As filed with the Securities and Exchange Commission on December 1, 1995
Registration File No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
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. |_| ___________
<PAGE>
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 Per Unit Offering Price Fee(1)
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
Common Stock 907,000 $1.125 $1,020,375 $351.85
======================================================================================================================
</TABLE>
(1) 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>
SUBJECT TO COMPLETION, DATED DECEMBER 1, 1995
SELLING SHAREHOLDER
PROSPECTUS
DATED _______, 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 907,000 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 (the "Warrants") and Options (the
"Options") to purchase shares of Common Stock. 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 fitings, 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
<TABLE>
<S> <C>
Securities Being Offered: Up to 907,000 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 - 1,462,500
Common Stock To Be Outstanding If All
Outstanding Options and Warrants Are
Exercised - 4,978,939
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 Factors"
before purchasing.
</TABLE>
-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 November 1995,
the Company completed the sale of an aggregate of 1,676,666 shares of Common
Stock and Warrants to purchase up to an additional 1,462,500 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 4,978,939. 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
Options and 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 45,000 (4) * 45,000 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 *
Dr. Irving Kraut 167,533 (9) 4.65% 20,000 147,533 4.11%
Steven Lang 10,000 * 10,000 0 *
-7-
<PAGE>
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.
(9) Includes options and warrants to purchase 90,000 shares of Common
Stock.
-8-
<PAGE>
(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, LLP, 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
<TABLE>
<CAPTION>
Page
<S> <C>
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
</TABLE>
907,000 SHARES
BERGER HOLDINGS, LTD.
COMMON STOCK
SELLING SHAREHOLDER
PROSPECTUS
_______, 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
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
4.5 Form of 1995 Filed Herewith
Private Placement Warrant
5 Opinion of Klehr, To be filed by Amendment
Harrison, Harvey
Branzburg & Ellers
23.1 Consent of Goldenberg Filed herewith
Rosenthal Friedlander, LLP
23.2 Consent of Klehr, See Exhibit 5
Harrison, Harvey
Branzburg & Ellers
</TABLE>
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.
A. The undersigned registrant hereby undertakes:
II-3
<PAGE>
(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 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 November 30, 1995.
BERGER HOLDINGS, LTD.
By: /S/_JOSEPH F. WEIDERMAN______
Joseph F. Weiderman, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Theodore A. Schwartz and
Joseph F. Weiderman and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and all
documents relating thereto, and to file the same, with all exhibits thereto, and
their documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing necessary or advisable
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the amended
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/S/ THEODORE A. SCHWARTZ Chief Executive Officer November 30, 1995
- ------------------------ and Chairman of the Board
Theodore A. Schwartz
/S/ PAUL L. SPIESE, III Director November 30, 1995
- ----------------------- Vice President
Paul L. Spiese, III
/S/ JOSEPH F. WEIDERMAN President, Chief Operating November 30, 1995
- ----------------------- Officer and Principal
Joseph F. Weiderman Financial Officer, Director
Director November __, 1995
Larry Falcon
Director November __, 1995
Jacob I. Haft, M.D.
/S/ JEFFREY I. SCHOCKET Director November 30, 1995
- ---------------------------
Jeffrey I. Schocket
<PAGE>
Director November __, 1995
Dr. Irving Kraut
/S/ FRANCIS E. WELLOCK Principal Accounting Officer November 30, 1995
- ----------------------
Francis E. Wellock
</TABLE>
<PAGE>
EXHIBIT 4.5
(SPECIMEN)
NEITHER THIS WARRANT NOR ANY EXERCISE SHARE (AS DEFINED BELOW) MAY BE
OFFERED FOR SALE OR SOLD, OR OTHERWISE TRANSFERRED OR SOLD IN ANY TRANSACTION
WHICH WOULD CONSTITUTE A SALE THEREOF WITHIN THE MEANING OF THE SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT"), UNLESS (I) SUCH SECURITY HAS BEEN
REGISTERED FOR SALE UNDER THE 1933 ACT AND REGISTERED OR QUALIFIED UNDER
APPLICABLE STATE SECURITIES LAWS RELATING TO THE OFFER AND SALE OF SECURITIES,
OR (II) EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND THE
REGISTRATION OR QUALIFICATION REQUIREMENTS OF ALL SUCH STATE SECURITIES LAWS ARE
AVAILABLE AND THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AS TO ITS ISSUER, FORM AND CONTENTS, THAT THE
PROPOSED SALE OR OTHER DISPOSITION OF SUCH SECURITIES MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE 1933 ACT AND WOULD NOT RESULT IN ANY VIOLATION OF ANY
APPLICABLE STATE SECURITIES LAWS RELATING TO THE REGISTRATION OR QUALIFICATION
OF SECURITIES FOR SALE.
