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As filed with the Securities and Exchange Commission on June 10, 1999.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
M. H. MEYERSON & CO., INC.
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(Exact name of registrant as specified in its charter)
New Jersey 13-1924455
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
Newport Tower, 525 Washington Boulevard
Jersey City, NJ 07310 07310
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(Address of Principal Executive Offices) (Zip Code)
Edward I. Tishelman
c/o Hartman & Craven LLP
460 Park Avenue
New York, New York 10022
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(Name and address of agent for service)
(212) 753-7500
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(Telephone number, including area code, of agent for service)
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Copy to:
Edward I. Tishelman, Esq.
Hartman & Craven LLP
460 Park Avenue
New York, New York 10022
(212) 753-7500
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment Plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment Plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of each class maximum Proposed
of offering maximum
securities price aggregate Amount of
to be Amount to be per offering registration
registered registered share (1) price fee
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Common
Stock, par value
$.01 per share 500,000 shares $6.82 $3,410,000 $947.98
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(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of
1933, on the basis of the average of the high and low sale prices
reported on the Nasdaq National Market on June 4, 1999.
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.
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M.H. MEYERSON & CO., INC.
PROSPECTUS
500,000 SHARES OF
COMMON STOCK
This Prospectus relates to an offering from time to time of up to 500,000
shares of common stock of M.H. MEYERSON & CO., INC. The selling shareholders
identified in this prospectus (or their respective pledgees, donees,
transferees or other successors in interest that receive such shares as a gift,
partnership distribution or other non-sale related transfer) are offering all
of the shares to be sold in this offering. We issued the shares to the selling
shareholders on April 9, 1999 in a private transaction.
Investing in the common stock involves risks. See "Risk Factors" beginning
on page 1.
We will not receive any of the proceeds from the sale of the shares by the
selling shareholders. We will pay the expenses of registration of the shares
which may be offered by this prospectus.
The shares covered under the registration statement of which this
prospectus is a part may be offered for sale from time to time by or for the
account of the selling shareholders, or their pledgees, donees, transferees or
other successors in interest, in the open market, on the Nasdaq National Market
or on one or more exchanges on which the shares are then listed, in privately
negotiated transactions, in an underwritten offering, in a combination of such
methods, or by any other legally available means, at market prices prevailing
at the time of such sale, at prices related to such prevailing market prices,
at negotiated prices or at fixed prices. The shares are intended to be sold
through one or more broker-dealers or directly to purchasers. Such
broker-dealers may receive compensation in the form of discounts, concessions
or commissions from the selling shareholders, their successors in interest
and/or the purchasers of the shares for whom such broker-dealers may act as
agent or to whom they may sell as principal, or both (which compensation as to
a particular broker-dealer may be in excess of customary commissions). The
selling shareholders, their successors in interest and/or any broker-dealers
acting in connection with the sale of the shares hereunder may be deemed to be
underwriters within the meaning of Section 2(11) of the Securities Act, and any
commissions or other compensation received by them and any profits realized by
them on the resale of the shares as principals may be deemed underwriting
compensation under the Securities Act. We will not act as a broker-dealer for
the selling shareholders in selling any of the shares offered by this
prospectus.
Our common stock is traded on the Nasdaq National Market under the symbol
MHMY. On June 4, 1999, the closing price of our common stock as reported on
the Nasdaq National Market was $6.69.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is June , 1999.
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RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below may not be the
only ones we will face. Additional risks and uncertainties not presently known
to us or that we currently deem not material may also impair our business
operations. If any of the following risks actually occur, our business,
financial condition or results of operations could be materially adversely
affected.
Volatility in securities markets, particularly declining securities prices, may
adversely affect our revenues.
Our revenues are likely to be lower during periods of declining securities
prices or securities market inactivity in the sectors on which we focus, which
generally are the small capitalization companies. For example, in the late fall
of 1998, when securities prices plummeted, our revenues and profitability were
materially and adversely affected. The six month period following these events
reflected a substantial rebound in pricing and volume in the securities markets
and helped us to achieve record revenues and significant profitability. This
fluctuation in our results, which has often been linked to general conditions
in the securities markets, must be considered a risk of investment in our
shares.
We face substantial competition which could adversely affect our future
results.
We compete directly with many other firms, including competitors which are
larger and have greater financial and other resources. These competitors may be
able to expend greater amounts in marketing campaigns, promotional materials,
providing auxiliary brokerage and financial services and securing personnel. In
addition, the recent financial success of the number of firms in the securities
field has led the competition to intensify with new entrants, including those
focusing on providing online and other brokerage and financial, insurance,
mortgage and banking services.
Securities regulation imposes significant and potentially burdensome
obligations upon us and other brokerage firms as a cost of business.
The securities industry in the United States is subject to extensive
regulation under both federal and state laws. In addition, the SEC, the NASD,
other self regulatory organizations, such as the various stock exchanges, and
other regulatory bodies, such as state securities commissions, require strict
compliance with their rules and regulations. As a matter of public policy,
regulatory bodies are charged with safeguarding the integrity of the securities
and other financial markets and with protecting the interests of clients
participating in those markets, and not with protecting the interests of our
shareholders. Broker-dealers are subject to regulations covering all aspects of
the securities business, including sales methods, trade practices among
broker-dealers, use and safekeeping of clients' funds and securities, capital
structure, record keeping and the
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conduct of directors, officers and employees. If we fail to comply with any of
these laws, rules or regulations we could be censured, fined, issued a
cease-and-desist order or we or our officers and employees could be suspended
or expelled, any of which could have a material adverse effect on our business,
financial condition or operating results.
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AVAILABLE INFORMATION
We have filed with the SEC the registration statement on form S-3 under the
Securities Act with respect to the common stock offered hereby. This prospectus,
which constitutes a part of the registration statement, does not contain all of
the information set forth in the registration statement and the exhibits filed
therewith, certain portions of which have been omitted as permitted by the rules
and regulations of the SEC. For further information with respect to our company
and the securities offered hereby, reference is hereby made to the registration
statement and to the exhibits filed as a part thereof. Statements contained in
this prospectus regarding the content of any contract or other document referred
to are not necessarily complete. In each instance, we refer you to the copy of
such contract or other document filed as an exhibit to the registration
statement, and each such statement is hereby qualified in its entirety by such
reference. The registration statement, including all exhibits thereto, may be
inspected without charge at the principal office of the SEC at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the commission's regional
offices located at Seven World Trade Center, Suite 1300, New York, New York
10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such materials may also be obtained from the Public
Reference Room of the commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, upon the payment of prescribed fees. Information on the
operation of the Public Reference Room can be obtained by calling the SEC at
1-800-SEC-0330. In addition, registration statements and certain other filings
made with the commission through its Electronic Data Gathering, Analysis and
Retrieval systems are publicly available through the commission's site on the
World Wide Web located at http://www.sec.gov. The registration statement,
including all exhibits and schedules thereto and amendments thereof, has been
filed with the commission through the Electronic Data Gathering, Analysis and
Retrieval system.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The commission allows us to "incorporate by reference" the information we
file with the commission. This permits us to disclose important information to
you by referencing these filed documents. We incorporate by reference in this
prospectus the following documents which have been filed with the commission:
(1) our Annual Report on Form 10-K for the year ended January 31, 1999;
(2) our Quarterly Report on Form 10-Q for the quarter ended April 30, 1999;
and
(3) the description of the common stock contained in our registration
statement on Form 8-A dated March 15, 1994.
We incorporate by reference all documents filed pursuant to Section 13(a),
13(c), 14 or 15(d)
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of the Exchange Act after the date of this prospectus and prior to the
termination of this offering.
We will promptly provide without charge to you, upon written or oral
request, a copy of any or all of the documents incorporated by reference in this
prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents. Requests should be
directed to M.H. MEYERSON & CO., INC., Att: Secretary, Newport Tower, 525
Washington Boulevard, Jersey City, New Jersey, telephone number 201-459-9500.
We maintain a site on the World Wide Web located at
http://www.mhmeyerson.com.
Unless otherwise indicated, references to "we", "us" and "our" refer to M.H.
MEYERSON & CO., INC., a New Jersey corporation, and its subsidiaries. Our Common
Stock, par value $.01 per share, is referred to in this prospectus as the
"common stock."
Forward Looking Statements
Some of the statements in this prospectus discuss future expectations or
state other "forward-looking" information. Those statements are subject to
known and unknown risks, uncertainties and other factors that could cause our
actual results to differ materially from those contemplated by the statements.
