SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
Amendment No. 1
_________________
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____ to ____.
Commission file number 1-3315
PUBLICKER INDUSTRIES INC.
(Exact name of registrant as specified in its charter)
Pennsylvania
(State or other jurisdiction of incorporation or organization)
23-0991870
(I.R.S. Employer Identification No.)
One Post Road, Fairfield, Connecticut 06430
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (203) 254-3900
Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
None None
Securities Registered Pursuant To Section 12(g) of the Act:
Common Stock ($.10 par value)
Rights to Purchase Class A Preferred Stock, First Series
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No .
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. X
As of January 31, 1998, the aggregate market value of the voting common stock
held by non-affiliates of the registrant was $17,348,000.
Number of shares of Common Stock outstanding as of January 31, 1998:
13,040,097
Documents Incorporated By Reference: None
PART III
Items 10, 11, 12 and 13 are hereby amended in their entirety as follows:
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The Company currently has six directors, all of whom were elected at the
Annual Meeting of Shareholders held on July 2, 1997. All directors serve until
the next election of directors or until their successors are chosen and have
qualified.
Set forth below as to each director nominated for reelection as a director of
the Company is information regarding age (as of March 31, 1998), position with
the Company, principal occupation, business experience, period of service as a
director of the Company and directorships currently held.
HARRY I. FREUND: Age 58; Director of the Company since April 12, 1985.
Chairman of the Board since December 1985. Since 1975, Mr. Freund has been
Chairman of Balfour Investors Inc. (formerly known as Balfour Securities
Corporation), a merchant banking firm that had previously been engaged in a
general brokerage business. Mr. Freund is also Chairman of the Board of
Directors of Equitable Bag Co., Inc.
JAY S. GOLDSMITH: Age 54; Director of the Company since April 12, 1985. Vice
Chairman of the Board since December 1985. Since 1975, Mr. Goldsmith has been
President of Balfour Investors Inc. Mr. Goldsmith is also Vice Chairman of the
Board of Directors of Equitable Bag Co., Inc.
CLIFFORD B. COHN: Age 46; Director of the Company since July 31, 1980. Vice
President of Government Affairs of the Company from April 1, 1982 to November
20, 1984. Since 1977, Mr. Cohn has been engaged in the private practice of
law in Philadelphia, Pennsylvania. Mr. Cohn is a director of Leslie Fay
Company Ltd. and Kasper A.S.L., Ltd.
DAVID L. HERMAN: Age 84; Director of the Company since April 12, 1985. Mr.
Herman was President and Chief Executive Officer of the Company from March 31,
1986 until March 8, 1995. Prior to 1986, Mr. Herman was an independent
consultant advising clients on the reorganization of businesses and potential
acquisitions. Prior thereto, Mr. Herman was the sole owner of Darman Tool and
Manufacturing Company, a private company engaged in the manufacture of
appliances and photocopying machines. Mr. Herman is a director of Equitable
Bag Co., Inc.
L. G. SCHAFRAN: Age 59; Director of the Company since December 3, 1986. Mr.
Schafran is the Managing General Partner of L. G. Schafran & Associates, a real
estate investment and advisory firm established in October 1984. For more than
five years prior thereto, Mr. Schafran was a senior officer in The Palmieri
Company, specializing in the acquisition, management and disposition of
distressed properties. He was Chairman of the Executive Committee of Dart
Group Corporation from 1994 to October of 1997 and a director of Dart from 1993
to October 1997. Mr. Schafran is a director of COMSAT Corporation,
Discovery Zone, Inc. and Kasper A.S.L., LTD., a trustee of National Income
Realty Trust and Chairman of the Board of Delta-Omega Technologies, Inc.
JAMES J. WEIS: Age 49; President, Chief Executive Officer and Director of the
Company since March 8, 1995. Mr. Weis joined the Company in September 1984 as
Assistant to the President and was elected Vice President in November 1984,
Chief Financial Officer and Secretary in April 1986, Executive Vice President
- - Finance in August 1989 and President, Chief Executive Officer and Director
in March 1995.
