<PAGE>
Registration No. 333 - 22515
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO
REGISTRATION STATEMENT
ON FORM S-3
UNDER
THE SECURITIES ACT OF 1933*
MARK SOLUTIONS, INC.
- -------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Delaware 11-2864481
- -------------- ----------------------
(State of (I.R.S. Employer
Incorporation) Identification Number)
1515 Broad Street Parkway Technical Center
Bloomfield, New Jersey 07003
(201)893-0500
-------------------------------------------------
(Address, including Zip Code and Telephone Number
of Registrant's Principal Executive Offices)
Carl Coppola, President
Mark Solutions, Inc.
1515 Broad Street
Bloomfield, New Jersey 07003
(201) 893-0500
------------------------------------------------------------------------------
(Name, Address, including Zip Code, and Telephone Number of Agent for Service)
A copy to:
Timothy J. McCartney, Esq.
9 Elsa Way
Richboro, Pennsylvania 18954
(215) 396-7156
Approximate date of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [XX]
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. [ ] ________________.
[COVER PAGE 1 OF 2 PAGES]
<PAGE>
If this Form is a post effective amendment filed pursuant to Rule 462(c) 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 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 Each Amount to be Proposed Maximum Proposed Maximum Amount of
Class of Securities Registered(1) Offering Price Aggregate of Registration Fee (1)
to be Registered Per Share (2) Offering Price(2)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 2,000,000 $ 2.00 $4,000,000 $ 1,212.12
==============================================================================================================
</TABLE>
(1) Also registered hereby pursuant to Rule 416 are such additional
indeterminate shares of Common Stock or other securities as may become issuable
by reason of stock splits or other adjustments pursuant to antidilution
provisions.
(2) Estimated solely for purposes of calculating registration fee pursuant to
Rule 457 based upon the last sales price as reported on NASDAQ within the prior
five days.
(*) This Registration Statement also constitutes post-effective Amendment No. 1
to the Registrant's Registration Statement on Form S-3 (File No. 333-11423)
declared effective by the Securities and Exchange Commission on October 10,
1996. The Registrant previously registered 1,000,000 shares of Common Stock and
paid a registration fee of $ 1,810.34.
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.
[COVER PAGE 2 OF 2 PAGES]
<PAGE>
MARK SOLUTIONS, INC.
CROSS REFERENCE SHEET
Between Items in Part I of Form S-3 and Prospectus
Registration Statement
Item Number and Caption Location in Prospectus
----------------------- ----------------------
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus...... Facing Page; Cross Reference
Sheet; Outside Front Cover of
Prospectus
2. Inside Front and Outside Back Cover
Page of Prospectus.......................... Available Information; Table
of Contents
3. Summary Information, Risk Factors, Ratio
of Earnings to Fixed Charges................ Summary Selected Financial
Data; Risk Factors
4. Use of Proceeds............................. Not Applicable
5. Determination of Offering Price............. Not Applicable
6. Dilution.................................... Not Applicable
7. Selling Security Holders.................... Selling Shareholders
8. Plan of Distribution........................ Plan of Distribution
9. Description of Securities to be Registered.. Not Applicable
10. Interests of Named Experts and Counsel...... Legal Matters; Experts
11. Material Changes ........................... Not Applicable
12. Incorporation of Certain Information
by Reference ............................... Incorporation of Certain
Documents by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities................................. Not Applicable
<PAGE>
Prospectus
MARK SOLUTIONS, INC.
2,138,166 Shares of Common Stock
This Prospectus relates to the sale of up to 2,138,166 shares of common
stock, $ .01 par value (the "Common Stock") of Mark Solutions, Inc. ("Mark")
which are issuable upon conversion of Mark's $ 2,200,000 Principal Amount 7%
Convertible Debentures (the "Debentures") or paid as interest on the
Debentures. As of the date of this Prospectus, $ 441,296 principal amount of
the Debentures remain outstanding. The Debentures were issued by Mark in a
private placement in August 1996. The Debentures are convertible, in whole or
in part, at the option of the holder, into shares of Common Stock at a
conversion price which is the lesser of (i) $ 1.38 or (ii) 80% of the average
of the closing bid price on the five trading days immediately proceeding the
date(s) of conversion. Interest is payable in cash or Common Stock, based on
conversion formula stated above, at Mark's option. Mark is obligated to keep
the registration statement (the "Registration Statement"), of which this
Prospectus forms a part, effective until August 22, 1999.
