Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Pre-Effective Amendment to Registration Statement 22 115K
for Securities Offered Pursuant to a
Transaction
2: EX-5 Opinion re: Legality 1 7K
3: EX-23 Consent of Experts or Counsel 1 6K
4: EX-23 Consent of Experts or Counsel 1 8K
5: EX-23 Consent of Experts or Counsel 1 7K
6: EX-23 Consent of Experts or Counsel 1 6K
7: EX-23 Consent of Experts or Counsel 1 6K
S-3/A — Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction
Document Table of Contents
As filed with the Securities and Exchange Commission on ____________________.
Registration No. 333-30232
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under The Securities Act of 1933
--------------------------------
VERTEX INTERACTIVE, INC.
(Exact Name of Registrant as Specified in Charter)
New Jersey 22-2050350
(State of Incorporation) (IRS Employer Identification Number)
-------------------------------------
23 Carol Street
Clifton, New Jersey 07014
(973) 777-3500
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
-------------------------------
Ronald C. Byer
Vertex Interactive, Inc.
23 Carol Street
Clifton, New Jersey 07014
(973) 777-3500
(Name, address, including zip code, and telephone number,including area code,
of agent for service)
-------------------------------
Copies To:
Law Offices of Jeffrey D. Marks, P.C.
415 Clifton Avenue
Clifton, New Jersey 07012
-------------------------------
Approximate Date of Commencement of proposed sale to
public: From time to time after the effective date of this
Registration Statement as determined by market conditions.
(1)
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. [ XX ]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, 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. [ ]
[Enlarge/Download Table]
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to Offering Price Aggregate Registration
Securities to be Registered be Registered Per Share Offering Price Fee
Common stock, par
value $0.005 per share 11,657,142 $6.56 $76,470,852 $20,189
<FN>
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933, as amended.
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO
SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
(2)
PROSPECTUS
(SUBJECT TO COMPLETION)
11,657,142 Shares of Common Stock
VERTEX INTERACTIVE, INC.
Vertex Interactive, Inc. provides data collection and
management systems that allow businesses to more efficiently
serve their customers from the entry of an order for a product
through its delivery to the user. This Prospectus relates to the
offer and sale from time to time of up to 11,657,142 shares of
our common stock by the Vertex Interactive, Inc. shareholders
named in this Prospectus. We will not receive any proceeds from
the sale of these shares.
Our common stock is listed on the Nasdaq National Market
under the symbol "VETX". The last reported sale price of our
common stock on May 19, 2000 was $6.6875 per share.
Our principal executive offices are located at 23 Carol
Street, Clifton, New Jersey, 07014, and our telephone number at
that address is (973) 777-3500.
See "Risk Factors" beginning on page 4 for information you
should consider before purchasing these shares.
Neither the Securities and Exchange Commission nor any
state securities commission has approved or disapproved these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
If it is against the law in any state to make an offer to
sell the shares, or to solicit an offer from someone to buy the
shares, then this Prospectus does not apply to any person in
that state, and no offer or solicitation is made by this
Prospectus to any such person.
You should rely only on the information provided or
incorporated by reference in this Prospectus or any supplement.
Neither we nor any of the selling stockholders have authorized
anyone to provide you with different information. You should
not assume that the information in this Prospectus or any
supplement is accurate as of any date other than the date on the
front of such documents.
TABLE OF CONTENTS
Summary ....................................................... 4
Risk Factors .................................................. 4
Cautionary Note Regarding Forward-Looking Statements .......... 8
Where You Can Find More Information ........................... 8
About Vertex Interactive, Inc.................................. 9
Use of Proceeds ...............................................10
Selling Stockholders ..........................................10
Plan of Distribution ..........................................14
Legal Matters .................................................16
Experts .......................................................16
(3)
SUMMARY
Vertex Interactive, Inc. provides data collection and management
systems that allow businesses to more efficiently serve their
customers from the entry of an order for a product through its
delivery to the user. This type of service is generally referred
to as "Supply Chain Management". We design and supply the
software programs that are required for this marketplace and
supply the devices, which are manufactured by others.
This Prospectus relates to the offer and sale from time to time
of up to 11,657,142 shares of our common stock by the Vertex
Interactive, Inc. shareholders named in this Prospectus. We will
not receive any proceeds from the sale of these shares.
Recent Developments
On February 14, 2000, we changed our name to Vertex Interactive, Inc.,
from Vertex Industries, Inc. This reflects our change from a computer
hardware business to a computer systems business.
On March 31, 2000, we acquired all of the stock of Data
Control Systems, Inc., a New York corporation ("Data Control").
The purchase price for the acquisition was $14.25 million
payable in cash. Data Control is a leading provider of wireless
product tracking and warehouse management systems.
On April 20, 2000, we completed a private placement by issuing
3,293,750 restricted common shares to various investors for $26,350,000.
Pursuant to registration agreements, we are obligated to file a registration
statement registering the shares for sale under applicable federal securities
laws no later than September 30, 2000.
