As Filed with the Securities and Exchange Commission on April 10, 1997
Registration No. 333-
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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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PROJECTAVISION, INC.
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(Exact name of registrant as specified in its charter)
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Delaware 13-3499909
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(State or other juris- (I.R.S. Employer
diction of incorpora- identification
tion or organization) number)
TWO PENN PLAZA, SUITE 640, NEW YORK, NEW YORK, (212) 971-3000
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(Name, address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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MARVIN MASLOW, CHAIRMAN OF THE BOARD
MARTIN HOLLERAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
PROJECTAVISION, INC.
TWO PENN PLAZA, SUITE 640, NEW YORK, NEW YORK 10121
(212) 971-3000
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
CLIFFORD A. BRANDEIS, ESQ.
ZUKERMAN GORE & BRANDEIS, LLP
900 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 223-6700
Fax (212) 223-6433
Approximate date of commencement of proposed sale to the public: As soon as
practicable after effective date of the registration statement.
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, check the following box. |X| (continued overleaf)
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Title of each Amount Maximum Aggregate Amount of
class of securities to be Offering Price Offering Registration
to be registered Registered Per Share (1) Price (1) Fee
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Common Stock,
Par Value
$.0001 Per Share 2,700,000 $ 2.6875 $ 7,256,250 Amount Due 2,199
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(1) Estimated solely for purposes of calculating the
registration fee pursuant to Rule 457(c).
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 future 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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
CROSS-REFERENCE SHEET
Pursuant to Item 501(b)
Item Number and Caption Location or Heading
in Form S-3 in Prospectus
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1. Forepart of Registration Statement and Facing Page of Registration
Outside Front Cover Page of Prospectus. Statement; Cover Page of
Prospectus.
2. Inside Front and Outside Back Cover Inside Front and Outside Back
Pages of Prospectus. Cover Pages of Prospectus.
3. Summary Information, Risk Factors and Prospectus Summary; The
Ratio of Earnings to Fixed Charges. Company; Risk Factors.
4. Use of Proceeds. Prospectus Summary.
5. Determination of Offering Price. *
6. Dilution. *
7. Selling Security Holders. Cover Page; Selling
Shareholders.
8. Plan of Distribution. Cover Page; Plan of
Distribution.
9. Description of Securities to be Incorporation of Certain
Registered. Documents by Reference;
Description of Capital Stock.
10. Interests of Named Experts and *
Counsel.
11. Material Changes. The Company; Risk Factors;
Description of Capital Stock.
12. Incorporation of Certain Information Incorporation of Certain
by Reference. Documents by Reference.
13. Disclosure of Commission Position on *
Indemnification for Securities Act
Liabilities.
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* Omitted as not applicable.
SUBJECT TO COMPLETION, DATED APRIL 10, 1997
PROSPECTUS
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PROJECTAVISION, INC.
shares of Common Stock,
$.0001 par value per share
This Prospectus relates to (i) up to 500,000 shares of common stock, $.0001 par
value (the "Common Stock"), of Projectavision, Inc., a Delaware corporation (the
"Company"), issuable upon the conversion of up to 3,290 shares of the Company's
Series C Convertible Preferred Stock (the "Series C Preferred Stock") issued to
a single institutional investor, (ii) up to 2,000,000 shares of Common Stock
issuable upon conversion of up to 35,000 shares of the Company's Series D
Convertible Preferred Stock issued to two institutional investors and (iii) up
to 200,000 shares of Common Stock to be issued to a single entity for services.
The shares of Common Stock registered hereunder, including the shares issuable
upon the conversion of the Series C Preferred Stock and the Series D Preferred
Stock, are sometimes hereinafter collectively referred to as the "Securities."
The holders of the shares of Common Stock, the Series C Preferred Stock and the
Series D Preferred Stock are sometimes hereinafter collectively referred to as
the "Selling Stockholders." All costs in connection with the registration of the
Securities are being borne by the Company. The Company will not receive any of
the proceeds from the sale of the Securities pursuant to this Prospectus.
The Common Stock is quoted on the Nasdaq SmallCap Market under the symbol
"PJTV." The Company's Series B Convertible Preferred Stock (the "Series B
Preferred Stock") and Redeemable Common Stock purchase warrants (the "Public
Redeemable Warrants") are also quoted on the Nasdaq SmallCap Market under the
symbols "PJTVP" and "PJTVW," respectively. The last reported closing bid and
asked prices of the Common Stock on Nasdaq on April 7, 1997 were $2.50 and
$2.6875 per share, $2.75 and $3.50 per share for the Series B Preferred Stock,
and $3.00 and $5.00 per share for the Public Redeemable Warrants.
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK AND SHOULD BE PURCHASED
ONLY BY THOSE PERSONS WHO CAN AFFORD TO LOSE THEIR ENTIRE INVESTMENT. THE
COMPANY HAS INCURRED SUBSTANTIAL OPERATING LOSSES. SEE "RISK FACTORS" BEGINNING
ON PAGE 3.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
i
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL SECURITIES IN ANY
STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH STATE.
The Selling Stockholders directly or through agents, dealers or
underwriters to be designated from time to time may sell the Securities on terms
to be determined at the time of sale. To the extent required, the number of
Securities to be sold, the respective purchase price and public offering price,
the name of any agent, dealer or underwriter and any applicable commissions or
discounts with respect to a particular offer will be set forth in and
accompanied by a Prospectus Supplement. See "Plan of Distribution."
The Selling Stockholders and any agents, dealers or underwriters that
participate with the Selling Stockholders in the distribution of their shares
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and any commissions received by them
and any profits on the resale of the Selling Stockholders' shares, may be deemed
to be underwriting commissions or discounts under the Securities Act. Under
applicable rules and regulations promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), any person engaged in a distribution
of securities may not simultaneously bid for or purchase securities of the same
class for a period of two (2) business days prior to the commencement of such
distribution. In addition, and without limiting the foregoing, the Selling
Stockholders will be subject to the applicable provisions of the Exchange Act
and the rules and regulations thereunder, including, without limitation, Rules
10b-2, 10b-5, 10b-6 and 10b-7, in connection with transactions in the Securities
during the effectiveness of the Registration Statement of which this Prospectus
forms a part. All of the foregoing may affect the marketability of the
Securities.
The date of this Prospectus is ________________, 1997.
ii
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by reference the following documents
heretofore filed with the Commission: the Annual Report of the Company on Form
10-K for the fiscal year ended December 31, 1996; and the Quarterly Report of
the Company on Form 10-Q for the periods ended March 31, 1996, June 30, 1996 and
September 30, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated herein by reference)
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded.
The Company will provide, without charge to each person to whom a
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated herein by reference, other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference into the information that is incorporated into the Prospectus. Such
written requests should be directed to the Secretary of the Company at Two Penn
Plaza, Suite 640, New York, New York 10121, (212) 971-3000.
1
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
descriptions and financial information and statements appearing elsewhere in
this Prospectus and the documents incorporated herein by reference.
The Company
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The Company, Projectavision, Inc., is in the business of identifying,
developing, patenting, supporting and marketing technical inventions in the
electronic display information industry.
The Company's principal offices are located at Two Penn Plaza, Suite
640, New York, New York 10121, telephone (212) 971-3000.
The Offering
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Up to 2,700,000 shares of Common Stock are being offered pursuant to
this Prospectus which may be offered from time to time by the Selling
Stockholders for their own account.
Plan of Distribution
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The Selling Stockholders, directly or through agents or underwriters,
may offer and sell from time to time all or any part of the Securities held by
them in amounts and on terms to be determined or at quoted prices then
prevailing on the Nasdaq SmallCap Market. See "Plan of Distribution."
2
RISK FACTORS
Investment in the Company's securities involves a high degree of risk.
Investors should carefully consider the following factors, among others,
relating to the Company.
Development Stage Company and Accumulated Deficit; Qualified Auditor's
Opinion; No Assurance of Profitability. Although the Company effected the
initial shipped of its first product on March 31, 1997, it has been in the
development stage since its inception in 1988 and, to date, its sole revenues
received have been (i) $1,000,000 received in 1989 from the United States
Advance Research Projects Agency (then known as the Defense Department Advance
Research Projects Agency) ("ARPA") to develop certain projection technology
which could be used in a high definition television projector, (ii) $105,000 in
royalty income in 1993 from licensing agreements, and (iii) $200,000 in royalty
income in 1995 from licensing agreement. Primarily as a result of work performed
in developing its own and supporting certain other technologies, the Company has
sustained losses aggregating approximately $29,360,000 from its inception to
December 31, 1996. The Company has continued to incur losses since December 31,
1996. As of December 31, 1996, the Company had available for Federal income tax
purposes net operating loss carryforwards of approximately $21,000,000. The
Internal Revenue code of 1986, as amended, may impose certain restrictions of
the amount of net operating loss carryforwards which may be used in any year by
the Company.
As a development-stage company, the Company continues to experience
difficulties encountered by any company in the development stage, many of which
may be beyond the Company's control. These include, but are not limited to,
unanticipated development, testing, production and marketing problems, costs and
competition. Accordingly, the report of the Company's independent auditors with
respect to the Company's audited financial statements as of and for the period
ended December 31, 1996 contains an explanatory paragraph to the effect that
successful completion of the Company's development program, and ultimately the
attainment of profitable operations, is dependent upon future events including
maintaining adequate financing to fulfill its development activities and
achieving a level of revenue adequate to support the Company's cost structure.
There can be no assurance that the Company will ever generate sufficient
revenues to meet expenses, or to operate profitably.
