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As filed with the Securities and Exchange Commission on July __ 2000
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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XYBERNAUT CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 54-1799851
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(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
12701 FAIR LAKES CIRCLE
FAIRFAX, VIRGINIA 22033
(703) 631-6925
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(Address, including zip code, and telephone number,
Including area code, of registrant's principal executive offices)
EDWARD G. NEWMAN
12701 FAIR LAKES CIRCLE
FAIRFAX, VIRGINIA 22033
(703) 631-6925
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(Name, address, including zip code, and telephone number,
Including area code, of agent for service)
Copy to:
Martin Eric Weisberg, Esq.
Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
(212) 704-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
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Common Stock, $.01 par value per share.. 100,249 $ 10.69 (4) $ 1,071,662 $297.92
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Common Stock, $.01 par value per share.. 437,500 $ 10.69 (4) $ 4,676,875 $1,300.17
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Common Stock, $.01 par value per share.. 87,500(2)(3) $ 10.69 (5) $ 935,375 $260.03
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Total Registration Fee.................. $1,858.12
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(1) Represents the shares of common stock being registered for resale by the
selling stockholders.
(2) Pursuant to Rule 416, the shares of common stock offered hereby also
include such presently indeterminate number of shares of common stock as
shall be issued by us to the selling stockholders upon adjustment under
anti-dilution provisions covering the additional issuance of shares by
Xybernaut resulting from stock splits, stock dividends or similar
transactions.
(3) Represents the number of shares of common stock issuable upon exercise of
warrants to purchase 87,500 shares of our common stock.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (g) of the Securities Act of 1933, as amended
(the "Securities Act"); based on the average ($10.69) of the bid ($10.63)
and asked ($10.75) price on the Nasdaq SmallCap Market on July 3, 2000.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(g) of the Securities Act, based on the higher of (a)
the exercise price of the warrants or (b) the offering price of securities
of the same class included in this registration statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell nor is it seeking an offer to buy these securities in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY __, 2000
PROSPECTUS
XYBERNAUT CORPORATION
625,249 SHARES OF COMMON STOCK
The stockholders of Xybernaut Corporation listed on page 10 of this
prospectus are offering for sale up to 625,249 shares of common stock of
Xybernaut under this prospectus.
The selling stockholders may offer their shares through public or private
transactions, at prevailing market prices, or at privately negotiated prices.
See "Plan of Distribution."
-------------------------------------
NASDAQ SmallCap Market Symbol:
"XYBR"
-------------------------------------
On July 3, 2000, the closing price of one share of our common stock on the
NASDAQ SmallCap Market was $10.75.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY
CONSIDER THE FACTORS DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING
ON PAGE 2 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this prospectus is _________________, 2000
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RISK FACTORS
BEFORE YOU BUY SHARES OF OUR COMMON STOCK, YOU SHOULD BE AWARE THAT THERE
ARE VARIOUS RISKS ASSOCIATED WITH THAT PURCHASE, INCLUDING THOSE DESCRIBED
BELOW. YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS, TOGETHER WITH ALL OF
THE OTHER INFORMATION IN THIS PROSPECTUS AND THE DOCUMENTS WE HAVE INCORPORATED
BY REFERENCE IN THE SECTION "WHERE YOU CAN FIND MORE INFORMATION ABOUT US,"
BEFORE YOU DECIDE TO PURCHASE SHARES OF OUR COMMON STOCK.
-------------------------------------------
RISKS ASSOCIATED WITH OUR HISTORY OF LOSSES
AND FUTURE NEED FOR CAPITAL
-------------------------------------------
WE HAVE A HISTORY OF LOSSES AND, IF WE DO NOT ACHIEVE PROFITABILITY, WE MAY NOT
BE ABLE TO CONTINUE OUR BUSINESS IN THE FUTURE.
Our research, development, sales, marketing and general and
administrative expenses have resulted in significant losses and are expected to
continue to result in significant losses for the foreseeable future. We have
incurred the following losses since 1994:
Fiscal years ended:
- March 31, 1994 $47,352
- March 31, 1995 $1,303,892
- December 31, 1996 $5,238,536
- December 31, 1997 $9,479,966
- December 31, 1998 $13,111,488
- December 31, 1999 $16,775,797
Three months ended:
- March 31, 2000 $4,534,762
WE COULD BE REQUIRED TO CUT BACK OR STOP OPERATIONS IF WE ARE UNABLE TO RAISE OR
OBTAIN NEEDED FINANCING.
The research, development, commercialization, manufacturing and marketing
of our products will likely require financial resources which are significantly
in excess of those presently available to us. If we are not able to arrange
financing or other third party arrangements on acceptable terms, we may be
unable to fully develop and commercialize any of our products and could be
required to cut back or stop operations.
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RISKS ASSOCIATED WITH THE INDUSTRY IN WHICH
WE OPERATE
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OUR FUTURE REVENUES AND ABILITY TO PRODUCE NEW PRODUCTS DEPEND SUBSTANTIALLY ON
THE SUCCESS OF THE MOBILE ASSISTANT SERIES(R).
