UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange
Act of 1934 (Amendment No. __)
Filed by the Registrant |_|
Filed by a Party other than the Registrant |X|
Check the appropriate box:
|X| Preliminary Proxy Statement
|_| Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(a)(2))
|_| Definitive Proxy Statement
|_| Definitive Additional Materials
|_| Soliciting Material Pursuant to ss. 240.14a-12
FIRST MONTAUK FINANCIAL CORPORATION
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(Name of Registrant as Specified in its Charter)
BMAC CORPORATION
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|X| No fee required
|_| Fee computed on table below per Exchange Act Rules 14a(6)(i)(1) and 0-11
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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|_| Fee previously paid with preliminary materials:
|_| Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration number, or the Form of
Schedule and the date of its filing.
(1) Amount Previously Paid:
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(4) Date Filed:
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2005 ANNUAL MEETING OF STOCKHOLDERS
OF
FIRST MONTAUK FINANCIAL CORPORATION
PROXY STATEMENT
OF
BMAC CORPORATION
This proxy statement is being furnished to the stockholders of First
Montauk Financial Corporation, a New Jersey corporation with principal executive
offices at Parkway 109 Office Center, 328 Newman Springs Road, Red Bank, NJ
07701 (the "Company"), in connection with the solicitation of proxies by BMAC
Corporation for use at the 2005 Annual Meeting of Stockholders of the Company,
and any adjournments, continuations or postponements thereof (the "2005 Annual
Meeting"), to elect Shlomo Eplboim, Michael A. Poutre and Dr. Eli E. Hendel (the
"BMAC Nominees") as directors of the Company and to vote against a proposal to
amend the Company's Restated Certificate of Incorporation.
THE BMAC NOMINEES ARE COMMITTED TO ACTING IN THE BEST INTERST OF
STOCKHOLDERS. WE BELIEVE THAT YOUR VOICE IN THE FUTURE OF THE COMPANY CAN BEST
BE EXPRESSED THROUGH THE ELECTION OF THE BMAC NOMINEES. ACCORDINGLY, WE URGE YOU
TO VOTE YOUR PROXY CARD FOR SHLOMO EPLBOIM AND MICHAEL A. POUTRE AS CLASS I
DIRECTORS, AND DR. ELI E. HENDEL AS A CLASS III DIRECTOR. WE ALSO URGE YOU TO
VOTE AGAINST A PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION. WE BELIEVE THE SUBMISSIONS FROM THE COMPANY SERVE TO BENEFIT THE
COMPANY AND ITS DIRECTORS, AND NOT THE SHAREHOLDERS.
BMAC Corporation is a Nevada corporation with principal offices at 7060
Hollywood Blvd., Suite 522, Los Angeles, CA 90028 ("BMAC"). BMAC beneficially
owns an aggregate of approximately 1,966,700 shares of the Company's common
stock, no par value per share (the "Common Stock"), representing approximately
13.03% of the 15,324,051 shares of Common Stock of the Company outstanding as of
March 31, 2005, as reported in the Company's Annual Report on Form 10-K filed
for the year ended December 31, 2004. The Common Stock of the Company
beneficially owned by BMAC represents approximately 11.54% of the outstanding
Common Stock and Series B Convertible Redeemable Preferred Stock, $0.10 par
value per share (the "Series B Preferred Stock") of the Company entitled to vote
at the 2005 Annual Meeting (the "Voting Power"). Unless otherwise noted,
references in this proxy statement to the percentage of Voting Power owned by
any person were computed based upon the number of outstanding shares of Common
Stock and Series B Preferred Stock as reported by the Company as of March 31,
2005.
The Company's Board of Directors (the "Board") has announced that the 2005
Annual Meeting will be held on Thursday, June 23, 2005 at 10:00 a.m., Eastern
Daylight Time, at the principal executive offices of the Company, located at
Parkway 109 Office Center, 328 Newman Springs Road, Red Bank, New Jersey 07701.
Wednesday, May 18, 2005 has been fixed as the record date (the "Record Date")
for the determination of shareholders entitled to notice of, and to vote at, the
Annual Meeting and any adjournments thereof.
3
The date of this proxy statement is May 25, 2005, and BMAC expects to
first send or make this proxy statement available to shareholders on or about
June 6, 2005.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK
NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES
AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT
THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON
YOUR BEHALF THE PROXY CARD AS SOON AS POSSIBLE.
Any stockholder of the Company who executes and delivers a proxy will have
the right to revoke it at any time before it is voted, by filing an instrument
revoking the earlier proxy or a duly executed proxy bearing a later date with
BMAC at 7060 Hollywood Blvd., Suite 522, Los Angeles, CA 90028, or with the
Secretary of the Company at its principal executive offices at Parkway 109
Office Center, 328 Newman Springs Road, Red Bank, NJ 07701, or by voting in
person at the 2005 Annual Meeting. Stockholders who hold their shares through a
broker, bank or other nominee and wish to vote at the meeting must bring to the
meeting a letter from the broker, bank or other nominee confirming such
beneficial ownership of the shares to be voted.
If you have any questions about giving your proxy or require assistance
please contact:
Einav Snir
c/o Eplboim, Poutre & Co.
8383 Wilshire Blvd., Suite 100
Beverly Hills, CA 90211
COMPOSITION OF BOARD OF DIRECTORS
Based on information contained in reports filed by the Company with the
Securities and Exchange Commission (the "Commission"), the Board is currently
comprised of five directors, divided into three classes (Classes I, II and III)
consisting of two directors each of Classes I and II, and one director presently
remaining in Class III. As of December 31, 2002, Mr. David I. Portman, formerly
a Class III director, resigned. Mr. Portman's vacated position has yet to be
filled.
