As filed with the Securities and Exchange Commission on November , 1996
---
Registration File No. 333-
==========================================================================
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.
Wolf, Block, Schorr and Solis-Cohen
Twelfth Floor Packard Building
S.E. Corner Fifteenth and Chestnut Streets
Philadelphia, PA 19102
(215) 977-2000
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/<PAGE>
<PAGE>
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>
Title of Proposed Proposed
Shares Amount Maximum Maximum Amount of
to be to be Aggregate Aggregate Registration
Registered Registered (F1) Price Per Offering Fee (F1)(F2)
<S> <C> <C> <C> <C>
Common Stock 1,061,000 $2.0625 $2,122,000 $663.13
<FN>
<F1>
(1) Excludes 1,726,500 shares of Common Stock registered pursuant to a
Registration Statement on Form S-3 filed by the Company and
declared effective by the Securities and Exchange Commission on
January 2, 1996. A registration fee of $360.58 was paid upon the
filing of such Registration Statement.
</F1>
<F2>
(2) In accordance with section (c) of Rule 457 under the Securities
Act of 1933, as amended, 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 4, 1996 (as reported on the Nasdaq
SmallCap Market ("NASDAQ").
</F2>
</FN>
</TABLE>
THE PROSPECTUS THAT IS PART OF THIS REGISTRATION STATEMENT ALSO RELATES TO
THE REGISTRATION STATEMENT OF THE REGISTRANT ON FORM S-3 WHICH WAS DECLARED
EFFECTIVE BY THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 2, 1996
(COMMISSION FILE NO. 33-64705).
<PAGE>
<PAGE>
SUBJECT TO COMPLETION
DATED NOVEMBER , 1996
SELLING SHAREHOLDER ---
PROSPECTUS
BERGER HOLDINGS, LTD.
Common Stock
For Sale by Selling Shareholders
This Prospectus concerns the offer and sale, from time to time, of up to
anaggregate of 1,061,000 shares (the "Shares") of the common stock, par value
$0.01 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, options to purchase shares of the Common Stock
(the "Options") 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 Nasdaq SmallCap Market ("NASDAQ") under
the symbol "BGRH." On November 4, 1996, the average of the closing bid and the
closing asked price for the Company's Common Stock, as quoted on NASDAQ, was
$2.0625 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 November 6, 1999, 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(F2)
<S> <C> <C> <C> <C>
Per Share . . . $(F1) $ (F2) $ 0 $(F1)
Total(F2) . . . $(F1) $ (F2) $ 0 $(F1)
<FN>
<F1>
(1) It is anticipated that the Shares registered hereunder will be
sold in market or private transactions at prevailing prices, from
time to time.
</F1>
<F2>
(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.
</F2>
</FN>
</TABLE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
<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. In addition, the Commission maintains a Web site that contains reports,
proxy and information statments and other information regarding registrants
that file electronically with the Commission. The address of the Commission's
Web site is (http://www.sec.gov).
The Company has filed with the Commission two registration statements on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act")
with respect to the securities offered hereby (such registration statements,
together with all exhibits thereto, are hereinafter referred to collectively 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>
<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, 1995.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996.
(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 Statement that 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>
<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
SECURITIES BEING OFFERED: Up to 2,448,042 Shares to be sold by
the Selling Shareholders. See
"Selling Shareholders and Related
Information."
SECURITIES OUTSTANDING (AS OF
OCTOBER 10, 1996): Common Stock - 3,814,913
Common Stock Issuable Upon Exercise
of Outstanding Options and Warrants
- 2,170,000
Common Stock To Be Outstanding If
All Outstanding Options and Warrants
Are Exercised - 5,984,913
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.
4
<PAGE>
<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. 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.
In June 1996, the CIT Loan was extended through June 1998. 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, 1998, unless the CIT Loan is again extended. 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 volume of trading in the Common Stock
has generally not been substantial. Accordingly, there is no assurance as to
the liquidity of the trading market for the Common Stock. 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 5,984,913. As
a result, 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 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, Paul L.