All of the shares of Common Stock offered hereby (the "Shares") are being
sold for the account of and by the person(s) named under the caption "Selling
Shareholders". Mark is bearing the cost related to the Registration Statement.
The Selling Shareholders have advised Mark that the Shares may be sold by the
Selling Shareholders or its pledgees, donees, transferees or other successors
in interest from time to time in the open market or in privately negotiated
transactions at prices satisfactory to the seller. See "Plan of Distribution".
Mark will receive no proceeds from the sale of the Shares.
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. See "Risk Factors".
The Common Stock is traded on NASDAQ Small Cap Market under the symbol
"MCSI". On June **, 1997, the closing sales price of the Common Stock was $
*-*/* per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-------------------------------------------------
The date of this Prospectus is June **, 1997.
-1-
<PAGE>
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given or
made, such information or representations should not be relied upon as having
been authorized. This Prospectus does not constitute an offer to sell, or
solicitation of an offer to purchase, the securities offered by this
Prospectus, in any jurisdiction to or from any person to whom or from whom it
is unlawful to make such offer or solicitation of an offer in such
jurisdiction. Neither the delivery of this Prospectus nor any distribution of
the securities being offered pursuant to this Prospectus shall, under any
circumstances, create an implication that there has been no change in the
information set forth herein since the date of this Prospectus.
AVAILABLE INFORMATION
Mark has filed with the Commission a Registration Statement on Form S-3
(together with all amendments and exhibits thereto the "Registration
Statement") under the Securities Act with respect to the Common Stock offered
hereby. As permitted by the rules and regulations of the Commission, this
Prospectus omits certain information contained in the Registration Statement.
For such information, reference is made to the Registration Statement and the
exhibits thereto. Mark is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith Mark files reports and other information with the
Commission.
The Registration Statement, reports and other information filed by Mark
with the Commission 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 at 7 World
Trade Center, Suite 1300, New York, New York 10048, 1401 Brickell Avenue, Suite
200, Miami, Florida 33131, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, 1801 California Street, Suite 4800, Denver Colorado 80202 and
5670 Wilshire Boulevard, 11th Floor, Los Angeles, California 90036. Copies of
such material also can be obtained from the Public Reference Section of the
Commission, Washington, D.C. 20549 at prescribed rates. In addition, the
Commission maintains an internet site (http:// www.sec.gov) that contains
reports, proxy statements and other information regarding Mark, which is an
electronic filer under Regulation S-T.
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by Mark (Commission File No.
0-17118) with the Commission pursuant to the Exchange Act are incorporated and
made a part of this Prospectus by reference:
(1) Mark's Annual Report on Form 10-K for the year ended June 30, 1996, as
amended;
(2) Mark's Quarterly Report on Form 10-Q for the period ended September 30,
1996;
(3) Mark's Quarterly Report on Form 10-Q for the period ended December 31,
1996, as amended;
(4) Mark's Quarterly Report on Form 10-Q for the period ended March 31, 1997,
as amended;
(5) Mark's Current Report on form 8-K dated May 28, 1996 as amended;
(6) The description of the Common Stock contained in the Registration
Statement on Form 8-A.
All documents filed by Mark pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering contemplated by his Prospectus shall be deemed to
be incorporated by reference into this Prospectus and to be a part hereof from
the date of filing such documents. Any statements contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed documents
which also is or is deemed to be incorporated by reference herein modified or
supersedes such earlier statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Mark undertakes to provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered, on
written or oral request of any such person, a copy of any or all of the
documents referred to above which have been or may be incorporated by reference
in the Prospectus, other than exhibits to such documents (unless such documents
are specifically incorporated by reference in such documents). Requests for
such copies should be directed to Ms. Cheryl Gomes, Mark Solutions, Inc., 1515
Broad Street, Bloomfield, New Jersey 07003, Telephone Number (201) 893-0500.
