As filed with the Securities and Exchange Commission on November 9, 2004.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANCED PHOTONIX, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0325826
(State or other (I.R.S. employer
jurisdiction of identification number)
incorporation)
ADVANCED PHOTONIX, INC.
1240 Avenida Acaso
Camarillo, California 93012
(805) 987-0146
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Richard D. Kurtz, Chief Executive Officer
Advanced Photonix, Inc.
1240 Avenida Acaso
Camarillo, California 93012
(805) 987-0146
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Landey Strongin, Esq.
Dornbush Schaeffer Strongin & Weinstein, LLP
747 Third Avenue
New York, New York 10017
(212) 759-3300
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ X ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
____________________.
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _____________________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed Maximum
Title of each Class Maximum Aggregate Offering Amount of
of Securities to be Amount to Offering Price Price Registration
Registered be Registered Per Share (2) Fee
------------------------------ ------------------------- ----------------- --------------------- -------------------
Class A Common Stock, par
value $.001 6,424,139 shares (1) $1.685 (1) $10,824,674 $1,371.49
per share (1)(2)
------------------------------ ------------------------- ----------------- --------------------- -------------------
Class A Common Stock, par
value $.001 per share,
issuable upon exercise of 2,212,137 shares (1) $2.1156 (3) $4,679,997 (3) $592.96
warrants (1)(2)
------------------------------ ------------------------- ----------------- --------------------- -------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based on the
average of the high and low sale prices of our Class A common stock on November
5, 2004 as reported on the American Stock Exchange. The number of shares of
Class A common stock registered hereunder is based upon the maximum number of
shares of Class A common stock of the Registrant issuable upon conversion of the
notes and the exercise of the warrants and the additional investment rights.
(2) Pursuant to Rule 416 of the Securities Act of 1933, as amended, such shares
shall include an indeterminate number of shares of Class A common stock that may
become issuable as a result of anti-dilution adjustments in accordance with the
terms of the convertible notes, warrants and additional investment rights issued
to the selling stockholders.
(3) Calculated pursuant to Rule 457(g) of the Securities Act of 1933, as
amended, based on the warrant exercise price of $2.1156 per share.
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.
P R O S P E C T U S
ADVANCED PHOTONIX, INC.
8,636,276 Shares of Class A Common Stock
This prospectus relates to up to 8,636,276 shares of our Class A common
stock for resale by the selling stockholders identified in this prospectus or
their transferees from time to time. Of the Class A common stock offered hereby,
(i) 2,578,250 shares of Class A common stock are issuable upon conversion of
$5.0 million aggregate principal amount of our convertible notes, (ii) 2,363,396
shares of Class A common stock are issuable upon conversion of $5.0 million
aggregate principal amount of additional convertible notes reserved for issuance
upon the exercise of outstanding additional investment rights, (iii) 850,822
shares of Class A common stock are issuable upon exercise of warrants issued in
connection with the sale of the initial $5.0 million aggregate principal amount
of our convertible notes, and (iv) 850,822 shares of Class A common stock are
issuable upon exercise of warrants which may be purchased upon exercise of
outstanding additional investment rights. We are not offering or selling any of
our Class A common stock pursuant to this prospectus. We will not receive any of
the proceeds from the sale of the shares by the selling stockholders. We will
not be paying any underwriting discounts or commissions in this offering.
The selling stockholders identified in this prospectus, or their pledgees,
donees, permitted transferees or other successors-in-interest, may offer the
shares from time to time through public or private transactions at prevailing
market prices, at prices related to prevailing market prices or at privately
negotiated prices.
We do not know when or in what amount a selling stockholder may offer
shares for sale, including whether a selling stockholder will sell any or all of
the shares offered by this prospectus.
Our Class A common stock is traded on the American Stock Exchange under the
symbol "API." On November 5, 2004, the last sale price of a share of our Class A
common stock as reported on the American Stock Exchange was $1.69.
These securities involve a high degree of risk. See "Risk Factors"
beginning on page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is _________________, 2004
TABLE OF CONTENTS
Page
----
Cautionary Statement Regarding Forward Looking Statements.............. ii
The Company............................................................ 1
Risk Factors........................................................... 3
Use of Proceeds........................................................ 9
Selling Stockholders................................................... 9
Plan of Distribution................................................... 11
Legal Matters.......................................................... 14
Experts................................................................ 14
Where You Can Find More Information.................................... 14
Indemnification........................................................ 15
About This Prospectus
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, or the SEC, utilizing a "shelf" registration
process or continuous offering process. Under this shelf registration process,
the selling stockholders may, from time to time, sell the securities described
in this prospectus in one or more offerings. This prospectus provides you with a
general description of the securities that may be offered by the selling
stockholders. Each time a selling stockholder sells securities, the selling
stockholder is required to provide you with this prospectus and, in certain
cases, a prospectus supplement containing specific information about the selling
stockholder and the terms of the securities being offered. That prospectus
supplement may include additional risk factors or other special considerations
applicable to those securities. Any prospectus supplement may also add, update,
or change information in this prospectus. If there is any inconsistency between
the information in this prospectus and any prospectus supplement, you should
rely on the information in that prospectus supplement. You should read both this
prospectus and any prospectus supplement together with additional information
described under "Where You Can Find More Information."
As used in this prospectus, the terms "we," "our," and "us" may, depending
on the context, refer to Advanced Photonix, Inc., including its consolidated
subsidiaries.
i
Cautionary Statements Regarding Forward Looking Statements
We believe it is important to communicate our expectations to investors.
However, there may be events in the future that we are not able to predict
accurately or that we do not fully control that could cause actual results to
differ materially from those expressed or implied. This prospectus and the
documents incorporated by reference in this prospectus may contain forward
looking statements made pursuant to the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Such statements are subject to certain
factors, risks and uncertainties that may cause actual results, events and
performances to differ materially from those referred to in such statements.
