As filed with the Securities and Exchange Commission on November 6, 1996
Registration No. 33-70566
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
M. H. MEYERSON & CO., INC.
(Name of small business issuer in its charter)
New Jersey 8-8381 13-1924455
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of organization) Classification Code No.) Identification No.)
525 Washington Boulevard, 34th Floor, Jersey City, NJ 07310
(201)459-9500
(Address and telephone number of principal executive offices
Michael Silvestri
President
525 Washington Boulevard, 34th Floor, Jersey City, NJ 07310
(201) 459-9500
(Name, address and telephone number
of agent for service)
Copies to:
John S. Stoppelman, Esq.
The Stoppelman Law Firm, P.C.
1749 Old Meadow Road
Suite 610
McLean, VA 22102
(703) 827-7450
Approximate date of proposed sale to the public:
As soon as reasonably practicable after effective date of this Registration
Statement
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: [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each class offering aggregate Amount of
of securities to be Amount to be price per offering registration
registered registered(1) Unit or Share price fee
Warrants to purchase -- -- -- --
one (1) share of
Common Stock
Common Stock, par value -- -- -- --
$.01 per share, issuable
upon exercise of
Redeemable Common Stock
Purchase Warrants
Total Registration Fee Paid. . . . . . . . . . . . $3,173
Total Refund. . . . . . . . . . . . . . . . . . . . 3,173
(1) The Company is removing 2,300,000 Amended Redeemable Common Stock
Purchase Warrants from registration pursuant to Rule 415 of the Securities Act
of 1933. Because the amendments to the terms of the Warrants were not approved
by a majority of the oustanding Warrants, the amendments could not take effect.
The terms of the 2,300,000 warrants registered in the Company's initial public
offering dated January 18, 1994 remain unchanged.
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.
M.H. MEYERSON & CO., INC.
Cross-Reference Sheet Showing Location in Prospectus
of Information Required by Items of Form S-3
Form S-3 Registration Statement Item and Heading Location in Prospectus
Front of Registration Statement and
Outside Front Cover of Prospectus ........ Forepart of the
Registration
Statement; Outside
Front Cover Page of
Prospectus; Additional
Information
Inside Front and Outside Back Cover Pages
of Prospectus ............................ Inside Front and
Outside Back Cover
Pages of Prospectus;
Available Information;
Incorporation of
Certain Documents by
Reference
Summary Information and Risk Factors ..... Prospectus Summary;
Risk Factors
Use of Proceeds .......................... Prospectus Summary; Use
of Proceeds
Determination of Offering Price .......... Outside Front Cover
Page of Prospectus;
Determination of
Offering Price
Dilution ................................. Risk Factors - Dilution
to Public; Dilution
Selling Security Holders ................. Not Applicable
Plan of Distribution ..................... Outside Front
Page of Prospectus
Litigation ............................... Litigation
Description of Securities ................ Front Cover Page;
Prospectus Summary;
Capitalization;
Description of
Securities
Interests of Named Experts and Counsel ... Not Applicable
Change in or Disagreement with
Accountants .............................. Not Applicable
PROSPECTUS
M. H. MEYERSON & CO., INC.
2,300,000 Redeemable Common Stock Purchase Warrants
M.H. Meyerson & Co., Inc. hereby removes the Amended 2,300,000 Redeemable
Common Stock Purchase Warrants (the "Amended Warrants") from registration
pursuant to Rule 415 of the Securities Act of 1933. The amended terms of the
Company's 2,300,000 Redeemable Common Stock Purchase Warrants issued in the
Company's initial public offering dated January 18, 1994 (the "Warrants") could
not take effect without the approval of a majority of the outstanding Warrants.
Because such approval was not obtained, the terms of the Company's Warrants
remain unchanged. Each Warrant entitles the holder to purchase one (1) share of
Common Stock, par value $.01 per share (the "Common Stock"), at a price of $4.50
per share for a period of five years commencing January 18, 1994. The Warrants
are redeemable by the Company for $.01 per Warrant, at any time upon thirty (30)
days written notice, if the average closing price or bid price of the Common
Stock for ten (10) consecutive business days equals or exceeds $9.60 per share.
See "Description of Securities."
The Board of Directors of M.H. Meyerson & Co., Inc. had previously voted
to seek warrant holder approval for a proposed amendment to the terms of the
Warrants. Each Amended Warrant would have entitled the holder to purchase one
(1) share of Common Stock, par value $.01 per share (the "Common Stock"), at a
reduced price of $4.00 per share (the "Exercise Price"), for a period of five
(5) years following the date of the original offering. The Amended Warrants
would have been redeemable by the Company for $.01 per Amended Warrant upon
forty-five (45) days written notice, provided that the average closing price or
bid price of the Common Stock equals or exceeds $5.00 per share (the "Redemption
Price"), for three (3) consecutive business days (reduced from 10 days).
The Warrants are quoted on the National Association of Securities Dealers
Automated Quotation SmallCap System under the symbol MHMYW. For factors
considered in determining the initial public offering price of the Warrants, see
"Determination of Offering Price."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR 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 November 6, 1996.
AVAILABLE INFORMATION
M. H. Meyerson & Co., Inc. ("Meyerson" or the "Company") has filed a
registration statement on Form S-3 ("Registration Statement") under the
Securities Act of 1933, as amended ("1933 Act") with the Securities and Exchange
Commission ("SEC"), with respect to the securities being offered by this
prospectus ("Prospectus"). This Prospectus, which constitutes a part of the
Registration Statement, does not contain all the information set forth in the
Registration Statement and the exhibits thereto. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement and the exhibits thereto. All of these documents may
be inspected and copied at the public reference facilities maintained by the SEC
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549; and at the SEC's Regional Offices at 7 World Trade Center, 13th Floor,
New York, New York 10007 and Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies may be obtained at the
prescribed rates from the Public Reference Section of the SEC at its principal
office in Washington, D.C. Statements contained in this Prospectus as to the
contents of any contract or other document referred to are not necessarily
complete and in each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference.
The Company furnishes to its shareholders and holders of its Warrants
annual reports containing financial statements audited by its independent
certified public accountants, and with quarterly reports containing unaudited
summary financial information for the first three quarters of each fiscal year.
Such reports will be available upon request.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission and the
National Association of Securities Dealers are incorporated herein by reference.
(a) Annual Report on Form 10-KSB for the fiscal year ended January 31,
1996;
(b) Quarterly Report on Form 10-QSB for the quarter ended April 30, 1996;
(c) Quarterly Report on Form 10-QSB for the quarter ended July 31, 1996;
(d) The description of the Company's Common Stock as contained in the
Company's Form 8-A dated March 15, 1994.
