As filed with the Securities and Exchange Commission on December 30, 2004
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
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Title of Each Class Proposed Maximum Proposed
of Securities to be Registered Amount to be Offering Price Maximum Amount of
Offering Price Fee(6) Registered(1) Per Share Aggregate Registration
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Common Stock, $.01 par value per share....... 9,167,386 (2) $1.28(4) $11,734,254.08 $ 1,381.12
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Common Stock, $.01 par value per share....... 9,167,386 (2)(3) $1.28(5) $11,734,254.08 $ 1,381.12
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Total Registration Fee....................... $ 2,762.24
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(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 of the Securities Act of 1933, as amended (the
"Securities Act"), 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; based on the
average ($1.28) of the closing bid ($1.28) and asked ($1.28) price on
the Nasdaq Small Cap Market on December 23, 2004.
(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.
(6) Calculated pursuant to Section 6(b) of the Securities Act based upon
Proposed Maximum Aggregate Offering Price multiplied by .00011770.
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.
No dealer, salesman or other person has been authorized to give any information
or to make any representation not contained in or incorporated by reference in
this prospectus and, if given or made, such information or representation must
not be relied upon as having been authorized by us, the selling stockholders or
any other person. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make such an offer in such
jurisdiction. 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 or
that there has been no change in our affairs since such date.
SUBJECT TO COMPLETION, DATED DECEMBER 30, 2004
PROSPECTUS
XYBERNAUT CORPORATION
18,334,772 shares of common stock
The selling stockholders of Xybernaut Corporation listed on page
10 of this prospectus are offering for sale up to 18,334,772 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 Small Cap Market Symbol: "XYBR"
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On December 21, 2004, the closing price of one share of our common
stock on the NASDAQ Small Cap Market was $1.28.
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 December __, 2004
-1-
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 2001:
Fiscal quarters ended:
o March 31, 2004 $(3,559,230)
o June 30, 2004 $(4,396,117)
o September 30, 2004 $(4,542,226)
Fiscal years ended:
o December 31, 2001 $(32,199,579)
o December 31, 2002 $(26,580,833)
o December 31, 2003 $(18,584,229)
We could be required to reduce spending and operations if we are unable to
maintain reduced cash operating expenses and obtain financing.
We have recorded net losses since our inception. These losses are
primarily attributable to the operating expenses incurred by us to design,
develop, market and sell our mobile and wearable computer products and to
provide general and administrative support for these operating activities. Our
revenues and gross margins have not been sufficient to fund these operating
activities. As a result, we have consistently reported negative cash flows from
operating activities and net losses and had an accumulated deficit of
$162,104,961 at September 30, 2004.
The combination of our operating losses and working capital
requirements has severely impacted our financial position and liquidity. During
2004, 2003 and 2002, we funded our operating and investing activities through
our financing activities, which consist primarily of private placements of
common stock, warrant and stock option exercises and borrowings.
-2-
We have taken steps that we believe are necessary to improve our
operations and raise additional capital, both of which are needed to enhance our
ability to meet our cash flow needs through December 31, 2004 and thereafter.
During 2002 and 2003, we performed reviews of our operations and implemented
various cost cutting programs to reduce our operating expenses to better align
costs with current and expected business volume. We incurred total operating
expenses in 2003 of approximately $16.3 million, a decrease from $28.0 million
and $33.6 million in 2002 and 2001, respectively. Assuming there are no
significant changes to our business plan, we expect to maintain a quarterly
operating expense level of between $4,000,000 and $6,000,000, representing
savings of over 50% from fourth quarter 2001 levels. Future significant
fluctuations may still occur as a result of our research and development
activities, which will vary depending on our wearable and mobile computer
product development cycle during any given period. Additionally, our new
operations in China are expected to increase our operating expenses. We believe
that our current staffing and resources will be sufficient to carry out our
business plan for the foreseeable future.