On May 5, 2000, we entered into an agreement to acquire Societe
Italiana Servizi Italservice S.r.l. (S.I.S.), a provider of computer
maintenance and software support services. S.I.S. is headquartered in Milan,
Italy and has customers throughout Italy, France and Spain. The purchase price
is approximately $1.8 million, with an additional payment of $260,000,
contingent on S.I.S. achieving certain performance-related milestones.
The acquisition is expected to be completed within the next 30 days.
The date of this Prospectus is __________________.
RISK FACTORS
You should carefully consider the following risk factors
relating to Vertex Interactive, Inc. and our common stock before
purchasing the shares offered by this prospectus.
We are subject to risks associated with our past and
anticipated future acquisitions of other businesses.
Since September, 1999, we have acquired three businesses,
have agreed to acquire a fourth and expect to continue acquiring
businesses as part of our growth strategy of supplementing
internal expansion with acquisitions. Our acquisitions may not
improve our financial performance in the short or long term as we expect.
(4)
On September 22, 1999, we acquired all of the outstanding capital stock of
ICS International AG ("ICS"), a leading provider in Germany of integrated
high-end wireless data capture solutions to industrial users.
On September 27, 1999, we acquired all of the stock of
Portable Software Solutions Limited, a company organized under
the laws of England, and related companies (the "PSS Group").
The PSS Group is a leading provider of handheld terminal
solutions to mobile workers in the United Kingdom, primarily in
the door-to-door insurance and dairy industries.
On March 31, 2000, we acquired all of the stock of Data Control Systems,
Inc., a New York Corporation ("Data Control"). The purchase price for the
acquisition was $14.25 million payable in cash. Data Control is a leading
provider of wireless product tracking and warehouse management systems.
On May 5, 2000, we entered into an agreement to acquire Societe Italiana
Servizi Italservice S.r.l. (S.I.S.), a provider of computer maintenance
and software support services. S.I.S. is headquartered in Milan, Italy and
has customers throughout Italy, France and Spain. The purchase price is
approximately $1.8 million, with an additional payment of $260,000,
contingent on S.I.S. achieving certain performance-related milestones.
The acquisition is expected to be completed within the next 30 days.
* We plan on bringing the PSS Group, ICS, and S. I. S. products to the
United States market. Our ability to integrate the products as well as products
of any acquired businesses may be adversely affected by customer resistance
to acquired products.
* Our failure to retain management and sales personnel and higher
administrative cost may also affect our ability to integrate acquired
businesses, although we have not had those problems with the PSS, ICS and
Data Control acquisitions, and do not foresee such problems with S.I.S.
* Through our future acquisitions, we may not eliminate as
many redundant costs as we anticipated in selecting our
acquisition candidates.
* One or more of our acquisition candidates also may have
liabilities or adverse operating issues that we failed to
discover prior to the acquisition. Although that is not
the case thus far, it may be in the future.
* Even if acquired companies eventually contribute to an increase in our
profitability, the acquisitions may adversely affect our earnings in the short
term. Our earnings may decrease as a result of transaction-related expenses we
record for the quarter in which we complete an acquisition. The amortization of
goodwill and depreciation resulting from acquisitions also may contribute to
reduce earnings.
* The way in which we pay for acquired businesses also
involves risks. Our past acquisitions have been structured both as
stock-for-stock transactions and cash transactions. Continuing volatility
in the U.S.securities markets and fluctuations in our stock price may increase
the risk that our stock-for-stock acquisitions could dilute our earnings per
share. With respect to cash acquisitions, if we increase our bank borrowings
or issue debt securities to finance future
(5)
acquisitions, we will increase our level of indebtedness and interest expense,
while if we issue additional common stock, we may dilute the ownership of our
stockholders. In addition, we may not be able to obtain the funds we need on
acceptable terms. These risks in the way we finance acquisitions could have a
material adverse effect on our business, operating results and financial
condition.
Our stock price has fluctuated over a wide range, and could fluctuate
significantly in the future, as a result of our operating performance and
conditions in our industry.
From time to time, there may be significant volatility in the market price for
our common stock. Since our common stock began to trade publicly in 1986, its
market price has fluctuated over a wide range. During our last four complete
fiscal quarters, the high last reported sale price of our common stock was
$14.12 and the low last reported sale price of our common stock was $1.25. A
number of factors involving Vertex Interactive, Inc. and the our industry could
contribute to future fluctuations in our stock price. These factors include
the following:
* quarterly operating results of Vertex Interactive Inc. which could
affect the attractiveness of our stock compared to the securities of other
companies with better results or companies in other businesses;
* changes in general conditions in the economy or the technology sector
which could affect the demand for our products and our operating results;
* our failure to complete and successfully integrate acquisitions of other
companies, which could adversely affect our operating results and our ability
to grow; and
* competition in the market, defined as both technology offerings and
pricing, are intense, which could effect the demand for our product and
operating results.
The data collection and warehouse management businesses are highly competitive.
