Registration No. 33-_____
As filed with the Securities and Exchange Commission on March 10, 1997.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________________
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NBI, INC.
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(Exact name of registrant as specified in its charter)
Delaware 3229 84-0645110
-------- ---- ----------
(State or other juris- (Primary Standard Industrial (I.R.S. Employer
diction of incorporation Classification Code Number) Identification No.)
or organization)
1880 Industrial Circle, Suite F
Longmont, Colorado 80501
(303) 684-2700
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(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Jay H. Lustig, President
NBI, Inc.
1880 Industrial Circle, Suite F
Longmont, Colorado 80501
(303) 684-2700
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
John G. Lewis, Esq.
Ireland, Stapleton, Pryor & Pascoe, P.C.
1675 Broadway, 26th Floor
Denver, Colorado 80202
Telephone: (303) 623-2700
________________________________________
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
________________________________________
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
Title of each class of Proposed maximum offering
securities to be registered Amount to be registered price per share
=================================== ========================= =========================
Common Stock, $.01 par value
per share (by Selling Shareholders) 1,500,000 $ .875*
=================================== ========================= =========================
Title of each class of Proposed maximum Amount of
securities to be registered aggregate offering price registration fee
=================================== ========================== =================
Common Stock, $.01 par value
per share (by Selling Shareholders) $ 1,312,500* $ 397.73
=================================== ========================== =================
<FN>
_______________________________________
*Estimated solely for purposes of calculating the Registration Fee as provided in Rule 457(c), based on the average of the
high and low prices reported in the over-the-counter market on March 5, 1997.
PROSPECTUS
1,500,000 Shares
NBI, INC.
COMMON STOCK
________________________________________
All of the shares of Common Stock offered by this Prospectus are
being sold by the Selling Shareholders named under "Selling Shareholders."
The Company will not receive any proceeds from the sale of the shares offered
by this Prospectus. All expenses relating to the distribution of the Common
Stock are to be paid by the Company, other than selling commissions and fees
and expenses of counsel and other representatives of the Selling Shareholders.
SEE "CERTAIN CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD
BE CONSIDERED BY PROSPECTIVE INVESTORS.
The Common Stock is quoted in the over-the-counter market under the
symbol "NBII." On March 5, 1997, the last sale price of the Common Stock as
reported in such market was $.875 per share.
________________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTA-TION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 7, 1997.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). The reports,
proxy state-ments and other information filed by the Company with the
Commission may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and should be available at the Commission's Regional Offices
located at 7 World Trade Center, 13th Floor, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material may be obtained at prescribed rates by addressing
written requests for such copies to the Public Reference Section of the
Commission at its Washington, D.C. facility.
The Company has filed with the Commission a registration statement
on Form S-3 (such registration statement, together with all amendments and
exhibits, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"). This Prospectus does not contain all of the information
set forth in the Registration Statement. The Registration Statement may be
inspected and copied at the public reference facilities maintained by the
Commission at the address set forth in the preceding paragraph.
No person is authorized to give any information or to make any
representations other than as contained in this Prospectus in connection with
this offering and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create any implication that the information herein is correct as
of any time subsequent to the date hereof. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy by anyone
in any state in which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to
any person to whom it is unlawful to make such offer or solicitation.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents which have been filed with the Commission
pursuant to the Exchange Act are hereby incorporated by reference in this
Prospectus:
(1) the Company's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1996;
(2) all other documents filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act after June 30, 1996, and prior to the date
of this Prospectus; and
(3) the description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed under the Exchange Act.
In addition, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to
the termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing
of such documents (such documents, and the docu-ments enumerated above, being
hereinafter referred to as the "Incorporated Documents"). Any statement
contained in an Incorporated Document shall be deemed to be modified or
superseded for all purposes to the extent that a statement contained in this
Prospectus or in any other subsequently filed Incorporated Document or in an
accompanying prospectus supplement modifies or supersedes such statement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
(without exhibits) of any or all documents incorporated by reference in this
Prospectus. Written requests for such copies should be directed to the
Secretary, NBI, Inc., 1880 Industrial Circle, Suite F, Longmont, Colorado
80501. Telephone requests may be directed to (303) 684-2700.
CERTAIN CONSIDERATIONS
Before purchasing the shares offered by this Prospectus a
prospective investor should consider, among other things, the following
factors:
Need for Additional Financing. The Company has an obligation of
--------------------------------
$5,278,000, plus accrued interest, payable on October 1, 1997. In order to pay
this obligation and to meet its other obligations and ongoing capital
requirements, the Company will need to obtain additional financing. There can
be no assurance the Company will obtain such financing on commercially
reasonable terms, if at all. The failure to obtain such financing would have a
material adverse effect on the Company, its business and operations and could
jeopardize the Company's ability to continue as a going concern.