Dependence on Third-Party Licenses; Unproven Products. On March 31,
1997 the Company began shipping its first product, its patented front/rear
projection television computer known as the "Digital Home Theater(TM)." In
connection therewith, the Company has entered into arrangements with third
parties for the manufacture, marketing and distribution of its Digital Home
Theater(TM). The Company has also formed a non-exclusive strategic corporate
partnership and entered into an
3
agreement with Texas Instruments pursuant to which Texas Instruments has agreed
to supply its Digital Light Processor (the "DLP") to the Company as a component
part of the Company's Digital Home Theater(TM). The Company has also entered
into contract manufacturing agreements with C-MAC Industries, Inc. and LDM
Technologies, Inc. for the manufacture and assembly of certain other components
of its Digital Home Theater(TM). Further, the Company has also entered into a
distribution agreement with Nobody Beats the Wiz, a dominant consumer
electronics retailer in the northeastern United States, for the distribution and
retail sale of its Digital Home Theater(TM). The Company is dependent on all of
the foregoing arrangements in order to successfully manufacture, market and
distribute the Digital Home Theater(TM). Moreover, the Company's Digital Home
Theater(TM) is presently an unproven product, and there is no assurance that it
will receive acceptance in the marketplace from its intended users. In addition,
the Company may seek other applications of its technologies, although there can
be no assurance that the Company will be successful in applying its technologies
in other areas.
The Company is also currently a party to two (2) royalty bearing,
non-exclusive patent license agreements with respect to its video projection
technologies and presently intends to enter into other similar, patent license
agreements, although there can be no assurances that the patent licenses that
the Company has entered into will be profitable or that the Company will be able
to enter into additional patent licenses on terms and conditions acceptable to
the Company, or at all.
Dependence on Untested Device by Sole Supplier. The DLP, an essential
part of the Company's Digital Home Theater(TM), is based upon and incorporates a
Digital Micromirror Device ("DMD") that has been developed by Texas Instruments.
The Company will be relying solely on Texas Instruments to produce the DLP and
there can be no assurance that Texas Instruments will be able or willing to
produce the DLP in significant qualities to satisfy the Company's immediate
and/or long-term needs. Although the Company is also pursuing LCD-based
alternatives to the DLP, there can be no assurance that any such alternatives
will prove to be viable.
Dependence on Key Employees. The Company is dependent, to a substantial
degree, on the financial and managerial expertise of its Chief Executive Officer
and Chairman of the Board, Mr. Marvin Maslow and its President and Chief
Operating Officer, Mr. Martin Holleran. The loss of the services of either of
Mr. Maslow or Mr. Holleran could have a material adverse effect upon the
Company's operations. The Company has purchased a "key-man" life insurance
4
policy on the life of Mr. Maslow in the amount of $500,000, and is the sole
owner and beneficiary of such policy. The Company has also purchased a "key-man"
life insurance policy on the life of Mr. Holleran in the amount of $1,000,000,
and is the sole owner and beneficiary of such policy.
Technological Change. The television and video display industry and
other industries and markets in which the Company is pursuing applications of
its technologies are subject to rapid and significant changes. There can be no
assurance that technological changes will not occur that may render the
Company's products and present technologies obsolete.
Competition. The television and video display industry is highly
competitive. The Company's television projection systems will compete with giant
screen, big screen and conventional size televisions sold under a variety of
brand names. Competitive features will include picture quality, image
brightness, clarity, image-size, pricing, product size and design, weight,
technology, brand name recognition and manufacturing, marketing and distribution
capabilities. Most of the Company's competitors and potential competitors have
and will have far greater financial resources, research and development
facilities, manufacturing and marketing experience, distribution and sales
networks, established customer bases, and greater brand name recognition than
the Company currently has. Although there can be no assurances, the Company
expects that it will be able to compete successfully against its competitors on
the basis of its proprietary projection technologies and anticipated patent
portfolio, product size and weight, price and picture quality.
Proprietary Rights. The Company is the owner of five (5) United States
patents and twenty-two (22) foreign patents and has patent applications pending
in numerous industrialized nations around the world. In addition, the Company
has also filed for further patent protection in various foreign countries for
improvement to its technologies and for protection of related technologies.
Notwithstanding the Company's patent or pending patent applications, there can
be no assurance that others have not developed such technologies without the
Company's knowledge, or that pending applications will be allowed, or that
others will not independently develop similar technologies, duplicate the
Company's technologies or design around the patented aspects of the Company's
technologies. In addition, in the event the Company's products are based upon
the DLP developed by Texas Instruments, the Company will also be dependent to a
certain extent on the efficacy of Texas Instruments' patents relative to DLP, of
which there can be no assurance. The Company has not conducted any independent
analysis of such patents owned by Texas Instruments. Even though the Company has
been issued patents, challenges may be instituted by third parties as to the
validity, enforceability and infringement of the patents. In the event that
others are able to design around the Company's patents, the Company's business
could be materially and adversely affected. Further, in connection with the
Company's termination of Mr.
5
Eugene Dolgoff, a founder and former President and Chief Scientist of the
Company, Mr. Dolgoff has alleged, among other things, certain ownership rights
with respect to the Company's technologies. See "Risk Factors - Litigation."
The cost of the litigation to uphold the validity and enforceability
and prevent infringement of the Company's patents can be substantial. The
Company's patent counsel, Anderson Kill & Olick, P.C., has conducted a study to
determine whether the manufacture, use or sale in the United States of the
projector would infringe patents of others. The study reviewed patents covering
active matrix LCDs, optics and LCDs and various electronic and optical
components used in conjunction with video display systems. Counsel has
determined that the combination of features disclosed in the Company's patent
application would not constitute literal infringement of the patents reviewed.
Counsel also has reviewed certain of the patents covered by the literal
infringement study to determine whether the combination of features described in
the Company's application would infringe such patents under the doctrine of
equivalents. Under this doctrine, a product which does not literally infringe a
patent because it does not have all features of any of the patent claims might,
nevertheless, be deemed to infringe such patent, if and only if the difference
between the patented product and accused products are insubstantial. Counsel has
concluded that the combination of features described in the Company's patent
application would not infringe any of the patents included in counsel's doctrine
of equivalents study under the doctrine of equivalents. With respect to those
patents which were not included in the doctrine of equivalents study, counsel
has advised the Company that even if the combination of features described in
the Company's application would infringe such patents under the doctrine of
equivalents it is likely that either (i) suitable non-infringing alternative
components would be available, or (ii) the Company will be able to obtain a
license from the owner of such patent. In order for the Company to obtain such a
license it may be necessary for the Company to grant a cross license of the
Company's patent-pending technologies to a potential licensor.
Counsel also has reviewed the patents to determine whether the
components of the Company's video display systems set forth in the Company's
patents constitute literal infringement of the other patents reviewed. Counsel
has concluded that the manufacture, use or sale in the United States of the
Projector including such components would not constitute literal infringement of
the patents reviewed; however, Counsel will not be able to determine whether the
6
components of the Projector would infringe the remaining patents reviewed until
certain components to be used in the Projector are definitively selected.
Counsel has not reviewed the patents to determine whether the components of the
Projector disclosed in the Company's patent application would constitute
infringement of the patents directed to such components under the doctrine of
equivalents. However, counsel has advised the Company that, as a matter of law,
any component purchased from a seller in the normal course of business ("off the
shelf") is purchased with a warranty from the seller that such component does
not constitute literal or equivalents infringement of patents of others. In
addition, counsel has advised that if the Company arranges to have certain
components manufactured to its specifications and, therefore, is not deemed to
have purchased such components off the shelf it is likely that either (i) the
seller of such component will indemnify the Company from patent infringement
claims, or (ii) the Company will be able to obtain a license from the owner of
the patent which is infringed. However, there can be no assurance that the
Company will enter into any such arrangements and if the Company is unable to
enter into such arrangements, its business may be adversely affected. In
addition, the officers and certain employees of the Company are also required to
agree not to compete with the Company for periods ranging from one to two years
after the termination of their employment. However, there can be no assurance
that such confidentiality or non-compete agreements will be complied with or
will be enforceable.
In some cases, the Company may rely on trade secrets to protect its
innovations. There can be no assurance that trade secrets will be established or
that others will not independently develop similar or superior technologies. The
Company will require and has required employees, Directors, consultants and
other third parties to whom confidential information has been or will be
disclosed, to agree to keep the Company's proprietary information confidential
and to refrain from using such information in any manner that is adverse to the
Company's interest. However, there can no assurance that such agreements will be
complied with or will be enforceable.
The Company is the owner of the trade name Projectavision, Inc. The mark was
registered by the United States Patent and Trademark Office on February 4, 1997.
7
Underwriters Laboratories Listing. The Company will seek to have its
products listed by Underwriters Laboratories Inc. UL is a not-for-profit
independent organization which tests numerous consumer and commercial products
for compliance with nationally recognized safety standards. Listing of a product
by UL indicates that samples of that product have been tested to such safety
standards and found to be reasonably free from foreseeable risk of fire,
electric shock and related hazards. Under the laws of certain states the Company
will not be permitted to sell the Projector without obtaining and maintaining a
UL listing. Even in those states where the Company is not required by law or
otherwise to obtain UL listing, if it is unable to obtain and maintain UL
listing on an ongoing basis its ability to market and sell the Projector may be
adversely affected.
Product Liability. Once any of the Company's products are
marketed, product liability claims relating to such products may be asserted
against the Company. If such claims are asserted,
8
there can be no assurance that the Company will have sufficient resources to
defend against any such claim and, there can be no assurance that any insurance
can be obtained or maintained at an acceptable cost or, if obtained, that it
will be sufficient to cover potential claims. The Company presently intends to
obtain adequate liability insurance prior to marketing any of its products,
although the precise terms and costs with respect thereto cannot be determined
until such time as the Company has determined and finalized the method of
production and distribution. For instance, in the event that the Company enters
into a joint venture or other arrangement with a third party with respect to a
Company product or if the Company licenses a product to a third party, the
Company intends to require such joint venturers or licensees to maintain product
liability insurance. However, there can be no assurance that such joint
venturers or licensees will agree, or will be able to obtain or maintain
insurance at an acceptable cost, or that if such insurance is obtained, it will
be adequate to cover the Company's potential liability.
Nasdaq Listing and Maintenance. The Company's Common Stock (along with
its Public Redeemable Warrants and Series B Preferred Stock) is traded in the
over-the-counter market on the Nasdaq SmallCap Market. If for any reason,
however, the Company's Common Stock is not eligible for continued listing,
Common Stock acquired by the Selling Stockholders either upon conversion of the
Preferred Stock or upon exercise of Warrants may not be readily marketable.