The number and diverse nature of the companies in our business result in highly
competitive conditions. Our competition includes not only other companies
which provide a comprehensive range of products from a single source of supply,
but also specialty companies and systems companies. Specialty companies
generally supply one or two product categories, while system companies
typically supply a narrow range of products to a limited number of businesses
operating in a broad geographical area. We compete in each of our markets with
at least one other large national company, generally Manhattan Associates, Inc.
or BEA Systems, Inc. as well as with numerous regional businesses. Our failure
to compete successfully could have a material adverse effect on our business,
operating results and financial condition.
We have acquired operations in Europe which may adversely effect our operating
results.
The acquisitions of the PSS Group, ICS, and the proposed acquistion of S.I.S.
referred to in the first listed Risk Factor, have provided a presence for us
throughout Europe. Risks of our international operations include:
(6)
* difficulties in collecting accounts receivable and longer
collection periods than we are accustomed to in the United States.
* difficulties in staffing and managing foreign operations.
* changing and conflicting regulatory requirements.
* potentially adverse tax consequences, tariffs and general
export restrictions
* political instability
* fluctuations in currency exchange rates which may
adversely impact reported revenue and earnings
* seasonal reduction in business activity during the summer
months in Europe
* the impact of local economic conditions and practices.
Any of the above factors could have a material and
adverse effect on our international sales and operations, which,
in turn, could adversely affect our overall business, operating
results and financial condition.
Our success largely depends on our ability to retain
our senior management.
We are dependent in large part on the services of
Nicholas R.H. Toms and Hugo Biermann, the Company's Joint
Chairmen of the Board and Joint Chief Executive Officers, and
Ronald C. Byer, the Company's President. Mr. Toms and Mr.
Biermann do not have employment agreements with Vertex
Interactive, Inc. The loss of the services of any of these key
personnel, whether as a result of death, disability or otherwise
could have an adverse effect upon our business.
Future sales of our common stock in the public market
could adversely affect our stock price and our ability to raise
funds in new stock offerings.
Future sales of substantial amounts of our common stock
in the public market, or the perception that such sales could
occur, could adversely affect prevailing market prices for our
common stock and could impair our ability to raise capital
through future offerings of equity securities.
As of the date of this Prospectus, we are required by
various registration rights agreements to effect registration
statements covering resales of approximately 14,950,892 shares
of common stock, which consists of stock we issued to
stockholders of the PSS Group (acquired business) as well as
shares we issued to private investors, including our recent
private placement. This Prospectus forms a part of such a
registration statement but does not include the private
placement shares. We also expect to grant registration rights to
the stockholders of other businesses we may acquire in the
future. We are required to bear the expenses of this registration.
(7)
We do not anticipate that we will pay cash dividends on our common stock.
We have never paid cash dividends on our common stock and we do not
anticipate that we will pay cash dividends in the foreseeable future.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the information incorporated by
reference in it, as well as any prospectus supplement that
accompanies it, include "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of
the Securities Exchange Act. We intend the forward-looking
statements to be covered by the safe harbor provisions for
forward-looking statements in these sections. All statements
regarding our expected financial position and operating results,
our business strategy, our financing plans, forecasted
demographic and economic trends relating to our industry, our
ability to complete acquisitions and to recover acquisition-
related costs, and similar matters are forward-looking
statements. These statements can sometimes be identified by our
use of forward-looking words such as "may," "will,"
"anticipate," "estimate," "expect" or "intend." We cannot
promise you that our expectations in such forward-looking
statements will turn out to be correct. Our actual results
could be materially different from our expectations. Important
factors that could cause our actual results to be materially
different from our expectations include those discussed in this
Prospectus under the caption "Risk Factors."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC under the Securities Exchange Act. Our
Securities Exchange Act file number for those SEC filings is 0-15066. You
may read and copy any document we file at the following SEC public reference
rooms in Washington, D.C., and at the following SEC regional offices:
450 Fifth Street, N.W. 7 World Trade Center 500 West Madison Street
Room 1024 Suite 1300 Suite 1400
Washington, DC 20549 New York, NY 10048 Chicago, IL 60661
You may obtain information on the operation of the public
reference rooms by calling the SEC at 1-800-SEC-0330.
We file information electronically with the SEC. Our SEC filings also
are available from the SEC's Internet site at http://www.sec.gov, which
contains reports, proxy and information statements, and other information
regarding issuers that file electronically.
This Prospectus is part of a registration statement we filed with the
SEC. The SEC allows us to "incorporate by reference" certain documents we
filed with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by
reference is considered to be part of this Prospectus, and information that
we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act until all of the selling stockholders
sell all of the shares or the offering is otherwise terminated:
(8)
* Our Quarterly report on Form 10-Q for our fiscal quarter
ended on March 31, 2000, which we filed on May 15, 2000.
* Our current report on Form 8-K which we filed on April 12,
2000
* Our Quarterly Report on Form 10-Q for our fiscal quarter
ended on December 31, 1999, which we filed on February 18,
2000.
* Our Schedule 14C Information Statement which we filed on
January 24, 2000.
* Our Transition Report on Form 10-K for the period ended
September 30, 1999, which we filed on January 13, 2000.
* Our current report on Form 8-K/a which we filed on December 6, 1999.
* Our current report on Form 8-K which we filed on December 3, 1999.
