock.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The table below sets forth certain information as of March___, 2000
regarding the beneficial ownership, as defined in regulations of the Commission,
of (i) each person who is known to the Company to be the beneficial owner of
more than 5% of any class of the Company's voting securities, (ii) each director
of the Company, and (iii) all directors and executive officers as a group. On
March ___, 2000, there were 1,104,940 shares of the Company's Common Stock,
22,078 Shares of Series A Preferred Stock and no shares of Series B subordinated
Preferred Stock outstanding. Unless otherwise specified, the named beneficial
owner has sole voting and investment power. The information in the table below
was furnished by the persons listed. "Beneficial Ownership" as used herein has
been determined in accordance with the rules and regulations of the Commission
and is not to be construed as a representation that any of such shares are in
fact beneficially owned by any person.
28
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Percentage of
Percentage of Total Shares Owned Total Shares
Name and Addresses Shares Owned Shares Owned prior to Following Reverse Owned Following
of Beneficial Owners Title of Class At March ___, 1999 Reverse Stock Split Stock Split Reverse Stock Split
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Don Taylor 1 Preferred 10,575 40.6% 10,575 40.6%
Common 303,715 27.5% 6 50.0%
Michael Malinowski Preferred 6,199 28.1% 6,199 28.1%
Common 258,000 23.3% 5 41.7%
George Kellam Preferred 20 * 20 *
Common --- ---
William R. Knepshield Preferred 50 * 50 *
Common --- ---
Albert Wicks Preferred --- ---
Common --- ---
Michael Viner Preferred --- ---
Common 50,000 4.5% 1 8.3%
All directors and
officers as a group 1 Preferred 16,844 64.6% 16,844 64.6%
Common 611,715 55.9% 12 100%
- ------------------------------------------------------------------------------------------------------------------------------------
<FN>
* less than 1%
1 Includes options to purchase 4000 shares of Series B subordinated Preferred
Stock currently exercisable.
</FN>
</TABLE>
DIRECTORS, EXECUTIVE OFFICERS OF THE COMPANY.
The directors and executive officers of the Company, their ages, their
principal occupations during the past five years or more, and directorships of
each in public companies in addition to the Company are as follows:
Don Taylor. Mr. Taylor, age 53, was appointed to the Board in November 1988
and was elected President of the Company in January 1989. From 1986 to 1989 he
was retained as a "turn around" consultant to the Company. From 1969 to 1982 he
owned and operated a chain of drug stores. Additionally, from 1981 until 1986 he
owned a consulting firm specializing in the turn around of financially troubled
companies. His experience includes operations, sales and marketing.
Michael Malinowski. Mr. Malinowski, age 45, was appointed to the Board in
April, 1991, and has served as Executive Vice President since 1994 and Chief
Financial Officer since 1998. He has been employed by the Company since 1986 in
the positions of General Manager and Vice President of Operations. Mr.
Malinowski has a background in computer systems management and operations. His
responsibilities as Chief Financial Officer include oversight of the financial
department and Information Systems.
29
<PAGE>
Michael Viner. Mr. Viner, age 51, has been Vice President of Operations
since January, 1999. Prior to joining the Company and for the past four years,
Mr. Viner was engaged by the Company as a Consultant to advise the Company on
various operations matters, including warehouse and regulatory systems. Mr.
Viner's background includes 30 years with consulting firms specializing in
productivity improvement and cost reduction for Fortune 500 companies.
George Kellam. Mr. Kellam, age 59, was appointed to the Board in December,
1992. Mr. Kellam has been the owner and President of G&M Enterprises, Inc., a
company which specializes in the advertising and promotional business, for
twenty years. Mr. Kellam has extensive experience in retail, warehousing and
distribution. Mr. Kellam has a background in the pharmaceutical industry.
William R. Knepshield. Mr. Knepshield, age 64, was appointed to the Board
in December, 1990. Mr. Knepshield has twenty-one years experience as the Chief
Executive of several publicly held companies involved with the medical
technology field and the inventions of innovative medical devices. From 1989 to
1993, Mr. Knepshield was president and Chief Executive Officer of KMI, Inc. a
company involved in the development and sale of sophisticated microsurgical
instruments for ophthalmology. Currently, Mr. Knepshield is president and Chief
Executive Officer of WBSK, Inc. which has developed and owns numerous patents
pertaining to needles and the protection of healthcare workers.
Albert Wicks. Mr. Wicks, age 50, was appointed to the Board in December,
1989. Mr. Wicks has been the owner, President and Chairman of C&S Medical
Supply, a company specializing in the distribution of medical supplies to the
physician market, for sixteen years. Prior to founding C&S Medical supply, he
spent thirteen years in sales and management of Foster Medical, a company that
specializes in sales of supplies to physicians.