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CERTAIN INFORMATION CONCERNING BMAC, THE BMAC NOMINEES AND THE
OTHER PARTICIPANTS IN THE SOLICITATION
Information concerning BMAC and Messrs. Eplboim, Poutre and Dr. Hendel,
each of whom may be deemed "participants in the solicitation" as defined in the
proxy rules promulgated by the Commission under the Securities Exchange Act of
1934, as amended, and their affiliates and associates (each a "Participant" and,
collectively, the "Participants"), is set forth below. Except as otherwise
described herein, all transactions in the securities of the Company effected
within the past 2 years by the Participants and their affiliates are contained
in Appendix A attached hereto.
Each of the BMAC Nominees has given his consent to be named in this proxy
statement and any other proxy statement for the 2005 Annual Meeting and has
confirmed his intent and consent to serve on the Board if elected. If the BMAC
Nominees are elected and take office as directors, they intend to discharge
their duties as directors of the Company in compliance with all applicable legal
requirements, including the general fiduciary obligations imposed upon corporate
directors. The information below concerning the age, principal occupation,
directorships and beneficial ownership of Common Stock has been furnished by the
respective BMAC Nominees.
Name, Business Address Present Principal Occupation and Principal Shares of
and Age Occupation During Last (5) Years, and Common Percent of
Directorships Stock Common
Owned Stock
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Shlomo Eplboim, Chief Financial Officer and Chairman of the 0 0.0%
c/o Eplboim, Poutre & Co., Board, Eplboim, Poutre & Co. since 2001.
8383 Wilshire Blvd., Suite Vice President of Investments and Private
100, Managed Accounts Coordinator, Prudential
Beverly Hills, CA 90211 Securities 1999 through 2001. Director and
Age 33 Chairman of the Board, The Blue and White
Fund since 2003.
Michael A. Poutre President, Chief Executive Officer and 0 0.0%
c/o Eplboim, Poutre & Co., Director, Eplboim, Poutre & Co. since 2001.
8383 Wilshire Blvd., Suite Financial Advisor, Van Kasper & Co., 1999
100, through 2001. President and Secretary, the
Beverly Hills, CA 90211 Blue and White Fund since 2003.
Age 33
Dr. Eli E. Hendel, Doctor of Internal Medicine, Eli E. Hendel, 245,700 1.6%
1500 S. Central Ave., MD, P.C. since 1986. Specializing in
Suite 117 pulmonary diseases. Director, Glendale
Glendale, CA 91204 Memorial Medical Group, 1995 through 2002.
Age 52
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Messrs. Eplboim and Poutre are former registered representatives of the
Company. As registered representatives, they were entitled to a percentage
commission and/or fees generated in the course of any securities sales they
completed. In their former capacity as registered representatives of the
Company, Messrs. Eplboim and Poutre participated in, among other things, the
sale and issuance of the Company's convertible debentures to accredited
investors in 2002 and 2003.
Messrs. Eplboim and Poutre have appeared on CNBC and Fox News, and have
been interviewed in such publications as the New York Times, Forbes, and
Business Week. They have also appeared countless times on television in the
greater Los Angeles area. Morningstar fund rating service has described Messrs.
Eplboim and Poutre, founders of the Blue and White Fund (Nasdaq: BWFAX), as
"having a lot of moxie." Additionally, Business Week has stated that Shlomo
Eplboim "certainly can be called a mensch - Yiddish, for an admirable person."
The Blue and White Fund is the first actively managed mutual fund in the U.S. to
invest specifically in Israeli based companies.
Messrs. Eplboim and Poutre are currently engaged in arbitration before the
NASD concerning approximately $100,000, which the Company alleges to be owed by
Messrs. Eplboim and Poutre. The alleged debt relates to forgivable employee
loans. The Company initiated this action against Messrs. Eplboim and Poutre in
October 2004 and the case is still pending. Messrs. Eplboim and Poutre strongly
dispute the claims made by the Company and believe these claims are motivated by
the Company's intention to discredit them. Messrs. Eplboim and Poutre intend on
vigorously defending themselves in this matter.
Eli E. Hendel, MD, is a respected internist in the Los Angeles area. Dr.
Hendel specializes is pulmonary diseases. Since 1986 Dr. Hendel has been the
sole shareholder and an employee of Eli E. Hendel, MD, P.C., a medical practice.
Dr. Hendel has also served as a director of the Glendale Memorial Medical Group.
Dr. Hendel owns approximately 1.6% of the outstanding common stock of BMAC.
BMAC acquired an interest in the Company in October 2004 (see Appendix A).
Some stockholders in BMAC individually acquired the Company's convertible
debentures in 2002 and 2003. Additionally, some BMAC stockholders have acquired
common stock separately (see Appendix A). Taking into account shares BMAC owns
directly, and Common Stock held by BMAC stockholders which BMAC may be deemed to
hold beneficial ownership over, BMAC currently holds approximately 1,996,700
shares of the Company's common stock, representing approximately 11.54% of the
Voting Power entitled to vote at the 2005 Annual Meeting as of March 31, 2005.
BMAC is a Nevada corporation with principal executive offices in Los
Angeles, California. BMAC was formed primarily as an investment vehicle with
which to acquire shares in the Company, with a purpose towards effectuating a
change in control of the Company.
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The President of BMAC is Mr. Amnon Kawa. Mr. Kawa is a retired real estate
builder/developer who specialized in the development of residential,
multi-family and commercial projects. Mr. Kawa has a thirty (30) year history as
a builder/developer, which began with the formation Ami Builders Corporation in
1969, which specialized in the construction of apartment buildings and
condominiums. In 1995, Mr. Kawa helped found and was a partner in BEAM
Development, L.L.C., which developed residential and commercial real estate
projects in California and Arizona. Mr. Kawa is a native of Israel and currently
resides in Los Angeles, California. Mr. Kawa is 64 years old.
Yigal Agaki is the Vice-president, Secretary and Treasurer of BMAC. Mr.
Agaki is 33 years old. In addition to his duties for BMAC, Mr. Agaki is the
owner of Hover View Investigations, which he formed in 2004. From 2000 until the
formation of Hover View Investigations, Mr. Agaki was the sole owner and
operator of Hover View Helicopters.