During the period from January 1, 2004 through the date of this filing,
we raised approximately $19 million through sales of our common stock to
institutional investors, through warrant and stock option exercises and through
borrowings, inclusive of the financings in this filing. We believe that the
combination of cash on hand, cash flows from operations, and outside additional
funding from third party investors will provide sufficient liquidity to meet our
ongoing cash requirements. This is based on our historical ability to raise
funds in the form of debt and equity financings. However, there can be no
assurance that we can or will obtain sufficient funds from operations or from
additional financings on terms acceptable to us. If we are unable to obtain
sufficient additional financing, we could be required to reduce spending and
operations further in order to maintain our operations at a reduced level.
We may face difficulties in obtaining needed financings.
If the general equity markets, the price of our common stock, or the
U.S. or world economy were to continuously decline, we could face difficulties
in our ability to raise additional capital. Additionally, we have historically
made several private placements of our common stock each year, primarily to a
limited number of institutional investors who specialize in making similar types
of investments. If these institutional investors were to choose to not
participate in future private placements, we could face difficulties in our
ability to raise additional capital. Our Certificate of Incorporation limits our
ability to issue more than 240,000,000 shares of common stock. A limitation on
the number of authorized shares may hinder our ability to obtain additional
equity financing.
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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) and AtigoTM series.
The Mobile Assistant and Atigo series are our principal hardware
products and our success will depend to a large extent upon their commercial
acceptance, which cannot be assured. Additional product development will result
in significant research and development expenses that may be unrecoverable
should commercialization of new products prove unsuccessful. We also could
require
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a higher level of funding if research and development or sales and marketing
expenses are greater than we anticipate. As with most high technology products,
new models 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 commitments to purchase inventory and services in the future.
From time to time, we have commitments to purchase inventory, tooling
and/or engineering and other services from our suppliers and manufacturers
related to our current and future hardware product lines. Our commitments are
typically highest during periods of product design and when we are procuring
inventory related to anticipated sales. We expect that we will continue to enter
into such commitments during 2005 and thereafter as we design, develop and
procure future wearable computer product lines.
During 2003, we entered into an agreement with IBM under which we
agreed to purchase approximately $4,900,000 in MA V computing units, flat panel
displays, peripherals and component parts. During 2003, we received all of this
inventory and made payments of $4,363,458. During January 2004, we made the
final payments required by this agreement.
At September 30, 2004, we had commitments to purchase approximately
$3,500,000 in inventory, related primarily to pending orders from the Atigo
product line.
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 main hardware competitors,
which include established companies like CDI, ViA Inc., MicroSlate, Texas
Microsystems, OQO, Symbol, Raytheon, Panasonic and others, we would not be able
to generate sufficient revenues to grow our company or reverse our history of
losses.
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 operations and cash
flows.
Currency fluctuations, especially in the Japanese Yen, European Euro, Hong Kong
Dollar, and Korean Won 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 China,
and Europe,
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in particular Germany. In 2004, we began actively marketing our mobile/wearable
hardware solutions in the People's Republic of China through our 60% ownership
in Xybernaut China Limited, a joint venture with Softbank Investment
International (Strategic) Ltd. We also entered into a distribution agreement
with Shenzhen Sunshine Hi-Tech Co. Ltd., a corporation existing under the laws
of the People's Republic of China, whereby Sunshine develops and manufactures
products on our behalf. In addition to our China joint venture and our minority
equity interest in Sunshine, we are party to supplier arrangements with several
companies in Asia and Europe for the production of our hardware products. Our
foreign operations, including payments to our suppliers, are typically funded in
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 nine months ended September 30,
2004, we had two (2) customers which each comprised more than 10% of our total
revenues, representing 25% of total revenues. For fiscal year ended December 31,
2003, we had two (2) customers which each comprised more than 10% of our total
revenues, representing 38% of total revenues. Additionally, at September 30,
2004, we had one customer which comprised more than 10% of our total accounts
receivable, representing 26% of total accounts receivable. At December 31, 2003,
we had two (2) customers which each comprised more than 10% of our total
accounts receivable, representing an aggregate of 38% 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 pay 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
-5-
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
--------------------------------------------------
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 December 21, 2004 the price of our common stock has
ranged from a high of $29.97 to a low of $0.19. 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.