EXCHANGE OF CERTIFICATES AND PAYMENT FOR FRACTIONAL SHARES OF NEW COMMON STOCK
Upon the approval of the shareholders of the proposed Reverse Stock Split,
the Company will file a Certificate of Amendment to its Certificate of
Incorporation with the Secretary of State of Pennsylvania. The Reverse Stock
Split will become effective on the date of that filing (the "Effective Date").
American Stock Transfer & Trust Company has been appointed exchange agent (the
"Exchange Agent") to carry out the exchange of certificates for new Common Stock
and/or cash.
As soon as practicable after the Effective Date, the shareholders will be
notified and asked to surrender their certificates representing shares of Common
Stock to the Exchange Agent. Those shareholders beneficially owning 50,000
shares or more will receive in exchange certificates representing shares of new
Common Stock on the basis of one share of new Common Stock for each 50,000
shares of Common Stock held prior to the Reverse Stock Split, and in cases where
a shareholder does not beneficially own a number of shares evenly divisible by
50,000, cash in the amount of $.46 per share of the currently outstanding Common
Stock in lieu of receiving fractional shares of new Common Stock following the
Reverse Stock Split. Shareholders owning fewer than 50,000 shares on the
Effective Date will receive in exchange a cash payment in the amount of $.46 per
share.
30
<PAGE>
For purposes of the operation of the Reverse Stock Split (i.e., for
determining whether and to what extent shareholders will receive new Common
Stock and/or cash in lieu of fractional shares), and for no other purpose, the
Company will treat the person who is the underlying beneficial owner of shares
held by a nominee as the shareholder.
If the Reverse Stock Split is effected, any shareholder beneficially owning
fewer than 50,000 shares of the currently outstanding Common Stock will cease to
have any rights with respect to the Common Stock of the Company, except to be
paid in cash, as described in this Proxy Statement. No interest will be paid or
accrued on the cash payable to shareholders after the Reverse Stock Split is
effected.
No service charges will be payable by shareholders in connection with the
exchange of certificates or the payment of cash in lieu of issuing fractional
shares, all expenses of which will be borne by the Company.
DISSENTERS' RIGHTS
In the event the Reverse Stock Split is approved, shareholders of Common
Stock would have certain rights to dissent and demand appraisal of their shares
under Section 1571 of the Pennsylvania Associations Code. Dissenters who oppose
the proposed Reverse Stock Split must file with the Company, prior to a vote, a
notice of intention to demand payment for his/her shares. If the transaction is
approved, such payment shall be for the fair value of the shares. Fair value
means the fair value of the shares immediately prior to the vote on the Reverse
Stock Split. The value so determined could be more or less than the
consideration offered pursuant to the amount disclosed in this Proxy Statement.
The dissenter may not change the beneficial ownership in the shares from
the time of filing through the effective date of the Reverse Stock Split. The
dissenter shareholder may not participate in the vote to approve the proposed
Reverse Stock Split. If he does, he waives his right to payment for his shares.
In general, if the transaction is approved notice shall be sent to
dissenters who have complied with the filing of a notice of intention.
If the Company does not take the proposed action within 60 days of the date
set for demanding payment, the Company must return the certificates and release
the transfer restrictions. The Company may at a later time, send a new notice
and follow steps delineated above, infra.
After effectuation of the Reverse Stock Split, or after the receipt of
demand for payment, the Company shall send a remittance, or notice, that no
remittance will be forthcoming. Either of these shall be sent with a closing
balance sheet and statement of income of Sklar for the fiscal year ending no
more than sixteen months prior, with the latest available financial
31
<PAGE>
statements. An estimate of the fair value of the shares, and a notice of the
dissenter's right to demand payment, or a supplemental payment shall also be
sent.
A dissenter who disagrees with the Company's estimate of the fair value of
its Common Stock may send his/her own estimate, which is a demand for the
deficiency. When a dissenter does not do so within 30 days after mailing of the
corporate notice or remittance, the dissenter is limited to the amount of the
notice.
A copy of the Dissenters' Rights statute is attached hereto as Exhibit D as
a complete description of the rights and obligations of the Company and any
shareholder who desires to exercise dissenters' rights. EACH STEP MUST BE TAKEN
IN STRICT COMPLIANCE WITH THE APPLICABLE PROVISIONS OF THE DISSENTERS' RIGHTS
STATUTE IN ORDER FOR SHAREHOLDERS TO PERFECT DISSENTERS' RIGHTS.
OTHER INFORMATION CONCERNING THE COMPANY AND AFFILIATES
On November 30, 1998, the Company granted to Michael Malinowski 100,000
shares of Common Stock in connection with Mr. Malinowski's personal guarantee of
a $2,000,000 credit line with PNC Bank. The Company believes that the fair value
of the 100,000 shares of Common Stock granted to Mr. Malinowski were $.46 per
share. At such time, Mr. Malinowski also exercised 100,000 options to purchase
Common Stock of the Company he had received in 1993 under the Company's
Incentive Stock Option Plan. Such options were exercisable at a price of $.20
per share. As a result of these stock transactions, Mr. Malinowski's ownership
interest in the Company increased from 6.9% to 23.4%.