Except as noted in this Proxy Statement and in Appendix A, none of the
BMAC Nominees, Participants or their associates is a record or beneficial owner
of Common Stock or Class B Preferred Stock of the Company. Except as noted
above, none of the BMAC Nominees and Participants owns beneficially, directly or
indirectly, securities of any parent or subsidiary of the Company.
Other than as disclosed in this Proxy Statement, none of the BMAC Nominees
and Participants is, and was within the past year, a party to any contract,
arrangement or understanding with any person with respect to any securities of
the Company, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies.
None of the BMAC Nominees and Participants has any position or office with
the Company, and none of the BMAC Nominees has any arrangement or understanding
with any other person pursuant to which he was selected to be a nominee. None of
the BMAC Nominees and Participants nor any of their associates have any
arrangement or understanding with any person with respect to (A) any future
employment by the Company or its affiliates; or (B) any future transactions to
which the Company or any of its affiliates will or may be a party. Except as
described above, none of the Participants or their associates has a material
interest in any transaction or series of transactions engaged in by the Company
since the beginning of the Company's last fiscal year.
None of the entities referred to in this Proxy Statement with which the
Participants and BMAC Nominees have been involved during the past five years is
a parent or subsidiary of the Company and only BMAC is an affiliate of the
Company solely by virtue of BMAC's ownership of Common Stock of the Company.
Except as set forth herein none of the BMAC Nominees nor any of the other
Participants: (i) owns any securities of the Company of record, but not
beneficially; (ii) owns beneficially any securities of the Company or any parent
or subsidiary of the Company; (iii) has any agreement or understanding with any
person with respect to any future employment with the Company or its affiliates;
(iv) has any agreement or understanding with any person with respect to any
future transactions to which the Company or any of its affiliates will or may be
a party; (v) has engaged in or had a direct or indirect interest in any
transaction, or series of similar transactions, since the beginning of the
Company's last fiscal year, or any currently proposed transaction, or series of
similar transactions, to which the Company or any of its subsidiaries was or is
to be a party, in which the amount involved exceeds $60,000; (vi) borrowed any
funds for the purpose of acquiring or holding any securities of the Company; or
(vii) is presently, or has been within the past year, a party to any contract,
arrangement or understanding with any person with respect to securities of the
Company. Other than as disclosed in this Proxy Statement, no securities of the
Company are beneficially owned by any of the associates of the Participants.
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BMAC intends to vote the shares of Common Stock beneficially owned by it
FOR the BMAC Nominees. BMAC also intends to vote AGAINST the proposal to amend
the Company's Restated Certificate of Incorporation.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY THE COMPANY. IF YOU
HAVE ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BEFORE IT IS VOTED BY DELIVERING
A LATER-DATED PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, OR BY VOTING
IN PERSON AT THE ANNUAL MEETING, OR BY DELIVERING TO THE CORPORATE SECRETARY OF
THE COMPANY A WRITTEN NOTICE, BEARING A DATE LATER THAN THE DATE OF THE PROXY,
STATING THAT THE PROXY IS REVOKED.
PROPOSALS
Proposal 1 - Election of Class I Directors
According to the Company's Preliminary Proxy Statement for the 2005 Annual
Meeting filed with the Commission on May 6, 2005 (the "Preliminary Proxy
Statement") two Class I directors are to be elected to the Company's Board at
the 2005 Annual Meeting. BMAC proposes that the Company's stockholders elect
Shlomo Eplboim and Michael A. Poutre as directors of the Company at the 2005
Annual Meeting. Messrs. Eplboim and Poutre, if elected, would hold office until
the 2008 annual meeting.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF SHLOMO EPLBOIM AND
MICHAEL A. POUTRE BY SIGNING, DATING AND RETURNING THE ENCLOSED BMAC PROXY CARD
IN THE POSTAGE PAID ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT. IF YOU
HAVE SIGNED THE BMAC PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO
HAVE GIVEN A DIRECTION TO VOTE ALL THE SHARES REPRESENTED BY THE BMAC PROXY CARD
FOR THE ELECTION OF ALL THE NOMINEES NAMED ON THE BMAC PROXY CARD.
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Proposal 2 - Amendment To Certificate of Incorporation
The current Board seeks stockholder approval to amend the Company's
Restated Certificate of Incorporation, as amended, to increase the authorized
number of shares of common stock from 30,000,000 to 60,000,000. The Board has
stated that it is necessary to increase the number of authorized shares in order
to provide flexibility to issue shares for general corporate purposes that may
be identified in the future. BMAC believes this proposal is not in the best
interest of shareholders as it may lead to a dilution of interests of current
shareholders.
As stated above, the Company recently issued to William Kurinsky preferred
stock, which is convertible into 1,978,240 shares of Common Stock. BMAC is
concerned that the Company and Board will use the ability to issue additional
shares of Common Stock to benefit insiders, which is to the detriment of other
stockholders whose interests may be greatly diluted.
The Board claims that the proposal to increase the number of authorized
shares is not done with the intent that it be utilized as an anti-takeover
device. Nevertheless, the Board has set forth ways in which the increase in
authorized shares can be used as an anti-takeover device, such as issuing new
shares of Common Stock to friendly parties opposed to takeover attempts. BMAC
believes that this proposal is intended to preserve the current control of the
Company at the expense of shareholders and their investments. BMAC also believes
that a change in control of the Company is necessary to set the Company on a
path towards sustained profitability. BMAC is also opposed to any measures,
anti-takeover or otherwise, that serve to dilute the interests of existing
shareholders.
