AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 1, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________
DCH TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1349374
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
27811 Avenue Hopkins #6
Valencia, California 91355
(661) 775-8120
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Mr. Ronald Ilsley
Vice President, Finance and Chief Financial Officer
DCH Technology, Inc.
27811 Avenue Hopkins #6
Valencia, California 91355
(661) 775-8120
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Cathryn S. Gawne, Esq.
Silicon Valley Law Group
152 N. Third Street, Suite 900
San Jose, California 95112
Telephone: (408) 286-6100
Facsimile: (408) 286-1400
Approximate Date of Proposed Sale to Public: As soon as practicable after this
Registration Statement becomes effective.
If any of the securities being registered on this Form are 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
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Title of each class Amount to be Proposed Proposed Amount of
of securities to be registered (1) maximum maximum registration fee
registered offering price per aggregate
unit offering price (1)
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Common Stock, 7,000,000 shares $ 3.875 (2) $27,125,000 (2) $7,161.00
$0.01 par value
Total 7,000,000 shares $27,125,000 (2) $7,161.00
- ----------------------------------------------------------------------------------------------------------
(1) Also includes such indeterminate number of shares of Common Stock as may be
issued upon exercise of any warrants that provide for exercise into other
securities.
(2) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(o).
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 the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities 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.
Subject to Completion, December 1, 2000
[DCH TECHNOLOGY, INC. LOGO]
By this Prospectus, we may offer up to 7,000,000 shares
of our
common stock
Our common stock is listed on the AMEX Stock Market under the symbol "DCH."
On November 27, 2000, the closing price of our common stock was $3.875 per
share.
______________________
We will provide the specific terms of the common stock offered in a
supplement to this Prospectus. You should read this Prospectus and the
supplements carefully before you invest.
______________________
See "Risk Factors" beginning on page 7 for a discussion of material issues to
consider before purchasing our common stock.
_______________________
We may offer the common stock directly or through underwriters, agents or
dealers. The supplement will describe the terms of that plan of distribution.
"Plan of Distribution" below also provides additional information on this topic.
_______________________
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 date of this prospectus is __________, 2000.
TABLE OF CONTENTS
Page
----
About This Prospectus 3
Where You Can Get More Information 3
About DCH Technology, Inc. 4
Risk Factors 7
Use of Proceeds 11
Description of Capital Stock 11
Plan of Distribution 12
Legal Matters 14
Experts 14
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of the common stock. In this
prospectus, "DCH," "we," "us" and "our" refer to DCH Technology, Inc.
All trademarks, service marks or trade names referred to in this prospectus
are the property of their respective owners.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf' registration process.
Under this shelf process, we may from time to time offer up to 7,000,000 shares
of our common stock, $0.01 par value per share, at prices and on terms to be
determined at the time of sale. The common stock offered pursuant to this
prospectus may be issued in one or more series of issuances and the aggregate
number of shares issued will not exceed 7,000,000.
Each time we offer this common stock, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering.
The registration statement that contains this prospectus (including
exhibits to the registration statement) contains additional information about
our company and the common stock offered under this prospectus. The registration
statement can be read at the SEC web site or at the SEC offices mentioned under
the heading "Where You Can Get More Information". This prospectus may not be
used to consummate sales of common stock unless accompanied by a prospectus
supplement.
WHERE YOU CAN GET MORE INFORMATION
We are a reporting company and file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy these
reports, proxy statements and other information at the SEC's public reference
rooms in Washington, DC, New York, NY and Chicago, IL. You can request copies of
these documents by writing to the SEC and paying a fee for the copying cost.
Please call the SEC at 1-800-SEC-0330 for more information about the operation
of the public reference rooms. Our SEC filings are also available at the SEC's
web site at www.sec.gov.
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The SEC allows us to "incorporate by reference" information that 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 and supersede this information. We incorporate
by reference the documents listed below and any future filings we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
- Annual Report on Form 10-KSB for the year ended December 31, 1999,
filed on March 30, 2000, as amended by Amendment No. 1, filed on
November 30, 2000;
- Quarterly Report on Form 10-QSB for the quarter ended March 31, 2000,
filed on May 15, 2000;
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- Quarterly Report on Form 10-QSB for the quarter ended June 30, 2000,
filed on August 14, 2000;
- Quarterly Report on Form 10-QSB for the quarter ended September 30,
2000, filed on November 14, 2000;
- Current Report on Form 8-K, filed on June 7, 2000, as amended on June
26, 2000;
- Current Report on Form 8-K, filed on June 9, 2000; and
- The description of the common stock contained in our Registration
Statement on Form SB-2 (No. 333-96509) filed with the SEC under the
Securities Act of 1933, as amended.