On June 18, 1998, the Company granted to Michael Viner, a consultant of the
Company, 50,000 shares of Common Stock as an inducement to Mr. Viner to become
an employee and Vice President of the Company. The Company believes that the
fair value of the 50,000 shares of Common Stock granted to Mr. Viner were $.29
per share. Mr. Viner joined the Company as Vice President on January 1, 1999.
Although these shares were granted to Mr. Viner subsequent to the Company's
hiring of Woodward in this transaction, the Company made the offer of
employment, which included as part of the offer, the commitment to grant stock
to Mr. Viner, in January of 1998, well before the hiring of Woodward in this
transaction. Thus, the stock grants were given to Mr. Viner solely as an
inducement to becoming an employee and were unrelated to the proposed
transaction. Prior to this stock grant, Mr. Viner had no equity interest in the
Company. Upon the effectiveness of the Reverse Stock Split, Mr. Viner will own
8.3% of the Common Stock and will have a total equity interest in the Company of
less than one percent.
The Company's arrangements with Messrs. Malinowski and Viner were approved
by the majority of disinterested members of the Board.
On November 30, 1998, Mr. Taylor exercised 100,000 of his options to
purchase Common Stock of the Company. The stock options exercised were granted
to Mr. Taylor's in 1993 as consideration for services provided to the Company
and were exercisable at a price of $.25 per share. The Company believes that the
exercise price of the 1993 options equaled or exceeded the fair value of the
stock at the time of grant.
32
<PAGE>
As discussed above, none of the shares acquired by grant or exercise by
management were included in the calculation to determine the per share fair
value of the Common Stock.
The following table illustrates the effect of the stock grants to and
option exercises by management on Voting Stock:
Prior to Stock Grants or Subsequent to Stock
Option Exercises Grants and Option
Exercises
Common 261,715 (34.7%) 611,715 (55.4%)
Preferred 12,844 (58.2%) 12,844 (58.2%)
Total Ownership 278,559 (35.3%) 628,559 (56.3%)
(Common & Preferred)
In early 1998, the Company hired SEC counsel to ensure that the Company's
reporting process was compliant with SEC rules and regulations. As part of the
process, Counsel reviewed prior SEC filings and determined that the Company's
officers and directors had not filed certain 34 Act reports that they were
required to file. The Company and management began to review its records, along
with the records of the Company's transfer agent in order to file these forms.
During this review, the Company discovered that management's personal
records did not match the Company's records and that neither records matched the
records of American Stock Transfer Company, the Company's transfer agent. As a
starting point, the Company decided to audit management's personal records by
reviewing personal checks, check registers, stock purchase contracts, consulting
contracts, Company vouchers and Company checks. To the extent that management
did not have written evidence that shares were purchased (cancelled check or
company check coded to management personal account) shares were returned to the
Company and placed in treasury. In addition, in each instance in which
management purchased stock from a seller who performed consulting services to
the Company (as evidenced by a consulting agreement), a portion of the stock
purchased was returned to the Company and placed in treasury. The new management
numbers were then compared with American Stock Transfer records. The Company's
reported ownership numbers were then changed and the appropriate SEC documents
re-filed.
Most of the changes in management stock ownership were the result of
transactions in which management purchased stock from individuals who also
served as consultants to the Company. Over the past ten years or so, in an
attempt to provide liquidity to shareholders seeking to sell their shares in a
market which was nonexistent, Mr. Taylor would occasionally agree to purchase
stock from these shareholders and either Mr. Taylor or Mr. Malinowski would
purchase the stock. Many of the individuals and companies from whom Messrs.
Taylor and Malinowski purchased shares were the initial investors in the
Company, some of whom were "Wall Street" knowledgeable individuals and
companies, including investment bankers, bond firms, and others with extensive
public company experience who provided consulting services to the Company.
33
<PAGE>
The following chart, prepared by Mr. Malinowski, outlines the differences
between stock actually owned by management and stock reported as owned by
management in the Company's SEC filings:
<TABLE>
<CAPTION>
Fiscal Year End March 31
1994 1995 1996 1997 1998 1999
<S> <C> <C> <C> <C> <C> <C>
Preferred Stock Owned by Management 8,292 8,310 12,674 12,774 12,774 12,774
Preferred Stock Reported Owned by Management 11,747 15,441 9,545 13,685 12,774 12,774
Preferred Stock Change (3,455) (7,131) 3,129 (911) 0 0
Common Stock Owned by Management 226,062 226,062 255,115 261,715 261,715 561,715
Common Stock Reported Owned by Management 663,403 725,052 748,132 257,939 261,715 561,715
Common Stock Change (437,341) (498,990) (493,017) 3,776 0 0
</TABLE>
In order to prepare this chart, Mr. Malinowski analyzed the personal checks
and check registers of Messrs. Malinowski and Taylor, stock purchase agreements,
check registers from the Company, contracts from the Company and American Stock
Transfer records. Messrs. Malinowski, Taylor, and at least two former chief
financial officers were involved in the processing and authorizing of checks and
contracts signed by the Company. Messrs. Taylor and Malinowski will be two of
the three surviving shareholders after the Reverse Stock Split. As discussed
above, in 1998 while the stock reconciliation was being performed, Messrs.