WE STRONGLY URGE YOU TO VOTE AGAINST THE PROPOSAL TO AMEND THE COMPANY'S
RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AITHORIZED
SHARES OF COMMON STOCK BY SIGNING, DATING AND RETURNING THE ENCLOSED BMAC PROXY
CARD IN THE POSTAGE PAID ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT. IF
YOU HAVE SIGNED THE PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO
HAVE GIVEN A DIRECTION TO VOTE ALL THE SHARES REPRESENTED BY THE PROXY CARD
AGAINST THE PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF
INCORPORATION. WE BELIEVE THIS PROPOSAL SERVES TO BENEFIT ONLY THE EXISTING
BOARD AND MANAGEMENT, AND IS NOT IN THE BEST INTEREST OF SHAREHOLDERS.
Proposal 3 - Election of A Class III Director
As stated above, as of December 31, 2002, Mr. David I. Portman, a Class
III director, resigned from the Board leaving a total of five (5) directors.
Pursuant to the terms of the Company's Amended and Restated Certificate of
Incorporation vacancies resulting from the resignation of a director are to be
filled by the affirmative vote of a majority of the remaining directors "for the
remainder of the full term of the class of [d]irectors in which the vacancy
occurred and until such director's successor shall be elected and qualify." The
remaining directors have yet to elect a successor to Mr. Portman and as a result
have been in violation of the Amended and Restated Certificate of Incorporation,
which states that the number of directors "shall be not less than six."
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Election of the Class III directors was scheduled to occur during the 2003
annual meeting of the Company. At that time the Board failed to nominate a
second Class III director to be voted upon and fill the vacant directorship.
BMAC proposes that the vacancy in the Class III directorship be filled by a vote
of the stockholders, which shall occur at the 2005 Annual Meeting. In connection
therewith BMAC is nominating Dr. Eli E. Hendel to serve as a Class III director.
Such election will fill the vacancy existing among Class III directors and bring
the Company into compliance with its Amended and Restated Certificate of
Incorporation.
The election of a Class III director brings the total number of directors
to six, thereby creating the possibility that the Board may deadlock on one or
more decisions concerning the Company's business. BMAC is unable to provide you
with details concerning how such deadlocks would be resolved. Despite requests
for copies of the Company's bylaws the Company has failed to provide such
documents. A copy of the Company's bylaws is attached as an Exhibit to the Form
S-1 filed in 1989. It conflicts in many instances with the terms of the Amended
and Restated Certificate of Incorporation, and in BMAC's opinion, the former
cannot be relied upon at this time as an accurate reflection of the Company's
governing statements. However, New Jersey law provides that a court of law may
appoint one or more provisional directors if such appointment is in the best
interests of the shareholders and directors. In the event the Directors are
deadlocked with respect to a particular issue or decision, with a proper showing
a court may appoint a provisional director to help break such deadlock.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF DR. ELI E. HENDEL BY
SIGNING, DATING AND RETURNING THE ENCLOSED BMAC PROXY CARD IN THE POSTAGE PAID
ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT. IF YOU HAVE SIGNED THE BMAC
PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION
TO VOTE ALL THE SHARES REPRESENTED BY THE BMAC PROXY CARD FOR THE ELECTION OF
ALL THE NOMINEES NAMED ON THE BMAC PROXY CARD.
BACKGROUND AND REASONS FOR THIS SOLICITATION
BMAC believes that the market value and performance of the Company's
Common Stock has been adversely affected by a history of poor judgment by the
Board, officers and management, which is evidenced by (1) attempts to merge with
a financial services company that has a history of regulatory problems and
dubious activities, (2) a pattern of providing excessive amounts of compensation
to members of upper management, and (3) the inability to sustain positive
earnings. As a result, BMAC believes the shareholder base has become
disenchanted with the Company's management and the Board's oversight. BMAC
believes that the shortcomings of management and the Board fall into, among
others, the following categories:
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Merger With Olympic Cascade Financial Corp.
In October 2004, the Company announced its intent to merge with Olympic
Cascade Financial Corp. ("Olympic"). There are considerable risks to merging
with Olympic. Olympic has a history of being unable to meet National Association
of Securities Dealers, Inc. ("NASD") capital requirements. It should be noted
that (1) although Olympic thought they raised sufficient capital to meet those
requirements, a NASD arbitration panel ruled in September 2004 that $1 million
obtained from investors must be returned, and (2) eight days following the
announcement that the Company would merge with Olympic, the American Stock
Exchange announced that it would delist Olympic's stock, in part due to
Olympic's failure to meet minimum-net-capital requirements. Such a move makes it
more difficult for Olympic to raise necessary capital. Also of significance is
the fact that in August 2004 the NASD found that Olympic's brokerage subsidiary
engaged in the improper trading of mutual funds and suspended Olympic from
engaging in such activities. The brokerage subsidiary agreed to pay a sizeable
settlement, but as of the filing of its last annual report, less than half of
the total settlement had been paid.
In a letter to shareholders dated May 3, 2005, the Company states that
these events and others "were events which were considered during our merger
negotiations, and does not impact the value of the merger to our shareholders."
This statement evidences a lack of forward thinking and concern for
stockholder's investments in the Company, and is not surprising for a Company
with its own history of regulatory problems. For example, in April 2004, the
Company was fined and suspended from issuing research for three months after the
Company released a misleading stock report and failed to disclose that the
Company owned warrants to buy the stock referenced in such report.
BMAC believes that the terms of the current merger unfairly favor Olympic'
shareholders. Pursuant to the original terms of the merger plan dated February
10, 2005, for every share of the Company's Common Stock, 0.5055 new shares of
Olympic stock would be issued; effectively a 2:1 exchange ratio. Shares of
common stock of the Company and Olympic closed at $1.05 and $1.00 per share,
respectively, that day. On May 11 the Company announced revised terms of the
merger such that the exchange ratio is now 1.75:1. Shares of common stock of the
Company and Olympic closed at $1.05 and $1.25 per share, respectively, that day.
BMAC believes that with the prices of each stock so near in value, it is
inappropriate to issue 1.75 shares of Common Stock for each share of Olympic
common stock. This rewards Olympic shareholders with a substantial premium,
while diluting the interests of the Company's current stockholders who receive
no such premium.
