SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. 1)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss. 240.14a-12
FIRSTMARK CORP.
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(Name of Registrant as Specified in Its Charter)
H. WILLIAM COOGAN, JR.
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):*
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid: __________________________________________
2) Form Schedule or Registration Statement No.: _________________________
3) Filing Party: ____________________________________________________
4) Date Filed: _____________________________________________________
H. William Coogan, Jr.
1801 Libbie Avenue, Suite 201
Richmond, Virginia 23226
Dear Fellow Firstmark Shareholder:
I am the former Chairman, President and CEO, and the largest
shareholder, of Firstmark Corp.
I believe that the election of a new board is necessary if leadership
is to be put into place that will be dedicated to growing Firstmark
successfully, as well as to maximize the opportunities we have at Firstmark
Aerospace Corp., our newly acquired aerospace and defense business. I am
therefore seeking your support to elect six nominees to Firstmark's board who
share my belief that Firstmark could benefit from a change in leadership.
Join me in my effort to change our company's board. Firstmark's
Substitute Annual Meeting is scheduled to take place on September 6, 2002. At
that time, you will have the opportunity to elect a new board of directors. A
copy of the Notice previously given for the Substitute Annual Meeting is
attached.
The enclosed proxy statement contains important information concerning
Firstmark's Substitute Annual Meeting and my nominees --- please read it
carefully.
I URGE YOU TO SIGN, DATE, AND RETURN THE ENCLOSED GREEN PROXY SHEET
TODAY TO VOTE FOR THE ELECTION OF MY NOMINEES.
Thank you for your support.
Sincerely,
H. William (Bill) Coogan, Jr.
IMPORTANT
o Please sign, date and return the enclosed GREEN proxy sheet today in the
postage-paid envelope provided.
o Do not sign any proxy card that you may receive from Firstmark, even as a
protest vote against Firstmark's current board.
o If you have any questions, or need assistance voting, please contact the
firm assisting me in the solicitation of proxies:
Regan & Associates, Inc.
TOLL-FREE: (800) 737-3426
NOTICE
OF
SUBSTITUTE ANNUAL MEETING OF SHAREHOLDERS
OF FIRSTMARK CORP.
TO BE HELD ON SEPTEMBER 6, 2002
NOTICE IS HEREBY GIVEN that a Substitute Annual Meeting of Shareholders (the
"Substitute Annual Meeting") of Firstmark Corp. (the "Corporation") will be held
on Friday, September 6, 2002 at 2:30 p.m., Eastern Time, at One Portland Square,
Ninth Floor, Portland, Maine, 04101 to consider the following proposals:
1. To fix the number of directors to serve until the next Annual Meeting of
Shareholders.
2. To elect directors to serve until the next Annual Meeting of
Shareholders.
3. To ratify the appointment of Ernst & Young, LLP to audit the
Corporation's financial statements for its 2002 fiscal year.
The undersigned has fixed the close of business on August 9, 2002 as the
record date for determining shareholders of the Corporation entitled to notice
of and to vote at the Substitute Annual Meeting and at any adjournments thereof.
/s/ H. William Coogan, Jr.
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H. William Coogan, Jr.
4712 Charmian Road
Richmond, Virginia 23226
August 2, 2002
Firstmark Corp.
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SUBSTITUTE ANNUAL MEETING OF SHAREHOLDERS
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PROXY STATEMENT OF
H. WILLIAM COOGAN, JR.
This proxy statement and the enclosed GREEN proxy sheet are being
furnished to you, the holders of common stock, par value $0.20 per share, of
Firstmark Corp., a Maine corporation ("Firstmark" or the "Company"), in
connection with the solicitation of proxies by me, H. William Coogan, Jr., for
use at Firstmark's Substitute Annual Meeting of Shareholders, and at any
adjournments or postponements thereof (the "Annual Meeting"), to be held on
Friday, September 6, 2002 at 2:30 p.m., Eastern Time, at One Portland Square,
Ninth Floor, Portland, Maine, 04101. Only holders of Firstmark common stock at
the close of business on August 9, 2002 are entitled to notice of, and to vote
at, the Annual Meeting.
At the Annual Meeting, Firstmark common shareholders will be asked (1)
to fix the number of directors to serve until the next annual meeting of
shareholders, (2) to elect directors to serve until the next annual meeting of
shareholders, and (3) to ratify the appointment of Ernst & Young, LLP to audit
Firstmark's financial statements for 2002.
Pursuant to this proxy statement, I am soliciting proxies from
shareholders of Firstmark common stock to vote FOR fixing the number of
directors to serve until the next annual meeting of shareholders at six, FOR
electing my director-nominees presented in this proxy statement to serve as
directors of Firstmark and FOR ratifying the appointment of Ernst & Young, LLP
to audit Firstmark's financial statements for 2002.
* * * * *
A proxy may be given by any person who held shares of Firstmark common
stock at the close of business on August 9, 2002, the record date for the Annual
Meeting. Whether or not you plan to attend the Annual Meeting, you are urged to
sign and date the enclosed GREEN proxy sheet and return it in the postage-paid
envelope provided. Your latest-dated proxy is the only one that counts, so you
may return the GREEN proxy sheet even if you have already delivered any other
proxy. Please do not return any proxy sent to you by the board of directors of
Firstmark. If you return a white proxy card sent to you by Firstmark that card
will automatically be revoked if you complete and return the enclosed GREEN
proxy sheet. It is very important that you date your proxy.
This proxy statement and the enclosed GREEN proxy sheet are being
provided by H. William Coogan, Jr. and not the board of directors of Firstmark.
* * * * *
This proxy statement and the enclosed GREEN proxy sheet are first being
furnished to shareholders on or about August __, 2002.
AFFILIATIONS BETWEEN FIRSTMARK AND MY DIRECTOR-NOMINEES
My director-nominees are Timothy W. Byrne, Alireza Ezami, John D.
McCown, Steven B. Sebastian, John T. Wyand and me. Information on my
director-nominees is provided in "The Election of Directors -- Information About
My Director-Nominees" beginning on page 7 and in Annex A to this proxy
statement. Mr. Ezami and I currently serve as directors of Firstmark.
I served as Chairman, President and Chief Executive Officer of
Firstmark from November 2001 until August 5, 2002, when I was removed from my
positions with the Company by its board. Other than Mr. Ezami, who is also
President and Chief Operating Officer of Firstmark Aerospace Corp., a subsidiary
of the Company, and me, none of my director-nominees is or has been affiliated
with Firstmark.
THE CALLING OF THE SUBSTITUTE ANNUAL MEETING
AND MY REMOVAL AS CHAIRMAN, PRESIDENT AND CEO OF FIRSTMARK
Calling of Meeting
On July 12, 2002, in my capacity as President of Firstmark, and in
accordance with Maine law, I issued a Call of Substitute Annual Meeting of
Shareholders (the "Call") for September 6, 2002 at 2:30 p.m., Eastern Time, at
One Portland Square, Ninth Floor, Portland, Maine, 04101. On August 2, 2002, I
delivered a Notice of the Substitute Annual Meeting dated August 2, 2002 (the
"Notice") to holders of Firstmark common stock, filed the Notice with the SEC
and set the record date for the Annual Meeting as the close of business August
9, 2002. Accompanying this proxy statement is a copy of the notice for the
Annual Meeting delivered to holders of Firstmark common stock.
My Removal as Chairman, President and CEO of Firstmark
At the special meeting of the board of directors of Firstmark on August
5, 2002 called to consider (1) the call of the substitute annual meeting by me,
(2) the establishment of an executive committee of the board and (3) such other
matters as might come before the board, a motion was made that I be removed
as Chairman of the Board, President and Chief Executive Officer of Firstmark.
The motion was approved after little discussion by a vote of four to one. Mr.
Ezami was not present at the meeting at the time of the vote.
Although I received on August 6, 2002, an unsigned letter from Robert
J. Ellis, as Secretary of the Company, which letter also was not dated,
informing me of my removal from my positions as Chairman of the Board, President
and Chief Executive Officer of Firstmark, I have yet to receive any indication
in writing as to why I was removed. At the August 5, 2002 board meeting, an
executive committee was established with all powers that may be delegated to
such a committee, including the issuance of shares. At the board meeting, it was
stated that the specific purposes of the executive committee, in spite of the
broad delegation of powers to it, was to investigate whether any of my past
actions violated the federal securities laws. No specific claims have been made
to me regarding violations of the federal securities laws, and I know of no
basis for such claims.