* Our annual report on Form 10-K for our fiscal year ended
July 31, 1999, which we filed on October 29, 1999.
* Our current report on Form 8-K which we filed on October 7, 1999.
* Our current report on Form 8-K which we filed on October 1, 1999.
* Our Form 14(f) Information Statement filed on July 1, 1999,
and Amendment filed on August 24, 1999.
* The description of our common stock contained in our
registration statement on Form S-18 filed with the SEC,
effective June 2, 1986, including any amendments or reports
we filed for the purpose of updating this description; and
* Any future filings we will make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act.
We will provide you with a copy of these filings, at no cost,if you write or
telephone our Corporate Secretary at the following address:
Vertex Interactive, Inc.
23 Carol Street
Clifton, New Jersey 07014
(973) 777-3500
ABOUT VERTEX INTERACTIVE, INC.
Vertex Interactive, Inc. provides data collection and management
systems that allow businesses to more efficiently serve their
customers from the entry of an order for a product through its
delivery to the user. This type of service is generally referred
to as "Supply Chain Management". We design and supply the
software programs that are required for this marketplace and
supply the devices, which are manufactured by others.
The orders may be taken by a salesman in the customer's facility
utilizing a hand held computer, over the phone or by
transmission over the internet directly to the customer's
computer system. Once the order is in the system, our software
matches what is in inventory to the orders received and directs
the staff in the warehouse, also equipped with hand held
computers, to gather the items necessary to fulfill the order,
pack them into a shipping container and deliver the container to
the shipping area. In the shipping area, our system has printed
the necessary paperwork and labels to direct the shipping clerks
as to the destination and method of transportation for the shipment.
(9)
In some applications, the driver of the delivery vehicle may
also act as a salesman. In these cases, he will have inventory
on the truck that is not allocated to particular orders. He can
then sell this inventory to users who may need it, but had not
entered a large enough order for that product, or who require
additional products. The user may also have products that he
wants to return for credit. The driver/salesman can handle these
transactions in the user's facility utilizing a hand held
computer which is in direct contact with the warehouse computer.
We design the computer programs which handle the communications between all of
the workers, whether they are mobile or in a facility. In addition we have
designed products which manage all inventory functions within the warehouse.
This is often referred to as a warehouse management system.
USE OF PROCEEDS
The selling stockholders will receive all of the net proceeds from the sale
of their shares. Accordingly, Vertex Interactive, Inc., will not receive any
proceeds from the sale of the shares.
SELLING STOCKHOLDERS
On September 16, 1999, pursuant to a Subscription Agreement
by and among Vertex Interactive, Inc., Edwardstone & Company,
Incorporated, a Delaware corporation ("Edwardstone") and MidMark
Capital, L.P., a Delaware limited partnership ("Midmark" and
together with Edwardstone, the "Buyers"), dated as of June 21,
1999, as amended on August 23, 1999 and September 13, 1999, an
investment group led by Edwardstone purchased 5,449,642 shares
of our common stock and MidMark purchased 5,000,000 shares of
our common stock.
On September 27, 1999, we acquired the companies comprising the Portable
Software Solutions Group pursuant to a Share Purchase Agreement, dated as of
June 21, 1999, by and among Vertex Industries, Inc., St. Georges Trustees
Limited, a company organized under the laws of Jersey, Channel Islands, as
trustee on behalf of The John Kenny Settlement and The Godfrey Smith
Settlement, John Kenny, Bryan J. Maguire and Godfrey Smith (collectively the
"PSS Shareholders"). As part of the consideration to fund this acquisition,
we transferred 1,207,500 unregistered common shares to the PSS Shareholders and
Edwardstone transferred 384,484 of its Vertex shares to the PSS Shareholders.
On September 23, 1999, Edwardstone distributed the remaining shares it had
acquired on behalf of its investor group to each member of the group as his,
her or its interests appeared on such date.
Set forth below are the names of the holders of the shares of common stock
issued in connection with the transactions above, together with the number of
shares held by each such person which represent all of the shares held by such
holders. These shares are being registered by this Registration Statement.
[Enlarge/Download Table]
Name of Number Percentage Shares Beneficially
Beneficial of of Shares Relationship Owned After
Owner Shares Outstanding to Company Offering
Midmark Capital LLP 5,000,000(1) 24.3% 0
466 Southern Blvd.
Chatham, NJ 07928
(10)
Gregory N. Thomas 294,117 1.4% Director 0
4 Acorn Street
Boston, MA 02108
John Coutts 73,529 .36% 0
One Red Coat Pass
Darien, CT 06820
Richard Zakin, Esq. 137,255 .67% 0
150 East 77th, Apt. 3B
New York, NY 10020
Craven Hill Investments
Limited 294,068(2) 1.4% 0
C/o Mickelfield Limited
"Banchory", Woodland
Close,
East Horsley Surrey KT24
5AR United Kingdom
Lemeau Arrott Watt 55,882 .27% 0
30 Grove Street
New York, NY 10014
Nathalie de la Fontaine 100,000 .49% 0
550 Laguardia Pl, Apt. 3N
New York, NY 10012
Otto Leistner 522,875 2.5% Director 0
Jaegerweg 6
D-61389 Schmitten,
Germany
Nicholas R. Toms 1,101,610 5.4% Joint Chairman 0
154 Waverly Place of the Board, Director, Joint
New York, NY 10014 Chief Executive Officer
Bunter BVI Limited 388,010(3) 1.9% 0
C/o Ansbacher BVI Limited
International Trust Bldg.