You may request a copy of these filings, at no cost, by writing,
telephoning or e-mailing us at the following address: DCH Technology, Inc.,
27811 Avenue Hopkins #6, Valencia, California 91355; (661) 775-8120;
www.dcht.com.
This prospectus is a part of a Registration Statement that we filed with
the SEC. You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of those documents.
You should read the entire prospectus and the prospectus supplements
carefully.
ABOUT DCH TECHNOLOGY, INC.
Our Business
DCH Technology, Inc. is a leader in hydrogen technology. Our hydrogen
sensors and safety systems provide real time monitoring of hydrogen gas for
various industries, and our fuel cell products provide clean and reliable power
from hydrogen. We seek out patented technologies in our focus areas, secure
those patented technologies through licensing agreements with the patent holders
and convert the technologies into viable products which we then produce, market
and sell.
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Our hydrogen gas sensor products capitalize on the rapidly growing need for
regulatory systems to monitor dangerous levels of hydrogen in various industry
applications. The current gas sensor market is estimated at $1.1 billion based
on an industry study conducted by management and continues to grow as new and
innovative uses for these products are found. Because hydrogen is explosive when
found in low level concentrations, detecting and regulating the gas in order to
activate safety equipment or alarms is a vital step in protecting personnel and
avoiding hazardous situations. Our hydrogen sensor equipment offers a fast and
reliable safety solution to an increasing number of industries that utilize
hydrogen in the production of their own products or that create hydrogen as a
byproduct. We have one hydrogen sensor product already on the market and are
currently developing a second sensor device.
Our hydrogen fuel cell products represent an alternative to traditional
energy resources, such as oil and gas. Recently, the United States government
and major car manufacturers have turned their attention to the need for cleaner,
longer lasting and more efficient fuel sources than fossil fuels. We believe
that our hydrogen fuel cell technology is the alternative fuel source of the
future, not just for automobiles, but for small, portable consumer products as
well. Our first two fuel cell products are currently under development and are
projected to be ready for the market in approximately 12 to 18 months.
Meanwhile, we continue to develop the underlying hydrogen fuel cell technology
and to strengthen our relationships with government and corporate partners
interested in exploiting this technology.
We feel that it is important to the growth and success of our company that
we establish strategic relationships within the industries that are most in need
of our products. By forging these relationships early on we anticipate that that
we will be able to penetrate relevant markets and reach higher sales volumes
quicker than our competitors. We also have several strategic partners that help
in the design and development of the technologies underlying our hydrogen sensor
and fuel cell products. These partners include the Department of Energy,
Lockheed Martin, Sandia National Laboratory, Oak Ridge National Laboratory,
Simon Fraser University, and Los Alamos National Laboratory.
We commenced initial production of our first hydrogen gas detector product
line, the Robust Hydrogen Sensor(TM) product line, in November 1998, and
currently offer four hydrogen sensor products. We began to commercialize a low
power (up to 10 kWs) fuel cell in 1998, and in March 2000 created a wholly-owned
subsidiary, the Enable Fuel Cell Corporation, to focus on this market.
Recent Developments
Hydrogen Sensors. In the quarter ended September 30, 2000, we designed,
assembled and installed a hydrogen safety system on a hydrogen-powered bus under
development by the University of Nevada, Las Vegas. This achievement in hydrogen
safety represents a future sales opportunity for our hydrogen fuel cells.
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On September 1, 2000, we moved our sensor production to a new building
located at 24832 Avenue Rockefeller, Santa Clarita, California, which will house
our advanced sensor development and full scale manufacturing operations. This
move represents the second expansion of our sensor division and will include on-
site hydrogen production capabilities. Our new facility includes new
capabilities that will help us meet the growing demand for hydrogen sensors.
Fuel Cells. In June 2000, we announced a joint venture agreement with Daido
Metal Company, Ltd., a Japanese high volume production manufacturer of precision
metal components. During the third quarter of 2000, the joint venture agreement
was signed and is now being implemented. Under the agreement, Daido will
manufacture and assemble fuel cell products, initially small portable fuel cells
ranging from less than one watt to 50 watts. The joint venture will also
encompass future production of larger fuel cells for stationary applications.