2
Legal Action -- My Complaint and the TRO
In order to prevent the current board of Firstmark from delaying or
avoiding the Annual Meeting, I (along with my spouse, Susan C. Coogan, as
Trustee of The H. William Coogan Irrevocable Trust, a shareholder of Firstmark),
filed a complaint on August 6, 2002 in the United States District Court for the
District of Maine (the "Court") seeking a court order, among other things, to
enjoin the Company from (1) taking any actions to prevent or delay the
Substitute Annual Meeting of Shareholders of Firstmark called for September 6,
2002 pursuant to the Call; and (2) issuing any shares of the Company's stock. On
August 7, 2002, our counsel filed a motion for an ex parte temporary restraining
order and preliminary injunction on our behalf in the Court requesting that the
Court enter an order, among other things, to enjoin the Company and certain of
its directors from in any way attempting to change either the record date set
for, or the date of, the Annual Meeting and to require Firstmark to provide me
with the shareholder lists and related material necessary to mail this proxy
statement. On August 7, 2002, the Court issued such an order from the bench and
a written order (the "TRO") was entered by the Court on August 9, 2002.
The TRO was sought, in part, to prevent the board of directors of
Firstmark from taking any action to interfere with the Substitute Annual Meeting
called by me. Under Section 603(2) of the Maine Business Corporation Act and the
Company's bylaws, if there has been a failure, for whatever reason, to hold an
annual meeting for a period of 30 days after the date for such meeting specified
in the bylaws, a substitute annual meeting may be called by any person entitled
to call a special meeting of shareholders, including the President. According to
the Company's bylaws, the person calling such a meeting may establish the place
of the meeting as well as the date and time. Under Section 603(2) of the Maine
Business Corporation Act, in the event that the person to whom the call is
transmitted has not given notice of the meeting within 15 days of the call, the
person calling the meeting may give notice and fix the time of the meeting,
which may not be more than 60 days after receipt of the call. In addition, under
Section 606(2) of the Maine Business Corporation Act, if the directors fail or
refuse to set a record date for the meeting, the person calling the meeting may
do so.
A hearing on my motion for a preliminary injunction is scheduled to be
heard August 28, 2002. Even if the Court refuses to enter the preliminary
injunction as I have requested, I believe that it will have no effect on the
Annual Meeting, as I believe that the meeting has been called and noticed in
accordance with Maine law.
Legal Action -- Invalid Issuance of Shares
In its Form 10-QSB for the quarter ended June 30, 2002, Firstmark
responded to the requirement to list its outstanding shares as of the most
recent practicable date on the cover by indicating that there were 5,342,043
shares outstanding as of "June 30, 2002", despite the fact that it was filed
with the Securities and Exchange Commission ("SEC") on August 14, 2002. The
Firstmark preliminary proxy materials filed with the SEC on August 16, 2002,
indicate that there were 5,442,043 common shares outstanding as of August 9,
2002.
I believe that the difference is represented by the issuance of 75,000
shares to Robert J. Ellis, a current director of Firstmark, without cash
consideration, and the issuance of 25,000 shares to Arch Aplin III, also a
current director of Firstmark, without cash consideration, on or after July 16,
2002. In connection with the complaint filed with the Court on August 6, 2002,
discussed above, I have sought an order of the Court invalidating the issuance
of these shares on the grounds that the issuance was not properly authorized
under Maine law. I expect the Court to hear my motion to invalidate the issuance
of these shares at the hearing scheduled for August 28, 2002.
3
The basis for my assertion that the shares were invalidly issued is
that (a) the issuance of the shares received the affirmative vote of only two of
the five directors present at the July 9, 2002 board meeting at which the
issuance was purportedly approved, and (b) the issuance of the shares was a
"business combination" requiring shareholder approval under Section 611-A of the
Maine Business Corporation Act because each of Mr. Aplin and Mr. Ellis is the
beneficial owner of 25% or more of the outstanding common stock of Firstmark
acquired within the last five years through their respective affiliates and
associates and thus an "interested stockholder" under Section 611-A. I believe
that the issuance of shares was a business combination under Section 611-A
because it was a transaction, whether or not involving that interested
stockholder, pursuant to an arrangement or understanding with that interested
stockholder or any affiliate or associate of that interested stockholder which
has the effect, directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of securities of Firstmark.
I BELIEVE THAT MY FAMILY AND I HAVE CONTROL OF A MAJORITY
OF FIRSTMARK'S COMMON STOCK, AND THAT THE ELECTION
OF MY DIRECTOR-NOMINEES IS ASSURED
As of August 9, 2002, the record date for the Annual Meeting, I
beneficially owned an aggregate of 1,545,379 shares of common stock. Based on
the 5,342,043 shares of Firstmark common stock issued and outstanding, as stated
on the cover of Company's Form 10-QSB for the quarter ended June 30, 2002, I
beneficially own approximately 28.9% of the outstanding shares of Firstmark
common stock.
The H. William Coogan Irrevocable Trust (the "Trust"), a trust
organized under the laws of the Commonwealth of Virginia for the benefit of my
children, owned 1,162,903 shares of common stock on August 9, 2002. Susan C.
Coogan, my spouse, is trustee of the Trust, and she therefore has voting control
of the shares held by the Trust. The Trust owns approximately 21.8% of the
outstanding shares entitled to vote at the Annual Meeting, based on the
5,342,043 shares of Firstmark common stock issued and outstanding, as stated on
the cover of Company's Form 10-QSB for the quarter ended June 30, 2002.
Because my spouse and I collectively control approximately 50.7% of the
shares of Firstmark common stock that I believe are entitled to vote at the
Annual Meeting, I believe that we have the ability to establish a quorum at the
meeting and to vote for (a) fixing the number of directors to serve until the
next annual meeting of shareholders at six, and (b) electing my
director-nominees presented in this proxy statement to serve as directors of
Firstmark. As a result, the election of my director-nominees would be assured.
However, if the Court were to refuse to invalidate the issuance of
100,000 shares to Messrs. Aplin and Ellis, Ms. Coogan, as trustee of the Trust,
and I would not, absent the receipt of proxies subject to this solicitation, be
able to vote a majority of the outstanding shares as of the record date. Based
on the number of shares outstanding disclosed in Firstmark's preliminary proxy
materials filed with the SEC on August 16, 2002, we would collectively control
approximately 49.8% of the shares entitled to vote at the Annual Meeting. As the
election of directors requires a plurality of a quorum, however, if there is a
quorum established at the Annual Meeting, I believe that I will still be able to
control the election of directors at the Annual Meeting in this event, even
absent the receipt of proxies subject to this solicitation.
4
WHY I BELIEVE IT IS TIME TO CHANGE THE
BOARD OF DIRECTORS OF FIRSTMARK
All of the director-nominees proposed by Firstmark's board of directors
are incumbent directors of the Company. I believe that it is time to change the
board of directors at Firstmark. The reasons for my belief include the
following:
Before I joined Firstmark as its Chairman, President and CEO, the price of the
company's common stock was well below its current levels.
Before I became Chairman, President and CEO of Firstmark in November
2001, the Company's sales prices during the second and third quarter of 2001 for
its common stock ranged from a low of $0.32 to a high of $0.59 per share. During
the past 30 days, Firstmark's common stock has traded at a low of $0.86 and a
high of $1.35. On the date I issued a Call of Substitute Annual Meeting of
Shareholders, July 12, 2002, the closing price of Firstmark was $1.15. That's an
increase of approximately 195%, from the high of $0.59 per share during the
third quarter of 2001, the period immediately before I became President and CEO
of Firstmark.
I have been removed as Chairman, President and Chief Executive Officer
of Firstmark as of August 5, 2002. As a result, I no longer have an active role
as the officer in charge of the Company. In addition, the board of directors of
Firstmark has not nominated me as a director in its preliminary proxy statement
filing made with the SEC on August 16, 2002.
I believe that my hard work in guiding the Company from November 2001
to August 2002 is reflected in the increase in the price of our common stock of
approximately 195%, from the high of $0.59 per share during the third quarter of
2001.
