As filed with the Securities and Exchange Commission on March 29, 2002
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XYBERNAUT CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 54-1799851
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(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
12701 FAIR LAKES CIRCLE
FAIRFAX, VIRGINIA 22033
(703) 631-6925
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(Address, including zip code, and telephone number,
Including area code, of registrant's principal executive offices)
EDWARD G. NEWMAN
12701 FAIR LAKES CIRCLE
FAIRFAX, VIRGINIA 22033
(703) 631-6925
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(Name, address, including zip code, and telephone number,
Including area code, of agent for service)
Copy to:
Martin Eric Weisberg, Esq.
Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
(212) 704-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities 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|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
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Common Stock, $.01 par value per share.... 6,320,400(2) $ 1.655(4) $ 10,460,262.00 $ 2,615.07
Common Stock, $.01 par value per share.... 1,406,250(2)(3) $ 3.00(5) $ 4,218,750.00 $ 1,054.69
Total Registration Fee.................... $ 3,669.76
(1) Represents the shares of common stock being registered for resale by the
selling stockholders and the number of shares of common stock issuable
upon exercise of warrants to purchase shares of our common stock by the
selling stockholders.
(2) Pursuant to Rule 416, the shares of common stock offered hereby also
include such presently indeterminate number of shares of common stock as
shall be issued by us to the selling stockholders upon adjustment under
anti-dilution provisions covering the additional issuance of shares by
Xybernaut resulting from stock splits, stock dividends or similar
transactions.
(3) Represents the number of shares of common stock issuable upon exercise of
warrants to purchase shares of our common stock.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (g) of the Securities Act of 1933, as amended
(the "Securities Act"); based on the average ($1.655) of the closing bid
($1.650) and asked ($1.660) price on the Nasdaq National Market on March
22, 2002.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(g) of the Securities Act, based on the higher of (a)
the exercise price of the warrants or (b) the offering price of securities
of the same class included in this registration statement.
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell nor is it seeking an offer to buy these securities in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH __, 2002
PROSPECTUS
XYBERNAUT CORPORATION
7,726,650 SHARES OF COMMON STOCK
The selling stockholders of Xybernaut Corporation listed on page 9 of this
prospectus are offering for sale up to 7,726,650 shares of common stock of
Xybernaut under this prospectus.
The selling stockholders may offer their shares through public or private
transactions, at prevailing market prices, or at privately negotiated prices.
See "Plan of Distribution".
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NASDAQ National Market Symbol: "XYBR"
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On March 22, 2002, the closing price of one share of our common stock on
the NASDAQ National Market was $1.65.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY
CONSIDER THE FACTORS DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING
ON PAGE 2 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this prospectus is March __, 2002
RISK FACTORS
BEFORE YOU BUY SHARES OF OUR COMMON STOCK, YOU SHOULD BE AWARE THAT
THERE ARE VARIOUS RISKS ASSOCIATED WITH THAT PURCHASE, INCLUDING THOSE DESCRIBED
BELOW. YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS, TOGETHER WITH ALL OF
THE OTHER INFORMATION IN THIS PROSPECTUS AND THE DOCUMENTS WE HAVE INCORPORATED
BY REFERENCE IN THE SECTION "WHERE YOU CAN FIND MORE INFORMATION ABOUT US,"
BEFORE YOU DECIDE TO PURCHASE SHARES OF OUR COMMON STOCK.
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RISKS ASSOCIATED WITH OUR HISTORY OF LOSSES AND FUTURE NEED FOR CAPITAL
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WE HAVE A HISTORY OF LOSSES AND, IF WE DO NOT ACHIEVE PROFITABILITY, WE MAY NOT
BE ABLE TO CONTINUE OUR BUSINESS IN THE FUTURE.
Our sales, marketing, research, development and general and
administrative expenses have resulted in significant losses and are expected to
continue to result in significant losses for the foreseeable future. We have
incurred the following losses since 1997:
Fiscal years ended:
o December 31, 1997 $10,051,757
o December 31, 1998 $13,001,338
o December 31, 1999 $16,697,413
o December 31, 2000 $24,185,222
o December 31, 2001 $32,199,579
WE COULD BE REQUIRED TO CUT BACK OR STOP OPERATIONS IF WE ARE UNABLE TO RAISE OR
OBTAIN NEEDED FINANCING.
The research, development, commercialization, manufacturing, sale and
marketing of our products will require financial resources which are
significantly in excess of those presently available to us. If we are not able
to arrange financing or other third party arrangements on acceptable terms, we
may be unable to fully develop and commercialize any of our products and could
be required to cut back or stop operations.
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RISKS ASSOCIATED WITH THE INDUSTRY IN WHICH WE OPERATE
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OUR FUTURE REVENUES AND ABILITY TO PRODUCE NEW PRODUCTS DEPEND SUBSTANTIALLY ON
THE SUCCESS OF THE MOBILE ASSISTANT(R) SERIES.
The Mobile Assistant series is our principal product, and our success
will depend to a large extent upon its commercial acceptance, which cannot be
assured. Additional product development will result in significant research and
development expenses that may be unrecoverable should
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commercialization of new products prove unsuccessful. We also could require
additional funding if research and development or marketing expenses are greater
than we anticipate. As with most high technology products, new models of the
Mobile Assistant series must be introduced periodically for us to remain
competitive. There can be no assurance that these new models can be successfully
developed or marketed or will be commercially accepted.
WE HAVE SIGNIFICANT COMMITMENTS TO PURCHASE INVENTORY AND SERVICES IN THE
FUTURE.
At December 31, 2001, the Company had commitments to purchase
inventory, tooling and engineering and other services from its suppliers and
manufacturers related to its current hardware product lines. The Company is
currently obligated to purchase certain components of the MA V system from IBM,
including approximately 24,000 computing units (the "MA V CPUs"). The MA V CPUs
are scheduled for purchase over a 15 month period following final acceptance by
the Company, which acceptance is determined by a number of criteria including
receipt of comprehensive product documentation and other defined deliverables.