Factors that might cause such a difference include, by are not limited to,
general economic conditions and market conditions, including fluctuations in
volume and price levels of securities, changes in levels of interest rates and
demand for our investment banking services. All of these factors have an impact
on our net gain from securities transactions, underwriting, and commission
revenues. In periods of reduced market activity, profitability can be adversely
affected because certain expenses, consisting primarily of non-officer
compensation and benefits, communications and occupancy charges and equipment
costs remain relatively fixed.
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THE COMPANY
Our company, founded in 1960, is a registered securities broker-dealer and
member of the NASD. We are a full service financial and investment banking firm
which we regard as organized, for functional purposes, in eight (8) operational
divisions:
1. Wholesale Trading and Market Making - Here we engage in buying and
selling securities on behalf of our own trading accounts, usually with
other dealers on the other side of a transaction. In market making
transactions, we stand ready to buy or sell a particular security at a
price quoted by us. As of March 1, 1999, we were market makers in
approximately 3,100 securities. We are a significant market maker in
NASDAQ and bulletin board securities; these trading activities have
historically accounted for the largest part of our revenues.
We employ 38 securities traders and 25 assistant traders in this
division. We incentivize our traders by structuring their compensation
to accord them with a sliding scale percentage of trading profits or
losses from their trading accounts, after deduction of general
expenses. Our management and compliance personnel supervise these
trading activities and require the maintenance of reserves and trading
position limits by these personnel so as to attempt to mitigate
trading losses. In so doing, we are in rigorous compliance with NASDAQ
and other regulatory requirements as well as the traditional standards
of commercial honor in conducting the brokerage business.
2. Correspondent Services - We provide execution services, primarily to
retail service firms and other customers, who wish to use our
expertise to enable them to purchase or sell securities on behalf of
their retail customers. Among our clients are large retail firms,
discount securities brokers, banks and financial institutions. We
provide almost instant execution of customer orders for these clients
at very competitive costs.
3. Retail Securities Services - We have approximately 14,500 retail
customer accounts which we service through 52 licensed registered
representatives, of whom 25 also hold higher licenses as registered
securities principals. Our clients consist of individuals and
institutions, many of whom are sophisticated securities investors and
who have maintained their accounts with us for a lengthy period of
time. Our retail customer accounts are carried on a "fully disclosed"
A basis by Bear, Stearns Securities Corp., member of the New York and
other principal stock exchanges, pursuant to a clearing agreement. This
agreement provides that customer securities positions and credit
balances held at Bear, Stearns Securities Corp. are insured for an
unlimited amount; this includes $500,000 coverage by Securities
Investors Protection Corp., which maintains $100,000 coverage of cash
balances.
4. Institutional Sales - Our institutional sales division maintains
accounts with hundreds of investment and mutual funds, foreign and
domestic banks, investment trusts and other
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institutional investment vehicles. These institutional clients are
serviced by six of our sales, investment and research staff.
5. Investment Banking - We have long focused our efforts in the
investment banking sector, where we assist small growing companies in
the structure and planning of their business activities and their
capital-raising plans. Our 10 investment banking professionals bring
vast experience to the evaluation of developmental and growth
companies who, in our judgment, have the potential, through business,
management, proprietary assets and other factors, to become successful
public enterprises. Among our activities in this field, we assist
early capital formation by way of private placements of equity
securities, and assist more mature enterprises in the structuring of
public offerings. We bring value to these clients by assisting their
business plans, growth strategies, and expansion potential while also
identifying and advising them as to strategic alliances, mergers,
acquisitions and divestitures.
Since 1990, we have managed or co-managed 30 initial public offerings
and secondary offerings and acted as placement agent for over 20
private placements of securities, thereby raising for our clients more
than $460,000,000 for their capital formation activities. We favor
small companies in fields offering rapid potential growth, such as
computer software, electronic commerce, medical products and
pharmaceuticals.
Our investment banking division also prepares and disseminates
research reports on publicly traded companies which we believe present
special opportunities for purchase and investment by our clients and
others.
6. Fixed Income - Since 1997, we acted as manager or co-manager for
various offerings of municipal bonds raising approximately
$140,000,000 for state and local entities. We also acted as
participants in selling groups, which increases our ability to offer
this type of investment to our clients. Our fixed income department,
comprised of 13 professionals, also advises clients on investments in
municipal, government and corporate bonds.
7. Syndicate - These activities have resulted in our being included in
approximately 197 equity underwritings since 1990. These are in
addition to equity offerings we have managed as underwriter or
co-underwriter in that time period. By virtue of participating in
these syndicates and underwriting activities, we are able to offer our
institutional and retail clients the ability to participate in these
placements of what we view as highly attractive offerings.
8. Emeyerson.com Electronic Trading Subsidiary - On January 29, 1999, we
organized our Emeyerson.com Inc. subsidiary. At this date, we own over
80% of this subsidiary, and have raised approximately $950,000 by
private placements of its stock, to point it to the commencement of
business. Emeyerson has filed its broker-dealer registration which is
now in the process of review and comment by the NASD and SEC. We are
also
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preparing to register Emeyerson as a broker-dealer in substantially
all of the states. We anticipate that, by the latter part of this
calendar year, Emeyerson's registration process will have been
completed at the national level and will be ongoing and continuing at
the state level. While the early stages of Emeyerson's development are
being assisted by our parent company, we are interviewing and
preparing to have Emeyerson hire executive and financial management
which will assist it in commencing its activities as a retail online
brokerage company. We intend to have Emeyerson license a cost
efficient and fast electronic trading system, including an
instantaneous order input and execution system, so that our customers
may, through their home computer or other devices, purchase and sell
stocks and other equity securities.
Our goal, through Emeyerson, will be to present investors with a
convenient, cost-effective manner in which to execute their
transactions and receive a vast array of current, constantly updating
financial information, consisting of investment reports, charts, and
instantaneous trading quotations.
Corporate Strategy
As we enter our fortieth anniversary year of investment banking, our goal
and strategy is to maintain our historic strengths in market making, investment
banking and capital formation activities while expanding our product base and
capabilities on a well planned and controlled scale. We plan to do this by:
o Utilizing the latest electronic trading and information technology. We have
increased our trading and access to markets and information to meet the new
trading rules. We have, among other thing, linked a number of automated
trading systems to our arsenal, such as Selectnet, Redi, Instinet and other
electronic communications networks, and the automated ticketless Brass
trading program. The Brass system, which, in effect, makes trading
"paperless", enhances the ability of our traders to focus on market
conditions by eliminating the prior administrative burden incumbent in
trading. The Selectnet, Redi and Instinet networks link us with trading
partners throughout the United States, including other brokerage firms,
block trading desks and specialists on the regional exchanges. These
systems provide us with access into every major securities exchange on a
worldwide basis. We also employ the Autex electronic volume monitoring
system, which permits us to determine our overall volume of trading as well
as our relative trading volume in a specific security. During Calendar
1998, Autex reported that we ranked 24th in total market making volume in
NASDAQ and bulletin board securities.
o Our electronic commerce and internet investment banking activities are
being expanded to cover:
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1. Raising private placement or other funding for small but dynamically
expanding electronic commerce entities, while sometimes investing in
these operations to secure a minority position in the shareholdings
for our firm.
2. Analyzing the needs of clients involved in these fields so that we may
advise them in acquiring other operations or expanding their domain
sites and activities to encompass other related businesses, which
utilize the same basic technology and skills. In this regard, we are
helping finance and advise an electronic auction site, an internet
general commerce site and similar enterprises.
o Strategic Alliances with Other Institutions - Since we view the securities
industry and financial industries in general as involved in a vast
expansionist phase - both horizontally by taking on a variety of banking,
financial and securities products and vertically by linking up European,
Far Eastern and American firms-we intend to explore these possibilities for
ourselves as well. We will do this so that:
1. We are able to offer our retail and institutional clients a wider
variety of products;
2. We gain access to other products and overseas markets for our
customers;
3. We are able to make available to overseas parties the ability to gain
access to U.S. securities markets and financial products.
In this way, we seek to add value for our shareholders, provide greater
services for our clients, and participate in the product and global
expansionist surge of securities and financial firms. The movement to
greater communications resources and electronic commerce, through the
Internet and otherwise, has accelerated these trends. We intend to
participate, but only after carefully examining the risks and potential
rewards involved so that we are not exposing ourselves to significantly
greater financial risk in the implementation of our strategic plans. We
also will move forward only if we are able to assure ourselves and our
clients of being able to continue to provide at least the same personalized
and professional servicing of their financial needs and accounts that we
have historically provided to them.
