AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 9, 2002
REGISTRATION NO. 333-_____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
MILLENNIUM CELL INC.
DELAWARE 8743 22-3726792
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
1 INDUSTRIAL WAY WEST
EATONTOWN, NEW JERSEY 07724
(732) 542-4000
(Address, including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
----------------
NORMAN R. HARPSTER, JR.
SECRETARY
MILLENNIUM CELL INC.
1 INDUSTRIAL WAY WEST
EATONTOWN, NEW JERSEY 07724
(732) 542-4000
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
----------------
COPIES TO:
ALYCE C. HALCHAK, ESQ.
GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE, P.C
1 RIVERFRONT PLAZA
NEWARK, NEW JERSEY 07102
(973) 596-4500
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this registration statement.
If the only securities being registered on this for are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / / __________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
======================================================================================
Title of Each Class Amount Proposed Maximum Proposed Maximum Amount of
of Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share Price Fee
- --------------------------------------------------------------------------------------
Common stock,
par value $0.001 8,924,038 $2.86(1) $25,522,749 $2,348
per share
======================================================================================
(1) Calculated in accordance with Rule 457(c) based on the average of the high
and low sales prices of the common stock as reported on the Nasdaq National
Market on July 8, 2002, solely for the purpose of calculating the amount of the
registration fee. Under Rule 416 under the Securities Act, the number of shares
of common stock registered includes an indeterminate number of shares of common
stock that may be issued in connection with a stock split, stock dividends,
recapitalization or similar event.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
================================================================================
SUBJECT TO COMPLETION - DATED JULY 9, 2002
[MILLENNIUM LOGO]
8,924,038 SHARES OF COMMON STOCK
The selling stockholders listed under the section entitled "Selling
Stockholders," or their pledgees or assignees, are offering for sale up to
8,924,038 shares of our common stock for resale to the public. The selling
stockholders will be selling shares of common stock (a) that they acquired in
June 2002 (b) that they can acquire upon the conversion of secured convertible
debentures and (c) that they can acquire by exercising warrants that they own or
will acquire from us in the future.
We will not receive any proceeds from the resale of shares of common stock
by the selling stockholders. We are paying the expenses of this offering.
Our common stock is traded on the Nasdaq National Market where it trades
under the Symbol: MCEL. On July 1, 2002, the last reported sale price of our
common stock on the Nasdaq National Market was $3.01 per share.
THIS INVESTMENT INVOLVES RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
----------------------------------------
The information in this prospectus is not complete and may change. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
----------------------------------------
The date of this Prospectus is July __, 2002
You should rely only on the information incorporated by reference or
contained in this prospectus or a prospectus supplement or amendment. We have
not authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus is accurate only as of the date on
the front cover of this prospectus or a prospectus supplement or amendment. Our
business, financial condition, results of operations and prospects may have
changed since that date.
TABLE OF CONTENTS
PAGE
Forward-Looking Statements............................. i
Prospectus Summary..................................... 1
Risk Factors........................................... 2
Use of Proceeds........................................ 11
Selling Stockholders................................... 11
Plan of Distribution................................... 12
Legal Matters.......................................... 13
Experts................................................ 13
Where You Can Find Additional Information.............. 13
FORWARD-LOOKING STATEMENTS
Some of the statements under "Risk Factors", elsewhere in this prospectus
and elsewhere in filings by the company with the Securities and Exchange
Commission contain forward-looking statements (within the meaning of the Private
Securities Litigation Reform Act of 1995) that are subject to risks and
uncertainties. Statements that are not statements of historical fact may be
deemed to be forward-looking information. When we use words such as "plan,"
"believe," "expect," "anticipate," "intend" or similar expressions, we are
making forward-looking statements. You should not rely on forward-looking
statements because they are subject to a number of assumptions concerning future
events, and are subject to a number of uncertainties and other factors, many of
which are outside of our control, that could cause actual results to differ
materially from those indicated. Please note that we disclaim any intention or
obligation to update or revise any forward-looking statements whether as a
result of new information, future events or otherwise. These factors include,
but are not limited to, the following: (i) the cost and timing of development
and market acceptance of a commercially viable hydrogen fuel storage and
delivery system, (ii) the cost and commercial availability of components, parts
and quantities of raw materials required by the hydrogen fuel storage and
delivery systems, (iii) price competition from current, improving and alternate
power technologies, (iv) our ability to raise capital at the times, in the
amounts and at costs and terms that are acceptable to fund the development and
commercialization of our hydrogen fuel storage and delivery system, (v) our
ability to protect our intellectual property, (vi) our ability to achieve
budgeted revenue and expense amounts, (vii) our ability to generate revenues
from the sale or license of our technology, and (viii) the formation of
strategic alliance or partnership to help promote our technology and achieve
market acceptance.
i
PROSPECTUS SUMMARY
This summary highlights important features of this offering and the
information included or incorporated by reference in this prospectus. This
summary does not contain all of the information that you should consider before
investing in our common stock. You should read the entire prospectus carefully,
especially the risks of investing in our common stock discussed under "Risk
Factors".
THE COMPANY
We were formed as a Delaware limited liability company in 1998, organized
and began operations on January 1, 1999 and converted into a Delaware
corporation on April 25, 2000. We are an emerging technology company engaged in
the business of developing innovative fuel systems for the safe storage,
transportation and generation of hydrogen for use as an energy source.