These risks include statements that address operating performance, events or
developments that we expect or anticipate will occur in the future, such as
projections about our future results of operations or our financial condition,
research, development and commercialization of our product candidates,
anticipated trends in our business, manufacture of sufficient and acceptable
quantities of our proposed products, our strategies to grow the company, and
other risks that could cause actual results to differ materially. The forward
looking statements are based on information available to us on the date hereof,
and we assume no obligation to update any such forward looking statements.
ii
The Company
This summary contains basic information about us and the resale by the
selling stockholders of our Class A common stock. Because it is only a summary,
it does not contain all of the information that you should consider before
purchasing our Class A common stock. You should read this entire prospectus,
including the information set forth under "Risk Factors" and the information
incorporated by reference in this prospectus.
Our Business
------------
We are engaged in the development and manufacture of custom optoelectronic
solutions, serving a variety of global Original Equipment Manufacturer (OEM)
markets. While we specialize in silicon-based custom photodiode assemblies, our
product families range from custom light detection assemblies, including our
patented Avalanche Photodiode technology, to light emitting diode (LED)
assemblies. We support the customer from the initial concept and design phase of
the product, through to full-scale production and test. We have two
manufacturing and wafer fabricating facilities, one in Camarillo, CA and one in
Dodgeville, WI.
We design and manufacture silicon-based optoelectronic components and
assemblies for a global OEM customer base. The core technology used in the
majority of our products is silicon-based photodiodes. Photodiodes sense light
of varying wavelengths and intensity and convert that light into electrical
signals. We manufacture photodiodes of varying complexity, from basic PIN
(positive-intrinsic-negative) photodiodes to the more sophisticated avalanche
photodiode (APD). APD is a specialized silicon photodiode capable of detecting
very low light levels due to an internal gain phenomenon known as avalanching.
All devices are designed by our experienced engineering staff, and fabricated in
two state-of-the-art clean rooms. Our basic products and technologies include
the following:
o PIN photodetectors - spectrally enhanced, both single and multi-element
o Silicon High Resistivity p-type Detectors
o Photodetector hybrids, which include signal amplification circuitry within
the detector package
o Custom LED assemblies and LED displays
o FILTRODE(R) - patented technology integrating optical filters directly on
photodiode chips
o APDs - discrete, with and without thermoelectric coolers, and with
integrated modules
These products serve customers in a variety of global markets, typically
North America, Asia, Europe and Australia. The target markets served by us are
Military & Aerospace, Industrial & Commercial, Medical, Automotive and
Communications.
We were incorporated under the laws of the State of Delaware in June 1988.
Our principal executive offices are located at 1240 Avenida Acaso, Camarillo,
California 93012, and our telephone number is (805) 987-0146.
1
The Private Placement
---------------------
On October 12, 2004, we completed a private placement and issued an
aggregate of $5.0 million principal amount of convertible notes. The convertible
notes will mature on September 30, 2007, bear interest at a rate of the Prime
Rate plus 1.0% and are convertible into shares of our Class A common stock at
the investors' option at an initial conversion price of $1.9393 per share,
subject to adjustment. The convertible notes are secured by a lien on all of our
assets. The lien is subordinated to the lien securing our existing bank line of
credit. The convertible notes are guaranteed by all of our subsidiaries. $2.5
million of the purchase price for the convertible notes is required to be held
in a cash collateral account subject to release upon satisfaction of certain
conditions including, among others:
o $1,250,000 will be released if we enter into a definitive agreement for a
permitted acquisition prior to January 31, 2005; and
o the balance held in the cash collateral account will be released if we
consummate the permitted acquisition prior to March 31, 2005.
We granted the purchasers of the convertible notes a right to purchase up
to an aggregate of 850,822 additional shares of our Class A common stock at
$2.1156 per share issuable upon the exercise of warrants, which right commences
on March 12, 2005 and expires on March 12, 2010. We also granted the investors a
right to purchase up to an aggregate of $5.0 million principal amount of
additional convertible notes with an initial conversion price of $2.1156 per
share and warrants to purchase 850,822 shares of Class A common stock at an
exercise price of $2.1156 upon the exercise of these additional investment
rights which expire one year following the effective date of the registration
statement of which this prospectus is a part. We agreed with the purchasers of
these securities to register these securities for public resale. This prospectus
has been prepared, and the registration statement of which this prospectus is a
part has been filed with the SEC, in order to satisfy our obligations to the
purchasers of these securities.
Accordingly, this prospectus covers:
o the resale by the selling stockholders of shares of our Class A common
stock issued upon conversion of the selling stockholders' convertible notes
o the resale by the selling stockholders of shares of our Class A common
stock issuable upon exercise of the warrants and the conversion of the
additional convertible notes issuable upon exercise of the additional
investment rights issued in the private placement.
Investing in our securities involves risks. You should carefully consider
the information under "Risk Factors" beginning on page 3 of this prospectus and
the other information included or incorporated by reference in this prospectus
before investing in our securities. Our Class A common stock is listed on the
American Stock Exchange and trades under the symbol "API." On November 5, 2004,
the last reported sale price of our Class A common stock on the American Stock
Exchange was $1.69 per share.
2
Risk Factors
Investing in our Class A common stock involves a high degree of risk and
uncertainty. You should carefully consider the risks and uncertainties described
below before investing in our Class A common stock. Our business, prospects,
financial condition and results of operations could be adversely affected due to
any of the following risks. In that case, the value of our Class A common stock
could decline, and you could lose all or part of your investment.
