As filed with the Securities and Exchange Commission on December 28, 1995
Registration File No. 33-64705
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
BERGER HOLDINGS, LTD.
(Exact name of registrant as specified in its charter)
Pennsylvania
(State or Other Jurisdiction of Incorporation or Organization)
23-2160077
(I.R.S. Employer Identification Number)
805 Pennsylvania Boulevard
Feasterville, PA 19053
(215) 355-1200
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Theodore A. Schwartz, Chairman
805 Pennsylvania Boulevard
Feasterville, PA 19053
(215) 355-1200
(Name, Address Including Zip Code and Telephone Number, Including Area Code,
of Agent For Service)
------------------------------
With a copy to:
Jason M. Shargel, Esq.
Frederick J. Fisher, Esq.
Klehr, Harrison, Harvey, Branzburg & Ellers
1401 Walnut Street
Philadelphia, PA 19102
(215) 568-6060
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
------------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 464(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| ___________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| _____________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Shares to be Aggregate Price Aggregate Registration
to be Registered Registered(1) Per Unit Offering Price Fee(1)(2)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common 929,500 $1.125 $1,045,568.50 $360.58
Stock
======================================================================================================================
</TABLE>
(1) Includes 907,000 shares of Common Stock for which a registration fee
of $351.86 was previously paid. A registration fee of $8.73 is being
paid with Amendment No. 1 to Form S-3.
(2) In accordance with section (c) of Rule 457 under the Securities Act of
1933, the registration fee payable in connection herewith has been
calculated based upon the average of the closing bid and closing asked
prices for the Registrant's common stock on November 28, 1995 (as
reported on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ").
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SELLING SHAREHOLDER
PROSPECTUS
DATED DECEMBER 28, 1995
BERGER HOLDINGS, LTD.
Common Stock
For Sale by Selling Shareholders
This Prospectus concerns the offer and sale, from time to time, of up
to an aggregate of 929,500 shares (the "Shares") of the common stock, par
value $.01 per share (the "Common Stock") of Berger Holdings, Ltd., a
Pennsylvania corporation (the "Company"), by certain holders (the "Selling
Shareholders") of the Company's Common Stock and Warrants to purchase shares of
Common Stock (the "Warrants"). See "Selling Shareholders and Related
Information." The Company's Common Stock is listed on the National Association
of Securities Dealers Automated Quotation System ("NASDAQ") under the symbol
"BGRH." On November 28, 1995, the average of the closing bid and the closing
asked price for the Company's Common Stock, as quoted on NASDAQ, was $1.125 per
share.
It is presently anticipated that sales of Shares hereunder will be
effected, from time to time, in transactions in the over-the-counter market, at
prices obtainable at the time of sale, and/or in privately negotiated
transactions. Brokers or dealers may receive commissions or discounts from the
Selling Shareholders in amounts to be negotiated prior to any sale. Sales of
Shares hereunder will continue until all Shares are sold by the Selling
Shareholders or until December 31, 1997, whichever is earlier unless otherwise
extended by the Company in its discretion.
All of the Shares are being registered by the Company for sale by the
Selling Shareholders. See "Selling Shareholders and Related Information." The
Company will not receive any of the proceeds from the sale of the Shares.
-----------------------------
THE SECURITIES OFFERED HEREBY ARE HIGHLY SPECULATIVE AND INVOLVE A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" ON PAGE 5.
-----------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------------------
<TABLE>
<CAPTION>
================================================================================================================================
Underwriting Proceeds to
Price to Discounts Proceeds to the Selling
Public and Commissions the Company Shareholders(2)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Per Share............. $(1) $ (2) $ 0 $(1)
================================================================================================================================
Total(2)............... $(1) $ (2) $ 0 $(1)
================================================================================================================================
</TABLE>
(1) It is anticipated that the Shares registered hereunder will be sold in
market or private transactions at prevailing prices, from time to time.
(2) The Company will pay all expenses, other than any underwriting or
broker-dealer discounts or commissions agreed to be paid by the Selling
Shareholders.
<PAGE>
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE MATTERS DISCUSSED HEREIN AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY
SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
NOT LAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS
HEREIN SET FORTH SINCE THE DATE HEREOF.
------------------------------------
ADDITIONAL INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices located at 7 World Trade Center, New York, New York 10048, and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can also be obtained at prescribed rates
from the Public Reference Section of the Commission, Washington, D.C. 20549.