All criteria for acceptance had not been met at the time of this filing, but the
Company expects that all criteria will likely be met in the first half of 2002.
Subsequent to acceptance, the Company may cancel its purchase commitment by
paying a cancellation fee in an amount not to exceed approximately $4,000,000
and that decreases in proportion to the number of MA V CPUs purchased over the
contract period. The Company is currently in discussions with IBM to defer a
portion of these commitments to future generations of the MA series and other
services, which would extend the timing required for the Company to meet these
commitments. However, there can be no assurance that the Company will be
successful in renegotiating this commitment. In addition to the obligation
related to the MA V CPUs, the Company has commitments to purchase computing
units, flat panel and head mounted displays, miscellaneous computing components
as well as engineering and other services from its various vendors related to
the MA V, poma(TM), MA TC and future product lines. The Company believes that
the timing and amount of many of these shipments, services and payments may be
adjusted through the payment of cancellation fees, contract negotiations or the
satisfaction of obligations through the issuance of the Company's equity
securities. However, there can be no assurance that the Company can successfully
modify these contracts or commitments.
Excluding the potential impact of contract modifications, the Company
estimates that it will make payments of $10,000,000 during 2002 related to
inventory commitments for the current product lines under which the Company was
obligated as of December 31, 2001. The Company estimates that it will make
additional payments totaling $7,000,000 during 2002 and $26,000,000 during 2003
related to inventory commitments for the current product lines under which the
Company anticipates it will obligate itself in order to execute its business
plan for 2002 and otherwise complete its current commitments. Included in the
2003 amount is the final purchase of the MA V CPUs. The Company expects that it
will enter into similar inventory and engineering commitments in the future as
it designs, develops and procures future wearable computer product lines.
WE MAY HAVE TO LOWER PRICES OR SPEND MORE MONEY TO EFFECTIVELY COMPETE AGAINST
COMPANIES WITH GREATER RESOURCES THAN US, WHICH COULD RESULT IN LOWER REVENUES
AND/OR PROFITS.
The success of our products in the marketplace depends on many factors,
including product performance, price, ease of use, support of industry
standards, competing technologies and customer support and service. Given these
factors we cannot assure you that we will be able to compete successfully. For
example, if our competitors offer lower prices, we could be forced to lower
prices which could result in reduced or negative margins and a decrease in
revenues. If we do not lower prices we could lose sales and market share. In
either case, if we are unable to compete against our
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main competitors which include established companies like Computing
Devices International, a division of Ceridian Corporation, ViA Inc., Texas
Microsystems, Telxon, Symbol, Norand, Raytheon, Panasonic and others, we would
not be able to generate sufficient revenues to grow our company or reverse our
history of losses. In 2001, we recorded a charge of $885,019 to reflect our
estimate of losses to be incurred on shipments of the initial production run of
the poma product line. We expect to sell the limited first production run of the
poma systems at prices that are less than their initial production costs to
position the poma systems in the price-sensitive light commercial and
near-consumer markets.
In addition, we may have to spend more money to effectively compete for
market share, including funds to expand our infrastructure, which is a capital
and time intensive process. Further, if other companies choose to aggressively
compete against us, we may have to reduce our prices and spend more money on
advertising, promotion, trade shows, product development, marketing and overhead
expenses, hiring and retaining personnel, and developing new technologies. These
lower prices and higher expenses would adversely affect our net income.
CURRENCY FLUCTUATIONS, ESPECIALLY IN THE JAPANESE YEN AND EUROPEAN EURO, MAY
SIGNIFICANTLY INCREASE OUR EXPENSES AND AFFECT OUR RESULTS OF OPERATIONS.
The exchange rates for some local currencies in countries where we
operate may fluctuate in relation to the U.S. dollar. Such fluctuations may have
an adverse effect on our competitive position as well as our expenses, revenues,
earnings, assets or liabilities when local currencies are translated into U.S.
dollars. We have significant operations in Asia, in particular Japan, and
Europe, in particular Germany. Also, we are party to supplier arrangements with
several companies in Japan and Europe for the production of the Mobile Assistant
series and the poma. Our foreign operations, including payments to our
suppliers, are typically funded in the local currencies. Any changes in the
value of the U.S. dollar against these currencies could result in an increase in
our reported expenses or inventory costs or a decrease in our reported revenues
which, if substantial, could have a material adverse effect on our financial
condition and results of operations.
IF OUR SALES AND RECEIVABLES CONTINUE TO BE CONCENTRATED AMONG A SMALL NUMBER OF
OUR CUSTOMERS, THE LOSS OF A CUSTOMER, A SUBSTANTIAL DECREASE OF SALES TO ONE OF
OUR CUSTOMERS OR A CUSTOMER'S INABILITY TO PAY AMOUNTS OWED TO US MAY HAVE A
MATERIAL ADVERSE EFFECT ON OUR SALES, OPERATING RESULTS AND CASH FLOWS
A significant percentage of our sales has been concentrated among a
relatively small number of customers. For the fiscal year ended December 31,
2001, we had two (2) customers which each comprised more than 10% of our total
revenues, representing an aggregate of 30% of total revenues. Additionally, at
December 31, 2001, we had three (3) customers which each comprised more than 10%
of our accounts receivable, representing an aggregate of 56% of total accounts
receivable. There can be no assurance that this concentration of sales and
receivables among customers will not continue in the future. The loss of a
significant customer or a substantial decrease in sales to such a customer would
have a material adverse effect on our sales and operating results. Our
arrangements with certain of our customers, especially those related to the sale
of our wearable computer hardware products, are based on the receipt of purchase
orders and otherwise are not subject to long-term written contracts and
generally may be terminated upon short notice. In addition, these and other
customers may demand price concessions from us that could adversely affect
profit margins. Also, our cash flows may be adversely affected if a customer is
unable or unwilling to repay amounts owed to us.