WARRANT TO PURCHASE
UP TO _______ COMMON SHARES OF
BERGER HOLDINGS, LTD.
Void after 5:30 p.m. Eastern Time on the Expiration Date (as hereinafter
defined).
This is to certify that, FOR VALUE RECEIVED, _____________________________,
a _______ corporation or registered assigns (hereinafter referred to as the
"Holder"), is entitled to purchase, subject to the terms and conditions hereof,
from Berger Holdings, Ltd., a Pennsylvania corporation (the "Company"),
__________________ (__________) shares of common stock, par value $.01 per
share, of the Company (the "Common Shares") at any time during the period
commencing on the date hereof and ending at 5:30 p.m. on the Expiration Date at
an exercise price of __________ ($____) per Common Share. This document shall
constitute the Warrant Certificate referred to below. The number of Common
Shares purchasable upon exercise of this Warrant and the exercise price per
share shall be subject to adjustment from time to time upon the occurrence of
certain events as set forth below.
The Common Shares or any other shares or other units of stock or other
securities or property, or any combination thereof receivable upon exercise of
this Warrant, as adjusted from time to time, are sometimes referred to
hereinafter as "Exercise Shares."
<PAGE>
The exercise price per share as from time to time in effect is referred to
hereinafter as the "Exercise Price."
1. Exercise of Warrant; Issuance of Exercise Shares.
(a) Exercise of Warrant. This Warrant may be exercised in whole or in part
at any time or from time to time until and including the Expiration Date upon
surrender on any business day to the Company at its principal office, together
with: (i) a completed and executed Notice of Warrant Exercise in the form set
forth in Appendix A hereto and made a part hereof and (ii) payment of the full
Exercise Price for the amount of Exercise Shares set forth in the Notice of
Warrant Exercise, in lawful money of the United States of America in cash or by
certified check or cashier's check, made payable to the order of the Company.
In the event that this Warrant shall be duly exercised in part prior to the
Expiration Date, the Company shall issue a new Warrant or Warrants of like tenor
evidencing the rights of the Holder thereof to purchase the balance of the
Exercise Shares purchasable under the Warrant so surrendered that shall not have
been purchased.
No adjustments shall be made for any cash dividends on Exercise Shares
issuable upon exercise of the Warrant. The Company shall cancel Warrant
Certificates surrendered upon exercise thereof.
(b) Issuance of Exercise Shares; Delivery of Warrant Certificate. The
Company shall, within ten (10) business days, or as soon thereafter as is
practicable, of the exercise of this Warrant, issue in the name of and cause to
be delivered to the Holder (or such other person or persons, if any, as the
Holder shall have designated in the Notice of Warrant Exercise) one or more
Warrant Certificates representing the Exercise Shares to which the Holder (or
such other person or persons) shall be entitled upon such exercise under the
terms hereof. Such Warrant Certificate or Certificates shall be deemed to have
been issued and the Holder (or such other person or persons so designated) shall
be deemed to have become the record holder of the Exercise Shares as of the date
of the due exercise of this Warrant.
(c) Exercise Shares Fully Paid and Non-Assessable. The Company agrees and
covenants that all Exercise Shares issuable upon the due exercise of the Warrant
represented by this Warrant Certificate will, upon issuance in accordance with
the terms hereof, be duly authorized, validly issued, fully paid and
non-assessable.
