SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. __)
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
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 Rule 14a-11(c) or Rule 14a-12
EMPIRE RESOURCES, INC.
(Name of Registrant as Specified in its Charter)
----------------------------
(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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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
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[ ] 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:
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(2) Form, Schedule or Registration Statement No.:
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(4) Date Filed:
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EMPIRE RESOURCES, INC.
One Parker Plaza
Fort Lee, New Jersey 07024
----------------------
NOTICE OF ANNUAL MEETING
August 16, 2001
Dear Stockholder:
On Tuesday, September 11, 2001, Empire Resources, Inc. will hold its Annual
Meeting of Stockholders at the offices of Madison Partners LLC, 444 Madison
Avenue, 38th floor, New York, NY.
The meeting will begin at 11:00 a.m. Only stockholders that own stock at
the close of business on August 3, 2001 can vote at this meeting. At the meeting
we will:
1. Elect a board of directors;
2. Approve and adopt an amendment to the Company's Amended and Restated
Certificate of Incorporation, as amended, to reduce the number of
authorized shares of Common Stock of the Company from 40,000,000 shares
to 20,000,000 shares and to eliminate the 5,000,000 authorized shares
of preferred stock.
3. Ratify the appointment of our independent auditors for the year ending
December 31, 2001.
4. Attend to any other business properly brought before the meeting.
YOUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE IN FAVOR OF THE THREE
PROPOSALS OUTLINED IN THIS PROXY STATEMENT.
By Order of the Board of Directors,
/s/ Sandra Kahn
Sandra Kahn
Vice President, Chief Financial Officer and
Secretary and Treasurer
EMPIRE RESOURCES, INC.
PROXY STATEMENT
QUESTIONS AND ANSWERS
1. Q: WHO IS SOLICITING MY VOTE?
A: This proxy solicitation is being made and paid for by Empire
Resources, Inc.
2. Q: WHEN WAS THIS PROXY STATEMENT MAILED TO STOCKHOLDERS?
A: This proxy statement was first mailed to stockholders on or about
August 16, 2001.
3. Q: WHAT MAY I VOTE ON?
A: (1) The election of nominees to serve on our board of directors; AND
(2) The approval and adoption of an amendment to the Company's
Amended and Restated Certificate of Incorporation, as amended, to
reduce the number of authorized shares of Common Stock of the
Company from 40,000,000 shares to 20,000,000 shares and to
eliminate the 5,000,000 authorized shares of preferred stock; AND
(3) The ratification of the appointment of our independent auditors
for the year ending December 31, 2001.
4. Q: HOW DOES THE BOARD RECOMMEND I VOTE ON THE PROPOSALS?
A: The Board recommends a vote FOR each of the nominees and FOR each of
the other proposals.
5. Q: WHO IS ENTITLED TO VOTE?
A: Stockholders as of the close of business on August 3, 2001 (the Record
Date) are entitled to vote at the annual meeting.
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6. Q: HOW DO I VOTE?
A: Sign and date each proxy card you receive and return it in the prepaid
envelope. If you return your signed proxy card but do not mark the
boxes showing how you wish to vote, your shares will be voted FOR each
of the three proposals. You have the right to revoke your proxy at any
time before the meeting by:
(1) notifying the Corporate Secretary, Sandra Kahn, at the address
shown above;
(2) voting in person; OR
(3) returning a later-dated proxy card.
7. Q: WHO WILL COUNT THE VOTE?
A: Representatives of our transfer agent, American Stock Transfer & Trust
Co., will count the votes.
8. Q: IS MY VOTE CONFIDENTIAL?
A: Proxy cards, ballots and voting tabulations that identify individual
stockholders are mailed or returned directly to American Stock
Transfer & Trust Co., and handled in a manner that protects your
voting privacy. Your vote will not be disclosed except: (1) as needed
to permit American Stock Transfer & Trust Co. to tabulate and certify
the vote; and (2) as required by law. Additionally, all comments
written on the proxy card or elsewhere will be forwarded to
management. Your identity will be kept confidential unless you ask
that your name be disclosed.
9. Q: HOW MANY SHARES CAN VOTE?
A: As of August 1, 2001 11,023,951 shares of Common Stock were issued and
outstanding. Every stockholder of Common Stock is entitled to one (1)
vote for each share held.
10. Q: WHAT IS A "QUORUM"?
A: A "quorum" is a majority of the shares entitled to vote at the meeting
(i.e. 5,511,976 shares). These shares must be present at the meeting
either in person or represented by proxy. If you submit a properly
executed proxy card, even if you abstain from voting, then you will be
considered part of the quorum. All "broker non-votes" will be counted
in determining whether a quorum is present.
11. Q: WHAT VOTE IS REQUIRED?
A: The affirmative vote of a majority of the shares represented and
entitled to vote at the meeting is required to elect each director
(Proposal 1) and to ratify Richard A. Eisner & Company, LLP, as our
independent accountants (Proposal 3). In tabulating the votes for
these proposals, abstentions and broker non-votes will not have any
effect on the outcome. With respect to Proposal 2 (the amendment to
our Articles of Incorporation), the affirmative vote of a majority of
the outstanding shares is required in order to approve the amendment
(i.e. at least 5,511,976 shares). Because every vote not received in
favor of Proposal 2 is essence a vote against Proposal 2, broker
non-votes and abstentions will have the same effect as a vote against
Proposal 2.
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12. Q: WHO CAN ATTEND THE ANNUAL MEETING.
A: All stockholders as of the close of business on August 3, 2001 can
attend. Tickets are not required.
13. Q: HOW WILL VOTING ON ANY OTHER BUSINESS BE CONDUCTED?
A: We do not know of any business to be considered at the 2001 annual
meeting other than the proposals described in this proxy statement. If
any other business is presented at the annual meeting, your signed
proxy card gives authority to William Spier, our Chairman of the
Board, and Nathan Kahn, our President and Chief Executive Officer, to
vote on such matters in their discretion.
14. Q: WHO ARE THE LARGEST PRINCIPAL STOCKHOLDERS?
A: As of August 1, 2001 Nathan Kahn and Sandra Kahn beneficially owned
5,209,923 shares of common stock which represented 47.2% of the then
outstanding common stock.
