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:
[ ] Preliminary Proxy Statement [ ] Confidential, For Use of the Commission
Only (As Permitted by Rule 14a-6(e)(2))
[X] 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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(3) Filing Party:
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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, 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.
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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 in essence
a vote against Proposal 2, broker non-votes and abstentions will have
the same effect as a vote against Proposal 2.
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 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 stockholder 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,
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any stockholder 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 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:
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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.
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;
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- 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 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,
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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.
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)
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)
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
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(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,
UNITS OR OTHER PERFORMANCE OR OTHER
RIGHTS PERIOD UNTIL MATURATION OR THRESHOLD TARGET MAXIMUM
NAME (#) PAYOUT (#) (#) (#)
Nathan Kahn and Sandra 3,824,511 April 1, 1999 through March 31, 228,817 228,817 3,824,511
Kahn (1) 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
CHARTER OF THE AUDIT COMMITTEE
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.)
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2. Ratification of appointment of Richard A. Eisner & For Against Abstain
Company, LLP, independent auditors [ ] [ ] [ ]
3. Approval and adoption of Amendment to the Company's
Amended and Restated Certificate of Incorporation to For Against Abstain
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.