Risks Relating to Our Business
------------------------------
We are dependent upon several suppliers for a significant portion of raw
materials used in the manufacturing of our products.
The principal raw materials we use in the manufacture of our semiconductor
components and sensor assemblies are silicon wafers, chemicals and gases used in
processing wafers, gold wire, lead frames, and a variety of packages and
substrates, including metal, printed circuit board, flex circuits, ceramic and
plastic packages. All of these raw materials can be obtained from several
suppliers. From time to time, particularly during periods of increased
industry-wide demand, silicon wafers and other materials have been in short
supply. Any significant interruption in the supply of these raw materials could
have a material adverse effect on us.
Customer acceptance of our products is dependent on our ability to meet changing
requirements.
Customer acceptance of our products is significantly dependent on our
ability to offer products that meet the changing requirements of our customers,
including the military, medical institutions, industrial laboratories,
government agencies and industrial corporations. Any decrease in the level of
customer acceptance of our products could have a material adverse effect on us.
We are subject to market risk through our sales to overseas markets.
A growing amount of our sales are being derived from overseas markets.
These international sales are primarily focused in Europe and the Middle-East.
These operations are subject to risks that are inherent in operating in foreign
countries, including the following:
o foreign countries could change regulations or impose currency restrictions
and other restraints;
o changes in foreign currency exchange rates and hyperinflation or deflation
in the foreign countries in which we operate;
3
o exchange controls;
o in some countries, there is a risk that the government may expropriate
assets;
o some countries impose burdensome tariffs and quotas;
o political changes and economic crises may lead to changes in the business
environment in which we operate;
o international conflict, including terrorist acts, could significantly
impact our financial condition and results of operations; and
o economic downturns, political instability and war or civil disturbances may
disrupt distribution logistics or limit sales in individual markets.
In addition, we utilize third-party "Distributors" to act as our
representative for the geographic region that they have been assigned. These
"Distributors" are responsible for maintaining customer account management and
in some cases maintaining an inventory of products for those customers within
their geographic region. Our success is dependent on these "Distributors"
finding new customers and receiving new orders from existing customers.
Our future performance is dependent upon finding new customers and retaining our
existing customers.
Customers normally purchase our products and incorporate them into products
that they in turn sell in their own markets on an ongoing basis. As a result,
our sales are dependent upon the success of our customers' products and our
future performance is dependent upon our success in finding new customers and
receiving new orders from existing customers.
In several of our market segments, quality and/or reliability of our
products is a major concern for our customers, not only upon the initial
manufacture of the product, but for the life of the product. Many of our
products are used in remote locations, or higher value assembly, making
servicing of our products not feasible. Any failure of the quality and/or
reliability of our products could have an adverse affect on us and our ability
to maintain or attract customers.
Customer orders are subject to cancellation or modification at any time.
Our sales are made primarily pursuant to standard purchase orders for
delivery of products. However, by industry practice, orders may be canceled or
modified at any time. When a customer cancels an order, they are responsible for
all finished goods, all costs, direct and indirect, incurred by us, as well as a
reasonable allowance for anticipated profits. No assurance can be given that we
will receive these amounts after cancellation. The current backlog contains only
those orders for which we have received a confirmed purchase order and also
includes contracts which have scheduled shipping dates beyond the upcoming
fiscal year. As such, the current backlog represents only a portion of expected
annual revenues for fiscal year 2005. At October 31, 2004, we had approximately
$9.0 million in backlog.
4
The markets for many of our products are characterized by changing technology.
The markets for many of our products are characterized by changing
technology, new product introductions and product enhancements, and evolving
industry standards. The introduction or enhancement of products embodying new
technology or the emergence of new industry standards could render existing
products obsolete or result in short product life cycles. Accordingly, our
ability to compete is in part dependent on our ability to continually offer
enhanced and improved products.
We are dependent on key in-house manufacturing equipment or processes to deliver
a custom product (solution) with the highest performance and short time to
market.
We depend on key in-house manufacturing equipment and assembly processes.
We believe that these key manufacturing and assembly process give us the
flexibility and responsiveness to meet our customer delivery schedule and
performance specification with a custom product. This value proposition is an
important component of our offering to our customers. A loss of these
capabilities could have an adverse effect on our existing operations and new
business growth.
Changes in the spending priorities of the federal government can materially
adversely affect our business.
In fiscal 2004, approximately 37.0 % of our sales was related to products
purchased by military contractors. Our business depends upon continued federal
government expenditures on defense, intelligence, aerospace and other programs
that we support. In fiscal 2004, our sales to military contractors enjoyed a
strong steady growth rate. In addition, foreign military sales are affected by
U.S. Government regulations, regulations by the purchasing foreign government
and political uncertainties in the U.S. and abroad. There can be no assurance
that the U.S. defense and military budget will continue to grow or that sales of
defense related items to foreign governments will continue at present levels. In
addition, the terms of defense contracts with the U.S. Government generally
permit the Government to terminate such contracts, with or without cause, at any
time. Any unexpected termination of a significant U.S. Government contract with
a military contractor that we sell our products to could have a material adverse
effect on us.
Our industry is highly competitive and fragmented.
We compete with a range of companies for the custom optoelectronic and
silicon photodetector requirements of customers in our target markets. We
believe that our principal competitors for sales of custom devices are small to
medium size companies. Because we specialize in custom devices requiring a high
degree of engineering expertise to meet the requirements of specific
applications, we generally do not compete to any significant degree with other
large United States, European or Pacific Rim manufacturers of standard "off the
shelf" optoelectronic components or silicon photodetectors. We cannot assure you
that we will be able to compete successfully in our markets against these or any
future competitors.
5
Our industry is sensitive to changing economic conditions.