Under the rules of the National Association of Securities Dealers, Inc.
("NASD"), or in order to quality for continued quotation of securities on the
Nasdaq SmallCap Market, a company, among other things, must have $2,000,000 in
total assets, $1,000,000 in total capital and surplus, $1,000,000 in market
value of public float and a minimum bid price of $1.00 per share. If the Company
is unable to satisfy the requirement for continued quotation on the Nasdaq
SmallCap Market, trading, if any, in the Common Stock acquired upon the
conversion of the Preferred Stock or upon exercise of the Warrants would be
conducted in the over-the-counter market in what are commonly referred to as the
"pink sheets" or on the NASD Electronic Bulletin Board. As a result, an investor
may find it more difficult to dispose of, or to obtain accurate quotations as to
the price of, the Common Stock issuable upon conversion of the Preferred Stock
or upon exercise of the Warrants.
In addition, if the Common Stock acquired on conversion of the
Preferred Stock or upon exercise of the Warrants are removed from the Nasdaq
SmallCap Market, transactions involving the sale of the Company's Common Stock
could be subject to a rule that imposes additional sales practice requirements
on broker-dealers who sell such securities to persons other than established
customers and accredited investors (generally defined as persons with assets in
excess of $1,000,000 or annual income exceeding
9
$200,000 individually or $300,000 together with their spouse). For transactions
covered by this rule, the broker-dealer must make a special suitability
determination for the purchaser and have received the purchaser's written
consent to the transaction prior to purchase. Consequently, the rule may
restrict the ability of broker-dealers to sell the Company's securities and may
affect the ability of the Selling Stockholders, and purchasers of the Selling
Stockholders' Common Stock to sell the Company's securities in the secondary
market.
The Commission has also adopted regulations which define a "penny
stock" to be any equity security that has a market price (as defined) less than
$5.00 per share, subject to certain exceptions. For any transaction involving a
penny stock, unless exempt, the rules require the delivery, prior to the
transaction, of a disclosure schedule prepared by the Commission relating to the
penny stock market. The broker-dealer also must disclose the commissions payable
to both the broker-dealer and the registered representative, current quotations
for the securities and, if the broker-dealer is the sole marketmaker, the
broker-dealer must disclose this fact and the broker-dealer's presumed control
of the market. Finally, monthly statements must be sent disclosing recent price
information for the penny stock held in the account and information on the
limited market in penny stock. Transactions in a Nasdaq-listed security would be
exempt from all but the sole marketmaker provision for (i) issuers who have
$2,000,000 in tangible assets ($5,000,000 if the issuer has not been in
continuous operation for three years), (ii) transactions in which the customer
is an institutional accredited investor and (iii) transactions that are not
recommended by the broker-dealer. In addition, transactions in a Nasdaq security
directly with a Nasdaq marketmaker for such securities would be subject only to
the sole marketmaker disclosure and the disclosure with respect to commissions
to be paid to the broker-dealer and the registered representative.
The above-described rules may materially adversely affect the liquidity
of the market of the Company's securities.
Litigation. In January 1996, Mr. and Mrs. Eugene Dolgoff sued the
Company and certain members of the Board of Diectors in the Chancery Court in
the State of Delaware, and in connection therewith moved to preliminarily enjoin
the Company's annual stockholders' meeting scheduled for February 29, 1996. The
Dolgoffs alleged, among other things, manipulation of the election process and
breaches of the Company's charter documents. The Dolgoffs' request to
preliminarily enjoin the meeting was denied. A settlement agreement has been
entered into between the Company and the Dolgoffs, which includes, among other
things, the Company taking steps to move one of its Directors from one class to
another class so as balance the size of its three (3) classes of directors. A
hearing with respect to the settlement agreement has been scheduled before the
Delaware Chancery Court for May 23, 1997.
In April of 1995, the Company and Jules Zimmerman, Richard Hickok, Dr.
Craig Fields, Marvin Maslow, Martin Holleran and Sherman Langer were sued by
Eugene Dolgoff, a founder and former officer and employee of the Company. Mr.
Dolgoff alleges claims for breaches of his employment agreement, wrongful
discharge, tortious interference, libel and slander, and declaratory relief with
respect to the ownership of the Company's technologies, claiming that he has
certain rights with respect to the Company's technologies, breach of contract
with regard to a patent assignment agreement, a constructive trust or unjust
enrichment, or replevin, conversion, the right to obtain access to corporate
10
records, and for a declaration regarding his status as an officer. Mr. Dolgoff
is seeking damages, punitive damages and equitable relief totalling in excess of
$100 million. In April of 1996, the New York State Supreme Court issued an order
and opinion which (i) disqualified the Company's litigation counsel, Anderson,
Kill & Olick, P.C. ("Anderson, Kill") on the basis that Anderson, Kill had a
conflict of interest vis-a-vis Mr. Dolgoff, (ii) substantionally denied the
Company's motion to dismiss Mr. Dolgoff's entire complaint, and (iii) denied Mr.
Dolgoff's motion to have a receiver appointed.
The Company appealed the New York Supreme Court's decision regarding
the disqualification of Anderson, Kill and the denial of its motion to dismiss
Mr. Dolgoff's complaint. Mr. Dolgoff appealed the New York Supreme Court's
denial of his motion to have a receiver appointed. In January of 1997, the
Supreme Court of the State of New York Appellate Division First Department (the
"First Department") affirmed the lower court's disqualification of Anderson,
Kill, and the lower court's denial of the Company's motion to dismiss, but also
ordered that a receiver be appointed to protect whatever interest, if any, Mr.
Dolgoff may ultimately be able to prove that he has in any of the inventions
that Mr. Dolgoff assigned to the Company. At the present time, neither the
nature, nor scope, nor authority, nor term of the receivership has been
determined, all of which will be decided by the New York State Supreme Court,
which initially denied Mr. Dolgoff's motion for a receivership. In addition, at
this time, neither the Appellate Court, nor any other court, has determined that
Mr. Dolgoff has any proof to support his claims; the Appellate Court has merely
reaffirmed the lower court's decision that, at this preliminary stage of the
litigation, Mr. Dolgoff's complaint has satisfied procedural pleading
requirements. The Company, which vigorously denies all of Mr. Dolgoff's
allegations, believes that it has meritorious defenses with respect to all of
Mr. Dolgoff's claims and intends to vigorously defend the litigation. Moreover,
since the institution of the litigation by Mr. Dolgoff, new facts have come to
the attention of the Company. As a consequence, the Company intends, in the near
future, to amend its pleadings and file counter-claims against Mr. Dolgoff, his
affiliated companies, Breakthrough Enterprises, Inc. and Floating Images, Inc.,
and members of the board of directors of those enitities, for fraud, breach of
fiduciary duty, misappropriation of trade secrets, conversion, breach of
contract, diversion of corporate assets and opportunities, unjust enrichment,
and tortious interference with contractual relations. The Company also intends,
in connection with amending its pleadings, to seek injunctive relief and a
constructive trust, in addition to monetary damages in excess of $200 million
from Mr. Dolgoff and others.
In June of 1995 and August of 1995, two class action suits were filed
against the Company as well as certain of its officers and directors by
stockholders of the Company. In October of 1995 the plaintiffs in the second
action joined as plaintiffs in the first action and the second action was
dismissed without prejudice. In July 1996, the class action suit was dismissed
without prejudice and the plaintiffs were given an opportunity to appeal. The
class action suit now alleges numerous violations of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including, but not limited to,
violations of Section 10(b) of the Exchange Act. The suit also alleges claims
for negligent misrepresentation and for common law fraud and deceit. In
response, the Company and the individual defendents have submitted motions to
dismiss the action. These motions are pending before the Court.
In May of 1996, two of the eleven purchasers of the convertible debt
issued by the Company in a financing completed in the first quarter of 1996
commenced a lawsuit against the Company in which they sought, among other
things, orders requiring the Company to convert their convertible debt into
common stock. After the plaintiff's motion for summary judgement was dismissed,
one of the two purchasers settled their lawsuit with the Company in October,
1996. The litigation with the other debt holder remains outstanding. The Company
believes that it has meritorious defenses with respect to all of the remaining
debt holder's claims and intends to vigorously defend the litigation.
In June of 1996, a suit was filed by an individual investor against the
Company and Marvin Maslow alleging fraudulent inducement in connection with the
plaintiff's purchase of the Company's securities. In March 1997 the case was
dismissed by the U.S. District Court in Florida on jurisdictional grounds.
Except as set forth above, the Company is not presently a party to any
litigation nor, to the knowledge of management, is any material litigation
threatened against the Company.
11
THE COMPANY
General
- -------
The Company was formed to capitalize on, and is designed to generate
revenues and profits primarily from, the licensing of its proprietary
technologies and inventions to manufacturers. The Company is in the business of
identifying, developing, patenting, supporting and marketing technologies and
inventions in the electronic display information industry. The Company commenced
shipping its first product, the Digital Home Theater(TM), in March 1997. The
Digital Home Theater(TM) is a versatile, large-screen projection system that
offers consumers both a T.V. and computer display screen in family usable sizes.
The Company's Digital Home Theater(TM) incorporates a 60" rear-projection
television with a front-projection system and a large-screen SVGA computer
monitor, all in one product, which has the capability of producing image sizes
ranging from 60 to 200 inches in diameter. The product, which will initially
retail under the Company's own brand name for approximately $8,000 each, is
designed to be purchased in a three box set and can be taken home and assembled
by the consumer without tools. The Digital Home Theater(TM) integrates Texas
Instruments' DLP projection technology with the Company's patented dual use
"docking station," an innovative cabinet design allowing for interchangeable use
of rear and front projection. The Company has entered into an agreement with
Nobody Beats the Wiz, a dominant retailer in the northeast, for the sale and
distribution of its Digital Home Theater(TM).