Spiese, III, Vice President-Manufacturing, and Francis E. Wellock, Jr., Chief
Financial Officer. The loss of, or the interruption in, the services of any of
such 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
5
<PAGE>
<PAGE>
policies on the lives of Messrs. Schwartz, Weiderman, Spiese and Wellock 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 1995, inclusive, the Company
incurred operating losses. For the nine months ended September 30, 1996, the
Company reported income from operations of $1,454,113 and net income of
$989,824. 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 1996, 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>
<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 <F1>
----------------
Total
Number of
Shares
Selling Beneficially Percentage
Shareholders Owned of Class <F3> Shares Offered
<S> <C> <C> <C>
Barinder S. Athwal 35,000<F4> * 25,000
Blair Wood Financial 50,000<F5> 1.29% 50,000
Arden Brown 235,500<F6> 6.06% 72,000
Joan Brownstein 70,000<F7> 1.83% 50,000
First Colonial 52,500<F5> 1.36% 52,500
Securities
First Colonial 10,000 * 10,000
Securities Group
Profit Sharing Plan
FBO George D.
Eggers III
Emerald Industries 70,000 1.83% 70,000
Larry Falcon 42,791<F8> 1.11% 35,000
David Fields 10,000<F5> * 10,000
Focus Tech 276,000<F9> 6.87% 0
Investments, Inc.
Rick Fimmer 20,000<F11> * 20,000
Jacob I. Haft M.D. 136,070<F12> 3.50% 45,000
Internet Financial 50,000<F10> 1.29% 0
Relations, Inc.
Post Offering <F1><F2>
--------------------
Total
Number of
Shares
Beneficially Percentage
Owned of Class <F3>
<C> <C>
10,000 *
0 *
163,500 4.21%
20,000 *
0 *
0 *
0 *
7,791 *
0 *
276,000 6.87%
0 *
91,070 2.35%
50,000 1.29%
7<PAGE>
<PAGE>
<CAPTION>
Pre-Offering (1)
----------------
Total
Number of
Shares
Selling Beneficially Percentage
Shareholders Owned of Class <F3> Shares Offered
<S> <C> <C> <C>
Jasper Electric 10,000 * 10,000
Pension Plan FBO
Robert M. Cunliffe
Catherine S. Johnson 100,000<F10> 2.25% 0
Howard Kent 15,000 * 15,000
Herman Krangel 70,000<F7> 1.83% 50,000
Dr. Irving Kraut 252,533<F13> 6.14% 35,000
Steven Lang 10,000 * 10,000
Arthur Lichtenberg 12,000 * 12,000
Ben Lichtenberg 38,000<F14> * 38,000
Lighthouse 75,000<F10> 1.93% 0
Resources, Inc.
William B. Noyovitz 10,000 * 10,000
Jeffrey I. Schocket 42,857<F15> 1.11% 35,000
Marc Scott 15,000 * 15,000
Paul L. Spiese, III 244,726<F16> 6.10% 150,000
Joel Strote P.C. 5,000 * 5,000
Theodore A. 265,225<F17> 8.88% 150,000
Schwartz
Joseph F. Weiderman 295,090<F18> 7.30% 150,000
Francis E. Wellock, 85,750<F19> 2.21% 55,000
Jr.
L.G. Zangani, Inc. 50,000<F10> 1.29% 0
Post Offering <F1><F2>
--------------------
Total
Number of
Shares
Beneficially Percentage
Owned of Class<F3>
<C> <C>
0 *
100,000 2.55%
0 *
20,000 *
217,533 5.52%
0 *
0 *
0 *
75,000 1.93%
0 *
7,857 *
0 *
94,726 2.36%
0 *
215,225 5.23%
145,090 3.59%
30,750 *
50,000 1.29%
- --------------------
* Indicates less than one percent.
<FN>
<F1>
(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.
</F1>
8
<PAGE>
<PAGE>
<F2>
(2) Assumes the sale of all Shares offered by this Prospectus by each
Selling Shareholder to third parties unaffiliated with the Selling
Shareholders.
</F2>
<F3>
(3) These percentages are calculated in accordance with Section 13(d)
of the Exchange Act and the rules promulgated thereunder.
</F3>
<F4>
(4) Includes immediately exercisable warrants to purchase 10,000
shares of Common Stock.
</F4>
<F5>
(5) Consists solely of immediately exercisable options to purchase
Common Stock.
</F5>
<F6>
(6) Includes 70,000 immediately exercisable options held jointly by
Mr. Brown and spouse and 70,000 shares held jointly by Mr. Brown
and spouse.
</F6>
<F7>
(7) Includes immediately exercisable warrants to purchase 20,000
shares of Common Stock.
</F7>
<F8>
(8) Consists solely of immediately exercisable options and warrants to
purchase Common Stock.