(d) Reservation of Exercise Shares. At the time of or before taking any
action which would cause an adjustment pursuant to Paragraph 7 hereof increasing
the number of shares of capital stock constituting the Exercise Shares, the
Company will take any corporate action which
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<PAGE>
may, in the opinion of its counsel, be necessary in order that the Company have
remaining, after such adjustment, a number of shares of such capital stock
unissued and unreserved for other purposes sufficient to permit the exercise of
all the then outstanding Warrants of like tenor immediately after such
adjustment; the Company will also from time to time take action to increase the
authorized amount of its capital stock constituting the Exercise Shares if at
any time the number of shares of capital stock authorized but remaining unissued
and unreserved for other purposes shall be insufficient to permit the exercise
of the Warrants then outstanding. The Company will at all times reserve and keep
available, out of the aggregate of its authorized but unissued shares of capital
stock, for the purpose of enabling it to satisfy any obligation to issue
Exercise Shares upon exercise of Warrants, through the Expiration Date, the
number of Exercise Shares deliverable upon the full exercise of this Warrant and
all other Warrants of like tenor then outstanding.
(e) Fractional Shares. The Company shall not be required to issue fractional
shares of capital stock upon the exercise of this Warrant or to deliver Warrant
Certificates which evidence fractional shares of capital stock. In the event
that any fraction of an Exercise Share would, except for the provisions of this
Subparagraph (e), be issuable upon the exercise of this Warrant, the Company
may, at its option, issue such fractional share or pay to the Holder exercising
the Warrant an amount in cash equal to such fraction multiplied by the then
Current Market Value of the Exercise Share. For purposes of this Subparagraph
(e), the Current Market Value shall be determined as follows:
(i) if the Exercise Shares are traded in the over-the-counter
market, and not on a national securities exchange or in the NASDAQ National
Market System, the average of the mean between the last bid and asked prices per
share, as reported by the National Quotation Bureau, Inc., or an equivalent
generally accepted reporting service, for the thirty (30) trading days prior to
the date on which this Warrant is exercised, or, if not so reported, the average
of the closing bid and asked prices for an Exercise Share for the thirty (30)
trading days prior to the date on which this Warrant is exercised, as furnished
to the Company by any member of the National Association of Securities Dealers,
Inc., selected by the Company for that purpose.
(ii) if the Exercise Shares are listed or traded on a
national securities exchange or in the NASDAQ National Market System, the
average closing prices on the principal national securities exchange on which
they are so listed or traded or in the NASDAQ National Market System, as the
case may be, for the thirty (30) trading days prior to the date of the exercise
of this Warrant. The closing price referred to in this clause (ii) shall be the
last reported sales price or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices, in either case on
the national securities exchange on which the Exercise Shares are then listed or
in the NASDAQ National Market System for the thirty (30) trading days prior to
the date on which this Warrant is exercised; or
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<PAGE>
(iii) if no such closing price or closing bid and asked
prices are available, as determined in any reasonable manner as may be
prescribed by the Board of Directors of the Company.
2. Expiration Date. The Expiration Date shall be the first anniversary of the
date that a registration statement, filed pursuant to Section 9 hereof,
registering the resale of the Exercise Shares is declared effective by the
Securities and Exchange Commission.
3. Payment of Taxes. The Company shall not be responsible to pay any documentary
stamp taxes, if any, attributable to the initial issuance of Exercise Shares
upon the exercise of this Warrant; and, in addition, the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant or any certificates for Exercise Shares in
a name other than that of the Holder of a Warrant surrendered upon the exercise
of a Warrant, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
4. Mutilated or Missing Warrant Certificates. In case any Warrant Certificate
shall be mutilated, lost, stolen or destroyed, the Company may in its discretion
issue, in exchange and substitution for and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and in substitution for the Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate or Warrant
Certificates of like tenor and in the same aggregate denomination, but only (i)
in the case of loss, theft or destruction, upon receipt of evidence satisfactory
to the Company of such loss, theft or destruction of such Warrant and indemnity
or bond, if requested, also satisfactory to them and (ii) in the case of
mutilation, upon surrender of the mutilated Warrant Certificate. Applicants for
such substitute Warrant Certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or its counsel
may prescribe.