We have recently issued a significant amount of our common stock.
During the period from January 1, 2004 through December 21, 2004, we
raised approximately $19,000,000 through sales of our common stock to
institutional investors, through warrant and stock option exercises and through
borrowings, inclusive of the financings in this filing. Approximately
$14,500,000 was raised through private placements, representing 13,560,981
shares of common stock issued, which number includes 9,167,386 shares of common
stock issued and included on this prospectus. The remaining$4,500,000 was raised
through the exercise of stock options and other warrants, representing an
additional 4,592,814 shares of common stock issued. As a result of thes
financings activities described above, a total of 18,153,795 shares of common
stock were issued during this period. This represents a 10.5% increase in the
number of shares outstanding as compared to the number of shares outstanding as
of January 1, 2004.
We have 20,640,208 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 December 21, 2004 we had 20,640,208 shares of
common stock reserved for possible future issuances upon conversion of options
and warrants, which number includes 9,167,386 shares of common stock reserved in
connection with shares underlying warrants included on this prospectus. 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
warrants at various market prices.
-6-
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."
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.
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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 Current Report on Form 8-K for the event dated December 20,
2004 filed with the SEC on December 23, 2004;
o Current Report on Form 8-K for the event dated November 9,
2004 filed with the SEC on November 10, 2004;
o Current Report on Form 8-K for the event dated November 1,
2004 filed with the SEC on November 5, 2004;
o Current Report on Form 8-K for the event dated August 26,
2004filed with the SEC on October 29, 2004;
o Current Report on Form 8-K for the event dated August 5, 2004
filed with the SEC on August 5, 2004;
o Current Report on Form 8-K for the event dated July 28, 2004
filed with the SEC on July 28, 2004;
o Current Report on Form 8-K for the event dated May 4, 2004
filed with the SEC on May 4, 2004;
o Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2004 filed with the SEC on November 8, 2004;
o Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 2004 filed with the SEC on August 6, 2004;
o Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2004 filed with the SEC on May 7, 2004;
o Annual Report on Form 10-K for the fiscal year ended December
31, 2003 filed with the SEC on March 12, 2003; 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, Attention: Bruce
Hayden, Chief Financial Officer, or by telephone at (703) 631-6925 or by e-mail
at investorrelations@xybernaut.com.
-8-
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.
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 December 21, 2004 we had issued and outstanding 190,512,018
shares of common stock. At that date, there were an additional 20,640,208 shares
of common stock reserved for possible future issuances as follows:
o options to purchase 7,562,231 shares at an exercise price of
between $0.24 and $23.38 per share. We have registered the
shares issuable upon exercise of the options under the
Securities Act;
o warrants to purchase 11,345,285 shares at a price between $0.60
and $5.00 per share. Of the 11,345,285 shares, we have
previously registered a total of 2,077,899 shares issuable
upon exercise of these warrants. This prospectus covers an
additional 9,167,386 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 100,000 shares will be deemed to be
"restricted securities" when issued; and
o 1,732,692 shares issuable upon exercise of options under the
Company's stock incentive plans which have not been granted as
of December 21, 2004. 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.
SELLING STOCKHOLDERS
This prospectus covers the resale by the selling stockholders of up to
18,334,772 shares of our common stock.
-9-
The natural person holding voting and/or dispositive control over the
shares owned by Western Ventures Ltd. is Mr. Amit Lederman. The address of
Western Ventures Ltd. is 3 Dov Karmi Street, Tel Aviv, Israel.
The natural person holding voting and/or dispositive control over the
shares owned by Polar Properties Ltd. is Ms. Mary Lowenthal. The address of
Polar Properties Ltd. is Mevot David 8, Ramat Gan, Israel.