Malinowski and Taylor exercised or were granted options for shares of Common
Stock in an amount equal to 300,000 shares of Common Stock of the Company. The
Board approved the stock and options grants to Messrs. Malinowski and Taylor.
The Company's independent accountant, Stockton & Bates, LLP, reviewed the
Company's stock reconciliation and consents to being named an expert with
respect to it.
While the Company cannot be certain how or if shareholders would have voted
if the Company had correctly stated the shareholdings of management, the Company
believes that the differences between actual and reported ownership by
management did not effect any matters voted on by the Company's shareholders for
the past five years as demonstrated by the following chart:
<TABLE>
<CAPTION>
Actual Vote Adjusted Vote(1)
For Against Abstain For Against Abstain
<S> <C> <C> <C> <C> <C> <C>
1997 Preferred Director 16,385 608 0 15,474 608 0
1997 Common Director 812,672 0 0 319,655 0 0
Proposition #1 829,625 0 360 336,608 0 360
1996 Preferred Director 15,236 0 0 18,365 0 0
1996 Common Director 759,512 0 0 266,415 0 0
Proposition #1 780,230 0 10 287,133 0 10
<PAGE>
1995 Preferred Director 14,780 0 0 7,649 0 0
1995 Common Director 787,548 0 100 288,558 0 100
Proposition #1 801,608 420 400 302,618 420 400
1994 Preferred Director 16,383 0 12,928 0 0
1994 Common Director 770,733 0 5,800 333,392 0 5,800
Proposition #1 792,896 0 20 355,555 0 20
<FN>
(1) The adjusted vote eliminates from the "For" categories all shares returned
by management in the stock reconciliation.
</FN>
</TABLE>
The Company believes all discrepancies have been corrected. In addition,
certain reporting documents, such as Schedule 13D and Forms 3, 4 and 5, were
filed and corrected in late 1998 and early 1999. The Company's Form 10-KSBs for
the fiscal years ended March 31, 1997 and 1998 also inadvertently omitted
information relating to the stock options granted to Messrs. Malinowski and
Taylor.
COSTS
The following is an estimate of the costs incurred or expected to be
incurred by the Company in connection with the Reverse Stock Split. Amounts
shown below exclude the cost of paying for fractional shares after the Reverse
Stock Split is effected. Final costs of the transaction may be more or less than
the estimates shown below.
Legal Fees $ 60,000
Transfer and exchange agent fees 5,000
Fees for valuation 30,000
Printing and mailing costs 15,000
Commission filing fees 50
Accounting fees 45,000
Misc. 15,000
------------
Total $ 170,050
INDEPENDENT PUBLIC ACCOUNTANTS
Representatives of Stockton Bates LLP, the Company's independent
accountants, are not expected to be present at the Special Meeting.
OTHER MATTERS
The Board does not know of other matters which are likely to be brought
before the Special Meeting. However, in the event that any other matters
properly come before the Special Meeting, the persons named in the enclosed
proxy are expected to vote the shares represented by such proxy on such matters
in accordance with their best judgment.
The cost of preparing, assembling and mailing this Proxy Statement, the
Notice of Meeting and the enclosed proxy is to be borne by the Company.
35
<PAGE>
SHAREHOLDERS' PROPOSALS FOR THE 1999 ANNUAL MEETING
If the Reverse Stock Split is not effected, or if it is not effected within
the time period currently contemplated, the Company will hold a 1998 Annual
Meeting of the Shareholders in May 1999. In order for proposals of the Company's
shareholders to be considered for inclusion in the proxy statement relating to
its 1998 Annual Meeting of Shareholders, such proposals must have been received
at the Company's executive office not later than March 15, 1999.
The Company will provide the shareholders, without charge, a copy of the
Company's Annual Report on Form 10-KSB filed with the SEC for the fiscal year
ended March 31, 1999 and the Company's Quarterly Reports on Form 10-QSB for the
quarters ended September 30 and December 31, 1999 including the financial
statements and schedules attached thereto, upon written request to Michael
Malinowski, Chief Financial Officer, at Sklar Corporation, 889 South Matlack
Street, West Chester, Pa 19382.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company File No.
1-6107 are incorporated by reference in this Proxy Statement: (i) the Annual
Report of Form 10-KSB for the fiscal year ended March 31, 1998, (ii) the
Quarterly Report on Form 10-QSB for the period ended September 30, 1999, and
(iii) the Annual Report of Form 10-KSB for the fiscal year ended March 31, 1999.