Competition and Pricing Pressures. The markets for the Company's
------------------------------------
products and services are highly competitive, including continuing pressure to
hold prices. Certain of the Company's current and prospective competitors may
have significantly greater financial, manufacturing and marketing resources
and name recognition than the Company. The Company believes that its ability
to compete depends on product design, quality and price, distribution and
quality of service. There can be no assurance that the Company will be able
to compete successfully with respect to these factors.
Loss of Significant Customers. The Company is dependent upon
--------------------------------
continuing sales to certain significant customers. The loss of any such
customer would have a material adverse effect on the Company's business,
results of operations and financial position.
Availability of Raw Materials. The Company does not have any
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long-term supply agreements with any of its suppliers. The inability of the
Company to obtain an adequate supply of raw materials on a timely basis or at
reasonable prices could have a material adverse effect upon the Company's
business, results of operations and financial position.
Labor Disputes. A majority of the Company's employees are covered by
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collective bargaining agreements which expire in 1998. The inability of the
Company to renew these agreements on a timely basis or on reasonable terms
could have a material adverse effect upon the Company's business, results of
operations and financial position.
Investment Results. As part of its investment policies, the
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Company's investment portfolio may include option instruments and may include
a concentrated position in one or more securities. As a result of this, the
Company's financial results may fluctuate significantly and have larger
fluctuations than will a more diversified portfolio. In addition, the Company
may invest in short-sale transactions of trading securities. Short-sales can
result in off-balance sheet risk, as losses can be incurred in excess of the
reported obligation if market prices or the securities subsequently increase.
Liability Insurance. The Company has liability insurance policies
--------------------
that provide coverage for liability claims arising out of the products it
sells and the services it provides. The Company has not been the subject of
any material liability claims; however, there can be no assurance that the
Company's liability insurance policies will cover any such claims, or that
such policies can be maintained at an acceptable cost. Any liability of the
Company which is not covered by such policies, or is in excess of the limits
of liability of such policies, could have a material adverse effect on the
financial condition of the Company.
Changing Economic Conditions. Demand for the Company's products and
----------------------------
services may fluctuate significantly based on numerous factors including
inflation, general economic conditions and the economic condition of the
Company's customers. There can be no assurance that the Company will not
experience a decline in demand
for its products and services due to declines in general or customer economic
conditions. Any such decline may have a material adverse effect on the
Company's business, operating results and financial condition.
Reliance on Key Personnel. The Company's operations are dependent
---------------------------
on the continued efforts of senior management. Should certain of these people
be unable to continue in their present roles, the Company's prospects could be
adversely affected.
Lack of Dividends. The Company has not paid dividends on the Common
-----------------
Stock. The Company intends to retain any earnings for the development of its
business and therefore does not anticipate that any cash dividends will be
paid on the Common Stock in the foreseeable future.
THE COMPANY
NBI, Inc. was incorporated in Colorado in 1973 and became a Delaware
corporation in 1975. The Company maintains its executive offices at 1880
Industrial Circle, Suite F, Longmont, Colorado 80501, and its telephone number
at that address is (303) 684-2700.
PURPOSE AND PROCEEDS OF THE OFFERING
The Company has registered the shares of Common Stock offered by
this Prospectus for the benefit of the Selling Shareholders. The Company will
not receive any proceeds from the sale of Common Stock offered by this
Prospectus.
SELLING SHAREHOLDERS
This prospectus relates to the resale of 1,500,000 shares of the
Company's Common Stock by the Selling Shareholders named below. All of such
shares were issued to the Selling shareholders pursuant to a private placement
in March 1996.
The shares of Common Stock offered by this Prospectus may be sold
from time to time by the Selling Shareholders, or by pledgees, donees,
transferees or other successors in interest. Such sales may be made in the
over-the-counter market, or otherwise at prices and at terms then prevailing
or at prices related to the then current market price, or in negotiated
transactions. The shares may be sold by one or more of the following: (a) a
block trade in which the broker or dealer so engaged will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer
as principal and resale by such broker or dealer for its account pursuant to
this prospectus; and (c) ordinary brokerage trans-actions and transactions in
which the broker solicits purchasers. In effecting sales, brokers or dealers
engaged by the Selling Shareholders may arrange for other brokers or dealers
to participate. Brokers or dealers will receive commissions or discounts from
the Selling Shareholders in amounts to be negotiated immediately prior to the
sale. Such brokers or dealers and any other participating brokers or dealers
may be deemed to be "underwriters" within the meaning of the Act in connection
with such sales. In addition, any securities covered by this Prospectus which
qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than
pursuant to this Prospectus.