Firstmark has not held a regular shareholders meeting since 1996, and I believe
shareholders should elect the directors of Firstmark.
Maine law requires Firstmark to have an annual meeting each year. While
the Company did have a special shareholders' meeting in February 1999 to vote on
the sale of Southern Title to Old Guard, it has not held a regular annual
shareholders' meeting since the fall of 1996. Whether one chooses to count from
the last special shareholders' meeting (held over three years ago) or regular
annual meeting (held nearly seven years ago), I believe that such a meeting is
long overdue. Additionally, none of Firstmark's current directors, including me,
has been duly elected by the Company's shareholders at such a meeting. Each
current director has been appointed by other current directors but not by
Firstmark shareholders.
I have voiced my concern at board meetings since becoming a director of
Firstmark about the length of time that has passed since a regular annual
meeting has been held, and have met with resistance each time. Most recently,
this occurred at the July 9, 2002 board meeting, when all of the directors other
than me and Mr. Ezami (who attended the meeting but did not become a director
until after the meeting) agreed with company counsel that it could take many
months to hold an annual meeting due to accounting and other issues.
After the meeting, I consulted with outside counsel, who informed me
that the reasons given for such a delay were not valid. I then concluded that
the board's action only further delayed what Maine law requires of a Maine
corporation - to have an annual meeting of shareholders each year. I believe
that the proper election of Firstmark's directors at a properly conducted
meeting should be a priority for the Company and its current directors, as well
as for all shareholders. While four of the Company's directors have served for
5
less than a year (me, Messrs. Ezami, Gorman and Mayer), the remaining two
(Messrs. Aplin and Ellis) have been directors since early in 2001,and have seen
over a year go by without having an annual meeting, despite Maine law. That is
why I have called for a substitute annual meeting. I am dissatisfied that
Firstmark's shareholders have not held an annual meeting for years.
I believe that my director-nominees have the relevant business experience to
effectively manage and grow Firstmark.
I believe that my director-nominees have the relevant business
experience, including experience in the financing, management and governance of
pubicly held corporations, to enhance the value of an investment in the
Company's common stock by maximizing the business opportunity at Firstmark
Aerospace Corp. Among my director-nominees are two current chief executive
officers of publicly held companies. All of my director-nominees have
significant business experience, and half of my director-nominees have specific
industry experience and contacts in the defense and aerospace sectors.
I encourage you to read more about my nominees under "The Election of
Directors - Information About My Director-Nominees" beginning on page 7. While I
cannot assure you that electing my slate of director-nominees or replacing
Firstmark's board will restore or increase the value of an investment in
Firstmark common stock or produce other desirable results, I believe that my
director-nominees, with their collective exerience in managing public companies,
investment banking, mergers and acquisitions, and public and private finance,
will take action to enhance shareholder value by leading Firstmark in seeking
growth opportunies.
I believe that the Tecstar Electro Systems acquisition will provide shareholder
benefit in the future, and that other advantageous transactions may be on the
horizon for Firstmark.
The acquisition of the business formerly known as Tecstar Electro
Systems, Inc. was completed on July 9, 2002. This acquisition comes less than
eight months after I became Chairman, President and Chief Executive Officer of
Firstmark. The business is a well established manufacturer of electro-mechanical
components for the aerospace and defense industries.
One reason I was hired by the Company was to seek out businesses to
acquire in order to build Firstmark. Beginning with my appointment in November
2001, I contacted numerous investment banking firms, business brokers and other
firms that I have come to know during my many years in the investment banking
business, to inquire about possible companies to look at as part of an
acquisition strategy for Firstmark. My actions led me to visiting numerous
companies, and beginning in February 2002 I visited at least a dozen times with
the senior managers of Tecstar Electro Systems and its parent company over a
period of three months. The board of Firstmark visited Tecstar Electro Systems
once prior to the signing of an asset purchase agreement to acquire the major
assets of the company. I was responsible for all business due diligence on the
transaction, and I wrote the "profile" paper on the deal in March 2002 that the
board reviewed in determining to pursue the acquisition of the Tecstar Electro
Systems business. I also negotiated the acquisition price with the seller, a
West Coast private equity firm, for less than 50% of book value and less than 2x
cash flow. A definitive agreement to acquire the company was reached on May 24,
2002 - within seven months of my arrival at Firstmark. The board's involvement
was limited to one onsite visit, a review and discussion of my profile paper and
approval of the acquisition at a board meeting.
I believe we have finally put Firstmark on the path to a new and
exciting future. Our first acquisition has been well thought out and well
executed. My record with the Company speaks for itself, in terms of quickly
seeking out a strategic acquisition, and increasing shareholder value within my
first year at Firstmark.
6
FIXING THE NUMBER OF DIRECTORS OF FIRSTMARK
The board of directors of Firstmark currently consists of one class of
six directors. Under Maine law and the Company's bylaws, the number of directors
may be fixed by the shareholders or the board of directors within the minimum
and maximum stated in the Company's articles of incorporation. Under Firstmark's
articles, the minimum number of directors is three and the maximum is seven.
Each director is to serve for one year and until the next annual meeting of
shareholders and until a successor is elected and qualified.
At the Annual Meeting, I will propose a motion to fix the number of
directors to serve until the next annual meeting of shareholders at six. If you
give a proxy on the accompanying green sheet, your shares will be voted as you
direct on this item. If no such instructions are specified, I will vote your
shares FOR fixing the number of directors to serve until the next annual meeting
of shareholders at six.
In the event that Firstmark shareholders fail to set the number of
directors at a number other than six, the number of directors will remain fixed
at six and the number of directors to be elected at the meeting will be six. If
the shareholders approve a motion to set the number of directors, that number
can be enforced in the same manner as a dispute regarding the election of
directors, by an action in Superior Court for Cumberland County, Maine.
Following the Annual Meeting, the shareholders or the board may, by
subsequent resolution, increase the number of directors, within the above
limits, and elect additional directors.
THE ELECTION OF DIRECTORS
I believe that my director-nominees are highly qualified, based on
their business and professional experience as summarized below, to serve as
directors of Firstmark. Each of my director-nominees has furnished the
information about him that is provided in this proxy statement. Additional
disclosure regarding my director-nominees and the other participants in my
solicitation can be found in Annex A to this proxy statement. Each of my
director-nominees has consented to serve as a director of Firstmark if elected
and to be named in this proxy statement and in my other soliciting materials as
my director-nominee.
Information About My Director-Nominees
The following are my director-nominees:
Timothy W. Byrne
Mr. Byrne, age 44, rejoined United States Lime & Minerals, Inc., a
publicly held company engaged in the production and sale of lime and limestone
products, in December 2000 as its President and Chief Executive Officer,
positions he previously held during 1997 and 1998. Mr. Byrne has served U.S.
Lime & Minerals as a director since 1991 and as Chief Financial Officer and
Senior Vice President or Vice President of Finance and Administration from 1990
to 1998. Before rejoining U.S. Lime & Minerals in 2000, Mr. Byrne was President
of Rainmaker Interactive, Inc., an Internet services and communications company
focusing on strategy, marketing and technology. Prior to joining U.S. Lime &
Minerals in 1990, Mr. Byrne was a partner at a consulting and accounting firm in
Washington, D.C.
7
H. William Coogan, Jr.
Mr. Coogan, age 48, was President and Chief Executive Officer of
Firstmark from November 2001 until August 5, 2002. He is a current director of
Firstmark and served as Chairman of the Board of Directors of Firstmark from
November 2001 until August 5, 2002. From June 1997 until June 2001, Mr. Coogan
was Managing Director of Rothschild North America, Inc., the North America
subsidiary of the Rothschild Group, one of the world's leading independent
investment banking organizations providing financial services to governments,
corporations and individuals worldwide. Mr. Coogan has over 20 years of
experience in investment banking and mergers and acquisitions with such firms as
CS First Boston (where he was a Management Partner and Chief Operating Officer
of its Los Angeles investment banking office), Wheat First Securities (now
Wachovia Securities; where he was Managing Director, Director and Head of
Investment Banking) and Libra Investments (now U.S. Bancorp Libra; where he was
head of investment banking and one of its co-founders).