(e) Registration Statement on Form SB-2 as declared effective by the
Commission on January 18, 1994.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Securities Act"), subsequent to the date of this Prospectus and prior to
the termination of the offering made by the Prospectus shall be deemed to be
incorporated by reference herein. Any statement contained 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 other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company undertakes to provide without charge to each person to whom a
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the information incorporated by reference in this Prospectus,
other than exhibits to such information. Requests for such copies should be
directed to John S. Stoppelman, the Stoppelman Law Firm, 1749 Old Meadow Road,
Suite 610, McLean, VA 22102 (telephone: 703-827-7450).
PROSPECTUS SUMMARY
This summary is qualified in its entirety by the other information and
financial statements appearing elsewhere in the Prospectus or incorporated by
reference herein. Unless otherwise indicated, the information appearing in this
Prospectus does not give effect to the Common Stock issuable upon the exercise
of the Warrants or the Underwriter's Unit Purchase Option.
The Company
General
M. H. Meyerson & Co., Inc., a securities firm originally founded in 1960,
conducts its business in four (4) separate divisions. These are Wholesale
Trading, Correspondent Services, Retail Services, and Investment Banking. These
four (4) divisions are functionally supported by the Compliance Department and
the Back Office Department (operations).
As of March 31, 1996, the Company had one hundred sixty employees (160),
one hundred eight (108) of which were registered representatives, including
twenty-five (25) registered principals, licensed by the National Association of
Securities Dealers ("NASD") and various state securities commissions. The
balance of the Company's employees, which number thirty (52), are support staff.
The Company's largest division (in revenue contribution) is wholesale
market making, which means engaging in principal transactions on behalf of its
proprietary trading accounts in what are usually dealer to dealer transactions.
The Company employs eighteen (18) securities traders and twenty-four (24)
assistant traders who, with management supervision, conduct the Company's high
volume trading operations. The Company's traders are compensated by receiving a
fixed percentage of the profits from trading after deduction of general
expenses. The traders are party to employment contracts which provide for
individual liability for any funds owed the Company relating to losses, if any,
incurred from trading activities. Pursuant to these employment contracts, the
individual traders are restricted to Company imposed limits as to the extent of
the trading positions they are permitted by the Company to maintain. Traders
are also required by the Company to maintain a reserve, the size of which is a
factor by which the trading position limit is determined. This reserve is also
available to offset trading losses, if any, suffered by the individual trader in
his trading account. The Company endeavors to observe high standards of
commercial honor and just and equitable principles of trade in conducting its
business.
In its market making function, the Company carries long or short trading
positions in various securities. The Company currently trades over one hundred
million shares of common stock, preferred stocks and warrants per month. The
Company's clearing agent for market making and trading activities is Spear,
Leeds & Kellogg, Inc., members of the New York and other principle stock
exchanges, of New York City, New York. The Company has contracted with an
information services provider to supply trading information regarding securities
in which the Company has an investment interest. The Company obtains daily
printouts that inform the traders regarding financial and market information on
a current basis. As of March 1996, the Company was a market maker in
approximately two thousand five hundred (2,500) securities.
The Company's trading activities have substantially increased with the
addition of several automated trading systems such as Instinet, ACT, Selectnet,
BNET, and the automated ticketless Brass trading program. The Brass system,
which, in effect, makes trading "paperless", enhances the ability of the traders
to focus on market conditions by eliminating the prior administrative burden
incumbent in trading. The Selectnet and Instinet networks link the Company with
trading partners throughout the United States, including other brokerage firms,
block trading desks and specialists on the regional exchanges. These systems
provide the Company with access into every major securities exchange on a
worldwide basis. The Company also employs the Autex electronic volume
monitoring system. Through Autex, the Company can determine the percentage of
the Company's relative trading volume in a specific security.
The Company's Correspondent Services division provides competitive
execution services primarily to retail securities firms who utilize the Company
to fill buy or sell orders in over-the-counter and listed securities for their
respective retail customers. The Company's Correspondent Service facilitates
large retail firms, including discount brokers and banks, in obtaining instant
execution of their respective customers' orders.
The Company's Retail Sales division consists of fifty-four (54) registered
representatives, including nine (9) registered principals, who collectively
maintain the majority of the Company's retail securities accounts. The
Company's retail customer accounts are carried on a "fully disclosed" basis by
Bear, Stearns Securities Corp.,members of the New York and other principle stock
exchanges, pursuant to a clearing agreement. This agreement provides that
customer securities positions and credit balances are insured up to $50,000,000
by Securities Investors Protection Corp. ("SIPC") and supplementary private
insurance coverage. All customer credit balances are subject to immediate
withdrawal from Bear, Stearns Securities Corp., at the discretion of the
customer.
The Company's Investment Banking division consists of four (4)
professionals. The primary function of this department is to conceptualize,
plan and execute capital formation for small, growing companies which have the
potential, in the Company's judgement, to become successful public companies.
The Department is engaged in the structuring, management and participation in
public offerings and private placements of primarily equity securities. It also
advises its clients in connection with mergers, acquisitions and divestitures.
The Company also serves as the managing underwriter or co-underwriter in
initial public offerings and private placements of primarily equity securities.
Since 1990, the Company has been the managing or co-managing underwriter of
fifteen (15) initial public offerings and four (4) private placements which
raised in excess of one hundred twenty five million dollars ($125,000,000). The
Company generally underwrites small capitalization growth companies in their
relatively fast growth stage. These companies are generally in information
technologies, such as software, medical products and pharmaceuticals. The
Company has also been a syndicate or selling group member in approximately
ninety-six (96) underwritings.
M. H. Meyerson & Co., Inc. is currently registered for retail distribution
in the following jurisdictions:
Alabama Kansas Ohio
Alaska Louisiana Oklahoma
Arizona Maine Oregon
California Maryland Pennsylvania
Colorado Massachusetts Rhode Island
Connecticut Michigan South Carolina
Delaware Minnesota South Dakota
District of Columbia Mississippi Tennessee
Florida Missouri Texas
Georgia Nevada Utah
Hawaii New Hampshire Vermont
Illinois New Jersey Virginia
Indiana New York West Virginia
Iowa North Carolina Wisconsin
Wyoming
Government Regulation
Securities and Exchange Commission ("SEC") is the federal agency
responsible for the administration of the federal securities laws. The Company
is registered as a broker/dealer with the SEC. Much of the regulation of
broker/dealers has been delegated to self-regulated organizations, principally
the NASD and national securities exchanges such as NASDAQ. These
self-regulatory organizations adopt rules (subject to approval by the SEC) that
govern the industry and conduct periodic examinations of the Company's
operations. Securities firms are also subject to regulation by state securities
administrators in those states in which they conduct business. The Company is
currently registered as a broker/dealer in 42 states and the District of
Columbia.