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 December 21, 2004, 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 After Offering (2)(3)
Stock Owned Prior to Prior to Shares of Common ---------------------
Offering (1) the Offering Stock to be Sold (2) Number Percent
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Western Ventures Ltd. 10,785,160(4) 5.5% 10,785,160 (4) 0 0%
Polar Properties Ltd. 7,549,612(5) 3.9% 7,549,612 (5) 0 0%
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* Less than 1%
(1) Includes shares of common stock and warrants to purchase shares of common
stock included on this registration statement.
(2) Assumes that the selling stockholders will exercise all of their warrants
into shares of common stock.
(3) Assumes all of the securities offered hereby will be sold by the selling
stockholders.
(4) Includes 5,392,580 shares of common stock issuable upon exercise of
warrants.
(5) Includes 3,774,806 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.
Western Ventures Ltd. acquired its shares of common stock in a private
placement transaction entered into on December 20, 2004. Under the terms of the
common stock and warrant purchase agreement between Western Ventures Ltd. and
us, we sold 5,392,580 shares of our common stock at a price per share
representing an approximate 20% discount to the average closing price per share
of $1.16 of our common stock for the ten trading days ended December 7, 2004,
for the cancellation of indebtedness of $5,000,000. We also issued warrants to
purchase (i) 2,696,290 shares of our common stock exercisable for a period of
three (3) years from the date of issuance, at an exercise price of $1.16; and
(ii) 2,696,290 shares of our common stock exercisable for a period of six (6)
months from the date of issuance, at an exercise price of $1.16. We may call up
to 100% of
-10-
the these warrants if our common stock price is equal to or greater
than $3.00 per share for five (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 thirty (30) days after the closing date
and cause such registration statement to become effective as promptly as
practicable after filing but no later than March 7, 2005.
Polar Properties Ltd. acquired its shares of common stock in a private
placement transaction entered into on December 20, 2005. Under the terms of the
common stock and warrant purchase agreement between Polar Properties Ltd. and
us, we agreed to sell 3,774,806 shares of our common stock at a price per share
representing an approximate 20% discount to the average closing price per share
of $1.16 of our common stock for the ten trading days ended December 7, 2004,
for cash in the aggregate amount of $3,500,000. We also issued warrants to
purchase (i) 1,887,403 shares of our common stock exercisable for a period of
three (3) years from the date of issuance, at an exercise price of $1.16; and
(ii) 1,887,403 shares of our common stock exercisable for a period of six (6)
months from the date of issuance, at an exercise price of $1.16. We may call up
to 100% of the these warrants if our common stock price is equal to or greater
than $3.00 per share for five (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 thirty (30) days after the closing date
and cause such registration statement to become effective as promptly as
practicable after filing but no later than March 7, 2005.
All of the warrants have adjustment provisions for dilution events
including stock splits, stock dividends and similar transactions.
Other than the transactions disclosed above pursuant to which the
selling stockholders received the securities being registered for resale on this
prospectus, and the shares of common stock and warrants we issued to the selling
stockholders in our private placement on March 4, 2004, the selling stockholders
are not affiliated with us and have not had any material relationship with us or
our affiliates during the past three years.
-11-
DESCRIPTION OF SECURITIES
General
Our authorized capital stock consists of 240,000,000 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 December 21, 2004, we have 190,512,918 shares of
common stock issued and outstanding. We have reserved 20,640,208 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 or sold any
shares of preferred stock.
-12-
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
-13-
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.
-14-
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.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 2003, have been
so incorporated in reliance on the report of Grant Thornton LLP, a registered
public accounting firm, given on the authority of said firm as experts in
auditing and accounting.
-15-
======================================================== ========================================================
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 18,334,772
information or representations as having been SHARES OF COMMON STOCK
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
a solicitation of an offer to buy, those to which it
relates in any state to any person to whom it is not
lawful to make such offer in such state. The delivery
of this prospectus at any time does not imply that the XYBERNAUT CORPORATION
information herein is correct as of any time after the
date of this prospectus.
