Registration No. 333-32182
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
REGISTRATION STATEMENT
ON FORM S-3
UNDER
THE SECURITIES ACT OF 1933
MARK SOLUTIONS, INC.
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(Exact Name of Registrant as Specified in Charter)
Delaware 11-2864481
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(State of Incorporation) (IRS Employer Identification Number)
1515 Broad Street Parkway Technical Center
Bloomfield, New Jersey 07003
(973) 893-0500
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(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
(973) 893-0500
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(Name, Address, including Zip Code, and Telephone Number of Agent for Service)
<TABLE>
A copy to:
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================
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 311,500 $ 4.25 $1,323,875 $ 436.88(3)
=====================================================================================================
<FN>
(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(c) based upon the last sales price as reported on Nasdaq within the
prior five days.
(3) $415.85 previously paid
</FN>
</TABLE>
[COVER PAGE 1 OF 2 PAGES]
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. [ ] .
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 [ ].
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]
Prospectus
MARK SOLUTIONS, INC.
311,500 Shares of Common Stock
Mark Solutions, Inc. sells modular steel cells for correctional institution
construction and develops software applications under the name "IntraScan II"
for medical diagnostic, picture archiving and communication computer systems
(PACS).
This prospectus relates to the sale of 311,500 shares of common stock, $.01
par value of Mark. All of the shares are being sold by the person(s) listed in
the Section "Selling Shareholders" or by their transferees from time to time in
the open market or in privately negotiated transactions at prices acceptable to
the seller. See "Plan of Distribution".
This prospectus is part of a registration statement filed with the
Securities and Exchange Commission and may only be used for the resale of the
shares.
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. You should carefully
consider the "Risk Factors" beginning on page 5 when determining whether to
purchase any of the shares.
The common stock is traded on the Nasdaq SmallCap Market under the symbol
"MSOL". On March 24, 2000, the closing sales price of the common stock was $3.50
per share.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISSAPPROVED OF THESE SECURITIES OR PASSED ON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is March **, 2000.
<PAGE>
You should only rely on the information contained or incorporated by reference
in this prospectus. No one has been authorized to provide you with additional or
different information.
The shares are not being offered in any jurisdiction where an offer is not
permitted.
You should not assume the information in this prospectus or any supplement is
accurate as of any date other than the date of the document regardless of when
it is delivered. We are obligated to keep the information current through
supplements or other filings incorporated by reference.
TABLE OF CONTENTS
Page
----
Summary . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . 3
Recent Developments . . . . . . . . . . . . . . . . 4
Summary Selected Financial Data . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . 5
Selling Shareholders . . . . . . . . . . . . . . . . . . 10
Plan of Distribution . . . . . . . . . . . . . . . . . . 10
Legal Matters . . . . . . . . . . . . . . . . . . . . . . 11
Experts . . . . . . . . . . . . . . . . . . . . . . . . . 12
Forward Looking Statements . . . . . . . . . . . . . . . 12
Where You Can Find More Information . . . . . . . . . . . 13
2
<PAGE>
SUMMARY
This summary does not contain all the information provided by this
prospectus, some of which may be important to you. You should carefully read the
entire prospectus and incorporated documents before you decide to buy any
shares.
THE COMPANY
Mark designs, manufactures and installs modular steel cells for
correctional institution construction and develops software application under
the name "IntraScan II" for medical diagnostic, picture, archiving and
communication computer systems (PACS).
Mark markets its modular steel products through public bids and by pursuing
joint ventures and affiliations with other companies to solicit design, build
and/or operate correctional facilities projects both domestically and
internationally. Management believes that nationwide emphasis on easing
overcrowded conditions in correctional institutions presents a significant
growth opportunity; however, there can be no assurance of sustained business.
Mark's modular cells can be manufactured and installed more efficiently
than traditional housing alternatives by virtue of lower labor and construction
costs and shorter installation time.
Mark markets its IntraScan PACS software to radiology departments, large
healthcare facilities, hospitals and outpatient imaging group practices,
primarily through a marketing agreement with Data General Corporation.
Management believes that it can capitalize on the development of the domestic
and international PACS market; however, there can be no assurance that
significant business will develop.