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RISK ASSOCIATED WITH
OUR INTERNAL OPERATIONS AND POLICIES
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SINCE WE DO NOT INTEND TO DECLARE DIVIDENDS IN THE FORESEEABLE FUTURE, THE
RETURN ON YOUR INVESTMENT WILL DEPEND UPON APPRECIATION OF THE MARKET PRICE OF
YOUR SHARES.
We have never paid any dividends on our common stock. Our board of
directors does not intend to declare any dividends in the foreseeable future,
but intends to retain all earnings, if any, for use in our business operations.
As a result, the return on your investment in us will depend upon any
appreciation in the market price of our common stock. The holders of common
stock are entitled to receive dividends when, as and if declared by the board of
directors out of funds legally available for dividend payments. The payment of
dividends, if any, in the future is within the discretion of our board of
directors and will depend upon our earnings, capital requirements and financial
condition, and other relevant factors.
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RISKS WHICH MAY DILUTE THE VALUE OF YOUR XYBERNAUT
SHARES OR LIMIT THE EFFECT OF THEIR VOTING POWER
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THE PRICE OF OUR COMMON STOCK IS HIGHLY VOLATILE.
The price of our common stock is highly volatile. During the period
from January 1, 2000 to March 22, 2002 the price of our common stock has ranged
from a high of $29.97 to a low of $1.16. Following periods of volatility in the
market price of a company's securities, securities class action litigation has
often been instituted against such a company. If similar litigation were
instituted against us, it could result in substantial costs and a diversion of
our management's attention and resources, which could have an adverse effect on
our business. The volatile fluctuations of the market price are based on (1) the
number of shares in the market at the time as well as the number of shares we
may be required to issue in the future, compared to the market demand for our
shares; (2) our performance and meeting expectations of our performance,
including the development and commercialization of our products and proposed
products; (3) market conditions for technology companies in the small
capitalization sector; and (4) general economic and market conditions.
OUR EXECUTIVE OFFICERS, DIRECTORS AND PRINCIPAL STOCKHOLDERS, TOGETHER, MAY
EXERCISE CONTROL OVER ALL MATTERS SUBMITTED TO A VOTE OF STOCKHOLDERS.
As of January 24, 2002, our executive officers, directors and principal
stockholders beneficially owned, in the aggregate, approximately 11.4% of our
outstanding shares of common stock. These stockholders, if acting together, may
be able to effectively control most matters requiring approval by our
stockholders. The voting power of these stockholders under certain circumstances
could have the effect of delaying or preventing a change in control of
Xybernaut.
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WE HAVE 14,527,443 SHARES OF OUR COMMON STOCK RESERVED FOR FUTURE ISSUANCES
WHICH CAN SUBSTANTIALLY DILUTE THE VALUE OF YOUR XYBERNAUT COMMON STOCK.
The issuance of reserved shares would dilute the equity interest of
existing stockholders and could have a significant adverse effect on the market
price of our common stock. As of March 22, 2002, we had 14,527,443 shares of
common stock reserved for possible future issuances upon conversion of options
and warrants. These options and warrants are convertible into or exercisable for
shares of common stock at prices that may represent discounts from future market
prices of the common stock. The exercise of these options or warrants could
result in substantial dilution to existing holders of common stock. The sale of
the common stock acquired at a discount could have a negative impact on the
trading price of the common stock and could increase the volatility in the
trading price of the common stock. See the section entitled "Dilution" for a
summary of the number of shares which could be issued upon conversion of the
outstanding preferred stock at various market prices.
In addition, we may seek additional financing which may result in the
issuance of additional shares of our capital stock and/or rights to acquire
additional shares of our capital stock. Those additional issuances of capital
would result in a reduction of your percentage interest in Xybernaut.
ANTI-TAKEOVER MEASURES IN OUR CERTIFICATE OF INCORPORATION COULD ADVERSELY
AFFECT THE VOTING POWER OF THE HOLDERS OF THE COMMON STOCK.
Our certificate of incorporation authorizes anti-takeover measures such
as the authority to issue "blank check" preferred stock and the staggered terms
of the members of our board of directors. Those measures could have the effect
of delaying, deterring or preventing a change in control without any action by
our stockholders. In addition, issuance of preferred stock, without stockholder
approval, on those terms as the board of directors may determine, could
adversely affect the voting power of the holders of the common stock, including
the loss of voting control to others.
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements which
involve substantial risks and uncertainties. These forward-looking statements
can generally be identified because the context of the statement includes words
such as "may," "will," "except," "anticipate," "intend," "estimate," "continue,"
"believe," or other similar words. Similarly, statements that describe our
future plans, objectives and goals are also forward-looking statements. Our
factual results, performance or achievements could differ materially from those
expressed or implied in these forward-looking statements as a result of certain
factors, including those listed in "Risk Factors" and elsewhere in this
prospectus.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document we file at the SEC's public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public over the Internet at the SEC's Website
at "http://www.sec.gov."
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We have filed with the SEC a registration statement on Form S-3 to
register the shares being offered. This prospectus is part of that registration
statement and, as permitted by the SEC's rules, does not contain all the
information included in the registration statement. For further information with
respect to us and our common stock, you should refer to the registration
statement and to the exhibits and schedules filed as part of the registration
statement, as well as the documents discussed below.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update or supersede this information.
This prospectus may contain summaries of contracts or other documents.
Because they are summaries, they will not contain all of the information that
may be important to you. If you would like complete information about a contract
or other document, you should read the copy filed as an exhibit to the
registration statement or incorporated in the registration statement by
reference.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 (File No. 0-19041) until all of the shares
are sold:
o Annual Report on Form 10-K, for the fiscal year ended December
31, 2001; and
o The description of our common stock contained in the registration
statement on Form 8-A filed on July 15, 1996 under the Exchange
Act (File No. 0-15086), including all amendments or reports filed
for the purpose of updating that description.