We believe that many factors affect our industry, including consumer
confidence in the economy, interest rates, fuel prices and credit availability.
The overall economic climate or Gross National Product growth has a direct
impact on our customers and the demand for our products. We cannot assure you
that our business will not be adversely affected as a result of an industry or
general economic downturn.
We are subject to environmental regulations.
The photonics industry, as well as the semiconductor industry in general,
is subject to governmental regulations for the protection of the environment,
including those relating to air and water quality, solid and hazardous waste
handling, and the promotion of occupational safety. Various federal, state and
local laws and regulations require that we maintain certain environmental
permits. We believe that we have obtained all necessary environmental permits
required to conduct our manufacturing processes. Changes in the aforementioned
laws and regulations or the enactment of new laws, regulations or policies could
require increases in operating costs and additional capital expenditures and
could possibly entail delays or interruptions of operations.
If we are unable to protect our intellectual property rights adequately, the
value of our products could be diminished.
We utilize proprietary design rules and processing steps in the development
and fabrication of our PIN photodiodes and avalanche photodiodes. In addition,
we own 11 patents utilized in our products. There can be no assurance that any
issued patents will provide us with significant competitive advantages, or that
challenges will not be instituted against the validity or enforceability of any
patent owned by us, or, if instituted, that such challenges will not be
successful. The cost of litigation to uphold the validity and to prevent the
infringement of a patent could be substantial and could have a material adverse
effect on our operating results. Furthermore, there can be no assurance that our
APD technology will not infringe on patents or rights owned by others, licenses
to which might not be available to us. Based on limited patent searches,
contacts with others knowledgeable in the field of APD technology, and a review
of the published materials, we believe that our competitors hold no patents,
licenses or other rights to the APD technology which would preclude us from
pursuing our intended operations.
In some cases, we may rely on trade secrets to protect our innovations.
There can be no assurance that trade secrets will be established, that secrecy
obligations will be honored or that others will not independently develop
similar or superior technology. To the extent that consultants, key employees or
other third parties apply technological information independently developed by
them or by others to our projects, disputes might arise as to the proprietary
rights to such information which may not be resolved in our favor.
6
We face strong competition for skilled workers.
Our success depends in large part on its ability to attract and retain
highly qualified scientific, technical, management, and marketing personnel.
Competition for such personnel is intense and there can be no assurance that we
will be able to attract and retain the personnel necessary for the development
and operation of our business.
We may not be able to successfully integrate future acquisitions, which could
result in our not achieving the expected benefits of the acquisition, the
disruption of our business and an increase in our costs.
We continually explore opportunities to acquire related businesses, some of
which could be material to us. Our ability to continue to grow may depend upon
identifying and successfully acquiring attractive companies, effectively
integrating these companies, achieving cost efficiencies and managing these
businesses as part of our company.
We may not be able to effectively integrate the acquired companies and
successfully implement appropriate operational, financial and management systems
and controls to achieve the benefits expected to result from these acquisitions.
Our efforts to integrate these businesses could be affected by a number of
factors beyond our control, such as regulatory developments, general economic
conditions and increased competition. In addition, the process of integrating
these businesses could cause the interruption of, or loss of momentum in, the
activities of our existing business. The diversion of management's attention and
any delays or difficulties encountered in connection with the integration of
these businesses could negatively impact our business and results of operations.
Further, the benefits that we anticipate from these acquisitions may not
develop.
Risks Relating to Our Class A Common Stock
------------------------------------------
Our share price has been volatile in the past and may decline in the future.
Our Class A common stock has experienced significant market price and
volume fluctuations in the past and may experience significant market price and
volume fluctuations in the future in response to factors such as the following,
some of which are beyond our control:
o quarterly variations in our operating results;
o operating results that vary from the expectations of securities analysts
and investors;
o changes in expectations as to our future financial performance, including
financial estimates by securities analysts and investors;
o announcements of technological innovations or new products by us or our
competitors;
7
o announcements by us or our competitors of significant contracts,
acquisitions, strategic partnerships, joint ventures or capital
commitments;
o changes in the status of our intellectual property rights;
o announcements by third parties of significant claims or proceedings against
us;
o additions or departures of key personnel;
o future sales of our ordinary shares; and
o stock market price and volume fluctuations.
Stock markets often experience extreme price and volume fluctuations.
Market fluctuations, as well as general political and economic conditions, such
as a recession or interest rate or currency rate fluctuations or political
events or hostilities in or surrounding the United States, could adversely
affect the market price of our Class A common stock.
In the past, securities class action litigation has often been brought
against companies following periods of volatility in the market price of its
securities. We may in the future be the target of similar litigation. Securities
litigation could result in substantial costs and divert management's attention
and resources both of which could have a material adverse effect on our business
and results of operations.
Future sales of our Class A common stock in the public market could lower our
stock price, and conversion of our warrants and any additional capital raised by
us may dilute your ownership in us.
We may sell additional shares of Class A common stock in subsequent
offerings. In addition, holders of warrants to purchase our Class A common stock
will, most likely, exercise their warrants to purchase shares of our Class A
common stock after this registration statement is declared effective. We cannot
predict the size of future issuances of our Class A common stock or the effect,
if any, that future issuances and sales of shares of our Class A common stock
will have on the market price of our Class A common stock. Sales of substantial
amounts of our Class A common stock, including shares issued in connection with
the exercise of the warrants, or the perception that such sales could occur, may
adversely affect prevailing market prices for our Class A common stock.
Shares eligible for public sale in the future could decrease the price of our
Class A common stock and reduce our future ability to raise capital.
Sales of substantial amounts of our Class A common stock in the public
market could decrease the prevailing market price of our Class A common stock,
which would have an adverse affect on our ability to raise equity capital in the
future.