The information with respect to the executive officers of the Company required
by this item is set forth in Item 1A of this Form 10-K.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Security Exchange Act of 1934, as amended, requires the
Company's officers and directors, and persons who beneficially own more than
ten percent of the Company's Common Stock, to file reports of ownership and
changes in ownership with the Securities and Exchange Commission ("SEC").
Officers, directors and greater than ten percent stockholders are required
by SEC regulation to furnish the Company with copies of all Section 16(a)
forms they file.
Based solely on its review of the copies of such forms received by it and
written representations from certain reporting persons that no Form 5s were
required for those persons, the Company believes that all filing requirements
applicable to its officers, directors and greater than ten percent
stockholders were complied with during the year ended December 31, 1997.
ITEM 11. EXECUTIVE COMPENSATION
The following tables set forth information concerning the cash compensation,
stock options and retirement benefits provided to the Company's executive
officers. The notes to these tables provide more specific information
concerning compensation. The Company's compensation policies are discussed in
the Compensation Committee Report on Executive Compensation.
Summary Compensation Table
Annual Compensation
Name and Principal Position Year Salary Bonus(1)
James J. Weis 1997 $325,000 $162,500
President, Chief Executive 1996 325,000 200,000
Officer and Director 1995 315,737 130,000
Long-Term Comp.
Options/ All Other
SAR's (#)(2) Compensation
1997 - 9,473 (3)
1996 100,000 9,698 (3)
1995 100,000 9,641 (3)
Antonio L. DeLise (5) Year Salary Bonus(1)
Vice President, Chief 1997 163,700 67,000
Financial Officer and 1996 149,561 85,000
Secretary 1995 98,438 40,000
Options/ All Other
SAR's (#)(2) Compensation
1997 - 7,349 (4)
1996 50,000 8,148 (4)
1995 25,000 2,100 (4)
(1) Reflects bonus earned during the fiscal year. In some instances all or a
portion of the bonus was paid during the next fiscal year.
(2) Options to acquire shares of Common Stock.
(3) Consists of $4,750, $4,750 and $4,620 in contributions to the Company's
401(k) plan for 1997, 1996 and 1995, respectively, and $4,723, $4,948,
and $5,021 for term life and disability insurance premiums paid on behalf
of Mr. Weis for 1997, 1996 and 1995, respectively.
(4) Consists of $4,750 in contributions to the Company's 401(k) plan for 1997
and 1996 and $2,599, $3,398 and $2,100 for term life and disability
insurance payments paid on behalf of Mr. DeLise for 1997, 1996 and 1995,
respectively.
(5) Mr. DeLise joined the Company in April 1995.
Aggregated Stock Options Exercised in 1997
and December 31, 1997 Option Values
Exercised in 1997 Unexercised at December 31, 1997
Value of In-the-Money
Shares Value Number of Options options(1)
Acquired Realized Exercisable Unexercisable Exercisable Unexercisable
Name of
Executive
James J.
Weis - - 320,000 - $ - $ -
Antonio L.
DeLise - - 75,000 - - -
(1) These values are based on the December 31, 1997 closing price for the
Company's stock on the OTC Bulletin Board of $1.375 per share.
Retirement Income Plan
Effective December 31, 1993, benefits under the Publicker Retirement Plan
(the "Plan") were frozen. Accordingly, Plan participants will accumulate no
additional credited service, and earnings subsequent to December 31, 1993 will
no longer have an impact on accumulated benefits. The annual benefits payable
upon retirement for Mr. Weis is $23,831. The foregoing amount is based on a
straight life annuity. Retirement benefits are payable at age 65 to married
employees in the form of a 50% joint and survivor annuity with their spouses,
at a reduced amount, unless they elect to receive a straight life annuity.