The IntraScan PACS software interfaces with medical imaging devices to
store and recall images digitally from modalities including x-ray, CAT Scan,
MRI, ultrasound, computed radiography and nuclear medicine. The IntraScan PACS
software is "platform independent" allowing the software to operate with most
computer hardware and operating systems.
Mark is a Delaware corporation formed in 1986 under the name "Showcase
Cosmetics, Inc.". Mark's principal executive offices are located at 1515 Broad
Street, Bloomfield, New Jersey 07003 and its phone number is (973) 893-0500.
3
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RECENT DEVELOPMENTS
On January 6, 2000, Mark announced a $145,000 purchase order for IntraScan
PACS software for a South Korea installation. Mark also expects additional
revenues of $355,000 for providing installation, training and support services
for this installation over the next several months.
SUMMARY SELECTED FINANCIAL DATA
The following summary selected financial data is based upon financial
information appearing elsewhere herein and such summary information should be
read in conjunction with such financial statements and notes thereto.
<TABLE>
Income Statement Data:
(in thousands, except share and per share data)
<CAPTION>
Six Months Ended
December 31 Fiscal Years Ended June 30
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1999 1998 1999 1998 1997
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<S> <C> <C> <C> <C> <C>
Revenues $8,547 $ 2,936 $10,226 $ 12,922 $ 6,450
Cost and Expenses 8,415 3,314 12,695 14,913 10,192
Operating Income (Loss) 132 (378) (2,469) (1,991) (3,742)
Net Other (Expenses) (98) (86) (241) (397) (1,697)
Income Tax Benefit 150 --- 1,000 --- ---
Net Income (Loss) 184 (463) (1,710) (2,388) (5,439)
Earnings (Loss)Per Share $.03 ($.10) ($.36) ($.58) ($1.53)
Fully Diluted Income (Loss)
Per Share $.03 ($.10) ($.36) ($.58) ($1.53)
Weighted Average Shares
Outstanding 5,617,207 4,824,169 4,945,257 4,145,101 3,555,402
Weighted Average Fully
Diluted Shares
Outstanding 6,769,737 4,824,169 4,945,257 4,145,101 3,555,402
</TABLE>
<TABLE>
<CAPTION>
Balance Sheet Data:
(in thousands, except share and per share data)
At
December 31 At June 30
----------- --------------------------
1999 1999 1998 1997
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<S> <C> <C> <C> <C>
Working Capital $ 1,656 $ 1,032 $3,077 $ 923
Total Assets 9,054 9,070 5,174 5,432
Current Liabilities 5,478 5,832 999 3,245
Other Liabilities 194 505 1,060 2,340
Temporary Stockholders Equity --- --- 1,220 ---
Stockholders' Equity
(Deficiency) 3,381 2,733 1,895 (153)
</TABLE>
4
<PAGE>
RISK FACTORS
Before you make a decision to purchase any of the shares, you should
carefully read and consider the following risks.
Risks Associated With Operations
1. Mark Has and Will Continue to Experience Significant Operating Losses
Unless Sales of its Modular Cells and IntraScan PACS Software Significantly
Increase. Mark has significant operating losses and working capital and
liquidity deficiencies over the past several years. Mark had net losses of
$1,710,000 and $2,388,000 for the fiscal years ended June 30, 1999 and 1998. In
addition, Mark had an accumulated deficit of $31,917,000 at June 30, 1999. If
operating results do not improve significantly, the value of the common stock
would decrease and Mark's ability to raise additional working capital through
private placements of its securities would be negatively affected. Based on past
operating results there can be no assurance that Mark will be able to operate
profitably.
2. Mark Will Have to Sell Additional Securities to Meet its Working Capital
Requirements Unless Sales Significantly Increase. Mark's ultimate success may
depend upon its ability to raise additional working capital by selling equity
securities or obtaining debt financing until its operating results improve. The
sale of additional securities, if available at all, would result in dilution to
the holders of common stock. Mark has primarily met its working capital
requirements through private placements of its securities. Management believes
that its available working capital from existing contracts and from anticipated
contracts will be utilized by June 30, 2000. If Mark needs additional working
capital from sources other than its operations, it will most likely attempt to
privately sell additional equity or debt securities.