Recent Financings
- -----------------
In February, 1996, the Company completed a private placement to
non-U.S. investors in accordance with Regulation S promulgated under the
Securities Act in which it issued an aggregate of $10,000,000 of unsecured
convertible debentures (the "Convertible Debentures") resulting in net proceeds
to the Company of $9,500,000. The Convertible Debentures bore interest at the
rate of 8% per annum, payable quarterly in arrears until the principal is paid
in full or has been converted. After sixty (60) days from issuance, up to 50% of
the Convertible Debentures were convertible into Common Stock, at the option of
the holder, and after ninety (90) days, all or any portion of the Convertible
Debentures were convertible into Common Stock at the option of the holder. The
conversion price of the Convertible Debentures were equal to 75% of the then
current market price per share of the Common Stock. The Convertible Debentures
matured in three (3) years, at which time any Convertible Debentures then
outstanding are repayable by the Company in cash or in the
12
Company's Common Stock, at the sole option of the Company. The Company has
converted or refinanced the majority of the Convertible Debentures, as more
fully described below. The Company is currently in litigation with one of the
eleven pruchasers of the Convertible Debt representing an aggregate of
$1,500,000 worth of Convertible Debentures. See "Risk Factors - Litigation."
In June of 1996, the Company issued an aggregate of $7,500,000 of a
newly created Series C Preferred Stock to an Austrian financial institution
pursuant to Regulation D promulgated under the Securities Act, resulting in net
proceeds to the Company of $7,000,000. The net proceeds from the sale of the
Series C Convertible Preferred Stock were used primarily to retire unconverted
portions of the convertible debt issued in February 1996. There currently
remains $1.5 million of convertible debt as of April 10, 1997, all of which is
held by one entity with whom the Company is currently in litigation. See "Risk
Factors - Litigation." At the present time, 5,625 shares of this Series C
Preferred Stock are eligible for conversion (4,210 of which have been converted
into an aggregate of 2,226,186 shares of the Company's Common Stock) and the
remaining 1,875 shares of Series C Preferred Stock will be elgible for
conversion on May 1, 1997. All shares of Series C Preferred Stock are
convertible at a 25% discount to the then current market price of the Company's
Common Stock at the time of conversion (the "Series C Conversion Price");
provided, however, that in the event that the Series C Conversion Price is less
than $1.50 per share, then under no circumstances can shares of Series C
Preferred Stock be converted into the Company's Common Stock until such time as
the Series C Conversion Price exceeds $1.50 per share, subject to the following:
(i) in the event that the Company fails to either ship 2,500 projectors or
generate $12,500,000 in projector revenues during the period January 1, 1997
through June 30, 1997, then the Series C Conversion Price shall be reduced by
$.50, or (ii) in the event that the Company fails to ship 2,500 projectors and
generate $12,500,000 of projector revenues during the period July 1, 1997
through December 31, 1997, then the Series C Conversion Price shall be reduced
by $.50. For a description of the terms and conditions of the Series C Preferred
Stock, see "Description of Capital Stock - Preferred Stock - Series C Preferred
Stock."
In connection with the sale of the Series C Preferred Stock the Company
also issued 750,000 common stock purchase warrants to the purchaser of the
Series C Preferred Stock to purchase 750,000 shares of Common Stock; 250,000 of
which are exercisable for three (3) years commencing December 31, 1997 for $5.00
per share; 250,000 of which are exercisable for three (3) years commencing
December 31, 1998 for $3.75 per share; and 250,000 of which are exercisable for
three (3) years commencing December 31, 1999 for $2.50 per share.
In January of 1997, the Company issued an aggregate of 35,000 shares of
6% Series D convertible preferred stock to two foreign institutional investors
for an aggregate purchase price of $3,500,000, resulting in net proceeds to the
Company of $3,500,000. Each share of Series D Preferred Stock is convertible, at
the option of the holder, into shares of the Company's Common Stock as follows:
8,750 shares on or after May 1, 1997; 8,750 shares on or after July 1, 1997;
8,750 shares on or after September 1, 1997; and 8,750 shares on or after
November 1, 1997. The Series D Preferred Stock is convertible into Common Stock
at a 25% discount to the then current market price of the Company's Common Stock
at the time of conversion (the "Series D Conversion Price"); provided, however,
that in the event that the Series D Conversion Price is less than $2.00 per
share, then under no circumstances can shares of Series D Preferred Stock be
converted into the Company's Common Stock until such time as the Series D
Conversion Price exceeds $2.00 per share, subject to the following: (i) in the
event that the Company fails to either ship 2,500 projectors or generate
$12,500,000 of projector revenues during the period January 1, 1997 through June
30, 1997, then the Series D Conversion Price shall be reduced by $.50, or (ii)
in the event that the Company fails to ship 2,500 projectors and generate
$12,500,000 of projector revenues during the period July 1, 1997 through
December 31, 1997, then the Series D Conversion Price shall be reduced by $.50.
For a description of the Series D Prefered Stock, see "Description of Capital
Stock - Preferred Stock - Series D Preferred Stock."
In connection with the sale of the Series D Preferred Stock the Company
also issued an aggregate of 210,000 common stock purchase warrants to the
purchasers of the Series D Preferred Stock to purchase an aggregate of 210,000
shares of Common Stock; 70,000 of which are exercisable for three (3) years
commencing December 31, 1997 for $2.50 per share; 70,000 of which are
exercisable for three years commencing December 31, 1998 for $3.75 per share;
and 70,000 of which are exercisable for three years commencing December 31, 1999
for $5.00 per share.
13
SELLING STOCKHOLDERS
The following table sets forth, as of April 7th hereof, the number of
the Company's shares of Common stock beneficially owned by each Selling
Stockholder, the number of shares of Common Stock that are to be offered and
sold by each Selling Stockholder pursuant to this Prospectus, and the amount and
percentage of shares to be beneficially owned by each Selling Stockholder after
the offering assuming all shares being offered pursuant to this Prospectus are
sold.
Number of
Shares
Number of Beneficially
Shares Owned Number of Owned
Prior to Shares to After this
Name and Address Offering be Offered Offering(6)
- ---------------- ------------ -------------- -----------
RBB Bank AG
Burgring 16
Salzburg, Austria 1,773,814(1) 500,000(2) 0
Weyburn Overseas Ltd.
Corner House
20 Parliament St.
P.O. Box HM245B
Hamilton HMTX
Bermuda 0 600,000(3) 0
Goodland International Investments, Ltd.
Corner House
20 Parliament St.
P.O. Box HM245B
Hamilton HMTX
Bermuda 0 1,400,000(4) 0
Pryor, Cashman, Sherman & Flynn
410 Park Avenue
New York, NY 10022 0 200,000(5) 0
----------- - ----------- -------
TOTAL 2,700,000 0
- -------------------
(1) Represents the shares of Common Stock previously registered on behalf of,
and presently issuable upon the conversion of, the remaining 3,290
shares of the Series C Preferred Stock outstanding (1,875 of which are not
eligible for conversion until May 1, 1997). Also assumes that all shares of
Common Stock issuable upon conversion of the remaining Series C Preferred
Stock is beneficially owned by the Selling Stockholder.
(2) Represents additional shares of Common Stock being registered for
issuance upon conversion of Series C Convertible Stock.
(3) Assumes that the 10,500 shares of Series D Preferred Stock owned by the
Selling Stockholder is convertible into 600,000 shares of Common Stock and
shares of the Series D Preferred Stock is beneficially owned by the Selling
Stockholder.
(4) Assumes that the 24,500 shares of Series D Preferred Stock owned by the
Selling Stockholder is convertible into 1,400,000 shares of Common Stock
and all shares of the Series D Preferred Stock is beneficially owned by the
selling stockholder
(5) Represents shares of Common Stock that may by issued from time to time to
Selling Stockholder for legal services to be rendered in connection with
the litigation regarding Mr. Eugene Dolgoff. See "Risk Factors -
Litigation."
14
(6) Assumes all of the Common Stock being offered pursuant to this Prospectus
are sold by the Selling Stockholder.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the sale of the shares
of Common Stock by the Selling Stockholders pursuant to this Prospectus. The
securities offered by this Prospectus may be sold from time to time by all of
the Selling Stockholders. Usual and customary or specifically negotiated
brokerage fees or commissions may be paid by the Selling Stockholders.
The Selling Stockholder through whom such securities are sold may be
deemed "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered, and any
profits realized or commissions received may be deemed underwriting
compensation. The Company has agreed to indemnify the Selling Stockholders
against certain liabilities, including liabilities under the Securities Act.
At the time a particular offer of the shares is made by or on the
behalf of a Selling Stockholder, to the extent required, a Prospectus Supplement
will be distributed which will set forth the number of shares being offered and
the terms of the offering, including the name or names of any underwriters,
dealers or agents, the purchase price paid by any underwriter for shares
purchased from the Selling Stockholders, any discounts, commissions and other
items constituting compensation from the selling Stockholders and any discounts,
commissions or concessions allowed or reallowed or paid to dealers, and the
proposed selling price to the public.
The shares of Common Stock may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, at varying prices
determined at the time of sale, or at negotiated prices. Such prices will be
determined by the Selling Stockholders or by agreement between the Selling
Stockholders and any underwriters.
In order to comply with the applicable securities laws of certain
states, if any, the shares of Common Stock will be offered or sold through
registered or licensed brokers or dealers in those states. In addition, in
certain states the shares of
15
Common Stock may not be offered or sold unless they have been registered or
qualified for sale in such states or an exemption from such registration or
qualification requirement is available and is complied with.
Under applicable rules and regulations promulgated under the Exchange
Act, any person engaged in a distribution of securities may not simultaneously
bid for or purchase securities of the same class for a period of two business
days prior to the commencement of such distribution. In addition, and without
limiting the foregoing, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including without limitation Rules 10b-2, 10b-5, 10b-6 and 10b-7, in connection
with transactions in the shares during the effectiveness of the Registration
Statement of which this Prospectus is a part. All of the foregoing may affect
the marketability of the shares of Common Stock.
The Company will pay all of the expenses incident to the registration
of the shares of Common stock other than any fees or expenses of any counsel
retained by the Selling Stockholders and any out of pocket expenses incurred by
the Selling Stockholders or any person retained by the Selling Stockholders in
connection with the registration of the shares, fees and expenses of compliance
with state securities or blue sky laws and commissions and discounts of
underwriters, dealers or agents, if any. The expenses payable by the Company are
estimated to be $20,000.