Wickhams Cay
Road Town, Tortola BVI
John Kenny 422,678 2.1% 0
Portable Software Solutions Limited
50-54 Southwark Street
London SE1 1UN
United Kingdom
Glen Barlow 75,000 .36% 0
C/o Ketton Investments
27 Throgmorton Street
London EC2N 2AQ
Erick Constantino 3,000 .01% 0
C/O Northwestern Mutual Life
777 Larkfield Rd, Suite 114
Commack, NY 11725
(11)
Bacchus International, Inc. 862,140(4) 4.2% 0
21 "C" N. Geneva Terr
Chicago, IL 60614
Marian Teresvary 34,286 .17% 0
16 Pell Place
New Rochelle, NY 10804
Kimberly Gugliemli 75,429 .37% 0
410 Canyon Creek
Del Rio, TX 8840
Robert E. Maroney 3,657 .02% 0
& Gale Maroney
610 Laurel Avenue
Highland Park , IL 60035
Marci Heichman 7,314 .04% 0
5235 N Ravenswood #8
Chicago, IL 60640
Nancy Eiselman 83,333 .4% 0
1261 31st Ave
San Francisco, CA 94122
Rick Ashman 7,142 .03% 0
1737 N. Paulina #301
Chicago, IL 60622
Peter Gugliemli 100,000 .49% 0
8111 Woodside Lane
Burr Ridge, IL 60035
Galiper Corp. 3,657(5) .02% 0
Pension Plan & Trust
610 Laurel Ave
Highland Park, IL 60035
Josh Zucker 40,760 .2% 0
330 W. Diversey Pkwy.#1805
Chicago, IL 60657
Nicholas Kendellen 257,731 1.25% 0
1550 N. State Parkway
Chicago, IL 60610
Tom Plunkett 103,092 .5% 0
C/o Mary Goeraty
9 Cherbury Park Ave
Lucan, Dublin, Ireland
Island Conservation &
Properties Ltd. 103,092(6) .5% 0
2318 West 24th Place
Chicago, IL 60608
Leff Properties Company 98,039(7) .48% 0
26901 Agoura Rd, Suite 180
Calabassas, CA 91301
(12)
Francis A. Milholland 19,608 .1% 0
C/o Barbara Novak
HKC Securities Inc.
230 Park Ave, 7th Floor
New York, NY 10169
St. Leonards Trust 98,039(8) .48% 0
C/o Barbara Novak
HKC Securities Inc.
230 Park Ave, 7th Floor
New York, NY 10169
Jan Pilkington-Miksa 29,412 .14% 0
C/o Barbara Novak
HKC Securities Inc.
230 Park Ave, 7th Floor
New York, NY 10169
Richard L. and Lora B. Childs 49,020(9) .24% 0
Family Limited Partnership
2 Old Boathouse Lane
Spring Island, SC 29910
Aaron A. Smith, TTEE 19,607 .09% 0
FBO Mary Lee Childs Trust
2 Old Boathouse Lane
Spring Island, SC 29910
David M. Rifkin 24,510 .12% 0
1249 Racebrook Road
Woodbridge, CT 06525
Bryon James McGuire 182,245 .89% 0
c/o Finers Solicitors
179 Great Portland Street
London WIN GLS
St. Georges Trustees Limited 987,005(10) 4.8% 0
C/o Finers Solicitors
179 Great Portland Street
London WIN GLS
<FN>
1. Mr. Joseph R. Robinson, Mr. Denis Newman and Mr. Wayne L.
Clevenger, directors of Vertex, are managing directors of
MidMark Capital, L.P., have dispositive and voting power
over the shares, but disclaim beneficial ownership of the shares.
2. James Ramsey, Executive Director, has dispositive and
voting power over the shares.
3. Shares held in the name of Bunter, B.V.I. Ltd., of which
Mr. Hugo Biermann may be deemed a beneficiary. Mr.
Biermann disclaims such beneficial ownership. Mr. Biermann
is Joint Chairman of the Board, Joint Chief Executive
Officer and a director of Vertex. Adriel Brathwaite has
dispositive and voting power over the shares.
4. Edward Murphy, principal, has dispositive and voting power over the
shares.
5. Robert E. Maroney and Gale Maroney have dispositive and
voting power over the shares.
6. Robert Hurst has dispositive and voting power over the shares.
(13)
7. Jim Leff has dispositive and voting power over the shares.
8. Jan I. Pilkington-Miksa has dispositive and voting power
over the shares.
9. Richard L. Childs and Lora B. Childs have joint dispositive
and voting power over the shares.