Single employees receive a straight life annuity. The foregoing benefit amount
is not subject to any deduction for Federal Insurance Contributions Act or
other offset amounts.
Stock Option Plans
Under the 1991 Stock Option Plan for directors, officers and key employees
adopted by shareholders of the Company in 1992, the Company has been
authorized to grant nonqualified stock options to purchase up to 750,000 shares
of Common Stock. Under the 1993 Long-Term Incentive Plan and the Non-employee
Director Stock Option Plan adopted by shareholders of the Company in 1994, the
Company may grant stock options, restricted stock options, stock appreciation
rights, performance awards and other stock-based awards equivalent to up to
3,550,000 shares of Common Stock. To date, the Company has granted only stock
options pursuant to such plans.
The plans are administered by the Board of Directors of the Company. Subject
to the express provisions of the plans, the Board of Directors has full and
final authority to determine the terms of all options granted under the plans
including (a) the purchase price of the shares covered by each option, (b)
whether any payment will be required upon grant of the option, (c) the
individuals to whom, and the time at which, options shall be granted, (d) the
number of shares to be subject to each option, (e) when an option can be
exercised and whether in whole or in installments, (f) whether the
exercisability of the options is subject to risk of forfeiture or other
condition and (g) whether the stock issued upon exercise of an option is
subject to repurchase by the Company, and the terms of such repurchase.
Under the 1991 Stock Option Plan, the term of options shall be for such
period as the Board of Directors shall determine, but shall not in any event
exceed 12 years from the date of the option's grant. Under the 1993 Long-Term
Incentive Plan, the term of options granted shall be prescribed by the Board of
Directors, provided, however, that no stock option may be exercised after five
years from the date it is granted. Under the Non-employee Director Stock Option
Plan, on July 1 of each year commencing with July 1, 1994, the Chairman of the
Board and Vice Chairman of the Board shall each automatically receive an option
to purchase for five years 125,000 shares of common stock and each other non-
employee director shall automatically receive an option to purchase for five
years 30,000 shares of common stock.
During the year ended December 31, 1997, no stock options were granted to
any executive officers of the Company.
Employment and Change in Control Agreements
In August 1987, the Company entered into change in control agreements with
each of Messrs. Freund, Goldsmith, Herman and Weis, which agreements provide
for payments to them under certain circumstances following a change in
control of the Company. These agreements were not adopted in response to any
specific acquisition of shares of the Company or any other event threatening
to bring about a change in control of the Company. For purposes of the
agreements, a change in control is defined as any of the following: (i) the
Company ceasing to be a publicly owned corporation having at least 2,000
shareholders, (ii) any person or group acquiring in excess of 30% of the
voting power of the Company's securities, (iii) Continuing Directors (as
defined below) ceasing for any reason to constitute at least a majority of
the Board of Directors, (iv) the Company merging or consolidating with any
entity, unless approved by a majority of the Continuing Directors or (v) the
sale or transfer of a substantial portion of the Company's assets to another
entity, unless approved by a majority of the Continuing Directors. For
purposes of the agreements, "Continuing Director" means Messrs. Freund,
Goldsmith, Herman, Cohn, Schafran and Weis, and any other director designated
as such prior to his election as a director by a majority of the then remaining
Continuing Directors.
In the event the Company discontinues the services (as defined below) of one
of the above-named individuals as a director or officer, as the case may be,
following a change in control, the individual will be entitled to receive in a
lump sum within 10 days of the date of discontinuance, a payment equal to 2.99
times the individual's average annual compensation for the shorter of (i) the
five years preceding the change in control, or (ii) the period the individual
received compensation from the Company for personal services. Assuming a
change in control of the Company and the discontinuance of an individual's
services were to occur at the present time, payments in the following amounts
(assuming there are no excess parachute payments, as defined below) would be
made pursuant to the change in control agreements: Mr. Freund -- $913,445;
Mr. Goldsmith -- $913,445; Mr. Herman -- $478,891 and Mr. Weis -- $1,319,683.