Broker/dealers are subject to regulation covering all aspects of the
securities business, including sales method, trade practices among
broker/dealers, use and safekeeping of customers' funds and securities, capital
structure of securities firms, record-keeping and the conduct of directors,
officers and employees. Additional legislation, changes in rules promulgated by
the SEC and self-regulatory organizations, or changes in the interpretation or
enforcement of existing laws and rules may directly affect the mode of operation
and profitability of broker/dealers. The SEC, self-regulatory organizations and
state securities commissions may conduct administrative proceedings which can
result in censure, fine, the issuance of cease-and-desist orders or the
suspension or expulsion of a broker/dealer, its officers or employees. The
principal purpose of regulation and discipline of broker/dealers is the
protection of customers and the securities markets, rather than protection of
creditors and stockholders of broker/dealers.
The SEC's Net Capital Rule imposes minimum financial requirements for all
registered broker/dealers doing business with the public. The Company is
subject to the requirements of this rule. The Net Capital Rule places limits on
certain of the Company's operations, such as underwriting activities and market
making and other principal trading activities. A decrease below minimum net
capital in the form of a significant operating loss or any unusually large
charge against the Company's net capital could adversely affect the ability of
the Company to expand or even maintain its present levels of business. See "Risk
Factors-Effect of Net Capital Requirements."
The Offering
Securities Offered
Terms of Redemption The Company has terminated its offer to amend the terms
of the Warrants for failure to receive the approval of a majority of
share of Common Stock (the "Common Stock") at $4.50 per
share. The Warrants expire five (5) years from January
18, 1994 unless redeemed sooner. See "Risk Factors -
Redeemable Warrants" and "Description of Securities -
Terms of Redeemable Warrants."
Shares of Common
Stock Outstanding(1)
Before and After the
Offering 4,993,335 shares as of May 31, 1996; 4,993,335 shares
post-offering.
Estimated Net
Proceeds The Company will not receive proceeds from this
offering.
Risk Factors Investment in the Warrants entails a high degree of
risk and immediate substantial dilution. See "Risk
Factors" and "Dilution."
NASDAQ Symbols Common Stock MHMY
Warrants MHMYW
(1) Assumes no exercise of outstanding Warrants and options.
Summary Financial Information
The following summary financial information has been summarized from the
Company's Financial Statements included elsewhere in this Prospectus. The
information should be read in conjunction with the Financial Statements and the
related notes thereto.
January 31,
1996 1995 1994
Balance Sheet Data:
Assets $19,379,985 $19,153,227 $21,517,163
Liabilities 7,324,848 7,474,145 7,899,533
Subordinated Debt 0 0 1,500,000
Shareholders' Equity 12,055,137 11,679,082 12,117,630
Statement of Operations Data: Year Ended January 31,
1996 1995 1994
Revenues
Net gain on securities
transactions $21,088,570 $14,466,377 $18,736,283
Underwriting 1,262,448 4,405,005 2,371,938
Commission 2,263,490 1,276,943 450,545
Interest and other revenue 330,613 437,377 38,527
Total Revenues 24,945,121 20,585,702 21,597,293
Expenses
Compensation and benefits 13,466,583 11,422,283 10,916,654
Clearance charges 4,536,060 4,119,228 3,815,282
Communications 2,244,565 1,936,361 1,548,544
Professional fees 537,443 710,173 683,610
Occupancy and equipment costs 630,145 573,398 518,913
Other operating expenses 2,390,849 2,579,983 1,732,552
Total Expenses 23,805,645 21,305,426 19,215,555
Income (Loss) Before Taxes 1,139,476 (719,724) 2,381,738
Provision For Income Taxes 464,689 (121,870) 951,748
Net Income $ 674,787 $ (597,854) $ 1,429,990
The Company intends to furnish its shareholders with annual reports
containing audited financial statements and opinion thereon expressed by its
independent auditors, and with quarterly reports for the first three quarters of
each fiscal year containing unaudited summary financial information.
RISK FACTORS
The Company has withdrawn its offer to amend the terms of the Warrants for
failure to obtain the approval of a majority of the outstanding Warrants and is
removing the Amended Warrants from registration pursuant to this Prospectus.
The risks factors described below therefore apply to the exercise of the
Warrants under their original terms only.
Exercise of Warrants under their original terms is speculative and involves
a high degree of risk and substantial dilution. In addition to the other
information contained in this Prospectus, the following should be considered
carefully in evaluating the Company and its business before purchasing the
Warrants.
Risks Related to the Company
1. Nature of Company's Business
The Company's securities business by its nature is subject to various
risks, particularly in volatile markets. These include the incurrence of losses
from trading and underwriting of securities, customer inability to meet
commitments (such as margin obligations), customer default and employee
misconduct and errors.
The Company's revenues, like those of other firms in the securities
industry, are directly related to fluctuations in trading volume and price
levels of securities. Such fluctuations are directly affected by regional,
national and international economic, regulatory and political conditions, broad
trends in business and finance and interest rates. Low trading volume and lack
of increasing securities prices generally result in reduced commissions and
investment banking revenues for firms such as the Company. In the past, heavy
trading volume has caused clearing and processing problems for the securities
industry and may do so in the future. In periods of reduced volume or
decreasing securities prices, profitability for firms such as the Company may be
adversely affected since many costs other than commission compensation are
relatively fixed.
Participation in underwriting of securities subjects the Company to a risk
of loss if the Company is unable to resell the securities underwritten. In
addition, in connection with underwriting activities, the Company is subject to
a risk of liability and expense resulting from possible claims against the
Underwriter under federal and state securities laws.
2. Broad Discretion in Application of Proceeds
The management of the Company has broad discretion to adjust the
application and allocation of the net proceeds of exercise of the Warrants, in
order to address changed circumstances and opportunities. Pending use of such
proceeds, the net proceeds of such exercise will be invested by the Company in
short-term, interest bearing obligations or marketable securities. See "Use
of Proceeds."
3. Substantial Control by Officers and Directors
Based upon the number of shares of Common Stock that will be outstanding
upon completion of the Warrants, officers and directors of the Company and
persons who may be deemed to be affiliates, as a group, beneficially own
approximately thirty-eight percent (38%) of the Company's outstanding Common
Stock, assuming no exercise of the Underwriter's Warrants or outstanding
options to purchase Common Stock of the Company. As a result, officers and
directors of the Company and their affiliates may be able to elect all members
of the Board of Directors and may retain the voting power to approve all matters
requiring approval by the Shareholders of the Company.