3. Mark Has Been Dependent on Sales of Modular Cells For the Majority of
its Revenues and This Market is Subject to Significant Fluctuations. The
substantial majority of Mark's revenues have been from the sale of a single
product, modular steel cells, including 83% for the fiscal year ended June 30,
1999. This market is subject to significant fluctuations resulting from
budgeting plans, lengthy approval process and other variables common with
construction of correctional facilities by Federal, State and local government
agencies. Management believes that modular steel cells will continue to
represent the majority of Mark's operating revenues for the next two fiscal
years.
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4. Mark Has Had Limited Sales of IntraScan PACS Software. For the three
fiscal years ended June 30, 1999, Mark's IntraScan PACS software revenues
totaled $2,103,000 and this business segment had an operating loss of $598,000
for the fiscal year ended June 30, 1999. Absent significant increases in sales
this business segment will continue to have a negative impact on Mark's results
of operation and cash flows. There can be no assurance that Mark will establish
a material market share and operate its IntraScan business profitably.
5. Bonding Qualification May Limit Mark's Modular Cell Bidding Activity.
Many government construction projects require vendors like Mark to provide
performance and completion bonds as a condition to participation in a
correctional facility bid. Due to Mark's financial condition, it has generally
been unable to obtain bonds without the assistance and guarantee of its
president. 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.
6. Mark Competes In Two Industries Which Are Highly Competitive- Government
Construction and Computer Software. Due to the use of concrete and other
traditional construction methods in the substantial majority (approximately 90%)
of correctional facilities construction, Mark competes for market share with a
number of major national and regional construction companies in its efforts to
convince the government agency to design the project utilizing steel cells
rather than traditional methods. With respect to those projects which
incorporate modular steel cells in its design criteria, Mark competes against
other regional metal fabricators, some of which have greater financial resources
than Mark. In addition, other sheet metal manufacturers which have greater
financial and marketing resources than Mark could enter the modular cell
business. Accordingly, there can be no assurance that Mark will be able to
successfully compete in the market for modular cells.
With regard to the IntraScan PACS software, other companies, including
several established film and medical equipment manufacturers, which are larger
and better financed than Mark, offer PACS systems and the related software. As
the PACS market develops, other large medical equipment, computer hardware or
software companies could enter the PACS business. Accordingly, there can be no
assurance that Mark will be able to successfully compete in the PACS market.
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<PAGE>
7. Rapid Technological Change in the Software Industry Could Make the
IntraScan PACS Software Obsolete Unless Mark Continues To Undertake Product
Development. The application software industry is subject to rapid technological
and industry standard changes that can quickly make existing products less
desirable or obsolete. Consequently, Mark is required to continually develop,
update and enhance its IntraScan PACS software applications to keep pace with
industry changes and to respond to the changing needs of customers. These
efforts require substantial capital investments. While Mark intends to allocate
the necessary resources to the extent available, there can be no assurance that
Mark will not experience difficulties in product development or that other
companies will not develop software applications which will achieve greater
acceptance in the PACS market.
8. Significant Contracts. For the fiscal year ended June 30, 1999,
$7,127,500 (69.7%) of Mark's revenue was attributable to three modular steel
cell projects. In addition, one of these projects is expected to represent
$2,600,000 in revenue for fiscal 2000.
9. Mark Has Entered Into Related Party Transactions Which Raise Potential
Conflicts of Interests. 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.
10. Mark is Dependent on Carl Coppola. Mark is dependent upon the continued
services of Carl 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 beneficiary of a term life insurance policy of $1,000,000
on the life of Mr. Coppola.