Operations
We do not hold client funds or securities and do not directly process back
office operations. We clear most transactions for our institutional clients and
all transactions for our own proprietary trading accounts with Spear, Leeds &
Kellogg, Inc., members of the New York Stock Exchange and other principal stock
exchanges. We clear all transactions for our retail customers with Bear, Stearns
Securities Corp., a firm which clears for more brokers than any other national
entity. All clearing activities are carried on a fully disclosed basis with our
customers. These clearing services are furnished to us and our clients for a
fee and include billing, custody of securities, credit review (including for
margin accounts) and similar activities.
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However, if our customers do not pay or deliver securities for a trade or if
they do not properly maintain their credit balances on "margin" accounts, and
there is a loss for which we cannot collect from our customer, we are generally
liable for such losses. We maintain our back office and compliance divisions to
supervise our activities generally and to ensure financial and regulatory
compliance with applicable rules.
Vendors
We employ a multitude of third party vendors which supply us with
information services and software, including stock quotations, stock trading
charts, news and financial data. We have alternate sources for these services
and, accordingly, do not consider ourselves dependent on any one or more of
these suppliers.
Competition
The securities industry is very competitive and, with technical innovation,
is becoming even more so. Accordingly, we seek to compete based upon our
traditional strengths built up over a forty year period of time of:
o quality
o efficiency
o price
o reliability of our trading abilities
o our reputation in the markets and with other market professionals
o relationships with our institutional and retail clients
o our skilled and experienced management team
o research data
We also utilize what we consider the best and most reliable of technological
advances in order to compete and maintain the quality of services provided. We
are competing with a galaxy of large and small brokerage firms which utilize
both traditional methods and electronic commerce to transact their business.
We encounter intense competition in all aspects of the securities business
and compete directly with other securities firms, a significant number of which
have substantially greater capital and other resources. Many of these
competitors now offer a wider range of financial services although our strategy
is to bridge this gap by broadening our product line. In addition to
competition from firms currently in the securities business there has recently
been increasing competition from other sources such as commercial banks and
insurance companies offering financial services. We believe that the principal
competitive factors in the securities industry are the quality and ability of
professional personnel and relative prices of services and products offered. We
and our competitors also directly solicit potential customers and furnish
investment research publications to investors in an effort to hold and attract
existing and potential clients.
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Government Regulation
The securities industry in the United States is subject to extensive
regulation under both federal and state laws. We are registered as a
broker/dealer with the SEC. Much of the regulation of broker/dealers has been
delegated to self-regulatory 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 our operations. Securities firms are also subject to
regulation by state securities administrators in those states in which they
conduct business.
Regulatory bodies are charged with safeguarding the integrity of the
securities and other financial markets and with protecting the interests of
clients participating in those markets, but not with protecting the interests
of our shareholders. Broker-dealers are subject to regulations covering all
aspects of the securities business, including sales methods, trade practices
among broker-dealers, use and safekeeping of clients' funds and securities,
capital structure, record keeping and the conduct of directors, officers and
employees.
Net Capital Requirements
The SEC, NASD and various other regulatory agencies have rigid rules
requiring the maintenance of specific levels of net capital by securities
brokers, including the SEC's uniform net capital rule which we must comply
with. Net capital is defined as assets minus liabilities plus other allowable
credits and qualifying subordinated borrowings less mandatory deductions that
result from excluding assets that are not readily convertible into cash and
from valuing other assets, such as a firm's positions in securities, on a
stringent basis. Among these deductions are adjustments in the market value of
securities to reflect the possibility of a market decline prior to disposition.
As of January 31, 1999, we were required to maintain minimum net capital,
in accordance with SEC rules, of $1,000,000 and had total net capital of
approximately $9,445,000 or approximately $8,445,000 in excess of our minimum
net capital requirements.
If we fail to maintain the required net capital we may be subject to
suspension or revocation of registration by the SEC and suspension or expulsion
by the NASD and other regulatory bodies. In addition, a change in the net
capital rules, the imposition of new rules, a specific operating loss, or any
unusually large charge against net capital could limit our operations that
require the intensive use of capital and could limit our ability to expand our
business. The net capital rules also could restrict our ability to withdraw
capital, which could limit our ability to pay dividends, repay debt and
repurchase shares of our outstanding stock.
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Personnel
As of March 31, 1999, we employ a total of 182 full-time persons, whose
primary roles are: 3 engaged in executive management, 5 accounting, 6
compliance, 18 back office personnel, 5 retail clerical, 52 retail
representatives, 6 institutional/research, 10 investment banking, 63 trading
and 13 bonds and fixed income. Our relations with our employees are generally
good and we have no collective bargaining agreements with any labor unions.
Our registered representatives are required to take examinations
administered by the NASD and state authorities in order to be qualified to
transact business. Our success will depend on our ability to hire and retain
additional qualified trading, technical and financial personnel, who are
generally in high demand.
Executive Offices
Our principal executive offices are located at Newport Tower, 525
Washington Boulevard, Jersey City, New Jersey, and our telephone number is
201-459-9500.
SELLING SHAREHOLDERS
The shares being offered for resale by the selling shareholders were
acquired in a private transaction with our company on April 9, 1999. Prior to
such purchase, the selling shareholders had no relationship with our company. As
part of such transaction we granted the selling shareholders certain
registration rights pursuant to which we agreed to keep the registration
statement, of which this prospectus is a part, effective until the earlier of
the date that all of such shares (i) have been sold pursuant to the registration
statement and (ii) may be sold without registration. We agreed to pay the
expenses of registering the shares under the Securities Act, including
registration and filing fees, blue sky expenses, printing expenses, accounting
fees, administrative expenses and our counsel fees.
The following table sets forth the name of each selling shareholder, the
number of shares of common stock beneficially owned by such selling shareholder
as of June 7, 1999 and the number of shares being offered by each selling
shareholder. The shares being offered by this prospectus are being registered
to permit public secondary trading, and the selling shareholders may offer all
or part of the shares for resale from time to time. However, such selling
shareholders are under no obligation to sell all or any portion of such shares
nor are such selling shareholders obligated to sell any shares immediately
under this prospectus. All information with respect to share ownership has been
furnished to us by the selling shareholders. Because the selling shareholders
may sell all or part of their shares, no estimates can be given as to the
number of shares that will be held by any selling shareholder upon termination
of any offering made hereby.
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As described in the notes to the table, voting and investment power with
respect to the shares is shared by the named shareholders so that, technically
and for purposes of the table, each shareholder is shown as beneficially owning
500,000 shares; the total number of shares that is, in fact, owned by all these
shareholders is the same 500,000 shares.
<TABLE>
<CAPTION>
Shares Beneficially Shares to be Shares
Name of Selling Owned Prior to Sold in the Owned After
Shareholder the Offering (1) Offering the Offering(1)(2)
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<S> <C> <C> <C>
Archery Capital, LLC 500,000 500,000 0
Pharos Fund Limited 500,000 500,000 0
Pharos Genesis Fund Limited 500,000 500,000 0
Lighthouse Partners USA, L.P. 500,000 500,000 0
Lighthouse Genesis Partners 500,000 500,000 0
USA, L.P.
Erinch R. Ozada 500,000 500,000 0
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Total to be sold: 500,000
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</TABLE>
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(1) Beneficial ownership is determined in accordance with Rule 13d-3 of
the Exchange Act. The persons named in the table above have shared
voting and investment power with respect to all shares of common stock
shown as beneficially owned by them.
(2) Assumes all shares offered hereby are sold in the Offering.
USE OF PROCEEDS
We will not receive any proceeds from the sales of the shares of
common stock. All of the shares of common stock being offered are beneficially
owned by the selling shareholders named in this prospectus and the proceeds of
sales will go to them.
PLAN OF DISTRIBUTION
The shares may be sold or distributed from time to time by the selling
shareholders or by pledgees, donees or transferees of, or successors in
interest to, the selling shareholders, directly to one or more purchasers
(including pledgees) or through brokers, dealers or underwriters who may act
solely as agents or may acquire shares as principals, at market prices
prevailing at the
12
<PAGE>
time of sale, at prices related to such prevailing market prices, at negotiated
prices or at fixed prices, which may be changed. The distribution of the shares
may be made in one or more of the following methods: (i) ordinary brokers
transactions, which may include long or short sales, (ii) transactions
involving cross or block trades or otherwise on the Nasdaq National Market,
(iii) purchase by brokers, dealers or underwriters as principal and resale by
such purchasers for their own accounts pursuant to this prospectus, (iv) "at
the market" to or through market makers or into an existing market for the
common stock, (v) in other ways not involving market makers or established
trading markets, including direct sales to purchasers or sales effected through
agents, (vi) through transactions in options, swaps or other derivatives
(whether exchange listed or otherwise), or (vii) any combination of the
foregoing, or by any other legally available means. In addition, the selling
shareholders or their successors in interest may enter into hedging
transactions with broker-dealers who may engage in short sales of shares of
common stock in the course of hedging the positions they assume with the
selling shareholders. The selling shareholders or their successors in interest
may also enter into option or other transactions with broker-dealers that
require the delivery by such broker-dealers of the shares, which shares may be
resold thereafter pursuant to this prospectus.