In the event any such payment, either alone or together with others made in
connection with the individual's discontinuance, is considered to be an
"excess parachute payment" (as defined in the Internal Revenue Code of 1986,
as amended (the "Code")), the individual is entitled to receive an additional
payment in an amount which, when added to the initial payment, results in a
net benefit to the individual (after giving effect to excise taxes imposed
by Section 4999 of the Code and income taxes on such additional payment) equal
to the initial payment before such additional payment. The Company shall be
deemed to have discontinued an individual's services if any of the following
occurs: (i) he is terminated as an employee of the Company for any reason
other than conviction of a felony or any act of fraud or embezzlement,
his disability for six consecutive months or his death, (ii) failure to elect
and maintain him in the office which he now occupies, (iii) failure of the
Board of Directors to include him in the slate of directors recommended to
stockholders,(iv) a reduction in his salary or fringe benefits, (v) a change
in his place of employment or excessive travel or (vi) other substantial,
material and adverse changes in conditions under which the individual's
services are to be rendered. Since the change in control agreements would
require large cash payments to be made by any person or group effecting a
change in control of the Company, absent the assent of a majority of the
Continuing Directors, these agreements may discourage hostile takeover
attempts of the Company.
The change in control agreements would have expired on December 1, 1997 but
have been and will continue to be automatically extended for a period of one
year on each December 1, unless terminated by either party prior to any such
December 1. In the event a change in control occurs during the term of any of
the agreements, including any extension thereof, the term of such agreements
shall automatically be extended to three years from the date of such change
in control.
The Company has entered into an agreement with Mr. Weis which provides that,
in the event his employment is terminated without cause or is considered
terminated by reason of a change in Mr. Weis' duties which would require him to
relocate his principal residence, he will receive a continuation of salary
payments and all other employee benefits then provided him until the earlier of
one year from the date of notice of termination or the date upon which he
begins full-time employment with a new employer.
INFORMATION CONCERNING THE BOARD OF DIRECTORS
Directors who were not officers of the Company, other than Messrs. Freund and
Goldsmith, are paid $2,500 per month for services as directors and, in
addition, $750 per day for each meeting of the Board or of shareholders that
they attended without regard to the number of meetings attended each day.
Pursuant to informal arrangements with the Company, Messrs. Freund and
Goldsmith each receive annual compensation at the rate of $325,000 per year as
Chairman and Vice Chairman of the Board, respectively, and for providing certain
services described below. The arrangements have indefinite terms and are
terminable at any time by either party. The compensation received by them is
approved from time to time by the Directors Compensation Committee of the Board
of Directors, consisting of David L. Herman, Clifford B. Cohn and L.G. Schafran.
Messrs. Freund and Goldsmith provide advice and counsel to the Company on a
variety of strategic and financial matters, including business acquisitions and
divestitures, raising capital and shareholder relations. Messrs. Freund and
Goldsmith do not render any services in connection with the day-to-day
operations of the Company. Services are provided on a less than full time
basis, with the amount of time varying depending on the activities in which
the Company is engaged from time to time. The arrangements with the Company
do not provide for a minimum amount of time to be spent on Company matters.
Messrs. Freund, Goldsmith, Herman and Weis are each party to an agreement
with the Company providing for payments to them under certain circumstances
following a change in control of the Company. See "Employment and Change in
Control Agreements."
On March 8, 1995, following Mr. Herman's retirement as President of the
Company, the Company and Mr. Herman entered into an informal Consulting
Agreement pursuant to which Mr. Herman will render consulting services to the
Board of Directors of the Company. The Consulting Agreement has an indefinite
term and provides for a monthly consulting fee at a rate of $20,000 per year.
The services to be rendered to the Company by Mr. Herman include consultation
on acquisitions and divestitures, litigation and other matters. The
Consulting Agreement is terminable at any time by the Company or Mr. Herman.