15. Q: WHEN ARE THE STOCKHOLDER PROPOSALS FOR THE 2002 ANNUAL MEETING DUE?
A: All stockholder proposals to be considered for inclusion in next
year's proxy statement must be submitted in writing to Sandra Kahn,
Secretary, Empire Resources, Inc., One Parker Plaza, Fort Lee, NJ
07024 prior to April 11, 2002. All other stockholder proposals for
consideration at the 2002 annual meeting must be received by Ms. Kahn
within the time period specified in our bylaws, which generally is not
less than 60 days and not more than 90 days prior to the meeting.
Because our bylaws are complex, any shareholder that wishes to make a
proposal should review our bylaws to determine when the proposal must
be received.
16. Q: CAN A STOCKHOLDER NOMINATE SOMEONE TO BE A DIRECTOR OF THE COMPANY?
A: As a stockholder, you may recommend any person as a nominee for
director by writing to Sandra Kahn, Secretary, c/o Empire Resources,
Inc., One Parker Plaza, Fort Lee, NJ 07024. All recommendations must
be received by Ms. Kahn within the time period specified in our
bylaws, which generally is not less than 60 days and not more than 90
days prior to the meeting. Because our bylaws are complex, any
shareholder that wishes to make a recommendation should review our
bylaws to determine when the recommendation must be received. Each
recommendation must be accompanied by the name, age, residence and
business address of the person being nominated. They must include a
representation that the stockholder is a record holder of the stock or
holds the stock through a broker. They must state the number and class
of shares held by the stockholder and by each person being nominated
by the stockholder. They must include information regarding each
nominee that would be required to be included in a proxy statement.
They must also include a description of any arrangement or
understanding between and among the stockholder and each and every
nominee. Finally, the
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recommendations must include the written consent of each nominee to
serve as a director, if elected. For further information, please see
our bylaws.
PROPOSALS YOU MAY VOTE ON
1. ELECTION OF DIRECTORS
There are 9 nominees for election this year. All of the nominees are
currently directors. All directors are elected annually, and serve a
one-year term until the next annual meeting. If any director is unable to
stand for re-election, the Board may reduce its size or designate a
substitute. If a substitute is designated, proxies voting on the original
director candidate will be cast for the substituted candidate. The
affirmative vote of the holders of a majority of our common stock
represented and entitled to vote at the meeting is required for the
election of each director.
YOUR BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR EACH OF THESE DIRECTORS.
2. AMENDMENT TO THE CERTIFICATE OF INCORPORATION
GENERAL
On July 30, 2001, the Company's Board of Directors unanimously approved,
and for the reasons described below, unanimously recommends that the
Company's stockholders approve an amendment to Article III, sections A and
B, of the Company's Amended and Restated Certificate of Incorporation to
reduce the number of authorized shares of common stock of the Company from
40,000,000 to 20,000,000 shares and to eliminate the 5,000,000 authorized
shares of preferred stock, to be effective at the time a Certificate of
Amendment is filed with the Secretary of State of the State of Delaware
(the "Share Reduction"). If the Share Reduction is approved, Article III,
Sections A and B, of the Amended and Restated Certificate of Incorporation
would read as follows:
A. The corporation is authorized to issue 20,000,000 shares of common
stock having a par value of $0.01 per share (the "Common Stock").
B. [Intentionally Omitted]
As of August 1, 2001, of the 40,000,000 shares of common stock authorized,
the Company had 11,749,651 shares of common stock issued and outstanding,
including 725,700 shares of treasury stock, and an additional 5,291,696
shares of common stock subject to issuance upon the exercise of outstanding
options and warrants issued by the Company, for an aggregate of 17,041,347
shares of common stock issued and outstanding or subject to issuance.
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By implementing the Share Reduction, the number of authorized and unissued
shares of common stock available for issuance immediately thereafter will
be reduced from 22,958,653 to 2,958,653. However, we expect that the number
of authorized and unissued shares of common stock available for issuance
will be increased by 4,467,925 shares as of December 31, 2001, as a result
of the expiration of certain options and warrants that have exercise prices
significantly above the market price of our common stock (ranging from
$1.64 to $14.85 per share). If these options and warrants expire without
exercise, as we expect, the number of authorized and unissued shares of
common stock available for issuance would increase to 7,426,578.
As of August 1, 2001, none of the 5,000,000 shares of authorized preferred
stock had been issued.
EFFECT OF THE SHARE REDUCTION
If the Share Reduction is approved, the rights of the holders of the common
stock as stockholders will not be affected. The Share Reduction will not
affect the number of shares owned by any stockholder or any stockholder's
proportionate equity interest in the Company. Nor will the Share Reduction
affect the number of shares of common stock issuable upon the exercise of
outstanding warrants and options.
The Share Reduction will not change the par value of shares of common
stock. Under applicable Delaware law, the total capital of the Company will
not be reduced as a result of the Share Reduction, even though the
aggregate par value of all authorized shares will be reduced to
approximately one half of the aggregate par value prior to the Share
Reduction.
If the amendment is approved by the Company's stockholders, the Share
Reduction will also limit the number of shares of common stock available to
the Company in the future for purposes such as:
- acquisitions;
- strategic investments;
- corporate transactions, such as stock splits or stock dividends;
- financing transactions, such as public offerings of common stock or
convertible securities;
- incentive and employee benefit plans; and
- otherwise for corporate purposes that have not yet been identified.
This limitation will become more significant as the number of shares of
common stock issued and outstanding or subject to issuance subsequently
approaches or totals 20,000,000 shares. In the event the Board determines
that additional shares of common stock are required, it will be necessary
to solicit and receive the affirmative vote of a majority of the Company's
common stock entitled to vote in order to amend the articles and thereby
increase the number of authorized shares. In addition, the Board is aware
that such a reduction may reduce the ability of the Company to issue
additional shares to
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inhibit persons, or otherwise dilute the stock ownership of stockholders,
seeking to control the Company without negotiating with the Board of
Directors.
PURPOSE OF THE PROPOSED SHARE REDUCTION
The principal reason for the Share Reduction is that the Company's overall
state tax liability would decrease by approximately $30,000 annually.
Presently, the Company pays approximately $54,000 annually pursuant to the
Delaware Franchise Tax. The method employed by the Company for computing
its tax liability is based in part upon its total number of authorized
shares. As a result, a reduction in the total number of authorized shares
will have a direct impact on the amount of Franchise Tax which must be paid
by the Company on an annual basis.
The Board believes that a reduction in the amount of authorized shares of
Company common stock will provide an annual tax savings, while causing
little or no complications or hindrances to other corporate purposes.