During the quarter ended September 30, 2000, we delivered a 3 kW fuel cell
to the Electric Power Research Institute (EPRI) PEAC Corporation. EPRI is a
leading research and development institute serving major power utilities. To
date, EPRI has demonstrated the system to more than 50 energy companies and
utilities, including international clients at its laboratories in Knoxville,
Tennessee. We have been verbally informed by representatives of EPRI that the
Enable fuel cell has performed up to EPRI's expectations.
During the same quarter, we delivered a 12 watt passive fuel cell to the US
Army CECOM. The unit is currently under test and, we are informed verbally, is
operating as specified. Also during the third quarter of 2000, four prototype
portable lighting systems (systems that integrate a passive fuel cell, hydride
hydrogen storage and fuel delivery system in one small package) were delivered
to an OEM for evaluation and testing.
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RISK FACTORS
An investment in the shares of our common stock involves a high degree of
risk. You should consider carefully the following risk factors as well as the
other information set forth in this prospectus before you decide to buy our
common stock.
Risks Related to DCH's Operations
We have a history of losses, and we expect losses for the foreseeable future.
Since our inception in November 1994, we have incurred substantial losses.
Our net loss was $3,587,473 for the year December 31, 1999, and $5,331,528 for
the nine months ended September 30, 2000. We had an accumulated deficit of
$8,618,404 at December 31, 1999 and $13,949,931 at September 30, 2000.
We anticipate that our expenses relating to developing, marketing and
supporting our current and future products will increase substantially in the
future. Accordingly, for the foreseeable future we expect to experience
additional losses as these increased expenses exceed our total revenues. These
additional losses will increase our accumulated deficit.
Our revenues currently depend on one product, the Robust Hydrogen Sensor(TM)
line.
To date, we have generated nearly all of our revenues from one product, the
Robust Hydrogen Sensor(TM) line. We expect that the Robust Hydrogen Sensor(TM)
group of products will continue to account for a substantial majority of our
revenues for the foreseeable future. Currently, five other technologies are
under development, including three sensors and two hydrogen fuel cells. Our
future financial performance is dependent, in significant part, upon the
successful development, introduction and customer acceptance of new and enhanced
versions of the Robust Hydrogen Sensor(TM), other hydrogen sensors, our hydrogen
fuel cell technologies and related new products that we may develop. We cannot
assure you that we will be successful in upgrading the Robust Hydrogen
Sensor(TM) or that we will successfully develop new products, or that any new
product will achieve market acceptance. For more information on the sources of
our revenues, please see the section of our Annual Report on Form 10-KSB and
Quarterly Reports on Form 10-QSB entitled "Management's Discussion and Analysis
of Financial Condition and Results of Operations."
Hydrogen sensor and fuel cell technologies are new and evolving technologies,
they compete with other gas sensor products and methods of fuel generation, and
may not receive widespread acceptance.
Hydrogen sensor and fuel cell technologies are in their very early stages
of development. Like many new technologies, they are characterized by rapidly
evolving technological developments, quickly changing marketing and sales
strategies, multiple and aggressive market participants, fluctuating demand and
uncertain market acceptance for products and services.
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Our hydrogen sensor equipment competes against other gas sensor products
that may be more sensitive or more reliable than those we offer. Although the
need for hydrogen monitoring devices is increasing as more hazards are
identified, many industries that utilize hydrogen may choose not to adopt
expensive hydrogen sensing safety systems. In addition, because the adoption of
hydrogen monitoring systems by various industries is largely driven by the
passage of new regulatory laws by the Occupational Safety and Health
Administration and other federal, state and local governing bodies, industries
may choose to forgo the advantages of these detection systems until they are
required to adopt them. These factors may delay or lessen the demand for our
hydrogen sensor products.
In the hydrogen fuel cell market, businesses and consumers remain
uneducated about the benefits of alternative power sources. This lack of
understanding may delay the acceptance and penetration of our fuel cell products
into markets that have historically been served by traditional fuel sources.
Businesses and consumers also have the option of using other methods of
alternative fuel generation, including carbonate, phosphoric acid, polymer
electrolyte or solid oxide fuel cells systems, as well as traditional fossil
fuels (such as oil, gasoline and batteries). These methods may maintain or even
increase their acceptance to the detriment of our hydrogen fuel cell technology.