Our Mobile Assistant(R) Series currently consists of one product, the
MA IVTM. The Mobile Assistant Series is our principal product, and our success
will depend upon its commercial acceptance, which cannot be assured. On May 11,
2000, the Company announced that it had signed an agreement with IBM to design,
develop and manufacture the computer portion of Xybernaut's next generation of
wearable computer systems. On May 16, 2000, the Company announced that it was
introducing two new models of the MA IV. Additional product development will
result in a significant increase in our research and development expenses that
may be unrecoverable should commercialization of new products prove
unsuccessful. We also could require additional funding if research and
development expenses are greater than we anticipate. As with most high
technology products, new models of the Mobile Assistant Series must be
introduced periodically for the Company to remain competitive. There can be no
assurance that these new models can be successfully developed or commercially
accepted.
WE MAY HAVE TO LOWER PRICES OR SPEND MORE MONEY TO EFFECTIVELY COMPETE AGAINST
COMPANIES WITH GREATER RESOURCES THAN US WHICH COULD RESULT IN LOWER REVENUES
AND/OR PROFITS.
The success of our products in the marketplace depends on many factors,
including product performance, price, ease of use, support of industry
standards, and customer support and service. Given these factors we cannot
assure you that we will be able to compete successfully. For example, if our
competitors offer lower prices, we could be forced to lower prices which would
result in reduced margins and a decrease in revenues. If we do not lower prices
we could lose sales and market share. In either case, if we are unable to
compete against our main competitors which include established companies like
Computing Devices International, a division of Ceridian Corporation, ViA Inc.,
Texas Microsystems, Telxon, Symbol, Norand, Teltronics, Inc. a subsidiary of
Interactive Solutions, Raytheon, and others, we would not be able to generate
sufficient revenues to grow the company or reverse our history of losses.
In addition, we may have to spend more money to effectively compete for
market share, including funds to expand our infrastructure, which is a capital
and time extensive process. Further, if other companies want to aggressively
compete against us, we may have to spend more money on advertising, promotion,
trade shows, product development, marketing and overhead expenses, hiring and
retaining personnel, and developing new technologies. These higher expenses
would hurt our net income and profits.
CURRENCY FLUCTUATIONS, ESPECIALLY IN THE JAPANESE YEN AND GERMAN MARK, MAY
SIGNIFICANTLY INCREASE OUR EXPENSES AND AFFECT OUR RESULTS OF OPERATIONS.
The exchange rates for some local currencies in countries where we
operate may fluctuate in relation to the U.S. dollar. Such fluctuations may have
an adverse effect on our expenses, revenues, earnings, assets or liabilities
when local currencies are translated into U.S. dollars. We have
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significant operations in Asia, primarily Japan, and Europe, primarily Germany.
Also, we are party to supplier arrangements with several companies in Japan,
including Shimadzu and Sony Digital Products for the production of the MA IV
system. Our foreign operations, including payments to our suppliers, are
typically funded in the local currencies. Any changes in the value of the U.S.
dollar against these currencies could result in an increase in our reported
expenses or a decrease in our reported revenues which, if substantial, could
have a material adverse effect on our financial condition and results of
operations.
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RISK ASSOCIATED WITH
OUR INTERNAL OPERATIONS AND POLICIES
--------------------------------------
SINCE WE DO NOT INTEND TO DECLARE DIVIDENDS IN THE FORESEEABLE FUTURE, THE
RETURN ON YOUR INVESTMENT WILL DEPEND UPON APPRECIATION OF THE MARKET PRICE OF
YOUR SHARES.
We have never paid any dividends on our common stock. Our board of
directors does not intend to declare any dividends in the foreseeable future,
but intends to retain all earnings, if any, for use in our business operations.
As a result, the return on your investment in Xybernaut will depend upon any
appreciation in the market price of the common stock. The holders of common
stock are entitled to receive dividends when, as and if declared by the board of
directors out of funds legally available for dividend payments. The payment of
dividends, if any, in the future is within the discretion of our board of
directors and will depend upon our earnings, capital requirements and financial
condition, and other relevant factors.
ACQUISITION AND INTEGRATION OF SELFWARE, INC.
On April 7, 2000, the Company completed the acquisition of Selfware,
Inc., a Virginia corporation. Selfware, Inc. provides software and services and
has approximately 30 full-time employees. Revenues for the year ended December
31, 1999 were approximately $5.0 million, which were substantially greater than
the $3.3 million of revenues for the Company during that period.
In order to achieve the expected benefits of our acquisition of Selfware,
Inc. we must successfully combine the two businesses. We may not be able to
combine the technologies and operations quickly and smoothly. In the event that
our combination with Selfware, Inc. does not go smoothly, serious harm to our
business, financial condition and prospects may result. Combining the two
businesses will entail significant diversion of our management's time and
attention. In addition, we may be required to spend additional time or money on
combination issues that would otherwise have been spent on developing our
business and services or other matters.