4. Dependence Upon Key Personnel
The Company is dependent, in particular, upon the services of its Chairman,
Martin H. Meyerson and its President, Michael Silvestri. If either Mr. Meyerson
or Mr. Silvestri is unable to perform his duties for whatever reason, the
Company's business could be adversely affected. The Company therefore has
obtained key person life insurance policies on Martin H. Meyerson and Michael
Silvestri with coverage on each in the amount of $1,000,000.
5. Competition
All aspects of the business of the Company are highly competitive. The
Company competes directly with numerous other securities brokers and dealers,
investment banking firms, life insurance sales agencies, investment advisors
and, indirectly for investment funds, with commercial banks. Many of the
Company's competitors have substantially greater capital and other resources
than the Company. The Company also competes with commercial banks in
government, government agency and municipal securities dealer activities. Some
commercial banks and thrift institutions also offer securities brokerage
services and many commercial banks offer a variety of investment banking
services. Competition among financial services firms also exists for investment
representatives and other personnel.
The securities industry has become considerably more concentrated and more
competitive since the latter 1960's as numerous securities firms have either
ceased operation or have been acquired by or merged into other firms. In
addition, companies not engaged primarily in the securities business, but having
substantial financial resources, have acquired leading securities firms. These
developments have increased competition from firms with greater capital
resources than those of the Company. Furthermore, numerous commercial banks
have petitioned the Board of Governors of the Federal Reserve System for
permission to enter into various new business activities from which they are
currently barred, such as underwriting certain mortgage-backed and municipal
revenue securities and securities backed by consumer loans. Various legislative
proposals, if enacted, would also permit commercial banks to engage in such
activities. Ultimately, these developments or other developments of a similar
nature may lead to the creation of integrated financial service firms that offer
a broader range of financial services.
The securities industry has experienced substantial commission discounting
by broker/dealers competing for institutional and individual brokerage business.
In addition, an increasing number of specialized firms now offer "discount"
services to individual customers. These firms generally effect transactions for
their customers on an "execution only" basis without offering other services
such as portfolio valuation, investment recommendations and research. The
continuation of such discounting and an increase in the number of new and
existing firms offering such discounts could adversely affect the Company's
agency retail business.
6. Risks of Principal Transactions
The Company's securities trading, market making and underwriting activities
involve the purchase and sale of securities as a principal. These involve the
risks of a change in the market price of such securities and of decreases in the
liquidity of markets, which can limit the Company's ability to sell securities
purchased or to purchase securities sold in such transactions. Trading
securities as a principal and underwriting corporate securities represent an
important part of the Company's business and subject the Company's capital to
significant risk.
7. Regulation
The Company's business is, and the securities industry generally is,
subject to extensive regulation at both the federal and state level by various
regulatory agencies which are charged with protecting the interests of
customers. Self-regulatory organizations such as the National Association of
Securities Dealers, Inc. (the "NASD") and state securities commissions require
strict compliance with their respective rules and regulations. Failure to
comply with any of these laws, rules and regulations could result in fines,
suspension or industry expulsion, which could have a material adverse effect
upon the Company.
8. Effect of Net Capital Requirements
The SEC's Net Capital Rule imposes minimum financial requirements for all
registered broker/dealers doing business with the public. The Company is
subject to the requirements of this rule. The Net Capital Rule places limits on
certain of the Company's operations, such as underwriting activities and market
making and other principal trading activities. A decrease below minimum net
capital in the form of a significant operating loss or any unusually large
charge against the Company's net capital could adversely affect the ability of
the Company to expand or even maintain its present levels of business.
9. Dilution
The holders of the Warrants will incur an immediate substantial dilution
from the exercise price in the net tangible book value of the securities issued
upon exercise of the Warrants. The current shareholders of the Company will
realize an immediate increase in net tangible book value of their shares of
Common Stock. Further dilution may occur if the Underwriter's Warrants are
exercised in part or in full. See "Dilution."
10. NASDAQ Maintenance Requirements; Possible Delisting of Securities from
NASDAQ System; Risks of Low-Priced Stocks
If the Company is unable to satisfy NASDAQ's maintenance criteria in the
future, its securities will be subject to being delisted, and trading, if any,
would thereafter be conducted in the over-the-counter market in the so-called
"pink sheets" or the "Electronic Bulletin Board" of the National Association of
Securities Dealers, Inc. ("NASD"). As a consequence of such delisting, an
investor could find it more difficult to dispose of, or to obtain accurate
quotations as to the price of, the Company's securities.
The Securities Enforcement and Penny Stock Reform Act of 1990 requires
additional disclosure, relating to the market for penny stocks, in connection
with trades in any stock defined as a penny stock. The SEC has adopted
regulations that generally define a penny stock to be any equity security that
has a market price of less than $5.00 per share, subject to certain exceptions.
Such exceptions include any equity security listed on NASDAQ and any equity
security issued by an issuer that has (i) net tangible assets of at least
$2,000,000, if such issuer has been in continuous operation for three years,
(ii) net tangible assets of at least $5,000,000, if such issuer has been in
continuous operation for less than three years, or (iii) average annual revenue
of at least $6,000,000 if such issuer has been in continuous operation for less
than three years. Unless an exception is available, the regulations require the
delivery, prior to any transaction involving a penny stock, of a disclosure
schedule explaining the penny stock market and the risks associated therewith.
If the securities of the Company are removed from listing by NASDAQ at any
time in the future, the Company's securities may become subject to rules that
impose additional sales practice requirements on broker/dealers who sell such
securities to persons other than established customers and accredited investors
(generally those with assets in excess of $1,000,000 or annual incomeexceeding
$200,000 or $300,000 together with their spouse). For transactions covered by
these rules, the broker/dealer must make a special suitability determination for
the purchase of such securities and have received the purchaser's written
consent to the transaction prior to the purchase. Additionally, for any
transaction involving a penny stock, unless exempt, the rules require the
delivery, prior to the transaction, of a disclosure schedule prepared by the
Commission relating to the penny stock market. The broker/dealer also must
disclose the commissions payable to both the broker/dealer and the registered
representative, current quotations for the securities and, if the broker/dealer
is the sole market maker, the broker/dealer must disclose this fact and the
broker/dealer's presumed control over the market. Finally, monthly statements
must be sent disclosing recent price information for the penny stock held in the
account and information on the limited market in penny stocks. Consequently,
the "penny stock" rules may restrict the ability of broker/dealers to sell the
Company's securities and may affect the ability of purchasers to sell the
Company's securities in the secondary market.