We believe that virtually all of the raw materials used in our hydrogen fuel
cell products are readily available from a variety of vendors in the United
States and Canada.
The loss of the services of one or more of our key personnel or our failure to
hire, integrate or retain other qualified personnel could disrupt our business.
We depend upon the continued services and performance of our executive
officers and other key employees, particularly Dr. Johan (Hans) Friedericy, our
President; David A. Walker, our Executive Vice President and Chief of
Operations; and David P. Haberman, our Chairman and Executive Vice President of
Strategic Planning, Technology and Business Development. While we currently
carry "key person" insurance on the lives of Messrs. Walker and Haberman, the
proceeds of such insurance might not adequately compensate us for the loss of
either of them. Competition for qualified personnel in technology, particularly
in the fuel cell industry, is intense and we may not be able to retain or hire
necessary personnel as a result of the highly specialized nature of our
products. In addition, the amount of our limited working capital may impose
compensation restrictions on us that make it difficult to attract and hire
necessary employees.
Governmental regulation of the hydrogen fuel cell and hydrogen sensor technology
may restrict our business.
Government regulation of the use of hydrogen for industrial applications
and fuel cell generation varies greatly from country to country. There is some
risk that the United States and other countries will increase their regulation
of these technologies in the future. As our products are utilized solely in
connection with hydrogen, any new law or regulation pertaining to the commercial
use of hydrogen, or the application or interpretation of existing laws, could
adversely impact our sales, increase our cost of doing business or otherwise
have a material and adverse effect on our business, results of operations and
financial condition.
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DCH and our future hydrogen fuel cell manufacturing facilities will also be
subject to various federal, state and local laws and regulations relating to,
among other things, land use, safe working conditions, handling and disposal of
hazardous and potentially hazardous substances and emissions of pollutants into
the atmosphere. We believe that we have obtained all necessary government
permits and have been in substantial compliance with all of these applicable
laws and regulations.
Since 1991, the National Environmental Protection Act (NEPA) has required
that each local Department of Energy procurement office file and have approved
by the Department of Energy in Washington, DC, appropriate documentation for
environmental, safety and health impacts with respect to procurement contracts
entered into by that local office. The costs associated with compliance with
environmental regulations may or may not be recovered under existing or future
contracts to which we are a party. In addition, contract work may be delayed
until such approval is received.
Product defects and product liability claims related to our hydrogen sensors and
hydrogen fuel cell products could expose us to significant liability.
Although we test our products extensively prior to introduction, we cannot
assure you that our testing will detect all serious defects, errors and
performance problems prior to commercial release of our future products. Any
future defects, errors or performance problems discovered after commercial
release could result in the diversion of scarce resources away from customer
service and product development, lost revenues or delays in customer acceptance
of our products and damage to our reputation, which, in each case, could have a
material and adverse effect on our business, results of operations or financial
condition.
In addition to the potential for product defects, hydrogen itself is a
dangerous element. For example, hydrogen is highly explosive when it reaches
concentrations in the air of greater than four percent. The volatility of
hydrogen may compromise the safety and effectiveness of our products, which may
cause damage to our reputation, result in lost sales and revenues or have other
material and adverse effects on our business.
We have not experienced any product liability claims to date, but we may be
subject to such claims in the future. A product liability claim brought against
us could have a material and adverse effect on our business, results of
operations or financial condition.
We are heavily reliant on third parties for certain components and any delays,
defects or other problems in supplying these components could adversely affect
our business.
We are heavily reliant on the ability of Allied Signal, Inc. to manufacture
the semiconductor wafer for the Robust Hydrogen Sensor(TM). With the acquisition
of Honeywell by Allied Signal, the silicon foundry has been closed. Currently,
our CMOS process is accomplished at Silicon Valley Sensors, Inc. in San Jose,
California. We have purchased equipment from Honeywell that will enable us to
process the new wafers in-house commencing in the fourth quarter of 2000;
however, there can be no assurance that our manufacturing efforts will be
successful or cost-effective. Our manufacturing partner ICCI fabricates
electronic circuit boards
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for the Robust Hydrogen Sensor(TM). Sensor casing and other hardware are
fabricated by various small manufacturers. Although delays in the shipment and
receipt of our component parts may occur, historically we have experienced only
incidental, short-term delays that tend to occur from time to time in the normal
course of business.