All documents and reports filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Proxy Statement and prior to the date of the Special Meeting shall be deemed to
be incorporated by reference in this Proxy Statement and prior to be a part
hereof from the respective dates of the filing of such documents or reports.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Proxy Statement to the extent that a statement contained
herein (or in any other subsequently filed documents which also is deemed to be
incorporated by reference herein) modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Proxy Statement.
THIS PROXY STATEMENT INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. SUCH DOCUMENTS (OTHER THAN EXHIBITS TO
SUCH DOCUMENTS, UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
TO SUCH DOCUMENTS) ARE AVAILABLE, WITHOUT CHARGE, TO ANY PERSON, INCLUDING ANY
BENEFICIAL OWNER TO WHOM THIS PROXY STATEMENT IS DELIVERED, ON WRITTEN OR
<PAGE>
ORAL REQUESTS OF SUCH PERSON AND BY FIRST CLASS MAIL OR OTHER EQUALLY PROMPT
MEANS WITHIN ONE BUSINESS DAY OF RECEIPT OF SUCH REQUEST, TO SKLAR CORPORATION,
889 SOUTH MATLACK STREET, WEST CHESTER, PA 19382, ATTN: MICHAEL MALINOWSKI,
CHIEF FINANCIAL OFFICER (TELEPHONE: (610) 430-3200). IN ORDER TO ENSURE DELIVERY
OF THE DOCUMENTS PRIOR TO THE SPECIAL MEETING, REQUESTS MUST BE RECEIVED NO
LATER THAN FIVE BUSINESS DAYS PRIOR TO THE SPECIAL MEETING.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the 1934 Act
and in accordance therewith files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549 and at the regional offices of the Commission located at
7 World Trade Center, 13th Floor, Suite 1300, New York, New York 10048 and Suite
1400, Citicorp Center, 14th Floor, 500 West Madison Street, Chicago, Illinois
60661. Copies of such material can also be obtained at prescribed rates by
writing to the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. In addition, such reports, proxy
statements and other information are available from the Edgar filings obtained
through the Commission Internet Website (http://ww.sec.gov.)
37
<PAGE>
EXHIBIT B
DRAFT OPINION OF WOODWARD GROUP, LTD.
______________, 1999
Board of Directors
Sklar Corporation
889 South Matlack Street
West Chester, PA 19382
Ladies and Gentlemen:
You have requested the valuation opinion of The Woodward Group, Inc.
("Woodward") as to the fairness, from a financial point of view, of the
financial terms of the proposed transaction whereby Sklar Corporation ("Sklar"
or the "Company") proposes to effect a Reverse Stock Split, as defined in the
Company's Preliminary Proxy Statement, and purchase any resulting fractional
shares at a price of $0.46 per existing share.
Woodward, as part of its transaction advisory business, is engaged in the
valuation of assets, securities and companies in various types of asset and
security transactions, including the valuation of assets, securities and
companies in mergers, acquisitions divestitures and leveraged buyouts and in the
determination of adequate consideration in such transactions.
In accordance with the terms of our engagement letter dated August 18, 1998, we
submit this letter which sets forth our valuation opinion and summarizes the
procedures used in arriving at our valuation.
Documentation and Information Examined
As background for our analysis, we reviewed the history, current operations and
future prospects of Sklar with certain of Sklar's management. Our financial
analysis is based upon the review of Sklar audited financial statements,
internal worksheets, and internal operating reports. Specifically, the following
were among the documents and information we examined during the course of our
analysis:
B-1
<PAGE>
1. Sklar audited financial statements for the fiscal years ended
March 31, 1994-1998 and annual 10-KSB for the fiscal years ended
March 31, 1994-1998 and quarterly 10-QSB reports filed with the
Commission for the quarters ended December 31, 1995 through and
including June 30, 1998.
2. Financial forecast and budget assumptions provided by Sklar
management for the years ending March 31, 1999-2004.
3. Schedules of receivables aging and payables aging.
4. Sales history analysis by customer.
5. Purchases history by vendor.
6. Sklar organization charts.
7. Sklar pending litigation.
8. Sklar historical and current stock market performance.
9. Current and proposed customer contracts, loan agreements and
leases.
10. Federal and state tax returns for the fiscal years 1995-1997.
Persons Interviewed
During the course of our analysis, we conducted meetings and interviews with
persons who, in our judgment, were capable of providing us with information
necessary to complete the analysis. These interviews and meetings included
Donald Taylor, Michael Malinowski and Michael Viner of Sklar and John Gallagher
of the accounting firm Stockton Bates.
B-2
<PAGE>
Facilities Visited
As part of the development of information and our valuation, we visited the
Sklar facilities located in West Chester, Pennsylvania.
Factors Considered
In arriving at our valuation, we considered the following factors, among others,
which we deemed relevant.
1. The history and management of Sklar.
2. The nature of and business operated by Sklar and the future
prospects of the business.