Alireza (Ali) Ezami
Mr. Ezami, age 50, is President and Chief Operating Officer of
Firstmark Aerospace Corporation, a wholly owned subsidiary of Firstmark and a
well established manufacturer of electro-mechanical components for the aerospace
and defense industries. Firstmark Aerospace Corporation was formally Tecstar
Electro Systems, Inc. before Firstmark acquired it in July 2002. Mr. Ezami is a
current director of Firstmark. Mr. Ezami held the following positions at
Tecstar: Director of Quality, from July 1997 to January 1998; General Manager,
beginning in January 1998 until April 1998; and Vice President and General
Manager, from May 1998 to July 2002.
John D. McCown
Mr. McCown, age 47, has served as Chairman of the Board of Directors
and Chief Executive Officer of Trailer Bridge, Inc., a publicly held trucking
and marine freight carrier company, since November 1995. He has been a director
of Trailer Bridge since April 1991, and from July 1992 to November 1995 was a
Vice President of the company. Mr. McCown is also President and Chief Executive
Officer of Kadampanattu Corp., an affiliate of Trailer Bridge that is engaged in
marine freight service.
Steven B. Sebastian
Mr. Sebastian, age 48, has been Managing Director of Ravenscourt
Capital Advisors, a private equity investment firm based in Santa Monica,
California, since June 2002. From September 1996 to June 2002, he was Managing
Director of Westar Capital Associates, a private equity investment firm based in
Costa Mesa, California. Before joining Westar Capital, Mr. Sebastian was a
Senior Managing Director in the Investment Banking department of Bear, Stearns &
Co., where he specialized in structuring and financing management buyouts. As
part of his responsibilities at Westar, Mr. Sebastian served on various
portfolio company boards, including that of Tecstar Electro Systems, Inc. and
its parent company, Tecstar, Inc. Mr. Sebastian resigned from the Tecstar boards
in February 2002, prior to the transaction whereby Firstmark purchased the
Tecstar Electro Systems assets. In February 2002, Tecstar, Inc. filed a petition
for bankruptcy protection under federal bankruptcy laws and Mr. Sebastian was a
director of Tecstar at the time of such filing.
8
John T. Wyand
Mr. Wyand, age 72, has been the sole owner and President of Wyand
Enterprises, Ltd., a Maine corporation doing business as John T. Wyand
Associates and Universal International Corporate Consultants, Ltd., professional
consultants providing services in the areas of business finance and human
resources, since 1976.
I have no reason to believe that any of my director-nominees will be
disqualified or unwilling or unable to serve if elected. I reserve the right to
nominate substitute persons if Firstmark makes or announces any changes to its
bylaws or takes or announces any other action that has, or if consummated would
have, the effect of disqualifying any of my director-nominees, or if any of my
director-nominees are otherwise unavailable to serve.
In addition, in the event that the number of directors is not fixed at
six at the Annual Meeting, I plan to select from my director-nominees such
number of nominees equal to that fixed at the Annual Meeting, propose that such
nominees be elected as directors of Firstmark, and ask for a motion on and vote
on approving such proposal. If at the meeting, the shareholders fix the number
of directors at seven, I intend to vote my shares, and any proxies I am holding
and as to which discretionary authority has not been withheld, for an additional
nominee of my choosing.
I strongly believe that a vote for my director-nominees is a vote to
start a process intended to enhance shareholder value, and that a change in the
makeup of the board of directors of Firstmark is in the best interest of all
shareholders. However, I can not assure you that electing my slate of
director-nominees or replacing Firstmark's board will restore or increase the
value of an investment in Firstmark common stock or produce other desirable
results.
Legal Information
In the event that the Company refuses to seat directors elected at the
Annual Meeting, or if there is any other controversy with respect to the
election of directors, Maine law allows for a declaratory judgment action to be
brought in the Superior Court for Cumberland County by any shareholder or
director of the Company. The case is to be heard as expeditiously as possible,
upon affidavits or oral testimony, as the court shall direct. Upon completion of
the hearing, the court may declare the result of the contested election.
My Recommendation
I URGE YOU TO VOTE FOR THE ELECTION OF EACH OF MY NOMINEES ON THE
ENCLOSED GREEN PROXY SHEET.
AUDITORS
At the Annual Meeting, I will propose a motion to ratify the
appointment of Ernst &Young, LLP to audit Firstmark's financial statements for
2002. Unless otherwise specified, proxies received by me will be voted for the
ratification of the appointment of Ernst & Young, LLP.
9
GENERAL INFORMATION ABOUT VOTING
How do I vote in person?
If you own Firstmark common stock as of the close of business on the
record date, August 9, 2002, you may attend the Annual Meeting and vote in
person. If you are not the record holder of your shares, please refer to the
discussion following the question "What if I am not the record holder of my
shares?"
What if I am not the record holder of my shares?
If your shares are held in the name of a brokerage firm, bank nominee
or other institution, only it can give a proxy with respect to your shares. You
may have received either a blank, executed proxy card from the record holder
(which you can complete and return directly following the instructions below) or
an instruction card (which you can complete and return to your bank or broker to
direct its voting of your shares). If your bank or broker has not sent you
either a blank, executed proxy card or an instruction card, you may contact the
record holder directly to provide it with instructions. If you need assistance,
please contact my proxy solicitor, Regan & Associates, Inc., by telephone at
(800) 737-3426.
If you do not have record ownership of your shares and want to vote in
person at the Annual Meeting, you may obtain a document called a legal proxy
from the record holder of your shares and bring it to the Annual Meeting. If you
need assistance, please contact my proxy solicitor, Regan & Associates, Inc., by
telephone at (800) 737-3426.
How do I vote by proxy?
To vote by proxy, you should complete, sign and date the enclosed green
proxy sheet and return it promptly in the enclosed postage-paid envelope.
To be able to vote your shares in accordance with your instructions at
the Annual Meeting, your proxy must be delivered as soon as possible and in any
event before the underlying shares are voted at the meeting. You may vote your
shares without submitting a green proxy sheet if you vote in person or submit a
proxy to the clerk of Firstmark or the voting inspector at the meeting.
What should I do if I receive a white proxy card?
Proxies on the white proxy card are being solicited by the current
board of directors of Firstmark. If you submit a proxy by signing and returning
the enclosed green proxy sheet, do not sign or return the white proxy card or
follow any voting instructions provided by Firstmark unless you intend to change
your vote, because only your latest-dated proxy will be counted.
If you have already sent a white proxy card to Firstmark, you may
revoke it and provide your support to my director-nominees by signing, dating
and returning the enclosed green proxy sheet.
10
What if I want to revoke my proxy?
If you give a proxy, you may revoke it at any time before it is voted
on your behalf. You may do so in three ways:
o By delivering a later-dated proxy to Regan & Associates, Inc. or
the clerk of Firstmark; or
o By delivering a written notice of revocation to Regan &
Associates, Inc. or the clerk of Firstmark; or
o By voting in person at the Annual Meeting.
If you choose to revoke a proxy by giving written notice or a
later-dated proxy to the clerk of Firstmark, I would appreciate if you would
assist me in representing the interests of shareholders on an informed basis by
sending me a copy of your revocation or proxy or by calling Regan & Associates,
Inc. at (800) 737-3426. If you choose to revoke a proxy by giving written notice
or a later-dated proxy to Regan & Associates, Inc., it will deliver your notice
or proxy to the clerk of Firstmark. Remember, your latest-dated proxy is the
only one that counts.
If I plan to attend the Annual Meeting, should I still submit a proxy?
Whether you plan to attend the Annual Meeting or not, I urge you to
submit a proxy. Returning the enclosed green proxy sheet will not affect your
right to attend the Annual Meeting and vote.
Who can vote?
You are eligible to vote or to execute a proxy only if you own
Firstmark common stock on the record date for the Annual Meeting, which is the
close of business on August 9, 2002. Even if you sell your shares after the
record date, you will retain the right to execute a proxy in connection with the
Annual Meeting. It is important that you grant a proxy regarding shares you held
on the record date, or vote those shares in person, even if you no longer own
those shares.
How many votes do I have?
With respect to each matter to be considered at the Annual Meeting,
each holder of common stock of Firstmark will have one vote for each share of
Firstmark common stock held on the record date. Based on documents publicly
filed by Firstmark, I believe Firstmark has no outstanding voting securities
other than its common stock.