We do not intend to pay dividends. We have never declared or paid any cash
dividends on our Class A common stock.
We currently intend to retain future earnings, if any, to finance
operations and expand our business and, therefore, do not expect to pay any
dividends in the foreseeable future.
8
Use of Proceeds
We will not receive any proceeds from the sale of the shares offered
pursuant to this prospectus. All of the proceeds will be payable solely to the
selling stockholders. We will, however, receive the proceeds from the exercise
of the additional investment rights and the warrants issued to the selling
stockholders if and when they are exercised. We anticipate that the net proceeds
from the exercise of the additional investment rights and the warrants would be
used for future acquisitions, working capital and general corporate purposes.
The selling stockholders will pay any expenses customarily borne by selling
stockholders (including underwriting discounts, commissions and fees and
expenses of counsel to the extent not required to be paid by us). We will bear
all other costs, fees and expenses incurred in effecting the registration of the
shares covered by this prospectus, including, but not limited to, all
registration and filing fees, listing fees and expenses of our counsel and our
accountants.
Selling Stockholders
The shares of Class A common stock being offered by the selling
stockholders are issuable upon conversion of the convertible notes (including
convertible notes issuable upon exercise of additional investment rights which
were issued pursuant to a Securities Purchase Agreement dated as of October 11,
2004) and upon exercise of the warrants. For additional information regarding
the issuance of those convertible notes, warrants and additional investment
rights, see "Prospectus Summary -- The Private Placement" above. We are
registering the shares of Class A common stock in order to permit the selling
stockholders to offer the shares for resale from time to time. Except for the
ownership of the convertible notes, the warrants and the additional investment
rights issued pursuant to the Securities Purchase Agreement, the selling
stockholders have not had any material relationship with us within the past
three years.
The term "selling stockholders" includes the stockholders listed below and
their respective transferees, assignees, pledgees, donees or other successors.
The table below lists the selling stockholders and other information regarding
the beneficial ownership of the shares of Class A common stock by each of the
selling stockholders. The second column lists the number of shares of Class A
common stock beneficially owned by each selling stockholder, based on its
ownership of the convertible notes, warrants and additional investment rights,
as of November 5, 2004, assuming conversion of all convertible notes (including
convertible notes issuable upon exercise of all of the additional investment
rights held by the selling stockholders) and exercise of the warrants held by
the selling stockholders on that date, without regard to any limitations on
conversions or exercise.
The third column lists the shares of Class A common stock being offered by
this prospectus by the selling stockholders.
9
In accordance with the terms of registration rights agreements with the
selling stockholders, this prospectus generally covers the resale of at least
130% of the sum of (i) the number of shares of Class A common stock issuable
upon conversion of the convertible notes (including convertible notes issuable
upon exercise of all of the additional investment rights which were issued
pursuant to a Securities Purchase Agreement) as of the trading day immediately
preceding the date the registration statement is initially filed with the SEC
and (ii) the number of shares of Class A common stock issuable upon exercise of
the related warrants as of the trading day immediately preceding the date the
registration statement is initially filed with the SEC. Because the conversion
price of the convertible notes and the exercise price of the warrants and the
additional investment rights may be adjusted, the number of shares that will
actually be issued may be more or less than the number of shares being offered
by this prospectus. The fourth column assumes the sale of all of the shares
offered by the selling stockholders pursuant to this prospectus.
Under the terms of the convertible notes and the warrants, a selling
stockholder may not convert the convertible notes or exercise the warrants to
the extent such conversion or exercise would cause such selling stockholder,
together with its affiliates, to beneficially own a number of shares of Class A
common stock which would exceed 4.99% of our then outstanding shares of Class A
common stock following such conversion or exercise, excluding for purposes of
such determination shares of Class A common stock issuable upon conversion of
the convertible notes which have not been converted and upon exercise of the
warrants and additional investment rights which have not been exercised. The
number of shares in the second column does not reflect this limitation. The
selling stockholders may sell all, some or none of their shares in this
offering. See "Plan of Distribution."
------------------------------------------- --------------------- --------------------------- -------------------------
Number of Shares
Beneficially Owned Maximum Number of Shares Number of Shares to be
Prior to the to be Sold Pursuant to Beneficially Owned
Name of Selling Stockholder Offering this Prospectus After the Offering
------------------------------------------- --------------------- --------------------------- -------------------------
Smithfield Fiduciary LLC (1) 4,982,468 4,982,468 0
------------------------------------------- --------------------- --------------------------- -------------------------
Iroquois Capital LP (2) 332,164 332,164 0
------------------------------------------- --------------------- --------------------------- -------------------------
Bluegrass Growth Fund, LP (3) 664,329 664,329 0
------------------------------------------- --------------------- --------------------------- -------------------------
Bluegrass Growth Fund, Ltd (4) 664,329 664,329 0
------------------------------------------- --------------------- --------------------------- -------------------------
(1) Highbridge Capital Management, LLC ("Highbridge"), is the trading manager of
Smithfield Fiduciary LLC ("Smithfield") and consequently has voting control and
investment discretion over the shares of Class A common stock held by
Smithfield. Glenn Dubin and Henry Swieca control Highbridge. Each of Highbridge
and Messrs. Dubin and Swieca disclaims beneficial ownership of the shares held
by Smithfield.
10
(2) Joshua Silverman has voting control and investment discretion over
securities held by Iroquois Capital LP. Mr. Silverman disclaims beneficial
ownership of the Class A common stock held by Iroquois Capital LP.
(3) Brian Shatz has voting control and investment discretion over securities
held by Bluegrass Growth Fund, LP. Mr. Shatz disclaims beneficial ownership of
the Class A common stock held by Bluegrass Growth Fund, LP.