We have developed and are pursuing a multi-faceted patent portfolio in the
United States and abroad surrounding a proprietary process called Hydrogen on
Demand(TM) that safely generates pure hydrogen or electricity from
environmentally friendly raw materials. In the process, the energy potential of
hydrogen is carried in the chemical bonds of sodium borohydride, which in the
presence of a catalyst releases hydrogen or produces electricity. The primary
input components of the reaction are water and sodium borohydride, a derivative
of borax. Borax is found in substantial natural reserves globally. Hydrogen
from this system can be used to power fuel cells, as well as fed directly to
internal combustion engines. We also have a patented design for boron-based
longer-life batteries.
Our principal executive offices are located at 1 Industrial Way West,
Eatontown, New Jersey 07724 and our telephone number at that location is (732)
542-4000. Our internet address is www.millenniumcell.com. The information
contained in or connected to our website is not incorporated by reference in
this prospectus.
THE OFFERING
The 8,924,038 shares of our common stock are being offered by the selling
stockholders. These shares consist of the following shares:
- 1,075,268 shares of common stock.
- 5,647,058 shares of common stock that may be issuable upon the
conversion of the secured convertible debentures.
- 2,201,712 shares of common stock that may be issuable upon the
exercise of warrants.
We previously issued the shares of common stock and certain warrants in a
private placement transaction on June 19, 2002. Pursuant to the terms of the
private placement, if certain conditions are met, one of the selling
stockholders is obligated to purchase $9 million of secured convertible
debentures after the effective date of this registration statement. In addition,
the selling stockholder is obligated to purchase an additional $3 million of
secured convertible debentures after the effective date of this registration
statement and, among other conditions, upon the approval of the company's
existing stockholders.
The selling stockholders are offering all of the 8,924,038 shares of our
common stock being offered under this prospectus. The number of shares offered
by the selling stockholders, however, includes substantially more than the
number of shares currently issuable to the selling stockholders upon: (a) the
conversion of the secured convertible debentures; and (b) the exercise of the
warrants. We are registering more than the number of shares currently issuable
under the secured convertible debentures and
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the warrants pursuant to our contractual obligations with the selling
stockholders. The selling stockholders may receive more shares than they are
currently entitled to receive upon conversion of the secured convertible
debentures and upon exercise of the warrants because the conversion price of the
secured convertible debentures and the exercise price of the warrants are
subject to anti-dilution and other adjustments at the option of the issuer.
The selling stockholders pursuant to this prospectus may sell the shares
of common stock offered for resale in a secondary offering. Under the terms of
the transactions described above, we are contractually required to register all
of the shares of common stock that are described above.
RISK FACTORS
An investment in our common stock involves a high degree of risk. You
should carefully consider the risks and uncertainties described below, the
information in this prospectus and the additional information in our other
reports on file with the Securities and Exchange Commission and the other
documents incorporated by reference in this prospectus before deciding whether
to invest in our common stock. Our business and results of operations could be
seriously harmed by any of the following risks. The trading price of our common
stock could decline due to any of these risks, and you may lose part or all of
your investment.
We Are A Development Stage Company, Which Has Only Been In Business For A
Limited Time.
We completed our initial public offering in August 2000. Due to the nature
of the emerging industries in which we complete, much of our information rests
on the beliefs formed by management and have not necessarily been supported by
independent sources. As a result, there can be no guarantee as to the adequacy
of our business plan. Due to the emerging nature of hydrogen storage and
delivery technology, fuel cell technology and alternative energy technology in
general, your basis for evaluating us is limited.
We Have Incurred Substantial Losses And Expect Losses For The Next Few Years.
There Can Be No Assurance That We Can Achieve Profitability, And Even If We Do
Become Profitable, That We Can Sustain Profitability.
We have incurred substantial losses since we were founded and we anticipate
we will continue to incur losses over the next few years. We had an accumulated
deficit of approximately $43 million as of March 31, 2002. Although we project
to be cash flow positive in 2005, we cannot provide any assurances as to when,
if ever, we will operate profitably. We expect to continue to incur net losses
for the next few years as we continue to make significant investments in
commercialization activities. Even if we do achieve profitability, we may be
unable to sustain or increase our profitability in the future.
We Expect Our Future Operating Results To Vary Quarter To Quarter, And Increase
The Likelihood That We May Fail To Meet The Expectations Of Securities Analysts
And Investors At Any Given Time.
We expect our revenues and operating results to vary significantly from
quarter to quarter. As a result, quarter-to-quarter comparisons of our revenues
and operating results may not be meaningful. In addition, due to our stage of
development, we cannot predict our future revenues or results of operations
accurately. It is possible that in one or more future quarters our operating
results will fall below the expectations of securities analysts and investors.
If this happens, the trading price of our common stock may decline.
2
We May Be Subject To Litigation If Our Common Stock Price Is Volatile, Which May
Result In Substantial Costs And A Diversion Of Our Management's Attention And
Resource And Could Have A Negative Effect On Our Business And Results Of
Operations.