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RISKS WHICH MAY DILUTE THE VALUE OF YOUR XYBERNAUT
SHARES OR LIMIT THE EFFECT OF THEIR VOTING POWER
----------------------------------------------------
THE PRICE OF OUR COMMON STOCK IS HIGHLY VOLATILE.
The price of our common stock is highly volatile. During the period from
January 1, 1999 to July 3, 2000 the closing price of our common stock has ranged
from a high of $23.75 to a low of $1.00. Following periods of volatility in the
market price of a company's securities, securities class action litigation has
often been instituted against such a company. If similar litigation were
instituted against us, it could result in substantial costs and a diversion of
our management's attention and resources, which could have an adverse effect on
our business. The volatile fluctuations of the market price are based on (1) the
number of shares in the market at the time as well as the number of shares we
may be required to issue in the future, compared to the market demand for our
shares; (2) our performance and meeting expectations of our performance,
including the development and commercialization of our products and proposed
products; and (3) general economic and market conditions.
OUR EXECUTIVE OFFICERS, DIRECTORS AND PRINCIPAL STOCKHOLDERS, TOGETHER, MAY
EXERCISE CONTROL OVER ALL MATTERS SUBMITTED TO A VOTE OF STOCKHOLDERS.
As of July 3, 2000, our executive officers, directors and principal
stockholders beneficially owned, in the aggregate, approximately 17% of our
outstanding shares of common stock. These stockholders, if acting together, may
be able to effectively control most matters requiring approval by our
stockholders. The voting power of these stockholders under certain circumstances
could have the effect of delaying or preventing a change in control of
Xybernaut.
WE HAVE 5,590,000 SHARES OF OUR COMMON STOCK RESERVED FOR FUTURE ISSUANCES
WHICH CAN SUBSTANTIALLY DILUTE THE VALUE OF YOUR XYBERNAUT COMMON STOCK.
The issuance of reserved shares would dilute the equity interest of
existing stockholders and could have a significant adverse effect on the market
price of our common stock. As of July 3, 2000, we had 5,590,000 shares of common
stock reserved for possible future issuances upon conversion of outstanding
options and warrants. Certain options and warrants are convertible into or
exercisable for shares of common stock at prices that may represent discounts
from future market prices of the common stock. Those discounts could result in
substantial dilution to existing holders of common stock. The sale of the common
stock acquired at a discount could have a negative impact on the trading price
of the common stock and could increase the volatility in the trading price of
the common stock. See the section entitled "Dilution" for a summary of the
number of shares which could be issued upon conversion of the outstanding
preferred stock at various market prices.
In addition, we intend to seek additional financing which may result in
the issuance of additional shares of our capital stock and/or rights to acquire
additional shares of our capital stock. Those additional issuances of capital
would result in a reduction of your percentage interest in Xybernaut.
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ANTI-TAKEOVER MEASURES IN OUR CERTIFICATE OF INCORPORATION COULD ADVERSELY
AFFECT THE VOTING POWER OF THE HOLDERS OF THE COMMON STOCK.
Our certificate of incorporation authorizes anti-takeover measures such
as the authority to issue "blank check" preferred stock and the staggered terms
of the members of our board of directors. Those measures could have the effect
of delaying, deterring or preventing a change in control without any action by
the shareholders. In addition, issuance of preferred stock, without shareholder
approval, on those terms as the board of directors may determine, could
adversely affect the voting power of the holders of the common stock, including
the loss of voting control to others. See "Description of Securities."
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements which involve
substantial risks and uncertainties. These forward-looking statements can
generally be identified because the context of the statement includes words such
as "may," "will," "except," "anticipate," "intend," "estimate," "continue,"
"believe," or other similar words. Similarly, statements that describe our
future plans, objectives and goals are also forward-looking statements. Our
factual results, performance or achievements could differ materially from those
expressed or implied in these forward-looking statements as a result of certain
factors, including those listed in "Risk Factors" and elsewhere in this
prospectus.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C. New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public over
the Internet at the SEC's Website at "http://www.sec.gov."
We have filed with the SEC a registration statement on Form S-3 to
register the shares being offered. This prospectus is part of that registration
statement and, as permitted by the SEC's rules, does not contain all the
information included in the registration statement. For further information with
respect to us and our common stock, you should refer to the registration
statement and to the exhibits and schedules filed as part of the registration
statement, as well as the documents discussed below.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update or supersede this information.
This prospectus may contain summaries of contracts or other documents.
Because they are summaries, they will not contain all of the information that
may be important to you. If you would like complete information about a contract
or other document, you should read the copy filed as an exhibit to the
registration statement or incorporated in the registration statement by
reference.