Brokers, dealers, underwriters or agents participating in the
distribution of the shares may receive compensation in the form of discounts,
concessions or commissions from the selling shareholders and/or the purchasers
of shares for whom such broker-dealers may act as agent or to whom they may
sell as principal, or both (which compensation as to a particular broker-dealer
may be in excess of customary commissions). The selling shareholders and any
broker-dealers acting in connection with the sale of the shares hereunder may
be deemed to be underwriters within the meaning of section 2(11) of the
Securities Act, and any commissions received by them and any profit realized by
them on the resale of shares as principals may be deemed underwriting
compensation under the Securities Act. Neither we nor any selling shareholder
can presently estimate the amount of such compensation. We know of no existing
arrangements between any selling shareholder and any other shareholder, broker,
dealer, underwriter or agent relating to the sale or distribution of the
shares. Furthermore, we will not act as a broker-dealer for the selling
shareholders in selling any of the shares offered by this prospectus.
Each selling shareholder and any other persons participating in a
distribution of securities will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including, without
limitation, Regulation M, which may restrict certain activities of, and limit
the timing of purchases and sales of securities by, selling shareholders and
other persons participating in a distribution of securities. Furthermore, under
Regulation M, persons engaged in a distribution of securities are prohibited
from simultaneously engaging in market making and certain other activities with
respect to such securities for a specified period of time prior to the
commencement of such distributions subject to specified exceptions or
exemptions. All of the foregoing may affect the marketability of the securities
offered hereby.
Any securities covered by this prospectus that qualify for sale
pursuant to rule 144 under the Securities Act may be sold under that rule
rather than pursuant to this prospectus.
13
<PAGE>
There can be no assurance that the selling shareholders will sell any
or all of the shares of common stock offered by this prospectus.
CERTAIN MATTERS RELATING TO THE
COMMON STOCK AND VOTING
Amendments to our company's certificate of incorporation require the
affirmative vote of two-thirds of our outstanding shares of common stock, unless
our board of directors, also by a two-thirds vote and on a case-by-case basis,
reduces the number of shares required to amend the certificate of incorporation
but not below a majority of the shares outstanding.
Our shareholders may not take action by written consent without a
meeting.
Our board of directors is divided into three classes, with the number
of directors in each class fixed by the board of directors, and with the term of
office of one class expiring each year. There are currently two classes of three
directors each and one class of two directors.
LEGAL MATTERS
The validity of the shares of common stock being offered hereby will
be passed upon for us by Hartman & Craven LLP, 460 Park Avenue, New York, New
York 10022.
EXPERTS
The financial statements incorporated in this prospectus that are
contained in our Annual Report on Form 10-K for the year ended January 31, 1999
have been audited by Vincent R. Vassallo, CPA, independent accountants, as
indicated in their report with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in auditing and accounting
in giving said report.
14
<PAGE>
------------------------------ ------------------------------
We have not authorized any 500,000 Shares
dealer, salesperson or any other
person to give any information or M.H. MEYERSON & CO., INC.
to represent anything not contained
in this prospectus. You must not Common Stock
rely on any unauthorized
information. This prospectus does ------------------------------
not offer to sell or buy any shares PROSPECTUS
in any jurisdiction where it is
unlawful.
------------------------------ June , 1999
----
------------------------------
- ------------------------------
TABLE OF CONTENTS
Risk Factors......................... 1
Available Information................ 1
Incorporation of Certain Documents
by Reference..................... 1
Forward-Looking Statements........... 2
The Company.......................... 5
Selling Shareholders................. 11
Use of Proceeds...................... 12
Plan of Distribution................. 12
Certain Matters Relating to the
Common Stock and Voting.......... 14
Legal Matters........................ 14
Experts.............................. 14
------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission Registration...........$ 947.98
Printing.................................................. 5,000.00*
Legal Fees................................................ 9,500.00*
Miscellaneous Expenses.................................... 2,000.00*
Total............... $ 17,447.98*
===========
- ----------
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The 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.
Article EIGHTH of the Company's Amended and Restated Certificate of
Incorporation, as amended, contains the following provision with respect to
indemnification of Directors and Officers:
"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 of
the Corporation as an officer, director, employee, or agent of another
corporation, association, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's 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 shareholders 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 persons enumerated above against any
liability asserted against or incurred
II-1
<PAGE>
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 X of the Company's Restated By-Laws contains the following
provision with respect to indemnification of Directors and Officers:
"10.1: 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, suit, 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, officer,
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 shareholders, by
resolution of disinterested Directors, by provision of law, or
otherwise."
The Company may enter into one or more agreements with any person
which provide for indemnification greater or different than that provided in
Article EIGHTH. In addition, the Company maintains directors' and officers'
reimbursement and liability insurance pursuant to standard form policies. The
risks covered by such policies include certain liabilities under the securities
laws.
ITEM 16. EXHIBITS.
EXHIBIT NO.
- --------------
4.1 Amended and Restated Certificate of Incorporation of the
Company, as amended.
4.2 Restated By-laws of the Company.
II-2
<PAGE>
4.3 Stock Purchase Agreement dated April 9, 1999 between Archery
Capital, LLC and the Company.
5 Opinion of Hartman & Craven LLP with respect to the legality
of the securities being registered hereby.
23.1 Consent of Vincent R. Vassallo, CPA.
23.2 The consent of Hartman & Craven LLP is contained in its
opinion filed as Exhibit 5 to this registration statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1993;
(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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(l)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section l5(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(4) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
II-3
<PAGE>
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jersey City, New Jersey on June 10, 1999.
M.H. MEYERSON & CO., INC.
By: /s/ Michael Silvestri
----------------------
Michael Silvestri
President and Chief Operating Officer
Each person whose signature appears below constitutes and appoints
Martin H. Meyerson and Michael Silvestri, and each of them, his true and lawful
attorney-in-fact and agent, acting alone, with full powers of substitution and
resubstitution, for his or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, acting alone, or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signatures Title Date
- ---------- ----- ----
Chairman, Chief Executive
Officer, Chief Financial
/s/ Martin H. Meyerson Officer and Director (Principal
- ------------------------- Executive Officer and Principal
Martin H. Meyerson Financial Officer) June 10, 1999
President, Chief Operating
/s/ Michael Silvestri Officer and Director June 10, 1999
- -------------------------
Michael Silvestri
/s/ Kenneth J. Koock Vice Chairman and Director June 10, 1999
- -------------------------
Kenneth J. Koock
Vice President, Foreign Trading,
/s/ Jeffrey E. Meyerson and Director June 10, 1999
- -------------------------
Jeffrey E. Meyerson
/s/ Eugene M. Whitehouse Vice President, Controller, June 10, 1999
- ------------------------- Secretary, Treasurer and Director
Eugene M. Whitehouse (Principal Accounting Officer)
/s/ Bertram Siegel, Esq. Director June 10, 1999
- -------------------------
Bertram Siegel, Esq.
/s/ Martin Leventhal, CPA Director June 8, 1999
- -------------------------
Martin Leventhal, CPA
/s/ Alfred T. Duncan Director June 10, 1999
- -------------------------
Alfred T. Duncan
II-5
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation of the
Company, as amended.
4.2 Restated By-laws of the Company.
4.3 Stock Purchase Agreement dated April 9, 1999 between Archery
Capital, LLC and the Company.
5 Opinion of Hartman & Craven LLP with respect to the legality
of the securities being registered hereby.
23.1 Consent of Vincent R. Vassallo, CPA.
23.2 The consent of Hartman & Craven LLP is contained in its
opinion filed as Exhibit 5 to this registration statement.
II-6
<PAGE>
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
M. H. MEYERSON & CO., INC.
M. H. Meyerson & Co., Inc. (the "Corporation") hereby certifies that:
A. The Corporation was originally incorporated on December 13, 1966.
B. The Amended and Restated Certificate of Incorporation set forth
herein was duly adopted in accordance with the provisions of Section
14A:9-1 of the New Jersey Business Corporation Act by a resolution of
the Board of Directors setting forth the Amended and Restated
Certificate of Incorporation and declaring its advisability, given
pursuant to Section 14A:9-1 of the New Jersey Business Corporation Act,
and by adoption by a majority of the holders of all outstanding stock.