The stock market has, from time to time, experienced extreme price and
volume fluctuations. Many factors may cause the market price for our common
stock to decline, perhaps substantially, including:
- failure to meet our product development and commercialization
milestones,
- demand for our common stock,
- revenues and operating results failing to meet the expectations of
securities analysts or investors in any quarter,
- downward revisions in securities analysts' estimates or changes in
general market conditions,
- technological innovations by competitors or in competing
technologies,
- investor perception of our industry or our prospects, or
- general technology or economic trends.
In the past, companies that have experienced volatility in the market
price of their stock have been the subject of securities class action
litigation. As a result, we may be involved in a securities class action
litigation in the future. Such litigation often results in substantial costs and
a diversion of management's attention and resources and could have a negative
effect on our business and results of operations.
We May Need Future Capital To Complete Our Product Development And
Commercialization Plans. If We Are Able To Raise Additional Capital, It May
Dilute Your Ownership Or Restrict Our Ability To Run Our Business.
The company's working capital requirements continue to be significant. To
date, the company has been dependent primarily on the net proceeds of its
initial public offering and private placements of its equity securities. Other
than the secured convertible debentures, the company currently has no committed
sources of, or other arrangements with respect to, additional financing. There
can be no assurance that the company's existing capital resources will be
sufficient to fund the company's future operations. If additional working
capital is required, it may dilute your ownership or restrict our ability to run
our business.
The company's working capital requirements will depend on numerous
factors, including the timing of revenues, the expense involved in
commercializing its products, realizing cost reductions on its technology, and
the cost involved in protecting the proprietary rights of the company.
3
Our Future Plans Could Be Adversely Affected If We Are Unable To Attract Or
Retain Key Personnel.
We have attracted a highly skilled management team and specialized
workforce, including scientists, engineers, researchers and marketing
professionals. Our future success is dependant in part on attracting and
retaining qualified management and technical personnel. Our inability to hire
qualified personnel on a timely basis, or the departure of key employees, could
materially and adversely affect our development and commercialization plans and
therefore, our business, prospects, results of operations and financial
condition.
We Do Not Intend To Pay Any Dividends.
We have not paid any dividends on our common stock and we do not intend to
declare and pay any dividends on our common stock. Earnings, if any, will be
used to finance and expand our business.
This Offering, As Well As The Issuance Of Other Publicly Traded Shares, Could
Drive Our Stock Price Down.
On June 19, 2002, we completed a private placement transaction in which we
sold 1,075,268 shares of our common stock for gross proceeds of $3,000,000 and
warrants to purchase shares of our common stock to the selling stockholders. In
addition, one of the selling stockholders is obligated, subject to satisfaction
of certain conditions that are outside of its control, to purchase $12 million
in secured convertible debentures which will be due 3 years from the date of
issuance. $9 million principal amount of the initial secured convertible
debentures, which are convertible into common stock initially at a conversion
price of $4.25, will be issued upon effectiveness of the registration statement
relating to the underlying shares of common stock and the remaining $3 million
of additional secured convertible debentures will be issued if, among other
things, shareholder approval, as required by the Rules of the NASDAQ for the
issuance as part of the private placement in excess of 20% of the outstanding
common stock on June 19, 2002, is received and the registration statement
remains effective.
In connection with the sale of the common stock, we granted the selling
stockholders a first warrant to purchase an aggregate of 268,817 shares of
common stock. In connection with the potential sale of the initial secured
convertible debentures, we are obligated to grant to the purchaser a second
warrant to purchase an aggregate of 624,029 shares of common stock. In
connection with the potential sale of the additional secured convertible
debentures, we are obligated to grant to the purchaser a third warrant to
purchase 208,010 shares of common stock. The warrants are exercisable in six
months at an exercise price of $3.93, which may change in the future based on
certain anti-dilution and other adjustments, and are subject to vesting based,
in part, on the conversion of the secured convertible debentures into common
stock. The warrants may not be exercised to the extent that a holder thereof
would then beneficially own, together with its affiliates, more than 9.999% of
our common stock then outstanding.
Adjustment Features of Conversion and Exercise Price
If we sell stock or stock equivalents at a price per share that is below
either the then-applicable conversion price of the secured convertible
debentures or below the exercise price of the warrants, then the conversion or
exercise price, as applicable, of these secured convertible debentures and
warrants may adjust downward. The number of additional shares of common stock to
which the holders of these securities would be entitled depends on the price at
which we sell our stock. Furthermore, at any time and from time to time after
(i) the later of the second month anniversary of the closing date and the
effectiveness of this registration statement, with respect to the initial
secured convertible debentures or (ii) the date on which the
4
initial secured convertible debentures shall no longer be outstanding, with
respect to the additional secured convertible debentures, and if certain
conditions are met, we have the right, upon 10 trading days' prior notice, to
require the conversion of $500,000, subject to increase under certain
circumstances up to $2,500,000. The conversion prices for the initial secured
convertible debentures and the additional secured convertible debentures, at the
time and to the extent of the conversion, will be determined based on a discount
ranging from 4% to 12% on the volume weighted average closing price for the 10
trading days prior to the conversion. As a result of the foregoing, we may be
required to issue more shares of common stock upon the conversion and exercise
of the securities issued or issuable as part of the June 19, 2002 private
placement transaction.