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<PAGE>
TABLE OF CONTENTS
Page
----
Available Information . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary Selected Financial Data . . . . . . . . . . . . . . . . . . 6
Risk Factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . 11
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
-4-
<PAGE>
THE COMPANY
Mark Solutions, Inc. ("Mark") is a Delaware corporation which operates
its various businesses through wholly-owned subsidiaries and a division.
Mark is engaged in the design, manufacture and/or installation of (i)
modular steel cells for housing of the general prison population as well as for
use as infectious disease isolation units for correctional institutions and
health care facilities, (ii) a treatment booth for communicable diseases and
(iii) diagnostic support and archiving computer systems marketed under the name
"IntraScan". In its marketing of modular steel products, Mark responds to
public bids and pursues joint ventures and affiliations with other companies to
solicit design, build and/or operate correctional facilities projects both
domestically and internationally.
Mark's modular cells meet or exceed all applicable building and safety
code requirements in the United States and can be manufactured and installed
more efficiently than traditional housing alternatives by virtue of lower labor
and construction costs and shorter installation time. Management also believes
that its prefabricated modular cell manufacturing process has other
applications such as temporary emergency housing and permanent shelters,
although no assurances can be given that such applications will be successfully
developed and marketed.
Management believes that continued nationwide judicial and legislative
emphasis on an expedient easing of the overcrowding conditions of correctional
institutions, as well as the increase in the demand for isolation and treatment
quarters for both correctional institutions and healthcare facilities, due to
the rise in communicable diseases such as tuberculosis and the HIV virus,
present a significant growth opportunity for Mark. However, there can be no
assurance that any such business will develop.
Mark was incorporated under the laws of the State of Delaware on September
29, 1986 under the name "Showcase Cosmetics, Inc." Mark's principal executive
office is located at Parkway Technical Center, 1515 Broad Street, Bloomfield,
New Jersey 07003 and its telephone number is (201) 893-0500.
-5-
<PAGE>
SUMMARY SELECTED FINANCIAL DATA
The following summary selected financial data is based upon financial
information incorporated herein and such summary information should be read in
conjunction with such financial statements and notes thereto.
Income Statement Data:
<TABLE>
<CAPTION>
Nine Months Ended
March 31 Fiscal Years Ended June 30
1997 1996 1996 1995 1994
---------------------------- ----------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues $3,276,578 $3,206,371 $3,454,615 $6,125,573 $3,183,073
Cost and Expenses 5,564,803 8,518,483 8,518,483 9,852,303 6,233,374
(Loss) From Continuing
Operations (2,998,801) (3,306,705) (5,110,559) (3,812,635) (3,144,510)
(Loss) From Discontinued
Operations - - - (104,503) (104,503) (1,377,438) (993,620)
Net Income (Loss) (2,998,801) (3,411,208) (5,215,062) (5,190,073) (4,138,130)
Earnings (Loss) per Share ($.21) ($.27) ($.41) ($.48) ($.47)
Weighted Average
Shares Outstanding 13,974,665 12,500,250 12,732,022 10,726,204 8,802,543
</TABLE>
Balance Sheet Data:
<TABLE>
<CAPTION>
At March 31 At June 30
1997 1996 1995 1994
---------- ------------------------------------------
<S> <C> <C> <C> <C>
Working Capital (Deficit) $1,362,231 $675,864 ($48,112) $216,635
Total Assets 4,839,033 3,083,763 3,978,383 4,953,651
Long-term Obligations 1,739,343 50,297 19,665 8,313
Total Liabilities 3,787,126 1,004,362 2,189,322 918,006
Stockholders' Equity 1,051,907 2,079,401 1,789,061 4,035,645
</TABLE>
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<PAGE>
RISK FACTORS
Prospective investors in the Common Stock should give careful
consideration to the following risks in making a decision concerning the
securities offered hereby.
1. Poor Financial Condition. Mark has experienced significant operating
losses and working capital and liquidity deficiencies over the past several
years. Mark had net losses of $ 5,215,062 and $ 5,190,073 for the fiscal years
ended June 30, 1996 and 1995. In addition, Mark had an accumulated deficit of $
22,316,660 at June 30, 1996. Mark has and will continue to experience such
financial difficulties in the foreseeable future absent significant increases
in the sale of modular cells, its principal product. Accordingly, based on past
operating results there can be no assurance that Mark will be able to operate
profitably. Mark's poor financial condition could adversely effect its ability
to raise additional working capital pursuant to private sales of its
securities.