5. Rights of Holder. The Holder shall not, by virtue of anything contained in
this Warrant Certificate or otherwise, be entitled to any right whatsoever,
either in law or equity, of a shareholder of the Company, including without
limitation, the right to receive dividends or to vote, consent or receive notice
as a shareholder in respect of the meetings of shareholders or the election of
directors of the Company or any other matter.
6. Registration of Transfers and Exchanges. The Warrant shall be transferable,
subject to the provisions of Paragraph 8 hereof, only upon the books of the
Company, if any, to be maintained by it for that purpose, upon surrender of the
Warrant Certificate to the Company at its principal office or such other
location as the Company may from time to time designate accompanied (if so
required by it) by a written instrument or instruments of transfer in form
satisfactory to the
-4-
<PAGE>
Company and duly executed by the Holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney and upon payment of any
necessary transfer tax or other governmental charge imposed upon such transfer.
In all cases of transfer by an attorney, the original letter of attorney, duly
approved, or an official copy thereof, duly certified, shall be deposited and
remain with the Company. In case of transfer by executors, administrators,
guardians or other legal representatives, duly authenticated evidence of their
authority shall be produced, and may be required to be deposited and remain with
the Company in its discretion. Upon any such registration of such transfer, a
new Warrant shall be issued to the transferee named in such instrument of
transfer, and the surrendered Warrant shall be canceled by the Company.
Any Warrant Certificate may be exchanged, at the option of the Holders
thereof and without charge, when surrendered to the Company at its principal
office, or at the office of its transfer agent, if any, for another Warrant
Certificate or Certificates of like tenor and representing in the aggregate the
right to purchase from the Company a like number and kind of Exercise Shares as
the Warrant Certificate so surrendered for exchange or transfer, and the Warrant
Certificate so surrendered shall be canceled by the Company or transfer agent,
as the case may be.
7. Adjustment of Exercise Shares and Exercise Price. The Exercise Price and the
number and kind of Exercise Shares purchasable upon the exercise of this Warrant
shall be subject to adjustment from time to time upon the occurrence of certain
events as hereinafter provided. The Exercise Price in effect at any time and the
number and kind of securities purchasable upon exercise of each Warrant shall be
subject to adjustment as follows:
(a) In the event the Company shall (i) pay a dividend or make a distribution
on its Common Shares in Common Shares, (ii) subdivide or classify its
outstanding Common Shares into a greater number of shares, or (iii) combine or
reclassify its outstanding Common Shares into a smaller number of shares, the
Exercise Price in effect at the time of the record date for such dividend or
distribution or of the effective date of such subdivision, combination or
reclassification shall be proportionally adjusted so that the Holder of this
Warrant exercised after such date shall be entitled to receive the aggregate
number and kind of shares which, if this Warrant had been exercised by such
Holder immediately prior to such date, he would have owned upon such exercise
and been entitled to receive upon such dividend, subdivision, combination or
reclassification. By way of example, if the Company declares a two (2) for one
(1) share dividend or share split and the Exercise Price immediately prior to
such event was One Dollar ($1.00) per share, the adjusted Exercise Price
immediately after such event would be Fifty Cents ($.50) per share and the
Holder would be entitled to purchase Three Hundred Thousand (300,000) shares at
such an adjusted Exercise Price. Such adjustment shall be made successively
whenever any event listed above shall occur.
-5-
<PAGE>
(b) Whenever the Exercise Price payable upon exercise of each warrant is
adjusted pursuant to Subparagraph (a) above, the number of Exercise Shares
purchasable upon exercise of this Warrant shall simultaneously be adjusted by
multiplying the number of Exercise Shares initially issuable upon exercise of
this Warrant by the Exercise Price in effect on the date hereof and dividing the
product so obtained by the Exercise Price, as adjusted.