3. The historical and current operating results of Sklar and the
factors affecting these results, including the current and
anticipated customer base of Sklar and Sklar's product line
offering.
4. The historical and current financial condition of Sklar.
5. The historical and current book value of Sklar's assets and
liabilities.
6. Financial forecast and budget assumptions provided by Sklar
management for the years ending March 31, 1999-2004.
7. Available information on "comparable", publicly traded companies
and merger and acquisition transactions which were not, in our
opinion, directly comparable.
8. Conditions in the general economy and the industry in which Sklar
operates.
9. The terms and shareholdings of Sklar's Series A Preferred Stock;
the composition of management and the majority shareholders and
Board of Directors of Sklar; and the historical trading of all
classes of Sklar stock.
B-3
<PAGE>
In addition, Woodward conducted other such financial analyses, studies and
investigations as we deemed appropriate.
Access to Information and Personnel
During our analysis, we received access to all materials and personnel which we
deemed necessary and adequate for the purpose of formulating the valuation
expressed in this letter, and no limitations were placed upon our
investigations.
Assumptions and Limitations
Our valuation is subject to the following assumptions and limitations.
1. We express no opinion as to the tax consequences, if any, to
Sklar, its management and/or shareholders.
2. We have made no independent verification of the financial and
operating data contained in Sklar's internal and audited
financial statements and other data provided to us by Sklar
management, and have accepted the information as presented. In
addition, Woodward has relied on the representations of Sklar
management that there are no known contingent or other
liabilities to the corporation, including environmental,
warranty, or legal which have not been disclosed to Woodward
and/or represented in Sklar's financial statements. Additionally,
Woodward has relied on the representations of Sklar management
that there are no known assets in which the corporation has a
direct or indirect interest which are not represented in Sklar's
financial statements.
3. Our valuation opinion is based on market, economic, financial and
other conditions as they exist and can be evaluated as of
November 30, 1998 and speaks to no other time period.
4. We assume that the proposed transactions referenced herein are,
in all respects, lawful under applicable corporate law.
5. We have assumed and relied upon the accuracy and completeness of
the information provided to Woodward by Sklar and its advisors
without independent investigation. With respect to financial
projections, we have assumed, for purposes
B-4
<PAGE>
of our valuation opinion, that they accurately reflect the best
currently available estimates and judgments made by Sklar
management of the future financial performance of Sklar.
Conclusion
In preparing our valuation opinion, we have relied on the completeness and
accuracy of the information and data furnished to us by Sklar as of November 30,
1998. We have not independently verified such data nor data obtained from
regularly published sources.
We are not aware of any present or contemplated relationship between Sklar and
Woodward Group, Ltd. that, in our opinion, would affect our ability to render a
fair and independent valuation opinion in this matter. Our valuation opinion
pertains only to the financial consideration of the proposed transaction as of
November 30, 1998 and does not constitute a recommendation to Sklar shareholders
as to how they should vote or act with respect to the contemplated transactions
referenced herein.
Based on the foregoing analysis and review, other matters we considered
relevant, our general knowledge and experience in the valuation of companies,
and subject to the assumptions and limitations detailed above, we believe that
the proposed offer to purchase fractional shares resulting from the contemplated
Reverse Stock Split at a price of $0.46 per share is fair from a financial point
of view as of November 30, 1998.
Sincerely,
The Woodward Group, Ltd.
B-5
<PAGE>
EXHIBIT D
DISSENTER'S RIGHTS STATUTE
TITLE 15. CORPORATIONS AND UNINCORPORATED ASSOCIATIONS
CHAPTER 15. CORPORATE POWERS, DUTIES AND SAFEGUARDS
SUBCHAPTER D. DISSENTERS RIGHTS
ss. 1571. Application and effect of subchapter
(a) General rule. Except as otherwise provided in subsection (b), any
shareholder of a business corporation shall have the right to dissent from, and
to obtain payment of the fair value of his shares in the event of, any corporate
action, or to otherwise obtain fair value for his shares, where this part
expressly provides that a shareholder shall have the rights and remedies
provided in this subchapter.
ss. 1572. Definitions
The following words and phrases when used in this subchapter, shall have
the meanings given to them in this section unless the context clearly indicates
otherwise:
"Corporation." The issuer of the shares held or owned by the dissenter
before the corporate action or the successor by merger, consolidation, division,
conversion or otherwise of that issuer. A plan of division may designate which
of the resulting corporations is the successor corporation for the purposes of
this subchapter. The successor corporation in a division shall have sole
responsibility for payments to dissenters and other liabilities under this
subchapter except as otherwise provided in the plan of division.
"Dissenter." A shareholder or beneficial owner who is entitled to and does
assert dissenters rights under this subchapter and who has performed every act
required up to the time involved for the assertion of those rights.
"Fair value." The fair value of shares immediately' before the effectuation
of the corporate action to which the dissenter objects, taking into account all
relevant factors, but excluding any appreciation or depreciation in anticipation
of the corporate action.