BMAC and the BMAC Nominees believe that merging with a brokerage company
that has a history of financial and regulatory problems is not in the best
interests of the Company, its stockholders or convertible debenture-holders.
11
Use of Corporate Funds
o Background
In 2003, the Company offered to accredited investors the opportunity to
acquire up to $3 million in convertible debentures. During the last calendar
quarter of 2003, the Company sold $1.895 million of convertible debentures to
accredited investors. In its Offering Memorandum the Company pledged that the
"proceeds of the [o]ffering will be utilized for working capital purposes." As
described below, it appears that once the Company became aware of how much money
would be raised through its offering of convertible debentures, upper management
received significant increases in compensation despite the Company's precarious
financial position.
In its Offering Memorandum, the Company detailed the following annual
compensation paid to the top three executives in the Company, pursuant to
employment agreements entered into August 2002:
Name: 2002 Compensation:
-------------------------- ------------------
Herbert Kurinsky $181,218
William Kurinsky $181,218
Robert I. Rabinowitz $150,000
Despite the fact that the Company realized a net loss of over $3.5 million
for 2003, documents filed with the Securities and Exchange Commission indicate
that Messrs. Kurinsky received salary increases of $50,000 each during 2003.
o Excessive Increases In Executive Compensation: Three New Employment
Contracts In Three Years
In December 2003, when the Company was aware of how much it would receive
through the offering of convertible debentures, the Company entered into new
employment agreements with its top three executives, despite the fact the
Company had executed employment agreements with Messrs. Kurinsky 16 months
earlier. Such agreements became effective on January 1, 2004, the same date on
which funds from the above-mentioned offering became available to the Company.
Pursuant to the new employment agreements, these individuals became entitled to
base salaries in the aggregate amount of $750,000 (a 46% increase over 2002 base
salaries and a 39% increase over 2003 base salaries). The new employment
agreements also provided very generous bonus plans, opportunities to acquire
stock options and warrants, and the award of an additional 375,000 restricted
shares of common stock to each executive. All of this occurred despite the fact
that the Company lost over $3.5 million for the year.
In addition to the increase in base salaries, Messrs. Kurinsky and Mr.
Rabinowitz received annual bonuses of $260,000. Annual bonuses had not been paid
since 2000, and even then amounted to just over $50,000 for all three
individuals. The bonuses paid to Messrs. Kurinsky were sufficiently large enough
to enable these persons to apply a portion of their bonuses against debts each
owed to the Company. In effect, not only did Messrs. Kurinsky receive large
bonuses during 2003, but debt forgiveness as well.
12
Increases in compensation and the payment of bonuses were made despite the
fact that the Company was in a deficit position (corporate liabilities exceed
corporate assets) and had suspended the payment of dividends on preferred stock.
BMAC and the BMAC Nominees believe that the directors of the Company have
continually shown a tendency to exercise poor judgment in the use of company
funds.
o Separation Agreement with Former CEO
In the Form 8-K filed February 8, 2005, the Company provided notice that a
new Chief Executive Officer has been appointed to succeed William Kurinsky, who
will remain as a director of the Company. The Company states in such filing that
a change in leadership is in the best interests of the Company "whether or not
the merger [with Olympic] is completed." As an additional reason for the
management change, the Company cited financial obligations that would have
become due to William Kurinsky in the event of a change in control over the
Company.
Though William Kurisnky was not an effective leader for the Company, and
despite the fact that the Company remained in a deficit position, the Company
provided him with a significant compensation package as part of his separation
from the Company. The Company is now obligated to pay him as a consultant
$151,200 per year for two years. Additionally, he received a new class of B
Preferred Shares convertible into 1,978,240 shares of common stock (effectively
granting him an additional 11.4% vote on Company matters). The preferred shares
carry the equivalent voting rights of 1,978,240 common shares, and pay an
8-percent cumulative dividend. William Kurinsky also received a $200,000 note,
which bears interest at eight percent (8%), and a lump-sum cash payment of
$136,000. It should be noted that he received other benefits as well including
stock options, health insurance, and entitlement to an annual bonus. The lack of
foresight the Company exhibited in executing a new employment agreement in late
2003 with William Kurinsky, has proved to be a very costly mistake and creates
the appearance that William Kurinsky has received a substantial financial
windfall in this process. Shareholders should question the judgment of the Board
and management in providing William Kurinsky with a new employment agreement
that would be terminated soon after it became effective as well as management's
motives behind such moves. Additionally, shareholders should question whether it
was appropriate to terminate this contract before regulatory and shareholder
approval of the proposed merger. Further, BMAC believes that Mr. Kurinsky's
resignation does not represent a true departure from the company and merely
served as an opportunity for him to obtain additional compensation from the
Company at the shareholders expense.
The Company has appointed Victor Kurylak as its new Chief Executive
Officer. In connection therewith, Mr. Kurylak received 1 million shares of
Company Common Stock and a new employment agreement. The new employment
agreement provides Mr. Kurylak with a base salary of $275,000, plus the
opportunity for annual bonuses. Additionally, Mr. Kurylak has recently been
appointed as a director of the Company.
13
The Current Board Lacks Objectivity
The current Board is unable to provide the Company with an objective
outlook as to the Company's financial and business positions, nor is it able to
develop an objective strategy for moving the Company toward profitability.
A majority of the current Board consists of insiders who are related
parties or individuals subservient to other board members. Of the current five
directors, Herbert Kurinsky and William Kurinsky (who remains as a director
despite the termination of his employment with the Company) are uncle and
nephew, respectively. Recently employed Victor Kurylak is a member of the
Company's management, and is, therefore, beholden to the Kurinskys.
Additionally, BMAC believes that Ward R. Jones is not an independent director by
virtue of the fact that he holds his securities license through Montauk, putting
him in a position where he is also beholden to the Kurinskys and majority of the
Board. Effective December 31, 2002 a sixth member of the Board resigned. That
position, which could have a mitigating effect on the insiders' ability to
control the Board, has not been filled.