(c) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least one cent ($.01) in
such price; provided, however, that any adjustments which by reason of this
Subparagraph (c) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment required to be made hereunder. All
calculations under this Paragraph 6 shall be made to the nearest one-half of a
cent or to the nearest one-hundredth of a share, as the case may be.
(d) If the Company at any time merges or consolidates with or into any other
corporation or enters into a similar transaction (other than a merger in which
the Company is the surviving corporation and in connection with which there is
no reclassification or other change in Common Shares or other securities of the
Company or any issuance of stock, securities or property to the holders of its
outstanding Common Shares), then, the Company shall notify such Holder of any
such event and, effective upon the record or other date of determination of
persons affected by such merger, consolidation or similar transaction, the
Exercise Shares shall include the kind and amount of securities, cash and
property that would have been held by the Holder if on such determination date
the Holder had been the holder of record of the securities, cash and properties
issuable upon exercise of the Warrant on such determination date (or the right
thereto prior to the effective date thereof). In the event of any merger,
consolidation or similar transaction referred to above in this Subparagraph (d),
the Company shall, and shall cause any successor corporation as a condition
precedent to such transaction to, execute and deliver to each Holder a new
Warrant (i) providing that the owner of such Warrant, upon any exercise thereof,
shall have the right to purchase the Exercise Shares adjusted as described
above, and (ii) containing provisions for subsequent adjustments in a manner and
on terms as nearly equivalent as may be practicable to the adjustments provided
for in this Subparagraph.
(e) Whenever an adjustment is required as herein provided, the Company shall
promptly cause a notice setting forth the adjusted Exercise Price and adjusted
number of Exercise Shares issuable upon the exercise of each Warrant or the
number of warrants to be issued to be mailed to the Holders, at their last
addresses appearing in the Warrant Register, and shall cause a certified copy
thereof to be mailed to its transfer agent, if any. The Company may retain a
firm of independent certified public accountants selected by the Board of
Directors (who may be the regular accountants employed by the Company) to make
any computation required by this Paragraph 7, and a certificate signed by such
firm shall be conclusive evidence of the correctness of such adjustment.
-6-
<PAGE>
(f) In the event that, at any time, as a result of an adjustment made
pursuant to the provisions, the Holder of this Warrant thereafter shall become
entitled to receive any Exercise Shares of the Company, other than Common
Shares, thereafter the number of such other shares so receivable upon exercise
of this warrant shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect to
the Common Shares contained in Subparagraphs (a) to (e), inclusive above.
(g) Irrespective of any adjustments in the Exercise Price or the number or
kind of Exercise Shares purchasable upon exercise of this Warrant, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
(h) Whenever the Exercise Price shall be adjusted as required by the
provisions of the foregoing Section, the Company shall forthwith file in the
custody of its Secretary or an Assistant Secretary at its principal office and
with its share transfer agent, if any, an officer's certificate showing the
adjusted Exercise Price and other adjustments determined as herein provided,
setting forth in reasonable detail the facts requiring such adjustment,
including a statement of the number of additional Common Shares, if any, and
such other facts as shall be necessary to show the reason for and the manner of
computing such adjustment. Each such officer's certificate shall be made
available at all reasonable times for inspection by the Holder.
8. Restrictions on Transferability: Restrictive Legend. Neither this Warrant nor
the Exercise Shares shall be transferable except in accordance with the
provisions of this paragraph.