VOTE REQUIRED
In accordance with Delaware law, the Share Reduction, which requires an
amendment to the Amended and Restated Certificate of Incorporation, must be
approved by a majority of the shares entitled to vote on the matter (i.e.
5,511,976 shares).
THE BOARD OF DIRECTORS RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS VOTE
"FOR" THE SHARE REDUCTION.
3. RATIFICATION OF THE APPOINTMENT OF RICHARD A. EISNER & COMPANY, LLP AS
INDEPENDENT AUDITORS.
Our audit committee has recommended, and our board of directors has
approved, the appointment of Richard A. Eisner & Company, LLP as our
independent auditors for the year ending December 31, 2001, subject to your
approval. Richard A. Eisner & Company, LLP was appointed on October 5, 1999
to serve as our independent auditors, replacing PricewaterhouseCoopers LLP
who were dismissed effective with the merger of Integrated Technology USA,
Inc. with Empire Resources, Inc. on September 17, 1999.
The report of PricewaterhouseCoopers LLP on our financial statements for
the two years prior to their termination did not contain an adverse opinion
or a disclaimer of opinion, nor was it qualified or modified as to
uncertainty, audit scope or accounting principles. During our two most
recent fiscal years prior to their termination and through September 17,
1999, there were no disagreements with PricewaterhouseCoopers LLP on any
matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure, which disagreements, if not
resolved to the satisfaction of PricewaterhouseCoopers LLP, would have
caused it to make reference to the subject matter of the disagreement in
connection with its report on our financial statements.
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Audit services provided by Richard A. Eisner & Company, LLP pertaining to
the years ended December 31, 1999 and 2000 included an audit of our
consolidated financial statements as of December 31, 1999 and 2000. They
reviewed our Annual Report and certain other filings with the SEC. Richard
A. Eisner & Company, LLP also provided various non-audit services to us
during 1999 and 2000. They have unrestricted access to our audit committee
to discuss audit findings and other financial matters.
A representative of Richard A. Eisner & Company, LLP is expected to attend
the annual meeting. He will have the opportunity to speak at the meeting if
he wishes. He will also respond to appropriate questions.
YOUR BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE RATIFICATION OF THE APPOINTMENT
OF RICHARD A. EISNER & COMPANY, LLP AS INDEPENDENT AUDITORS FOR THE YEAR ENDING
DECEMBER 31, 2001.
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THE MERGER
Prior to September 17, 1999 the name of our company was Integrated
Technology USA, Inc. On September 17, 1999, Integrated Technology USA, Inc.
merged with Empire Resources, Inc. Integrated Technology was the surviving
company in the merger and changed its name to Empire Resources, Inc.
NOMINEES FOR THE BOARD OF DIRECTORS
William Spier Director since October 1996
Age 66
Mr. Spier presently serves as non-executive Chairman of the board of
directors. Mr. Spier had served as Acting Chief Executive Officer from November
1997 until September 1999. Mr. Spier has been a private investor since 1982. He
also served as Chairman of DeSoto, Inc., a manufacturer and distributor of
cleaning products, from May 1991 through September 1996, and as Chief Executive
Officer of DeSoto, Inc., from May 1991 to January 1994 and from September 1995
through September 1996. From 1980 to 1981, Mr. Spier was Vice Chairman of
Phibro-Salomon Inc. Mr. Spier also serves as a Director of Keystone Consolidated
Industries, Inc., and Centerpoint Corporation.
Nathan Kahn Director since September 1999
Age 47
Mr. Kahn has been the Chief Executive Officer and President since the
merger. Prior to the merger, Mr. Kahn was the President and a director of
pre-merger Empire from the time of its formation in 1984. Mr. Kahn has also been
the President and a director of our wholly owned subsidiary Empire Resources
Pacific, Ltd. since its formation in 1996.
Sandra Kahn Director since September 1999
Age 43
Ms. Kahn has been Vice President and Chief Financial Officer, Secretary and
Treasurer since the merger in September 1999. Prior to the merger, Ms. Kahn was
the Secretary and Treasurer and a director of pre-merger Empire from the time of
its formation in 1984. Ms. Kahn has also been the Secretary and Treasurer and a
director of Empire Resources Pacific, Ltd. since its formation in 1996.
Harvey Wrubel Director since September 2000
Age 47
Mr. Wrubel has been the Vice President of Sales/Director of Marketing since
the merger in September 1999, and prior to the merger, was the Vice President of
Sales/ Director of Marketing of pre-merger Empire for more than the prior five
years.
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Jack Bendheim Director since September 1999
Age 54
Mr. Bendheim has been the President, Chief Executive Officer and Chairman
of the Board of Philipp Brothers Chemicals, Inc. for more than the prior five
years. Mr. Bendheim is also a director of The Berkshire Bank, which is owned by
CLS.
Barry L. Eisenberg Director since September 1990
Age 54
Mr. Eisenberg served as Secretary and Treasurer from 1993 until September
1999. Since 1995, Mr. Eisenberg has been an active investor and director of
private companies in Israel. Prior thereto, Mr. Eisenberg was, for a period of
more than five years, a partner in the Roseland, New Jersey law firm of Lasser,
Hochman, Marcus, Guryan & Kuskin.
Peter G. Howard Director since September 1999
Age 65
Mr. Howard has been the Managing Director of Empire Resources Pacific, Ltd.
since 1996. From 1961 to 1995, Mr. Howard held various positions within the
aluminum industry, the most recent of which was Divisional General Manager of
Comalco Rolled Products, a unit of Comalco Aluminum Ltd., an aluminum producer.
Nathan Mazurek Director since September 1999
Age 39
Mr. Mazurek has been the President and Chief Executive Officer of American
Circuit Breaker Corporation, a manufacturer of circuit breaker protection
equipment for more than the prior five years. Since 1995, Mr. Mazurek has been
President and Chief Executive Officer of Pioneer Transformers Ltd., a
manufacturer of liquid filled power and distribution transformers.
Morris J. Smith Director since January 1994
Age 43
Since 1993, Mr. Smith has been a private investor and investment
consultant. Prior thereto, Mr. Smith was employed for a period of more than five
years by Fidelity Investments as a portfolio manager.
FAMILY RELATIONSHIPS
Nathan Kahn and Sandra Kahn are husband and wife. Barry L. Eisenberg and Jack
Bendheim are brothers-in-law.