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We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 (File No. 0-19041) until all of the shares
are sold:
- Annual Report on Form 10-KSB for the fiscal year ended December 31,
1999;
- Quarterly Report on Form 10-Q for the period ended March 31, 2000; and
- The description of our common stock contained in the registration
statement on Form 8-A filed on July 15, 1996 under the Exchange Act
(File No. 0-15086), including all amendments or reports filed for the
purpose of updating that description.
You may request a copy of these filings, at no cost, by writing to us at
12701 Fair Lakes Circle, Suite 550, Fairfax, Virginia 22033, (703) 631-6925,
Attention: John F. Moynahan or by e-mail at investorrelations@xybernaut.com.
You can review and copy the registration statement, its exhibits and
schedules, as well as the documents listed below, at the public reference
facilities maintained by the SEC as described above. The registration statement,
including its exhibits and schedules, are also available on the SEC's web site.
USE OF PROCEEDS
The selling stockholders are selling all of the shares covered by this
prospectus for their own accounts. Accordingly, we will not receive any proceeds
from the resale of the shares.
We will bear the expenses relating to this registration, other than
discounts and commissions, which will be paid by the selling stockholders.
DILUTION
As of July 3, 2000, we had issued and outstanding 38,502,699 shares of
common stiock. At that date, there were an additional 5,590,000 shares of common
stock reserved for possible future issuances as follows:
- options to purchase 4,743,492 shares at an exercise price
between $1.37 and $16.56 per share. We have registered the shares
issuable upon exercise of the options under the Securities Act;
- warrants to purchase 290,000 shares at a price between $2.00
and $18.00 per share. Of the 290,000 shares, we have
registered a total of 135,000 shares issuable upon exercise of
these warrants. This prospectus covers an additional 87,500
shares of common stock issuable upon exercise of the warrants,
which shares will be freely tradable without restriction
(subject to prospectus delivery requirements) on the effective
date of the registration statement. The remaining 67,500
shares will be deemed to be "restricted securities" when
issued; and
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- 556,508 shares issuable upon exercise of options under the
1996 Omnibus Stock Incentive Plan, the 1997 Stock Incentive
Plan and the 1999 Stock Incentive Plan which have not been
granted as of July 3, 2000.
The shares which will be deemed "restricted securities" may be sold under
Rule 144. Rule 144 permits sales of "restricted securities" by any person,
whether or not an affiliate of the issuer, after one year. At that time, sales
can be made subject to the Rule's volume and other limitations and after two
years by non-affiliates without adhering to Rule 144's volume or other
limitations. In general, an "affiliate" is a person with the power to manage and
direct our policies. The SEC has stated that, generally, executive officers and
directors of an entity are deemed affiliates of the issuing entity.
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SELLING STOCKHOLDERS
This prospectus covers the resale by the selling stockholders of up to
625,249 shares of our common stock.
The following table lists the selling stockholders and certain
information regarding the ownership by each of the selling stockholders of
shares of our common stock as of July 3, 2000, and as adjusted to reflect the
sale of the shares. Information concerning the selling stockholders, their
pledgees, donees and other non-sale transferees who may become selling
stockholders, may change from time to time. To the extent the selling
stockholders or any of their representatives advise us of such changes, we will
report those changes in a prospectus supplement to the extent required. See
"Plan of Distribution."
The registration of the following shares through this registration
statement allows the following persons and entities to sell their share holdings
in the future on the open market and is not necessarily an indication of intent
to sell their shares.
Percentage ---------------------
of Shares of Common
Shares of Common Common Shares of Stock Owned
Stock Owned Prior to Stock Common Stock after Offering
Offering Owned to be Sold ---------------------
Prior to
the Number Percent
Offering
--------------------------------------------------------------------------------
Eric Allen 1,377 * 344 1,033 *
Austin Family Trust 1,663 * 416 1,247 *
Harvey W. Austin Trust 15,970 * 3,993 11,977 *
Aquodet L.L.P. 5,323 * 1,331 3,992 *
David Banghart 2,695 * 674 2,021 *
Barbara A. Beam 2,661 * 665 1,996 *
Barbaro Balsamo 731 * 183 548 *
John Boyter 133 * 33 100 *
Mark L. Chizanskos 1,404 * 351 1,053 *
Phyllis Chorazy 958 * 190 768 *
Alisann A. Collins 1,330 * 333 997 *
June Cory 4,097 * 399 3,698 *
Diane K. East 552 * 138 414 *
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Percentage ---------------------
of Shares of Common
Shares of Common Common Shares of Stock Owned