The Company has filed with the Commission a registration statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act")
with respect to the securities offered hereby (such registration statement,
together with all exhibits thereto, is hereinafter referred to as the
"Registration Statement"). This Prospectus does not contain all the information
set forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the securities offered hereby,
reference is hereby made to the Registration Statement. Statements contained in
this Prospectus as to the contents of certain documents filed with, or
incorporated by reference in, the Registration Statement are not necessarily
complete, and in each instance reference is made to such document, each such
statement being qualified in all respects by such reference.
-----------------------------
The Company furnishes its shareholders with annual reports containing
consolidated financial statements audited by independent accountants and with
quarterly reports containing unaudited consolidated financial statements for
each of the first three quarters of each year.
-2-
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company incorporates by reference into this Prospectus the
documents listed below:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995; June 30, 1995; and September 30, 1995.
(3) The description of the Corporation's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated December 19, 1984.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the filing of a post-effective amendment to the
Registration Statements which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such reports and documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for all purposes to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide, without charge, to each
person to whom a copy of this Prospectus has been delivered, upon the written or
oral request of such person, a copy of all documents incorporated by reference
in this Prospectus, other than exhibits to such documents unless such exhibits
are specifically incorporated by reference herein. Requests for such copies
should be directed to: Corporate Secretary, Berger Holdings, Ltd., 805
Pennsylvania Boulevard, Feasterville, PA 19053.
-3-
<PAGE>
THE COMPANY
The Company is a Pennsylvania corporation organized in 1979. Through
its subsidiary, Berger Bros Company, the Company is principally engaged in the
manufacture and distribution of roof drainage products ("RDP") and solid vinyl
home siding ("SVHS") products.
The Company's RDP product line, consisting of gutters, downspouts, trim
coil and associated accessories and fittings, is manufactured by the Company in
its manufacturing facility in Feasterville, PA. The Company sells RDP through
its sales representatives and telemarketing principally to wholesale
distributors who sell directly to roofers and general contractors for use in the
repair and replacement of roof drainage systems in existing buildings, primarily
residential.
The Company's SVHS product line is produced under the name Graywood and
consists of solid vinyl home siding and associated accessories. Such products
are manufactured in the Company's Feasterville facility. Sales of SVHS products
are principally made to wholesale distributors and services accounts in the
modular home industry.
The Company's address is 805 Pennsylvania Boulevard, Feasterville, PA
19053 and its telephone number is (215) 355-1200.
THE OFFERING
Securities Being Offered: Up to 929,500 Shares to be sold by the
Selling Shareholders. See "Selling
Shareholders and Related Information."
Securities Outstanding (as of
November 20, 1995): Common Stock - 3,516,439
Common Stock Issuable Upon Exercise of
Outstanding Options and
Warrants - 1,470,000
Common Stock To Be Outstanding If All
Outstanding Options and Warrants Are
Exercised - 4,986,439
Preferred Stock - None
Risk Factors: The Shares offered hereby involve a
high degree of risk and prospective
purchasers should consider carefully
the factors specified under "Risk
Factor" before purchasing.
-4-
<PAGE>
RISK FACTORS
An investment in the Shares involves a high degree of risk. The
Shares are a suitable investment only for those investors who can afford a total
loss of their investment. Before making a decision to purchase Shares, a
prospective investor should consider carefully, among other things, the
following factors.
Matters Relating to Bankruptcy Proceedings. The Company filed a
petition for reorganization under Chapter 11 of the United States Bankruptcy
Code on December 6, 1991. The effective date of the Company's Plan of
Reorganization was April 13, 1993. The Company's bankruptcy proceedings have had
a material adverse effect upon its operations. Such adverse effects have
ameliorated over time, but may continue into the future.
Need For Additional Financing. Between December 1993 and
December 1995, the Company completed the sale of an aggregate of 1,691,666
shares of Common Stock and Warrants to purchase up to an additional 1,470,000
shares of Common Stock. In June 1994 the Company entered into a Loan and
Security Agreement with the CIT Group/Credit Finance, Inc. (the "CIT Loan")
which (i) enabled the Company to repay its outstanding obligation to its
principal lender at a discount and (ii) provided additional working capital. The
Company believes that it currently has sufficient working capital to allow the
Company to maintain or increase its current volume of sales. However, the
Company will require additional debt and/or equity financing upon the maturity
of the CIT Loan in June 1996, unless the CIT Loan is extended. The Company is
currently exploring additional alternatives with regard to the refinancing of
the CIT Loan. There is no assurance that the CIT Loan can be extended or
refinanced on advantageous terms or at all.