You may request a copy of these filings, at no cost, by writing to us
at 12701 Fair Lakes Circle, Suite 550, Fairfax, Virginia 22033, (703) 631-6925,
Attention: John F. Moynahan or by e-mail at investorrelations@xybernaut.com.
You can review and copy the registration statement, its exhibits and
schedules, as well as the documents listed below, at the public reference
facilities maintained by the SEC as described above. The registration statement,
including its exhibits and schedules, are also available on the SEC's web site.
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USE OF PROCEEDS
The selling stockholders are selling all of the shares covered by this
prospectus for their own accounts. Accordingly, we will not receive any proceeds
from the resale of the shares.
We will receive proceeds, if any, from the exercise of warrants. We
will use those proceeds, if any, for working capital and general corporate
purposes.
We will bear the expenses relating to this registration, other than
discounts and commissions, which will be paid by the selling stockholders.
DILUTION
As of March 22, 2002 we had issued and outstanding 65,851,013 shares of
common stock. At that date, there were an additional 14,527,443 shares of common
stock reserved for possible future issuances as follows:
o options to purchase 7,132,283 shares at an exercise price between
$1.21 and $23.38 per share. We have registered the shares
issuable upon exercise of the options under the Securities Act;
o warrants to purchase 6,949,064 shares at a price between $2.00
and $18.00 per share. Of the 6,949,064 shares, we have previously
registered a total of 5,175,314 shares issuable upon exercise of
these warrants. This prospectus covers an additional 1,406,250
shares of common stock issuable upon exercise of warrants, which
shares will be freely tradable without restriction (subject to
prospectus delivery requirements) on the effective date of the
registration statement. The remaining 367,500 shares will be
deemed to be "restricted securities" when issued; and
o 446,096 shares issuable upon exercise of options under the
Company's stock incentive plans which have not been granted as of
March 22, 2002. We have registered the shares issuable upon
exercise of the options.
The shares which will be deemed "restricted securities" may be sold
under Rule 144. Rule 144 permits sales of "restricted securities" by any person,
whether or not an affiliate of the issuer, after a one year holding period. At
that time, sales can be made subject to the Rule's volume and other limitations
and after two years by non-affiliates without adhering to Rule 144's volume or
other limitations. In general, an "affiliate" is a person with the power to
manage and direct our policies. The SEC has stated that, generally, executive
officers and directors of an entity are deemed affiliates of the issuing entity.
-8-
SELLING STOCKHOLDERS
This prospectus covers the resale by the selling stockholders of up to
7,726,650 shares of our common stock.
The natural persons holding voting and/or dispositive control over the
shares that Yeshuah Investments Limited will sell are Desmond R. Reoch, Peter I.
Montegriffo, Lesley A. Nuttall, Brenda B. Avellano, Nadine M. Collado, Maymond
Fa, Vanessa Fa, Ivan C. Israel, Susan Gager, Julie Crockett and Sarah Watts,
authorized officers of Cheam Directors Limited, its Director. The address of
Yeshuah Investments Limited is 56/63 Line Wall Road, P.O. Box 199, Gibraltar.
The natural person holding voting and/or dispositive control over the
shares that Alpha Capital Aktiengesellschaft will sell is Conrad Acherman. The
address of Alpha Capital Aktiengesellschaft is Pradafant 7, Furstentums - 9790,
Veduz, Liechtenstein.
The natural person holding voting and/or dispositive control over the
shares that Cranshire Capital L.P. will sell is Mitchell P. Kopin, President of
Downsview Capital, Inc., its General Partner. The address of Cranshire Capital,
L.P. is 666 Dundee Rd., Ste. 1901, Northbrook, Illinois 60062.
The natural person holding voting and/or dispositive control over the
shares that IBS Technologies LLC will sell is Ben Cohen. The address of IBS
Technologies LLC is 301 Park Avenue, New York, New York 10022.
The natural person holding voting and/or disopostive control over the
shares that Zykronix, Inc. will sell is David M. Ghaemi. The address of
Zykronix, Inc. is 357 Inverness Dr. S., Suite C, Englewood, Colorado 80112.
The following table lists the selling stockholders and certain
information regarding the ownership by such selling stockholders of shares of
our common stock as of March 22, 2002, and as adjusted to reflect the sale of
the shares. Information concerning the selling stockholders, their pledgees,
donees and other non-sale transferees who may become selling stockholders may
change from time to time. To the extent the selling stockholders or any of their
representatives advise us of such changes, we will report those changes in a
prospectus supplement to the extent required. See "Plan of Distribution."
The registration of the following shares through this registration
statement allows the selling stockholders to sell their share holdings in the
future on the open market and is not necessarily an indication of intent to sell
the shares.
Percentage Shares of Common
of Common Stock Owned
Shares of Common Stock Owned Shares of after Offering(1)(2)
Stock Owned Prior Prior to the Common Stock ------------------------
to Offering Offering to be Sold(1) Number Percent
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Yeshuah Investments Limited 3,125,000 4.7 3,125,000(3) 0 0
Alpha Capital Aktiengesellschaft 2,343,750 3.5 2,343,750(4) 0 0
Cranshire Capital L.P. 2,910,012 4.3 1,562,500(5) 1,347,512 2.0
IBS Technologies LLC 400,000 * 400,000 0 0
Zykronix, Inc. 295,400 * 295,400 0 0
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* Less than 1%
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(1) Assumes that the selling stockholders will exercise all of their warrants
into shares of common stock.
(2) Assumes all of the securities offered hereby will be sold by the selling
stockholders.
(3) Includes 625,000 shares of common stock issuable upon exercise of
warrants.