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STATEMENT OF CORPORATE GOVERNANCE
Our business is managed under the direction of the board of directors. The
directors delegate the conduct of business to our senior management team.
Our directors usually meet four times a year in regularly scheduled
meetings. They may meet more often if necessary. The directors held four
meetings in 2000. The Chairman of our board of directors in consultation with
the CEO usually determines the agenda for the meetings. Each of our directors
receives the agenda and supporting information in advance of the meetings. Any
of our directors may raise other matters at the meetings. The CEO, CFO and other
members of senior management make presentations to our directors at the meetings
and a substantial portion of the meeting time is devoted to directors'
discussion of these presentations. Significant matters that require directors'
approval are voted on at the meetings.
Our directors have complete access to senior management. They may also seek
independent, outside advice.
Committee Structure. The board of directors considers all major decisions.
The board of directors has established three standing committees so that certain
areas can be addressed in more depth than may be possible at a full meeting of
the board of directors. Each committee is chaired by an independent, outside
director.
Audit Committee. This committee assures the credibility of our financial
reporting by providing oversight of our financial reporting process and our
internal controls. The audit committee has adopted a charter pursuant to which
it conducts its activities. The audit committee reports on its activities to the
board of directors. During 2000 the audit committee held two meetings and took
further action by written consent. The audit committee is comprised of William
Spier, Jack Bendheim and Nathan Mazurek.
AUDIT COMMITTEE REPORT
The following Audit Committee Report is not deemed to be part of a document
filed with the SEC pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and is not to be deemed incorporated by reference in any
documents filed under the Securities Act or Exchange Act, without the express
consent of the persons named below.
The primary purpose of the Audit Committee is to assist the Board of
Directors in fulfilling its oversight responsibilities relating to the quality
and integrity of the Company's financial reports and financial reporting
processes and systems of internal controls. The full responsibilities of the
Committee are set forth in its charter, as adopted by the Board of Directors, a
copy of which is attached to this proxy statement as Appendix A. Each of the
members of the Company's Audit Committee is independent; as such term is defined
under the listing standards of the American Stock Exchange. In fulfilling its
oversight responsibilities, the
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Audit Committee:
o reviewed and discussed the audited financial statements for the fiscal
year ended December 31, 2000, with management and Richard A. Eisner &
Company, LLP , the Company's independent auditors;
o discussed with Richard A. Eisner & Company, LLP the matters required to
be discussed by the Auditing Standards Board of The American Institute
of Certified Public Accountants' Statement on Auditing Standards No.
61, "Communication with Audit Committees," as amended; and
o received and discussed with Richard A. Eisner & Company, LLP the
written disclosures and the letter from Richard A. Eisner & Company,
LLP required by Independence Standards Board Statement No. 1,
"Independence Discussions with Audit Committees," as amended, and have
discussed with Richard A. Eisner & Company, LLP their independence.
Based on the foregoing reviews and meetings, the Audit Committee
recommended to the Board of Directors that the audited financial statements be
included in the Annual Report on Form 10-KSB for the year ended December 31,
2000, for filing with the SEC. The Audit Committee also recommended the
appointment of Richard A. Eisner & Company, LLP as the Company's independent
auditors for fiscal 2001.
During the year ended December 31, 2000, the Company paid the following
fees to Richard A. Eisner & Company, LLP , the Company's independent public
accountant:
Audit Fees: $90,000
Financial Information Systems
Design and Implementation Fees $0
Tax and all Other Fees: $40,000
The Company's Audit Committee has considered the compatibility of the
non-audit services furnished by Richard A. Eisner & Company, LLP with the firm's
need to be independent.
AUDIT COMMITTEE:
Jack Bendheim
Nathan Mazurek
William Spier
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Compensation Committee. This committee advises and guides the board of directors
in determining the compensation of executive officers and senior management, and
reviews our general employee compensation and benefits policies and practices.
During 2000, the compensation committee held two meetings. The compensation
committee is comprised of William Spier, Nathan Kahn and Jack Bendheim.
Stock Options Committee. This committee consults with management regarding the
administration of our stock option plan and approves grants of options to
directors, executive officers and other employees. The committee did not meet in
2000, but did take action by written consent. The stock options committee is
comprised of William Spier, Jack Bendheim and Nathan Mazurek.
We do not have a standing nominating committee.
DIRECTORS' COMPENSATION
The non-executive Chairman of the board of directors receives an annual fee of
$25,000 for serving as a director. Each of the other directors receives a fee of
$500 per meeting of the board of directors that such director attends (whether
in person or by telephone) and $500 per committee meeting that such director
attends, if such committee meeting is held on a separate day from the board of
directors meeting. All directors are reimbursed for reasonable expenses incurred
in attending meetings of the Board or any committee.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth as of August 1, 2001, certain information
with respect to beneficial ownership (as defined in Rule 13d-3 of the Securities
and Exchange Act of 1934) of our common stock by (i) each person that is a
director, (ii) each person named in the Summary Compensation Table, below, (iii)
all such persons as a group and (iv) each person known to us to be the owner of
more than 5% of our common stock.
NUMBER OF SHARES PERCENT OF COMMON
NAME AND ADDRESS(1) BENEFICIALLY OWNED (2) STOCK OWNED
- ------------------------------------------------ -------------------------- ----------------------
DIRECTORS AND OFFICERS:
William Spier 253,669(3) 2.3%
Nathan Kahn and Sandra Kahn 5,209,923(4) 47.2%
Harvey Wrubel 580,327(5) 5.2%
Jack Bendheim 40,666(6) *
Barry L. Eisenberg 367,706(7) 3.3%
Peter G. Howard 4,000(8) *
Nathan Mazurek 4,000(9) *
Morris J. Smith 77,467(10) *
All officers and directors as a group (9 persons) 6,537,758(11) 56.6%
OTHER STOCKHOLDERS:
Alan P. Haber 1,014,426(12) 9.0%
Barry W. Blank 875,600(13) 7.5%
* Less than 1%
(1) The address of all listed persons is c/o Empire, except for Mr. Haber,
whose address is 11/1 Mishol Uzrad, Ramot, Israel 91230 and Mr. Blank,
whose address is P.O.B. 32056, Phoenix, Arizona 85064.