Stock Owned Prior to Stock Common Stock after Offering
Offering Owned to be Sold ---------------------
Prior to
the Number Percent
Offering
--------------------------------------------------------------------------------
June Ewing 831 * 208 623 *
Cecilia Firstenberg 786 * 72 714 *
William P. Forbes, Trustee 1,663 * 416 1,247 *
Shalini Gali 133 * 33 100 *
Karen Gardner 99 * 25 74 *
Michael Giblin 1,597 * 399 1,198 *
Nancy Hogan 16,306 * 4,077 12,229 *
Algernon S.B. James IV 232 * 58 174 *
Tiffany S. Jones 166 * 42 124 *
Kenneth Keith 4,436 * 1,109 3,327 *
Jack and Bonnie Lambton 2,661 * 665 1,996 *
Peter A. LeBerre 366 * 92 274 *
Thomas L. LeBerre 405 * 101 304 *
L. Christopher Luther 1,630 * 408 1,222 *
Edward Maddox (1) 31,083 * 7,771 23,312 *
Jeremy Mapes 173 * 43 130 *
Ann Martin 831 * 208 623 *
Andrew Metroka 812 * 178 634 *
Vernon Miskowich (2) 67,683 * 16,921 50,762 *
Karen Miskowich 1,330 * 333 997 *
Marilyn A. Miskowich 11,210 * 2,803 8,407 *
Perry Nolen 12,909 * 3,227 9,682 *
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Percentage ---------------------
of Shares of Common
Shares of Common Common Shares of Stock Owned
Stock Owned Prior to Stock Common Stock after Offering
Offering Owned to be Sold ---------------------
Prior to
the Number Percent
Offering
--------------------------------------------------------------------------------
Chris O'Donnell 133 * 33 100
Jude M. Plessas 133 * 33 100 *
David Rebibo 133 * 33 100 *
David & Odette Rebibo 114,678 * 2,995 111,683 *
Jacques Rebibo (3) 129,756 * 32,439 97,317 *
Joel Rebibo c/f Ilana Rebibo 133 * 33 100 *
Kathy K. Rebibo c/o Michael Rebibo 31,143 * 7,786 23,357 *
Michael Rebibo 5,892 * 1,473 4,419 *
Jo Ann Reel 6,874 * 1,719 5,155 *
David Reinmuth 133 * 33 100 *
Stuart F. Ross 665 * 166 499 *
Stuart Saltzman 6,055 * 1,514 4,541 *
C. Shane Thomas 399 * 100 299 *
Joseph Turk 712 * 178 534 *
Carlton Turner 4,006 * 1,002 3,004 *
Deborah & Anthony Vasalli 8,961 * 2,240 6,721 *
Anthony & Lorraine Vasalli 798 * 200 598 *
Sheri Young 133 * 33 100 *
Dalston Holdings Limited (4) 525,000(5) 1.3% 525,000(5) 0 *
Total 1,031,973 2.7% 625,249 406,724 1.1%
========= ==== ======= ======= ====
* Less than 1%
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(1) Mr. Edward Maddox is currently employed as a Vice President of our
company and our wholly-owned subsidiary, Selfware, Inc.
(2) Mr. Vernon Miskowich is currently employed as a Vice President of our
company and our wholly-owned subsidiary, Selfware, Inc.
(3) Mr. Jacques Rebibo is currently employed as Senior Vice President of our
company and is the President and Chief Executive Officer of our wholly-owned
subsidiary, Selfware, Inc. He was a member of our board of directors from
January 1996 to August 1997.
(4) Mr. C.B. Williams is the director and control person of Dalston Holdings
Limited, a Turks and Caicos company.
(5) Includes 87,500 shares of common stock issuable upon exercise of warrants
and assumes that such selling stockholder will exercise all of its warrants
into common stock.
The common stock have the material rights and obligations discussed below
and under the section entitled "Description of Securities." We have filed the
agreements relating to these rights and obligations with the SEC. We urge you
to read them in their entirety.
All of the selling stockholders, with the exception of Dalston Holdings
Limited, acquired their shares of common stock in connection with the merger of
our subsidiary, Selfware Acquisition Corporation, a Virginia corporation, with
and into Selfware, Inc., a Virginia corporation. Under the terms of the
Agreement and Plan of Merger, our subsidiary merged with and into Selfware,
with Selfware continuing as the surviving corporation and a wholly-owned
subsidiary of ours. As a result of the merger, the selling stockholders
received an aggregate of 429,327 restricted shares of our common stock. In
connection with the merger, we agreed to file a registration statement covering
the resale of up to 25% of the shares of common stock issued to the selling
stockholders pursuant to the merger.
Dalston Holdings Limited acquired its shares of common stock and warrants
exercisable into common stock in a private placement transaction entered into
on June 23, 2000. Under the terms of the common stock purchase agreement
between us and Dalston Holdings Limited, we agreed to sell 437,500 shares of
our common stock at $8.00 per share, representing a 12% discount to the closing
bid price of our common stock on June 22, 2000, for gross proceeds of
$3,500,000. We also issued warrants to purchase 87,500 shares of our comon
stock, representing an amount equal to 20% of the number of shares sold, at
$10.00 per share, representing 125% of the price for which our common stock was
sold in this private placement. The warrants are exercisable for a period of 5
years from the date of issuance and may be called by us if the market price of
our common stock exceeds $20.975 per share for any 10 trading days during a 15
trading day period. In connection with our sale of the common stock, we agreed
to use our best efforts to file a registration statement covering the shares of
common stock sold and issuable upon exercise of warrants on or before July 10,
2000.