The Company and Balfour Investors Inc. ("Balfour"), are parties to a License
Agreement, dated as of October 26, 1994, with respect to a portion of the
office space leased by the Company in New York City. Messrs. Freund and
Goldsmith are Chairman and President, respectively, and the only shareholders
of Balfour. The term of the License Agreement commenced on January 1, 1995
and will expire on June 30, 2004, unless sooner terminated pursuant to law or
the terms of the License Agreement. The License Agreement provides for
Balfour to pay the Company an amount equal to 40% of the rent paid by the
Company under its lease, including base rent, electricity, water, real estate
tax escalations and operation and maintenance escalations. In addition,
Balfour has agreed to reimburse the Company for 40% of the cost of insurance
which the Company is obligated to maintain under the terms of its lease with
respect to the premises. The base rent payable by Balfour under the License
Agreement is $7,724 per month through September 30, 1999 and $8,312 per month
thereafter.
Directors of the Company are elected at each annual meeting of shareholders
to hold office until the next annual meeting of shareholders and until their
respective successors are duly elected and qualified. Executive officers are
elected to hold office until the first meeting of directors following the next
annual meeting of shareholders or until their successors are sooner elected by
the Board and qualified.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee of the Board of Directors, which consists
entirely of outside directors, reviews the compensation of key employees of the
Company. The present members of the Compensation Committee are Jay S. Goldsmith
(Chairman), Clifford B. Cohn and L.G. Schafran. See "Item 13. Certain
Relationships and Related Transactions."
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security Ownership of Certain Beneficial Owners
The following table sets forth, as of March 31, 1998, except as otherwise
noted, the beneficial ownership of the Company's Common Stock by each person
who owns of record or is known by the Company to own beneficially more than
5% of the Common Stock of the Company. All information with respect to
beneficial ownership has been furnished to the Company by the respective
shareholders of the Company.
Name and Address of Amount and Nature of
Beneficial Owner Beneficial Ownership(1) Pecent of Class
Harry I. Freund 2,123,364 (2) 14.8%
c/o Balfour Investors, Inc.
620 Fifth Avenue
Rockefeller Center
New York, NY 10020
Jay S. Goldsmith 2,196,544 (3) 15.2%
c/o Balfour Investors, Inc.
620 Fifth Avenue
Rockefeller Center
New York, NY 10020
Foreign & Colonial Management 1,112,750 (4) 8.6%
Limited and Hypo Foreign &
Colonial Management (Holdings)Limited
Exchange House
Primrose Street
London EC2 ANY, England
(1) Calculated in accordance with Rule 13d-3 adopted by the Securities
and Exchange Commission under the Securities Exchange Act of 1934,
as amended.
(2) Includes shares of Common Stock which may be acquired by Mr. Freund
within 60 days as follows: 591,912 shares through the exercise of
stock options and 660,480 shares through the exercise of stock
purchase warrants. Also includes 300,875 shares that may be deemed
to be owned beneficially by Mr. Freund which are held by Balfour
Investors Inc. ("Balfour") for its clients in discretionary
accounts, as to which Mr. Freund disclaims beneficial ownership.
Messrs. Freund and Goldsmith are Chairman and President,
respectively, and the only shareholders of Balfour. The
discretionary clients of Balfour have the sole power to vote and
direct the vote of the shares held in their account. Balfour and
its discretionary clients have shared power to dispose of or
direct the disposition of the shares held in such clients' accounts.
At present, Balfour has the right to receive or the power to direct
the receipt of dividends from, or the proceeds from the sale of the
Company's Common Stock for all of its discretionary clients. Also
includes options to purchase 200,000 shares of Common Stock held
by Mr. Freund, the expiration of which has been extended by five
years to April 12, 2000.
(3) Includes shares of Common Stock which may be acquired by Mr.