(2) Unless otherwise indicated, each person has sole investment and voting
power with respect to the shares indicated. For purposes of this table, a
person or group of persons is deemed to have "beneficial ownership" of any
shares as of a given date which such person has the right to acquire within
60 days after such date. For purposes of computing the percentage of
outstanding shares held by each person or group of persons named above on a
given date, any security which such person or persons has the right to
acquire within 60 days after such date is deemed to be outstanding for the
purpose of computing
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the percentage ownership of such person or persons, but is not deemed to be
outstanding for the purpose of computing the percentage ownership of any
other person.
The information in this table was prepared in reliance on filings made with
the Securities and Exchange Commission on Schedule 13D and Forms 4 or 5.
(3) Consists of (i) 104,669 currently outstanding shares held by Mr. Spier and
(ii) 149,000 shares underlying currently exercisable options held by Mr.
Spier.
(4) Consists (i) of 5,201,923 currently outstanding (9,384,761 shares received
in the merger less 3,824,511 contingent shares which have been retired and
less 358,327 non-contingent shares transferred to Mr. Wrubel, as described
under "Compensation Arrangements") and (ii) 8,000 shares underlying
currently exercisable options held by Nathan and Sandra Kahn.
(5) Consists of (i) 358,327 shares transferred from Nathan and Sandra Kahn to
Mr. Wrubel, (ii) 20,000 currently outstanding shares held by Mr. Wrubel,
and (iii) 202,000 shares underlying currently exercisable options held by
Mr. Wrubel.
(6) Consists of (i) 20,000 outstanding shares held by the Bendheim Foundation,
an affiliate of Mr. Bendheim, (ii) 16,666 shares underlying currently
exercisable warrants held by Mr. Bendheim (Mr. Bendheim disclaims
beneficial ownership of the shares owned by the Bendheim Foundation), and
(iii) 4,000 shares underlying currently exercisable options held by Mr.
Bendheim.
(7) Consists of (i) 700 currently outstanding shares held by Mr. Eisenberg,
(ii) 80,667 shares underlying currently exercisable options held by Mr.
Eisenberg, (iii) 1,000 shares underlying currently exercisable warrants
held by Mr. Eisenberg, (iv) 500 shares owned by Mr. Eisenberg's wife and
(v) 284,839 currently outstanding shares held by 241 Associates LLC, a
limited liability company. Noam Eisenberg is the sole manager of 241
Associates LLC and as such has voting and investment power with respect to
the shares held by 241 Associates LLC. Noam Eisenberg is the son of Barry
L. Eisenberg. A majority of the ownership interest of 241 Associates LLC is
owned by Mr. Eisenberg and his wife and, as a result of such ownership
interests, Mr. Eisenberg may influence the voting and disposition of the
shares of common stock held by 241 Associates LLC. Mr. Eisenberg disclaims
beneficial ownership of such shares and of the shares owned by his wife.
(8) Consists of 4,000 shares underlying currently exercisable options held by
Mr. Howard.
(9) Consists of 4,000 shares underlying currently exercisable options held by
Mr. Mazurek.
14
(10) Consists of (i) 15,800 currently outstanding shares held by Mr. Smith and
(ii) 61,667 shares underlying currently exercisable options held by Mr.
Smith. The Brook Road Nominee Trust, nominee for the Morris Smith Family
Trust, is the owner of 163,653 outstanding shares of Common Stock. Esther
Smith, the mother of Morris J. Smith, is the sole trustee of the Morris
Smith Family Trust and as such has voting and investment power with respect
to such shares. The Morris Smith Family Trust is a discretionary trust, the
potential beneficiaries of which are Mr. Smith and members of his family.
Mr. Smith disclaims any beneficial ownership of any and all shares owned by
the Brook Road Nominee Trust.
(11) Consists of 6,006,758 currently outstanding shares and 531,000 shares
underlying currently exercisable options and warrants. Does not include
163,653 shares that Mr. Smith disclaims beneficial ownership of as
described in footnote 10 above.
(12) Consists of (i) 771,861 shares held by Mr. Haber, (ii) 209,175 shares
underlying currently exercisable options held by Mr. Haber, (iii) 10,000
shares underlying currently exercisable warrants held by Mr. Haber and (iv)
23,390 shares held by Mr. Haber's wife. Mr. Haber disclaims any beneficial
ownership of any stock owned by his wife.
(13) Consists of (i) 259,600 outstanding shares held by Mr. Blank, (ii) 16,000
shares underlying currently exercisable options held by Mr. Blank, and
(iii) 600,000 shares underlying currently exercisable warrants held by Mr.
Blank. Excludes any shares which may be owned by Mr. Blank's customers, in
which he disclaims any beneficial or other interest and over which he has
no voting or dispositive power
15
EXECUTIVE COMPENSATION
The following table sets forth for the periods indicated information
concerning the compensation earned by the Company's Chief Executive Officer and
each of the Company's most highly compensated executive officers.
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION
LONG-TERM
COMPENSATION AWARDS
SECURITIES ALL OTHER
UNDERLYING COMPENSATION
OPTIONS ($)
(#)
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($)
William Spier 2000 -- -- 2,000 $25,000(2)
Non-Executive Chairman 1999 -- -- 2,000 $11,333(3)
of the Board (1) 1998 -- -- -- $4,000(4)
Nathan Kahn 2000 $300,000 $50,000 2,000 $2,000(4)
Chief Executive Officer and 1999 $176,875 -- 2,000 $1,000(4)
President 1998 $55,000 -- -- --
Sandra Kahn 2000 $100,000 -- 2,000 $2,000(4)
Vice President, 1999 $82,000 -- 2,000 $1,000(4)
Chief Financial Officer,
Treasurer and Secretary 1998 $52,000 -- -- --
Harvey Wrubel 2000 $207,872 $277,000 2,000 $139,142(5)
Vice President of Sales 1999 $203,000 $300,000 200,000 --
1998 $200,000 $300,003 -- --
(1) Served as Acting Chief Executive Officer of the Company prior to the merger.
(2) Mr. Spier is entitled to $25,000 per annum as consideration for his services
as non-executive Chairman of the Board.
(3) Of this amount, $3,000 represents director fees for attending board meetings
and $8,333 represents amounts paid to Mr. Spier in 1999 for serving as
non-executive Chairman of the Board.
(4) Represents directors' fees.
(5) Of this amount, $1,000 represents director fees and $138,142 represents
non-cash taxable compensation charged to Mr. Wrubel upon the vesting of
non-contingent restricted shares, as discussed in "Compensation Arrangements".
16
Option Grants in Last Fiscal Year
The following table contains information concerning the stock option grants
made to each of the officers and employees named in the Summary Compensation
Table, above, during 2000. No stock appreciation rights were granted to these
individuals during such year.