Growth in the volume of orders for our products may strain the capacity of
these component suppliers, and delays or other problems with component suppliers
could have a material and adverse effect on our business. Although we test the
component parts that we receive from our suppliers, we cannot be assured that
our components will be completely free of all defects.
The markets for our fuel cell products are at a very early stage of development,
are rapidly changing and are characterized by an increasing number of market
entrants.
As is typical for a new and rapidly evolving industry, demand for and
market acceptance of recently introduced products are subject to a high level of
uncertainty and risk. Acceptance and usage of our fuel cells is dependent on
continued growth in use of alternative energy sources by businesses and
consumers. Businesses that already have invested substantial resources in
traditional or other energy sources may be reluctant to adopt new alternative
sources. Individuals with established patterns of purchasing goods and services
may be reluctant to alter those patterns. Accordingly, it is not assured that
sufficient demand for our products will develop to sustain our business.
Our products do not provide the exclusive means for accomplishing an
objective, and customers may choose alternative means. The markets for hydrogen
sensors and fuel cells are intensely competitive, and we expect competition to
increase significantly. Many of our competitors have significantly greater
financial and other resources than we do, which may enable such competitors to
market their products in a manner that achieves commercial success even in the
face of technical superiority on the part of our products.
Some of the information in this prospectus contains forward-looking statements.
Some of the information in this prospectus contains forward-looking
statements that involve substantial risks and uncertainties. You can identify
these statements by forward-looking words such as "may," "will," "expect,"
"anticipate," "believe," "estimate" and "continue" or similar words. You should
read statements that contain these words carefully because they:
- discuss our expectations about our future performance;
- contain projections of our future operating results or of our future
financial condition; or
- state other "forward-looking" information.
We believe it is important to communicate our expectations to our
stockholders. There
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may be events in the future, however, that we are not able to predict accurately
or over which we have no control. The risk factors listed in this section, as
well as any cautionary language in this prospectus, provide examples of risks,
uncertainties and events that may cause our actual results to differ materially
from the expectations we describe in our forward-looking statements. Before you
invest in our common stock, you should be aware that the occurrence of any of
the events described in these risk factors and elsewhere in this prospectus
could have a material and adverse effect on our business, results of operations
and financial condition and that upon the occurrence of any of these events, the
trading price of our stock could decline and you could lose all or part of your
investment.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, the net
proceeds from the sale of securities offered hereby will be used for general
corporate purposes. We expect from time to time to evaluate the acquisition of
products, businesses and technologies for which a portion of the net proceeds
may be used. Currently, however, we do not have any understandings, commitments
or agreements with respect to any material acquisitions for which a portion of
the net proceeds may be used.
We currently intend to use the proceeds, as working capital and for general
corporate purposes, including possible acquisitions of or investments in
complementary businesses, products or technologies.
DESCRIPTION OF CAPITAL STOCK
The descriptions in this section and in other sections of this prospectus
of our securities and various provisions of our Articles of Incorporation and
our Bylaws are descriptions of the material terms of our securities. We note
that our Articles of Incorporation and Bylaws have been filed with the SEC as
exhibits to this registration statement of which this prospectus forms a part.
We are authorized to issue 50,000,000 shares of common stock, of which
25,572,616 shares were outstanding at October 31, 2000, and 5,000,000 shares of
preferred stock, none of which were outstanding at October 31, 2000. All
outstanding shares of common stock are duly authorized, validly issued, fully
paid and non-assessable.
Description of Common Stock
The holders of common stock are entitled to one vote per share on all
matters on which the holders of common stock are entitled to vote and do not
have cumulative voting rights in the election of directors. Holders of common
stock are entitled to dividends when, if and as may be declared by the Board of
Directors out of funds legally available therefore. Under the Delaware General
Corporations Law, we may declare and pay dividends only out of our surplus, or
if there shall be no such surplus, out of our net profits for the fiscal year in
which the dividend is declared or the preceding year. In the event of the
liquidation, dissolution or winding up of DCH,
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holders of shares of common stock are entitled to share ratably in the assets,
if any, available for distribution after payment of all creditors and the
liquidation preferences on any outstanding shares of preferred stock. Holders of
common stock have no preemptive rights to subscribe for any additional
securities of any class, which we may issue, nor any conversion, redemption or
sinking fund rights. The rights and privileges of holders of common stock are
subject to the preferences of any shares of preferred stock that we may issue in
the future.