Sales of substantial amounts of common stock in the public market as a
result of this offering could reduce the market price of our common stock and
make it more difficult for us and our stockholders to sell our equity securities
in the future. Following the effectiveness of this registration statement, the
8,924,038 shares offered by the selling stockholders will become freely salable
in the public market. This includes 1,075,268 shares of common stock, 5,647,058
shares that may be issuable upon the conversion of the secured convertible
debentures, and 2,201,712 shares that may be issuable upon the exercise of the
warrants. The number of shares offered by the selling stockholders includes
substantially more than the number of shares to which they are currently
eligible to receive upon the conversion of the secured convertible debentures
and the exercise of the warrants. We are registering for resale more shares than
are currently issuable under the secured convertible debentures or the warrants
pursuant to contractual obligations with the selling stockholders and to ensure
that a sufficient number of shares is registered in the event that adjustments,
if any, are made to the conversion or exercise prices of the secured convertible
debentures or warrants. If the price of our common stock decreased substantially
and we sold shares at a price lower than the conversion or exercise prices of
the securities issued or issuable as part of the June 19, 2002 private
placement, the issuance of a greater number of shares under those securities
could have an effect on the control of our company. However, the securities
cannot be converted or exercised to the extent that a selling stockholder would
then own, together with its respective affiliates, more than 9.999% of the
shares of common stock then outstanding.
Although the sale of these additional shares to the public might increase
the liquidity of our stockholders' investments, the increase in the number of
shares available for public sale could drive the price of our common stock down,
thus reducing the value of your investment and perhaps hindering our ability to
raise additional funds in the future. In addition, to the extent other
restricted shares become freely salable, whether through an effective
registration statement or under Rule 144 of the Securities Act, or we issue
additional shares that might be or become freely salable, you could expect our
stock price to decrease.
Our Hydrogen Generation Systems May Only Be Commercially Viable As A Component
Of Other Companies' Products, And These Companies May Choose Not To Include Our
Systems In Their Products.
To be commercially viable, our hydrogen generation systems must be
integrated into products manufactured by original equipment manufacturers, which
are known as OEMs. We can offer no guarantee that OEMs will manufacture
appropriate products or, if they do manufacture such products, that they will
choose to use our sodium borohydride hydrogen generation systems. Any
integration, design, manufacturing or marketing problems encountered by OEMs
could adversely affect the market for our hydrogen generation systems and our
financial results.
5
Failure To Meet Milestones And Performance Goals With Potential Customers
Could Delay Or Impede Commercialization Of Our Technology. Potential
Purchasers Of Our Systems May Decline To Purchase Them Or Choose To Purchase
Alternate Technologies.
We have established product development and commercialization milestones
and a timeline for achieving development goals related to our technology, design
improvements and fuel cost reduction goals. Delays and missed milestones may
have a material impact on our commercialization schedule. If we experience
delays in meeting our development goals or our systems experience technical
defects or if we are unable to meet cost or performance goals, including system
efficiency, hydrogen output useful life and reliability, our commercialization
schedule could be delayed. In such event, potential purchasers of our commercial
systems may choose alternative technologies and any delays could allow potential
competitors to gain market advantages.
If We Are Unable To Continue To Complete Prototype Development And Engineering
Of Commercially Viable Hydrogen Generation Systems, We Will Not Be Able To Build
Our Business As Anticipated.
We have produced and are currently demonstrating a number of test and
evaluation systems and are continuing our efforts to decrease the costs of our
systems' components and subsystems, improve their overall reliability and
efficiency and ensure their safety. In addition, while we are conducting tests
to predict the overall life of our systems, we have not yet tested our system's
longevity for the useful life required for commercialization.
Any Perceived Problem While Conducting Demonstrations Of Our Technology Could
Hurt Our Reputation And The Reputation Of Our Products, Which Would Impede The
Development Of Our Business.
We are currently field-testing our sodium borohydride technology and we
plan to conduct additional field tests in the future. Although to date we have
not experienced any problems in our field-testing, these field tests may
encounter problems and delays for a number of reasons, including the failure of
our technology, the failure of the technology of others, the failure to combine
these technologies properly and the failure to maintain and service the test
prototypes properly. Many of these potential problems and delays are beyond our
control. In addition, field test programs, by their nature, involve delays and
modifications. Any problem or perceived problem with our field tests could hurt
our reputation and the reputation of our products.
A Mass Market For Our Products May Never Develop Or May Take Longer To Develop
Than We Anticipate.
A mass market may never develop for sodium borohydride hydrogen generation
systems, or may develop more slowly than we anticipate. Fuel cells and internal
combustion engines operating on hydrogen generation systems represent an
emerging market, and we do not know whether end-users will want to use them. The
development of a mass market for these systems may be affected by many factors,
some of which are beyond our control, including:
- the acceptance in mass markets of hydrogen as an alternative fuel
source,
- the cost competitiveness of our hydrogen generation systems,
- the emergence of newer, more competitive technologies and products,
- the future cost of sodium borohydride,
6
- regulatory requirements,
- consumer perceptions of the safety of our products, and
- consumer reluctance to try a new product.
If a mass market fails to develop or develops more slowly than we
anticipate, we may be unable to recover the losses we will have incurred in the
development of our products and we may never achieve profitability.
Since Zero Emission Vehicle Requirements Can Be Met Without Using Fuel Cells,
Transportation Industry Manufacturers May Use Other Technologies To Meet
Regulatory Requirements.
