As filed with the Securities and Exchange Commission on July 1, 1997
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|
DSB:429494.5
<PAGE>
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement 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. |_|
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
Title of Shares to be Aggregate Price Offering Registration
to be Registered Registered Per Unit(1) Price(1) Fee(1)
<S> <C> <C> <C> <C>
Common Stock 100,000 $3.50 $350,000 $1,155
====================== ====================== ====================== =================== =====================
<FN>
(1) 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 June 27, 1997 (as
reported on the Nasdaq SmallCap Market operated by the Nasdaq Stock Market, Inc.
("NASDAQ").
</FN>
</TABLE>
===============================================================================
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.
===============================================================================
DSB:429494.5
<PAGE>
SUBJECT TO COMPLETION
DATED JULY 1, 1997
SELLING SHAREHOLDER
PROSPECTUS
BERGER HOLDINGS, LTD.
Up to 100,000 Shares of Common Stock
For Sale by Selling Shareholders
This Prospectus concerns the offer and sale, from time to time, of up
to an aggregate of 100,000 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. See "Selling Shareholders and Related Information."
The Company's Common Stock is included for listing on the Nasdaq SmallCap Market
operated by the Nasdaq Stock Market, Inc. ("Nasdaq") under the symbol "BGRH." On
June 27, 1997, the average of the closing bid and the closing asked price for
the Company's Common Stock, as quoted on Nasdaq, was $3.50 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 July 1, 2000, whichever is earlier, unless otherwise
extended by the Company in its discretion based upon factors that are expected
to include primarily the number of Shares remaining unsold at the time and the
status of any material transactions that may then be pending.
All of the Shares are being registered by the Company for resale 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 6.
----------
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.
----------
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 state.
<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) $(2) $(1)
====================== ==== ==== ==== ====
Total(2)............... $(1) $(2) $(2) $(1)
======================= ==== ==== ==== ====
==================================== ================= ======================= ================= =====================
DSB:429494.5
<PAGE>
<FN>
(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 of issuance and distribution, in an
estimated amount of $6,455, other than any underwriting or
broker-dealer discounts or commissions, which will be paid by the
Selling Shareholders.
</FN>
</TABLE>
DSB:429494.5
-2-
<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 statements 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 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.
DSB:429494.5
-3-
<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, 1996.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(3) The Company's Current Report on Form 8-K dated February 20, 1997.
(4) 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, including any beneficial owner of such Common Stock, 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; (215) 355-1200.
DSB:429494.5
-4-
<PAGE>
THE COMPANY
The Company is a Pennsylvania corporation organized in 1979. Through
its subsidiary, Berger Bros. Company, the Company is principally engaged in the
manufacture and distribution of roof drainage products ("RDP") and solid vinyl
home siding ("SVHS") products.
The Company's RDP product line, consisting of gutters, downspouts, trim
coil and associated accessories and fittings, is manufactured by the Company in
its manufacturing facility in Feasterville, PA. The Company sells RDP through
its sales representatives and telemarketing principally to wholesale
distributors who sell directly to roofers and general contractors for use in the
repair and replacement of roof drainage systems in existing buildings, primarily
residential.
The Company's SVHS product line is produced under the name Graywood and
consists of solid vinyl home siding and associated accessories. Such products
are manufactured in the Company's Feasterville facility. Sales of SVHS products
are principally made to wholesale distributors and services accounts in the
modular home industry.
The Company's working capital loan, as described beginning on page 4 of
the Company's Annual Report on Form 10-K for the year ended December 31, 1995,
has been replaced by a new working capital loan, which differs from the previous
working capital loan only in that (i) the rate at which the new loan bears
interest has decreased from 3.50% over the prime rate under the old loan to
3.25% over the prime rate under the new loan, (ii) the amount of the required
monthly payment of principal has increased from $12,619 under the old loan to
$14,673 under the new loan, and (iii) the minimum amount on which the Company
must pay interest has decreased from $3,000,000 under the old loan to $2,750,000
under the new loan.
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 100,000 Shares to be sold by the
Selling Shareholders. See "Selling
Shareholders and Related Information."
Securities Outstanding (as of
June 20, 1997): Common Stock - 5,028,893
Common Stock Issuable Upon Exercise of
Outstanding Options and
Warrants - 1,327,748
Common Stock To Be Outstanding If All
Outstanding Options and Warrants Are
Exercised - 6,356,641
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.