2. Limited Market; Contracts for Modular Cells. Mark has derived
substantially all of its revenue from the sale of its modular cells and disease
containment units to correctional institutions and management believes that the
sale of these products will continue to represent the substantial majority of
Mark's operating revenues through September 30, 1997. The correctional
institution market presents substantial sales obstacles. Unless the project is
very small, correctional institutions, like other government agencies, must
submit proposed projects to public bidding by prospective suppliers. The
purchasing agency is obligated to select from among the bidders based on
objective criteria. On the other hand, private purchasers generally do not
require bidding and a vendor such as Mark would have the opportunity to
convince the purchaser to deal with Mark to the exclusion of competitors.
Mark continually bids on and solicits joint venture opportunities
regarding construction projects utilizing its modular steel cell products. At
present, Mark is not participating in any projects under a joint venture
format. Mark currently has contracts for it modular cells aggregating
approximately $ 4,300,000 in revenue for the period beginning January 1, 1997
to June 30, 1997.
3. Working Capital Requirements. The ultimate success of Mark may depend
upon its ability to raise additional equity or obtain debt financing until it
can improve its operating results. To date Mark has primarily met its working
capital requirements by
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<PAGE>
the private issuance of its securities, including the Debentures. Absent
proceeds from the exercise of outstanding warrants and improvement in the
operations of Mark, management believes that its present available working
capital will be utilized by July 31, 1997. In the event Mark must seek other
sources of working capital, it will most likely have to rely on additional
private sales of its equity or debt securities. While Mark has been successful
in raising working capital through private sources in the past, no assurance
can be given that such sources will be available, or, if available, on terms
satisfactory to Mark. Mark will initially look to the exercise of outstanding
warrants to the extent that additional working capital is necessary.
4. Significant Contract. Effective March 15, 1996, Mark received a
three-year contract for modular cells from the State of New York. Management
anticipates that this contract will generate revenues of approximately $
50,000,000 over the three years ending December 31, 1999, which would represent
Mark's largest contract to date. The agreement has a stated estimate of 2,455
cells, however no minimum volume is guaranteed. In addition, the State of New
York reserves the right to renegotiate the stated contract prices or solicit
third party bids for any single order of 700 or more cells. Accordingly, no
assurances can be given that Mark will realize the revenues estimated by
management.
5. Competition. The construction industry in general and the government
construction industry in particular are highly competitive. Due to the use of
concrete and other traditional construction methods in the substantial majority
(approximately 90%) of correctional facility construction, Mark competes for
market share with a number of major construction companies. Such competition is
not with respect to any particular project, but in efforts to convince the
purchasing agency to utilize steel cell construction rather than traditional
methods. With respect to those projects which incorporate modular steel cell
specifications in its design criteria, other companies are beginning to enter
the field. Some of these companies have greater financial resources than Mark.
In addition, a number of manufacturers which have greater financial and
marketing resources than Mark, and which currently produce sheet metal
products, could ultimately enter the modular cell business in competition with
Mark. Accordingly, there can be no assurance that Mark will be able to
successfully compete in the market for modular steel cells, which are Mark's
most significant product.
6. Dependence on Key Person. Mark is dependent upon the continued services
of Carl C. Coppola, its Chairman of the Board, President and Chief Executive
Officer. The loss of Mr. Coppola could have a material adverse effect on Mark.
Mark is the
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<PAGE>
beneficiary of a term life insurance policy of $1,000,000 on the
life of Mr. Coppola.
7. Bonding Qualifications. In connection with some government construction
projects, Mark is required to provide performance and completion bonds as a
condition to submission or participation in a bid. Due to Mark's financial
condition, it has generally been unable to obtain bonds without the assistance
and guarantee of third parties, including Mark's president and or another
business entity owned by an outside director. To date Mark has not limited its
bidding activity nor lost any projects due to its limited bonding capacity.
However, as Mark is awarded multiple projects, the inability to obtain bonds
may limit the number of additional projects Mark can pursue and have a material
adverse effect on the operations of Mark.