Description of Preferred Stock
We may issue shares of Preferred Stock in one or more classes or series
within a class as may be determined by our Board of Directors, who may
establish, from time to time, the number of shares to be included in each class
or series, may fix the designation, powers, preferences and rights of the shares
of each such class or series and any qualifications, limitations or restrictions
thereof, and may increase or decrease the number of shares of any such class or
series without any further vote or action by the shareholders. Any Preferred
Stock so issued by the Board of Directors may rank senior to the common stock
with respect to the payment of dividends or amounts upon liquidation,
dissolution or winding up of DCH, or both. In addition, any such shares of
Preferred Stock may have class or series voting rights. Moreover, under certain
circumstances, the issuance of Preferred Stock or the existence of the unissued
Preferred Stock may tend to discourage or render more difficult a merger or
other change in control of DCH.
No shares of Preferred Stock are currently outstanding. Our Board of
Directors has authorized the designation of Series A Preferred Stock; however,
the Series A Preferred Stock has not yet been formally designated with the
Delaware Secretary of State or issued. The issuance of Preferred Stock, while
providing desirable flexibility in connection with possible acquisitions and
other corporate purposes, could have the effect of making it more difficult for
a third party to acquire, or of discouraging a third party from acquiring, a
majority of our outstanding voting stock.
Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is Holladay Stock
Transfer, Inc., in Scottsdale, Arizona.
PLAN OF DISTRIBUTION
We may sell the common stock through underwriters, agents or dealers or
directly to purchasers. A prospectus supplement will set forth the terms of each
specific offering, including the name or names of any underwriters or agents,
the purchase price of the common stock and the proceeds to us from such sales,
any delayed delivery arrangements, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
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If underwriters are used in the sale, the common stock will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The common
stock may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering and, if an underwriting syndicate is used, the
managing underwriter or underwriters will be set forth in the prospectus
supplement. Unless otherwise set forth in the prospectus supplement, the
underwriters will be obligated to purchase all the common stock if any is
purchased.
During and after an offering through underwriters, the underwriters may
purchase and sell the common stock in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, under which selling concessions
allowed to syndicate members or other broker-dealers for the common stock they
sell for their account may be reclaimed by the syndicate if the syndicate
repurchases the common stock in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
common stock then offered, which may be higher than the price that might
otherwise prevail in the open market, and, if commenced, may be discontinued at
any time.
We may sell the common stock directly or through agents we designate from
time to time. Any agent involved in the offer or sale of the common stock
covered by this prospectus will be named, and any commissions payable by us to
an agent will be set forth, in a prospectus supplement relating thereto. Unless
otherwise indicated in a prospectus supplement, any such agent will be acting on
a best efforts basis for the period of its appointment.
If dealers are used in any of the sales of common stock covered by this
prospectus, we will sell that common stock to dealers as principals. The dealers
may then resell the securities to the public at varying prices the dealers
determine at the time of resale. The names of the dealers and the terms of the
transactions will be set forth in a prospectus supplement.
We may sell the common stock directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act
with respect to any sale thereof. The terms of any such sales will be described
in a prospectus supplement.
If so indicated in a prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase common stock from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. These contract will be
subject only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth the commission payable for solicitation of
such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities
13
Act, or to contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services on our behalf.
LEGAL MATTERS
The validity of any common stock offered by this prospectus or any
supplement will be passed upon for us by Silicon Valley Law Group, San Jose,
California.
EXPERTS
The consolidated balance sheet as of December 31, 1999 and the consolidated
statements of operations, stockholders' equity and cash flows for the year ended
December 31, 1999, incorporated by reference in this prospectus, have been
incorporated in reliance on the report of Lucas, Horsfall, Murphy & Pindroh,
LLP, independent certified public accountants, and are included in reliance upon
such report given upon the authority of said firm as experts in auditing and
accounting. As indicated in our Form 8-K filed with the SEC on June 7, 2000, we
terminated our relationship with Lucas, Horsfall, Murphy & Pindroh in May 2000
and engaged the services of Moss Adams LLP. The consolidated balance sheet as of
September 30, 2000 and the consolidated statement of operations and
stockholders' equity for the nine months ended September 30, 2000, incorporated
by reference in this prospectus, have been incorporated in reliance on the
review of Moss Adams LLP, independent certified public accountants, and are
included in reliance upon such review given upon the authority of said firm as
experts in accounting and auditing.