(4) Includes 468,750 shares of common stock issuable upon exercise of
warrants.
(5) Includes 312,500 shares of common stock issuable upon exercise of
warrants.
The common stock has the material rights and obligations discussed
below and under the section entitled "Description of Securities." We have filed
the agreements relating to these rights and obligations with the SEC. We urge
you to read them in their entirety.
Yeshuah Investments Limited acquired its shares of common stock in a
private placement transaction entered into on March 13, 2002. Under the terms of
the common stock and warrant purchase agreement between Yeshuah Investments
Limited and us, we agreed to sell 2,500,000 shares of our common stock at a
price of $1.60 per share, representing an approximate 20% discount to the
closing bid price of our common stock for the ten trading days immediately prior
to the closing, for gross proceeds of $4,000,000. We also issued warrants to
purchase shares of our common stock at $3.00 per share. The warrants are
exercisable for a period of 5 years from the date of issuance. We may call up to
100% of the warrants if our common stock trades at a price equal to or greater
than $4.00 per share for 5 consecutive trading days prior to the date that we
call the warrants. In connection with our sale of common stock pursuant to the
common stock and warrant purchase agreement, we entered into a registration
rights agreement pursuant to which, among other things, we agreed to use our
best efforts to file a registration statement to register for resale the shares
of common stock, including the shares of common stock issuable upon exercise of
the warrants, no later than 60 days after the closing date and cause such
registration statement to become effective as promptly as practicable after
filing but no later than 90 days after the closing date.
Alpha Capital Aktiengesellschaft acquired its shares of common stock in
a private placement transaction entered into on March 13, 2002. Under the terms
of the common stock and warrant purchase agreement between Alpha Capital
Aktiengesellschaft and us, we agreed to sell an aggregate of 1,875,000 shares of
our common stock at a price of $1.60 per share, representing an approximate 20%
discount to the closing bid price of our common stock for the 10 trading days
immediately prior to the closing, for gross proceeds of $3,000,000. We also
issued warrants to purchase shares of our common stock at $3.00 per share. The
warrants are exercisable for a period of 4 years from the date of issuance. We
may call up to 100% of the warrants if the volume weighted average price of our
common stock using the Bloomberg Volume Weighted Average Price (VWAP) function
is equal to or greater than $3.50 per share for ten consecutive trading days
prior to the date we call the warrants.
-10-
In connection with our sale of common stock pursuant to the common stock and
warrant purchase agreement, we entered into a registration rights agreement
pursuant to which, among other things, we agreed to use our best efforts to file
a registration statement to register for resale the shares of common stock,
including the shares of common stock issuable upon exercise of the warrants,
within 60 days after the closing date and have such registration statement
declared effective as promptly as practicable after filing but no later than 120
days after the closing date. If the registration statement is not declared
effective within such 120-day period, we agreed to pay to each of the holders
liquidated damages in an amount equal to 2% of the purchase price paid by that
holder for the shares of common stock purchased pursuant to the common stock and
warrant purchase agreement for each 30-day period after the end of such 120-day
period until the registration statement is declared effective. Payment of the
liquidated damages will be either in cash or in shares of common stock at the
option of the holder. Under the registration rights agreement, the shares of
common stock cannot be sold or otherwise transferred for a period of 100 days
from the closing date.
Cranshire Capital L.P. acquired its shares of common stock in a private
placement transaction entered into on March 13, 2002. Under the terms of the
common stock and warrant purchase agreement between Cranshire Capital, L.P. and
us, we agreed to sell an aggregate of 1,250,000 shares of our common stock at a
price of $1.60 per share, representing an approximate 20% discount to the
closing bid price of our common stock for the 10 trading days immediately prior
to the closing, for gross proceeds of $2,000,000. We also issued warrants to
purchase shares of our common stock at $3.00 per share. The warrants are
exercisable for a period of 4 years from the date of issuance. We may call up to
100% of the warrants if the volume weighted average price of our common stock
(using the Bloomberg VWAP function) is equal to or greater than $3.50 per share
for ten consecutive trading days prior to the date we call the warrants. In
connection with our sale of common stock pursuant to the common stock and
warrant purchase agreement, we entered into a registration rights agreement
pursuant to which, among other things, we agreed to use our best efforts to file
a registration statement to register for resale the shares of common stock,
including the shares of common stock issuable upon exercise of the warrants,
within 60 days after the closing date and have such registration statement
declared effective as promptly as practicable after filing but no later than 120
days after the closing date. If the registration statement is not declared
effective within such 120-day period, we agreed to pay to each of the holders
liquidated damages in an amount equal to 2% of the purchase price paid by that
holder for the shares of common stock purchased pursuant to the common stock and
warrant purchase agreement for each 30-day period after the end of such 120-day
period until the registration statement is declared effective. Payment of the
liquidated damages will be either in cash or in shares of common stock at the
option of the holder. Under the registration rights agreement, the shares of
common stock cannot be sold or otherwise transferred for a period of 100 days
from the closing date.
IBS Technologies LLC provides certain marketing services, including
allocation of leased showroom space for the display of our products and
solutions, to us. Under the terms of the agreement between IBS Technologies and
us dated as of January 1, 2002, we agreed to issue 400,000 shares of our common
stock as partial consideration for services provided to us from IBS
Technologies. The agreement provides that we will file a registration statement
to register the shares of common stock and use our best efforts to cause such
registration statement to be effective. IBS Technologies can sell up to 50% of
any registered shares during the first six months following the effectiveness of
the registration statement.