It is possible to meet the zero emission vehicle requirements imposed by
California and certain northeastern states by using technologies other than our
sodium borohydride hydrogen generation systems. In addition, some major
transportation industry manufacturers are seeking to develop their own
proprietary fuel cell systems with different hydrogen sources. We can offer no
assurance that transportation industry manufacturers will use our sodium
borohydride hydrogen generation technology in their vehicles to meet regulatory
requirements. Their failure to do so could have a negative effect on our
business and financial results.
Changes In Environmental Policies Could Result In Transportation Industry
Manufacturers Abandoning Their Interest In Fuel Cell Powered Vehicles. This
May Substantially Lessen The Market For Our Products And Harm The Development
Of Our Business.
To date, the interest in fuel cell technology in the transportation
industry has been driven in large part by environmental laws and regulations
mainly in California and, to a lesser extent, certain northeastern states. There
can be no guarantee that these laws and regulations will not change. Changes in
these laws and regulations could result in transportation industry manufacturers
abandoning their interest in fuel cell powered vehicles. In addition, if current
laws and regulations in the United States and Europe are not kept in force or if
further environmental laws and regulations are not adopted in these
jurisdictions as well as in other jurisdictions, demand for vehicular fuel cells
may be limited.
Although the development of alternative energy sources, and in particular
fuel cells, has been identified as a significant priority by many governments,
we cannot assure you that governments will not change their priorities or that
any such change would not negatively affect our business or the development of
our products.
We Will Continue To Face Intense Competition From Energy Technology Companies
And May Be Unable To Compete Successfully.
Our products face and will continue to face significant competition. New
developments in technology may negatively affect the development or sale of some
or all of our products or make our products uncompetitive or obsolete. A large
number of corporations, national laboratories and universities in the United
States, Canada, Europe and Japan are pursuing alternative hydrogen storage and
delivery technologies. These entities, many of which have substantially greater
resources than we do, are currently engaged in the development of products and
technologies that are similar to, or may be competitive with, certain of our
products and technologies.
7
As more potential competitors understand the potential of fuel cells to
replace existing power sources and the necessity of hydrogen to power those fuel
cells, there will be increased competition in the hydrogen delivery and storage
product segment. This competition will come from current storage technologies,
from improvements to current storage technologies and from new alternative
storage technologies. We will compete in each of our target markets based on
that market's desired product characteristics, such as safety, cost, size,
environmental impact, ease of use and a variety of other attributes. Depending
on the specific desired attributes of each market and application, our
technology may or may not be able to compete successfully.
Our Failure To Obtain Or Maintain The Right To Use Certain Intellectual Property
May Negatively Affect Our Business.
Our future success and competitive position depends in part upon our
ability to obtain or maintain certain proprietary intellectual property to be
used in our principal products. This may be achieved in part by prosecuting
claims against others who we believe are infringing on our rights and by
defending claims of intellectual property infringement by our competitors. While
we are not currently engaged in any material intellectual property litigation,
we could become subject to lawsuits in which it is alleged that we have
infringed the intellectual property rights of others or we could commence
lawsuits against others who we believe are infringing upon our rights. Our
involvement in intellectual property litigation could result in significant
expense to us, adversely affecting the development of sales of the challenged
product or intellectual property and diverting the efforts of our technical and
management personnel, whether or not such litigation is resolved in our favor.
In the event of an adverse outcome as a defendant in any such litigation, we
may, among other things, be required to:
- pay substantial damages,
- cease the development, manufacture, use, sale or importation of
products that infringe upon other patented intellectual property,
- expend significant resources to develop or acquire non-infringing
intellectual property,
- discontinue processes incorporating infringing technology, or
- obtain licenses to the infringing intellectual property.
An adverse outcome as plaintiff, in addition to the costs involved, may,
among other things, result in the loss of the patent in a suit by a holding of
invalidity or unenforceability, significantly increase competition as a result
of the holding, and require the payment of penalties resulting from
counterclaims by the defendant.
We cannot assure you that we would be successful in such development or
acquisition or that such licenses would be available upon reasonable terms. Any
such development, acquisition or license could require the expenditure of
substantial time and other resources and could have a negative effect on our
business and financial results.
8
We May Not Be Able To Protect The Rights To Our Intellectual Property.
Failure to protect our existing intellectual property rights may result in
the loss of our exclusivity or the right to use our technologies. If we do not
adequately ensure our freedom to use certain technology, we may have to pay
others for rights to use their intellectual property, pay damages for
infringement or misappropriation and/or be enjoined from using such intellectual
property. We rely on patent, trade secret, trademark and copyright law to
protect our intellectual property. The patents that we have obtained will expire
as early as 2015 and the most recently filed applications, if issued, will not
expire until 2021. Some of our intellectual property is not covered by any
patent or patent application. As we further develop our system and related
intellectual property, we expect to seek additional patent protection. Our
patent position is subject to complex factual and legal issues that may give
rise to uncertainty as to the validity, scope and enforceability of a particular
patent. Accordingly, we cannot assure you that:
- any of the patents owned by us or other patents that other parties
license to us in the future will not be invalidated, circumvented,
challenged, rendered unenforceable or licensed to others, or
- any of our pending or future patent applications will be issued with
the breadth of claim coverage sought by us, if issued at all.