C. The certificate of Incorporation of the Corporation as now in full
force and effect is hereby restated, integrated and amended to read as
follows:
FIRST: The name of the corporation is M. H. MEYERSON & CO., INC. (the
"Corporation").
SECOND: The corporation filed its original certificate of incorporation
for the State of New Jersey on December 13, 1966.
THIRD: The address of its principle office in the State of New Jersey
is 30 Montgomery Street, Jersey City, New Jersey 07302. The name of its
registered agent at such address is Mr. Michael Silvestri.
FOURTH: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the New Jersey
Business Corporation Act.
FIFTH: The Corporation may engage in any activity within the purpose
for which corporations may be organized under the New Jersey Business
Corporation Act. In furtherance and not in limitation of the powers conferred by
the laws of the State of New Jersey, the following provisions are inserted in
this Amended and Restated Certificate of Incorporation for the regulation and
conduct of the business and affairs of the Corporation:
1
<PAGE>
1. The election of directors of the Corporation need not be by written
ballot unless the By-Laws so require.
2. The business and affairs of the Corporation shall by managed by, or
under the direction of, a Board of Directors consisting of not less than two (2)
nor more than eight (8) persons. The exact number of directors within the
minimum and maximum limitation specified herein shall by fixed from time to time
by resolution of a majority of the whole Board of Directors.
3. The directors of the Corporation, by the affirmative vote of a
majority of the whole Board, at any regular or special meeting, shall have the
power to adopt, amend or repeal By-Laws of the Corporation, provided, however,
that such power of the Board shall not divest the shareholders of the
Corporation of their power to adopt, amend or repeal By-Laws of the Corporation
as provided by the New Jersey Business Corporation Act.
4. Any vote or votes authorizing liquidation of the Corporation or
proceedings for its dissolution may provide, subject to the rights of creditors
and preferred shareholders, if any, for the distribution pro rata among the
shareholders of the Corporation of the assets of the Corporation, wholly or in
part in cash or in kind, whether such assets be in cash or other property, and
any such vote or votes may authorize the Board of Directors of the Corporation
to determine the valuation of the different assets of the Corporation for the
purpose of such liquidation and may divide or authorize the Board of Directors
to divide such assets or any part thereof among the shareholders of the
Corporation, in such manner that every shareholder will receive a proportionate
amount in value (determined as aforesaid) of cash and\or property of the
Corporation upon such agreement, vote of shareholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in to
a person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefits of the heirs, executors, and administrators of such a
person.
SIXTH: The Corporation shall have the authority to issue 25,000,000
share of Common Stock, par value one cent ($.01) per share. Holders of Common
Stock will be entitled to one vote per share.
SEVENTH: The Board of Directors of the Corporation is authorized to
determine or alter the voting powers, designations, preferences and relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, if any granted to or imposed upon any
wholly-unissued class and/or series of capital stock in any resolution or
resolutions of the Board of Directors originally fixing the number of shares
constituting any such
2
<PAGE>
wholly-unissued class and/or series, to increase or decrease (but not below the
number of shares of any such class and/or series then outstanding) the number of
shares of any such class and/or series, and to fix the number of shares of any
such class and/or series.
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 of the Corporation as an officer,
director, employee, or agent of another corporation association, partnership,
joint venture, trust or the enterprise, against expenses (including attorney'
fees, judgments, fines, and amounts paid in settlement) incurred in convention
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 shareholders 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.
NINTH: The private property of the shareholders of the Corporation
shall not be subject to the payment of corporate debts to any extent whatsoever.
TENTH: If any Article of this Amended and Restated Certificate of
Incorporation or any portion thereof is found to be void or unenforceable by a
court of competent jurisdiction, the remaining Articles or portions of said
Article, as the case may be, shall nevertheless remain in full force and effect
as though the unenforceable part had been severed and deleted.
3
<PAGE>
THE UNDERSIGNED, being the President of the Corporation, for the
purpose of amending and restating the Certificate of Incorporation, does make
this Amended and Restated Certificate of Incorporation, hereby declaring and
certifying that this is his act and deed and the facts herein stated are true,
and accordingly, has hereunto set his hand this 13th day of October, 1993.
M. H. MEYERSON & CO., INC.
By: /s/ Michael Silvestri
--------------------------
Michael Silvestri
President
State of New Jersey
County of Hudson
ACKNOWLEDGEMENT
BE it remembered that on this 13th day of October 1993, before me,
personally appeared Michael Silvestri, who is the president of M. H. Meyerson &
Co., Inc., who I am satisfied is the person names in , and who executed the
certain instrument, and therefore he acknowledged that he signed, sealed and
delivered same to as his act and deed for the used and purposes therein
expressed.
/s/ Linda Antosiewicz
----------------------------
Notary Public
4
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
M. H. MEYERSON & CO., INC.
M. H. Meyerson & Co., Inc. (the "Corporation" hereby certifies that:
A. The Corporation was originally incorporated on December 13, 1966 and
an Amended and Restated Certificate of Incorporation was filed on March
21, 1995.
B. The Amendments to the Certificate of Incorporation set forth herein
was duly adopted in accordance with the provision of Section 14A:9-2(4)
of the New Jersey Business Corporation Act (the "Act') by a resolution
of the Board of Directors approving the amendments and directing that
such amendments be submitted to a vote at a meeting of shareholders, by
written notice setting forth the proposed amendment being given to each
shareholder of record entitled to vote thereon within the time and
manner as provided for in the Act for the giving of notice of a meeting
of shareholders and by adoption of the Amendments by a majority of the
holders of all stock outstanding and entitled to vote thereon.
C. On June 13, 1997, the Corporation held its annual meeting of
shareholders. The number of shares outstanding and entitled to vote at
such meeting was 5,030,335. At such meeting, the shareholders adopted
the following amendments:
FIRST: By a vote of 3,055,966 for and 227,850 against, the shareholders
voted to amend Section 2 of the Fifth Article of the Corporation's Certificate
of Incorporation to read as follows:
"2. The business and affairs of the Corporation shall be managed by, or
under the direction of, a Board of Directors consisting of not less
than three (3) nor more than thirteen (13) persons. The exact number of
directors within the minimum and maximum limitation specified herein
shall be fixed from time to time by resolution of a majority of the
whole Board of Directors.
The Board of Directors shall be and is divided into three classes:
Class I, Class II and Class III. Such classes shall be as nearly equal
in number of directors as possible. Each Class I director shall serve
for a term ending at the third annual meeting following the annual
meeting at which such director was elected;
1
<PAGE>
provided however, that the directors first elected to Class I shall
serve for a term ending on the third annual meeting following the end
of fiscal year 1997, the directors first elected to Class II shall
serve for a term ending on the second annual meeting following the end
of fiscal year 1997 and the directors first elected to Class III shall
serve a term ending on the first annual meeting following the end of
fiscal year 1997. Notwithstanding the foregoing, each director shall
serve as such until the expiration of his current term when his
successor shall have been duly elected and qualified, or his prior
death, resignation or removal.
At each annual election, directors chosen to succeed those whose
terms then expire shall be of the same class as the directors they
succeed, unless by reason of any intervening changes in the authorized
number of directors, the board shall designate one or more
directorships whose terms then expires as directorships of another
class in order more nearly to achieve equality of number of directors
among the classes.
Notwithstanding the rule that the three classes shall be as nearly
equal in number of directors as possible, in the event of any change in
the authorized number of directors each director then continuing to
serve as such shall nevertheless continue as a director of the class of
which he is a member until the expiration of his current term, or his
prior death,resignation or removal. If any newly created directorship
may, consistently with the rule that the three classes shall be as
nearly equal in number of directors as possible, be allocated to either
class, the board shall allocate it to that of the available class whose
term of office is due to expire at the earliest date following such
allocation."
SECOND: By a vote of 3,077,095 for to 237,820 against, the shareholders
voted to renumber the old Tenth Article of the Corporation's Certificate of
Incorporation as the Twelfth Article of the Corporation's Certificate of
Incorporation and to amend the corporation's Certificate of Incorporation to add
a new Tenth Article reading as follows:
"Any amendment to this Certificate of Incorporation shall require the
affirmative vote of two-thirds of the shares of each class outstanding
and entitled to vote thereon, provided that the board of directors of
the Company may, by the affirmative vote of two-thirds of all
Directors, reduce the number of shares required to amend the
Certificate of Incorporation on a case by case basis only, provided
that in no event may the board reduce the number of shares required to
amend the Certificate of Incorporation below a number equal to the
majority of the shares outstanding entitled to vote thereon."