Matters Related to Market Price. The market for the Common Stock
has been adversely affected by the Company's bankruptcy proceedings, and may
continue to be so affected for an indefinite period. There is no assurance as to
the liquidity of the trading market in the Shares. As a result of the issuance
of Common Stock upon the exercise of outstanding options and warrants, the
number of shares of Common Stock outstanding may increase to 4,986,439. If and
when such increase is accomplished, the number of the Company's shares of Common
Stock that are freely tradeable may over time greatly exceed the number of
shares that are presently freely tradeable. The influx of a large number of
shares onto the trading market may create downward pressures on the trading
price of the Common Stock.
No Underwriter Participation in Preparation. No selling agent or
underwriter has participated in the preparation of this offering. Generally, in
an underwritten offering, an underwriter would conduct certain investigations
relative to the issuer, its business and the terms of the offering in order to
establish a reasonable basis for the pricing of the securities to be sold and to
verify the disclosures made in connection with the offering. Inasmuch as no
underwriter has participated in this offering, no underwriter has exercised due
diligence with respect to the information contained in this Prospectus.
Dividends. No dividends have been paid by the Company in the past
five years and the payment of dividends is not contemplated in the foreseeable
future. The payment of future dividends will be directly dependent upon the
earnings of the Company, its financial needs and other similarly unpredictable
factors. Earnings, if any, are expected to be retained to finance and develop
the Company's business.
Competition. There are many other companies engaged in the
manufacture and distribution of roof drainage and solid vinyl siding products,
and many of these companies have greater financial and other business resources
than those presently possessed by the Company. Further, other companies may
enter the Company's area of business in the future. There can be no assurance
that the Company will be able to compete successfully with such companies.
Dependence Upon Key Personnel. The Company's ongoing operations
may depend to a material extent upon the continued services of certain key
management personnel, including primarily Theodore A. Schwartz, Chairman of the
Board of Directors and Chief Executive Officer, Joseph F. Weiderman, President,
and Paul L. Spiese, III, Vice President-Manufacturing. The loss of, or the
interruption in, the services of any of such
-5-
<PAGE>
individuals during this period could adversely affect the conduct of the
Company's business and its future performance. In addition, the loss of the
services of Mr. Schwartz and/or Mr. Weiderman could trigger an Event of Default
under the CIT Loan. The Company is the beneficiary of key-man life insurance
policies on the lives of Messrs. Schwartz, Weiderman and Spiese in the amount of
$500,000 each.
Raw Materials. The price and availability of the raw materials
utilized by the Company (aluminum, steel, copper and polyvinylchloride ("PVC"))
are subject to fluctuation. In addition, the Company's ability to obtain such
materials from domestic and foreign suppliers may be subject to trade
restrictions, work stoppages and other factors. In particular, PVC, from which
the Company's solid vinyl home siding line is fabricated, is produced by
relatively few manufacturers. The Company currently purchases all of its PVC
requirements from one supplier. To date, the Company has not encountered any
significant shortages of PVC or other materials or experienced any significant
delay in obtaining such materials. Increases in the price of raw materials may
have an adverse impact on the profit margin for sales of the Company's products.
There can be no assurance that there will be no shortages, significant delays or
price increases in the future.
Net Losses. For the years 1991 through 1994, inclusive, the
Company incurred operating losses and net losses. For the nine months ended
September 30, 1995, the Company reported operating income of $96,837 and net
loss of $332,725. There can be no assurance that the Company will have operating
income or net income in the future.
No Contracts for Sales. As of the date of this Prospectus, the
Company has no sales contracts which call for the Company to make ongoing
deliveries of its products. All sales contracts between the Company and its
customers represent a single transaction. There can be no assurance that
customers of the Company will continue to purchase the same volume of products
from the Company or at all.
Inventory Levels. During the Company's bankruptcy proceedings, the
Company was unable to maintain adequate inventory levels due to cash
constraints. The Company believes that it currently maintains an inventory level
sufficient to support or increase its existing levels of sales. However, there
can be no assurance that the Company will be able to continue to maintain such
inventory levels in the future.