- any patents owned by or licensed to us, although valid, will not be
dominated by a patent or patents to others having broader claims.
In addition, effective patent, trademark, copyright and trade secret
protection may be unavailable, limited or not applied for in certain foreign
countries.
We also seek to protect our proprietary intellectual property, including
intellectual property that may not be patented or patentable, in part by
confidentiality agreements. We cannot assure you that these agreements will not
be breached, that we will have adequate remedies for any breach or that such
persons will not assert rights to intellectual property arising out of these
relationships.
The members of our scientific advisory board are employed by entities
other than us, some of which may compete with us. We have not entered into
non-competition agreements with any of our scientific advisors. If any of them
were to consult with or become employed by any of our competitors, our business
could be negatively effected.
Sodium Borohydride Is Currently A Specialty Chemical, Produced In Limited
Quantities And Sold At High Margins. As A Result, The Energy Produced By Our
Systems May Cost More Than Energy Provided Through Conventional And Alternative
Systems. Accordingly, Our Systems May Be Less Attractive To Potential Users.
Our systems' ability to produce energy depends on the availability and
pricing of sodium borohydride. Sodium borohydride is currently a specialty
chemical that has limited commercial use and is not manufactured in vast
quantities. There are a limited number of manufacturers of sodium borohydride
located in the United States and Europe and there can be no assurance that the
high cost of this specialty chemical will be reduced.
9
We believe that we can compete in the portable power and micro power
markets at the current price of sodium borohydride, but it will be necessary to
scale-up production of the chemical to be cost competitive in the transportation
markets. If market acceptance of our technology increases in the transportation,
portable power and battery markets, we believe that this increase in demand for
sodium borohydride will result in the need for additional global manufacturing
capacity. There can be no assurance that we will be able to successfully engage
other companies to increase the production of sodium borohydride to meet the
required demand.
If the price of sodium borohydride is such that the energy produced by our
systems costs more than the energy provided through conventional and other
alternative systems, our systems may be less attractive to potential users.
If Lower Cost Processes For The Manufacture Of Sodium Borohydride Are Not
Developed And Demonstrated, Our Commercialization Plans In The Transportation
Industry May Be Hindered.
If lower cost processes for the manufacture of sodium borohydride are not
developed, it may negatively affect our ability to compete in all the potential
markets we intend to pursue, particularly the transportation markets. This may
have an adverse effect on our growth of operations and our financial results.
We Are Dependent On Companies Or Governmental Agencies To Develop The
Infrastructure Required To Use Of Our Technologies In Certain Applications Or
Markets.
Our supply chain plan is focused primarily on the global joint development
and licensing of a proprietary process for the manufacture and regeneration of
sodium borohydride with large, industrial partners including borate producers,
industrial hydrogen providers, chemical providers, and major energy producers
(including oil, gas, and electricity companies). Our success in this area is
dependent on our ability to enter into partnerships or other cooperative
arrangements with these companies. In addition, in the transportation markets,
it will be necessary to make changes to the current fuel delivery infrastructure
in order for our products to be used by consumers on a mass scale. There can be
no assurance that we will be able to rely on companies and/or government
agencies to make the infrastructure changes needed for our technology to be used
on a mass scale in all potential markets.
Any Accidents Involving Our Products Or The Raw Materials Used In Our
Products Could Impair Their Market Acceptance.
Sodium borohydride fuel solutions have a high pH, and may be corrosive and
harmful to human skin. In powder form, it can be fatal if swallowed and may
cause skin burns in contact with moist skin. The long-term health effects of the
fuel have not been evaluated. If spilled in the ground or water (while not
reportable to the EPA), it could adversely impact plant, marine, or animal life.
Furthermore, if sodium borohydride comes into contact with water, it could
generate flammable hydrogen gas. In solid form, sodium borohydride is also
combustible and could produce hazardous and/or flammable decomposition products
in a fire.
10
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares by the
selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth information regarding the beneficial
ownership of shares of common stock by the selling stockholders as of June 19,
2002, and the number of shares of common stock covered by this prospectus.
Beneficial ownership is determined in accordance with the rules of the SEC and
generally includes voting or investment power with respect to securities. The
shares of common stock issuable upon exercise of the warrants, which are not
exercisable until December 19, 2002, are not deemed to be outstanding and are
not deemed to be beneficially owned by the selling stockholders holding such
warrants. The selling stockholders are prohibited from acquiring shares of
common stock to the extent that such acquisition would result in the selling
stockholder, together with any of its respective affiliates, beneficially owning
in excess of 9.999% of our common stock outstanding after such acquisition.
Except as otherwise noted below, none of the selling stockholders has held any
position or office, or has had any other material relationship with us or any of
our affiliates within the past three years.
We are registering more than the number of shares issuable under the
secured convertible debentures and warrants pursuant to our contractual
obligations with the selling stockholders to ensure that a sufficient number of
shares is registered for resale. The selling stockholders may receive more
shares than it is currently entitled to receive upon conversion of the secured
convertible debentures and the exercise of the warrants because the conversion
price of the secured convertible debentures and the exercise price of warrants
are subject to anti-dilution and other adjustments.