(4) Brian Shatz has voting control and investment discretion over securities
held by Bluegrass Growth Fund, Ltd. Mr. Shatz disclaims beneficial ownership of
the Class A common stock held by Bluegrass Growth Fund, Ltd.
Plan of Distribution
We are registering the shares of Class A common stock issuable upon
conversion of the convertible notes (including convertible notes issuable upon
exercise of the additional investment rights) and upon exercise of the warrants
to permit the resale of these shares of Class A common stock by the holders of
the convertible notes, warrants and additional investment rights from time to
time after the date of this prospectus. We will not receive any of the proceeds
from the sale by the selling stockholders of the shares of Class A common stock.
We will bear all fees and expenses incident to our obligation to register the
shares of Class A common stock. We will not be paying any underwriting discounts
or commissions in this offering. We have also agreed with the selling
stockholders to reimburse them for fees and disbursement in an amount not to
exceed $10,000 incurred in connection with this registration statement
The selling stockholders may sell all or a portion of the shares of Class A
common stock beneficially owned by them and offered hereby from time to time
directly or through one or more underwriters, broker-dealers or agents. If the
shares of Class A common stock are sold through underwriters or broker-dealers,
the selling stockholders will be responsible for underwriting discounts or
commissions or agent's commissions. The shares of Class A common stock may be
sold in one or more transactions at fixed prices, at prevailing market prices at
the time of the sale, at varying prices determined at the time of sale, or at
negotiated prices. These sales may be effected in transactions, which may
involve crosses or block transactions, such as:
o sales on any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of sale;
o sales in the over-the-counter market;
o transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
o the writing of options, whether such options are listed on an options
exchange or otherwise;
o ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
11
o purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
o an exchange distribution in accordance with the rules of the applicable
exchange;
o privately negotiated transactions;
o short sales;
o sales pursuant to Rule 144;
o sales through broker-dealers who may agree with the selling stockholders to
sell a specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
If the selling stockholders effect such transactions by selling shares of
Class A common stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders or
commissions from purchasers of the shares of Class A common stock for whom they
may act as agent or to whom they may sell as principal (which discounts,
concessions or commissions as to particular underwriters, broker-dealers or
agents may be in excess of those customary in the types of transactions
involved). In connection with sales of the shares of Class A common stock or
otherwise, the selling stockholders may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the shares of Class A
common stock in the course of hedging in positions they assume. The selling
stockholders may also sell shares of Class A common stock short and deliver
shares of Class A common stock covered by this prospectus to close out short
positions and to return borrowed shares in connection with such short sales. The
selling stockholders may also loan or pledge shares of Class A common stock to
broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant a security interest in some or
all of the convertible notes, warrants, additional investment rights or shares
of Class A common stock owned by them and, if they default in the performance of
their secured obligations, the pledgees or secured parties may offer and sell
the shares of Class A common stock from time to time pursuant to this prospectus
or any amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933, as amended, amending, if necessary, the
list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus. The
selling stockholders also may transfer and donate the shares of Class A common
stock in other circumstances in which case the transferees, donees, pledgees or
other successors in interest will be the selling beneficial owners for purposes
of this prospectus.
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The selling stockholders and any broker-dealer participating in the
distribution of the shares of Class A common stock may be deemed to be
"underwriters" within the meaning of the Securities Act, and any commission
paid, or any discounts or concessions allowed to, any such broker-dealer may be
deemed to be underwriting commissions or discounts under the Securities Act. At
the time a particular offering of the shares of Class A common stock is made, a
prospectus supplement, if required, will be distributed which will set forth the
aggregate amount of shares of Class A common stock being offered and the terms
of the offering, including the name or names of any broker-dealers or agents,
any discounts, commissions and other terms constituting compensation from the
selling shareholders and any discounts, commissions or concessions allowed or
reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of Class A common
stock may be sold in such states only through registered or licensed brokers or
dealers. In addition, in some states the shares of Class A common stock may not
be sold unless such shares have been registered or qualified for sale in such
state or an exemption from registration or qualification is available and is
complied with.
There can be no assurance that any selling stockholder will sell any or all
of the shares of Class A common stock registered pursuant to the registration
statement, of which this prospectus forms a part.
The selling stockholders and any other person participating in such
distribution will be subject to applicable provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may limit the timing
of purchases and sales of any of the shares of Class A common stock by the
selling stockholders and any other person participating in this offering.
Regulation M may also restrict the ability of any person engaged in the
distribution of the shares of Class A common stock to engage in market-making
activities with respect to the shares of Class A common stock. All of the
foregoing may affect the marketability of the shares of Class A common stock and
the ability of any person or entity to engage in market-making activities with
respect to the shares of Class A common stock.
We will pay all expenses of the registration of the shares of our Class A
common stock pursuant to the registration rights agreement, estimated to be
$44,000 in total, including, without limitation, SEC filing fees and expenses of
compliance with state securities or "blue sky" laws. However, the selling
stockholders will pay all underwriting discounts and selling commissions, if
any. We have agreed to indemnify the selling stockholders against liabilities,
including some liabilities under the Securities Act, in accordance with the
registration rights agreements, or the selling shareholders will be entitled to
contribution. We may be indemnified by the selling stockholders against civil
liabilities, including liabilities under the Securities Act that may arise from
any written information furnished to us by the selling stockholder specifically
for use in this prospectus, in accordance with the related registration rights
agreements or we may be entitled to contribution.
Once sold under the registration statement, of which this prospectus forms
a part, the shares of Class A common stock will be freely tradable in the hands
of persons other than our affiliates.
13
Legal Matters
Dornbush Schaeffer Strongin & Weinstein, LLP, New York, New York, will pass
on certain legal matters in connection with the offering, including the validity
of the issuance of the shares being offered hereby.