THIRD: By a vote of 3,079,615 for and 233,300 against, the shareholders
voted to amend the Corporation's Certificate of Incorporation to add a new
Eleventh Article reading as follows:
"The stockholders of the Corporation may not take action by written
consent without a
2
<PAGE>
meeting and must take any actions at a duly called annual or special
meeting. Meetings of stockholders may be held within or without the
State of New Jersey, as the by-laws may provide."
THE UNDERSIGNED, being the President of the Corporation, for the
purpose of amending the Certificate of Incorporation, does make this Certificate
of Amendment to the Certificate of Incorporation, hereby declaring and
certifying that this is his act and deed and the facts herein stated are true,
and accordingly, has hereunto set his hand this 16th day of July, 1997.
M. H. MEYERSON & CO., INC.
By: /s/ Michael Silvestri
-------------------------
Michael Silvestri
President
State of New Jersey
County of Hudson
ACKNOWLEDGEMENT
BE it remembered that on this 16th day of July, 1997, before me,
personally appeared Michael Silvestri, who is the president of M. H. Meyerson &
Co., Inc., who I am satisfied is the person named in, and who executed the
certain instrument, and therefore he acknowledged that he signed, sealed and
delivered same to as his act and deed for the uses and purposes therein
expressed.
/s/ Eugene Whitehouse
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Notary Public
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M. H. MEYERSON & CO., INC.
* * * * *
AMENDED AND RESTATED BY-LAWS
* * * * *
The following are the By-laws of M. H. Meyerson & Co., Inc., a New
Jersey corporation (the "Corporation"), restated as of April 24, 1997.
ARTICLE I
OFFICES
1.1 The registered office of the Corporation shall be located at
Newport Office Tower, 525 Washington Boulevard, 34th Floor, Jersey City, New
Jersey 07310.
1.2 The Corporation may also have offices at such other places within
and without the State of New Jersey as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 All meetings of the shareholders for the election of Directors
shall be held at the principal offices of the Corporation, or at such other
place either within or without the State of New Jersey as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting. Meetings of shareholders for any other purpose may be held at such time
and place, within or without the State of New Jersey, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
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2.2 The annual meeting of shareholders, for the purpose of electing
Directors and of transacting such other business as may come before it, shall be
held at the office of the Corporation or at such other place as may be fixed by
the Board of Directors and specified in the notice of the meeting and within six
(6) months after the close of the fiscal year.
2.3 Written notice of the annual meeting stating the place, date and
hour of the meeting shall be given to each shareholder entitled to vote at such
meeting not less than ten (10) nor more than sixty (60) days before the date of
the meeting.
2.4 (a) No notice of the time, place, or purpose of any regular or
special meeting of shareholders need be given to any shareholder who, in person,
or by proxy, either attends the meeting or, in a writing which is filed with the
records of the meeting, waives the notice either before or after the meeting.
(b) Any shareholder who has signed a waiver of notice of the
meeting shall be bound by the proceedings of that meeting in all respects as if
due notice of that meeting had been given.
2.5 (a) For the purpose of determining shareholders entitled to notice
of or to vote at any meeting of shareholders or any adjournment thereof, or
entitled to receive payment of any dividend, or in order to make a determination
of shareholders for any other proper purpose, the Board of Directors may provide
that the share transfer books shall be closed for a stated period not to exceed,
in any case, fifty (50) days. If the transfer books shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting.
(b) In lieu of closing the share transfer books, the Board of
Directors may fix in advance a date as the record date for any determination of
shareholders, such date in any case to be not more than fifty (50) days and, in
case of a meeting of shareholders, not less than ten (10) days prior to the date
on which the action requiring that determination of shareholders is to be taken.
(c) If the share transfer books are not closed and no record
date is fixed for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders, or shareholders entitled to receive payment
of a dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring the dividend is
adopted, as the case may be, is the record date for determination of
shareholders.
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2.6 The officer who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every meeting of
shareholders, a complete list of the shareholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
shareholder and the number of shares registered in the name of each shareholder.
Such list shall be open to the examination of any shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any shareholder who is
present.
2.7 Special meetings of the shareholders, for any purpose or purposes,
unless otherwise prescribed by statute or by the Certificate of Incorporation,
may be called at any time by a request in writing to the Secretary of the
Corporation by the President, or the Board of Directors, or those shareholders
who hold in the aggregate 50% or more of the outstanding shares and entitled to
cast votes which all shareholders are entitled to cast at the particular
meeting. Such request shall state the purpose or purposes of the proposed
meeting.
2.8 Written notice of a special meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting, to each shareholder entitled to vote at the meeting.
2.9 The President, or in his absence the Executive Vice President,
shall call to order meetings of the shareholders and shall act as Chairman of
such meetings. The Board of Directors or the shareholders may appoint any
shareholder or any director or officer of the Corporation to act as Chairman of
any meeting in the absence of the President and the Executive Vice President.
The Secretary of the Corporation shall act as Secretary of all meetings of
shareholders, but in the absence of the Secretary the presiding officer may
appoint any shareholder or any director or officer to act as Secretary of any
meeting.
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2.10 Business transacted at any special meeting of shareholders shall
be limited to the purpose stated in the notice. The order of business at annual
and special meetings of shareholders shall, to the extent appropriate, be as
follows:
(1) Call to order;
(2) Determination of the presence of a quorum;
(3) Consideration of minutes not previously approved;
(4) Report of the President and other officers;
(5) Election of Directors;
(6) Consideration of unfinished business;
(7) Consideration of new business; and
(8) Adjournment.
2.11 The holders of a majority of the voting stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the shareholders, the shareholders entitled to
vote thereat, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.12 When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented
by proxy shall decide nay question brought before such meeting, unless the
question is one upon which by express provision of the statutes, the Certificate
of Incorporation or of these By-laws, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Elections for Directors need not be by ballot unless a shareholder demands
election by ballot at the election and
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before the voting begins. The stockholders of the Corporation may not take
action by written consent without a meeting but must take any such actions at a
duly called annual or special meeting.
2.13 Unless otherwise provided in the Certificate of Incorporation each
shareholder shall at every meeting of the shareholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such shareholder, but no proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period.
2.14 Unless a proxy is irrevocable --
(a) The later execution by the shareholder of a different
proxy revokes the earlier one;
and
(b) An attempt to vote by the shareholder who is present at
the meeting revokes all other proxies executed by him.
2.15 Holders of fractional shares or scrip shall have no right to vote
at or participate in any meeting of shareholders.
2.16 (a) In advance of any meeting of shareholders, the Board of
Directors may appoint any persons, other than nominees for office, as inspectors
of election to act at that meeting or any adjournment thereof. If inspectors of
election are not appointed, the chairman of any meeting may, and on the request
of any shareholder or shareholder's proxy shall, appoint inspectors of election
at the meeting. The number of inspectors shall be either one or three. If
appointed at a meeting on the request of one or more shareholders or proxies,
the majority of shares present shall determine whether one or three inspectors
are to be appointed. In case any person appointed as inspector fails to appear
or refuses to act, the vacancy may be filled by appointment by the Board of
Directors in advance of the meeting, or at the meeting by the person acting as
chairman.
(b) The inspectors of election shall determine the number of
shares outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, and the authenticity, validity, and effect
of proxies. The inspectors shall also receive votes, ballots, or consents, hear
and determine all challenges and questions in any way arising in connection with
the right to vote, count and tabulate all votes or consents, determine the
result, and do such acts as may be proper to conduct the election or vote with
fairness to all shareholders. The inspectors of election
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shall perform their duties impartially, in good faith, to the best of their
ability, and as expeditiously as is practical.
(c) If there are three inspectors of election the decision,
act, or certificate of a majority is effective in all respects as the decision,
act, or certificate of all.
(d) On request of the chairman of the meeting or of any
shareholder or his proxy the inspectors shall make a report in writing of any
challenge or question or matter determined by them and execute a certificate of
any fact found by them. Any report or certificate made by them is prima facie
evidence of the facts stated therein.
2.17 Approval of the Board of Directors shall be required for a plan or
arrangement under (a) below. Shareholder approval shall be required prior to the
issuance of designated securities under (b), (c), or (d) below when:
(a) A stock option or purchase plan is to be established or
other arrangement made pursuant to which stock may be acquired by officers or
directors, except for warrants or rights issued generally to security holders of
the Corporation or broadly based plans or arrangements including other employees
except in a case where the shares are issued to a person not previously employed
by the Corporation, as an inducement essential to the individual's entering into
an employment contract with the Corporation, and except for the establishment of
a plan or arrangement under which the amount of securities which may be issued
does not exceed the lesser of 1% of the number of shares of common stock, 1% of
the voting power outstanding, or 25,000 shares.
(b) The issuance will result in a change in control of the
issuer.