The Housing Market and the Home Building and Home Improvement
Industry. Demand for the Company's products is dependent upon the housing market
and the home building and home improvement industry which tend to be cyclical in
nature and have experienced significant downturns in recent years. There is no
assurance that negative industry cycles in the future will not adversely affect
the Company's business.
Seasonality of Business. The demand for the Company's products in
its primary market is seasonal. Inclement winter weather, such as that
experienced in 1994, and excessively hot and dry summer weather, such as that
experienced in 1995 in the Northeastern United States, usually causes a
reduction in the level of building activity in both the homebuilding and home
improvement markets.
-6-
<PAGE>
SELLING SHAREHOLDERS
AND RELATED INFORMATION
The Shares which may be sold pursuant to this Prospectus consist of
(i) issued and outstanding shares of Common Stock owned by the Selling
Shareholders and (ii) shares of Common Stock reserved for issuance upon exercise
of Warrants owned by the Selling Shareholders.
The Selling Shareholders are listed below. Included below
concerning each Selling Shareholder is (a) a reference to any position, office
or other material relationship existing between such person or entity and the
Company or any of its predecessors or affiliates during the past three years;
and (b) the total amount and percentage of the Company's Common Stock
beneficially owned by such person, the amount subject to sale hereunder and the
resulting amount and percentage if all Shares offered hereby which are owned by
such person or entity are sold.
<TABLE>
<CAPTION>
Pre-Offering(1) Post-Offering(1)(2)
---------------- -------------------
Total Total
Number Number
of Shares of Shares
Beneficially Percentage Shares Beneficially Percentage
Selling Shareholders Owned of Class(3) Offered Owned of Class(3)
- -------------------- ------------ ----------- ------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Blair Wood Financial 50,000 (4) * 50,000 0 *
Arden Brown 244,500 (5) 6.45% 72,000 172,500 4.77%
First Colonial Securities 52,500 (4) * 52,500 0 *
First Colonial Securities 10,000 * 10,000 0 *
Group Profit Sharing Plan
FBO George D. Eggers III
Emerald Industries 100,000 2.84% 100,000 0 *
Larry Falcon 27,791 (6) * 20,000 7,791 *
David Fields 10,000 (4) * 10,000 0 *
Rick Frimmer 20,000 (7) * 20,000 0 *
Jacob I. Haft M.D. 121,070 (8) 3.26% 30,000 91,070 2.57%
Michael Isaacson 20,000 * 20,000 0 *
Jasper Electric Pension Plan 10,000 * 10,000 0 *
FBO Robert M. Cunliffe
David & Cheryl Karton 20,000 * 20,000 0 *
Howard Kent 15,000 * 15,000 0 *
Dr. Irving Kraut 167,533 (9) 4.65% 20,000 147,533 4.11%
-7-
<PAGE>
Steven Lang 10,000 * 10,000 0 *
Arthur Lichtenberg 12,000 * 12,000 0 *
Ben Lichtenberg 38,000(10) * 38,000 0 *
William B. Noyovitz 10,000 * 10,000 0 *
Jeffrey I. Schocket 27,857(11) * 20,000 7,857 *
Marc Scott 15,000 * 15,000 0 *
Jules Simon 10,000 * 10,000 0 *
Paul L. Spiese, III 194,726(12) 5.31% 100,000 94,726 2.66%
Joel Strote P.C. 15,000 * 15,000 0 *
Strote-Whitehouse 25,000 * 25,000 0 *
Employee Retirement Trust
Theodore A. Schwartz 315,225(13) 8.38% 100,000 215,225 5.88%
Joseph F. Weiderman 245,090(14) 6.63% 100,000 145,090 4.04%
Francis E. Wellock, Jr. 55,750(15) 1.55% 25,000 30,750 *
</TABLE>
- -----------------------------------
* Indicates less than one percent.
(1) Beneficial ownership figures include all Common Stock represented by
shares of issued and outstanding Common Stock as well as shares of
Common Stock issuable upon exercise of outstanding warrants and
options. Except as otherwise indicated below, none of the Selling
Shareholders holds any option, warrant, right or convertible security
exercisable for or convertible into Common Stock, whether or not
immediately exercisable or convertible or, in the case of employee
stock options, currently vested or unvested.
(2) Assumes the sale of all Shares offered by this Prospectus by each
Selling Shareholder to third parties unaffiliated with the Selling
Shareholders.