8. Recent Trading Prices; Nasdaq Listing Maintenance Requirements. Since
February 27, 1997 Mark's Common Stock has traded below $ 2.00 per share,
including trades at below $ 1.00 per share. On June **, 1997 the closing sales
price of the Common Stock was $ 1-*/* per share. Mark's Common Stock trades on
the Nasdaq Small Cap Market tier of the Nasdaq Stock Market. To be eligible for
continued listing of its Common Stock, Mark is required to maintain a bid price
of $ 1.00 per share. If Mark fails to maintain its Nasdaq Small Cap Market
listing, the liquidity of the Common Stock would be adversely affected. In
addition, Mark's ability to raise additional working capital through sales of
its equity securities would also be adversely affected.
9. Potential Application of Exchange Act "Penny Stock" Rules. In the event
Mark fails to maintain its Nasdaq Small Cap Market listing due to the failure
to meet the minimum bid price requirements, Mark's Common Stock could be a
"penny stock" as that term is defined in the Exchange Act. Brokers effecting
transactions in a "penny stock" are subject to additional customer disclosure
and record keeping obligations including disclosure of the risks associated
with low price stocks, stock quote information and broker compensation. In
addition, brokers effecting transactions in a "penny stock" are also subject to
addition sales practice requirements under Rule 15g-9 of the Exchange Act
including making inquiries into the suitability of "penny stock" investments
for each customer or obtaining a prior written agreement for the specific
"penny stock" purchase. Because of these additional obligations, certain
brokers will not effect transactions in "penny stocks", which could have an
adverse effect on the liquidity of the security and make selling it more
difficult.
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<PAGE>
10. Impact of Conversion Price of Debentures on Trading Prices of Common
Stock. Due to the right of the holder to convert the Debentures into shares of
Common Stock at the discounted rate of 80% of the current bid price on the date
of conversion, rises in the trading price of the Common Stock may met
resistance due to the potential sale of the underlying Common Stock which
reflect the reduced purchase price resulting from the conversion rate. On
January 21, 1997, Mark issued additional convertible debentures in the
principal amount of $ 750,000 which provide for the same conversion rate. On
June 3, 1997 Mark issued additional convertible debentures in the principal
amount of $ 1,250,000 which may be converted into shares of Common Stock at $
.80 per share. These debentures may similarly affect the trading price of the
Common Stock.
11. Subcontractor Credit Risk. Mark's manufacturing operations are limited
to the steel modular cell for use as one component of correctional institution
projects. Therefore, Mark may not be the prime contractor on a project, but a
subcontractor. Under these circumstances, Mark usually will not have the direct
financial obligation of the government agency or other purchaser, but will be
primarily relying on the prime contractor regarding payment for its products.
This presents a greater credit risk to Mark.
12. Related Party Transactions. Mark has been a party to business
transactions with certain officers, Directors or their affiliates. Mark intends
to purchase goods and services in the ordinary course of business from related
parties and may determine based upon circumstances at that time to engage in
additional transactions with officers, Directors, principal shareholders or
affiliates. While Mark believes these transactions have been on terms no less
favorable than could be obtained from unaffiliated parties, such situations
present potential conflicts of interest.
13. No Dividends. Mark has never paid a cash dividend on its Common Stock.
Mark does not intend to pay in the foreseeable future, cash dividends on the
Common Stock but intends to retain its earnings to finance growth.
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<PAGE>
SELLING SHAREHOLDERS
The 2,138,166 shares of Common Stock offered hereby are being offered for
the account of the following person(s). The information regarding such
person(s) and beneficial ownership of Common Stock has been provided by the
Selling Shareholders.
<TABLE>
<CAPTION>
Shares of Shares of
Common Stock Shares of Common Stock
Beneficially Common Stock Owned After
Owned(1) Offered Offering(1)
------------ ------------ ------------
Name
- ----
<S> <C> <C> <C>
Southbrook International
Investments, Ltd. 319,779 319,779 0
</TABLE>
- -------------------
(1) Assumes payment of interest on Debentures in cash and conversion of the
entire principal amount of Debentures at the maximum conversion price of $ 1.38
per share.