The percentage of ownership for each selling stockholder disclosed in
this table is based on 28,395,345 shares of common stock outstanding as of June
19, 2002, plus any common stock equivalents exercisable within 60 days and held
by that holder. The shares may be offered from time to time by the selling
stockholders named below. However, the selling stockholders are under no
obligation to sell all or any portion of such shares, nor are the selling
stockholders obligated to sell any such shares immediately pursuant to the
registration statement.
Information with respect to the shares of our common stock beneficially
owned by the selling stockholders follows:
Beneficial Ownership
Prior to Resale of Beneficial Ownership
Shares After Resale of Shares
----------------------------- ----------------------
Number
Number of of
Number of Shares Being Shares
Name of Selling Shareholder Shares Percent Offered (3) Percent (3)
- --------------------------- --------- ------- --------- --- -----------
Pine Ridge Financial, Inc. 896,057(1) 3.16% 8,655,221 0 0%
ZLP Master Technology Fund, Ltd. 179,211(2) * 268,817 0 0%
--------- ---------
Totals 1,075,268 8,924,038
11
- ----------
(1) Includes 896,057 shares of common stock held directly and excludes
224,014 shares that are issuable upon the exercise of warrants not currently
exercisable, subject to the 9.999% exercise limitation described above.
(2) Includes 179,211 shares of common stock held directly and excludes
44,803 shares that are issuable upon the exercise of warrants not currently
exercisable, subject to the 9.999% exercise limitation described above.
(3) Assuming resale of all shares offered hereunder.
* Less than 1%,
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
- - ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- - block trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- - purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- - an exchange distribution in accordance with the rules of the applicable
exchange;
- - privately negotiated transactions;
- - short sales;
- - broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
- - a combination of any such methods of sale; and
- - any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended, if available, rather than under this
prospectus.
Broker-dealers engaged by the selling stockholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
12
The selling stockholder may from time to time pledge or grant a
security interest in some or all of the common stock, secured convertible
debentures or warrants owned by them and, if they default in the performance of
their secured obligations, the pledgees or secured parties may offer and sell
the shares of common stock from time to time under this prospectus, or under an
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act amending the list of selling stockholders to include the
pledgee, transferee or other successors in interest as selling stockholders
under this prospectus.
The selling stockholders also may transfer the shares of common stock
in other circumstances, in which case the transferees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The selling stockholders have
informed the company that it does not have any agreement or understanding,
directly or indirectly, with any person to distribute the common stock.
The company has agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus
will be passed upon for us by Gibbons, Del Deo, Dolan, Griffinger & Vecchione,
P.C., Newark, New Jersey.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our financial
statements included in our Annual Report on form 10-K for the year ended
December 31, 2001, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in account and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act and the rules and regulations thereunder for the registration
of the resale of shares of common stock. This prospectus is part of the
registration statement. As allowed by the SEC rules, this prospectus does not
contain all the information you can find in the registration statement or the
exhibits to the registration statement.
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information in this prospectus and information we
file later with the SEC will automatically update and supersede this
information. This prospectus incorporates by reference the documents set forth
below that we have previously filed with the SEC. These documents contain
important information about us, our business and our finances.
13
The documents that we are incorporating by reference are:
- Our Annual Report on Form 10-K for the year ended December 31,
2001;
- Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2002;
- Our Current Report on Form 8-K filed with the SEC on June 26,
2002;
- The description of our common stock that is contained in our
Registration Statement on Form S-1 filed with the SEC on
January 9, 2001.
Any document which we file pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this prospectus but before the end
of any offering of securities made under this prospectus will also be considered
to be incorporated by reference.
If you request, either orally or in writing, we will provide you with a
copy of any or all documents which are incorporated by reference. We will
provide such documents to you free of charge, but will not include any exhibits,
unless those exhibits are incorporated by reference into the document. You
should address requests for documents to Norman R. Harpster, Jr., Chief
Financial Officer, Millennium Cell Inc., 1 Industrial Way West, Eatontown, New
Jersey 07724.
You can inspect and copy all or any portion of the registration
statement or any reports, statements or other information we file at the public
reference facility maintained by the Securities and Exchange Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549. You may call the
Securities and Exchange Commission at 1-800-SEC-0330 for further information
about the operation of the public reference rooms. Copies of all or any portion
of the registration statement can be obtained from the public reference section
of the Securities and Exchange Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. In addition, the registration statement is
publicly available through the Securities and Exchange Commission's Internet
site located at www.sec.gov.
14
[MILLENNIUM
CELL
LOGO]
8,924,038 SHARES OF COMMON STOCK
PROSPECTUS
15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated costs and expenses payable
by the registrant in connection with the sale of the common stock being
registered.
SEC registration fee ....... $ 2,348
Legal fees and expenses .... $50,000
Accounting fees and expenses $25,000
Printing expenses .......... $ 5,000
Miscellaneous .............. $ 2,652
-------
Total ...................... $85,000
The selling stockholders described in the prospectus included herewith
will not pay any of the expenses of this offering.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 145 of the Delaware General Corporation Law,
Article 11 of our certificate of incorporation provides that no director of the
company shall be personally liable to the company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to the company or
its stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) in respect of unlawful
dividend payments or stock redemptions or repurchases or (4) for any transaction
from which the director derived an improper personal benefit.