(a) Restrictions on Transfer: Indemnification. Neither this Warrant nor any
Exercise Share may be offered for sale or sold, or otherwise transferred or sold
in any transaction which would constitute a sale thereof within the meaning of
the Securities Act of 1933, as amended (the "1933 Act"), unless (i) such
security has been registered for sale under the 1933 Act and registered or
qualified under applicable state securities laws relating to the offer and sale
of securities, or (ii) exemptions from the registration requirements of the 1933
Act and the registration or qualification requirements of all such state
securities laws are available and the Company shall have received an opinion of
counsel, satisfactory to the Company as to its Issuer, form and contents, that
the proposed sale or other disposition of such securities may be effected
without registration under the 1933 Act and would not result in any violation of
any applicable state securities laws relating to the registration or
qualification of securities for sale.
The Holder agrees to indemnify and hold harmless the Company against any
loss, damage, claim or liability arising from the disposition of this Warrant or
any Exercise Share held by such holder or any interest therein in violation of
the provisions of this Paragraph 8.
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<PAGE>
(b) Restrictive Legends. Unless and until otherwise permitted by this
Paragraph 8, this Warrant Certificate, each Warrant Certificate issued to the
Holder or to any transferee or assignee of this Warrant, and each certificate
representing Exercise Shares issued upon exercise of this Warrant or to any
transferee of the person to whom the Exercise Shares were issued, shall bear a
legend setting forth the requirements of Subparagraph (a) of this Paragraph 8,
together with such other legend or legends as may otherwise be deemed necessary
or appropriate by counsel to the Company.
(c) Notice of Proposed Transfers. Prior to any transfer, offer to transfer
or attempted transfer of this Warrant or any Exercise Share, the holder of such
security shall give written notice to the Company of such holder's intention to
effect such transfer. Each such notice shall (x) describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall contain
an undertaking by the person giving such notice to furnish such other
information as may be required, to enable counsel to render the opinions
referred to below, and shall (y) designate the counsel for the person giving
such notice, such counsel to be satisfactory to the Company. The person giving
such notice shall submit a copy thereof to the counsel designated in such notice
and the Company shall submit a copy thereof to its counsel, and the following
provisions shall apply:
(i) If, in the opinion of each such counsel, the proposed
transfer of this Warrant or Exercise Share, as appropriate, may be effected
without registration of such security under the 1933 Act, the Company shall, as
promptly as practicable, so notify the holder of such security and such holder
shall thereupon be entitled to transfer such security in accordance with the
terms of the notice delivered by such holder to the Company. Each certificate
evidencing the securities thus to be transferred (and each certificate
evidencing any untransferred balance of the securities evidenced by such
certificate shall bear the restrictive legends referred to in Subparagraph (b)
above, unless in the opinion of each such counsel such legend is not required in
order to insure compliance with the 1933 Act.
(ii) If, in the opinion of either of such counsel, the
proposed transfer of securities may not be effected without registration under
the 1933 Act, the Company shall, as promptly as practicable, so notify the
holder thereof. However, the Company shall have no obligation to register such
securities under the 1933 Act, except as otherwise provided herein.
The holder of the securities giving the notice under this Subparagraph (c)
shall not be entitled to transfer any of the securities until receipt of notice
from the Company under Subparagraph (i) of this Subparagraph (c) or the
registration of such securities under the 1933 Act has become effective.
(d) Removal of Legends. The Company shall, at the request of any registered
holder of
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a warrant or Exercise Share, exchange the certificate representing such security
for a certificate representing the same security not bearing the restrictive
legend required by Subparagraph (b) if, in the opinion of counsel to the
Company, such restrictive legend is no longer necessary.
9. Registration Rights.
(a) Required Registration.
(i) As soon as practicable after issuance of this Warrant, the
Company shall register the shares of restricted stock underlying this Warrant
(the "Restricted Stock") under the 1933 Act for public sale in open market
transactions.
(ii) The Company shall be entitled to include in any Registration
Statement referred to in subparagraph (a)(i) of this Paragraph 9, Common Shares
to be sold by other shareholders of the Company.
(iii) The Company's obligation in Subparagraph (i) above extends only
to the use of all reasonable efforts to register such shares pursuant to a
Registration statement. The Company shall have no obligation whatsoever to
indemnify or hold harmless the Holder in connection with the sale of Restricted
Stock. Furthermore, the Holder hereby agrees, as a condition precedent to such
registration, to provide the Company with a certificate or certificates
evidencing compliance with the 1933 Act and all applicable rules and regulations
thereunder.