10. Peter St. George, 6 Britannia Place, Bath Street, St.
Helier, Jersey Channel Islands, JE24Fe has dispositive and
voting power over the shares. Messrs Godfrey Smith and John
Kenny may be deemed to be beneficial owners equally, but
disclaim such beneficial ownership.
PLAN OF DISTRIBUTION
The shares may be sold or distributed from time to time by
the selling stockholders named in this Prospectus, by their
transferees, or by their other successors in interest. The
selling stockholders may sell their shares at market prices
prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices, or at fixed
prices. Each selling stockholder reserves the right to accept
or reject, in whole or in part, any proposed purchase of shares,
whether the purchase is to be made directly or through agents.
The selling stockholders may offer all or a portion of
their shares at various times in one or more of the following
transactions:
* In ordinary brokers' transactions and transactions in
which the broker solicits purchasers;
* In transactions in which brokers, dealers or underwriters
purchase the shares as principal and resell the shares
for their own accounts pursuant to this Prospectus;
* In transactions "at the market" to or through market
makers in the common stock or into an existing market for
the common stock;
* In other ways not involving market makers or established
trading markets, including direct sales of the shares to
purchasers or sales of the shares effected through
agents;
* In privately negotiated transactions;
* In transactions to cover short sales; or
* In a combination of any of the foregoing transactions.
The selling stockholders also may sell their shares in
accordance with Rule 144 under the Securities Act.
From time to time, one or more of the selling stockholders
may pledge or grant a security interest in some or all of the
shares owned by them. If the selling stockholders default in
performance of their secured obligations, the pledgees or
secured parties may offer and sell the shares from time to time
by this Prospectus. The selling stockholders also may transfer
and donate shares in other circumstances. The number of shares
beneficially owned by selling stockholders will decrease as and
when the selling stockholders transfer or donate their shares or
default in performing obligations secured by their shares. The
(14)
plan of distribution for the shares offered and sold under this
Prospectus will otherwise remain unchanged, except that the
transferees, donees, pledgees, other secured parties or other
successors in interest will be selling stockholders for purposes
of this Prospectus.
A selling stockholder may sell short the common stock. The selling
stockholder may deliver this Prospectus in connection with such short sales
and use the shares offered by this Prospectus to cover such short sales.
A selling stockholder may enter into hedging transactions
with broker-dealers. The broker-dealers may engage in short
sales of the common stock in the course of hedging the positions
they assume with the selling stockholder, including positions
assumed in connection with distributions of the shares by such
broker-dealers. A selling stockholder also may enter into
option or other transactions with broker-dealers that involve
the delivery of the shares to the broker-dealers, who may then
resell or otherwise transfer such shares. In addition, a
selling stockholder may loan or pledge shares to a broker-
dealer, which may sell the loaned shares or, upon a default by
the selling stockholder of the secured obligation, may sell or
otherwise transfer the pledged shares.
The selling stockholders may use brokers, dealers,
underwriters or agents to sell their shares. The persons acting
as agents may receive compensation in the form of commissions,
discounts or concessions. This compensation may be paid by the
selling stockholders or the purchasers of the shares for whom
such persons may act as agent, or to whom they may sell as
principal, or both. The compensation as to a particular person
may be less than or in excess of customary commissions. The
selling stockholders and any agents or broker-dealers that
participate with the selling stockholders in the offer and sale
of the shares may be deemed to be "underwriters" within the
meaning of the Securities Act. Any commissions they receive and
any profit they realize on the resale of the shares by them may
be deemed to be underwriting discounts and commissions under the
Securities Act. Neither we nor any selling stockholders can
presently estimate the amount of such compensation.
If a selling stockholder sells shares in an underwritten
offering, the underwriters may acquire the shares for their own
account and resell the shares from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the
time of sale. In such event, we will set forth in a supplement
to this Prospectus the names of the underwriters and the terms
of the transactions, including any underwriting discounts,
concessions or commissions and other items constituting
compensation of the underwriters and broker-dealers. The
underwriters from time to time may change any public offering
price and any discounts, concessions or commissions allowed or
reallowed or paid to broker-dealers. Unless otherwise set forth
in a supplement, the obligations of the underwriters to purchase
the shares will be subject to certain conditions, and the
underwriters will be obligated to purchase all of the shares
specified in the supplement if they purchase any of the shares.
(15)
We have advised the selling stockholders that during such
time as they may be engaged in a distribution of the shares,
they are required to comply with Regulation M under the
Securities Exchange Act. With exceptions, Regulation M
prohibits any selling stockholder, any affiliated purchasers and
other persons who participate in such a distribution from
bidding for or purchasing, or attempting to induce any person to
bid for or purchase, any security which is the subject of the
distribution until the entire distribution is complete.
It is possible that a significant number of shares could be
sold at the same time. Such sales, or the perception that such
sales could occur, may adversely affect prevailing market prices
for the common stock.
This offering by any selling stockholder will terminate on
the date specified in the selling stockholder's registration
rights agreement with Vertex Interactive, Inc. or, if earlier,
on the date on which the selling stockholder has sold all of his
shares.