(INDIVIDUAL GRANTS) (1)
NUMBER OF SECURITIES PERCENT OF TOTAL EXERCISE PRICE EXPIRATION DATE
UNDERLYING OPTIONS OPTIONS GRANTED TO ($/SH)
GRANTED EMPLOYEES IN (2)
(#) FISCAL YEAR
NAME
William Spier 2,000 2.8% $1.188 9/14/10
Nathan Kahn 2,000 2.8% $1.188 9/14/10
Sandra Kahn 2,000 2.8% $1.188 9/14/10
Harvey Wrubel 2,000 2.8% $1.188 9/14/10
- ---------------------------
(1) All options granted to the named officers and employees are
non-statutory under federal tax laws and were granted on September 14, 2000.
Pursuant to the option agreement underlying these options, the options became
exercisable immediately upon grant.
(2) The exercise price may be paid in cash or, under certain circumstances,
in shares of the Company's Common Stock.
YEAR-END OPTION VALUES
The following table provides certain information concerning the options
held by the officers and employees named in the Summary Compensation Table,
above, as of December 31, 2000.
OPTIONS AS OF DECEMBER 31, 2000
NUMBER OF SECURITIES UNDERLYING VALUE OF UNEXERCISED IN-THE-MONEY
UNEXERCISED OPTIONS AT YEAR END OPTIONS AT YEAR END
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
William Spier 149,000 ............ ............ ............
Nathan Kahn 4,000 ............ ............ ............
Sandra Kahn 4,000 ............ ............ ............
Harvey Wrubel 202,000 ............ ............ ............
17
LONG-TERM INCENTIVE PLANS
The following table provides certain information concerning the long-term
incentive plans available to the officers and employees named in the Summary
Compensation Table, above, as of December 31, 2000.
LONG-TERM INCENTIVE PLANS--AWARDS IN LAST FISCAL YEAR
ESTIMATED FUTURE PAYOUTS UNDER NON-STOCK
PRICE-BASED PLANS
(A) (B) (C) (D) (E) (F)
NUMBER OF SHARES, PERFORMANCE OR OTHER
UNITS OR OTHER PERIOD UNTIL MATURATION OR THRESHOLD TARGET MAXIMUM
NAME RIGHTS (#) PAYOUT (#) (#) (#)
Nathan Kahn and Sandra 3,824,511 April 1, 1999 through 228,817 228,817 3,824,511
Kahn (1) March 31, 2001
Harvey Wrubel (2)
(1) For a description of this plan, see "Compensation Arrangements, Retirement
of Contingent Shares Issued to Empire Stockholders".
(2) For a description of shares that may be issued to Harvey Wrubel and the
formula to be applied in determining the amounts payable, see,
"Compensation Arrangements", Employment Agreement with Harvey Wrubel".
COMPENSATION ARRANGEMENTS
EMPLOYMENT AGREEMENTS WITH THE KAHNS
Concurrently with the merger on September 17, 1999, the Company entered
into employment agreements with each of Nathan Kahn and Sandra Kahn. Certain
information regarding these agreements is set forth below.
Term. The scheduled term of each agreement is three years. Each agreement
provides that the term will be extended automatically for successive two-year
periods unless either party gives written notice of termination at least 180
days prior to the end of the original term or the then additional term, as the
case may be. Each agreement provides that the Company may terminate the
agreement upon the Disability of the executive or for Cause (as such terms are
defined the agreement).
Base Salary. Nathan Kahn is paid at a rate of $350,000 per annum and Sandra
Kahn is paid at a rate of $150,000 per annum. These amounts may be increased,
but not decreased, by the Board of Directors. The base salary provided for by
each agreement is subject to possible upward annual adjustments based upon
changes in a designated cost of living index.
Bonus. The agreement with Nathan Kahn provides for an annual bonus equal to
5% of the amount by which the Company's earnings before taxes for such year
exceed $4,000,000. The
18
agreement with Sandra Kahn provides for an annual bonus equal to 2% of the
amount by which the Company's earnings before taxes for such year exceed
$4,000,000. For the purpose of calculating the annual bonus amounts, earnings
before taxes shall be calculated excluding (1) charges to earnings for
extraordinary items and (2) the annual bonus amounts payable to Nathan Kahn and
Sandra Kahn.
Non-Compete. Each agreement provides that during the Specified Period (as
defined below) the employee will not, among other things, directly or
indirectly, be engaged as a principal in any other business activity or conduct
which competes with the business of the Company or be an employee, consultant,
director, principal, stockholder, advisor of, or otherwise be affiliated with,
any such business, activity or conduct. The "Specified Period" means the
employee's period of employment and the four year period thereafter, provided
that if the employee's employment is terminated for Disability or without Cause
(or the employee voluntarily terminates his employment following a breach by the
Company), the Specified Period will terminate two years after the employee's
employment terminates.
EMPLOYMENT AGREEMENT WITH HARVEY WRUBEL
Concurrently with the merger, the Company entered into an employment
agreement with Harvey Wrubel. Certain information regarding this agreement is
set forth below.
Term. The scheduled term of the agreement is until December 31, 2002. The
agreement provides that the term will be extended automatically for successive
two-year periods unless either party gives written notice of termination at
least 90 days prior to the end of the original term or the then additional term,
as the case may be. The agreement provides that the Company may terminate the
agreement any time with or without Cause (as such term is defined in the
agreement). However, if the Company terminates the agreement without Cause, the
employee is entitled to continue receiving his base salary until the scheduled
end of the term.
Base Salary. The agreement provides for base salary to be paid at a rate of
$203,000 per annum. This amount may be increased, but not decreased, by the
Board of Directors. The base salary is subject to possible upward annual
adjustments based upon changes in a designated cost of living index.
Performance-Based Compensation. In addition to base salary, the agreement
provides that the Company shall pay the employee performance-based compensation
in accordance with a formula provided for in the agreement.
Non-Compete. The agreement provides that, during the employment term and
for 12 months thereafter, the employee will not, among other things, be engaged
in, or be, an employee, director, partner, principal, stockholder or advisor of
any business, activity or conduct which competes with the business of the
Company. During any period following termination of the employee's employment
the foregoing will only apply to competition with regard to aluminum and such
other commodities as were being sold by the Company within six months prior to
such termination.