Risks Associated With Capital Stock
11. The Discounted Conversion Price of Outstanding Preferred Stock Could
Have a Negative Impact on the Trading Price of Common Stock. Mark currently has
outstanding 20,000 shares of Series D preferred stock which are convertible into
shares of common stock at a 30% discount to the market price at the time of
conversion. As a result:
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o Conversions of the preferred stock and subsequent sales of the common
stock may cause a downward trend in the trading price of the common stock
if the interest to buy the common stock by investors is weak.
o The lower the stock price at the time of conversion the more shares the
holder will receive which creates greater dilution to holders of common
stock.
o If the sale of the shares of common stock received through the partial
conversions of the preferred stock causes a decrease in the trading price
of the common stock, subsequent conversions would result in the issuance
of a greater number of shares.
o Any significant downward pressure on the trading price of the common
stock caused by the conversion and sales by the holders of the preferred
stock may encourage short sales by the holders and others causing further
pressure on the trading price.
Based on the closing bid price of Mark's common stock on March 24,2000 of
$3.50, 81,633 shares of common stock are issuable on conversion of the
outstanding preferred stock. Because the conversion of the preferred stock is
dependent on the price of the common stock at future dates, the actual number of
shares of common stock which will be issued in undeterminable, and may exceed
the assumed number given above.
12. Liquidity of the Common Stock Depends on Maintaining Nasdaq Listing;
Recent Trading Prices. Mark's common stock trades on the Nasdaq SmallCap Market.
To be eligible for continued listing of its common stock, Mark is required to
maintain, among other things:
o a minimum bid price of $1.00 per share.
o minimum net tangible assets of $2,000,000 or a market
capitalization of $35 million.
If Mark does not maintain its Nasdaq SmallCap 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. In response to the low trading price of its common
stock, Mark effected a 1 for 4 reverse stock split in June 1999 to meet Nasdaq's
minimum bid requirement.
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13. No Dividends For The Foreseeable Future. 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 any earnings to
finance growth.
14. Mark's Authorized and Unissued Preferred Stock May Make a Takeover More
Difficult. Mark's Board of Directors have the authority to issue up to 4,705,000
shares of preferred stock and to determine the price, rights, preferences,
privileges and restrictions including voting rights, of those shares without any
further vote or action by Mark's shareholders. The rights of the holders of
common stock will be subject to, and may be adversely affected by the rights of
the holders of any preferred stock that may be issued. The issuance of preferred
stock, while providing flexibility for possible acquisitions and other corporate
purposes, could have the effect of making it more difficult for a third party to
acquire a majority of the outstanding voting stock of Mark.
Mark has no present plans to issue additional shares of preferred stock.
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SELLING SHAREHOLDERS
The 311,500 shares of common stock offered hereby are being offered for the
account of the following person(s). Mark will receive no proceeds from the sale
of the shares. Mark is bearing all costs (except for commissions) related to the
registration statement. 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
Common Stock Shares of Beneficially
Beneficially Common Stock Owned After
Name Owned Offered Offering
- ----------------------------- ----------------------------------------------
John Georgallas 125,000 (1) 125,000 (1) 0
Southern Steel, a division
of Phelps-Tointon, Inc. 85,000 85,000 0
Maximum Security Products Corp. 50,000 50,000 0
MF Supply 10,000 10,000 0
Yankee Security 12,500 12,500 0
Easter Cavosie & Pastore 8,000 8,000 0
The Loren Group, Ltd. 6,000 6,000 0
James Stone 5,000 5,000 0
Kwik-Wall Manhattan, Inc. 4,000 4,000 0
Anthony J. Pasquariello & Associates 3,000 3,000 0
Law Offices of Mainardi & Mainardi 3,000 3,000 0
- ------------------------------------------------
(1) Includes 25,000 shares of Common Stock issuable upon exercise of outstanding
warrants at $6.00 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
10
<PAGE>
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.
In addition any securities covered by the prospectus which qualify 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 sold pursuant to
this prospectus.
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EXPERTS
Mark's consolidated balance sheet as of June 30, 1999 and 1998 and the
consolidated statements of operations, stockholders' equity (deficiency) and
cash flows for the years ended June 30, 1999 and 1998 incorporated into this
Prospectus, have been included in reliance on the report of Holtz Rubenstein &
Co., LLP, independent certified public accountants, given on the authority of
that firm as experts in accounting and auditing.
Mark's consolidated statement of operations, stockholders' equity and cash
flows for the year ended June 30, 1997 incorporated into this Prospectus, have
been included 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.