The Company's Common Stock, as of the date of this Prospectus, is not
technically within the definitional scope of a penny stock, and is exempt from
the definition of penny stock by law because it is listed on NASDAQ. However,
in the event that the Common Stock were subsequently to become characterized as
a penny stock, the market liquidity for the Company's securities could be
severely affected. In such an event, the regulations on penny stocks could
limit the ability of broker/dealers to sell the Company's securities and thus
the ability of purchasers of the Company's securities to sell their securities
in the secondary market. See "Description of Securities."
11. Director Liability
The Company has adopted the provisions of the New Jersey Business
Corporation Act permitting the Company to limit the liability of the Company's
directors to the Company and its stockholders for monetary damages and for
breach of fiduciary duty as a director. This could have the effect of making it
more difficult for the shareholders to recover against the officers and/or
directors of the Company for alleged breaches of fiduciary duties and other
matters.
12. Personnel Turnover
A substantial portion of the Company's revenue is generated through the
activities of its securities traders and registered representatives. The
inability to retain traders or such representatives or the inhibition of such
customer contact by regulation or otherwise could have a material adverse impact
on the Company's business and financial condition. Similarly, although there
has been limited turnover in the area, the loss of qualified operations
personnel could also have a material adverse impact on the Company.
13. Dividends
The Company authorized a dividend in the amount of $.03 per share for
fiscal year 1995. Each Director of the Company waived his right to receive
payment of such dividend. Therefore, the Company paid only $74,319 in dividends
to shareholders of the Company. The Company did not pay dividends in fiscal
year 1996. The payment of any future dividends will depend on such factors as
earning levels, anticipated capital requirements, the operating and financial
condition of the Company and other factors deemed relevant by the Board of
Directors. See "Dividend Policy."
14. Use of Proceeds for Venture Capital Investments
The Company intends to use a portion of the proceeds from this offering to
invest inventure capital opportunities and/or private placements. Such
investment decisions will be inthe sole discretion of the Company's Board of
Directors. Prospective Shareholders of the Company will have no control over
decisions by the Board of Directors to invest in any such capital venture
opportunities.
Risks Related to the Offering
1. Shares Eligible for Future Sale
Assuming the exercise of the Warrants in full, the Company will have
outstanding 7,293,335 shares of Common Stock. Of these shares, the 2,300,000
shares of Common Stock sold in the Company's initial public offering and the
2,300,000 shares underlying the Warrants will be freely tradable. All of the
remaining outstanding shares ("Restricted Shares") were issued by the Company in
reliance upon exemptions from the registration requirements of the 1933 Act and
may not be sold unless they are so registered thereunder or are sold pursuant to
an applicable exemption from registration including Rule 144 which governs the
sales of restricted securities.
Under Rule 144, a stockholder who has beneficially owned Restricted Shares
for at least two (2) years (including persons who may be deemed to be
"affiliates" of the Company under Rule 144) may sell within any three (3) month
period a number of shares that do not exceed the greater of: a) one percent
(1%) of the then outstanding shares of a particular class of the Company's
Common Stock as reported on its 10-Q filing, or b) the average weekly volume on
NASDAQ during the four (4) calendar weeks preceding such sale and may only sell
such shares through unsolicited brokers' transactions. A stockholder who is not
deemed to have been an "affiliate" of the Company for at least ninety (90) days
and who has beneficially owned his shares for at least three (3) years would be
entitled to sell such shares under Rule 144 without regard to the volume
limitations described above.
Sales of substantial amounts of shares of the Company's Common Stock,
pursuant to Rule 144 or otherwise, could adversely affect the market price of
the Common Stock and make it more difficult for the Company to sell equity
securities in the future at a time and price which the Company deems
appropriate. See "Shares Eligible for Future Sale."
2. Arbitrary Determination of Warrant Exercise Price
The exercise price for the Warrants has been determined by the Company.
This price does not necessarily bear any relationship to the Company's assets,
book value, net worth or results of operations of the Company or any other
established criteria of value. See "Determination of Offering Price" and
"Description of Securities."
3. Redeemable Warrants
The Warrants are redeemable by the Company for $.01 per Warrant, at any
time, upon thirty (30) days prior written notice, if the average closing price
or bid price of the Common Stock for three (3) consecutive business days equals
or exceeds $9.60 per share (the "Redemption Price"). The Redemption of the
Warrants by the Company could force the holders to exercise the Warrants and pay
the exercise price at a time when it may be disadvantageous for the holders to
do so, to sell the Warrants at the then current market price when they might
otherwise wish to hold the Warrants, or to accept the redemption price, which is
likely to be substantially less than the market value of the Warrants at the
time of redemption. In the event of the exercise of a substantial number of
Warrants offered hereby within a reasonably short period of time after the right
to exercise commences, the resulting increase in the amount of Common Stock of
the Company in the trading market could substantially affect the market price of
the Common Stock. See "Description of Securities - Common Stock Purchase
Warrants."
4. Underwriter's Unit Purchase Options
Subject to the requirements of the SEC and NASD, the Company granted to the
Underwriter in its initial public offering of the Company's common stock, as
partial consideration for services rendered, options to purchase up to 200,000
units (the "Underwriter's Unit Purchase Option") at an exercise price of $6.60
per Unit. The Underwriter's Unit Purchase Option has not been exercised to
date. Upon exercise of the Underwriter's Unit Purchase Option, the shares
underlying the Underwriter's Unit Purchase Option will be freely tradeable. An
exercise of the Underwriter's Unit Purchase Options, which may be effected at
any time, either in whole or in part, until January 18, 1999, may adversely
affect the Company's ability to obtain equity capital, and, if the Common Stock
issuable upon the exercise of the Underwriter's Unit Purchase Options is sold in
the public market, may adversely affect the market price of the Company's
Common Stock. The Underwriter's Unit Purchase Options, the Units issuable upon
the exercise of the Underwriter's Unit Purchase Options, the Common Stock,
Warrants comprising such Units, and the Common Stock issuable upon exercise of
such Warrants were included in the Registration Statement on Form SB-2 dated
January 18, 1994. The Company has agreed to keep such Registration Statement
current, which would result in substantial expense to the Company. This
obligation is in addition to certain registration rights granted to the
Underwriter.