(3) These percentages are calculated in accordance with Section 13(d) of
the Exchange Act and the rules promulgated thereunder.
(4) Consists solely of immediately exercisable options to purchase Common
Stock.
(5) Includes 171,000 immediately exercisable options and warrants (of which
70,000 options are held jointly by Mr. Brown and spouse) and 70,000
shares held jointly by Mr. Brown and spouse.
(6) Consists solely of immediately exercisable options and warrants to
purchase Common Stock.
(7) Consists of shares of Common Stock held by Mr. Frimmer as custodian
for Melanie L. Frimmer.
(8) Includes options and warrants to purchase 52,414 shares of Common
Stock.
-8-
<PAGE>
(9) Includes options and warrants to purchase 90,000 shares of Common
Stock.
(10) Includes 27,000 shares of Common Stock held by First Colonial
Securities Profit Sharing Plan for the benefit of Mr. Lichtenberg and
11,000 shares of Common Stock held by Mr. Lichtenberg as custodian for
Ross Lichtenberg.
(11) Includes options and warrants to purchase 27,791 shares of Common
Stock.
(12) Includes options and warrants to purchase 149,726 shares of Common
Stock.
(13) Includes 1,500 shares of Common Stock held by Mr. Schwartz as joint
tenant with Janice L. Bredt and options and warrants to purchase
246,630 shares of Common Stock.
(14) Includes options and warrants to purchase 178,643 shares of Common
Stock.
(15) Includes options and warrants to purchase 40,000 shares of Common
Stock.
It is presently anticipated that sales of Shares hereunder will be
effected, from time to time, in transactions in the over-the-counter market, at
prices obtainable at the time of sale, and/or in privately negotiated
transactions. Brokers or dealers may receive commissions or discounts from the
Selling Shareholders in amounts to be negotiated prior to any sale. Sales of
Shares hereunder will continue until all Shares are sold by the Selling
Shareholders or until December 31, 1997, unless otherwise extended by the
Company in its discretion.
-9-
<PAGE>
EXPERTS
The consolidated financial statements and financial statement schedules
of the Company and its subsidiaries as of December 31, 1993 and 1994 and for the
three years ended December 31, 1994 incorporated by reference in this Prospectus
have been examined by Goldenberg Rosenthal Friedlander, the Company's
independent certified public accountants, for the periods and to the extent set
forth in their report incorporated by reference herein and have been so
incorporated in reliance upon the authority of such firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the Shares of Common Stock offered hereby will be
passed upon by Messrs. Klehr, Harrison, Harvey, Branzburg & Ellers,
Philadelphia, Pennsylvania.
-10-
<PAGE>
No person is authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus,
and if given or made, such information or representation must not be relied upon
as having been authorized by the Company. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the facts set forth in this
Prospectus or in the affairs of the Company since the date hereof. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any securities other than those to which it relates or an offer to sell or a
solicitation of an offer to buy any securities in any jurisdiction in which such
offer or solicitation is not authorized, or in which the person making such
offer or solicitation is not qualified to do so, or to any person to whom it is
unlawful to make such an offer or solicitation in such jurisdiction.
TABLE OF CONTENTS
Page
Additional Information........................................ 2
Incorporation of Certain Information By Reference............. 3
The Company................................................... 4
The Offering.................................................. 4
Risk Factors.................................................. 5
Selling Shareholders and Related Information.................. 7
Experts....................................................... 10
Legal Matters................................................. 10
929,500 SHARES
BERGER HOLDINGS, LTD.
COMMON STOCK
---------------------------
SELLING SHAREHOLDER
PROSPECTUS
---------------------------
December 28, 1995
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered, all of which are
being borne by the Registrant.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............................ $ 351.85
*Printing and Engraving Expenses............................................... 500.00
*Accounting Fees and Expenses.................................................. 1,500.00
*Legal Fees and Expenses....................................................... 5,000.00
*Blue Sky Qualification Fees and Expenses...................................... 2,500.00
*Transfer Agent and Registrar Fees and Expenses................................ -
*Miscellaneous................................................................. 22,648.15
----------
TOTAL................................................................. $32,500.00
</TABLE>
- -----------------
* Estimate
Item 15. Indemnification of Directors and Officers
Sections 1741 through 1750 of Subchapter C, Chapter 17, of the
Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), contain
provisions for mandatory and discretionary indemnification of a corporation's
directors, officers and other personnel, and related matters.
Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors and officer under certain prescribed
circumstances against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
an action or proceeding, whether civil, criminal, administrative or
investigative (other than derivative actions), to which any of them is a party
or is threatened to be made a party by reason of his being a representative,
director or officer of the corporation or serving at the request of the
corporation as a representative of another corporation, partnership, joint
venture, trust or other enterprise, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful.
Section 1742 permits indemnification in derivative actions if the
appropriate standard of contact is met, except in respect of any claim, issue or
matter as to which the person has been adjudged to be liable to the corporation
unless and only to the extent that the proper court determines upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for the
expenses that the court deems proper.
Under Section 1743, indemnification is mandatory to the extent that the
officer or director has been successful on the merits or otherwise in defense of
any action or proceeding referred to in Section 1741 or 1742.
Section 1744 provides that, unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation only
as authorized in the specific case upon a determination that the representative
met the applicable standard of conduct, and such determination will be made by
(i) the board of directors by a majority vote of a quorum of directors not
parties to the action or proceeding; (ii) if a quorum is not obtainable, or if
obtainable and a majority of disinterested directors so directs, by independent
legal counsel; or (iii) by the shareholders.
II-1
<PAGE>
Section 1745 provides that expenses incurred by an officer, director,
employee or agent in defending a civil or criminal action or proceeding may be
paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation.
Section 1746 provides generally that, except in any case where the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter 17C of the
BCL shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding that office.
Section 1747 also grants a corporation the power to purchase and
maintain insurance on behalf of any director or officer against any liability
incurred by him in his capacity as officer or director, whether or not the
corporation would have the power to indemnify him against the liability under
Subchapter 17C of the BCL.
Sections 1748 and 1749 extend the indemnification and advancement of
expenses provisions contained in Subchapter 17C of the BCL to successor
corporations in fundamental changes and to representatives serving as
fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement of
expense provided by, or granted pursuant to, Subchapter 17C of the BCL shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs and personal representative of such person.
Article VII of the Registrant's Bylaws, which are incorporated by
reference in this Registration Statement, provides in general that the
Registrant shall indemnify its officers and directors to the fullest extent
permitted by law.
Item 16. Exhibits and Financial Statement Schedules
The following documents are filed as part of this Registration
Statement. (Exhibit numbers correspond to the exhibits required by Item 601 of
Regulation S-K for a Registration Statement on Form S-3).
<TABLE>
<CAPTION>
Exhibit
Number Title Method of Filing
- ------- ----- ----------------
<S> <C> <C>
2.1 Debtor's Third Amended Incorporated by reference to Exhibit
Joint Plan of 1 of the Current Report on Form 8-K filed on
Reorganization March 30, 1993 (the "Form 8-K")
2.2 Third Amended Disclosure Incorporated by reference to Exhibit
Statement for Debtor's 2 of Form 8-K
Amended Joint Plan of
Reorganization
2.3 Settlement Agreement by Incorporated by reference to Exhibit
and between the Registrant 4 of Form 8-K
and Meridian Bank
II-2
<PAGE>
4.1 Specimen Certificate Incorporated by reference to
for Common Stock Exhibit 4(a) to Amendment No. 1 to the
Registration Statement on Form S-1 filed on
October 15, 1990 ("Pre-Effective Amendment
No. 1")
4.2 Form of 1993 Incorporated by reference to Exhibit 4(g)
Private Placement Warrant of the Registration Statement on Form S-1,
No. 1 filed June 16, 1993, (the "1993 Form S-1")
4.3 Form of Consulting Warrant Incorporated by reference to Exhibit 4(h)
by and between the Company of the 1993 Form S-1
and Universal Solutions, Inc.
4.4 Form of 1993 Incorporated by reference to Exhibit 4.9 of the
Private Placement Warrant Registration Statement on Form S-3, filed
No. 2 January 21, 1993 (the "1993 Form S-3")
4.5 Form of 1995 *
Private Placement Warrant
5 Opinion of Klehr, Filed Herewith
Harrison, Harvey,
Branzburg & Ellers
23.1 Consent of Goldenberg *
Rosenthal Friedlander
23.2 Consent of Klehr, See Exhibit 5
Harrison, Harvey,
Branzburg & Ellers
</TABLE>
______________________
* Previously filed with the Registrant's initial filing of the Registration
Statement on Form S-3.