Goldsmith within 60 days as follows: 591,912 shares through the
exercise of stock options and 714,240 shares through the exercise
of stock purchase warrants. Also includes 1,500 shares of Common
Stock held by Mr. Goldsmith's spouse over which Mr. Goldsmith has
shared voting and investment power but as to which he disclaims any
beneficial interest, and includes 300,875 shares that may be deemed
to be owned beneficially by Mr. Goldsmith which are held by Balfour
for its clients in discretionary accounts as to which Mr. Goldsmith
disclaims beneficial ownership (see Note 2 above). Also includes
options to purchase 200,000 shares of Common Stock held by Mr.
Goldsmith, the expiration of which has been extended by five years
to April 12, 2000.
(4) Based on a statement on Schedule 13G filed with the Securities and
Exchange Commission on February 3, 1995. Foreign & Colonial
Management Limited and Hypo Foreign & Colonial Management (Holdings)
Limited have shared power to vote and direct the vote and shared
power to dispose or to direct the disposition of such shares.
SECURITY OWNERSHIP OF MANAGEMENT
The following information is furnished as of March 31, 1998 with respect to
each class of equity securities of the Company beneficially owned by all
directors and officers, and by all directors and officers as a group.
The information concerning the directors and officers and their security
holdings has been furnished by them to the Company.
Beneficial Ownership of
Shares of Common Stock Pecent of
Name Position as of March 31, 1998(1) Class(1)
Harry I. Freund Director and Chairman 2,123,364 (2) 14.8%
of the Board
Jay S. Goldsmith Director and Vice 2,196,544 (3) 15.2%
Chairman of the Board
James J. Weis President, Chief 384,500 (4) 2.9%
Executive Officer and
Director
Clifford B. Cohn Director 273,008 (5) 2.1%
David L. Herman Director 303,258 (6) 2.3%
L.G. Schafran Director 334,509 (7) 2.5%
Antonio L. DeLise Vice President, Chief 75,000 (8) Less than 1%
Financial Officer and
Secretary
All directors, nominees and
officers as a group (7 persons) 5,690,183 (9) 33.4%
(1) Calculated in accordance with Rule 13d-3 adopted by the Securities
and Exchange Commission under the Securities Exchange Act of 1934,
as amended.
(2) See Note 2 to the table under "Security Ownership of Certain
Beneficial Owners".
(3) See Note 3 to the table under "Security Ownership of Certain
Beneficial Owners".
(4) Includes 320,000 shares which may be acquired by Mr. Weis within 60
days through the exercise of stock options.
(5) Includes 242,059 shares which may be acquired by Mr. Cohn within 60
days through the exercise of stock options.
(6) Includes shares of Common Stock which may be acquired by Mr. Herman
within 60 days as follows: 202,058 shares through the exercise of
stock options and 38,400 shares through the exercise of stock
purchase warrants.
(7) Includes 242,059 shares which may be acquired by Mr. Schafran within
60 days through the exercise of stock options. Also includes 54,050
shares of Common Stock and 38,400 shares that may be acquired
through the exercise of stock purchase warrants held by
Mr. Schafran's spouse as to which Mr. Schafran disclaims any
beneficial interest.
(8) Consists of shares which may be acquired by Mr. DeLise within 60
days through the exercise of stock options.
(9) Includes shares of Common Stock which may be acquired by such
persons within 60 days as follows: 2,665,000 shares through the
exercise of stock options and 1,451,520 shares through the exercise
of stock purchase warrants.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
See "Employment and Change in Control Agreements" and "Information concerning
the Board of Directors" in Item 11 and Notes 2 and 3 to the table under
"Security Ownership of Certain Beneficial Owners" in Item 12 for information
with respect to information required by this Item.
SIGNATURE
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to be
signed on its behalf by the undersigned, hereunto duly authorized.
PUBLICKER INDUSTRIES INC.
(Registrant)
Date April 29, 1998 By:/s/ JAMES J. WEIS
James J. Weis, President,
Chief Executive Officer and
Director