(b) Registration Procedures. In connection with the Company's obligations
under subparagraph (a) hereof to effect the registration of the Restricted Stock
under the 1933 Act, the Company will use all reasonable efforts to:
(i) prepare and file with the Commission a Registration Statement
with respect to such securities and use its reasonable efforts to cause such
Registration Statement to become and remain effective for the period of the
distribution contemplated thereby or as required under the 1933 Act, but in no
event shall the Company be obligated to cause any Registration Statement to
remain effective beyond the period ending two years from the date of issuance of
this Warrant;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective for
the period specified in Subparagraph (i) above and as comply with the provisions
of the 1933 Act;
(iii) furnish to the Holder such number of copies of the Registration
Statement and
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the prospectus included therein as the Holder may reasonably request in order to
facilitate the sale of the Restricted Stock covered by such Registration
Statement;
(iv) use its reasonable efforts to register or qualify the Restricted
Stock covered by such Registration Statement under the securities or blue sky
laws of such jurisdictions as the Holder shall reasonably request; provided,
however, that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process in any
such jurisdiction;
(v) immediately notify the Holder, at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act, of the
happening of any event as a result of which the prospectus contained in such
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required or necessary to be
stated therein in order to make the statements contained therein not misleading
in light of the circumstances then existing;
(vi) make available for inspection by the Holder and any attorney,
accountant or other agent retained by the Holder all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by the Holder in connection with such Registration
Statement; and
(vii) if the Common Shares of the Company are listed on any
securities exchange or automated quotation system, the Company shall use its
best efforts to list (with the listing application being made at the time of the
filing of such Registration Statement or as soon thereafter as is reasonably
practicable) the Restricted Stock covered by such Registration Statement on such
exchange or automated quotation system.
(d) Expenses.
(i) For the purposes of this Subparagraph (d) of this Paragraph 9,
the term "Registration Expenses" shall mean: all expenses incurred by the
Company in complying with paragraph (a) of this Paragraph 9, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel and independent public accountants for the Company
(other than the expenses of any special audit as described below), fees of the
National Association of Securities Dealers, Inc. ("NASD"), fees and expenses of
listing shares of Restricted Stock on any securities exchange or automated
quotation system on which the Company's shares are listed and fees of transfer
agents and registrars. The term "Selling Expenses" shall mean: all underwriting
discounts and selling commissions applicable to the sale of Restricted Stock;
the cost
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of any special (i.e., other than fiscal year-end) audit required by the
1933 Act as a result of the Company's obligation to maintain the effectiveness
of the Registration Statement, and any fees and expenses of compliance with Blue
Sky laws.
(ii) The Company will pay all Registration Expenses in connection
with the Registration Statement filed pursuant to Subparagraph 9(a). The Holder
shall pay all Selling Expenses in connection with such registration.
(e) Miscellaneous Provisions.
(i) In connection with the registration hereunder, as a condition
precedent to including the Holder's Restricted Stock in the Registration
Statement, the Holder will furnish to the Company in writing such information
with respect to it and the securities held by it and the proposed distribution
by it as shall be reasonably requested by the Company in order to assure
compliance with federal and applicable state securities laws. The Holder also
hereby agrees to promptly notify the Company of any changes in such information
included in the Registration Statement or prospectus as a result of which there
is an untrue statement of material fact or an omission to state any material
fact required or necessary to be stated therein in order to make the statements
contained therein not misleading in light of the circumstances then existing.
(ii) In connection with the registration pursuant to this Paragraph
9, the Holder will not effect sales thereof until notified in writing by the
Company of the effectiveness of the Registration Statement, and thereafter will
suspend such sales after receipt of telegraphic or written notice from the
Company to suspend sales to permit the Company to correct or update a
Registration Statement or prospectus. At the end of the period during which the
Company is obligated to keep the Registration Statement current, the Holder
shall discontinue sales of shares pursuant to such Registration Statement upon
receipt of notice from the Company of its intention to remove from registration
the shares covered by such Registration Statement which remain unsold, and the
Holder shall notify the Company of the number of shares registered which remain
unsold immediately upon receipt of such notice from the Company.