16
DESCRIPTION OF CAPITAL STOCK
The authorized securities of the Company consists of 30,000,000
authorized shares of Common Stock, par value $.0001 per share, 16,815,314 shares
of which were outstanding as of April 7, 1997; and 1,000,000 authorized shares
of preferred stock of which 100 shares of Series A Preferred Stock were
outstanding on April 7, 1997, 351,258 shares of Series B Preferred Stock were
outstanding, 3,290 shares of Series C Preferred Stock were outstanding on April
7, 1997 and 35,000 shares of Series D Preferred Stock were outstanding on April
7, 1997.
Common Stock
- ------------
Holders of Common Stock are entitled to dividends from funds available
therefor when, as and if declared by the Board of Directors of the Company and
are entitled to share ratably in all of the assets of the Company available for
distribution to holders of Common Stock upon the liquidation, dissolution or
winding up of the affairs of the Company after any priority distribution to
which holders of Series B Preferred Stock are entitled has been distributed.
Holders of Common Stock do not have preemptive, subscription or conversion
rights. There are no redemption of sinking fund provisions in the Company's
Restated Certificate of Incorporation. All shares of Common Stock to be sold by
the Company in this Offering will be fully paid and nonassessable.
Holders of Common Stock are entitled to one (1) vote for each share of
Common Stock held on record on matters submitted to a vote of stockholders. The
Common Stock does not have cumulative voting rights.
Preferred Stock
- ----------------
Series A Preferred Stock
------------------------
The Company has issued one hundred (100) shares of Series A Preferred
Stock, par value $.01 per share, to Martin D. Fife in connection with the
Merger. No other shares of Series A Preferred Stock are authorized or
outstanding. The holder of Series A Preferred Stock is entitled to a preference
of $1,000 per share ($100,000 in the aggregate) upon the liquidation,
dissolution or winding up of the affairs of the Company prior to any
distributions to which holders of Common Stock are entitled. After receipt of
such preferential distributions, the holder of Series A Preferred Stock, as
such, will not be entitled to any additional distributions. Except as required
by law, the holder of Series A Preferred Stock is not entitled to vote, receive
dividends and does not have any preemptive, subscription, conversion or
redemption rights.
17
Series B Preferred Stock
The Company has issued and outstanding 351,258 shares of Series B
Preferred Stock as of February 10, 1997. The terms of the Series B Preferred
Stock are set forth in the Certificate of Designation and Preferences (the
"Series B Certificate") which is summarized below.
Voting Rights
The Series B Preferred Stock has no voting rights except as provided by
law.
Dividends
Holders of shares of Series B Preferred Stock are entitled to receive,
of, when and as declared by the Board of Directors out of funds legally
available therefor, cumulative annual dividends of $.40 per share or eight
percent (8%) per annum (based upon a liquidation preference of $5.00 per share)
solely in Common Stock. Such dividends shall be payable semi-annually on March
9th and September 9th of each year, to holders of record as of a record date no
more than fifty days prior to such dividend payment date as may be fixed by the
Board. Dividends on the Series B Preferred Stock will be cumulative and will
accrue from the date of initial issuance. Holders of the Series B Preferred
Stock shall not be entitled to any dividends, whether payable in cash, property
or securities, in excess of the full cumulative dividends. The amount of
dividends payable for the initial dividend period or any period shorter than a
full dividend period shall be computed on the basis of a 360-day year of twelve
30-day months.
If the Company pays all or any portion of a dividend in Common Stock,
the number of shares of Common Stock to be issued by the Company in payment of
such portion shall be the dollar amount of such portion divided by the Computed
Price (as defined below) of the Common Stock.
The "Computed Price" of a share of Common Stock, as defined in the
Series B Certificate, means the price equal the average Closing Sale Price of
the Common Stock for the twenty (20) consecutive trading days ending on the
fifth trading day prior to the applicable dividend payment date.
For purposes of this provision, the "Closing Sales Price" of the Common
Stock on any date means the closing sale price (or if no such price is reported,
the closing bid price) on such date as reported in the composite transactions
for the principal United States securities exchange on which the Common Stock is
traded or, if the Common Stock is not listed on a United States national or
regional stock exchange, as reported by NASDAQ or the National
18
Quotation Bureau Incorporated, or if the Common Stock is not so listed and such
closing sale price and closing bid are not reported by NASDAQ or the National
Quotation Bureau Incorporated, then such price shall be determined by the Board
in good faith, such determination to be conclusive.
No interest or sum of money in lieu of interest shall be payable in
respect to any dividend payment or payments which may be in arrears.
Under Delaware law, cash dividends may be paid only out of unrestricted
and unreserved earned surplus, except that cash dividends may be paid on the
Series B Preferred Stock, in the absence of earned surplus, out of unrestricted
capital surplus in discharge of cumulative dividends. Stock dividends require
the availability of surplus at least to the extent of the aggregate par value of
the shares issued.
Conversion
Each share of Series B Preferred Stock may be converted by the holder
into one (1) share of Common Stock, subject to adjustment, commencing September
9, 1993.
The conversion rate is subject to adjustment upon the occurrence of
certain events, including (i) the payment of a dividend in shares of Common
Stock to holders of Common Stock or a dividend to holders of Common Stock
payable in shares of the Company's capital stock other than Common Stock; (ii)
the subdivision or combination of outstanding share of Common Stock; (iii)
issuance to all holders of Common Stock of rights and Public Redeemable Warrants
entitling them for a period of not more than forty-five (45) days to purchase
shares of Common Stock (or securities convertible into Common Stock) at a price
per share (or having a conversion price per share) less than the then current
per share market price for such Common Stock; and (iv) the distribution to all
holders of Common Stock of evidences of indebtedness or assets (excluding cash
dividends) or rights or Public Redeemable Warrants (other than those referred to
above). No adjustment of the conversion rate will be required until cumulative
adjustments would require an increase or decrease of at least 1% in the number
of shares of Common Shares into which each share of Series B Preferred Stock is
then convertible. No adjustment of the conversion rate will be made for cash
distributions or cash dividends.
The Company also has the option, exercisable at any time, to increase
the conversion rate, so long as such increase is for a minimum period of twenty
(20) days and is irrevocable during such period and the Company notifies holders
of Series B Preferred Stock at least fifteen (15) days prior to the date on
which the reduced conversion price takes effect.
19
In case of any consolidation or merger to which the Company is a party
other than a merger or consolidation in which the Company is the surviving
corporation, in case of any statutory exchange of securities with another
corporation, or in case of any sale or conveyance to another corporation of all
or substantially all of the assets of the Company, there will be no adjustment
of the conversion rate but each holder of a share of Series B Preferred Stock
then outstanding will have the right thereafter to convert such share solely
into the kind and amount of securities, cash or other property receivable upon
such consolidation, merger, statutory exchange, sale or conveyance by a holder
of the number of shares of Common Stock into which each such share of Series B
Preferred Stock might have been converted immediately prior to such
consolidation, merger, statutory exchange, sale or conveyance, assuming such
holder of Common Stock failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance (provided, that if
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance is not the same
for each non-electing share, as to the kind and amount of securities, cash or
other property receivable upon such consolidation, merger, statutory exchange,
sale or conveyance for each non-electing share shall be deemed to be the kind
and amount so receivable per share by plurality of the non-electing share). In
the case of a cash merger of the Company into another corporation or any other
cash transaction of the type mentioned above, the effect of these provisions
would be that the conversion features of the Series B Preferred Stock would
thereafter be limited to converting the Series B Preferred Stock at the
conversion rate in effect at such time into the same amount of cash per share
that such holder would have received had such holder converted the Series B
Preferred Stock into Common Stock immediately prior to the effective date of
such cash merger or transaction. Depending upon the terms of such cash merger or
transaction, the aggregate amount of cash so received on conversion could be
more or less than the liquidation preference of the Series B Preferred Stock.
Liquidation Rights
In the event of any liquidation , dissolution or winding up of the
Company, the holders of shares of Series B Preferred Stock shall be entitled to
receive, from the Company's assets available for distribution to shareholders,
$5.00 per share plus accrued and unpaid dividends to the date fixed for
distribution before any distribution of assets may be made to holders of Common
Stock or any other class of stock of the Company or series thereof ranking
junior to the Series B Preferred Stock with respect to the distribution of
assets. If upon any liquidation, dissolution or winding up of the company, the
amounts payable with respect to
20
the Series B Preferred Stock and any other shares of stock of the Company
ranking as to any such distribution on a parity with the Series B Preferred
Stock are not paid in full, the holders of the Series B Preferred Stock and of
such other shares will share ratably in any such distribution of assets of the
Company in proportion to the full respective preferential amounts to which they
are entitled. After payment of the full amount of the liquidating distribution
to which they are entitled, the holders of shares of Series B Preferred Stock
will not be entitled to any further participation in any distribution of assets
by the Company. Such liquidation rights are not triggered by any consolidation
or merger of the Company with or into any other corporations, or by any sale,
transfer or lease of all or substantially all of the Company's assets, provided
that in each case effective provision is made by the resulting and surviving
corporation or otherwise for the protection of the rights of the holders of
Series B Preferred Stock.
Optional Redemption
The Series B Preferred Stock may be redeemed by the Company commencing
September 9, 1994, if the Closing Sales Price of the Common Stock equals or
exceeds $5.00 for twenty (20) trading days within a period of thirty (30)
consecutive trading days ending no more than five days prior to the notice of
redemption. Subject to the foregoing, the Series B Preferred Stock is redeemable
at the option of the Company at any time as a whole or from time to time in
part, on at least 30 and not more than sixty (60) days notice.
The redemption price for each share of Series B Preferred Stock is
$1.00 per share.
On or after the redemption date, dividends will cease to accumulate on
shares of Series B Preferred Stock called for redemption provided that the
redemption price (including any accrued but unpaid dividends to the date fixed
for redemption) has been duly paid or provided for.
If fewer than all of the shares of Series B Preferred Stock are to be
redeemed at any time, the Company will select those to be redeemed pro rata, by
lot or by a substantially equivalent method.