Other than as indicated above, the selling stockholders are not
affiliated with us.
-12-
15
DESCRIPTION OF SECURITIES
GENERAL
Our authorized capital stock consists of 80,000,000 shares of common
stock, par value $0.01 per share, and 6,000,000 shares of preferred stock, par
value $0.01 per share. As of July 3, 2000, we have 38,502,699 shares of common
stock issued and outstanding. We have reserved 5,590,000 shares of common stock
for issuance upon exercise of outstanding options and warrants.
COMMON STOCK
Voting
The holders of our common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders. Our
certificate of incorporation and by-laws do not provide for cumulative voting
rights in the election of directors. Accordingly, holders of a majority of the
shares of common stock entitled to vote in any election of directors may elect
all of the directors standing for election.
Dividends
Holders of common stock are entitled to receive ratably those dividends
as may be declared by our board of directors out of funds legally available for
that purpose.
Rights on Liquidation
In the event of our liquidation, dissolution or winding up, holders of
common stock are entitled to share ratably in the assets remaining after
payment of liabilities.
Pre-emptive or Redemption Rights
Holders of common stock have no preemptive, conversion or redemption
rights. All of the outstanding shares of common stock are fully-paid and
nonassessable.
PREFERRED STOCK
Our board of directors has the authority to issue up to 6,000,000 shares
of preferred stock from time to time in one or more series. Our board has the
authority to establish the number of shares to be included in each series, and
to fix the designations, powers, preferences and rights of the shares of each
series and the applicable qualifications, limitations or restrictions. The
issuance of preferred stock may have the effect of delaying or preventing a
change in control. The issuance of preferred stock could decrease the amount of
earnings and assets available for distribution to the holders of common stock,
if any, or could adversely affect the rights and powers, including voting
rights, of the holders of the common stock. In certain circumstances, the
issuances could have the effect of decreasing the market price of the common
stock.
-13-
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As of the date of this prospectus, we have not designated any shares of
preferred stock other than the series A, B, C, D and E preferred stock, all of
which have been fully converted.
ANTI-TAKEOVER CONSIDERATIONS
Our certificate of incorporation authorizes the issuance of up to
6,000,000 shares of $0.01 par value preferred stock. The issuance of preferred
stock with such rights could have the effect of limiting stockholder
participation in certain transactions such as mergers or tender offers and
could discourage or prevent a change in our management. We have no present
intention to issue any additional preferred stock.
We have a classified or staggered board of directors which limits an
outsider's ability to effect a rapid change of control of our board. In
addition, at the 1998 Annual Meeting of Stockholders held on September 24,
1998, our shareholders approved measures to amend our certificate of
incorporation and by-laws, where applicable, to:
- implement an advance notice procedure for the submission of
director nominations and other business to be considered at
annual meetings of stockholders;
- permit only the President, the Vice Chairman of our board, the
Secretary or our board of directors to call special meetings of
stockholders and to limit the business permitted to be conducted
at such meetings to be brought before the meetings by or at the
direction of our board;
- provide that a member of our board of directors may only be
removed for cause by an affirmative vote of holders of at least
66 2/3% of the voting power of the then outstanding shares
entitled to vote generally in the election of directors voting
together as a single class;
- fix the size of our board of directors at a maximum of twelve
directors, with the authorized number of directors set at ten,
and our board of directors having the sole power and authority
to increase or decrease the number of directors acting by an
affirmative vote of at least a majority of the total number of
authorized directors most recently fixed by our board of
directors;
- provide that any vacancy on the board may be filled for the
unexpired term (or for a new term in the case of an increase in
the size of the board) only by an affirmative vote of at least a
majority of the remaining directors then in office even if less
than a quorum, or by the sole remaining director;
- eliminate stockholder action by written consent;
- require the approval of holders of 80% of the then outstanding
voting stock and/or the approval of 66 2/3% of the directors for
certain corporate transactions; and
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- require an affirmative vote of 66 2/3% of the voting stock in
order to amend or repeal any adopted amendments to the
certificate of incorporation and bylaws adopted at the
meeting.
Those measures combined with the ability of our board of directors to
issue "blank check" preferred stock and the staggered terms of the members of
our board of directors, could have the effect of delaying, deterring or
preventing a change in control without any further action by the stockholders.
In addition, the issuance of preferred stock, without stockholder approval, on
such terms as our board may determine, could adversely affect the voting power
of the holders of the common stock, including the loss of voting control to
others.
TRANSFER AGENT AND REGISTRAR
Continental Stock Transfer & Trust Company is our Transfer Agent and
Registrar for our common stock.
PLAN OF DISTRIBUTION
The selling stockholders and their pledgees, donees, transferees and
other subsequent owners, may offer their shares at various times in one or more
of the following transactions:
- on any U.S. securities exchange on which our common stock may be
listed at the time of sale
- in the over-the-counter market
- in privately negotiated transactions
- in connection with short sales; or
- in a combination of any of the above transactions.