DSB:429494.5
-5-
<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 carefully consider 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.
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.
Risk as to Liquidity of the Common Stock. 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
6,356,641. 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.
Authorization of Preferred Stock; Anti-takeover Provisions. The
Company's Articles of Incorporation authorize the issuance of up to 20,000,000
shares of Common Stock and 5,000,000 shares of "blank check" preferred stock.
The Board of Directors will have the power to determine the price and terms
under which any such preferred stock may be issued and to fix the terms and
designations thereof. The ability of the Board of Directors to issue one or more
series of preferred stock without shareholder approval, which preferred stock
may have liquidation, dividend, conversion, voting or other rights that could
adversely affect the voting power or other rights of holders of the Common Stock
(including those of purchasers in this offering). In the event of issuance, the
preferred stock could be utilized, under certain circumstances, as a method of
discouraging, delaying or preventing a change in control of the Company. There
can be no assurance that the Company will not do so in the future. Furthermore,
the Company is subject to certain applicable anti-takeover provisions of the
Pennsylvania Business Corporation Law of 1988, as amended. Such provisions, as
well at the Company's classified Board of Directors, could deter or delay
unsolicited changes in control of the Company by discouraging takeover attempts
that might result in a premium over the market price for the shares of 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.
Uncertainty as to Payment of 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.
DSB:429494.5
-6-
<PAGE>
Existence of Significant 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.
Dependence for Certain Raw Materials on Single Supplier; Risk of
Raw Material Price Fluctuations. 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 year ended December 31, 1996, the Company
reported income from operations of $1,769,384 and net income of $1,654,501.
There can be no assurance that the Company will have operating income or net
income in the future.
Risk that Company will be Unable to Identify Future Purchasers. 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.
Risk that Company Will be Unable to Maintain Adequate Inventory. During the
Company's bankruptcy proceedings, the Company was unable to maintain adequate
inventory levels due to cash constraints. There can be no assurance that the
Company will be able to continue to maintain such inventory levels in the
future.
Cyclical Nature of 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 in the Northeastern United States,and excessively hot and dry
summer weather, such as that experienced in 1995 in such area, usually causes a
reduction in the level of building activity in both the homebuilding and home
improvement markets.
DSB:429494.5
-7-
<PAGE>
SELLING SHAREHOLDERS
AND RELATED INFORMATION
The Shares which may be sold pursuant to this Prospectus consist of
issued and outstanding shares of Common Stock 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>
Pre-Offering (1) Post-Offering (1)(2)
---------------- --------------------
<CAPTION>
Total Total
Number of Number of
Shares Shares
Selling Beneficially Percentage Beneficially Percentage
Shareholders Owned of Class (3) Shares Owned of Class (3)
Offered
<S> <C> <C> <C> <C> <C>
Michael B. Burgess 7,000 * 7,000 0 *
Roger M. Cline 93,000 1.85% 93,000 0 *
- -----------------------------------
<FN>
* Indicates less than one percent.
(1) Beneficial ownership figures include all Common Stock represented by
shares of issued and outstanding Common Stock. Neither of the Selling
Shareholders holds any option, warrant, right or convertible security
exercisable for or convertible into Common Stock.
(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.
</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 July 1, 2000, unless otherwise extended by the Company in
its discretion.
DSB:429494.5
-8-
<PAGE>
EXPERTS
The consolidated financial statements and financial statement schedules
of the Company and its subsidiaries as of December 31, 1995 and 1996 and for the
three years ended December 31, 1996 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.
DSB:429494.5
-9-
<PAGE>
No person is authorized to give any information or to make any
representation not contained or incorporated by reference in this Prospectus,
and if given or made, such information or representation must not be relied upon
as having been authorized by the Company. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the facts set forth in this
Prospectus or in the affairs of the Company since the date hereof. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any securities other than those to which it relates or an offer to sell or a
solicitation of an offer to buy any securities in any jurisdiction in which such
offer or solicitation is not authorized, or in which the person making such
offer or solicitation is not qualified to do so, or to any person to whom it is
unlawful to make such an offer or solicitation in such jurisdiction.