How will my shares be voted?
If you give a proxy on the accompanying green proxy sheet, your shares
will be voted as you direct. If you submit a signed green proxy sheet without
instructions, I will vote your shares for:
o fixing the number of directors to serve until the next annual
meeting of shareholders at six;
o electing my director-nominees presented in this proxy statement to
serve as directors of Firstmark; and
11
o ratifying the appointment of Ernst & Young, LLP to audit
Firstmark's financial statements for 2002.
Unless you check the WITHHOLD box, submitting a green proxy sheet will
generally entitle me to vote your shares in accordance with my discretion on
matters not described in this proxy statement that may arise at the Annual
Meeting. Applicable SEC rules permit me to vote in my discretion on any matters
which I do not know are to be presented at the Annual Meeting, other than any
matters as to which the rules promulgated by the SEC or any applicable state law
do not permit discretionary voting, such as the election of any person to any
office for which a bona fide nominee is not named in this proxy statement. For
example, if you do not check the WITHHOLD box, I will have discretionary
authority to vote for any substitute director-nominees that I may nominate.
Unless a proxy specifies otherwise, it will be presumed to relate to
all shares held of record on the record date by the person who submitted the
proxy.
Who will vote my shares at the Annual Meeting?
If you provide a proxy on the accompanying green proxy sheet, I will
hold your proxy and will vote your shares at the Annual Meeting as directed in
the proxy card you provide.
What is a quorum and why is it necessary?
Conducting business at the Annual Meeting requires a quorum. For a
quorum to exist, shareholders representing a majority of the votes eligible to
be cast must be present in person or represented by proxy. Under the Maine
Business Corporation Act, abstentions and broker non-votes (when your shares are
held in street name, and you do not tell the broker or nominee how to vote your
shares) are treated as present for purposes of determining whether a quorum
exists.
What vote is required to approve each proposal and how will votes be counted?
If a quorum is present, new directors will be elected by a plurality of
the votes cast. This means that the director-nominees receiving the highest
number of votes will be elected as directors. Accordingly, abstentions and
broker non-votes do not have the effect of a vote against the election of any
director-nominees. Brokers will not have discretion to vote shares held in
street name in connection with the election of directors without instructions
from the beneficial owner of the shares with respect to the proposals under this
proxy statement at the Annual Meeting. You do not have the right to cumulate
your votes.
Each proposal other than the election of directors will be adopted if a
majority of the shares represented at the meeting and entitled to vote on the
proposal are voted in its favor. Accordingly, abstentions on each such proposal
will have the same effect as a vote against the proposal. Broker non-votes will
not have the effect of a vote for or against any such proposal.
What effect does the share ownership by H. William Coogan, Jr. and the Trust
have on establishing a quorum, and on the outcome of the vote on the proposals?
Because my spouse and I collectively control approximately 50.7% of the
shares of Firstmark common stock entitled to vote at the Annual Meeting, we have
the ability to establish a quorum at the meeting and to vote for (a) fixing the
number of directors to serve until the next annual meeting of shareholders at
six, and (b) electing my director-nominees presented in this proxy statement to
serve as directors of Firstmark. As a result, the election of my
director-nominees would be assured.
12
However, if the Court were to refuse to invalidate the issuance of
100,000 shares to Messrs. Aplin and Ellis, Ms. Coogan, as trustee of the Trust,
and I would not, absent the receipt of proxies subject to this solicitation, be
able to vote a majority of the outstanding shares as of the record date. Based
on the number of shares outstanding disclosed in Firstmark's preliminary proxy
materials filed with the SEC on August 16, 2002, we would collectively control
approximately 49.8% of the shares entitled to vote at the Annual Meeting. As the
election of directors requires a plurality of a quorum, however, if there is a
quorum established at the Annual Meeting, I believe that I will still be able to
control the election of directors at the Annual Meeting in this event, even
absent the receipt of proxies subject to this solicitation.
See "The Calling of the Substitute Annual Meeting and My Removal as
Chairman, President and CEO of Firstmark -- Legal Action -- Invalid Issuance of
Shares" on page 2 for a discussion regarding the dispute I have with the Company
with respect to the number of shares of common stock that have been authorized
and are outstanding. In addition, see also "I Believe that My Family and I Have
Control of a Majority of Firstmark's Common Stock, and that the Election of My
Director-Nominees is Assured" on page 4.
How can I receive more information?
If you have any questions about giving your proxy or about my
solicitation, or if you require assistance, please call Regan & Associates, Inc.
at (800) 737-3426.
PROXY SOLICITATION AND EXPENSES
I am soliciting your proxy through this proxy statement. My
director-nominees and I may solicit proxies in person and by mail, press
release, advertisements in newspapers, magazines and/or trade publications,
telephone, facsimile, telegraph, electronic mail, Internet, publication,
television, radio and newspapers. Neither my director-nominees nor I have or
will receive compensation for soliciting proxies.
I will ask banks, brokers, custodians, nominees, other institutional
holders and other fiduciaries to forward all soliciting materials to the
beneficial owners of the shares that those institutions hold of record. I will
reimburse those institutions for reasonable expenses that they incur in
connection with forwarding my materials.
I have retained Regan & Associates, Inc. to solicit proxies on my
behalf in connection with the Annual Meeting. Regan & Associates, Inc. may
solicit proxies from individuals, banks, brokers, custodians, nominees, other
institutional holders and other fiduciaries and will employ approximately 5 to
10 people in its efforts. I have agreed to reimburse Regan & Associates, Inc.
$5,000 for its reasonable expenses and to pay it fees not to exceed $15,000.
Although no precise estimate can be made at the present time, I
currently estimate that the total expenditures relating to this proxy
solicitation incurred by me will be approximately $______________ of which
approximately $____________ has been incurred to date. I may, particularly if my
director-nominees are elected to Firstmark's board of directors, seek
reimbursement of my expenses from Firstmark. I do not intend to seek shareholder
approval of that reimbursement.
13
INFORMATION ABOUT ME AND
OTHER PARTICIPANTS IN MY SOLICITATION OF PROXIES
My director-nominees and I are participants in this solicitation of
proxies for the Annual Meeting within the meaning of the federal securities
laws. Information related to the participants, including their beneficial
ownership of Firstmark capital stock, is set forth on Annex A to this proxy
statement and is incorporated into this proxy statement by reference. Except as
set forth on Annex A, none of the participants is party to any commercial
dealing with Firstmark or its subsidiaries that is required to be discussed in
this proxy statement by the federal securities laws. Information in this proxy
statement about each participant was provided by that participant.
INFORMATION ABOUT FIRSTMARK
Based on the most recent public disclosure of the Company, in its
Annual Report on Form 10-KSB for the year ended December 31, 2001, there were
approximately 145 record holders of common stock as of March 15, 2002.
Based upon information provided in Firstmark's Quarterly Report on Form
10-QSB for the quarterly period ended June 30, 2002 filed with the SEC on August
14, 2002, the mailing address of the principal executive offices of Firstmark is
2700 Via Fortuna, Suite 400, Austin, Texas 78746, telephone (512) 306-5282.
Annex B sets forth certain information obtained from Firstmark's public
filings related to the beneficial ownership of Firstmark's common stock and is
incorporated in this proxy statement by reference.
The information concerning Firstmark has been taken from or is based
upon documents and records on file with the SEC and other publicly available
information, and I have not independently verified the content of these filings
or other information.
OTHER MATTERS TO BE VOTED UPON
I am not aware of any other business to be acted upon at the Annual
Meeting. If, however, other matters are properly brought before the Firstmark
Annual Meeting or any adjournment or postponement of the Annual Meeting, I, as
proxy holder, will have discretion to act on those matters.
14
SHAREHOLDER PROPOSALS
For information relating to shareholder proposals which are intended to
be presented at the 2003 annual meeting of shareholders of Firstmark, please see
the proxy statement of Firstmark for the Annual Meeting.
* * * * * *
Questions or requests for additional copies of this proxy statement
should be directed to:
Regan & Associates, Inc.