</F8>
<F9>
(9) Includes immediately exercisable options to purchase 200,000
shares of Common Stock.
</F9>
<F10>
(10) Consists solely of immediately exercisable warrants to purchase
Common Stock.
</F10>
<F11>
(11) Consists of shares of Common Stock held by Mr. Frimmer as
custodian for Melanie L. Frimmer.
</F11>
<F12>
(12) Includes options and warrants to purchase 67,414 shares of Common
Stock.
</F12>
<F13>
(13) Includes options and warrants to purchase 125,000 shares of Common
Stock.
</F13>
<F14>
(14) 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.
</F14>
<F15>
(15) Includes options and warrants to purchase 42,791 shares of Common
Stock.
</F15>
<F16>
(16) Includes options and warrants to purchase 199,726 shares of Common
Stock.
</F16>
<F17>
(17) Includes 1,500 shares of Common Stock held by Mr. Schwartz as
joint tenant with Janice L. Bredt and options and warrants to
purchase 296,630 shares of Common Stock.
</F17>
<F18>
(18) Includes options and warrants to purchase 228,643 shares of Common
Stock.
</F18>
<F19>
(19) Includes options and warrants to purchase 70,000 shares of Common
Stock.
</F19>
</FN>
</TABLE>
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 November 6, 1999, unless otherwise extended by the Company in
its discretion.
9
<PAGE>
<PAGE>
EXPERTS
The consolidated financial statements and financial statement schedules of
the Company and its subsidiaries as of December 31, 1994 and 1995 and for the
three years ended December 31, 1995 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 Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pennsylvania.
10
<PAGE>
<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 2,448,042 SHARES
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 BERGER HOLDINGS, LTD.
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 COMMON STOCK
----
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
SELLING SHAREHOLDER
PROSPECTUS
--------------------
, 1996
--------
================================================ =====================
<PAGE>
<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.
Securities and Exchange Commission Registration Fee . . . $ 663
*Printing and Engraving Expenses. . . . . . . . . . . . . 500
*Accounting Fees and Expenses . . . . . . . . . . . . . . 1,500
*Legal Fees and Expenses. . . . . . . . . . . . . . . . . 5,000
*Blue Sky Qualification Fees and Expenses . . . . . . . . 2,500
*Transfer Agent and Registrar Fees and Expenses . . . . . -
*Miscellaneous. . . . . . . . . . . . . . . . . . . . . . 22,650
-------
TOTAL. . . . . . . . . . . . . . . . . . . . . $32,813
- -----------------
* 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>
<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).
Exhibit
Number Title Method of Filing
- ------- ----- -----------------
2.1 Debtor's Third Amended Incorporated by reference
Plan of Reorganization to Exhibit 1 of the Current
Report on Form 8-K filed on
March 30, 1993 (the "Form
8-K")
2.2 Third Amended Disclosure Incorporated by reference
Statement for Debtor's to Exhibit 2 of Form 8-K
Amended Joint Plan of
Reorganziation
2.3 Settlement Agreement by Incorporated by reference
and between the Registrant to Exhibit 4 of Form 8-K
and Meridian Bank
II-2
<PAGE>
<PAGE>
4.1 Speciman Certificate Incorporated by reference
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
Private Placement Warrant to Exhibit 4(g) of the
Form S-1, No. 1 Registration Statement on
filed June 16, 1993, (the
"1993 Form S-1")
4.3 Form of Consulting Warrant Incorporated by reference
by and between the Company to Exhibit 4(h)of the 1993
and Universal Solutions, Form S-1
Inc.
4.4 Form of 1993 Incorporated by reference
Private Placement Warrant to Exhibit 4.9 of the
No. 2 Registration Statement on
Form S-3, filed
January 21, 1993 (the
"1993 Form S-3")
4.5 Form of 1995 Incorporated by reference
Private Placement Warrant to Exhibit 4.5 of the
Registration Statement on
Form S-3, declared
effective as of January 2,
1996
5 Opinion of Wolf, Block, Filed Herewith
Schorr and Solis-Cohen
23.1 Consent of Goldenberg Filed Herewith
Rosenthal Friedlander, LLP
23.2 Consent of Wolf, Block, See Exhibit 5
Schorr and Solis-Cohen
- -------------------
* 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.
A. The undersigned registrant hereby undertakes:
II-3
<PAGE>
<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>
<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 5, 1996.