Financial Performance of the Company
In a letter to stockholders dated May 3, 2005, the Company took great
pride in announcing a return to profitability for the first time since 1999. For
the year ended December 31, 2004 the Company realized net income of $640,000.
Net losses for the previous three years were approximately $3.5 million, $3.0
million and $5.2 million, according to the Company's Form 10-K for the year
ended December 31, 2003. The positive results for 2004 hardly rewarded
stockholders for the years of continued underperformance and does not
necessarily indicate that the Company is on a path towards continued
profitability. In fact, the Form 10-Q filed for the first quarter of 2005
indicates that the Company realized a net loss of $376,058, as compared to net
income of $237,974 for the first quarter of 2004. The Company attributes at
least part of the net loss for the first quarter of 2005 to expenses incurred in
connection with "a separation agreement with one of our senior officers."
Restoring Confidence and Providing Stronger Stewardship
BMAC believes that significant new representation on the Board is
necessary to restore confidence in the Company, help bring more accountability
and discipline to the way the Company is being managed, and insure compliance
will regulatory requirements. BMAC believes that the Company's management and
Board should, in setting and approving executive compensation, better tie such
compensation to the Company's performance, and in that regard, if elected, the
BMAC Nominees will closely examine and bring financial analysis to initiatives
proposed by management of the Company, and if appropriate, will propose its own
initiatives concerning the Company, including among other matters, the level of
compensation of the Company's senior management and the best uses of the
Company's resources.
14
If elected, the BMAC Nominees will seek to (1) develop a corporate climate
in which adherence to governmental regulations is of primary importance and
install tighter compliance policies, (2) link executive compensation to
shareholder returns, and (3) accomplish any other actions as may be necessary to
assure that the Company's business and affairs are at all times conducted in
accordance with the best interests of its stockholders. The BMAC Nominees will
seek to continue conducting due diligence as it relates to the proposed merger
with Olympic Cascade. The election of the BMAC Nominees to the Board will not,
however, guarantee that the proposed merger with Olympic Cascade will be
terminated. The terms of the merger agreement already entered into with Olympic
Cascade provide that the agreement can only be terminated upon the occurrence of
particular events, most notably, for the Company's failure to obtain stockholder
or regulatory approval of such merger. Termination of the agreement for any
other reason may expose the Company to significant liabilities that outweigh any
benefit gained from the termination of the merger agreement.
The BMAC Nominees, if elected, will not constitute a majority of the
Board, at least until the next annual meeting or some other change in
composition of the Board. Accordingly, the slate proposed by BMAC, even if
unanimous, will not be able to adopt any measures without the support of at
least some members of the current Board. The slate proposed by BMAC should,
therefore, be expected to articulate and raise its concerns about the Company's
business activities with the rest of the Board members. BMAC may, depending upon
future events, seek to nominate additional directors of the Board in the future.
VOTES REQUIRED AND VOTES PER SHARE
According to the Company's Preliminary Proxy Statement, a majority of the
Company's outstanding shares of Common Stock and Series B Preferred Stock,
voting together as a single class, as of the Record Date must be present at the
2005 Annual Meeting in person or by proxy in order to hold the meeting and
conduct business. This presence is called a quorum. Shares are counted as
present at the 2005 Annual Meeting if you are present and vote in person at the
meeting, or if you have properly submitted a proxy card. In addition,
abstentions and broker non-votes will be considered to be shares present at the
meeting for purposes of a quorum. Broker non-votes occur when shares held by a
broker for a beneficial owner are not voted with respect to a particular
proposal because the broker does not receive voting instructions from the
beneficial owner and the broker lacks discretionary authority to vote the
shares.
Please complete, date and sign the accompanying proxy card and promptly
return it in the enclosed envelope or otherwise mail it to us. All executed,
returned proxies that are not revoked will be voted in accordance with the
included instructions. According to the Company's Preliminary Proxy Statement,
the election of directors is by plurality vote, with the nominees receiving the
highest vote totals to be elected as directors. Accordingly, abstentions and
broker non-votes will not affect the outcome of the election of directors. A
majority of the shares present and voting at the 2005 Annual Meeting is required
for approval of the proposal to amend the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of Common Stock.
According to the Company's Preliminary Proxy Statement, a stockholder voting
through a proxy who abstains with respect to approval of the proposal to amend
the Restated Certificate of Incorporation or any matter other than the election
of directors to come before the 2005 Annual Meeting is considered to be present
and entitled to vote on that matter and is in effect a negative vote, but a
stockholder (including a broker) who does not give authority to a proxy to vote,
or withholds authority to vote, on any such matter shall not be considered
present and entitled to vote thereon.
15
Whether or not you are able to attend the 2005 Annual Meeting, you are
urged to complete the enclosed proxy and return it in the enclosed
self-addressed, prepaid envelope. All valid proxies received prior to the
meeting will be voted. If you specify a choice with respect to any item by
marking the appropriate box on the proxy, the shares will be voted in accordance
with that specification. IF NO SPECIFICATION IS MADE, THE PERSONS NAMED ON THE
ENCLOSED PROXY CARD WILL VOTE YOUR SHARES FOR SHLOMO EPLBOIM AND MICHAEL A.
POUTRE WITH RESPECT TO PROPOSAL 1, AGAINST PROPOSAL 2, AND FOR DR. ELI E. HENDEL
WITH RESPECT TO PROPOSAL 3.
PROXY PROCEDURES
IN ORDER FOR YOUR VIEWS TO BE REPRESENTED AT THE 2005 ANNUAL MEETING,
PLEASE MARK, SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE.
IF YOU ARE A STOCKHOLDER OF RECORD ON THE RECORD DATE OF COMMON STOCK OR
CLASS B PREFERRED STOCK YOU WILL RECEIVE A PROXY STATEMENT WITH RESPECT TO EACH
CLASS OF SHARES. PLEASE MARK, SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD EVEN
IF YOU HAVE PREVIOUSLY SUBMITTED A PROXY CARD FOR THE OTHER CLASS OF THE
COMPANY'S STOCK THAT YOU OWN.