PLAN OF DISTRIBUTION
The sale of shares of Common Stock by the Selling Shareholders may be
effected from time to time in transactions on one or more exchanges or in the
over-the-counter market, or otherwise in negotiated transactions, through the
timing of options on the shares or through a combination of such methods of
sale, at fixed prices, which may be charged at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Shareholders may effect such transactions by
selling the shares of Common Stock in an exchange distribution in accordance
with the rules of such exchange to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions
or commissions from the Selling Shareholders and/or the purchasers of the
shares of Common Stock for which such broker-dealer may act as agent or to whom
they sell as principal, or both (which compensation as to a particular
broker-dealer may be in excess of customary compensation). The Selling
Shareholders and any broker-dealers who act in connection with the sale of the
shares of Common Stock hereunder may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and profit on any sale of the shares of Common Stock as principal might be
deemed to be underwriting discounts and commissions under the Securities Act.
-11-
<PAGE>
In addition any securities covered by the Prospectus which qualify for
sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
the Prospectus, as supplemented. From time to time the Selling Shareholders may
engage in short sales, short sales against the box, puts and calls and other
transactions in securities of Mark or derivatives thereof, and may sell and
deliver the shares in connection therewith.
From time to time Selling Shareholders may pledge their shares pursuant to
the margin provisions of their respective customer agreements with their
respective brokers. Upon a default by a Selling Shareholder, the broker may
offer and sell the pledged shares of the Common Stock from time to time.
LEGAL MATTERS
Timothy J. McCartney, Esq. has acted as counsel for Mark and has rendered
an opinion on the validity of the shares of Common Stock to be issued upon
conversion of the Debentures.
EXPERTS
Mark's consolidated balance sheets as of June 30, 1996 and 1995 and the
consolidated statements of operations, stockholders' equity and cash flows for
each of the three years in the period ended June 30, 1996 incorporated by
reference in this Prospectus, have been incorporated herein in reliance on the
report of Sax Macy Fromm & Co., P.C., independent certified public accountants,
given on the authority of that firm as experts in accounting and auditing.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN FORM S-3 PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a list of the estimated expenses to be incurred by the
Registrant in connection with the issuance and distribution of the securities
being registered hereby, other than underwriting discounts and commissions.
Item Amount
---- ------
Registration Fee . . . . . . . . . . . . . . . . . $ 1,212
Accountants' Fees and Expenses . . . . . . . . . . 2,000
Blue Sky Filing Fees and Expenses . . . . . . . . . 1,000
Legal Fees and Expenses . . . . . . . . . . . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . 2,000
Total . . . . . . . . . . . . . . . . . . $ 11,212
========
Item 15. Indemnification of Directors and Officers.
Reference is made to Article Seven of the Certificate of
Incorporation of the Registrant and Section 145 of the Delaware General
Corporation Law.
Article Seventh of the Certificate of Incorporation of the Registrant
provides for indemnification to the full extent permitted by Delaware law of
all persons whom it shall have the power to indemnify thereunder. Section 145
of the General Corporation Law of the State of Delaware ("GCL") contains
provisions entitling directors and officers of the Registrant to
indemnification from judgments, fines, amounts paid in settlement and
reasonable expenses, including attorney's fees, as the result of being or
having been a director or officer of the Registrant provided said officers or
directors acted in good faith. GCL Section 145 provides broad powers of
indemnification of directors and officers by their corporation. For example,
the board of directors, the shareholders, or independent legal counsel in some
circumstances may authorize the corporation to indemnify any officer or
director again expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonable incurred by him in
connection with any "threatened, pending or completed action, suit or
proceeding other than an action by or in the right of the corporation, whether
civil, criminal, administrative or investigative - by reason of the fact that
he is or was a director or officer of the corporation, if such
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director or officer 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 action or proceeding, had no reasonable cause to
believe his conduct was unlawful". With respect to any threatened, pending or
completed action or suit by or in the right of a Delaware corporation, the
corporation may in like manner indemnify any officer or director against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such personal
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation, but only if and to the extent that
the Court of Chancery or the court in which the action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Should a director or officer defend litigation arising out of his office
and be successful on the merits or otherwise in defense of the action, GCL
Section 145 provides that such officer or director shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Finally, a corporation organized under the GCL shall have power to
purchase and maintain insurance on behalf of any director or officer against
any liability asserted against him and incurred by him in such capacity or
arising out of his status as an officer or a director, whether or not the
corporation would have the power to indemnify him against such liability under
the before described provisions of Section 145 of the GCL.