-11-
Zykronix, Inc. is a vendor that provides certain product flat panel
display products to us under a master product and design agreement dated as of
April 12, 2001. Under the terms of an agreement for payment of account between
Zykronix and us dated March 20, 2002, we agreed to issue 295,400 shares of our
common stock to Zykronix as partial compensation for delivery of certain
products to us at specified time periods. The shares of common stock were issued
at $1.51 per share, representing a 10% discount to the closing market price of
our common stock on March 19, 2002. The agreement provides that we will use our
reasonable best efforts to include the shares of common stock in a registration
statement filed by us and cause such registration statement to be declared
effective. Zykronix can only sell the shares to the extent that it has delivered
and performed products and services in accordance with the agreement for payment
of account and the terms, provisions and conditions of the master product and
design agreement.
The warrants have adjustment provisions for standard dilution events
including stock splits, stock dividends and similar transactions.
Other than as indicated above and as investors in private placements
and other financings for our common stock, the selling stockholders are not
affiliated with us and have not had any material relationship with us during the
past three years.
-12-
DESCRIPTION OF SECURITIES
GENERAL
Our authorized capital stock consists of 200,000,000 shares of common
stock, par value $0.01 per share, and 6,000,000 shares of preferred stock, par
value $0.01 per share. As of March 22, 2002, we have 65,851,013 shares of common
stock issued and outstanding. We have reserved 14,527,443 shares of common stock
for issuance upon exercise of options and warrants.
COMMON STOCK
Voting
The holders of our common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders. Our
certificate of incorporation and by-laws do not provide for cumulative voting
rights in the election of directors. Accordingly, holders of a majority of the
shares of common stock entitled to vote in any election of directors may elect
all of the directors standing for election.
Dividends
Holders of common stock are entitled to receive ratably those dividends
as may be declared by our board of directors out of funds legally available for
that purpose.
Rights on Liquidation
In the event of our liquidation, dissolution or winding up, holders of
common stock are entitled to share ratably in the assets remaining after payment
of liabilities.
Pre-emptive or Redemption Rights
Holders of common stock have no preemptive, conversion or redemption
rights. All of the outstanding shares of common stock are fully-paid and
nonassessable.
PREFERRED STOCK
Our board of directors has the authority to issue up to 6,000,000
shares of preferred stock from time to time in one or more series. Our board has
the authority to establish the number of shares to be included in each series,
and to fix the designations, powers, preferences and rights of the shares of
each series and the applicable qualifications, limitations or restrictions. The
issuance of preferred stock may have the effect of delaying or preventing a
change in control. The issuance of preferred stock could decrease the amount of
earnings and assets available for distribution to the holders of common stock,
if any, or could adversely affect the rights and powers, including voting
rights, of the holders of the common stock. In certain circumstances, the
issuances could have the effect of decreasing the market price of the common
stock.
As of the date of this prospectus, we have not designated any shares of
preferred stock other than the series A, B, C, D and E preferred stock, all of
which have been fully converted into common stock.
-13-
ANTI-TAKEOVER CONSIDERATIONS
Our certificate of incorporation authorizes the issuance of up to
6,000,000 shares of $0.01 par value preferred stock. The issuance of preferred
stock with such rights could have the effect of limiting stockholder
participation in certain transactions such as mergers or tender offers and could
discourage or prevent a change in our management. We have no present intention
to issue any additional preferred stock.
We have a classified or staggered board of directors which limits an
outsider's ability to effect a rapid change of control of our board. In
addition, at the 1998 Annual Meeting of Stockholders held on September 24, 1998,
our stockholders approved measures to amend our certificate of incorporation and
by-laws, where applicable, to:
o implement an advance notice procedure for the submission of
director nominations and other business to be considered at
annual meetings of stockholders;
o permit only the President, the Vice Chairman of our board, the
Secretary or our board of directors to call special meetings of
stockholders and to limit the business permitted to be conducted
at such meetings to be brought before the meetings by or at the
direction of our board;
o provide that a member of our board of directors may only be
removed for cause by an affirmative vote of holders of at least
66 2/3% of the voting power of the then outstanding shares
entitled to vote generally in the election of directors voting
together as a single class;
o fix the size of our board of directors at a maximum of twelve
directors, with the authorized number of directors set at ten,
and our board of directors having the sole power and authority to
increase or decrease the number of directors acting by an
affirmative vote of at least a majority of the total number of
authorized directors most recently fixed by our board of
directors;
o provide that any vacancy on the board may be filled for the
unexpired term (or for a new term in the case of an increase in
the size of the board) only by an affirmative vote of at least a
majority of the remaining directors then in office even if less
than a quorum, or by the sole remaining director;
o eliminate stockholder action by written consent;
o require the approval of holders of 80% of the then outstanding
voting stock and/or the approval of 66 2/3% of the directors for
certain corporate transactions; and
o require an affirmative vote of 66 2/3% of the voting stock in
order to amend or repeal any adopted amendments to the
certificate of incorporation and bylaws adopted at the meeting.
Those measures combined with the ability of our board of directors to
issue "blank check" preferred stock and the staggered terms of the members of
our board of directors, could have the effect of delaying, deterring or
preventing a change in control without any further action by the stockholders.
In addition, the issuance of preferred stock, without stockholder approval, on
such
-14-
terms as our board may determine, could adversely affect the voting power
of the holders of the common stock, including the loss of voting control to
others.
TRANSFER AGENT AND REGISTRAR
Continental Stock Transfer & Trust Company is our Transfer Agent and
Registrar for our common stock.
PLAN OF DISTRIBUTION
The selling stockholders and their pledgees, donees, transferees and
other subsequent owners, may offer their shares at various times in one or more
of the following transactions:
o on any U.S. securities exchange on which our common stock may be
listed at the time of sale
o in the over-the-counter market
o in privately negotiated transactions
o in connection with short sales; or
o in a combination of any of the above transactions.
The selling stockholders may offer their shares of common stock at
prevailing market prices at the time of sale, at prices related to those
prevailing market prices, at negotiated prices or at fixed prices.
The selling stockholders may also sell the shares under Rule 144
instead of under this prospectus, if Rule 144 is available for those sales.