Experts
The consolidated financial statements incorporated in this prospectus by
reference from our Annual Report on Form 10-K for the year ended March 28, 2004
have been audited by Farber & Hass LLP, an independent registered public
accounting firm, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any public offering document we
file, including a copy of the registration statement on Form S-3 of which this
prospectus is a part, without charge at the SEC's Public Reference Room, 450
Fifth Street, N.W., Room 204, Washington, D.C. 20549. You can also request
copies of all or any portion of these documents by writing the Public Reference
Section and paying certain prescribed fees. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Section.
Additionally, these documents are available to the public from the SEC's web
site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with the SEC. This means that we are disclosing important
information to you by referring to other documents. The information incorporated
by reference s considered to be part of this prospectus, except for any
information superceded by information contained directly in this prospectus.
Information that we file later with the SEC under the Exchange Act will
automatically update information in this prospectus. In all cases, you should
rely on the later information over different information included in this
prospectus. We incorporate by reference the documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act until this offering is completed:
o Annual Report on Form 10-KSB for the fiscal year ended March 28, 2004;
o Current Report on Form 8-K, filed on August 11, 2004;
o Quarterly Report on Form 10-QSB for the quarter ended June 27, 2004; and
o Current Report on Form 8-K, filed on October 12, 2004; and
14
o The description of our Class A common stock contained in our Registration
Statement on Form 8-A dated January 16, 1991 filed under the Exchange Act,
including any amendments or reports filed for the purposes of updating such
description.
You may request a copy of these filings, or any other documents or other
information referred to in, or incorporated by reference in, this prospectus, at
no cost, by writing or calling us at the following address or telephone number:
Advanced Photonix, Inc.
1240 Avenida Acaso
Camarillo, California 93012
Attention: Secretary
(805) 987-0146
Exhibits to any documents incorporated by reference in this prospectus will
not be sent, however, unless those exhibits have been specifically referenced in
this prospectus.
Indemnification
Our Certificate of Incorporation allows us to indemnify our officers and
directors to the maximum extent allowed under Delaware law. This includes
indemnification for liabilities which could arise under the Securities Act.
Insofar as we are permitted to indemnify our officers and directors, we have
been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
15
ADVANCED PHOTONIX, INC.
8,636,276 Shares of
Class A Common Stock
PROSPECTUS
____________________, 2004
Prospective investors may rely only on the information contained in this
prospectus. Neither Advanced Photonix, Inc. nor any selling stockholder has
authorized anyone to provide prospective investors with information different
from that contained or incorporated by reference in this prospectus. This
prospectus is not an offer to sell nor is it seeking an offer to buy the shares
of our Class A common stock being offered hereby in any jurisdiction where the
offer or sale is not permitted. The information contained in this prospectus is
correct only as of the date of this prospectus, regardless of the times of the
delivery of this prospectus or any sale of the shares of our Class A common
stock.
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
We have agreed to bear all expenses relating to the registration of our
Class A common stock registered pursuant to the registration statement of which
this prospectus is a part (other than underwriter's discounts and commissions to
be paid by the selling stockholders). We estimate these expenses to be
approximately $43,964.45, which include the following categories of expenses:
Amount
SEC Registration Fee...................... $1,964.45
Printing fees............................. $4,000.00
Accounting Fees and Expenses.............. $3,000.00
Legal Fees and Expenses................... $30,000.00
Miscellaneous Expenses.................... $5,000.00
------------
Total........................... $43,964.45
The foregoing, except for the SEC registration fee, are estimates. We will pay
all of the above expenses. The selling stockholders will be responsible for all
expenses customarily borne by selling stockholders (including underwriting
discounts, commissions and fees and expenses of counsel).
Item 15. Indemnification of Directors and Officers
Our Certificate of Incorporation contains a provision permitted by Delaware
General Corporation Law that generally eliminates the personal liability of
directors for monetary damages for breaches of their fiduciary duty, including
breaches involving negligence or gross negligence in business combinations,
unless the director has breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or a knowing violation of law, paid a
dividend or approved a stock repurchase in violation of the Delaware General
Corporation Law or obtained an improper personal benefit. This provision does
not alter a director's liability under the federal securities laws. Also this
provision does not affect the availability of equitable remedies, such as an
injunction or rescission, for breach of fiduciary duty.
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Our By-Laws also provide that directors and officers shall be indemnified
against liabilities arising from their service as directors or officers to the
fullest extent permitted by law, which generally requires that the individual
act in good faith and in a manner he or she reasonably believes to be in or not
opposed to Advanced Photonix's best interests.