10. Supplements and Amendments. The Company may from time to time supplement or
amend this Warrant Certificate without the approval of any holders of Warrants
in order to cure any ambiguity or to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision, or to make any other provisions in regard to matters or questions
herein arising hereunder which the Company may deem necessary or desirable and
which shall not materially adversely affect the interests of the Holder.
11. Successors and Assigns. This Warrant shall inure to the benefit of and be
binding on the respective successors, assigns and legal representatives of the
Holder and the Company.
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12. Severability. If, for any reason, any provision, paragraph or term of this
Warrant Certificate is held to be invalid or unenforceable, all other valid
provisions herein shall remain in full force and effect and all terms,
provisions and paragraphs of this Warrant shall be deemed to be severable.
13. Governing Law. This Warrant shall be deemed to be a contract made under the
laws of the Commonwealth of Pennsylvania and for all purposes shall be governed
by and construed in accordance with the laws of said State.
14. Headings. Paragraph and subparagraph headings are included herein for
convenience of reference only and shall not affect the construction of this
Warrant Certificate nor constitute a part of this Warrant Certificate for any
other purpose.
IN WITNESS WHEREOF, the Company has caused these presents to be duly
executed as of the ______ day of __________, 1995.
BERGER HOLDINGS, LTD.
BY:__________________
Executive Officer
<PAGE>
APPENDIX A
NOTICE OF WARRANT EXERCISE
To: Berger Holdings, Ltd.
The undersigned, the holder of the within Warrant, hereby irrevocably
exercises its purchase rights under the Warrant to purchase ________________
Common Shares of Berger Holdings, Ltd., and herewith makes payment of
$__________________________ ____________________ Dollars and _______________
Cents) in lawful money of the United States, all at the Exercise Price and on
the terms and conditions specified in the within Warrant. If such number of
shares shall not be all of the shares purchasable under the within Warrant,
please issue a new Warrant Certificate for the balance of the remaining shares
purchasable under the within Warrant and deliver such new certificates to the
undersigned at the address stated below.
The undersigned directs that a certificate representing the Common Shares or
other securities issuable upon the exercise of the within Warrant pursuant to
this Notice be issued in the name of and at the address specified below and
delivered thereto as follows:
Dated:_____________________________
______________________________________________________________________________
(Signature of Owner)
______________________________________________________________________________
(Street Address)
______________________________________________________________________________
(City (State) (Zip Code)
Shares to be issued to:
___________________________
Taxpayer Identification No.
Name___________________________________________________________
Street Address___________________________________________________
City, State and Zip Code______________________________________
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
Name_______________________________________________________
(the "Assignee")
(Please type or print in block letters)
Address__________________________________________________________
_________________________________________________________________
the right to purchase Common Shares represented by this Warrant to the extent
which such right is exercisable and does hereby irrevocably constitute and
appoint the Assignee as the attorney of the undersigned, to transfer the same on
the books of the Company with full power of substitution in the premises.
Dated:_____________________________________________, 19____
Print Name:_________________________________________________
____________________________________________________________
Signature
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Berger Holdings, Ltd. and Subsidiary
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of BERGER HOLDINGS, LTD. (the "Company") of our report
dated February 24, 1995, on our audits of the consolidated financial statements
and financial statement schedules of the Company and its Subsidiaries as of
December 31, 1994 and 1993 and for the years then ended, listed in Item 14(a) of
the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1994.
/S/ GOLDENBERG ROSENTHAL FRIEDLANDER, LLP
Goldenberg Rosenthal Friedlander, LLP
formerly known as Goldenberg/Rosenthal
Philadelphia, Pennsylvania
November 30, 1995
<PAGE>