Upon the Company being notified by any of the Selling Shareholders
that any material arrangement has been entered into with a broker-dealer for
the sale of shares through a block trade, special offering, or secondary
distribution or a purchase by a broker or dealer, a supplemental prospectus
will be filed, if required, pursuant to Rule 424(b) under the Act, disclosing
(i) the name of the participating broker-dealer(s), (ii) the number of shares
involved, (iii) the price at which such shares were sold, (iv) the commissions
paid or discounts or con-cessions allowed to such broker-dealer(s), where
applicable, (v) that such broker-dealer(s) did not conduct any investigation
to verify the information set out or incorporated by reference in this
Prospectus and (vi) other facts material to the transaction.
Number of Shares Number of shares
Owned Prior to Number of Shares Owned After
Selling Shareholder Offering Offered Offering
============================== ================ ================= ================
Hakatak Enterprises, Inc. 928,645 500,000 428,645
Harry J. and Patricia S. Brown 1,041,000 1,000,000 41,000
============================== ================ ================= ================
LEGAL MATTERS
Certain legal matters relating to this offering are being passed
upon for the Company by Ireland, Stapleton, Pryor & Pascoe, P.C., Denver,
Colorado.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of the fees
and expenses payable by the Company in connection with the issuance and
distribution of the Common Stock being registered hereby.
SEC Registration Fee $ 398*
Legal Fees and Expenses 2,100
Accounting Fees and Expenses 4,000
Printing/Miscellaneous 200
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Total $6,698
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Tenth of the Registrant's Restated Certificate of
Incorporation provides:
The directors and officers of the Corporation shall be indemnified by the
Corporation and held harmless for good faith actions to the fullest extent
allowed under the Delaware General Corporation law. The directors and
officers of the Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages except for liability: for any breach
of the duty of loyalty to the Corporation or its stockholders, for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for actions described under 174 of the Delaware
General Corporation law, or for any transaction from which the director or
officer derived any improper personal benefit.
ITEM 16. EXHIBITS.
3.1 Restated Certificate of Incorporation of the Company.
Incorporated herein by reference to the Company's Annual Report on Form 10-KSB
for the year ended June 30, 1995.
3.2 Restated Bylaws of the Company. Incorporated herein by reference
to the Company's Annual Report on Form 10-KSB for the year ended June 30,
1995.
*5.1 Opinion of Ireland, Stapleton, Pryor & Pascoe, P.C., regarding
the legality of the Common Stock being registered.
*24.1 Consent of BDO Seidman, LLP, independent certified public
accountants.
*24.2 Consent of Ireland, Stapleton, Pryor & Pascoe, P.C. (included
in the opinion filed as Exhibit 5.1).
____________________
* Filed herewith.
Item 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant (pursuant to the foregoing provisions described in
Item 15 above or otherwise), the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Longmont, State of
Colorado on March 7, 1997.
NBI, INC.
By: /s/ Jay H. Lustig
Jay H. Lustig, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933 as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Jay H. Lustig
- --------------------- Chairman of the Board March 7, 1997
Jay H. Lustig (Principal Executive Officer)
/s/Marjorie A. Cogan Corporate Controller and Secretary
- ---------------------- (Principal Financial and March 7, 1997
Marjorie A. Cogan Accounting Officer)
/s/Martin J. Noonan
- ---------------------- Director March 7, 1997
Martin J. Noonan
Exhibit 5.1
March 7, 1997
NBI, Inc.
1880 Industrial Circle, Suite F
Longmont, CO 80501
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are counsel to NBI, Inc. (the "Company") and in such capacity have examined
the Company's Registration Statement on Form S-3 (the "Registration
Statement") to be filed with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as amended,
of 1,500,000 shares of the Company's common stock (the "Shares") to be offered
by the selling shareholders named in the Registration Statement. We are
familiar with the proceedings undertaken by the Company in connection with the
authorization, issuance and sale of the shares to the selling shareholders.
Additionally, we have examined such questions of law and fact as we have
considered necessary for purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares have been duly
authorized and are validly issued, fully paid and non-assessable prior to
their resale pursuant to the Registration Statement.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
IRELAND, STAPLETON, PRYOR & PASCOE, P.C.
By: /s/Mark J. Sather
---------------------
Mark J. Sather, Vice President
Exhibit 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus,
constituting part of this Registration Statement, of our report dated August
21, 1996, except for Note 3 which is as of August 27, 1996, relating to the
Consolidated Financial Statements of NBI, Inc. appearing in the Company's
Annual Report on Form 10-KSB for the year ended June 30, 1996.
BDO Seidman, LLP
Denver, Colorado
March 7, 1997