If you have any questions about giving your proxy or require assistance,
please call:
Einav Snir
c/o Eplboim, Poutre & Co.
8383 Wilshire Blvd., Suite 100
Beverly Hills, CA 90211
The accompanying proxy card will be voted at the 2005 Annual Meeting in
accordance with your instructions on such card.
16
REVOCATION OF PROXIES
Any Stockholder who has mailed a proxy card to the Company may revoke it
before it is voted by mailing a duly executed proxy card to the Participants
bearing a date LATER than the proxy card delivered to the Company. Proxies may
also be revoked at any time prior to voting by: (i) delivering to the corporate
secretary of the Company a written notice, bearing a date later than the date of
the proxy, stating that the proxy is revoked; (ii) delivering a duly executed
proxy bearing a later date than the proxy delivered previously; or (iii)
attending the 2005 Annual Meeting and voting in person. Stockholders who hold
their shares through a broker, bank or other nominee and wish to vote at the
meeting must bring to the meeting a letter from the broker, bank or other
nominee confirming such beneficial ownership of the shares to be voted.
Only holders of record as of the close of business on the Record Date will
be entitled to vote. If you were a stockholder of record on the Record Date, you
will retain your voting rights at the 2005 Annual Meeting even if you sell such
shares after the Record Date. Accordingly, it is important that you vote the
shares held by you on the Record Date, or grant a proxy to vote such shares on
the enclosed proxy card, even if you sell such shares after the Record Date.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK
NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES
AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT
THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON
YOUR BEHALF THE ENCLOSED PROXY CARD AS SOON AS POSSIBLE.
CERTAIN INTERESTS IN THE PROPOSAL AND WITH RESPECT TO
SECURITIES OF THE ISSUER
To the knowledge of BMAC, neither BMAC nor any employee, shareholder or
director who may be deemed Participants in the solicitation of proxies for BMAC
for the 2005 Annual Meeting are or have within the past year been parties to any
contracts, arrangements, understandings or relationships (legal or otherwise)
with respect to any securities of the Company,
Messrs. Eplboim and Poutre were formerly registered representatives of the
Company. Neither individual has any arrangement or understanding with any person
with respect to future employment by the Company or its affiliates, or with
respect to any future transactions to which the Company or any of its affiliates
will or may be a party.
17
PRINCIPAL SHAREHOLDERS AND OFFICERS
Other than itself (whose shareholdings are described elsewhere in this
proxy statement) and those individuals so stated on the Company's 10-K filed for
the year ending December 31, 2004, BMAC is unaware of any person who is the
beneficial owner of more than five percent of the outstanding shares of Common
Stock. This information is based solely on information contained in documents
filed with the Commission by or on behalf of such persons.
PROXY SOLICITATION EXPENSES
Proxies may be solicited by BMAC, its employees, agents, directors, and
shareholders by mail, telephone, facsimile, the Internet and personal
solicitation. Regular employees, agents, directors, and shareholders of BMAC may
solicit proxies on behalf of BMAC, although they will not receive additional
compensation for any such efforts. Banks, brokerage houses and other custodians,
nominees and fiduciaries will be requested to forward BMAC's solicitation
material to customers for whom such persons hold shares of Common Stock, and
either BMAC or the BMAC Nominees will reimburse them for their reasonable
out-of-pocket expenses for doing so.
The entire expense of preparing, assembling, printing and mailing this
proxy statement and related materials, and the cost of soliciting proxies for
the proposals endorsed by BMAC will be paid by BMAC and/or the BMAC Nominees.
The total expenditures in furtherance of, or in connection with, the
solicitation of proxies is approximately $21,000 to date, and is estimated to be
up to $33,000 in total. BMAC and/or the BMAC Nominees intend to seek
reimbursement for the costs and expenses associated with the proxy solicitation
in the event that the BMAC Nominees are elected to the Board of the Company, but
do not intend to submit the issue of reimbursement to a vote of the
stockholders.
As of the date hereof, BMAC has not retained a proxy solicitor nor does
BMAC expect to retain a proxy solicitor.
OTHER INFORMATION
Certain information regarding the securities of the Company held by the
Company's directors, nominees, management and 5% stockholders is contained in
the Company's 2005 Preliminary Proxy Statement. Information concerning the date
by which proposals of security holders intended to be presented at the next
annual meeting of Stockholders of the Company must be received by the Company
for inclusion in the Company's Proxy Statement and form of proxy for that
meeting is also contained in the Company's 2005 Preliminary Proxy Statement.
This information is contained in the Company's public filings. The Participants
take no responsibility for the accuracy or completeness of such information.
18
IMPORTANT
1. If your shares are held in your own name, please mark, date and
mail the enclosed proxy card to BMAC, in the postage-paid envelope provided.
2. If your shares are held in the name of a brokerage firm, bank
nominee or other institution, only it can vote such shares and only upon receipt
of your specific instructions. Accordingly, you should contact the person
responsible for your account and give instructions for a BMAC proxy card to be
signed representing your shares.
3. If you have already submitted a proxy card to the Company for the
2005 Annual Meeting, you may change your vote to a vote FOR the election of the
BMAC Nominees by marking, signing, dating and returning the enclosed proxy card
for the 2005 Annual Meeting, which must be dated after any proxy you may have
submitted to the Company. ONLY YOUR LATEST DATED PROXY FOR THE 2005 ANNUAL
MEETING WILL COUNT AT THE ANNUAL MEETING.
4. If you are a stockholder of record on the Record Date of Common
Stock or Class B Preferred Stock you will receive a proxy statement with respect
to each class of shares. Please mark, sign, date and return the enclosed proxy
card even if you have previously submitted a proxy card for the other class of
the Company's securities that you own.
If you have any questions about giving your proxy or require assistance,
please call:
Einav Snir
c/o Eplboim, Poutre & Co.