19
Restricted Stock Arrangements. The Company and Nathan and Sandra Kahn
entered into a restricted stock agreement dated September 14, 1999 with Mr.
Wrubel. Pursuant to this agreement, the Kahns transferred to Mr. Wrubel 469,238
shares ("Restricted Shares") of common stock of the Company effective as of the
date of the Merger. The Restricted Shares are subject to the vesting
requirements described below. If Mr. Wrubel's employment with the Company is
terminated for Cause (as defined in his employment agreement) or if Mr. Wrubel
terminates employment with the Company for any reason, Mr. Wrubel will forfeit
to the Kahns any Restricted Shares that have not then vested.
The vesting of 358,327 of the Restricted Shares is determined in accordance
with the following vesting schedule: (i) 33.33% of such shares vested on the
first anniversary of the grant date, (ii) 33.33% will vest on the second
anniversary of the grant date (provided Mr. Wrubel has been continuously
employed by the Company until such date) and (iii) 33.34% will vest on the third
anniversary of the grant date (provided Mr. Wrubel has been continuously
employed by the Company until such date).
The vesting of 110,911 of the Restricted Shares (the "Contingent Restricted
Shares") was subject to a formula dependant on the Company achieving a minimum
cumulative after-tax net income (subject to certain adjustments) of $4.4 million
during the two-year period commencing April 1, 1999 and ending March 31, 2001.
No shares vested in accordance with these provisions.
RETIREMENT OF CONTINGENT SHARES ISSUED TO EMPIRE STOCKHOLDERS
Upon the merger, Nathan and Sandra Kahn ("the Empire Stockholders")
received an aggregate of 9,384,761 shares of common stock of the Company in
exchange for the outstanding stock of Empire owned by them prior to the merger.
Pursuant to the merger agreement, 3,824,511 of these shares (the "Contingent
Shares") were deposited into escrow subject to an earn-out formula dependant on
the Company achieving a minimum cumulative after-tax net income (subject to
certain adjustments) of $4.4 million during the two-year period commencing April
1, 1999 and ending March 31, 2001. No shares were released from escrow in
accordance with this formula and all of the 3,824,511 shares placed in escrow
were retired on June 13, 2001.
20
DIRECTORS' AND OFFICERS' INDEMNIFICATION
Our bylaws require that we indemnify our directors and officers, to the
extent permitted under Delaware law. They are indemnified against any costs,
expenses (including legal fees) and other liabilities in connection with their
service to us. We have purchased liability insurance to insure against these
liabilities. We have also entered into indemnification agreements with each of
our directors and executive officers. The insurance and indemnification
agreements supplement the provisions of our Certificate of Incorporation that
eliminate the potential liability of directors and officers to us or our
stockholders in situations, as permitted by law.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires our officers
and directors, and persons who own more than ten percent of a registered class
of our equity securities, to file reports of ownership and changes in ownership
with the Securities and Exchange Commission. Officers, directors and greater
than ten-percent stockholders are required by SEC regulations to furnish us with
copies of all Section 16(a) reports that they file.
Based solely upon review of the copies of such reports furnished to us and
written representations from certain of our executive officers and directors
that no other such reports were required, we believe that during the period from
January 1, 2000 through December 31, 2000 all Section 16(a) filing requirements
applicable to its officers, directors and greater than ten-percent beneficial
owners were complied with on a timely basis.
By Order of the Board of Directors,
/s/ Sandra Kahn
Sandra Kahn
Vice President, Chief Financial
Officer, Treasurer and Secretary
Fort Lee, New Jersey
August 16, 2001
21
APPENDIX A
AUDIT COMMITTEE OF THE BOARD OF DIRECTORS
OF
EMPIRE RESOURCES, INC.
I. STATEMENT OF POLICY.
The Audit Committee (the "COMMITTEE") of the Board of Directors (the
"BOARD") of Empire Resources, Inc. (the "CORPORATION") shall provide assistance
to the Board in fulfilling its responsibility to the stockholders, potential
stockholders, and investment community relating to corporate accounting and
reporting practices of the Corporation, and the quality and integrity of the
financial reports of the Corporation. In so doing, it is the responsibility of
the Committee to maintain free and open means of communication among the Board,
the independent accountants, and the financial management of the Corporation.
II. COMPOSITION.
The Committee shall be comprised of three or more directors as determined
by the Board, each of whom shall be independent directors. Each member shall be
free of any relationship that in the opinion of the Board, would interfere with
his or her individual exercise of independent judgment, and shall meet the
director independence requirements for serving on audit committees as set forth
in the corporate governance standards of the American Stock Exchange. All
members of the Committee shall have a working familiarity with basic finance and
accounting practices, and at least one member of the Committee shall have
accounting or related financial management expertise. Committee members may
enhance their familiarity with finance and accounting by participating in
educational programs conducted by the Corporation or an outside consultant.
The members of the Committee shall be elected by the Board at the annual
organizational meeting of the Board or until their successors shall be duly
elected and qualified. Unless a chairperson (the "CHAIR") is elected by the full
Board, the members of the Committee may designate a Chair by majority vote of
the full Committee membership. The Chair shall be responsible for leadership of
the Committee, including preparing the agenda, presiding over the meetings,
making Committee assignments and reporting to the Board. The Chair will also
maintain regular liaison with the CEO, CFO, and lead partner of the independent
accountants.
III. MEETINGS.
The Committee shall meet at least four times annually, with at least one
such meeting being in person, and the remaining meetings being by telephone
conference call if the Committee so prefers. Whenever possible, these meetings
should be scheduled to include a review of the Corporation's quarterly and
annual financial statements prior to their public release, consistent with
Section IV. A. As part of its policy to foster open communication, the Committee
should meet at least annually with management and the independent accountants in
separate executive sessions to discuss any matters that the Committee or any of
these groups believe should be
A-1
discussed privately. The Committee may request attendance at any one or more of
the meetings of the Committee of outside counsel, the independent accountants or
any officer of the Corporation.
IV. RESPONSIBILITIES.
In carrying out its responsibilities, the Committee believes its policies
and procedures should remain flexible, in order to best react to changing
conditions and to ensure to the Board and stockholders that the corporate
accounting and reporting practices of the Corporation are in accordance with all
requirements and are of the highest quality.
In carrying out these responsibilities, the Committee will:
A. Financial Reporting Processes
1. In consultation with the independent accountants, review the
integrity of the organization's financial reporting processes, both
internal and external.