505 Eighth Avenue
Floor 12A, Suite 1
New York, New York 10018
TOLL-FREE: (800) 737-3426
15
ANNEX A
INFORMATION ABOUT ME AND
OTHER PARTICIPANTS IN MY SOLICITATION OF PROXIES
I, H. William Coogan, Jr., and my director-nominees, are participants
in the solicitation of proxies in support of the election of my
directors-nominees to the Firstmark board of directors. My director-nominees are
Timothy W. Byrne, Alireza Ezami, John D. McCown, Steven B. Sebastian, John T.
Wyand and me.
In addition, my spouse, Susan C. Coogan, is trustee of The H. William
Coogan Irrevocable Trust. The Trust owns 1,162,903 shares of common stock,
representing approximately 21.8% of the outstanding shares of common stock based
on 5,342,043 shares of common stock issued and outstanding, as stated on the
cover of Company's Form 10-QSB for the quarter ended June 30, 2002. The Trust's
principal business is investing in and holding stock and other assets. My
children are beneficiaries of the Trust. The address for the Trust is Susan C.
Coogan, Trustee, 4712 Charmian Road, Richmond, Virginia 23226. I am making this
disclosure in the event that the Trust and Ms. Coogan may be deemed to be
participants in the solicitation of proxies in support of the election of my
director-nominees to Firstmark's board of directors.
Occupations
The present principal occupation or employment of each of my
director-nominees is described in the proxy statement under "The Election of
Directors -- Information About My Nominees."
Security Ownership
The participants and their associates may be deemed to have beneficial
ownership of Firstmark common stock as set forth below. Beneficial ownership is
determined in accordance with the rules of the SEC. The number and percentages
of shares beneficially owned are based on the aggregate of 5,342,043 shares of
common stock outstanding as of June 30, 2002, as stated on the cover of
Company's Form 10-QSB for the quarter ended June 30, 2002. See "The Calling of
the Substitute Annual Meeting and My Removal as Chairman, President and CEO of
Firstmark -- Legal Action -- Invalid Issuance of Shares" on page 2 for a
discussion regarding the dispute I have with the Company with respect to the
number of shares of common stock that have been authorized and are outstanding.
Unless otherwise indicated in the footnotes below, the persons and
entities named in the table have sole voting or investment power with respect to
all shares beneficially owned.
A-1
Shares of Percentage of
Common Stock Common Stock
Beneficially Beneficially
Owned Owned
----- -----
Name of Beneficial Owner
H. William Coogan, Jr.
1801 Libbie Avenue, Suite 201
Richmond, Virginia 23226........................ 1,545,379 28.9%
The H. William Coogan Irrevocable Trust
Susan C. Coogan, Trustee
c/o Susan C. Coogan
4712 Charmian Road
Richmond, Virginia 23226........................ 1,162,903 21.8%
Timothy W. Byrne
13800 Montfort Drive, Suite 330
Dallas, Texas 75240............................. --- ---
Alireza Ezami
921 Holloway Street
Durham, North Carolina 27701.................... --- ---
John D. McCown
660 Madison Avenue
10th Floor
New York, New York 10021........................ --- ---
Steven B. Sebastian
100 Wilshire Boulevard
Suite 1840
Santa Monica, California 90272.................. --- ---
John T. Wyand
2960 Longleat Woods
Sarasota, Florida 34235......................... --- ---
No participant and no associate of any participant beneficially owns
any securities of Firstmark other than common stock. No participant beneficially
owns any securities of any parent or subsidiary of Firstmark. No participant has
record but not beneficial ownership with respect to any securities of Firstmark.
A-2
Transactions in Firstmark Securities
Other than the transactions described below, no participant has
purchased or sold any securities of Firstmark in the past two years.
On various dates from July 10, 2002 through July 17, 2002, I purchased
an aggregate of 55,000 shares of common stock in the open market for an
aggregate purchase price of $83,620.91. The purchases were made using my
personal funds. Certain information with respect to the open market purchases
made by me during the past two years is provided in the table below.
Information on Open Market Purchases
- ---------------------- --------------------- ------------------- ----------------------- -----------------------
Date
Purchased Shares Share Price Commission Total Cost
- ---------------------- --------------------- ------------------- ----------------------- -----------------------
July 10, 2002 2,000 $ 1.05 $ 94.50 $ 2,194.50
===================== =======================
July 15, 2002 500 $ 1.35 30.38 $ 705.38
1,000 $ 1.30 58.50 $ 1,358.50
10,000 $ 1.45 652.50 $ 15,152.50
7,000 $ 1.45 456.75 $ 10,606.75
500 $ 1.28 28.80 $ 668.80
--------------------- -----------------------
19,000 $ 28,491.93
===================== =======================
July 16, 2002 20,000 $ 1.49 1,341.00 $ 31,141.00
3,000 $ 1.49 201.15 $ 4,671.15
500 $ 1.48 33.30 $ 773.30
--------------------- -----------------------
23,500 $ 36,585.45
===================== =======================
July 17, 2002 10,000 $ 1.49 670.50 $ 15,570.50
500 $ 1.49 33.53 $ 778.53
--------------------- -----------------------
10,500 $ 16,349.03
===================== =======================
TOTAL 55,000 $ 83,620.91
===================== =======================
In addition, beginning July 11, 2002 and through the date of this proxy
statement, I entered into 30 Securities Purchase Agreement and Option to Acquire
Shares contracts (each a "Securities Purchase Agreement" and collectively the
"Securities Purchase Agreements") with certain holders of the Company's common
stock. Pursuant to the terms of the Securities Purchase Agreements, each such
holder of the Company's common stock (each a "Seller" and collectively the
"Sellers") agreed to sell to me a certain number of shares of common stock held
by each Seller at a per share purchase price of $1.00. Seller information with
respect to each Securities Purchase Agreement is listed in the table below.
As of the date of this proxy statement, I have purchased a total of
423,552 shares of common stock under 24 Securities Purchase Agreements, for an
aggregate acquisition purchase price of $423,552. I have not yet purchased
shares under six Securities Purchase Agreements relating to an aggregate of
65,438 shares. Out of those six Securities Purchase Agreements, five agreements
relating to 64,338 shares have been amended to extend the closing date of the
delivery of the shares until such time as delivery can be made by each Seller.
A-3
Each Seller from whom I have not purchased shares as of the date of the proxy
statement has constituted and appointed me to be such Seller's true and lawful
attorney-in-fact to vote the shares held by the Seller on the date of the
Securities Purchase Agreements on any and all matters that may be put to a vote
of shareholders of the Company at any regular or special meeting of shareholders
of the Company. Subject to the terms of the Securities Purchase Agreements, such
proxy granted to me is irrevocable.
Information on Parties to the
Securities Purchase Agreements
Number
Date Seller of Shares
- ---- ------ ---------
July 11, 2002 Jeffrey Vigue 5,000
July 11, 2002 Michael E. and Sally E. Bouthot JT Ten 2,000
July 11, 2002 Clyde Campbell, Trustee
Ada Campbell, Trustee, The Campbell Living Trust 12,624
July 11, 2002 Millard S. Parlin Jr. 5,000
July 11, 2002 Robert W. Getchell 2,000
July 11, 2002 John Joseph Jr., Custodian -
Caroline M. Joseph UGMA ME 2,000
July 11, 2002 John Joseph Jr., Custodian -
Amy H. Joseph UGMA ME 2,000
July 11, 2002 John Joseph Jr., Custodian -
John M. Joseph, III, UGMA ME 2,000
July 11, 2002 Tessa K. Joseph 2,000
July 11, 2002 Elsie P. Viles 18,000
July 11, 2002 William T. Adamson II 2,355
July 11, 2002 Clarence and Barbara Herrick, Trustees, Herrick Living Trust 1,100
July 11, 2002 Susan Bassi Brown 10,000
July 11, 2002 Kristopher M. Gilbert-Vigue 1,525
July 11, 2002 Ivy L. Gilbert 22,837
July 11, 2002 Ivy L. Gilbert, as President of GV Financial Group 30,000
July 11, 2002 James F. Vigue 27,500
July 11, 2002 Walter H. Zukowski, Trustee -
Walter H. Zukowski Trust 72,952
July 11, 2002 Harold L. Vigue, Trustee -
Vigue Loving Trust 20,000
July 11, 2002 Lorraine Kingsbury, Trustee -
Robert S. Kingsbury Family Trust 80,000
July 11, 2002 John M. Joseph, Trustee -
Joseph Family Trust 27,447
July 11, 2002 William G. Savage, Trustee -
Savage Family Trust 27,812
July 15, 2002 John Vigue for Oyster River Management 8,500
July 15, 2002 Arthur J. Haug, Trustee -
The Haug Loving Trust 25,000
July 16, 2002 Warren M. Aldred and Beverly L. Aldred 37,500
July 17, 2002 John T. Wyand, Trustee -
John T. Wyand Trust 30,549
(table continued on next page)
A-4
Number
Date Seller of Shares
- ---- ------ ---------
July 23, 2002 Rock LaCroix & Bernadette LaCroix JT TEN 4,000
August 5, 2002 Phil A. Whitney & Karin Whitney JT TEN 3,289
August 9, 2002 George Joseph, Custodian -
Hannah W. Joseph UGMA ME 2,000
August 9, 2002 George Joseph, Custodian -
Lydia M. Joseph UGMA ME 2,000
-------------
Total 488,990
As indicated in the table above, one of my director-nominees, John T.