FORWARD LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in the
prospectus contain forward-looking statements within the of the Private
Securities Litigation Reform Act of 1995. These statements are made on current
plans and expectation of Mark and involve risks and uncertainties that could
cause actual future activities and results of operations to be materially
different from those set forth in the forward-looking statements. Important
factors that could cause actual results to differ include whether modular steel
cell projects and PACS projects are awarded to Mark and the timing of project
completion, meeting current an future financial requirements, competition and
changes in PACS technology. You are cautioned not place undue reliance on these
forward-looking statements, which speak only as of the date on which they were
made.
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WHERE YOU CAN FIND MORE INFORMATION
Registration Statement and SEC Filing. This prospectus is part of a
registration statement filed with the SEC and omits certain information
contained in that registration statement. Mark also files annual, quarterly,
special reports and other information with the SEC. You may read and copy any
document that Mark files at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
information on the operations of its Public Reference Rooms. In addition, the
SEC maintains an Internet site (http:// www.sec.gov) where Mark's SEC filings
are available free of charge.
Mark's Web Site. Mark maintains its own Internet site
(www.mark-solutions.com), which contains other information about Mark.
Information Incorporated by Reference. Mark is permitted to incorporate by
reference into this prospectus information and reports that are filed with the
SEC. The following documents filed by Mark (Commission File No. 0-17118) 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, 1999.
(2) Mark's definitive proxy statement for its Annual Shareholders Meeting
to be held on December 17, 1999. Mark's Annual Report on Form 10-K for
the year ended June 30, 1999.
(3) Mark's Quarterly Report on Form 10-Q for the period ended September 30,
1999. Mark's Quarterly Report on Form 10-Q for the period ended
September 30, 1999.
(4) Mark's Quarterly Report on Form 10-Q for the period ended December 31,
1999.
(5) The description of the common stock contained in the Registration
Statement on Form S-1 (File No. 333-62513) declared effective on
December 31, 1999.
In addition, all documents subsequently filed by Mark under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 and prior to the
termination of the offering of shares are deemed to be incorporated by reference
into and made a part of this prospectus from the date of filing. Information
contained in these subsequent filings automatically modifies or supersedes
previously filed information, including information contained in this
prospectus.
You may obtain free copies of these filings. Requests for copies should be
directed to Ms. Cheryl Gomes, Mark Solutions, Inc. 1515 Broad Street,
Bloomfield, New Jersey 07003, Telephone Number (973) 893-0500.
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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 . . . . . . . . . . . . . . . . . . . . . . . $ 436.88
Accountants' Fees and Expenses . . . . . . . . . . . . . . . . 2,000.00
Blue Sky Filing Fees and Expenses . . . . . . . . . . . . . . 2,000.00
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . 10,000.00
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 4,000.00
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $18,436.88
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 director or
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<PAGE>
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.
---------
Exhibit
Number Description
- ------------ -------------------------------------------
2.a)-- 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 Form
8-K-Dated of Report May 28, 1996 referred to herein as "Mark's
May 1996 Form 8-K")
b)-- Stock Purchase Agreement between Mark and Christopher Cummins
and Moria Addington dated April 24, 1996. (Incorporated by
reference to Exhibit 2 to Mark's May 1996 Form 8-K)
3. a)-- Amended and Restated Certificate of Incorporation
(Incorporated by reference to Exhibit 3(i)1 to Mark's
Form 10-Q for the period ended December 31, 1998 )
II-2
<PAGE>
Exhibit
Number Description
- --------- ----------------------------------------
b)-- Certificate of Designation of Series "D" Preferred Stock
(Incorporated by reference to Exhibit 3 b) Registration
Statement on Form S-3 (File No. 333-93119))
c)-- By-laws (Incorporated by reference to Exhibit 3 b) to Mark's
Form 10-K for the fiscal year ended June 30, 1998)
4. a)-- Specimen Stock Certificate (Incorporated by reference to
Exhibit 4 a) to Mark's Form 10-K for the fiscal year ended
June 30, 1998)
5. Opinion of Timothy J. McCartney, Esq.
21. Subsidiaries of Mark (Incorporated by reference to Exhibit 21.
to Mark's Form 10-K for the fiscal year ended June 30, 1998)
23. a) -- Consents of Holtz Rubenstein & Co., LLP, Sax Macy Fromm & Co.,
P.C., Chantrey Vellacott and Baker Tilly (included on pages
II-7 to II-8)
23. b) -- Consent of Timothy J. McCartney, Esq. (included in Exhibit 5)
24. Power of Attorney (included on page II-5)
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, 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.