All other exhibits for which provision is made in the applicable
regulations of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable and therefore have been omitted.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 hereof, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling-person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person of
the registrant in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to (i) include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to
such information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this amendment to its Registration Statement on
Form S-3 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Feasterville, Commonwealth of Pennsylvania, on
December __, 1995.
BERGER HOLDINGS, LTD.
By: JOSEPH F. WEIDERMAN
-------------------------------
Joseph F. Weiderman, President
---------------------------
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
THEODORE A. SCHWARTZ Chief Executive Officer December __, 1995
- ----------------------------- and Chairman of the Board
Theodore A. Schwartz
THEODORE A. SCHWARTZ Director December __, 1995
- ----------------------------- Vice President
Paul L. Spiese, III*
JOSEPH F. WEIDERMAN President, Chief Operating December __, 1995
- ----------------------------- Officer and Principal
Joseph F. Weiderman Financial Officer, Director
Director December __, 1995
- -----------------------------
Larry Falcon
Director December __, 1995
- -----------------------------
Jacob I. Haft, M.D.
THEODORE A. SCHWARTZ Director December __, 1995
- -----------------------------
Jeffrey I. Schocket*
THEODORE A. SCHWARTZ Director December __, 1995
- -----------------------------
Dr. Irving Kraut*
THEODORE A. SCHWARTZ Principal Accounting Officer December __, 1995
- -----------------------------
Francis E. Wellock*
</TABLE>
* An original power of attorney authorizing Theodore A. Schwartz and Joseph F.
Weiderman, and each of them, to sign the amendment to the Registration
Statement on Form S-3 on behalf of such person was filed with the initial
filing of the Registration Statement on Form S-3.
<PAGE>
EXHIBIT 5
<PAGE>
December 27, 1995
Berger Holdings, Ltd.
805 Pennsylvania Boulevard
Feasterville, PA 19053
Gentlemen:
We have acted as counsel to Berger Holdings, Ltd, a Pennsylvania corporation
(the "Company"), in connection with the preparation of the Company's
registration statement on Form S-3, No. 33-64705 (the "Registration Statement")
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act"). The Registration Statement relates to an aggregate
of up to 929,500 shares of the Company's common stock, par value $.01 per share
(the "Common Stock"), for sale by certain of the Company's shareholders and
holders of options and/or warrants to purchase shares of Common Stock (the
"Selling Shareholder Shares").
In connection therewith, we have examined and relied upon the original, or
copies certified to our satisfaction, of (i) the Certificate of Incorporation,
as amended through the date hereof and the Amended and Restated By-laws of the
Company; (ii) minutes and records of the corporate proceedings with respect to
the issuance of the shares of Common Stock described above; and (iii) such other
documents as we have deemed necessary as a basis for the opinion hereafter set
forth.
<PAGE>
Berger Holdings, Ltd.
December 31, 1995
Page 2
In our examination of the foregoing documents, we have assumed (i) the due
execution by all relevant parties and authorization of all agreements to which
the Company or any of its subsidiaries is a party; (ii) the genuineness of all
signatures; and (ii) the authenticity of all documents submitted to us as
originals as well as the conformity to the originals of all documents submitted
to us as certified or photostatic copies.
As to various questions of fact material to this opinion, where such facts
have not been independently established, we have relied, to the extent we deemed
reasonably appropriate, upon representations or certificates of officers or
directors of the Company, without independent verification of their accuracy.
Based upon the foregoing and subject to the qualifications hereinafter set
forth, we are of the opinion that:
Those Selling Shareholder Shares that are currently issued and outstanding
have been legally issued and are fully paid and non-assessable. Those Selling
Shareholder Shares that are issuable pursuant to the exercise of options or
warrants will be, when issued in accordance with the terms of such options or
warrants, legally issued, fully paid and non-assessable.
We are members of the Bar of the Commonwealth of Pennsylvania and do not
express any opinion as to matters governed by laws other than the laws of the
Commonwealth of Pennsylvania and the federal laws of the United States of
America.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" contained therein. In giving such consent, we do not hereby admit we
come within the category of persons whose consent is required under Section 7 of
the Act or the Rules and Regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/S/ KLEHR, HARRISON,
HARVEY, BRANZBURG &
ELLERS