Series C Preferred Stock
The Company has issued and outstanding 3,290 shares of Series C
Preferred Stock as of April 7, 1997. The terms of the Series C Preferred Stock
are set forth in the Certificate of Designation of Convertible Series C
Preferred Stock (the "Series C Certificate") which is summarized below.
21
Voting Rights
The Series C Preferred Stock has no voting rights except as provided by
law.
Dividends
The holders of the Series C Preferred Stock are entitled to receive if,
when and as declared by the Board of Directors out of funds legally available
therefor, cumulative dividends, payable in cash or common stock of the Company,
par value $.0001 per share (the "Common Stock") at the Company's election, at
the rate of 3% per annum of the Liquidation Value of the Series C Preferred
Stock until and through June 30, 1997, at the rate of 6% per annum of the
Liquidation Value of the Series C Preferred Stock commencing July 1, 1997 until
and through June 30, 1998, and at the rate of 8% per annum of the Liquidation
Value of the Series C Preferred Stock commencing on July 1, 1998 and at any time
thereafter. The Liquidation Value shall be equal to $1,000.00 per share (the
"Dividend Rate"). The dividend is payable semi-annually within seven (7)
business days after each of December 31 and June 30 of each year, commencing
December 31, 1996 (each, a "Dividend Declaration Date"). Dividends shall be paid
only with respect to shares of Series C Preferred Stock actually issued and
outstanding on a Dividend Declaration Date and to the holders of record as of
the Dividend Declaration Date. Dividends shall accrue from the first day of the
semi-annual period in which such dividend may be payable, except with respect to
the first semi-annual dividend which shall accrue from the date of issuance of
the Preferred Stock, June 12, 1996. In the event that the Company elects to pay
dividends in Common Stock, each holder of Series C Preferred Stock shall receive
shares of Common Stock equal to the quotient of (i) the Dividend Rate in effect
on the applicable Dividend Declaration Date divided by (ii) the average of the
closing bid quotation of the Common Stock as reported on the over-the-counter
market, or the closing sale price if listed on a national exchange, for the five
(5) trading days immediately prior to the Dividend Declaration Date (the "Stock
Dividend Price").
Conversion
The holders of the Series C Preferred Stock shall have conversion
rights as follows (the "Conversion Rights"):
(a) Right to Convert. The Series C Preferred Stock shall be
convertible as follows:
(i) Up to One Thousand Eight Hundred and Seventy-Five
(1,875) shares of Series C Preferred Stock may be converted at the
Conversion Price (as that term is defined in Section (b) below) at
any time on or
22
after November 1, 1996, provided that any such shares of Common
Stock issued upon conversion pursuant to this Section 3(a)(i)
cannot be sold, transferred, pledged or hypothecated on or before
December 1, 1996;
(ii) Up to One Thousand Eight Hundred and Seventy-Five
(1,875) shares of Series C Preferred Stock may be converted at the
Conversion Price at any time on or after January 1, 1997;
(iii) Up to One Thousand Eight Hundred and Seventy-Five
(1,875) shares of Series C Preferred Stock may be converted at the
Conversion Price on or after March 1, 1997; and
(iv) The remaining One Thousand Eight Hundred
Seventy-Five (1,875) shares of Series C Preferred Stock may be
converted at the Conversion Price at any time on or after May 1,
1997.
(b) Conversion Price. As used herein, the term Conversion Price shall
be the product of (i) the average closing bid quotation of the Common Stock as
reported on the over-the-counter market, or the closing sale price if listed on
a national securities exchange, for the five (5) trading days immediately
preceding the date of the Conversion Notice referred to in Section 3(c) below
multiplied by (ii).75. Notwithstanding the foregoing, the Conversion Price
shall, in no event, be less than $2.00 (the "Minimum Conversion Price");
provided, however, that the Minimum Conversion Price shall be subject to
reduction as follows: (i) in the event that the Company fails to ship 1,000
television units or fails to receive $5,000,000 in gross sales prior to December
31, 1996, the Minimum Conversion Price shall be reduced by $.50; (ii) in the
event that the Company fails to ship 2,500 television units or receive
$12,500,000 in gross sales for the period commencing January 1, 1997 and
continuing until and through June 30, 1997, the Minimum Conversion Price shall
be reduced by $.50; and (iii) in the event that the Company fails to ship 2,500
television units or receive $12,500,000 in gross sales for the period July 1,
1997 and continuing until and through December 31, 1997, the Minimum Conversion
Price shall be reduced by $.50. The Company failed to ship 2500 units or receive
$12,500,000 in gross sales prior to December 31, 1996 and as a consequence, in
accordance with the terms of the Series C Preferred Stock, the Minimum
Conversion Price was reduced by $.50.
(c) Adjustments to Conversion Price for Stock Dividends and for
Combinations or Subdivisions of Common Stock. If the Company at any time or from
time to time while shares of Series C Preferred Stock are issued and outstanding
shall declare or pay, without consideration, any dividend on the Common Stock
payable in Common Stock, or shall effect a subdivision of the outstanding shares
of Common Stock into a greater number of shares of Common Stock (by stock split,
reclassification or otherwise than by payment of a dividend in Common Stock or
in any
23
right to acquire Common Stock), or if the outstanding shares of Common Stock
shall be combined or consolidated, by reclassification or otherwise, into a
lesser number of shares of Common Stock, then the Conversion Price in effect
immediately before such event shall, concurrently with the effectiveness of such
event, be proportionately decreased or increased, as appropriate. If the Company
shall declare or pay, without consideration, any dividend on the Common Stock
payable in any right to acquire Common Stock for no consideration, then the
Company shall be deemed to have made a dividend payable in Common Stock in an
amount of shares equal to the maximum number of shares issuable upon exercise of
such rights to acquire Common Stock.
(d) Adjustments for Reclassification and Reorganization. If the
Common Stock issuable upon conversion of the Series C Preferred Stock shall be
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided for in
paragraph (d) of this Section 3), the Conversion Price then in effect shall,
concurrently with the effectiveness of such reorganization or reclassification,
be proportionately adjusted so that the Series C Preferred Stock shall be
convertible into, in lieu of the number of shares of Common Stock which the
holders would otherwise have been entitled to receive, a number of shares of
such other class or classes of stock equivalent to the number of shares of
Common Stock that would have been subject to receipt by the holders upon
conversion of the Series C Preferred Stock immediately before that change.
Liquidation Preference.
The holders of shares of Series C Preferred Stock will be entitled to
receive, in the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, out of or to the extent of the net
assets of the Company legally available for such distribution, before any
distributions are made with respect to any Common Stock or any stock ranking
junior to the Series C Preferred Stock, $1,000.00 per share, plus any declared
but unpaid dividends (the "Liquidation Preference"). After payment of the full
amount of the Liquidation Preference, the holders of shares of Series C
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company.
Series D Preferred Stock
The Company has issued and outstanding 35,000 shares of Series D
Preferred Stock as of April 7, 1997. The terms of the Series D Preferred Stock
are set forth in the Certificate of Designation of Convertible Series D
Preferred Stock (the "Series
24
D Certificate") which is summarized below.
Voting Rights
The Series D Preferred Stock has no voting rights except as provided by
law.
Dividends
The holders of the Series D Preferred Stock are entitled to receive if,
when and as declared by the Board of Directors out of funds legally available
therefor, cumulative dividends, payable in cash or common stock of the Company,
par value $.0001 per share (the "Common Stock") at the Company's election, at
the rate of 6% per annum of the Liquidation Value of the Series D Preferred
Stock until and through June 30, 1997, at the rate of 6% per annum of the
Liquidation Value of the Series C Preferred Stock commencing July 1, 1997 until
and through June 30, 1998, and at the rate of 8% per annum of the Liquidation
Value of the Series C Preferred Stock commencing on July 1, 1998 and at any time
thereafter. The Liquidation Value shall be equal to $1,000.00 per share (the
"Dividend Rate"). The dividend is payable semi-annually within seven (7)
business days after each of December 31 and June 30 of each year, commencing
December 31, 1996 (each, a "Dividend Declaration Date"). Dividends shall be paid
only with respect to shares of Series C Preferred Stock actually issued and
outstanding on a Dividend Declaration Date and to the holders of record as of
the Dividend Declaration Date. Dividends shall accrue from the first day of the
semi-annual period in which such dividend may be payable, except with respect to
the first semi-annual dividend which shall accrue from the date of issuance of
the Preferred Stock, June 12, 1996. In the event that the Company elects to pay
dividends in Common Stock, each holder of Series C Preferred Stock shall receive
shares of Common Stock equal to the quotient of (i) the Dividend Rate in effect
on the applicable Dividend Declaration Date divided by (ii) the average of the
closing bid quotation of the Common Stock as reported on the over-the-counter
market, or the closing sale price if listed on a national exchange, for the five
(5) trading days immediately prior to the Dividend Declaration Date (the "Stock
Dividend Price").
Conversion
The holders of the Series D Preferred Stock shall have conversion
rights as follows (the "Conversion Rights"):
(a) Right to Convert. The Series D Preferred Stock shall be
convertible as follows:
(i) Up to Eight Thousand Seven Hundred and Fifty (8,750)
shares of Series D Preferred Stock may be
25
converted at the Conversion Price (as that term is defined in
Section (b) below) at any time on or after April 1, 1997;
(ii) Up to Eight Thousand Seven Hundred and Fifty (8,750)
shares of Series D Preferred Stock may be converted at the
Conversion Price at any time on or after July 1, 1997;
(iii) Up to Eight Thousand Seven Hundred and Fifty
(8,570) shares of Series D Preferred Stock may be converted at the
Conversion Price on or after September 1, 1997; and
(iv) The remaining Eight Thousand Seven Hundred Fifty
(8,750) shares of Series D Preferred Stock may be converted at the
Conversion Price at any time on or after November 1, 1997.