The selling stockholders may offer their shares of common stock at
prevailing market prices at the time of sale, at prices related to those
prevailing market prices, at negotiated prices or at fixed prices.
The selling stockholders may also sell the shares under Rule 144 instead
of under this prospectus, if Rule 144 is available for those sales.
The transactions in the shares covered by this prospectus may be effected
by one or more of the following methods:
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
- purchases by a broker or dealer as principal, and the resale by
that broker or dealer for its account under this prospectus,
including resale to another broker or dealer;
- block trades in which the broker or dealer will attempt to sell
the shares as agent but may position and resell a portion of the
block as principal in order to facilitate the transaction; or
-15-
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- negotiated transactions between selling stockholders and
purchasers without a broker or dealer.
The selling stockholders and any broker-dealers or other persons acting
on the behalf of parties that participate in the distribution of the shares may
be deemed to be underwriters. Any commissions or profits they receive on the
resale of the shares may be deemed to be underwriting discounts and commissions
under the Securities Act.
As of the date of this prospectus, we are not aware of any agreement,
arrangement or understanding between any broker or dealer and any of the
selling stockholders with respect to the offer or sale of the shares under this
prospectus.
We have advised the selling stockholders that during the time each is
engaged in distributing shares covered by this prospectus, each must comply
with the requirements of the Securities Act and Rule 10b-5 and Regulation M
under the Exchange Act. Under those rules and regulations, they:
- may not engage in any stabilization activity in connection with
our securities;
- must furnish each broker which offers common stock covered by
this prospectus with the number of copies of this prospectus
which are required by each broker; and
- may not bid for or purchase any of our securities or attempt to
induce any person to purchase any of our securities other than as
permitted under the Exchange Act.
In the registration rights agreement we executed in connection with the
transactions with the selling stockholders we agreed to indemnify and hold
harmless each selling stockholder against liabilities under the Securities Act,
which may be based upon, among other things, any untrue statement or alleged
untrue statement of a material fact or any omission or alleged omission of a
material fact, unless made or omitted in reliance upon written information
provided to us by that selling stockholder. We have agreed to bear the expenses
incident to the registration of the shares, other than selling discounts and
commissions.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 145 of the Delaware General Corporation Law allows companies to
indemnify their directors and officers against expenses, judgments, fines and
amounts paid in settlement under the conditions and limitations described in
the law. Our certificate of incorporation authorizes us to indemnify our
officers, directors and other agent to the fullest extent permitted under
Delaware law.
Our certificate of incorporation provides that a director is not
personally liable for monetary damages to us or our stockholders for breach of
his or her fiduciary duties as a director. A director will be held liable for a
breach of his or her duty of loyalty to us or our stockholders, his or her
intentional misconduct or willful violation of law, actions or in actions not
in good faith, an unlawful stock purchase or payment of a dividend under
Delaware law, or transactions from which the director derives an improper
personal benefit. This limitation of liability does not affect the availability
of equitable remedies against the director including injunctive relief or
rescission.
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We have purchased a directors and officers liability and reimbursement
policy that covers liabilities of our directors and officers arising out of
claims based upon acts or omissions in their capacities as directors and
officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
Parker Chapin LLP, New York, New York, a stockholder of our company, will
pass upon the validity of the securities offered hereby. Martin Eric Weisberg,
Esq., a member of the firm, is our Secretary, one of our Directors and a
stockholder of our company.
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EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-KSB/A for the year ended December 31,
1999, and for each of the two years then ended, have been so incorporated in
reliance on the report of Grant Thornton LLP, independent certified public
accountants, given on the authority of said firm as experts in auditing and
accounting.
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========================================================= ======================================================
WE HAVE NOT AUTHORIZED ANY DEALER, ---------
SALESPERSON OR ANY OTHER PERSON TO GIVE
ANY INFORMATION OR TO REPRESENT ANYTHING
NOT CONTAINED IN THIS PROSPECTUS. YOU SHARES OF COMMON STOCK
MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION.
THIS PROSPECTUS DOES NOT OFFER TO SELL OR
BUY ANY SHARES IN ANY JURISDICTION WHERE XYBERNAUT CORPORATION
IT IS UNLAWFUL. THE INFORMATION IN
THIS PROSPECTUS IS CURRENT AS OF JULY __, 2000.
TABLE OF CONTENTS
Page
----
Risk Factors.........................................2
Where You Can Find More
Information About Us.........................6 ____________
Use of Proceeds......................................7
Dilution.............................................7
Selling Stockholders ................................9 PROSPECTUS
Description of Securities ..........................13 ____________
Plan of Distribution ...............................15
Indemnification for Securities
Act Liabilities.............................16
Legal Matters.......................................17
Experts ............................................18 _________________________, 2000
========================================================= ======================================================
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which
will be paid by us in connection with the issuance and distribution
of the securities being registered on this registration statement.