The transactions in the shares covered by this prospectus may be
effected by one or more of the following methods:
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
o purchases by a broker or dealer as principal, and the resale by
that broker or dealer for its account under this prospectus,
including resale to another broker or dealer;
o block trades in which the broker or dealer will attempt to sell
the shares as agent but may position and resell a portion of the
block as principal in order to facilitate the transaction; or
o negotiated transactions between the selling stockholders and
purchasers without a broker or dealer.
The selling stockholders and any broker-dealers or other persons acting
on the behalf of parties that participate in the distribution of the shares may
be deemed to be underwriters. Any commissions or profits they receive on the
resale of the shares may be deemed to be underwriting discounts and commissions
under the Securities Act.
As of the date of this prospectus, we are not aware of any agreement,
arrangement or understanding between any broker or dealer and the selling
stockholders with respect to the offer or sale of the shares under this
prospectus.
-15-
We have advised the selling stockholders that during the time they are
engaged in distributing shares covered by this prospectus, they must comply with
the requirements of the Securities Act and Rule 10b-5 and Regulation M under the
Exchange Act. Under those rules and regulations, they:
o may not engage in any stabilization activity in connection with
our securities;
o must furnish each broker which offers common stock covered by
this prospectus with the number of copies of this prospectus
which are required by each broker; and
o may not bid for or purchase any of our securities or attempt to
induce any person to purchase any of our securities other than as
permitted under the Exchange Act.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 145 of the Delaware General Corporation Law allows a company to
indemnify its directors and officers against expenses, judgments, fines and
amounts paid in settlement under the conditions and limitations described in the
law. Our certificate of incorporation authorizes us to indemnify our officers,
directors and other agents to the fullest extent permitted under Delaware law.
Our certificate of incorporation provides that a director is not
personally liable for monetary damages to us or our stockholders for breach of
his or her fiduciary duties as a director. A director will be held liable for a
breach of his or her duty of loyalty to us or our stockholders, his or her
intentional misconduct or willful violation of law, actions or inactions not in
good faith, an unlawful stock purchase or payment of a dividend under Delaware
law, or transactions from which the director derives an improper personal
benefit. This limitation of liability does not affect the availability of
equitable remedies against the director including injunctive relief or
rescission.
We have purchased a directors and officers liability and reimbursement
insurance policy that covers liabilities of our directors and officers arising
out of claims based upon acts or omissions in their capacities as directors and
officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
Jenkens & Gilchrist Parker Chapin LLP, New York, New York, a stockholder
of our company, will pass upon the validity of the securities offered hereby.
Martin Eric Weisberg, Esq., a member of the firm, is our Secretary, one of our
Directors, and a stockholder in our company.
-16-
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 2001, have been
so incorporated in reliance on the report of Grant Thornton LLP, independent
certified public accountants, given on the authority of said firm as experts in
auditing and accounting.
-17-
====================================================== ======================================================
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY
OTHER PERSON TO GIVE ANY INFORMATION OR TO REPRESENT
ANYTHING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS
IN CONNECTION WITH THE OFFER CONTAINED HEREIN, AND, IF
GIVEN OR MADE, YOU SHOULD NOT RELY UPON SUCH
INFORMATION OR REPRESENTATIONS AS HAVING BEEN
AUTHORIZED BY XYBERNAUT CORPORATION. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER
THAN THOSE TO WHICH IT RELATES OR AN OFFER TO SELL, OR 7,726,650
A SOLICITATION OF AN OFFER TO BUY, THOSE TO WHICH IT
RELATES IN ANY STATE TO ANY PERSON TO WHOM IT IS NOT SHARES OF COMMON STOCK
LAWFUL TO MAKE SUCH OFFER IN SUCH STATE. THE DELIVERY
OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME AFTER THE
DATE OF THIS PROSPECTUS.
XYBERNAUT CORPORATION
TABLE OF CONTENTS
Page
Risk Factors.........................................2
Information Regarding Forward-Looking
Statements ..................................6
Where You Can Find More
Information About Us.........................6
Use of Proceeds......................................8
Dilution.............................................8
Selling Stockholders ................................9
Description of Securities...........................13
Plan of Distribution ...............................15
Indemnification for Securities
Act Liabilities.............................16 ____________
Legal Matters.......................................16
Experts ............................................17 PROSPECTUS
------------
_________________________, 2002
====================================================== ======================================================
-18-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which will
be paid by us in connection with the issuance and distribution of the
securities being registered on this registration statement. The selling
stockholders will not incur any of the expenses set forth below. All
amounts shown are estimates.
Filing fee for registration statement.........$ 3,669.76
Legal fees and expenses $ 10,000.00
Accounting expenses...........................$ 5,000.00
--------
Total.........................................$ 18,669.76
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in general, that a corporation
incorporated under the laws of the State of Delaware, such as the
registrant, may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than a derivative action by or in the
right of the corporation) by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware
corporation may indemnify any such person against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification will be made in respect of
any claim, issue or matter as to which such person will have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery of the State of Delaware or any other court
in which such action was brought determines such person is fairly and
reasonably entitled to indemnity for such expenses.
Our certificate of incorporation provides that directors will not be
personally liable for monetary damages to us or our stockholders for breach of
fiduciary duty as a director, except for liability resulting from a breach of
the director's duty of loyalty to us or our stockholders, intentional misconduct
or willful violation of law, actions or inactions not in good faith, an unlawful
stock purchase or payment of a dividend under Delaware law, or transactions from
which the director derives improper personal benefit. Such limitation of
liability does not affect the availability of
equitable remedies such as injunctive relief or rescission. Our certificate of
incorporation also authorizes us to indemnify our officers, directors and other
agents, by bylaws, agreements or otherwise, to the fullest extent permitted
under Delaware law. We have entered into an indemnification agreement with each
of our directors and officers which may, in some cases, be broader than the
specific indemnification provisions contained in our certificate of
incorporation or as otherwise permitted under Delaware law. Each indemnification
agreement may require us, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as a director or officer, against liabilities arising from willful
misconduct of a culpable nature, and to obtain directors' and officers'
liability insurance if available on reasonable terms.