II-3
<PAGE>
(B) With respect to the Common Stock, 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total value of securities offered would not exceed
that which was registered) and any deviation from the low or high end 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 the volume and price represent no more than a 20% 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; provided,
however, the paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the
information required to be included in a post-effective amendment by such
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by
reference 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.
(C) The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each of the registrant's annual
reports pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and
where applicable, each filing of an employee benefit's plan annual report
pursuant to Section 15(d) of the exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
(D) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnish pursuant to and meeting the requirements
of Rule 14-a-3 or Rule 14c-3 under the Exchange Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X
are not set forth in the prospectus, to deliver, to cause to be delivered to
each person to whom the prospectus is sent or given, the latest quarterly that
is specifically incorporated by reference in the prospectus to provide such
interim financial information.
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.
II-5
<PAGE>
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 March 9,
2000.
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 March 27, 2000
- ----------------------- President and Director
(Carl Coppola) (Principal Executive
Officer),
/s/ Michael Nafash Chief Financial Officer, March 27, 2000
- ----------------------- Vice President-Fianance
(Michael Nafash) and Director (Principal
Financial and Accounting
Officer)
*/s/ Richard Branca Director March 27, 2000
- ----------------------
(Richard Branca)
*/s/ Yitz Grossman Director March 27, 2000
- ----------------------
(Yitz Grossman)
*/s/ Ronald E. Olszowy Director March 27, 2000
- ----------------------
(Ronald E. Olszowy)
*/s/ William Westerhoff Director March 27, 2000
- ----------------------
(William Westerhoff)
*By Carl Coppola as Attorney-in-fact
II-6
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation into this Registration Statement on
Form S-3 of our report dated September 2, 1999 with respect to the consolidated
financial statements of Mark Solutions, Inc. and Subsidiaries ("Mark") as of
June 30, 1998 and 1999 and for the years ended June 30, 1998 and 1999. We also
consent to the reference to us under the heading "Experts" in the Prospectus
which is part of the Registration Statement.
HOLTZ RUBENSTEIN & CO., LLP
Certified Public Accountants
Melville, New York
March 27, 2000
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion into this Registration Statement on Form S-3 of
our report dated August 22, 1997 (except for Note 1, as to which date is
September 23, 1997), on our audits of the consolidated statements of operations,
shareholders equity (deficiency) and cash flows of Mark Solutions, Inc. ("Mark")
for the year ended June 30, 1997. 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
March 27, 2000
II-7
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion into this Registration Statement on Form S-3 of
our report dated October 11, 1999, on our audits of the financial statements of
MarkCare Medical Systems Limited as of June 30, 1998 and 1999 and for the years
ended June 30, 1998 and 1999.
Chantrey Vellacott
Chartered Accountants
Registered Auditors
London, England
March 27, 2000
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion into this Registration Statement on Form S-3 of
our report dated September 25, 1997, on our audits of the financial statements
of MarkCare Medical Systems Limited for the period ending 30 June 1997.
Baker Tilly
Chartered Accountants
London, England
March 27, 2000
II-8
<PAGE>
Exhibit 5
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
March 27, 2000
Mark Solutions, Inc.
1515 Broad Street
Bloomfield, New Jersey 07003
Gentlemen:
I have acted as counsel to Mark Solutions, Inc. ("Mark") in connection with the
registration on Form S-3 (the "Registration Statement") by Mark under the
Securities Act of 1933, as amended (the Securities Act") of 311,500 shares of
Mark Common Stock, $.01 par value (the "Shares") and the related prospectus.
On the basis of such investigation as I have deemed necessary, I am of the
opinion that:
1. The Shares have been duly authorized.
2. The Shares have been, or upon proper exercise of outstanding warrants,
will be, validly 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