8383 Wilshire Blvd., Suite 100
Beverly Hills, CA 90211
19
APPENDIX A
The following is a summary of all transactions in Company securities by
BMAC. Company securities are purchased with capital of BMAC.
- --------------------------------------------------------------------------------
Date Transaction Number of Shares
- --------------------------------------------------------------------------------
October 1, 2004 Purchase 980,500
- --------------------------------------------------------------------------------
Note: As stated above, BMAC represents that it owns 1,996,700 shares of
Common Stock. The additional shares are owned directly by BMAC stockholders, of
which BMAC, for purposes of this and other filings with the Commission, is
treated as the beneficial owner. BMAC shareholders individually own the
following amounts of Common Stock:
AMVA Holdings, LLC 615,000
Zu Freeman 75,000
Dr. Eli E. Hendel 245,700
Dr. Meir Agaki 20,000
Haim Yanai 60,500
20
PROXY
THIS PROXY CARD IS SOLICITED ON BEHALF OF BMAC CORPORATION
FOR THE 2005 ANNUAL MEETING OF STOCKHOLDERS
OF
FIRST MONTAUK FINANCIAL CORPORATION
The undersigned hereby constitutes and appoints BMAC Corp. and Yigal Agaki
and each of them (acting alone or together), attorneys and proxies with full
power of substitution, to represent the undersigned and to vote all shares of
common stock, no par value per share, and/or Class B Convertible Redeemable
Preferred Stock, __ par value per share of First Montauk Financial Corporation
(the "Company"), that the undersigned would be entitled to vote if personally
present at the 2005 Annual Meeting of Stockholders of the Company to be held on
June 23, 2005 at the principal executive offices of the Company located at
Parkway 109 Office Center, 328 Newman Springs Road, Red Bank, NJ 07701, and at
any and all adjournments, continuations or postponements thereof (the
"Meeting"), hereby revoking any proxies previously given, as directed below, and
in their discretion upon such other matters as may come before the Meeting. IN
NO DIRECTION IS MADE, THE PERSONS NAMED ON THIS PROXY CARD WILL VOTE YOUR SHARES
(1) FOR SHLOMO EPLBOIM AND MICHAEL A. POUTRE FOR DIRECTOR, (2) AGAINST THE
PROPOSAL TO AMEND THE COMPANY'S RESTATED CERTIFICATE OF INCORPORATION, AND (3)
FOR DR. ELI E. HENDEL TO FILL THE VACANT CLASS II DIRECTOR POSITION.
PLEASE MARK YOUR VOTE ON THE REVERSE SIDE, SIGN, DATE AND
RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
21
BMAC AND THE BMAC NOMINEES EACH RECCOMMED A VOTE "FOR" THE ELECTION OF THE
NOMINEES LISTED IN PROPOSALS 1 AND 3 BELOW AND "AGAINST" PROPOSAL 2 BELOW.
Please mark votes as in this example: |X|
STOCKHOLDERS ARE URGED TO DATE, MARK, SIGN AND RETURN THIS PROXY.
YOUR VOTE IS VERY IMPORTANT TO US.
- --------------------------------------------------------------------------------
FIRST MONTAUK FINANCIAL CORPORATION
- --------------------------------------------------------------------------------
1. Election of Class I Directors (please see reverse).
|_| |_| |_|
FOR THE NOMINEES LISTED WITHHELD FROM ALL VOTE WITHHELD FROM
BELOW NOMINEES LISTED BELOW ALL NOMINEES EXCEPT
NOTE: If you do not wish your shares voted "For" a particular nominee,
mark the "Vote Withheld For All Nominees Except" box and write the name(s) of
the nominee(s) you do NOT support on the line below. Your shares will be voted
for the remaining nominee(s).
- --------------------------------------------------------------------------------
Nominees for Class I Directors to serve until the 2008 Annual Meeting:
Shlomo Eplboim Michael A. Poutre
2. Proposal to amend the Restated Certificate of Incorporation to increase
the number of authorized shares of Common Stock from 30,000,000 to 60,000,000
shares.
|_| FOR |_| AGAINST |_| ABSTAIN
3. Election of Class III Directors (please see reverse).
|_| |_| |_|
FOR THE NOMINEES LISTED WITHHELD FROM ALL VOTE WITHHELD FROM
BELOW NOMINEES LISTED BELOW ALL NOMINEES EXCEPT
NOTE: If you do not wish your shares voted "For" a particular nominee,
mark the "Vote Withheld For All Nominees Except" box and write the name(s) of
the nominee(s) you do NOT support on the line below. Your shares will be voted
for the remaining nominee(s).
- --------------------------------------------------------------------------------
Nominees for Class III Directors to serve until the 2006 Annual Meeting:
Dr. Eli E. Hendel
4. IN THE DISCRETION OF THE PROXY CARD HOLDERS with respect to any other
matter which may properly come before the 2005 Annual Meeting. BMAC Corporation
is not aware of any other matters that will be presented at the 2005 Annual
Meeting.
The shares represented by this proxy card when properly executed will be voted
in the manner instructed herein by the undersigned stockholder. If no
instructions are given, this proxy will be voted "FOR" the nominees listed
above.
IMPORTANT: Please sign your name or names exactly as they appear on these proxy
materials. When signing as attorney, executor or administrator, trustee or
guardian, please give your full title as such. If shares are held jointly, EACH
holder should sign. If a corporation, please sign in full corporate name by a
duly authorized officer. If a partnership, please sign in partnership name by an
authorized person.
WHETHER OR NOT YOU PLAN TO ATTEND THE 2005 ANNUAL MEETING, PLEASE SIGN AND
RETURN THIS PROXY CARD, WHICH MAY BE REVOKED AT ANY TIME PRIOR TO ITS USE.
- --------------------------------------- ----------------------------
Signature(s) of Stockholder(s) Date
- ---------------------------------------
Title, if any
- --------------------------------------- ----------------------------
Signature Date
- ---------------------------------------
Title, if any