TABLE OF CONTENTS
Page
Additional Information........................................ 3
Incorporation of Certain Information By Reference............. 4
The Company................................................... 5
The Offering.................................................. 5
Risk Factors.................................................. 6
Selling Shareholders and Related Information.................. 9
Experts....................................................... 10
Legal Matters................................................. 10
100,000 SHARES
BERGER HOLDINGS, LTD.
COMMON STOCK
SELLING SHAREHOLDER
PROSPECTUS
July 1, 1997
DSB:429494.5
<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... $ 1,155.00
*Printing and Engraving Expenses......................
*Accounting Fees and Expenses......................... 200.00
*Legal Fees and Expenses.............................. 5,000.00
*Blue Sky Qualification Fees and Expenses.............
*Transfer Agent and Registrar Fees and Expenses....... 100.00
*Miscellaneous........................................
TOTAL................................................ $6,455.00
- -----------------
* 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.
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
DSB:429494.5
II-1
<PAGE>
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 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
DSB:429494.5
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 (File No. 33-35898)
("Pre-Effective Amendment No. 1")
4.2 Form of 1993 Incorporated by reference to Exhibit 4(g)
Private Placement Warrant of the Registration Statement on Form S-1,
No. 1 filed June 16, 1993, (the "1993 Form S-1")
(File No. 33-64468)
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
Private Placement Warrant the Registration Statement on Form S-3, filed
No. 2 January 21, 1993 (the "1993 Form S-3")
(File No. 33-82152)
4.5 Form of 1995 Incorporated by reference to Exhibit 4.5 of
Private Placement Warrant 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, (Filed as part of Exhibit 5 hereto)
Schorr and Solis-Cohen
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.
DSB:429494.5
II-3
<PAGE>
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to (i) include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to
such information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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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 July 1, 1997.
BERGER HOLDINGS, LTD.
By:/S/Joseph F. Weiderman
Joseph F. Weiderman, President
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/S/Theodore A. Schwartz Chief Executive Officer July 1, 1997
- --------------------------------
Theodore A. Schwartz and Chairman of the Board
(Principal Executive Officer)
/S/Paul L. Spiese, III Vice President and July 1, 1997
- --------------------------------
Paul L. Spiese, III Director
/S/Joseph F. Weiderman President, Chief Operating July 1, 1997
- --------------------------------
Joseph F. Weiderman Officer and Director
Director July 1, 1997
Larry Falcon
Director July 1, 1997
Jacob I. Haft, M.D.
Director July 1, 1997
Jeffrey I. Schocket
/S/Dr. Irving Kraut Director July 1, 1997
- --------------------------------
Dr. Irving Kraut
/S/Francis E. Wellock, Jr. Chief Financial Officer (Principal July 1, 1997
- --------------------------------
Francis E. Wellock, Jr. Financial and Accounting
Officer)
</TABLE>
DSB:429494.5
<PAGE>
Berger Holdings, Ltd.
July 1, 1997
Page 1
Exhibit 5
LAW OFFICES
WOLF, BLOCK, SCHORR AND SOLIS-COHEN
TWELFTH FLOOR PACKARD BUILDING
111 SOUTH 15TH STREET
PHILADELPHIA, PA 19102-2678
(215) 977-2000
FACSIMILE: (215) 977-2334
July 1, 1997
Berger Holdings, Ltd.
805 Pennsylvania Boulevard
Feasterville, PA 19053
Re: Registration Statement on Form S-3
Gentlemen:
As counsel for Berger Holdings, 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 100,000 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.
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.
DSB:441247.1
<PAGE>
Berger Holdings, Ltd.
July 1, 1997
Page 2
In rendering this opinion, we have assumed that there will be
no changes in applicable law between the date of this opinion and any date of
issuance or delivery of the Common Shares.
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.
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
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules or regulations thereunder.
Very truly yours,
/S/WOLF, BLOCK, SCHORR AND SOLIS COHEN
WOLF, BLOCK, SCHORR AND SOLIS-COHEN
DSB:441247.1
<PAGE>
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, 1997, on our audit of the consolidated financial
statements and financial statement schedules of the Company and its Subsidiaries
as of December 31, 1996 and 1995 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, 1996 and reference to this firm under the caption "Experts" in such
Registration Statement.
/S/GOLDENBERG ROSENTHAL FRIEDLANDER, LLP
GOLDENBERG ROSENTHAL FRIEDLANDER LLP
Philadelphia, Pennsylvania
July 1, 1997
DSB:429494.5
<PAGE>