(c) In connection with the acquisition of the stock or
assets of another Corporation
if:
(I) any director, officer or substantial shareholder
of the issuer has a 5% or greater interest (or such persons collectively have a
10% or greater interest), directly or indirectly, in the Corporation or assets
to be acquired or in the consideration to be paid in the transaction or series
of related transactions and the present or potential issuance of common stock,
or securities convertible into or exercisable for common stock, could result in
an increase in outstanding common shares or voting power of 5% or more; or
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(ii) where the present or potential issuance of
common stock, or securities convertible into or exercisable for common stock,
other than a public offering for cash, if the common stock has or will have upon
issuance voting power equal to or in excess of 20% of the voting power
outstanding before the issuance of stock or securities convertible into or
exercisable for common stock, or the number of shares of common stock to be
issued is or will be equal to or in excess of 20% of the number of shares of
common stock outstanding before the issuance of the stock or securities.
(d) In connection with a transaction other than a public
offering involving:
(I) the sale or issuance by the issuer of common
stock (or securities convertible into or exercisable for common stock) at a
price less than the greater of book or market
value which together with sales by officers, Directors or substantial
shareholders of the Corporation equals 20% or more of common stock or 20% or
more of the voting power outstanding before the issuance, or
(ii) the sale or issuance by the Corporation of
common stock (or securities convertible into or exercisable for common stock)
equal to 20% or more of the common stock or 20% or more of the voting power
outstanding before the issuance for less than the greater of book or market
value of the stock.
ARTICLE III
DIRECTORS
3.1 The number of Directors which shall constitute the whole board
shall be not less than three (3) nor more than thirteen (13). Within the limits
above specified, the number of Directors shall be determined by resolution of
the Board of Directors or by the shareholders at the annual meeting. The
Directors shall be elected at the annual meeting of the shareholders, except as
provided in Section 3.2 of this Article, and each Director elected shall hold
office until his successor is elected and qualified. Directors need not be
shareholders nor residents of New Jersey.
3.2 Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors then in office, though
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less than a quorum, or by a sole remaining Director, and the Directors so chosen
shall hold office for the remainder of the therm of the vacated directorship he
is filling until their successors are duly elected and shall qualify, unless
sooner displaced. Except as provided by applicable law, the Board of Directors
shall have the exclusive power and authority to fill any vacancies or any newly
created directorships on the Board of Directors and the stockholders shall have
no right to fill such vacancies. If there are no Directors in office, than an
election of Directors may be held in the manner provided by statute.
3.3 The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or by these By-laws directed or required
to be exercised or done by the shareholders.
3.4 The Board of Directors of the Corporation may hold meetings, both
regular and special, either within or without the State of New Jersey.
3.5 Regular meetings of the Board of Directors may be held with or
without notice at such time and at such place as shall from time to time be
determined by the Board.
3.6 Special meetings of the Board of Directors may be called by the
president on ten (10) days' notice to each Director, either personally or by
mail or by telegram; special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of two
Directors, unless the Board consists of only one Director, in which case,
special meetings shall be called by the President or Secretary in like manner
and on like notice on the written request of the sole Director.
3.7 At all meetings of the board a majority of the Directors shall
constitute a quorum for the transaction of business and the act of a majority of
the Directors present at any meeting at which there is a quorum present shall be
the act of the Board of Directors, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation. A Director who
abstains from participation in a particular course of business shall nonetheless
be counted for purposes of determining a quorum. If a quorum shall not be
present at any meeting of the Board of Directors the Directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
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3.8 Unless otherwise restricted by the Certificate of Incorporation or
these By-laws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
3.9 Unless otherwise restricted by the Certificate of Incorporation or
these By-laws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in a meeting can hear each
other, and such participation in a meeting shall constitute presence in person
at the meeting.
3.10 At every meeting of the Board of Directors, the Chairman of the
Board of Directors, if there is such an officer, and if not, the President, or
in the President's absence a Vice President designated by the President, or in
the absence of such designation, a chairman chosen by a majority of the
Directors present, shall preside. The Secretary of the Corporation shall act as
Secretary of the Board of Directors. In case the Secretary shall be absent from
any meeting, the chairman may appoint any person to act as Secretary of the
meeting.
3.11 The Board of Directors, by resolution adopted by a majority of the
entire Board, may designate from among its members one or more committees, each
consisting of two (2) or more Directors, and each of which, to the extent
provided in such resolution, shall have all the authority of the Board (except
as otherwise provided by law, the Certificate of Incorporation, as amended and
restated, or these By-laws). However, no such committee shall have authority as
to any of the following matters:
(a) the submission to shareholders of any action as to which
shareholders' authorization or approval is required by law, the Certificate of
Incorporation, as amended and restated, or these By-laws;
(b) the filling of vacancies by the Board of Directors or on
any committee;
(c) the fixing of the compensation of the Directors for
serving on the Board or on any committee;
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(d) the amendment or repeal of these By-laws, or the adoption
of new By-laws;
(e) the amendment or repeal of any resolution of the Board of
Directors unless, by its terms, it is expressly made so amendable or repealable;
(f) the issuance of any shares or evidence of indebtedness of
the Corporation or the declaration of any dividend;
(g) the amendment of the Certificate of Incorporation, (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors
as provided in Section 151(a) fix any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, and distribution of
assets of the Corporation or the conversion into, or the exchange of such shares
for shares of any other class or classes of stock of the Corporation) adopting
an agreement of merger or consolidation;
(h) recommendation to the shareholders of the sale, lease or
exchange of all or substantially all of the Corporation's property and assets;
and
(I) recommendation to the shareholders of a dissolution of the
Corporation or a revocation of dissolution.
3.12 Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
3.13 Unless otherwise restricted by the Certificate of Incorporation or
these By-laws, the Board of Directors shall have the authority to fix the
compensation of Directors. The Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
3.14 Unless otherwise restricted by the Certificate of Incorporation or
By-laws, any director or the entire Board of Directors may be removed, for cause
only, by the holders of not less than two-thirds of the shares entitled to vote
at an election of directors.
ARTICLE IV
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NOTICES
4.1 Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or these By-laws, notice is required to be given to
any Director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such Director or
shareholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
Directors may also be given by telegram or facsimile telephonic transmission.
4.2 Whenever any notice is required to be given under the provision of
the statutes or of the Certificate of Incorporation or these By-laws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed
equivalent thereto. Each director or shareholder attending a meeting without,
prior to its conclusion, protesting the lack of proper notice shall be
conclusively deemed to have waived notice of the meeting.
ARTICLE V
OFFICERS
5.1 The officers of the Corporation shall be chosen by the Board of
Directors and shall be Chairman of the Board of Directors, President, Executive
Vice Presidents, and a Secretary and a Treasurer. The Board of Directors may
also designate persons for the positions of Chief Executive Officer, Vice
Presidents, Chief Operating Officer, Chief Financial Officer and Controller, and
one or more Assistant Secretaries and Assistant Treasurers, as they deem
necessary. Any number of offices may be held by the same person, unless the
Certificate of Incorporation or these By-laws otherwise provide.
5.2 The Board of Directors at its first meeting after each annual
meeting of shareholders shall choose the officers of the Corporation.
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5.3 The Board of Directors may appoint such other officers and agents
as it shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board.
5.4 The salaries of all officers and agents of the Corporation shall be
fixed by the Board of Directors.
5.5 The officers of the Corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the Board
of Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
5.6 The Chairman of the Board, if there shall be such an officer,
shall, if present, preside at all meetings of the Board of Directors and
exercise and perform such other powers and duties as may be from time to time
assigned to the Chairman by the Board of Directors or prescribed by the By-laws.
5.7 The President shall be the Chief Operating Officer of the
Corporation, and subject to the provisions of these By-laws and the direction of
the Board of Directors, shall be responsible for the general management and
control of the business and affairs of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. He
shall sign stock certificates, execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
5.75 Approval of the Board of Directors is required for all material
contracts to which the Corporation is a party to.
5.8 In the absence of the President or in the event of his inability or
refusal to act, the Executive Vice Presidents, the Vice Presidents, and the
Presidents of Divisions, in the order designated by the Board of Directors, or
in the absence of any designation, then in the order of their election, shall
perform the duties of President, and when so acting, shall have all the powers
of and be subject to the all the restrictions upon the President. The Presidents
of Divisions, the Executive
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Vice Presidents and the Vice Presidents shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe.
5.9 The Secretary shall attend all meetings of the Board of Directors
and all meetings of the shareholders and record all the proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or President,
under whose supervision he shall be. He shall have custody of the corporate seal
of the Corporation and he, or an Assistant Secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his signature or by the signature of such Assistant Secretary. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature.