LEGAL MATTERS
The validity of the shares offered hereby will be passed
upon by the Law Offices of Jeffrey D. Marks, P.C., Clifton, New
Jersey.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our
consolidated financial statements and schedule included in our
Transition Report on Form 10-K as of September 30, 1999 and for
the two months then ended, as set forth in their report
appearing therein, which is incorporated by reference in this
Prospectus and registration statement. Our financial statements
and schedule as of September 30, 1999 and for the two months
then ended are incorporated by reference in reliance on Ernst &
Young LLP's report, given on their authority as experts in
accounting and auditing.
Sax Macy & Fromm & Co., P.C., independent auditors, have
audited our consolidated financial statements and schedule as of
July 31, 1999 and 1998 and for the years then ended included in
our Transition Report on Form 10-K dated January 12, 2000, as
stated in their report appearing therein, which is incorporated
by reference in this Prospectus and registration statement. Our
financial statements and schedule as of July 31, 1999 and 1998
and for the years then ended are incorporated by reference in
reliance on Sax Macy & Fromm & Co., P.C.'s report, given on
their authority as experts in accounting and auditing.
Arthur Andersen LLP, independent auditors, have audited our
consolidated financial statements and schedule included in our
Transition Report on Form 10-K as of July 31, 1997 and for the
year then ended, as set forth in their report appearing therein,
(16)
which is incorporated by reference in this Prospectus and
registration statement. Our financial statements and schedule
as of July 31, 1997 and for the year then ended are incorporated
by reference in reliance on Arthur Andersen LLP's report, given
on their authority as experts in accounting and auditing.
ATM Consult GmbH Wirtschaftspruefungsgesellschaft, have
audited the consolidated financial statements of ICS
International AG Identcode-Systeme for the years ending
September 30, 1999 and 1998, appearing in our Current Report on
Form 8-K/A dated September 22, 1999, filed with the Securities
and Exchange Commission on December 6, 1999, as set forth in
their report appearing therein, which is incorporated by
reference in this Prospectus and registration statement. The
consolidated financial statements of ICS International AG
Indentcode-Systeme for the years ending September 30, 1999 and
1998 are incorporated by reference in reliance on ATM Consult
GmbH Wirtschaftspruefungsgesellschaft's report, given on their
authority as experts in accounting and auditing.
Ernst & Young have audited the combined financial
statements of Portable Software Solutions Limited for the years
ending September 30, 1999 and 1998, appearing in our Current
Report on Form 8-K/A dated September 22, 1999, filed with the
Securities and Exchange Commission on December 6, 1999, as set
forth in their report appearing therein, which is incorporated
by reference in this Prospectus and registration statement. The
combined financial statements of Portable Software Solutions
Limited for the years ending September 30, 1999 and 1998 are
incorporated by reference in reliance on Ernst & Young's report,
given on their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses (other than
underwriting discounts and commissions) which, other than the
SEC registration fee, are estimates, payable by Vertex in
connection with the sale and distribution of the securities
registered hereby:
SEC registration fee............ $20,189
-------
Printing expenses.................... $ 500
-------
Blue Sky fees and expenses........ $ 250
-------
Accountants' fees and expenses....... $17,500
-------
Legal fees and expenses.......... $11,000
-------
Miscellaneous............. $ 200
-------
Total................... $49,639
-------
(17)
Item 15. Indemnification of Directors and Officers
Our Amended Certificate of Incorporation limits directors'
and officers' liability for monetary damages for breaches of
their duties of care owed to Vertex to the fullest extent
permitted by New Jersey law. However, this provision does not
apply with respect to any liability resulting from acts or
omissions that (i) were in breach of his duty of loyalty to
Vertex or our stockholders; (ii) were not in good faith or in
knowing violation of law or (iii) resulted in receipt by the
corporate agent of an improper personal benefit.
Pursuant to the provisions of Section 14A:3-5 of the
Business Corporation Act of New Jersey, every New Jersey
corporation has power to indemnify 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 (other than an
action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of
the company or of any corporation, partnership, joint venture,
trust or other enterprise for which he is or was serving in such
capacity at the request of the company, against any and all
expenses, judgments, fines and amounts paid in settlement and
reasonably incurred by him in connection with such action, suit
or proceeding. The power to indemnify applies only if such
person acted in good faith and in a manner he reasonably
believed to be in the best interests, or not opposed to the best
interest, of the company, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
The power to indemnify applies to actions brought by or in
the right of the company as well as in the case where the
corporate agent is adjudged to be liable to the company only to
the extent that the court, in its discretion, feels that in the
light of all the circumstances, indemnification should apply.
To the extent any of the persons referred to in the two
immediately preceding paragraphs is successful in the defense of
the actions referred to therein, such person is, pursuant to
Section 14A:3-5 of the Business Corporation Act of New Jersey,
entitled to indemnification as described above. Section 14A:3-5
also grants power to advance litigation expenses upon receipt of
an undertaking to repay such advances in the event no right to
indemnification is subsequently shown. A company may also
obtain insurance at its expense to protect anyone who might be
indemnified, or has a right to insist on indemnification, under
the statute. We have such insurance in effect with aggregate
and per occurrence limitations of $5 million.
Item 16. Exhibits
See Exhibit Index.