BERGER HOLDINGS, LTD.
By: JOSEPH F. WEIDERMAN
--------------------------------
Joseph F. Weiderman, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Theodore A. Schwartz and Joseph F. Weiderman, and each
of them, the undersigned's true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for the undersigned and in the
undersigned's name, place and stead, in any and all capacities, to sign any and
all amendments to this Registration Statement (including, without limitation,
post-effective amendments to this Registration Statement), and to file the
same, with all exhibits thereto, and other 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 requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their 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, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
THEODORE A. SCHWARTZ
- ------------------------ Chief Executive Officer November 5, 1996
Theodore A. Schwartz and Chairman of the Board
(Principal Executive Officer)
PAUL L. SPIESE, III
- ----------------------- Director November 5, 1996
Paul L. Spiese, III Vice President
JOSEPH F. WEIDERMAN
- ----------------------- President, Chief Operating November 5, 1996
Joseph F. Weiderman Officer and Director
- ----------------------- Director November , 1996
Larry Falcon --
- ----------------------- Director November , 1996
Jacob I. Haft, M.D. --
- ----------------------- Director November , 1996
Jeffrey I. Schocket --
<PAGE>
<PAGE>
Signature Title Date
- --------- ----- ----
DR. IRVING KRAUT
- ----------------------- Director November 5, 1996
Dr. Irving Kraut
FRANCIS E. WELLOCK, JR.
- ----------------------- Chief Financial Officer November 5, 1996
Francis E. Wellock, Jr. (Principal Financial
and Accounting Officer)
Exhibit 5
LAW OFFICES
WOLF, BLOCK, SCHORR AND SOLIS-COHEN
TWELFTH FLOOR PACKARD BUILDING
S.E. CORNER 15TH AND CHESTNUT STREETS
PHILADELPHIA, PA 19102-2678
(215) 977-2000
FACSIMILE: (215) 977-2334
November 5, 1996
Berger Holdings, Ltd.
805 Pennsylvania Boulevard
Feasterville, PA 19053
Re: Registration Statement on Form S-3
----------------------------------
Gentlemen:
As counsel for Berger Holdings, Ltd., a Pennsylvania corporation
(the "Company"), we have assisted in the preparation of a Registration
Statement on Form S-3 (the "Registration Statement") in connection with
the proposed offer and sale, from time to time, of up to 1,061,000 shares
of the Common Stock, $0.01 par value (the "Common Shares") of the Company
by certain holders (the "Selling Shareholders") of the Common Shares,
options to purchase the Common Shares (the "Options") and warrants to
purchase the Common Shares (the "Warrants").
In connection therewith, we have examined the originals or copies,
certified or otherwise identified to our satisfaction, of such records,
instruments, documents and matters of law as we have deemed necessary or
appropriate for the purpose of rendering this opinion.
In our examination of documents, instruments and other papers, we
have assumed the genuineness of all signatures on original and certified
documents and the conformity to original and certified documents of all
copies submitted to us as conformed, photostatic or other copies. As to
matters of fact which have not been independently established, we have
relied upon representations of officers of the Company.
Based upon the foregoing, it is our opinion that:
The currently outstanding Common Shares held by the Selling
Shareholders have been legally issued and are fully paid and non-assessable.
When and if Common Shares issuable upon exercise of the
Options and Warrants held by the Selling Shareholders are issued in
accordance with the terms of the Options or Warrants, as applicable, such
Common Shares will be legally issued, fully paid and nonassessable.
We hereby consent to the reference to our firm in the Registration
Statement under the Prospectus caption "Legal Opinions" and to the
inclusion of this opinion as an exhibit to the Registration Statement. In
giving this consent, we do not hereby admit that we come within the
category of persons <PAGE>
<PAGE>
whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules or regulations thereunder.
Very truly yours,
WOLF, BLOCK, SCHORR AND SOLIS-COHEN
Wolf, Block, Schorr and Solis-Cohen
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Berger Holdings, Ltd. and Subsidiaries
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 28, 1996, on our audit of
the consolidated financial statements and financial statement
schedules of the Company and its Subsidiaries as of December 31,
1995 and 1994 and for the three 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, 1995 and reference to this firm under the
caption "Experts" in such Registration Statement.
GOLDENBERG ROSENTHAL FRIEDLANDER, LLP
Goldenberg Rosenthal Friedlander, LLP
Philadelphia, Pennsylvania
November 5, 1996