Item 16. Exhibits
(a) Exhibits
Exhibit
No. Description
------- -----------
3.1 Certificate of Incorporation of the Registrant,
as amended - incorporated by reference to Exhibit 3.1
to the Registrant's Registration Statement on Form
S-1,filed with the Securities and Exchange Commission
on November 23, 1990
3.1.1 Amendment to Certificate of Incorporation of the
Registrant, dated October 29, 1992-incorporated by
reference to the Registrant's March 31, 1996 Annual
Report on Form 10-K
3.1.2 Amendment to Certificate of Incorporation of the
Registrant, dated September 9, 1992-incorporated by
reference to the Registrant's March 31, 1996 Annual
Report on Form 10-K
3.2 By-laws of the Registrant, as amended - incorporated
by reference to Exhibit 3.2 to the Registrant's March
30, 2003 Annual Report on Form 10-KSB
4.1 Rights Agreement, dated September 19, 2002 by and
between the Company and Continental Stock Transfer
and Trust Company, Certificate of Designations for
the Company's Series B Junior Preferred Stock -
incorporated by reference to Exhibits 4.1 and 4.2 to
the Registrant's Form 8-K filed with the Securities
and Exchange Commission on September 26, 2002
5.1 Opinion of Dornbush Schaeffer Strongin & Weinstein, LLP.
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10.1 Advanced Photonix, Inc. 1991 Special Directors
Stock Option Plan - incorporated by reference to
Exhibit 10.9 to the Registrant's March 31, 1991
Annual Report on Form 10-K
10.2 Advanced Photonix, Inc. 1990 Incentive Stock
Option and Non-Qualified Stock Option Plan - incorporated by
reference to Exhibit No. 10.11 to the Registrant's
Registration Statement on Form S-1, filed with the Securities
and Exchange Commission on
November 23, 1990
10.3 Advanced Photonix, Inc. 1997 Employee Stock Option
Plan - incorporated by reference to Exhibit 10.13 to the
Registrant's March 30, 1997 Annual Report on
Form 10-K
10.4 Amendment No. 1 to 1997 Employee Stock Option Plan of
Advanced Photonix, Inc. - incorporated by
reference to Exhibit 10.14 to the Registrant's
December 28, 1997 Quarterly report on Form 10-Q
10.5 Advanced Photonix, Inc. 2000 Stock Option Plan -
incorporated by reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-8, filed with the Securities
and Exchange Commission on
March 15, 2001
10.9 Lease Agreement dated February 23, 1998 between
Advanced Photonix, Inc. and High Tech No. 1, Ltd. -
incorporated by reference to Exhibit 10.9 to the
Registrant's March 29, 1998 Annual Report on Form
10-K
10.10 Form of Indemnification Agreement provided to
Directors and Principal Officers of Advanced
Photonix, Inc. - incorporated by reference to
Exhibit 10.15 to the Registrant's December 28, 1997
Quarterly report on Form 10-Q
10.11 Employment Agreement dated August 21, 2002 between
Advanced Photonix, Inc. and Paul D. Ludwig -
incorporated by reference to Exhibit 10.1 to the
Registrant's Form 8-K as filed with the
Securities and Exchange Commission on September 5,
2002
II-3
10.12 Employment Agreement dated February 10, 2003 between
Advanced Photonix, Inc. and Richard D. Kurtz
- incorporated by reference to Exhibit 10.12 to the
Registrant's March 30, 2003 Annual Report on
Form 10-KSB
10.13 Securities Purchase Agreement dated October 11,
2004 between Advanced Photonix, Inc. and Smithfield
Fiduciary LLC, Iroquois Capital LP, Bluegrass
Growth Fund, LP and Bluegrass Growth Fund, Ltd.
(the "Buyers") - incorporated by reference to the Registrant's
Form 8-K as filed with the Securities and Exchange Commission
on October 12, 2004.
10.13.1 Registration Rights Agreement dated October 11, 2004 between
Advanced Photonix, Inc. and the Buyers - incorporated by
reference to the Registrant's Form 8-K as filed with the
Securities and Exchange Commission on October 12, 2004.
10.13.2 Form of Senior Subordinated Convertible Note -
incorporated by reference to the Registrant's Form 8-K as
filed with the Securities and Exchange Commission on
October 12, 2004.
10.13.3 Form of Warrant - incorporated by reference to the
Registrant's Form 8-K as filed with the Securities and
Exchange Commission on October 12, 2004.
10.13.4 Form of Additional Investment Right - incorporated by
reference to the Registrant's Form 8-K as filed with the
Securities and Exchange Commission on October 12, 2004.
21.1 List of Subsidiaries of Registrant - incorporated by
reference to Exhibit 21.1 to the Registrant's
March 30, 2003 Annual Report on Form 10-KSB.
23.1 Consent of Farber & Hass LLP.
23.2 Consent of Dornbush Schaeffer Strongin & Weinstein, LLP.
Included in Exhibit 5.1.
II-4
24.1 Power of Attorney (contained on Page II-8).
Item 17. Undertakings
The Registrant hereby undertakes:
(1)(A) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to: (i) include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) reflect in
the prospectus any facts or events which, individually or together, represent a
fundamental change in the information 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 end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and (iii) include any
additional or changed material information on the plan of distribution.
(2) That, for determining any liability under the Securities Act of 1933,
treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(4) That, for determining any liability under the Securities Act of 1933,
treat the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant under Rule 424(b)(1), or (4), or 497(h) under
the Securities Act as part of this registration statement as of the time the
Commission declared it effective..
(5) That for determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of these securities.
II-5
(6) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Camarillo, State of California on the 9th day of
November, 2004.
ADVANCED PHOTONIX, INC.
By: /s/ Richard D. Kurtz
------------------------------
Name: Richard D. Kurtz
Title: Chairman of the Board
and Chief Executive Officer
II-7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard D. Kurtz and Susan A. Schmidt,
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 this Registration Statement, and to file the same,
with all exhibits thereto, and other 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 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
PRINCIPAL EXECUTIVE
OFFICER:
/s/ Richard D. Kurtz Chairman of the Board November 9, 2004
--------------------------- and Chief Executive Officer
Richard D. Kurtz
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ Susan A. Schmidt Chief Financial Officer November 9, 2004
--------------------------- and Secretary
Susan A. Schmidt
DIRECTORS:
/s/ M. Scott Farese Director November 9, 2004
---------------------------
M. Scott Farese
II-8
/s/ Ward Harper Director November 9, 2004
---------------------------
Ward Harper
/s/ Stephen P. Soltwedel Director November 9, 2004
---------------------------
Stephen P. Soltwedel
/s/ Paul D. Ludwig Director November 9, 2004
--------------------------- and President
Paul D. Ludwig
II-9