Wyand, serves as trustee for The John T. Wyand Trust ("Wyand Trust"). The Wyand
Trust has entered into a Securities Purchase Agreement with me and is a Seller.
For more information on the Securities Purchase Agreements, please see
my Amendment No. 2 to my statement on Schedule 13D that I filed with the SEC on
July 19, 2002.
Arrangements, Interests, Transactions and Other Information
Except as set forth herein, no participant is, or was within the past
year, a party to any contract, arrangement or understanding with any person with
respect to any securities of Firstmark, including, but not limited to, joint
ventures, loan or option arrangements, puts or calls, guarantees against loss or
guarantees of profit, division of losses or profits, or the giving or
withholding of proxies. Neither a participant, an associate of any participant
nor a person who is a party to any arrangement or understanding pursuant to
which any of my director-nominees is proposed to be elected has any arrangement
or understanding with any person with respect to future employment by Firstmark
or its affiliates or with respect to any future transactions to which Firstmark
or any of its affiliates will or may be a party.
I have interests in the solicitation of proxies in support of the
election of my director-nominees from either direct or indirect beneficial
ownership of the common stock of Firstmark. As to my director-nominees, I
believe that directors should be compensated for their service, but that this
compensation should be closely aligned with the interests of shareholders. I
expect that my director-nominees will receive compensation from Firstmark
typical of compensation received by directors of other publicly held companies,
including stock options, in exchange for their services as directors, if
elected.
Currently, Firstmark's directors and officers benefit from the maximum
protection provided by Maine law with respect to director and officer liability
and indemnification. Firstmark also provides its directors and officers with
indemnification insurance. Public corporations customarily provide such
statutory protection and insurance to their directors and officers. Each of my
director-nominees have indicated that their willingness to serve as directors is
predicated on the assumption that these protections and insurance will be in
place and available to them if they are elected.
Except as described below, there has been no transaction or series of
similar transactions since the beginning of Firstmark's last completed fiscal
year, and there is no currently proposed transaction or series of similar
proposed transactions, to which Firstmark or any of its subsidiaries was or is
to be a party, in which the amount involved exceeds $60,000 and in which any
participant or any associate of any participant had, or will have, a direct or
indirect material interest.
A-5
o On July 8, 2002, the Company, through its newly-formed acquisition
subsidiary, Firstmark Aerospace Corp., completed the acquisition
of substantially all of the assets of Tecstar Electro Systems,
Inc. ("TES") used by TES in its business of manufacturing,
assembling, maintaining and repairing electromechanical components
and equipment used in aviation and other industries, including
approximately $2 million in cash and cash equivalents, all
accounts receivable, equipment, inventory and pre-paid expenses
but excluding primarily the land and building in which TES
operated. Firstmark acquired the assets for a purchase price of
$3,600,000 in cash, $250,000 of which shall be held in escrow for
three months following the closing of the transaction pending
resolution of certain contingent liabilities and $50,000 of which
shall be held in a reserve account to cover expenses of TES
related to its land and building.
o Upon acquisition of TES, Firstmark and Mr. Ezami, former Vice
President and General Manager of TES, entered into a one-year
employment agreement, which is renewable annually solely by
Firstmark, pursuant to which he receives a base salary of $200,000
and benefits as President and Chief Operating Officer of Firstmark
Aerospace Corp.
No participant in my solicitation has been convicted, in the last 10
years, in any criminal proceeding (other than traffic violations or similar
misdemeanors).
Compensation of Certain Director-Nominees by Firstmark
Except as described below, none of my director-nominees and no
associate of any of my director-nominees has received any compensation from
Firstmark as a director or executive officer of Firstmark.
I was President and Chief Executive Officer of Firstmark from November
14, 2001 until August 5, 2002, when I was removed from my position with the
Company by its board. The following table sets forth the annual compensation
paid to me by Firstmark for the fiscal year ended December 31 2001.
Summary Compensation Table
Name and Annual Compensation All Other
Principal Position Year Salary Bonus Compensation
------------------ ---- ------ ----- ------------
H. William Coogan, Jr. (1) 2001 $37,500 -- --
Former President and CEO
- ------------------
(1) I was hired on November 14, 2001 and my salary was accrued for in 2001
but paid in January 2002. On August 5, 2002, I was removed from my
positions of Chairman, President and Chief Executive Officer by
Firstmark's board.
Employment Agreements
On November 14, 2001, the Company entered into an employment and
confidentiality agreement with me as the Chairman of the board of directors,
President and Chief Executive Officer of the Company. Under the terms of my
employment agreement, I am entitled to a monthly salary of $25,000. The
employment agreement has a term of one year with an automatic renewal period of
one additional year unless expressly terminated. The Company is required to
provide me with written notice of its intent to terminate the agreement at least
A-6
30 days prior to November 14, 2002. I served as Chairman, President and Chief
Executive Officer of Firstmark from November 2001 until August 5, 2002, when I
was removed from my positions with the Company by its board.
Effective July 8, 2002, the Company's operating subsidiary, Firstmark
Aerospace Corp., entered into an employment and confidentiality agreement with
Mr. Ezami. Pursuant to the terms of the agreement, Mr. Ezami serves as the
President of Firstmark Aerospace. The agreement has a one year term and is
automatically renewable unless either party terminates the agreement by
providing 30 days written notice. Under the agreement, Mr. Ezami receives an
annual salary of $200,000 per year and a bonus based on certain earnings
targets. He is also entitled to receive a stock award of 37,500 shares of common
stock on each of the first four successive anniversaries of the acquisition of
Tecstar Electro Systems, Inc. so long as the agreement remains in effect. In
recognition of Mr. Ezami's efforts to consummate the acquisition of assets of
Tecstar Electro Systems, the agreement provides him with up to 50% of a bonus
pool based on the cash position of the business acquired. If Mr. Ezami is
terminated without cause by Firstmark Aerospace, he will be entitled to receive,
at his discretion, a severance payment of either (a) a lump sum of 75% of his
then current annual salary or (b) 12 monthly payments of his then current
monthly salary.
Stock Options
No stock options have been granted to Mr. Ezami or me in connection
with our services to Firstmark and Firstmark Aerospace.
Directors' Fees
Mr. Ezami and I receive no fees in connection with our services to
Firstmark's board.
Additional Information About My Director-Nominees
I served as Chairman, President and Chief Executive Officer of
Firstmark from November 2001 until August 5, 2002, when I was removed from such
positions by the board. Although I received on August 6, 2002, an unsigned
letter from Robert J. Ellis, as Secretary of the Company, which letter also was
not dated, informing me of my removal from my positions as Chairman of the
Board, President and Chief Executive Officer of Firstmark, I have yet to receive
any indication in writing as to why I was removed. I remain a director of
Firstmark. Other than Mr. Ezami, who serves as a director of Firstmark and is
also President and Chief Operating Officer and a director of Firstmark Aerospace
Corp., a subsidiary of the Company, and me, none of my director-nominees
presently hold any positions with Firstmark.
There is no arrangement or understanding between any of my
director-nominees and any other person pursuant to which a director-nominee was
selected as a director-nominee.
To the best of my knowledge, none of my director-nominees is employed
by any other director-nominee. All of my director-nominees are citizens of the
United States.