5. Possible Inability to Maintain Effectiveness of Registration Statement
The Company intends to keep its Registration Statement on Form SB-2,
effective for the foreseeable future, including the periods during which the
Warrants are exercisable. However, there is no guarantee that the Company will
be able to do so or that the Company will be able to comply with all regulatory
requirements. In the event that the Company is unable to keep the Registration
Statement effective, a holder of the Warrants might not be able to exercise such
Warrants for shares of Common Stock. See "Description of Securities-Common Stock
Purchase Warrants".
USE OF PROCEEDS
Because the Company has not received written approval of the amended terms
of the Warrants by the majority of outstanding Warrants, the Company will not
receive any proceeds from this offering. The Company will receive proceeds from
the exercise of the 2,300,000 Warrants in the amount of $10,350,000 based on an
exercise price of $4.50 per Warrant.
DILUTION
Because the offer has been terminated for the reasons set forth elsewhere
in this Prospectus, no dilution to shareholders will occur as a result of this
Offering. Dilution may occur upon exercise of the Warrants under their original
terms.
DIVIDEND POLICY
The Company authorized a dividend in the amount of $.03 per share for
fiscal year 1995. Each Director of the Company waived his right to receive
payment of such dividend. Therefore, the Company paid only $74,319 in dividends
to shareholders of the Company. The Company did not pay dividends in fiscal
year 1996.
The payment of any future dividends will depend on such factors as earning
levels, anticipated capital requirements, the operating and financial condition
of the Company and other factors deemed relevant by the Board of Directors.
DETERMINATION OF OFFERING PRICE
The exercise price of the amended Warrants has been determined by the
Company. Among the factors considered in the determination was the market price
of the Company's Common Stock, an analysis of the areas of activity in which
the Company is engaged, the present state of the Company's business, the
Company's financial condition, the Company's prospects, an assessment of
management, the general condition of the securities market at the time of this
Offering and the demand for similar securities of comparable companies. The
exercise price of the amended Warrants does not necessarily bear any
relationship to assets, earnings, book value or other criteria of value
applicable to the Company. See "Risk Factors - Arbitrary Determination of
Warrant Exercise Price."
DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized to issue up to 25,000,000 shares of Common
Stock, of which 4,993,335 shares were issued and outstanding as of May 31, 1996
The holders of Common Stock (i) have equal ratable rights to dividends from
funds legally available therefore, when, as and if declared by the Board of
Directors of the Company; (ii) are entitled to share ratably in all of the
assets of the Company available for distribution to holders of Common Stock
upon liquidation, dissolution or winding up of the affairs of the Company; (iii)
do not have preemptive, subscription or conversion rights and there are no
redemption or sinking fund provisions applicablethereto; and (iv) are entitled
to one (1) vote per share on all matters on which stockholders may vote at all
meetings of stockholders. The Common Stock does not have cumulative voting
rights. All shares of Common Stock now outstanding are fully paid and
non-assessable, and all shares of Common Stock underlying the Warrants included
in this Offering, when issued, will be fully paid and non-assessable.
Terms of Redeemable Warrants
The Board of Directors of M.H. Meyerson & Co., Inc. has voted to seek
warrant holder approval for a proposed amendment to the terms of the 2,300,000
Redeemable Common Stock Purchase Warrants (the "Warrants"), issued in the
Company's initial public offering dated January 18, 1994, in the following
manner. Each amended Warrant would entitle the holder to purchase one (1) share
of Common Stock, par value $.01 per share (the "Common Stock"), at a price of
$4.00 per share (the "Exercise Price") for a period of five (5) years following
the date of the original offering. The amended Warrants would be redeemable by
the Company for $.01 per Warrant, at any time upon thirty (30) days written
notice, if the average closing price or bid price of the Common Stock for three
(3) consecutive business days equals or exceeds $5.00 per share (the "Redemption
Price"). The amended terms of the Warrants will not take effect without the
approval of a majority of the outstanding Warrants.
The Company will pay a commission in the amount of 2.5% ($.10 per Warrant)
to Broker-Dealers for each amended Warrant tendered for exercise by such
Broker-Dealer on behalf of it or its customers.
This Prospectus reflects the changes that would take effect upon receipt of
written approval of the majority of outstanding Warrants. Each unamended
Warrant entitles the holder to purchase one (1) share of Common Stock, par value
$.01 per share (the "Common Stock"), at a price of $4.50 per share for a period
of five years commencing January 18, 1994. The unamended Warrants are
redeemable by the Company for $.01 per Warrant, at any time after January 18,
1994, upon thirty (30) days written notice, if the average closing price or bid
price of the Common Stock for ten (10) consecutive business days equaled or
exceeded $9.60 per share.
THE AMENDED TERMS OF THE WARRANTS WILL NOT TAKE EFFECT WITHOUT THE APPROVAL
OF A MAJORITY OF THE OUTSTANDING WARRANTS. ONLY WARRANT HOLDERS AS OF THE
CLOSE OF BUSINESS ON THE DATE OF EFFECTIVENESS OF THIS PROSPECTUS WILL BE
ENTITLED TO VOTE ON THE AMENDMENT TO THE TERMS OF THE WARRANTS. SUCH WARRANT
HOLDERS MAY MANIFEST THEIR CONSENT TO THE AMENDED TERMS OF THE WARRANTS BY
SIGNING AND DATING THE ATTACHED CONSENT FORM AND RETURNING IT TO THE ADDRESS
PROVIDED THEREON. YOU MUST SIGN THE ENCLOSED CONSENT FORM AND RETURN IT IN THE
ENVELOPE PROVIDED IN ORDER TO VOTE FOR THE AMENDMENT TO THE TERMS OF THE
WARRANTS.
Upon receipt of written approval of the amended terms of the Warrants by
the majority of outstanding Warrants, the amended Warrants may be exercised by
filling out and signing the appropriate notice of exercise form attached to the
Warrant and mailing or delivering the same (together with the amended Warrant)
to the Warrant Agent in time to reach the Warrant Agent prior to the time fixed
for termination or redemption of the Warrants, accompanied by payment of the
full Warrant Exercise Price. Payment of the Warrant Exercise Price must be made
in United States currency by check, cash or bank draft payable to the order of
the Company. A certificate representing the shares of Common Stock issuable
upon exercise of the Warrants will be issued as soon as practicable after
receipt of the holder's request.
A Warrant Agreement has been entered into by the Company and American Stock
Transfer & Trust Company, who serves as the Warrant Agent. Upon receipt of
written approval of the amended terms of the Warrants by the majority of
outstanding Warrants, the Warrant Agreement will continue to govern the rights
and duties of the Company and the Warrant holders with respect to the Warrants,
subject to the amended terms. Copies of the Warrant Agreement are available for
inspection upon request to the Company. The Company has reserved a sufficient
number of shares of Common Stock for issuance upon exercise of the Warrants and
such shares, when issued, will be fully paid and nonassessable.