14
DCH TECHNOLOGY, INC.
Up to 7,000,000 Shares of
Common Stock
________________________
PROSPECTUS
________________________
___________ __, 2000
15
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an itemization of various expenses, other
than the placement agent fees, underwriting discounts and commissions, payable
by us in connection with the sale and distribution of the common stock being
registered. All of the amounts shown are estimates, except the Securities and
Exchange Commission registration fee.
Securities and Exchange Commission Registration Fee........ $ 7,507.50
Accounting Fees and Expenses............................... $15,000.00
Legal Fees and Expenses.................................... $15,000.00
Miscellaneous.............................................. $ 2,492.50
----------
Total............................................. $40,000.00
ITEM 15 INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its officers and directors against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended. The Registrant's Bylaws also provide that the
Registrant will indemnify its executive officers and directors and may indemnify
its other officers, employees and other agents to the fullest extent permitted
by Delaware law.
The Registrant's Certificate of Incorporation provides that the liability
of its directors for monetary damages shall be eliminated to the fullest extent
permissible under Delaware law. Pursuant to Delaware law, this includes
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. These provisions
do not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
The Registrant has entered into agreements with its directors and officers
that require the Registrant to indemnify such persons to the fullest extent
authorized or permitted by the provisions of the Certificate of Incorporation
and Delaware law against expenses, judgments, fines, settlements and other
amounts actually and responsibly incurred (including expenses of a derivative
action) in connection with any proceeding, whether actual or threatened, to
which any such person may be made a party by reason of the fact that such person
is or was a director, officer, employee or other agent of the Registrant or any
of its affiliated enterprises. Delaware law permits such indemnification,
provided such person acted in good faith and in a manner such person reasonably
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believed to be in or not opposed to the best interest of the Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe his
or her conduct was unlawful. The indemnification agreements also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder. In addition, the Registrant maintains director and officer liability
insurance which, subject to certain exceptions and limitations, insures
directors and officers for any alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or act in their respective
capacities as directors and officers of the Registrant.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
ITEM 16. EXHIBITS
The following exhibits are filed herewith or are incorporated herein by
reference:
Exhibit No. Description
- ---------- -----------
2.1 Articles of Incorporation of Connection Sports
International, Inc., as amended. (1)
2.2 Bylaws of DCH Technology, Inc., a Colorado corporation (1)
2.3 Certificate of Incorporation of DCH Technology, Inc., a
Delaware corporation. (2)
2.4 Bylaws of DCH Technology, Inc., a Delaware corporation. (2)
3.1 Agreement and Plan of Reorganization, dated May 28, 1997, by
and among Connection Sports International, Inc., DCH
Technology, Inc., a California corporation, and its
shareholders. (1)
3.2 Specimen certificate for the Registrant's common stock. (1)
5.1 Legal Opinion of Silicon Valley Law Group*
10.1 License Agreement, dated April 24, 1996, by and between
Registrant and Sandia Corporation. (1)(3)
10.2 Limited Exclusive Field of Use Patent License Agreement,
dated March 15, 1999, by and between Registrant and The
Regents of the University of California. (1)(3)
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10.3 Nonexclusive Field of Use Patent License Agreement, dated
March 15, 1999, by and between Registrant and The Regents of
the University of California. (1)(3)
10.4 LANL Modular CRADA Stevenson-Wydler Cooperative Research and
Development Agreement No. LA98C10384, dated October 30,
1998, by and between Registrant and The Regents of the
University of California. (1) (3)
10.5 Stevenson-Wydler Cooperative Research and Development
Agreement No. ORNL 96-0454, dated September 26, 1996, as
amended, by and between Registrant and Lockheed Martin
Energy Research Corporation. (1)(3)
10.5(a) Amendment B to Cooperative Research and Development
Agreement No. ORNL 96-0454. (1) (3)
10.6 Sole Commercial Patent License Agreement, dated September
26, 1996, by and between Registrant and Lockheed Martin
Energy Research Corporation. (1) (3)
10.7 Exclusive License Agreement, effective as of May 15, 1998,
by and between Registrant and Simon Fraser University. (1)
(3)
10.8 Stevenson-Wydler Cooperative Research and Development
Agreement, dated May 6, 1996, as amended, by and between
Amerisen and Midwest Research Institute. (1) (3)
10.8(a) Modification Number 3 to Cooperative Research and
Development Agreement No. CRD-96-046. (1) (3)
10.9 Agency Agreement, dated January 18, 1999, by and between
Registrant and Horiba, Ltd. (1)
10.10 Employment Agreement, dated December 31, 1994, by and
between Registrant and David A. Walker. (1)
10.11 Employment Agreement, dated December 31, 1994, by and
between Registrant and David P. Haberman. (1)
10.12 Limited Liability Company Operating Agreement, dated July
31, 1998, of Renewable Energies Group LLC. (1)