"Interest." Interest from the effective date of the corporate action until
the date of payment at such rate as is fair and equitable under all the
circumstances, taking into account all relevant factors, including the average
rate currently paid the corporation on its principal bank loans.
ss. 1573. Record and beneficial holders and owners
(a) Record holders of shares. A record holder of shares of a business
corporation may assert dissenters rights as to fewer than all of the shares
registered in his name only if he dissents with respect to all the shares of the
same class or series beneficially owned by any one
D-1
<PAGE>
person and discloses the name and address of the person or persons on whose
behalf he dissents. In that event, his rights shall be deter-mined as if the
shares as to which he has dissented and his other shares were registered in the
names of different shareholders.
(b) Beneficial owners of shares. A beneficial owner of shares of a business
corporation who is not the record holder may assert dissenters rights with
respect to shares held on his behalf and shall be treated as a dissenting
shareholder under the terms of this subchapter if he submits to the corporation
not later than the time of the assertion of dissenters rights a written consent
of the record holder. A beneficial owner may not dissent with respect to some
but less than all shares of the same class or series owned by the owner, whether
or not the shares so owned by him are registered in his name.
ss. 1574. Notice of intention to dissent
If the proposed corporate action is submitted to a vote at a meeting of
shareholders of a business corporation, any person who wishes to dissent and
obtain payment of the fair value of his shares must file with the corporation,
prior to the vote, a written notice of intention to demand that he be paid the
fair value for his shares if the proposed action is effectuated, must effect no
change in the beneficial ownership of his shares from the date of such filing
continuously through the effective date of the proposed action and must refrain
from voting his shares in approval of such action. A dissenter who fails in any
respect shall not acquire any right to payment of the fair value of his shares
under this subchapter. Neither a proxy nor a vote against the proposed corporate
action shall constitute the written notice required by this section.
ss. 1575. Notice to demand payment
(a) General rule. If the proposed corporate action is approved by the
required vote at a meeting of shareholders of a business corporation, the
corporation shall mail a further notice to all dissenters A-ho gave due notice
of intention to demand payment of the fair value of their shares and who
refrained from voting in favor of the proposed action. If the proposed corporate
action is to be taken without a vote of shareholders, the corporation shall send
to all shareholders who are entitled to dissent and demand payment of the fair
value of their shares a notice of the adoption of the plan or other corporate
action. in either case, the notice shall:
(1) State where and when a demand for payment must be sent and
certificates for certificates shares must be deposited in order to obtain
payment.
(2) Inform holders of uncertificated shares to what extent transfer of
shares will be restricted from the time that demand for payment is received.
(3) Supply a form for demanding, payment that includes a request for
certification of the date on which the shareholder, or the person on whose
behalf the shareholder dissents, acquired beneficial ownership of the shares.
(4) Be accompanied by a copy of this subchapter.
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(b) Time for receipt of demand for payment. The time set receipt of the
demand and deposit of certificated shares shall be less than 30 days from the
mailing of the notice.
ss. 1576. Failure to comply with notice to demand payment, etc.
(a) Effect of failure of shareholder to act. A shareholder who fails to
timely demand payment, or fails (in the case of certificated shares) to timely
deposit certificates, as required by a notice pursuant to section 1375 (relating
to notice to demand payment) shall not have any right under this subchapter to
receive payment of the fair value of his shares.
(b) Restriction on uncertificated shares. If the shares are not represented
by certificates, the business corporation may restrict their transfer from the
time of receipt of demand for payment until effectuation of the proposed
corporate action or the release of restrictions under the terms of section
1577(a) (relating to failure to effectuate corporate action).
(c) Rights retained by shareholder. The dissenter shall retain all or other
rights of a shareholder until those rights are modified by effectuation of the
proposed corporate action.
ss. 1577. Release of restrictions or payment for shares
(a) Failure to effectuate corporate action. Within 60 days after the date
set for demanding payment and depositing certificates, if the business
corporation has not effectuated the proposed corporate action, it shall return
any certificates that have been deposited and release uncertificated shares from
an transfer restrictions imposed by reason of the demand for payment.
(b) Renewal of notice to demand payment. When uncertificated shares have
been released from transfer restrictions and deposited certificates have been
returned, the corporation may at any later time send a new notice conforming to
the requirements of section 1575 (relating to notice to demand payment), with
like effect.
(c) Payment of fair value of shares. Promptly after effectuation of the
proposed corporate action, or upon timely receipt of demand for payment if the
corporate action has already been effectuated, the corporation shall either
remit to dissenters who have made demand and (if their shares are certificated)
have deposited their certificates the amount that the corporation estimates to
be the fair value of the shares, or give written notice that no remittance under
this section will be made. The remittance or notice shall be accompanied by:
(1) The closing balance sheet and statement of income of the issuer of
the shares held or owned by the dissenter for a fiscal year ending not more than
16 months before the date of remittance or notice together with the latest
available interim financial statements.