ARTICLE VI
RESIGNATIONS AND REMOVALS
6.1 Any Director or officer of the Corporation, or any member of any
committee, may resign at any time by giving written notice to the Board of
Directors, the President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time be not specified therein,
then upon receipt thereof. The acceptance of such resignation shall not be
necessary to make it effective.
6.2 The Board of Directors, at any meeting thereof called for the
purpose, may, at any time, remove with or without cause from office or terminate
the employment of any officer, agent or member of any committee, and may remove
with cause any Director.
The shareholders entitled to vote for the election of
Directors may remove, with a two-thirds majority vote, any Director with or
without cause.
ARTICLE VII
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CERTIFICATES FOR SHARES
7.1 The shares of the Corporation shall be represented by a certificate
or shall be uncertificated. Certificates shall be signed by, or in the name of
the Corporation by, the Chairman or the President, or the Secretary of the
Corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to sections 151, 156, 202(a) or 218(a) or a statement
that the Corporation will furnish without charge to each shareholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
7.2 Any or all of the signatures on a certificate may be by facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
7.3 The Board of Directors may direct a new certificate or certificates
or uncertificated shares to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
7.4 Upon surrender to the Corporation or the transfer agent of the
Corporation or a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation
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or authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Upon receipt of proper transfer
instructions from the registered owner of uncertificated shares such
uncertificated shares shall be canceled and issuance of new equivalent
uncertificated shares or certificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
Corporation.
7.5 In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
7.6 The Corporation shall be entitled to recognize the exclusive right
of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of New Jersey.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or
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special meeting, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
8.2 Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
8.3 The Board of Directors shall present at each annual meeting, and at
any special meeting of the shareholders when called for by vote of the
shareholders, a full and clear statement of the business and condition of the
Corporation.
8.4 All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
8.5 The fiscal year of the Corporation shall begin on February 1 and
end on January 31.
8.6 The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal, New
Jersey". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. No written act of the
Corporation shall be declared invalid for lack of a seal if signed by the duly
authorized officer of the Corporation.
8.7 All deeds, bonds, mortgages, contracts and other instruments or
documents requiring a seal may be signed in the name of the Corporation by the
President or by any other officer authorized to sign such instrument or document
by the Board of Directors, and such authority may be general or confined to
specific instances.
ARTICLE IX
AMENDMENTS
16
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9.1 These By-laws may be altered, amended or repealed or new By-laws
may be adopted by the shareholders or by the Board of Directors at any regular
meeting of the shareholders or of the Board of Directors are at any special
meeting of the shareholders or the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new By-laws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal By-laws
is conferred upon the Board of Directors by the Certificate of Incorporation it
shall not divest or limit the power of the shareholders to adopt, amend or
repeal By-laws.
ARTICLE X
INDEMNIFICATION
10.1 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, suit, 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,
officer, 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
17
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under any provision currently in effect or hereafter adopted by the By-laws, by
any arrangement, by vote of shareholders, by resolution of disinterested
Directors, by provision of law, or otherwise.
18
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STOCK PURCHASE AGREEMENT
Stock Purchase Agreement entered into on this 9th day of April, 1999
between Archery Capital LLC (the "Purchaser") and M.H. Meyerson & Co., Inc., a
New Jersey corporation, having an office at 525 Washington Boulevard, Jersey
City, New Jersey 07310 (the "Seller").
W I T N E S S E T H:
-------------------
1. Purchaser hereby buys from Seller, and Seller hereby sells to
Purchaser, five hundred thousand (500,000) shares of Seller=s common stock at a
purchase price of $5.00 per share, effective on the date hereof.
2. Purchaser is hereby transmitting the purchase price of $2,500,000 by
wire transfer of good funds to Seller's account as described on Schedule A. The
stock certificate or certificates representing the shares being sold to
Purchaser shall be issued and delivered, following receipt of payment.
3. The certificates representing the shares being sold to Purchaser are
not registered under federal or state securities laws but are being sold in
reliance upon the exemption from registration under Section [4]2 of the
Securities Act of 1933, as amended and may only be resold in accordance
herewith. Purchaser is hereby afford one demand registration right and
unlimited piggyback rights to have the shares purchased registered for resale
in a registration statement which Purchaser may require Seller to file from and
after May 1, 1999 or, with respect to piggybacks, may require Seller to file in
any registration statement hereafter filed by Seller on a form permitting the
addition of such shares. Purchaser shall include at least 100,000 shares in any
demand or piggyback registration and the rights to have such shares registered
shall lapse at such
<PAGE>
time as Purchaser is entitled to sell all of its then remaining shares
purchased hereunder without registration.
4. This Agreement has been duly executed and delivered by each of the
parties and shall be construed and enforced in accordance with the laws of the
State of New York. Purchaser may allocate the shares purchased to such
investors as shall be "accredited investors" within the meaning of U.S.
securities laws.
IN WITNESS WHEREOF, this Agreement has been entered into on the day and
year first above written.
ARCHERY CAPITAL LLC - Purchaser
By: /s/ Erinch R. Ozada
--------------------------------
Erinch R. Ozada
M.H. MEYERSON & CO., INC. - Seller
By: /s/ Martin H. Meyerson
--------------------------------
Martin H. Meyerson, Chairman
<PAGE>
HARTMAN & CRAVEN LLP
460 Park Avenue
New York, New York 10022
June 10, 1999
M.H. MEYERSON & CO., INC.
Newport Tower
525 Washington Boulevard
Jersey City, New Jersey 03710
Re: Registration Statement on Form S-3
----------------------------------
Dear Sirs:
We are acting as counsel to M.H. MEYERSON & CO., INC., a New Jersey
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Act"). The Registration Statement relates to 500,000
shares of the Company's common stock, $0.01 par value per share ("Common
Stock"), which were issued pursuant to a Stock Purchase Agreement, dated April
9, 1999 between Archery Capital, LLC and the Company (the "Purchase
Agreement").
In connection with this opinion, we have examined and relied upon
copies certified or otherwise identified to our satisfaction of: (i) the
Purchase Agreement; (ii) the Registration Statement (including the exhibits
thereto) and the Prospectus contained therein; (iii) the Company's Certificate
of Incorporation, as amended and By-laws, as amended; and (iv) the minute books
and other records of corporate proceedings of the Company, as made available to
us by officers of the Company; and have reviewed such matters of law as we have
deemed necessary or appropriate for the purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of an
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies. We
have also assumed the legal capacity of all natural persons, the genuineness of
all signatures on all documents examined by us, the authority of such persons
signing on behalf of the parties thereto other than the Company and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company. As to certain factual matters material to the opinion
expressed herein, we have relied to the extent we deemed proper upon
representations, warranties and statements as to factual matters of officers
and other representatives of the Company. We are members of the Bar of the
State of New York only and express no opinion other than with respect to the
laws of the State of New York and the federal laws of the United States of
America. In connection with matters governed by the laws of the State of New
Jersey, we have
<PAGE>
assumed that in all material respects the laws of the State of New Jersey are
the same as the laws of the State of New York and have confirmed this fact with
New Jersey counsel. Without limiting the foregoing, we express no opinion with
respect to the applicability thereto or effect of municipal laws or the rules,
regulations or orders of any municipal agencies within any such state.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, it is our opinion
that the Shares have been validly issued and are fully paid and non-assessable.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New York or the federal laws of the United States of
America be changed by legislative action, judicial decision or otherwise.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
HARTMAN & CRAVEN LLP
By: /s/ Edward I. Tishelman
-------------------------
Edward I. Tishelman,
a Partner
<PAGE>
VINCENT R. VASSALLO
CERTIFIED PUBLIC ACCOUNTANT
- -------------------------------------------------------------------------------
16 PORTER PLACE
SEA CLIFF, NEW YORK 11579
TEL: (516) 759-1994 FAX: (516) 759-7109
The Board of Directors
M.H. Meyerson & Co., Inc.
525 Washington Blvd.
Jersey City, NJ 07310
May 26, 1999
Dear Sirs:
We consent to incorporation by reference in the registration statement on Form
S-3 of M. H. Meyerson & Co., Inc. of our report dated March 19, 1999, relating
to the statements of financial condition of M.H. Meyerson & Co., Inc. as of
January 31, 1999 and 1998, and the related statements of operations, changes in
shareholders' equity and cash flows for each of the three years in the period
ended January 31, 1999, which report appears in the January 31, 1999 annual
report on Form 10-K of M.H. Meyerson & Co., Inc.
Very truly yours,
/s/ Vicent R. Vassallo
Vincent R. Vassallo, CPA
Sea Cliff, New York