2. Consider the independent accountants' judgments about the quality
and appropriateness of the Corporation's accounting principles as
applied in its financial reporting.
3. Consider and approve, if appropriate, major changes to the
Corporation's auditing and accounting principles and practices,
including internal controls, as suggested by the independent
accountants or management.
4. Discuss with management and legal counsel the status of pending
litigation, taxation matters and other areas of oversight to the
legal and compliance area as may be appropriate
5. Meet at least annually with the chief financial officer and the
independent accountants in separate executive sessions.
B. Documents/Reports Review
1. Review and update this Charter periodically, at least annually, as
conditions dictate.
2. Submit the minutes of all meetings of the Committee to, or discuss
the matters discussed at each Committee meeting with, the Board.
3. Review with financial management and the independent accountants
the Corporation's annual and periodic financial statements and any
reports or other financial information submitted to any
governmental body, or the
A-2
public, including any certification, report, opinion, or review
rendered by the independent accountants, considering, as
appropriate, whether the information contained in these documents
is consistent with the information contained in the financial
statements and whether the independent accountants and legal
counsel are satisfied with the disclosure and content of such
documents. With respect to financial statements included in Form
10-Q, the Chair may represent the entire Committee for purposes of
this review.
C. Independent Accountants
1. Recommend to the Board the selection of the independent
accountants, considering independence and effectiveness and approve
the fees and other compensation to be paid to the independent
accountants. On an annual basis, the Committee shall review and
discuss with the independent accountants all significant
relationships the independent accountants have with the Corporation
and relevant third parties to determine the independent
accountants' independence. In making this determination, the
Committee shall consider not only auditing and other traditional
accounting functions performed by the independent accountants, but
also consulting, legal, and other professional services rendered by
the independent accountants and their affiliates. The Committee
will also require the independent accountants to submit on an
annual basis a formal written statement delineating all
relationships among the Corporation, the independent accountants
and their respective affiliates.
2. Review the performance of the independent accountants and approve
any proposed discharge of the independent accountants when
circumstances warrant.
3. Periodically consult with the independent accountants out of the
presence of management about internal controls and the fullness and
accuracy of the organization's financial statements. Among the
items to be discussed in these meetings are the independent
auditors' evaluation of the Corporation's financial, accounting,
and internal auditing personnel, and the cooperation that the
independent auditors received during the course of each audit.
4. Overseeing the independent accountant relationship by discussion
with the auditor the nature and rigor of the audit process,
receiving and reviewing audit reports, and providing the auditor
full access to the Committee (and the board) to report on any and
all appropriate matters.
A-3
5. Reviewing the audited financial statements and discussing them with
management and the independent accountant. These discussions shall
include consideration of the quality of the Corporation's
accounting principles as applied in its financial reporting,
including review of audit adjustments whether or not recorded, and
any such other inquires as may be appropriate. Based on the review,
the Committee shall make its recommendation to the board as to the
inclusion of the Corporation's audited consolidated financial
statements in the Corporation's annual report on Form 10-K.
D. Process Improvement
1. Establish regular and separate systems of reporting to the
Committee by each of management and the independent accountants
regarding any significant judgments made in management's
preparation of the financial statements and the view of each as to
appropriateness of such judgments.
2. Following completion of the annual audit, review separately with
each of management and the independent accountants any significant
difficulties encountered during the course of the audit, including
any restrictions on the scope of work or access to required
information.
3. Review any significant disagreement among management and the
independent accountants in connection with the preparation of the
financial statements.
4. Review with the independent accountants and management the extent
to which changes or improvements in financial or accounting
practices, as approved by the Committee, have been implemented.
This review should be conducted at an appropriate time subsequent
to implementation of changes or improvements, as decided by the
Committee.
*****
While the Committee has the responsibilities and powers set forth in this
Charter, it is not the duty of the Committee to plan or conduct audits or to
determine that the Corporation's financial statements are complete and accurate
and are in accordance with generally accepted accounting principles. This is the
responsibility of management and the independent accountant. Nor is it the duty
of the Committee to conduct investigations, to resolve disagreements, if any,
between management and the independent auditor or to assure compliance with laws
and regulations.
A-4
EMPIRE RESOURCES, INC.
PROXY SOLICITED ON BEHALF OF BOARD OF DIRECTORS
The undersigned hereby appoints William Spier and Nathan Kahn or any of them
with full power of substitution, proxies to represent the undersigned
stockholder and to vote at the annual meeting of Stockholders of Empire
Resources, Inc. (the "Company") to be held on September 11, 2001 at 11:00 a.m.
E.D.T., and at any adjournment or adjournments thereof, hereby revoking any
proxies heretofore given, all shares of Common Stock of the Company that the
undersigned would be entitled to vote as directed below, and in their discretion
upon such other matters as may come before the meeting.
(Continued, and to be dated and signed on reverse side)
Please detach and mail in the envelope provided
PLEASE DATE, SIGN AND MAIL YOUR
PROXY CARD BACK AS SOON AS POSSIBLE!
ANNUAL MEETING OF STOCKHOLDERS
EMPIRE RESOURCES, INC.
SEPTEMBER 11, 2001
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS DIRECTED BY THE
UNDERSIGNED. IF NO DIRECTION IS GIVEN WITH RESPECT TO A PROPOSAL, THIS PROXY
WILL BE VOTED FOR SUCH PROPOSAL.
[X] Please mark your votes
as in this example.
1. Election of Directors For Withheld Nominees:
[ ] [ ] William Spier
Nathan Kahn
Sandra Kahn
Harvey Wrubel
Jack Bendheim
Barry L. Eisenberg
Peter G. Howard
Nathan Mazurek
Morris J. Smith
(Instruction: To withhold authority to vote for individual nominees, write the
nominees' names on the line provided below.)
- ----------------------------------------------
2. Ratification of appointment of Richard A. For Against Abstain
Eisner & Company, LLP, independent auditors [ ] [ ] [ ]
3. Approval and adoption of Amendment to the For Against Abstain
Company's Amended and Restated Certificate [ ] [ ] [ ]
of Incorporation to reduce the number of
authorized shares
The undersigned hereby authorizes the proxies, in their discretion, to vote on
any other business as may properly be brought before the meeting or any
adjournment thereof.
SIGNATURE(S) DATE
- ------------------ --------
NOTE: Please sign exactly as name appears hereon. Joint owners should each sign.
When signing as attorney, executor, administrator, trustee or guardian, please
give full title as such.