(b) Conversion Price. As used herein, the term Conversion Price
shall be the product of (i) the average closing bid quotation of the Common
Stock as reported on the over-the-counter market, or the closing sale price if
listed on a national securities exchange, for the five (5) trading days
immediately preceding the date of the Conversion Notice referred to in Section
3(c) below multiplied by (ii).75. Notwithstanding the foregoing, the Conversion
Price shall, in no event, be less than $2.00 (the "Minimum Conversion Price");
provided, however, that the Minimum Conversion Price shall be subject to
reduction as follows: (i) in the event that the Company fails to ship 2,500
television units or receive $12,500,000 in gross sales for the period commencing
January 1, 1997 and continuing until and through June 30, 1997, the Minimum
Conversion Price shall be reduced by $.50; and (ii) in the event that the
Company fails to ship 2,500 television units or receive $12,500,000 in gross
sales for the period July 1, 1997 and continuing until and through December 31,
1997, the Minimum Conversion Price shall be reduced by $.50.
(c) Adjustments to Conversion Price for Stock Dividends and for
Combinations or Subdivisions of Common Stock. If the Company at any time or from
time to time while shares of Series DC Preferred Stock are issued and
outstanding shall declare or pay, without consideration, any dividend on the
Common Stock payable in Common Stock, or shall effect a subdivision of the
outstanding shares of Common Stock into a greater number of shares of Common
Stock (by stock split, reclassification or otherwise than by payment of a
dividend in Common Stock or in any right to acquire Common Stock), or if the
outstanding shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Common Stock,
then the Conversion Price in effect immediately
26
before such event shall, concurrently with the effectiveness of such event, be
proportionately decreased or increased, as appropriate. If the Company shall
declare or pay, without consideration, any dividend on the Common Stock payable
in any right to acquire Common Stock for no consideration, then the Company
shall be deemed to have made a dividend payable in Common Stock in an amount of
shares equal to the maximum number of shares issuable upon exercise of such
rights to acquire Common Stock.
(d) Adjustments for Reclassification and Reorganization. If the
Common Stock issuable upon conversion of the Series C Preferred Stock shall be
changed into the same or a different number of shares of any other class or
classes of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided for in
paragraph (d) of this Section 3), the Conversion Price then in effect shall,
concurrently with the effectiveness of such reorganization or reclassification,
be proportionately adjusted so that the Series DC Preferred Stock shall be
convertible into, in lieu of the number of shares of Common Stock which the
holders would otherwise have been entitled to receive, a number of shares of
such other class or classes of stock equivalent to the number of shares of
Common Stock that would have been subject to receipt by the holders upon
conversion of the Series DC Preferred Stock immediately before that change.
Liquidation Preference.
The holders of shares of Series D Preferred Stock will be entitled to
receive, in the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, out of or to the extent of the net
assets of the Company legally available for such distribution, before any
distributions are made with respect to any Common Stock or any stock ranking
junior to the Series DC Preferred Stock, $100.00 per share, plus any declared
but unpaid dividends (the "Liquidation Preference"). After payment of the full
amount of the Liquidation Preference, the holders of shares of Series D
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company.
Public Redeemable Warrants
The Public Redeemable Warrants were issued by the Company pursuant to
an agreement (the "Warrant Agreement") dated as of the effective date of the
initial public offering, July 24, 1990, by and between the Company and
Continental Stock Transfer & Trust Company (the "Warrant Agent"). The following
discussion of certain terms and provisions of the Public Redeemable Warrants
gives effect to the Company's March 1992 two-for-one stock split and is
qualified in its entirety by reference to the detailed
27
provisions of the Warrant Agreement, the form of which has been filed as an
exhibit to the Registration Statement relating to the Company's initial public
offering.
Each Public Redeemable Warrant presently represents the right of the
registered holder to purchase two (2) shares of Common Stock at an exercise
price of $1.50 per share until July 24, 1995, subject to adjustment (the
"Purchase Price"). The Company has the right to reduce the Purchase Price or
increase the number of shares issuable upon the exercise of Public Redeemable
Warrants commencing July 24, 1991. The Public Redeemable Warrants will be
entitled to the benefit of adjustments in the Purchase Price and in the number
of shares of Common Stock and/or other securities deliverable upon exercise
thereof in the event of a stock dividend, stock split, reclassification,
reorganization, consolidation or merger.
Each Public Redeemable Warrant expires on July 23, 1998 (the
"Expiration Date"), subject to extension. The Company may at any time extend the
Expiration Date of all outstanding Public Redeemable Warrants for such increased
period of time as it may determine.
At any time prior to the close of business on the Expiration Date (on
which date the Public Redeemable Warrants become wholly void and of no value),
the Public Redeemable Warrants may be exercised at the office of the Warrant
Agent except as otherwise set forth below.
Under the provisions of the Warrant Agreement, the Company has the
right at any time commencing on the later of January 24, 1991 or six months
after the Separation Date to redeem the Public Redeemable Warrants in whole for
cancellation at a price of $.10 each, by written notice mailed 30 days prior to
the redemption date to each Redeemable Warrant holder at his address as it
appears on the books of the Warrant Agent, such notice only to be given within
15 days following any period of 20 consecutive trading days during which the
average closing bid price for the shares of Common Stock (if then traded on the
National Association of Securities Dealers, Inc. Automated Quotation System or
on a national securities exchange) equals or exceeds $3.94 per share, subject to
adjustments for stock dividends, splits and the like. If the Public Redeemable
Warrants are called for redemption and cancellation, they must be exercised
prior to the close of business on the date of any such redemption and
cancellation or the right to purchase the applicable shares of Common Stock is
forfeited.
No holder, as such, of any Public Redeemable Warrant shall be entitled
to vote or receive dividends or be deemed the holder of shares of Common Stock
for any purpose whatsoever until such Public Redeemable Warrant has been duly
exercised and the
28
Purchase Price has been paid.
The Company is required either to maintain the effectiveness of the
Registration Statement or to file a new registration statement with the
Securities and Exchange Commission, with respect to the securities underlying
the Public Redeemable Warrants prior to the exercise of the Public Redeemable
Warrants and to deliver a prospectus as required by Section 10(a)(3) of the
Securities Act of 1933, as amended, with respect to such securities to all
Redeemable Warrant holders prior to the exercise or redemption of such Public
Redeemable Warrants.
Transfer Agent, Registrar and Warrant Agent
The Company has appointed Continental Stock Transfer & Trust Company, 2
Broadway, New York, NY 10004 as transfer agent and registrar for the Units, the
Common Stock and the Public Redeemable Warrants, and as Warrant Agent under the
Warrant Agreement.
MARKET FOR THE COMPANY'S COMMON EQUITY AND DIVIDENDS
The Company's Common Stock, Public Redeemable Warrants and Series B
Preferred Stock are quoted on NASDAQ under the following symbols:
Common Stock: PJTV
Public Redeemable Warrants: PJTVW
Series B Preferred Stock: PJTVP
The Common Stock and Public Redeemable Warrants were initially
registered and traded as Units and were not separately transferrable until
August 24, 1991. The Units commenced trading in the over-the-counter market on
the closing of the Company's initial public offering on August 1, 1990.
On February 27, 1992 the Company announced a two-for-one stock split,
effective March 2, 1992. Accordingly, all quoted prices for the Company's
securities commencing with the first quarter of 1992 are adjusted to reflect the
March 1992 two-for-one stock split.
29
The Series B Preferred Stock was initially registered on September 9,
1992 in connection with the Company's Public Redeemable Warrant incentive
program (the "Warrant Incentive Program"). Prior to that time, there was no
public market for the Series B Preferred Stock. Pursuant to the Warrant
Incentive Program, holders of the Company's Public Redeemable Warrants who
exercised their Public Redeemable Warrants within 65 days after September 9,
1992 received one (1) share of Series B Preferred Stock for every three (3)
Public Redeemable Warrants exercised. In connection with the Warrant Incentive
Program, the Company issued 246,452 shares of Series B Preferred Stock.
The Common Stock, Public Redeemable Warrants and Series B Preferred
Stock of the Company are traded in the over-the-counter market and are quoted on
the NASDAQ inter-dealer automated quotations system. There is no public trading
market for the Company's Series A Preferred Stock and only one (1) holder
thereof. The high and low bid quotations for the Common Stock, Public Redeemable
Warrants and Series B Preferred Stock for each full quarterly period for the
fiscal years ending December 31, 1994, December 31, 1995 and December 31, 1996
for the first quarter of 1997 and the second quarter of 1997 through April 7,
1997 are listed below:
30
PUBLIC
REDEEMABLE SERIES B
COMMON STOCK WARRANTS PREFERRED STOCK
1994 Calendar Quarter Quoted Bid Price Quoted Bid Price Quoted Bid Price
- --------------------- ----------------- ---------------- ----------------
High Low High Low High Low
------ ----- ------ ----- ------ -----
First Quarter 11.00 5.75 17.00 9.00 11.00 5.75
Second Quarter 8.50 4.88 12.50 7.00 8.25 4.75
Third Quarter 6.13 4.13 9.00 5.00 6.00 4.50
Fourth Quarter 6.50 3.13 9.00 6.50 6.25 3.50
PUBLIC
REDEEMABLE SERIES B
COMMON STOCK WARRANTS PREFERRED STOCK
1995 Calendar Quarter Quoted Bid Price Quoted Bid Price Quoted Bid Price
- --------------------- ----------------- ---------------- ----------------
High Low High Low High Low
------ ----- ------ ----- ------ -----
First Quarter 3.67 2.50 4.17 2.67 4.00 3.04
Second Quarter 3.30 1.81 3.17 1.33 3.58 2.29
Third Quarter 3.90 2.54 4.38 2.50 4.13 2.92
Fourth Quarter 5.52 3.44 7.83 5.33 5.83 4.25
PUBLIC
REDEEMABLE SERIES B
COMMON STOCK WARRANTS PREFERRED STOCK
1996 Calendar Quarter Quoted Bid Price Quoted Bid Price Quoted Bid Price
- --------------------- ----------------- ---------------- ----------------
High Low High Low High Low
------ ----- ------ ----- ------ -----
First Quarter 4.56 4.00 5.25 5.00 6.00 5.00
Second Quarter 3.56 2.19 4.00 3.25 4.00 3.00
Third Quarter 4.00 2.81 6.13 4.25 4.50 4.00
Fourth Quarter 3.69 2.56 6.50 5.50 3.50 2.75
PUBLIC
REDEEMABLE SERIES B
COMMON STOCK WARRANTS PREFERRED STOCK
1997 Calendar Quarter Quoted Bid Price Quoted Bid Price Quoted Bid Price
- --------------------- ----------------- ---------------- ----------------
High Low High Low High Low
------ ----- ------ ----- ------ -----
First Quarter 3.47 2.00 5.50 2.00 3.75 2.25
Second Quarter 2.43 2.50 3.00 3.00 2.75 2.75
(through April 7, 1997)
On April 7, 1997, the closing bid and asked prices of Common Stock
as reported on the NASDAQ system were $2.50 and $2.6875 per share,
respectively. On April 7, 1997, the closing bid and asked prices of Public
Redeemable Warrants as reported on the NASDAQ system were $3.00 and $5.00 per
Public Redeemable Warrant, respectively. On April 7, 1997, the closing bid
and asked prices of Series B Preferred Stock on the NASDAQ system were $2.75 and
$3.50, respectively.