We maintain directors and officers liability policies that contain
a combined limit of liability of $15,000,000 per policy year.
ITEM 16. EXHIBITS.
NUMBER DESCRIPTION OF EXHIBIT
4.1 Form of Warrant issued to Yeshuah Investments Limited
4.2 Form of Common Stock and Warrant Purchase Agreement, dated as of March
13, 2002, between Yeshuah Investments Limited and Xybernaut Corporation
4.3 Form of Registration Rights Agreement, dated as of March 13, 2002,
between Yeshuah Investments Limited and Xybernaut Corporation
4.4 Form of Warrant issued to Alpha Capital Aktiengesellschaft.
4.5 Form of Common Stock and Warrant Purchase Agreement, dated as of March
13, 2002, between Xybernaut Corporation and Alpha Capital
Aktiengesellschaft.
4.6 Form of Registration Rights Agreement, dated as of March 13, 2002,
between Xybernaut Corporation and Alpha Capital Aktiengesellschaft.
4.7 Form of Warrant issued to Cranshire Capital, L.P.
4.8 Form of Common Stock and Warrant Purchase Agreement, dated as of March
13, 2002, between Xybernaut Corporation and Cranshire Capital, L.P.
4.9 Form of Registration Rights Agreement, dated as of March 13, 2002,
between Xybernaut Corporation and Cranshire Capital, L.P.
4.10 Form of Letter Agreement, dated as of January 1, 2002, between IBS
Technologies LLC and Xybernaut Corporation
4.11 Form of Agreement for Payment of Account, dated March 20, 2002, between
Zykronix, Inc. and Xybernaut Corporation
5.1 Opinion of Jenkens & Gilchrist Parker Chapin LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Jenkens & Gilchrist Parker Chapin LLP (included in their
opinion filed as Exhibit 5.1)
II-2
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;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) 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 will be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time will 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.
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, 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
Securities 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 Securities Act and will be governed by the final adjudication
of the issue.
II-3
The undersigned registrant hereby undertakes 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Fairfax, Commonwealth of Virginia on March 27, 2002.
XYBERNAUT CORPORATION
By: /s/ Edward G. Newman
--------------------------------------
Edward G. Newman
President, Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes Edward G. Newman and Steven A. Newman, each acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Form S-3 and to
file the same with exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or is substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities indicated on March 27, 2002.
SIGNATURE TITLE
/s/ Edward G. Newman President, Chief Executive Officer and
- ------------------------------ Chairman of the Board of Directors
Edward G. Newman
/s/ Steven A. Newman, M.D Executive Vice President and Vice Chairman
- ------------------------------ of the Board of Directors
Steven A. Newman, M.D.
II-5
/s/ John F. Moynaham Senior Vice President, Chief Financial
- ------------------------------ Officer and Treasurer
John F. Moynahan
/s/ Kazuyuki Toyosato Executive Vice President and Director
- ------------------------------
Kazuyuki Toyosato
/s/ Dr. Edwin Vogt Senior Vice President and Director
- ------------------------------
Dr. Edwin Vogt
/s/ Eugene J. Amobi Vice-President and Director
- ------------------------------
Eugene J. Amobi
/s/ Martin Eric Weisberg, Esq. Secretary and Director
- ------------------------------
Martin Eric Weisberg, Esq.
/s/ Keith P. Hicks Director
- ------------------------------
Keith P. Hicks
/s/ Phillip E. Pearce Director
- ------------------------------
Phillip E. Pearce
/s/ James J. Ralabate Director
- ------------------------------
James J. Ralabate
/s/ Lt. Gen. Harry E. Soyster Director
- ------------------------------
Lt. Gen. Harry E. Soyster
II-6
SECURITIES AND
EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
-------------
EXHIBITS TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
XYBERNAUT CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED
IN ITS CHARTER)
MARCH 29, 2002
E-1
NUMBER DESCRIPTION OF EXHIBIT
4.1 Form of Warrant issued to Yeshuah Investments Limited
4.2 Form of Common Stock and Warrant Purchase Agreement, dated as of March
13, 2002, between Yeshuah Investments Limited and Xybernaut Corporation
4.3 Form of Registration Rights Agreement, dated as of March 13, 2002,
between Yeshuah Investments Limited and Xybernaut Corporation
4.4 Form of Warrant issued to Alpha Capital Aktiengesellschaft.
4.5 Form of Common Stock and Warrant Purchase Agreement, dated as of March
13, 2002, between Xybernaut Corporation and Alpha Capital
Aktiengesellschaft.
4.6 Form of Registration Rights Agreement, dated as of March 13, 2002,
between Xybernaut Corporation and Alpha Capital Aktiengesellschaft.
4.7 Form of Warrant issued to Cranshire Capital, L.P.
4.8 Form of Common Stock and Warrant Purchase Agreement, dated as of March
13, 2002, between Xybernaut Corporation and Cranshire Capital, L.P.
4.9 Form of Registration Rights Agreement, dated as of March 13, 2002,
between Xybernaut Corporation and Cranshire Capital, L.P.
4.10 Form of Letter Agreement, dated as of January 1, 2002, between IBS
Technologies LLC and Xybernaut Corporation
4.11 Form of Agreement for Payment of Account, dated March 20, 2002, between
Zykronix, Inc. and Xybernaut Corporation
5.1 Opinion of Jenkens & Gilchrist Parker Chapin LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Jenkens & Gilchrist Parker Chapin LLP (included in their
opinion filed as Exhibit 5.1)
E-2