TABLE OF CONTENTS
Page
----
Risk Factors.........................................2
Information Regarding Forward-Looking
Statements ..................................6
Where You Can Find More
Information About Us.........................7
Use of Proceeds......................................8 ____________
Dilution.............................................8
Selling Stockholders ................................9 PROSPECTUS
Description of Securities...........................10 ____________
Plan of Distribution ...............................13
Indemnification for Securities
Act Liabilities.............................14
Legal Matters.......................................14 December __, 2004
Experts ............................................14
======================================================== ========================================================
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.................$ 2,762.24
Legal fees and expenses $ 10,000.00
Accounting expenses...................................$ 5,000.00
------------
Total.................................................$ 17,762.24
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
II-1
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 Warrant issued to Western Ventures Ltd. (No. W-D04-1).
4.2 Warrant issued to Western Ventures Ltd. (No. W-D04-2).
4.3 Common Stock and Warrant Purchase Agreement, dated as of December
20, 2004, between Western Ventures Ltd. and Xybernaut Corporation.
4.4 Registration Rights Agreement, dated as of December 20, 2004,
between Western Ventures Ltd. and Xybernaut Corporation.
4.5 Warrant issued to Polar Properties Ltd. (No. W-D04-3).
4.6 Warrant issued to Polar Properties Ltd. (No. W-D04-4).
4.7 Common Stock and Warrant Purchase Agreement, dated as of December
20, 2004, between Polar Properties Ltd. and Xybernaut Corporation.
4.8 Registration Rights Agreement, dated as of December 20, 2004,
between Polar Properties Ltd. 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 hereto as Exhibit 5.1).
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
II-2
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.
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-3
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 December 30,
2004.
XYBERNAUT CORPORATION
By: /s/ Edward G. Newman
-----------------------------------
Edward G. Newman
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 December 30, 2004.
Signature Title
/s/ Edward G. Newman Chief Executive Officer and
- ------------------------------- Chairman of the Board of Directors
Edward G. Newman
/s/ Steven A. Newman, M.D President, Chief Operating Officer
- ------------------------------- and Vice Chairman of the Board of Directors
Steven A. Newman, M.D.
/s/ Bruce Hayden Senior Vice President and Chief
- ------------------------------- Financial Officer
Bruce Hayden
/s/ Martin Eric Weisberg, Esq. Secretary and Director
- -------------------------------
Martin Eric Weisberg, Esq.
S-1
- ------------------------------- Director
Marc Ginsberg
/s/ Alan Merten
- ------------------------------- Director
Alan Merten
/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
/s/ Gen. Bill Tuttle Director
- -------------------------------
Gen. Bill Tuttle
/s/ Dr. Edwin Vogt Director
- -------------------------------
Dr. Edwin Vogt
/s/ Noritsugu Yamaoka Director
- -------------------------------
Noritsugu Yamaoka
S-2
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)
December 30, 2004
NUMBER DESCRIPTION OF EXHIBIT
4.1 Warrant issued to Western Ventures Ltd. (No. W-D04-1).
4.2 Warrant issued to Western Ventures Ltd. (No. W-D04-2).
4.3 Common Stock and Warrant Purchase Agreement, dated as of December
20, 2004, between Western Ventures Ltd. and Xybernaut Corporation.
4.4 Registration Rights Agreement, dated as of December 20, 2004,
between Western Ventures Ltd. and Xybernaut Corporation.
4.5 Warrant issued to Polar Properties Ltd. (No. W-D04-3).
4.6 Warrant issued to Polar Properties Ltd. (No. W-D04-4).
4.7 Common Stock and Warrant Purchase Agreement, dated as of December
20, 2004, between Polar Properties Ltd. and Xybernaut Corporation.
4.8 Registration Rights Agreement, dated as of December 20, 2004,
between Polar Properties Ltd. 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 hereto as Exhibit 5.1).