(18)
Item 17. Undertakings
The undersigned hereby undertakes:
1. To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
registration statement (or the most recent post-
effective amendment hereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in this
registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which
was registered) and any deviation from the low or
high end of the estimated maximum offering range
may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price
represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this registration
statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i) and
(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 with or furnished to the Commission by the
registrant pursuant to Section 13 or Section
15(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.
(19)
4. The undersigned 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 (and, where
applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated
by reference in this registration statement shall be
deemed to be a new registration statement relating to
the securities offered herein, and the offering of
such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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 Securities and Exchange Commission such
indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted
by 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 Act and will be
governed by the final adjudication of such issue.
6. The undersigned hereby undertakes that:
(i) For purposes of determining any liability under
the Securities Act of 1933, 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 prospectus
filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this
registration statement as of the time it was
declared effective.
(ii) For the purpose of determining any liability
under the Securities Act of 1933, each post-
effective amendment that contains a form of
prospectus shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(20)
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 Clifton, State of New Jersey, on this 23rd day of May, 2000.
VERTEX INTERACTIVE, INC.
BY:/s/ RONALD C. BYER
RONALD C. BYER
President
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 in one or
more counterparts.
DATED: May 23, 2000 BY: /S/ HUGO H. BIERMANN
HUGO H. BIERMANN
Joint Chairman of the Board
Joint Chief Executive Officer
and Director
DATED: May 23, 2000 BY: /S/ NICHOLAS R.H. TOMS
NICHOLAS R.H. TOMS
Joint Chairman of the Board
Joint Chief Executive Officer
and Director
DATED: May 23, 2000 BY: /S/RONALD C.BYER
RONALD C. BYER
President, Treasurer and
Director
DATED: May 23, 2000 BY: /S/ WAYNE L. CLEVENGER
WAYNE L. CLEVENGER
Director
DATED: May 23, 2000 BY: /S/ DENIS NEWMAN
DENIS NEWMAN
Director
DATED: May 20, 2000 BY: /S/ GEORGE POWCH
GEORGE POWCH
Director
DATED: May 23, 2000 BY: /S/ JOSEPH R. ROBINSON
JOSEPH R. ROBINSON
Director
DATED: May 23, 2000 BY: /S/ GREGORY N. THOMAS
GREGORY N. THOMAS
Director
DATED: May 23, 2000 BY:/S/ OTTO LEISTNER
OTTO LEISTNER
Director
(21)
EXHIBIT INDEX
Exhibit No. Description
5.1 Opinion of Law Offices of Jeffrey D. Marks, Esq., P.C.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Sax Macy Fromm & Co., P.C.
23.3 Consent of Arthur Andersen LLP
23.4 Consent of ATM Consult GmbH Wirtschaftspruefungsgesellschaft
23.5 Consent of Ernst & Young
(22)
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-3/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 9/30/00 | | 4 | | | | | 10-K405 |
| Filed on: | | 5/24/00 |
| | 5/23/00 | | 21 |
| | 5/20/00 | | 21 |
| | 5/19/00 | | 3 |
| | 5/15/00 | | 9 | | | | | 10-Q |
| | 5/5/00 | | 4 | | 5 |
| | 4/20/00 | | 4 |
| | 4/12/00 | | 9 | | | | | 8-K |
| | 3/31/00 | | 4 | | 9 | | | 10-Q, 8-K, 8-K/A, DEF 14C, PRE 14C |
| | 2/18/00 | | 9 | | | | | 10-Q |
| | 2/14/00 | | 4 | | | | | NT 10-Q |
| | 1/24/00 | | 9 | | | | | DEF 14C |
| | 1/13/00 | | 9 | | | | | 10-K, PRE 14C |
| | 1/12/00 | | 16 |
| | 12/31/99 | | 9 | | | | | 10-Q, NT 10-Q |
| | 12/6/99 | | 9 | | 17 | | | 8-K/A |
| | 12/3/99 | | 9 | | | | | 8-K |
| | 10/29/99 | | 9 | | | | | 10-K |
| | 10/7/99 | | 9 | | | | | 8-K |
| | 10/1/99 | | 9 | | | | | 8-K |
| | 9/30/99 | | 9 | | 17 | | | 10-K, NT 10-K |
| | 9/27/99 | | 5 | | 10 | | | 3, SC 13D |
| | 9/23/99 | | 10 |
| | 9/22/99 | | 5 | | 17 | | | 8-K, 8-K/A |
| | 9/16/99 | | 10 | | | | | 3, 8-K |
| | 9/13/99 | | 10 |
| | 8/24/99 | | 9 | | | | | SC 14F1/A |
| | 8/23/99 | | 10 |
| | 7/31/99 | | 9 | | 16 | | | 10-K |
| | 7/1/99 | | 9 | | | | | SC 14F1 |
| | 6/21/99 | | 10 |
| | 9/30/98 | | 17 |
| | 7/31/98 | | 16 | | | | | 10-K |
| | 7/31/97 | | 16 | | 17 | | | 10-K, PRE 14A |
| List all Filings |
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