<PAGE>
Registration No. 333 - *****
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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]
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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 1,782,500 $2.25 $4,010,625 $1,215.41
====================================================================================================
</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.
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]
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MARK SOLUTIONS, INC.
CROSS REFERENCE SHEET
Between Items in Part I of Form S-3 and Prospectus
<TABLE>
<CAPTION>
Registration Statement
Item Number and Caption Location in Prospectus
----------------------- ----------------------
<S> <C>
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
</TABLE>
<PAGE>
Prospectus
MARK SOLUTIONS, INC.
1,782,500 Shares of Common Stock
This Prospectus relates to the sale of up to 1,782,500 shares of common
stock, $ .01 par value (the "Common Stock") of Mark Solutions, Inc. ("Mark")
which are issuable upon conversion of Mark's $ 1,250,000 Principal Amount 7%
Convertible Debentures (the "Debentures") or paid as interest on the Debentures.
As of the date of this Prospectus, $ 1,250,000 principal amount of the
Debentures remain outstanding. The Debentures were issued by Mark in a private
placement in June 1997. The Debentures are convertible, in whole or in part, at
the option of the holder, into shares of Common Stock at a conversion price of
$ .80 per share. 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 June 2, 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 July **, 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 July **, 1997.
<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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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.
3
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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
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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
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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.
<TABLE>
<CAPTION>
Income Statement Data:
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
<CAPTION>
Balance Sheet Data:
At June 30
At March 31 --------------------------------------
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>
6
<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 July 31, 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
7
<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
8
<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. From
February 27, 1997 to June 20, 1997, Mark's Common Stock traded below $ 2.00 per
share, including trades at below $ 1.00 per share. On July **, 1997 the closing
sales price of the Common Stock was $ 2-*/* 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.
9
<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 per share, 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 a
conversion rate of the average bid price of the five trading days prior to the
date of conversion. On June 30, 1997 Mark issued additional convertible
debentures in the principal amount of $ 300,000 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.
10
<PAGE>
SELLING SHAREHOLDERS
The 1,782,500 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.
Shares of Shares of
Common Stock Shares of Common Stock
Beneficially Common Stock Owned After
Owned(1)(2) Offered Offering(1)(2)
------------- ------------ ---------------
Name
- ------------------------
Marquise LLC 1,562,500 1,562,500 0
- ------------------------
(1) Assumes payment of interest on Debentures in cash and conversion of the
entire principal amount of Debentures at the conversion price of $ .80
per share.
(2) Excludes 150,000 shares of Common stock beneficially owned by members
of Marquise LLC or affiliated investment companies.
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.
12
<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 . . . . . . . . . . . . . . . . . $ 1,215
Accountants' Fees and Expenses . . . . . . . . . . 2,000
Blue Sky Filing Fees and Expenses . . . . . . . . 1,000
Legal Fees and Expenses . . . . . . . . . . . . . 3,000
Miscellaneous . . . . . . . . . . . . . . . . . . 2,000
Total . . . . . . . . . . . . . . . . . . $ 9,215
========
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
II-1
<PAGE>
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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<PAGE>
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 July 18,
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 July 18, 1997
- ---------------------- President and Director
(Carl Coppola) (Principal Executive
Officer),Principal
Financial and
Accounting Officer
/s/ Richard Branca Director July 18, 1997
- ----------------------
(Richard Branca)
/s/ Ronald E. Olszowy Director July 18, 1997
- ----------------------
(Ronald E. Olszowy)
/s/ William Westerhoff Director July 18, 1997
- ----------------------
(William Westerhoff)
/s/ Michael Nafash Director July 18, 1997
- ----------------------
(Michael Nafash)
II-4
<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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<PAGE>
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.
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>
TIMOTHY J.McCARTNEY*
Attorney-at-Law
9 Elsa Way
Richboro, Pennsylvania 18954
-------------
Telephone (215) 396-7156
Facsimile (215) 396-7157
* Member of N.Y. Bar
July 18, 1997
Mark Solutions, Inc.
1515 Broad Street
Bloomfield, New Jersey 07003
Gentlemen:
I have acted as counsel for Mark Solutions, Inc. (Mark") in connection
with the registration by Mark under the Securities Act of 1933, as amended (the
"Securities Act") of 1,782,500 shares of Mark Common Stock, $.01 par value (the
"Shares") (the "Registration Statement) and related Prospectus.
On the basis of such investigation as I have deemed necessary, I am of
the opinion that:
1. The Shares issuable under the Convertible Debentures have been
fully authorized and, when and if issued upon conversion of such Debentures,
will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my name under the caption "Legal
Matters" set forth in the Prospectus.
Very truly Yours,
Timothy J. McCartney
<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
July 18, 1997
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