The selling stockholders will not incur any of the expenses set
forth below. All amounts shown are estimates.
Filing fee for registration statement................................... $ 1,858.12
Legal fees and expenses................................................. $10,000.00
Accounting expenses..................................................... $5,000.00
---------
Total................................................................... $16,858.12
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in general, that a corporation
incorporated under the laws of the State of Delaware, such as the
registrant, may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than a derivative
action by or in the right of the corporation) by reason of the fact
that such person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. In the case of a derivative
action, a Delaware corporation may indemnify any such person
against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, except that
no indemnification will be made in respect of any claim, issue or
matter as to which such person will have been adjudged to be liable
to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonably
entitled to indemnity for such expenses.
Our certificate of incorporation provides that directors will not
be personally liable for monetary damages to us or our stockholders for breach
of fiduciary duty as a director, except for liability resulting from a breach
of the director's duty of loyalty to us or our stockholders, intentional
misconduct or willful violation of law, actions or inactions not in good faith,
an unlawful stock
23
purchase or payment of a dividend under Delaware law, or transactions from
which the director derives improper personal benefit. Such limitation of
liability does not affect the availability of equitable remedies such as
injunctive relief or rescission. Our certificate of incorporation also
authorizes us to indemnify our officers, directors and other agents, by bylaws,
agreements or otherwise, to the fullest extent permitted under Delaware law. We
have entered into an indemnification agreement with each of our directors and
officers which may, in some cases, be broader than the specific indemnification
provisions contained in our certificate of incorporation or as otherwise
permitted under Delaware law. Each indemnification agreement may require us,
among other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as a director
or officer, against liabilities arising from willful misconduct of a culpable
nature, and to obtain directors' and officers' liability insurance if available
on reasonable terms.
We maintain a directors and officers liability policy with Genesis
Insurance Company that contains a limit of liability of $3,000,000 per policy
year.
ITEM 16. EXHIBITS.
NUMBER DESCRIPTION OF EXHIBIT
4.1 Form of Warrant issued to Dalston Holdings Limited
5.1 Opinion of Parker Chapin LLP.
10.1(1) Agreement and Plan of Merger dated as of April 7, 2000.
10.2(1) Registration Rights Agreement dated as of April 7, 2000.
10.3 Form of Common Stock Purchase Agreement dated as of June 23, 2000.
23.1 Consent of Grant Thornton LLP
23.2 Consent of Parker Chapin LLP (included in their opinion filed as Exhibit 5.1).
- -------------
(1) Incorporated by reference to the report on Form 8-K, file No.
000-21013
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
II-21
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individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time will be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of the issue.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fairfax, Commonwealth of Virginia on July 7,
2000.
XYBERNAUT CORPORATION
By: /s/ Edward G. Newman
---------------------------------
Edward G. Newman
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes Edward G. Newman and Steven A. Newman, each acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Form S-3 and to
file the same with exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or is substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities indicated on July 7, 2000.
/s/ Edward G. Newman Chairman of the Board,
- ------------------------------- President and Chief Executive Officer
Edward G. Newman
/s/ Steven A. Newman Executive Vice President and Vice Chairman
- ------------------------------- of the Board
Steven A. Newman
/s/ Kazuyuki Toyosato Executive Vice President
- ------------------------------- Asian Operations and Director
Kazuyuki Toyosato
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/s/ John F. Moynahan Senior Vice President and
- ------------------------------- Chief Financial Officer
John F. Moynahan
/s/ Martin Eric Weisberg
- -------------------------------
Martin Eric Weisberg Director
/s/ Lt. Gen. Harry E. Soyster
- -------------------------------
Lt. Gen. Harry E. Soyster Director
/s/ James J. Ralabate
- -------------------------------
James J. Ralabate Director
/s/ Keith P. Hicks
- -------------------------------
Keith P. Hicks Director
/s/ Phillip E. Pearce
- -------------------------------
Phillip E. Pearce Director
/s/ Eugene J. Amobi
- -------------------------------
Eugene J. Amobi Director
/s/ Edwin Vogt
- -------------------------------
Edwin Vogt Director
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SECURITIES AND
EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
-------------
EXHIBITS TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
XYBERNAUT CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED
IN ITS CHARTER)
JULY __, 2000
E-1
28
NUMBER DESCRIPTION OF EXHIBIT
4.1 Form of Warrant issued to Dalston Holdings Limited
5.1 Opinion of Parker Chapin LLP.
10.1(1) Agreement and Plan of Merger dated as of April 7, 2000.
10.2(1) Registration Rights Agreement dated as of April 7, 2000.
10.3 Form of Common Stock Purchase Agreement dated as of June 23, 2000.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Parker Chapin LLP (included in their opinion filed as Exhibit 5.1).
- -------------
(1) Incorporated by reference to the report on Form 8-K, file No. 000-21013
E-2