There is no family relationship (within the meaning of the federal
securities laws) between any of my director-nominees and (i) any other of my
director-nominees or (ii) any director of Firstmark, executive officer of
Firstmark or person nominated by Firstmark to become a director or executive
officer.
A-7
Except as provided herein, none of my director-nominees (i) has any
business relationship that is required to be disclosed by the federal proxy
rules; (ii) has had any such relationship since the beginning of Firstmark's
most recently completed fiscal year; or (iii) has, since the beginning of
Firstmark's last completed fiscal year, been indebted to Firstmark or any of its
subsidiaries.
In order to prevent the current board of Firstmark from delaying or
avoiding the Annual Meeting, I (along with my spouse, Susan C. Coogan, as
Trustee of The H. William Coogan Irrevocable Trust, a shareholder of Firstmark),
filed a complaint on August 6, 2002 in the United States District Court for the
District of Maine seeking a court order, among other things, to enjoin the
Company from (1) taking any actions to prevent or delay the Substitute Annual
Meeting of Shareholders of Firstmark called for September 6, 2002 pursuant to
the Call; and (2) issuing any shares of the Company's stock. On August 7, 2002,
our counsel filed a motion for an ex parte temporary restraining order and
preliminary injunction on our behalf in the Court requesting that the Court
enter an order, among other things, to enjoin the Company and certain of its
directors from in any way attempting to change either the record date set for,
or the date of, the Annual Meeting and to require Firstmark to provide me with
the shareholder lists and related material necessary to mail this proxy
statement. On August 7, 2002, the Court issued such an order from the bench and
a written TRO order was entered by the Court on August 9, 2002. Other than as
set forth in this and the preceding paragraph, to my knowledge there is, and has
been, no legal or other proceeding involving any director-nominee that is
required to be disclosed under the federal proxy rules.
Section 16(a) Beneficial Ownership Reporting Compliance
None of my director-nominees has failed to file reports related to
Firstmark that are required by Section 16(a) of the Securities Exchange Act of
1934, as amended.
A-8
ANNEX B
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT OF FIRSTMARK
The following table sets forth certain information as to the number and
percentage of shares of outstanding common stock owned by each person owning at
least 5% of Firstmark's common stock, each executive officer and director owning
stock, each director-nominee of Firstmark, and all officers and directors as a
group. Except for information with respect to me, the Trust and Ms. Coogan, the
name, address and number of share information provided below is based solely
upon the preliminary proxy statement filed by Firstmark with the Securities and
Exchange Commission on August 16, 2002. The percentages of shares provided in
the table below are based on the aggregate of 5,342,043 shares of common stock
outstanding as of June 30, 2002, as stated on the cover of Company's Form 10-QSB
for the quarter ended June 30, 2002. See "The Calling of the Substitute Annual
Meeting and My Removal as Chairman, President and CEO of Firstmark -- Legal
Action -- Invalid Issuance of Shares" on page 2 for a discussion regarding the
dispute I have with the Company with respect to the number of shares of common
stock that have been authorized and are outstanding. Except as otherwise
indicated the mailing address of each individual is Firstmark Corp., 2700 Via
Fortuna, Suite 400, Austin, TX 78746, based upon the preliminary proxy statement
filed by Firstmark with the Securities and Exchange Commission on August 16,
2002.
Shares of Common Percentage of
Stock Beneficially Common Stock
Name of Beneficial Owner Owned Beneficially Owned
------------------------ ----- ------------------
Arch Aplin, III
327 Hury 2004
Lake Jackson, Texas 77566 492,500 9.2%
H. William Coogan, Jr.
1801 Libbie Avenue, Suite 201
Richmond, Virginia 23226 1,545,379 28.9%
The H. William Coogan, Jr. Irrevocable Trust
Susan C. Coogan, Trustee
c/o Susan C. Coogan
4712 Charmian Road
Richmond, Virginia 23226 1,162,903 21.8%
Robert J. Ellis
108,000 2.0%
Alireza Ezami
921 Holloway
Durham, North Carolina 27701 -0- --
John Joseph Gorman (1) 1,286,788 24.1%
Charles H. Mayer 102,500 1.9%
Kurt J. Rechner 20,000 *
All directors and executive officers as a group
(7 persons) 3,555,167 66.6%
- ---------------
* Percentage of ownership is less than one percent of the outstanding
shares of common stock of the company.
(1) Mr. Gorman holds beneficial ownership of 1,286,788 shares of common stock.
Of that amount, Mr. Gorman reported that he had sole voting and dispositive
power over 1,150,733 shares and shared voting or dispositive power over 136,055
shares. The amount of shares with respect to which he shared voting and
dispositive power includes 136,000 shares held in trusts and custodial
arrangements and 55 shares owned by Tejas Securities Group, Inc. ("Tejas"). Mr.
Gorman is the Chairman of the Board and Chief Executive Officer of Westech
Capital Corp., the sole shareholder of Tejas.
B-1
FIRSTMARK CORP.
PROXY FOR THE SUBSTITUTE ANNUAL MEETING OF SHAREHOLDERS
THIS PROXY IS SOLICITED BY H. WILLIAM COOGAN, JR. AND NOT BY THE BOARD OF
DIRECTORS OF FIRSTMARK CORP.
The undersigned shareholder of Firstmark Corp. (the "Company") revokes
all previous proxies and hereby appoints H. William Coogan, Jr. as attorney and
proxy with full power of substitution and revocation, to represent the
undersigned at the Substitute Annual Meeting of Shareholders to be held on
Friday, September 6, 2002 at 2:30 p.m., Eastern Time, at One Portland Square,
Ninth Floor, Portland, Maine, 04101, and at any adjournment or postponement
thereof (the "Annual Meeting"), with authority to vote all shares of Company
common stock held or owned by the undersigned in accordance with the directions
indicated herein.
This proxy, when properly executed, will cause your shares to be voted
as you direct. If you return this proxy, properly executed, without specifying a
choice, your shares will be voted for items (1), (2), and (3) below.
H. WILLIAM COOGAN, JR.
RECOMMENDS A VOTE FOR THE ELECTION OF THE NOMINEES LISTED BELOW
1. To fix the number of directors to serve until the next annual meeting of shareholders at six.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
2. Election of Directors.
[ ] FOR all Nominees listed below [ ] WITHHOLD AUTHORITY TO VOTE FOR
(except as marked to the THOSE INDICATED BELOW
contrary below)
NOMINEES: Timothy W. Byrne, H. William Coogan, Jr., Alireza Ezami, John D. McCown, Steven B. Sebastian
and John T. Wyand
INSTRUCTIONS: To withhold authority to vote for an individual nominee(s), print the name of the nominee(s) in the space provided
below.
- ------------------------------------------------------------------------------------------------------------------------------------
3. Ratification of the selection of Ernst & Young, LLP as the Company's
independent auditors for the fiscal year ending December 31, 2002.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
4. Discretionary Authority. In his discretion, Mr. H. William Coogan, Jr. is authorized to vote upon such
other business as may properly come before the Annual Meeting or any adjournment or postponement of the
Annual Meeting, including an adjournment for purposes of soliciting proxies:
[ ] FOR [ ] AGAINST [ ] ABSTAIN
This Proxy, when properly executed, will be voted as specified. If no specification is made, this
Proxy will be voted in accordance with the proxy holder's independent business judgment.
SEE REVERSE CONTINUED AND TO BE SIGNED ON REVERSE SIDE SEE REVERSE
SIDE SIDE
Unless you withhold discretionary authority pursuant to item no. 4
above, the proxy will vote your shares in accordance with its discretion on
matters not described in this proxy statement that may arise at the Annual
Meeting, other than any matters as to which the rules promulgated by the
Securities and Exchange Commission or any applicable state law do not permit
discretionary voting.
Sign: Date: Sign: Date:
---------------------- --------------------, 2002 ---------------------- ------------------
Title: Title:
---------------------- ----------------------
Please sign exactly as your name appears. When shares are held by joint tenants,
both should sign. When signing as attorney, executor, administrator, trustee or
guardian, please give full title as such. If a corporation, please sign in full
corporate name by president or other authorized officer. If a partnership,
please sign in partnership name by authorized person. The signer hereby revokes
all proxies previously given by the signer to vote at the Annual Meeting.
PLEASE SIGN, DATE, AND MAIL THIS PROXY SHEET TODAY.