(2) A statement of the corporation's estimate of the fair value of the
shares.
(3) A notice of the right of the dissenter to demand payment or
supplemental payment, as the case may be, accompanied by a copy), of this
subchapter.
(d) Failure to make payment. If the corporation does not remit the amount
of its estimate of the fair value of the shares as provided by, subsection (c),
it shall return any
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certificates that have been deposited and release uncertificated shares from any
transfer restrictions imposed by reason of the demand for payment. The
corporation may make a notation on any such certificate or on the records of the
corporation relating to any such uncertificated shares that such demand has been
made . if shares with respect to which notation has been so made shall be
transferred, each new certificate issued therefor or the records relating to any
transferred uncertificated shares shall bear a similar notation, together with
the name of the original dissenting holder or owner of such shares. A transfer
of such shares shall not acquire by such transfer any rights in the corporation
other than those that the original dissenter had after making demand for payment
of their fair value.
ss. 1578. Estimate by dissenter of fair value of shares
(a) General rule. If the business corporation gives notice of its estimate
of the fair value of the shares, without remitting such amount, or remits
payment of its estimate of the fair value of a dissenter's shares as permitted
by section 1577(c) (relating to payment of fair value of shares) and the
dissenter believes that the amount stated or remitted is less than the fair
value of his shares, he may send to the corporation his own estimate of the fair
value of the shares, which shall be deemed a demand for payment of the amount or
the deficiency.
(b) Effect of failure to file estimate. Where the dissenter does not file
his own estimate under subsection (a) within 30 days after the mailing by the
corporation of its remittance or notice, the dissenter shall entitled to no more
than the amount stated in the notice or remitted to him by the corporation.
ss. 1579. Valuation proceedings generally
(a) General rule. Within 60 days after the latest of:
(1) effectuation of the proposed corporate action;
(2) timely, receipt of any demands for payment under section 1575
(relating to notice to demand payment); or
(3) timely receipt of any estimates pursuant to section 1378 (relating
to estimate by dissenter of fair value of shares);
if and demands for payment remain unsettled, the business corporation may file
in court an application for relief requesting that the fair value of the shares
be determined by the Court.
(b) Mandatory jointer of dissenters. All dissenters, wherever residing,
whose demands have not been settled shall be made parties to the proceeding as
in an action against their shares. A copy of the application shall be served on
each such dissenter. If a dissenter is a nonresident, the copy may be served on
him in the manner provided or prescribed by or pursuant to 42 Pa.C.S. Ch. 53
(relating to bases of jurisdiction and interstate and international procedure).
(c) Jurisdiction of the court. The jurisdiction of the court shall be
plenary and exclusive. The court may appoint an appraiser to receive evidence
and recommend a decision on
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the issue of fair value. The appraiser shall have such power and authority as
may be specified in the order of appointment or in any amendment thereof.
(d) Measure of recovery. Each dissenter who is made a party shall be
entitled to recover the amount by which the fair value of his shares is found to
exceed the amount, if any, previously remitted, plus interest.
(e) Effect of corporation's failure to file application. If the corporation
fails to file an application as provided in subsection (a), any dissenter who
made a demand and who has not already settled his claim against the corporation
may do so in the name of the corporation at any time within 30 days after the
expiration of the 60-day period. If a dissenter does not file an application
within the 30-day period, each dissenter entitled to file an application shall
be paid the corporation's estimate of the fair value of the shares and no more,
and may bring, an action to recover any amount not previously remitted.
ss. 1580. Costs and expenses of valuation proceedings
(a) General rule. The costs and expenses of any proceeding under section
1579 (relating to valuation proceedings generally), including the reasonable
compensation and expenses of the appraiser appointed by the court, shall be
determined by the court and assessed against the business corporation except
that any part of the costs and expenses may be apportioned and assessed as the
court deems appropriate against all or some of the dissenters who are parties
and whose action in demanding supplemental payment under section 1578 (relating
to estimate by dissenter of fair value of shares) the court finds to be
dilatory, obdurate, arbitrary, vexatious or in bad faith.
(b) Assessment of counsel fees and expert fees where lack of good faith
appears. Fees and expenses of counsel and of experts for the respective par-ties
may be assessed as the court deems appropriate against the corporation and in
favor of any or all dissenters if the corporation failed to comply substantially
with the requirements of this subchapter and may be assessed against either the
corporation or a dissenter, in favor of any other part), if the court finds that
the party against whom the fees and expenses are assessed acted in bad faith or
in a dilatory, obdurate, arbitrary, or vexatious manner in respect to the rights
provided by this subchapter.
(c) Award of fees for benefits to other dissenters. If the court finds that
the services of counsel for any dissenter were of substantial benefit to other
dissenters similarly situated and should not be assessed against the
corporation, it may award to those counsel reasonable fees to be paid out of the
amounts awarded to the dissenters who were benefited.
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