10.13 Operating Agreement of Infrasol LLC, dated July 31, 1998.
(1)
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10.14 Standard Industrial/Commercial Multi-Tenant Lease- Gross,
dated April 28, 1998, by and between Registrant and Bradmore
Realty Investment Company, Ltd. (1)
10.15 Standard Industrial/Commercial Multi Tenant Lease-Gross,
dated April 2, 1999, by and between Registrant and Valencia
Gardens. (1)
10.16 Lease Agreement, dated as of April 22, 1999, by and between
Registrant and Welton Family Limited Partnership. (1)
10.17 Purchase and Sale Agreement and Joint Escrow Instructions. (4)
15.1 Letter from Moss Adams LLP
23.1 Consent of Lucas, Horsfall, Murphy & Pindroh, LLP
23.2 Consent of Silicon Valley Law Group (to be contained in
Exhibit 5.1)*
23.3 Consent of Moss Adams LLP
* To be filed by amendment.
(1) Incorporated by reference from Registrant's Registration Statement on Form
10-SB (File No. 000-26957)
(2) Incorporated by reference from Registrant's Proxy Statement for its 2000
Annual Meeting of Stockholders, filed with the Commission on May 9, 2000.
(3) Portions omitted pursuant to a request for confidentiality filed with the
Commission.
(4) Incorporated by reference from Registrant's Current Report on Form 8-K,
filed with the Commission on June 9, 2000.
ITEM 17. UNDERTAKINGS
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, as amended (the "Exchange Act") (and, where applicable,
each filing of any employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of a periodic
report pursuant to Section 13 or 15(d) of the Exchange Act containing
information required to be included in a post-effective amendment that is
incorporated by reference in the registration statement shall be deemed to be a
new registration
II-4
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.
The undersigned Registrant hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement 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.
The undersigned Registrant hereby undertakes 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
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 14 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.
The undersigned Registrant undertakes that: (1) for purposes of determining
any liability under the Securities Act, the information omitted from the form of
prospectus as filed as part of the registration statement in reliance upon Rule
430A and contained in the form of prospectus filed by the Registrant pursuant to
rule 424 (b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities Act, each
post-effective amendment that contained a form of prospectus 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.
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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 of 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 Valencia, State of California, on December 1, 2000.
DCH TECHNOLOGY, INC.
/s/ Dr. Johan (Hans) Friedericy
-------------------------------
Dr. Johan (Hans) Friedericy
President
POWER OF ATTORNEY
Know all persons by these presents, that each person whose signature
appears below constitutes and appoints David A. Walker and Ronald Ilsley, and
each of them, 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 or all amendments (including post-effective
amendments) to the Registration Statement on Form S-3, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, 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 attorney-in-fact or agent, or his 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
- ------------------------------- ------------------------------ ----
/s/ Dr. Johan (Hans) Friedericy President, Director, and December 1, 2000
- -------------------------------
Dr. Johan (Hans) Friedericy Chief Executive Officer
/s/ Ronald Ilsley Vice President, Finance and December 1, 2000
- -----------------
Ronald Ilsley Chief Financial Officer
(principal accounting officer)
/s/ David P. Haberman Chairman, Executive Vice December 1, 2000
- ---------------------
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David P. Haberman President and Director
/s/ David A. Walker Executive Vice President December 1, 2000
- ---------------------- Operations and Director
David A. Walker
/s/ Daniel Teran Director December 1, 2000
- ----------------------
Daniel Teran
/s/ Mark Lezell Director December 1, 2000
- ----------------------
Mark Lezell
/s/ Robert S. Walker
- ---------------------- Director December 1, 2000
Robert S. Walker
__________________ Director December 1, 2000
Raymond N. Winkel
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