The holders of the amended Warrants would not be entitled to vote, receive
dividends, or exercise any of the rights of the holders of shares of Common
Stock for any purpose until such amended Warrants have been duly exercised and
payment of the respective Warrant Exercise Price has been made. The amended
Warrants would be listed for trading on NASDAQ under the symbol MHMYW.
For the life of the amended Warrants, the holders thereof would be given
the opportunity to profit from the rise, if any, in the market price of the
Common Stock at the expense of the remaining holders of the Common Stock.
However, during the outstanding period of the amended Warrants, the Company
might be deprived of favorable opportunities to secure additional equity capital
for its business, since holders of amended Warrants may be expected to exercise
their amended Warrants at a time when the Company would be able to obtain equity
capital by a public sale of new securities on terms more favorable than those
provided in the amended Warrants.
Underwriter's Unit Purchase Options
The Company granted to the Underwriter, options to purchase up to 200,000
Units, with each Unit consisting of one (1) share of Common Stock and one (1)
unamended Warrant. The exercise price is $6.60 per Unit. This is 165% of the
price of the Units as purchased by the public. The Underwriter's Unit Purchase
Option is not redeemable by the Company. To date, the Underwriter's Unit
Purchase Option has not been exercised.
New Jersey Law With Respect to Business Combinations
The Company is subject to the provisions of the New Jersey Shareholder's
Protection Act, Section 14A: 10A-1 to 14A: 10A-6, an anti-takeover law. In
general, those provisions prohibit a publicly held New Jersey corporation from
engaging in a "business combination" with a person who is an "interested
stockholder" for a period of five (5) years after the date of the transaction in
which that person became an interested stockholder, unless the business
combination is approved by the Company's Board of Directors prior to that
interested stockholder's stock acquisition date. After the expiration of such
five-year period, that person could engage in a business combination with the
resident domestic corporation only if it is approved by the affirmative vote of
the disinterested holders of two-thirds of the voting stock or if he pays at
least a formula price designed to ensure that all holders (other than that
person) of stock of the resident domestic corporation receive at least the
highest price per share paid by that person. A "business combination" includes
a merger, asset sale or other transaction resulting in a financial benefit to
the interested stockholder. An "interested stockholder" is a person who,
together with affiliates, owns (or, within three (3) years prior to the proposed
business combination, did own) ten percent (10%) or more of the New Jersey
corporation's voting stock.
Transfer Agent and Registrar
The transfer agent and registrar for the Company's Common Stock and
Warrants is American Stock Transfer and Trust Company located at 40 Wall Street,
New York, New York 10005. Its telephone number is (212) 936-5100.
SHARES ELIGIBLE FOR FUTURE SALE
Assuming the exercise of the Warrants in full, the Company will have
outstanding 7,293,335 shares of Common Stock. Of these shares, the 2,300,000
shares of Common Stock sold in the Company's initial public offering and the
2,300,000 shares underlying the Warrants will be freely tradable. All of the
remaining outstanding shares ("Restricted Shares") were issued by the Company in
reliance upon exemptions from the registration requirements of the 1933 Act and
may not be sold unless they are so registered thereunder or are sold pursuant to
an applicable exemption from registration including Rule 144 which governs the
sales of restricted securities.
Under Rule 144, a stockholder who has beneficially owned Restricted Shares
for at least two (2) years (including persons who may be deemed to be
"affiliates" of the Company under Rule 144) may sell within any three (3) month
period a number of shares that do not exceed the greater of: a) one percent
(1%) of the then outstanding shares of a particular class of the Company's
Common Stock as reported on its 10-Q filing, or b) the average weekly volume on
NASDAQ during the four (4) calendar weeks preceding such sale and may only sell
such shares through unsolicited brokers' transactions. A stockholder who is not
deemed to have been an "affiliate" of the Company for at least ninety (90) days
and who has beneficially owned his shares for at least three (3) years would be
entitled to sell such shares under Rule 144 without regard to the volume
limitations described above.
Sales of substantial amounts of shares of the Company's Common Stock,
pursuant to Rule 144 or otherwise, could adversely affect the market price of
the Common Stock and make it more difficult for the Company to sell equity
securities in the future at a time and price which the Company deems
appropriate. See "Shares Eligible for Future Sale."
LITIGATION
The Company is not presently involved in any material litigation.
EXPERTS
The financial statements of M. H. Meyerson & Co., Inc. at January 31, 1996,
January 31, 1995, and January 31, 1994 and for the years then ended, appearing
in this Prospectus and Registration Statement have been audited by Vincent R.
Vasallo, Independent Certified Public Accountants, as set forth in their report
thereon appearing elsewhere herein and in the Registration Statement, and are
included in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the securities being offered hereby will be passed upon for
M. H. Meyerson & Co., Inc. by The Stoppelman Firm, P.C.., 1749 Old Meadow Road,
Suite 610, McLean, VA 22102.
Until (twenty-five days after
the date of this Prospectus), all dealers
effecting transactions in the registered
securities, whether or not participating in the
distribution thereof, may be required to deliver
a Prospectus. This is in addition to the 2,300,000 Warrants
obligation of dealers to deliver a Prospectus
when acting as underwriters and with respect to
their unsold allotment or subscriptions.
TABLE OF CONTENTS
Page
Available Information. . . . . . 2
Incorporation of Certain Documents
by Reference . . . . . . . . . 2
Summary Prospectus . . . . . . . 3 M.H. Meyerson & Co., Inc.
The Company . . . . . . . . . . 3 525 Washington Boulevard
Risk Factors . . . . . . . . . . 7 Jersey City, New Jersey
07310
Use of Proceeds . . . . . . . . . 12 (800) 888-8118
Dilution. . . . . . . . . . . . . 12 Founded 1960
Dividend Policy . . . . . . . . . 12
Determination of Offering Price . 12
Description of Securities . . . . 13
Shares Eligible for Future Sale . 15
Litigation . . . . . . . . . . . 15
Experts . . . . . . . . . . . . 15
Legal Matters. . . . . . . . . . 15
No dealer, salesman or any other person
has been authorized to give any information or
to make any representations other than those
contained in this Prospectus, and, if given or
made, such information or representations must
not be relied on as having been authorized by
the Company. This Prospectus does not PROSPECTUS
constitute an offer to sell or a solicitation of
an offer to buy, by any person in any
jurisdiction in which it is unlawful for such
person to make such offer or solicitation.