Article V of our by-laws provides for indemnification by the company of
its officers and certain non-officer employees under certain circumstances
against expenses, including attorneys fees, judgments, fines and amounts paid in
settlement, reasonably incurred in connection with the defense or settlement of
any threatened, pending or completed legal proceeding in which any such person
is involved by reason of the fact that such person is or was an officer or
employee of the registrant if such person acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
company, and, with respect to criminal actions or proceedings, if such person
had no reasonable cause to believe his or her conduct was unlawful.
16
ITEM 16. EXHIBITS
The exhibits filed as part of this registration statement are as follows:
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.3 Form of Secured Convertible Debenture. (Incorporated by reference to
Exhibit 4.7 to the Current Report filed on Form 8-K filed on June 26,
2002.)+
4.4 Form of Second/Third Warrant to Purchase 624,029/208,010 shares of
Common stock. (Incorporated by reference to Exhibit 4.8 to the Current
Report filed on Form 8-K filed on June 26, 2002.)+
4.5 First Warrant to Purchase 224,014 shares of Common stock dated as of
June 19, 2002. (Incorporated by reference to Exhibit 4.5 to the
Current Report filed on Form 8-K filed on June 26, 2002.)+
4.6 First Warrant to Purchase 44,803 shares of Common Stock dated as of
June 19, 2002. (Incorporated by reference to Exhibit 4.6 to the
Current Report filed on Form 8-K filed on June 26, 2002.)+
5.1 Opinion of Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
10.14 Securities Purchase Agreement dated as of June 19, 2002 between the
Company and the Purchasers. (Incorporated by reference to Exhibit 4.3
to the Current Report filed on Form 8-K filed on June 26, 2002.)+
10.15 Registration Rights Agreement dated as of June 19, 2002 between the
Company and the Purchasers. (Incorporated by reference to Exhibit 4.4
to the Current Report filed on Form 8-K filed on June 26, 2002.)+
23.1 Consent of Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
(included in its opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young, L.L.P.
24.1 Powers of Attorney (included as part of the signature page hereof).
+ Previously filed as Exhibit to Registrants' Current Report on Form 8-K filed
June 26, 2002 and incorporated by the reference herein.
17
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the registrant pursuant to section 13 or section 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, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
18
(c) That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Eatontown,
state of New Jersey, on July 9, 2001.
MILLENNIUM CELL INC.
By: /s/ Stephen S. Tang
---------------------------
Name: Stephen S. Tang
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen S. Tang and Norman R. Harpster,
Jr., or either of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments and amendments pursuant to Rule 462 under
the Securities Act) to this registration statement, and to file the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Chief Executive Officer, July 9, 2002
/s/ Stephen S. Tang President and Director
- -------------------------------- (Principal Executive Officer)
Stephen S. Tang
Chief Financial Officer and July 9, 2002
Vice President, Finance &
/s/ Norman R. Harpster, Jr. International Business Management
- -------------------------------- (Principal Financial and Accounting Officer)
Norman R. Harpster, Jr.
20
________________________________ Director July __, 2002
Steven C. Amendola
/s/ G. Chris Andersen
- -------------------------------- Director July 3, 2002
G. Chris Andersen
/s/ Kenneth R. Baker
________________________________ Director July 9, 2002
Kenneth R. Baker
/s/ William H. Fike
________________________________ Director July 3, 2002
William H. Fike
/s/ Alexander MacLachlan
________________________________ Director July 3, 2002
Alexander MacLachlan
/s/ Zoltan Merszei
- -------------------------------- Director July 3, 2002
Zoltan Merszei
/s/ H. David Ramm
- -------------------------------- Director July 2, 2002
H. David Ramm
/s/ James L. Rawlings
- -------------------------------- Director July 3, 2002
James L. Rawlings
21
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.3 Form of Secured Convertible Debenture. (Incorporated by reference to
Exhibit 4.7 to the Current Report filed on Form 8-K filed on June 26,
2002.)+
4.4 Form of Second/Third Warrant to Purchase 624,029/208,010 shares of
Common stock. (Incorporated by reference to Exhibit 4.8 to the Current
Report filed on Form 8-K filed on June 26, 2002.)+
4.5 First Warrant to Purchase 224,014 shares of Common stock dated as of
June 19, 2002. (Incorporated by reference to Exhibit 4.5 to the
Current Report filed on Form 8-K filed on June 26, 2002.)+
4.6 First Warrant to Purchase 44,803 shares of Common Stock dated as of
June 19, 2002. (Incorporated by reference to Exhibit 4.6 to the
Current Report filed on Form 8-K filed on June 26, 2002.)+
5.1 Opinion of Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
10.14 Securities Purchase Agreement dated as of June 19, 2002 between the
Company and the Purchasers. (Incorporated by reference to Exhibit 4.3
to the Current Report filed on Form 8-K filed on June 26, 2002.)+
10.15 Registration Rights Agreement dated as of June 19, 2002 between the
Company and the Purchasers. (Incorporated by reference to Exhibit 4.4
to the Current Report filed on Form 8-K filed on June 26, 2002.)+
23.1 Consent of Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
(included in its opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young, L.L.P.
24.1 Powers of Attorney (included as part of the signature page hereof).
+ Previously filed as Exhibit to Registrants' Current Report on Form 8-K filed
June 26, 2002 and incorporated by the reference herein.
22