Item 16. Exhibits.
The exhibits to this Registration Statement are listed in the Exhibit
Index hereto and are incorporated herein by reference.
Item 17. Undertakings.
(A) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons, if any, of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the Securities and Exchange
Commission,
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such indemnification is against public 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 any such director, officer or controlling person 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 of
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.
(B) With respect to the common stock underlying the Warrants,
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;
(i) To include any prospectus required by Section 10
(a) (3) of the Securities Act of 1933;
(ii) To 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;
(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.
(4) The undersigned Registrant hereby undertakes to supply by
means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
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<PAGE>
POWER OF ATTORNEY
Mark Solutions, Inc., and each of the undersigned do hereby appoint Carl
Coppola, its or their true and lawful attorney to execute on behalf of Mark
Solutions, Inc. and the undersigned any and all amendments (including
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and that it has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Bloomfield, State of New Jersey, on June 25,
1997.
MARK SOLUTIONS, INC.
By: /s/ Carl Coppola
------------------------
(Carl Coppola, Chief
Executive Officer and
President)
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Carl Coppola Chief Executive Officer June 25, 1997
- ---------------------- President and Director
(Carl Coppola) (Principal Executive
Officer),Principal
Financial and
Accounting Officer
/s/ Richard Branca Director June 25, 1997
- ----------------------
(Richard Branca)
/s/ Ronald E. Olszowy Director June 25, 1997
- ----------------------
(Ronald E. Olszowy)
/s/ William Westerhoff Director June 25, 1997
- ----------------------
(William Westerhoff)
/s/ Michael Nafash Director June 25, 1997
- ----------------------
(Michael Nafash)
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<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page No.if
Number Description applicable
- ------- ----------- ----------
2. a) -- Agreement and Plan of Reorganization
dated December 23, 1992, as amended,
between Mark, Showcase Cosmetics,
Inc. and Mark Acquisition Corp.
(Incorporated by reference to Exhibit
I to Mark's Proxy Statement/Prospectus,
under its former name "Showcase
Cosmetics, Inc.", dated October 8, 1993
to Form S-4 Registration Statement
[File No. 33-61176], referred to
herein as "Mark's Form S-4").
b) -- Stock Purchase Agreement between Mark
and Ian Baverstock, Jonathan Newth,
David Payne and Joanna Tubbs dated
April 5, 1996. (Incorporated by
reference to Exhibit 1 to Mark's
Current Report on Form 8-K - Date
Of Report May 28, 1996, referred to
herein as " Mark's Form 8-K").
c) -- Stock Purchase Agreement between
Mark and Christopher Cummins and
Moira Addington dated April 24,
1996. (Incorporated by reference
to Exhibit 2 to Mark's Form 8-K).
3. a) -- Certificate of Incorporation,
as amended (Incorporated by
reference to Exhibit 3.a) to
Mark's Form 10-K for the fiscal
year ended June 30, 1994)
b) -- By-laws (Incorporated by
reference to Showcase Exhibit
3 b) to Mark's Form S-4)
4. a) -- Specimen Stock Certificate
(Incorporated by reference to Mark
Exhibit 4 a) to Mark's Form S-4)
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b) -- Form of Warrant Certificate
(Incorporated by reference to Mark
Exhibit 4 b) to Mark's Form S-4)
5. Opinion of Timothy J. McCartney, Esq.
(Previously filed)
23. a) -- Consent of Sax Macy Fromm & Co., P.C.
(included on page II-7)
b) -- Consent of Timothy J. McCartney,
Esq. (included in Exhibit 5)
24. Power of Attorney (included on page
II-4)
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<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated September 12, 1996 (except for Note
1, as to which date is September 19, 1996), on our audits of the consolidated
financial statements of Mark Solutions, Inc.'s ("Mark") as of June 30, 1996 and
1995 and for the years ended June 30, 1996, 1995 and 1994 appearing in Mark's
Annual Report on Form 10-K for the year ended June 30, 1996. We also consent to
the reference to us under the heading "Experts" in the Prospectus which is part
of the Registration Statement.
Sax Macy Fromm & Co., P.C.
Certified Public Accountants
Clifton, New Jersey
June 25, 1997
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