Neither the delivery of this Prospectus nor any
offer, solicitation or sale made hereunder,
shall under any circumstances create an
implication that the information herein is
correct as of any time subsequent to the date of
the Prospectus. , 1996
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with this offering are as follows:
Printing Costs*. . . . . . . . . . . . . . . . . .7,500
Legal Fees and Expenses* . . . . . . . . . . . . 10,000
Miscellaneous* . . . . . . . . . . . . . . . . . .4,500
TOTAL . . . . . . . . . $22,000
* Indicates expenses that have been estimated for the purpose of filing.
Item 15. Indemnification of Directors and Officers
Article Eight of the Company's Amended and Restated Certificate of
Incorporation contains the following provision with respect to indemnification
of Directors, Officers and Employees:
EIGHTH: The Corporation shall indemnify its officers, directors,
employees, and agents and former officers, directors, employees, and
agents, and any other persons serving at the request the Corporation as an
officer, director, employee, or agent of another corporation, association,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney' fees, judgments, fines, and amounts paid in
settlement) incurred in connection with any pending or threatened action,
suit or proceeding, whether civil, criminal, administrative or
investigative, with respect to which such officer, director, employee or
agent or other person is a party, or is threatened to be made a party, to
the full extent permitted by the New Jersey Business Corporation Act. The
indemnification provided herein (I) shall not be deemed exclusive of any
other right to which any person seeking indemnification may be entitled
under any by-law, agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity,
and (ii) shall inure to the benefit of the heirs, executors and the
administrators of any such person. The Corporation shall have the power,
but shall not be obligated, to purchase and maintain insurance on behalf of
any person or person enumerated above against any liability asserted
against or incurred by them or any of them arising out of their status as
corporate directors, officers, employees or agents whether or not the
Corporation would have the power to indemnify them against such liability
under the provision of this article.
Article Ten of the Company's Restated By-Laws contains the following
provision with respect to indemnification of Directors, Officers and Employees:
TENTH: The Corporation shall indemnify its officers, Directors,
employees and agents to the fullest extent permitted by the General
Corporation Law of New Jersey, as amended from time to time.
Any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (whether or not
by or in the right of the Corporation) by reason of the fact that he is or
was a Director, officer, incorporator, employee, or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, incorporator, employee, partner, trustee, or agent of
another Corporation, partnership, joint venture, trust or other enterprise
(including an employee benefit plan), shall be entitled to be indemnified
by the Corporation to the full extent then permitted by law against
expenses (including attorney's fees), judgments, fines (including excise
taxes assessed on a person with respect to an employee benefit plan), and
amounts paid in settlement incurred by him in connection with such action,
suite, or proceeding. Such right of indemnification shall inure whether or
not the claim asserted is based on matters which antedate the adoption of
this Section 10.1. Such right of indemnification shall continue as to a
person who has ceased to be a Director, offices, incorporator, employee,
partner, trustee, or agent and shall inure to the benefit of the heirs and
personal representatives of such a person. The indemnification provided by
this Section 10.1 shall not be deemed exclusive of any other rights which
may be provided now or in the future under any provision currently in
effect or hereafter adopted of the By-Laws, by any agreement, by vote of
stockholders, by resolution of disinterested Directors, by provision of
law, or otherwise.
The New Jersey Business Corporation Act of the State of New Jersey contains
provisions entitling directors and officers of the Company to indemnification
from judgments, fines, amounts paid in settlement and reasonable expenses,
including attorney's fees, as the result of an action or proceeding in which
they may be involved by reason of being or having been a director or officer of
the Company provided said officers or directors acted in good faith.
Item 16. List of Exhibits
Exhibit
Page No. Description of Exhibit
3(a) Amended and Restated Certificate of Incorporation*
3(b) Restated By-Laws*
4(a) Form of Common Stock Certificate**
4(b) Form of Warrant Certificates**
4(c) Revised Form of Warrant Agreement between M. H. Meyerson & Co.,
Inc. and American Stock Transfer & Trust Company*
10(a) Revised Employment Agreement between the Company and Martin H.
Meyerson*
10(b) Revised Employment Agreement between the Company and Michael
Silvestri*
10(c) Form of Employee Stock Option Plan***
10(d) Revised Form of Underwriter's Unit Purchase Option*
10(f) Lease Agreement between M.H.M. Leasing Co., Inc. and UNUR,
Corp.**
20(a) Form of Consent of Warrant holders to amendment to terms of
Warrants****
24(a) Consent of Law Offices of John S. Stoppelman, P.C.
24(b) Consent of Vincent R. Vassallo
_____________
* Incorporated by reference to Amendment Number Three to the Company's
Registration Statement on Form SB-2 as filed with the Commission on January 10,
1994.
** Incorporated by reference to Amendment Number One to the Company's
Registration Statement on Form SB-2 as filed with the Commission on December 1,
1993.
*** Incorporated by reference to the Company's Registration Statement on Form
SB-2 as filed with the Commission on October 19, 1993.
**** Incorporated by reference to the Company's Registration Statement on Form
S-3 as filed with the Commission on July 3, 1996.
Item 17. Undertakings
A. Certificates
Pursuant to the Warrant Agreement between the Company and American Stock
Transfer & Trust Co. dated January 26, 1994, the certificates representing the
Warrants provided to the Underwriters at the closing of the Company's initial
public offering as specified in the Underwriting Agreement, in such
denominations and registered in such names as required by the Underwriters and
promptly delivered to each purchaser, will continue to represent the Warrants
under their amended terms.
B. Rule 415 Offering
The undersigned Company 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 1933 Act; (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) For the purpose of determining any liability under the 1933 Act,
each post-effective amendment that contains a form of prospectus 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. Indemnification
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
1933 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final adjudication of such
issue.
D. Rule 430A
The undersigned Registrant will:
(1) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of a
prospectus filed by the small business issuer under Rule 424(b)(1) or (4) or
497(h) under the Securities Act as part of this Registration Statement as of the
time the Commission declared it effective.
(2) For any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
Registration Statement for the securities offered in the Registration Statement,
and that the offering of the securities at that time as the initial bona fide
offering of those securities.
E. Request of Acceleration of Effective Date
The Company may elect to request acceleration of the Registration Statement
under Rule 461 of the 1933 Act.
SIGNATURES
In accordance with 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 of filing on Form S-3 and authorized this registration
statement to be signed on its behalf by the undersigned, in the County of Hudson
in the State of New Jersey on the 6th day of November, 1996.
M. H. Meyerson & Co., Inc.
By:
Michael Silvestri,
President