On April 7, 1997, there were 405 holders of record of
31
Common Stock and 16,815,341 shares of Common Stock issued and outstanding; 4
holders of record of Public Redeemable Warrants and 36,135 Warrants issued and
outstanding; and 7 holders of record of Series B Preferred Stock and 351,258
shares of Series B Preferred Stock issued and outstanding.
No cash dividends have been paid by the Company and management does not
anticipate paying cash dividends in the foreseeable future.
32
LEGAL MATTERS
The validity of the shares of Common Stock will be passed upon for the
Company by Zukerman Gore & Brandeis, LLP, New York, New York.
EXPERTS
The financial statements of the Company for the year ended December 31,
1995 incorporated in this Prospectus by reference to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996 have been so incorporated in
reliance on the report of Deloitte & Touche, LLP, independent accountants, given
upon the authority of that firm as experts in auditing and accounting.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company in accordance with the
Exchange Act can be inspected and copies made at the public reference facilities
maintained by the Commission at Room 1204, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, DC 20549, Suite 1400, Northwestern Atrium Center, 500 West
Madison Street, Chicago, IL 60661 and 7 World Trade Center, New York, NY 10048.
Copies of such material can be obtained at prescribed rates from the public
reference section of the Commission at 450 Fifth Street, N.W., Washington, DC
20549. The Commission maintains a Web-site that contains reports, proxy and
information statements and other information regarding the Company that are on
file with the Commission. The address of the Commission's Web-site is
http://www.see.gov.
The Company has filed with the Commission a Registration Statement on
Form S-3 (including all amendments thereto, the "Registration Statement"), with
respect to the Securities offered hereby. As permitted by the rules and
regulations of the Commission, this Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto. For further information about the Company and the Securities
offered hereby, reference is made to the Registration Statement and the exhibits
thereto, which may be examined without charge at the public reference facilities
maintained by the Commission at Room 1204, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, DC 20549, and copies of which may be obtained from the
Commission upon payment of the prescribed fees.
No person has been authorized by the Company to give any
33
information or to make any representation other than as contained in this
Prospectus and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company. Neither the delivery of
this Prospectus nor any distribution of the shares of the Common Stock issuable
under the terms of this Prospectus, under any circumstances, create any
implication that there has been no change in the affairs of the Company since
the date hereof.
34
No dealer, salesman or other person has been authorized to give any information
or to make any representations not contained in this Prospectus and if given or
made, such information or representations must not be relied upon as having been
authorized by the Company or any Underwriter. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any circumstances create any
implication that there has been no change in the affairs of the Company since
the date hereof. 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 make such offer or solicitation in such
jurisdiction.
TABLE OF CONTENTS
Page
----
Incorporation of Certain
Documents by Reference.......
Prospectus Summary............
Risk Factors..................
The Company...................
Selling Stockholders..........
Plan of Distribution..........
Description of
Capital Stock................
Market for the Company's
Common Equity
and Dividends...............
Legal Matters.................
Experts.......................
Available Information.........
PROJECTAVISION, INC.
2,700,000 Shares of Common Stock,
Offered by Selling Stockholders
----------------------------
PROSPECTUS
----------------------------
____________________, 1997
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Items 14. Other Expenses of Issuance and Distribution.
--------------------------------------------
The following table sets forth expenses payable by the Company in
connection with the registration of the securities being registered. All of the
amounts show are estimates, other than the Securities and Exchange Commission
Registration Fee.
SEC filing fee.......................... $ 2,199.00
Accounting fees and expenses............ 7,500.00
Legal fees and expenses................. 7,500.00
Printing and engraving.................. 0.00
Transfer Agent's and Registrar fees..... 0.00
Miscellaneous expenses.................. 2,801.00
---------
Total.............................. $20,000.00
=========
Item 15. Indemnification of Directors and Officers.
------------------------------------------
The Company's Certificate of Incorporation provides for indemnification
of personal liability of the Directors of the Corporation to the fullest extent
permitted by paragraph "7" of Subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware.
Article VII of the Amended By-Laws of the Company ("By-Laws"), which is
set forth below in its entirety, provides for indemnification of officers,
directors, employees and agents substantially to the extent permitted under the
Delaware General Corporation Law.
Article VII of the Amended By-Laws provides as follows:
"ARTICLE VII"
INDEMNIFICATION
The Corporation shall (a) indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement or such action or suit, (b) indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
II-1
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he is or was a director or officer of
the Corporation, or served at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with any such action, suit or proceeding, in each case to the fullest
extent permissible under subsections (a) through (f) of Section 145 the of
General Corporation Law of the State of Delaware of the indemnification
provisions of any successor statute and (c) advance reasonable and necessary
expenses in connection with such actions or suits, and not seek reimbursement of
such expenses unless there is a specific determination that the officer or
director is not entitled to such indemnification. The foregoing right of
indemnification shall in no way be exclusive of any other rights of
indemnification to which any such persons may be entitled, under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
The Company has entered into an Indemnification Agreement with each of
its Directors and certain officers, employees, agents or fiduciaries designated
by the Board of Directors (the "Indemnified Party") which provides that the
Company indemnify the Director or other party thereto to the fullest extent
permitted by applicable law. The agreement includes indemnification, to the
extent permitted by applicable law, against expenses, including reasonable
attorneys' fees, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnified Party in connection with any
civil or criminal action or administrative proceeding arising out of the
Indemnified Party's performance of his duties as a Director or officer of the
Company. Such indemnification is available if the Indemnified Party acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Company, and, with respect to any criminal action, had
no reasonable cause to believe his conduct was unlawful.
The Company maintains officers' and directors' liability insurance that
provides for a maximum of $2,000,000 of coverage, subject to a $100,000
corporate reimbursement per occurrence payable by the Company. Any payments made
by the Company under an Indemnification Agreement which are not covered by the
insurance policy may have an adverse impact on the Company's earnings.
II-2
Item 16. Exhibits.
----------
Exhibit No.
- -----------
* 3.1 Certificate of Incorporation of the Company
** 3.2 Amendments to Certificate of Incorporation
** 3.3 Amended By-Laws of the Company
5.1 Opinion of Zukerman Gore & Brandeis, LLP
24.1 Consent of Zukerman Gore & Brandeis, LLP included in Exhibit 5.1
*** 24.2 Consent of Deloitte & Touche
- ---------------
* Previously filed as an exhibit to Registration Statement on Form
S-1, registration no. 33-33997.
** Previously filed as exhibits to Company's annual report on
Form 10-K for the fiscal year ended December 31, 1996
** Previously filed as an exhibit to Company's annual report
on Form 10-K for the fiscal year ended December 31, 1991.
*** To be filed by amendment.
Item 17. Undertakings.
--------------
The undersigned Company hereby undertakes:
(a)(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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement;
II-3
or any material change to such information set forth in the
registration statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(a) The undersigned Company hereby undertakes that, for the purposes of
determining any liability under the securities Act of 1933, each filing of the
Company's annual report pursuant to section 13(a) and 15(d) of the Securities
Exchange Act of 1934 that is incorporate by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to afforded to directors, officers or
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the Registrant, certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and authorized this
Registration Statement to be signed on its behalf by the undersigned, in the
City of New York, State of New York on April , 1997.
PROJECTAVISION, INC.
By:/s/ Martin Holleran
___________________________
Martin Holleran, President
Chief Executive Officer and
Director
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement was signed by the following persons in the
capacities and on the dates stated.
Signature Title Date
- ---------- ------- ------
/s/ Marvin Maslow Chairman of the Board April 4, 1997
- -------------------------
Marvin Maslow
/s/ Martin Holleran President, Chief Executive April 4, 1997
- ------------------------- Officer and Director
Martin Holleran
/s/ Jules Zimmerman Chief Financial April 4, 1997
- ------------------------- Officer, Secretary and
Jules Zimmerman Director
/s/ Martin D. Fife Director April 4, 1997
- -------------------------
Martin D. Fife
/s/ Richard S. Hickok Director April 4, 1997
- -------------------------
Richard S. Hickok
/s/ Dr. Craig I. Fields Director April 4, 1997
- -------------------------
Dr. Craig I. Fields
/s/ Sherman Langer Director April 4, 1997
- -------------------------
Sherman Langer
/s/ Arthur Lipper Director April 4, 1997
- -------------------------
Arthur Lipper III
EXHIBIT INDEX
Item 16. Exhibits.
----------
Exhibit No.
- -----------
* 3.1 Certificate of Incorporation of the Company
** 3.2 Amendments to Certificate of Incorporation
* 3.3 Amended By-Laws of the Company
5.1 Opinion of Zukerman Gore & Brandeis, LLP
24.1 Consent of Zukerman Gore & Brandeis, LLP included in Exhibit 5.1
*** 24.2 Consent of Deloitte & Touche
- ---------------
* Previously filed as an exhibit to Registration Statement on Form
S-1, registration no. 33-33997.
** Previously filed as an exhibit to the Company's annual report on
Form 10-K for the Fiscal Year ended December 31, 1996.
** Previously filed as an exhibit to Company's annual report
on Form 10-K for the fiscal year ended December 31, 1991.
*** To be filed by amendment.