As filed with the Securities and Exchange Commission on August 20, 2004
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIVERSIFIED SECURITY SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 421600 22-3690168
(State or other jurisdiction of (Primary standard industrial (I.R.S. employer
incorporation or organization) classification number) identification number)
280 Midland Avenue
Saddle Brook, New Jersey 07663
(201)794-6500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
James E. Henry
Chairman and Chief Executive Officer
Diversified Security Solutions, Inc.
280 Midland Avenue
Saddle Brook, New Jersey 07663
(201) 794-6500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies requested to:
Arnold N. Bressler, Esq.
Milberg Weiss Bershad & Schulman LLP
One Pennsylvania Plaza
New York, New York 10119
(212) 594-5300
---------------
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective as determined by market
conditions and other factors.
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
Title of Each Class Maximum Proposed Maximum
of Securities To Amount To Be Offering Price Aggregate Offering
Be Registered Registered (1)(2) per Security (3) Price (3) Amount of Registration Fee
---------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.01 per share......... 746,999 shares $5.36 $4,003,915 $507.30
---------------------------------------------------------------------------------------------------------------------
(1) Includes the registration for resale by the selling stockholders of (i)
553,333 shares of common stock presently issued and outstanding and (ii) 193,666
shares of common stock issuable upon exercise of outstanding common stock
purchase warrants.
(2) In the event of a stock split, stock dividend or similar transaction
involving the common stock of the registrant, in order to prevent dilution, the
number of shares of common stock registered hereby shall be automatically
adjusted in accordance with Rule 416 under the Securities Act of 1933, as
amended to cover the additional shares of common stock issuable upon exercise of
the related outstanding common stock purchase warrants.
(3) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, solely
for the purposes of calculating the registration fee, upon the basis of the
average high and low prices of our common stock as reported on the American
Stock Exchange on August 18, 2004.
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 shall specifically
state that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933, as amended, or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
PROSPECTUS
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
The information in this prospectus is not complete and may be changed. The
selling shareholders 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 is not soliciting an
offer to buy these securities, in any state where the offer or sale is not
permitted.
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to completion, dated August 20, 2004
DIVERSIFIED SECURITY SOLUTIONS, INC.
746,999 Shares of Common Stock
This prospectus relates to the offer and sale of up to 746,999 shares
of common stock of Diversified Security Solutions, Inc., a Delaware corporation,
that may be offered and sold from time to time by the shareholders described in
this prospectus under "Selling Shareholders" or by pledges, donees, transferees,
assignees or other successors-in-interest that receive any of the shares as a
gift, distribution or other non-sale related transfer. As used in this
prospectus, "we," "us," "our" and similar expressions refer to Diversified
Security Solutions, Inc. and its subsidiaries.
The Selling Shareholders may offer their shares from time to time
through or to one or more underwriters, brokers or dealers, on the American
Stock Exchange at market prices prevailing at the time of sale, in one or more
negotiated transactions at prices acceptable to the Selling Shareholders or
otherwise. We will not receive any proceeds from the sale of shares by the
Selling Shareholders. In connection with any sales, the Selling Shareholders and
any underwriters, agents, brokers or dealers participating in such sales may be
deemed to be "underwriters" within the meaning of the Securities Act.
We will pay the expenses related to the registration of the shares
covered by this prospectus. The Selling Shareholders will pay commissions and
selling expenses, if any, incurred by them.
Our common stock trades on the American Stock Exchange under the symbol
"DVS." On August 18, 2004, the closing price of one share of our common stock
was $5.35.
Investing in our securities involves risks, which we describe in the
"Risk Factors" section beginning on page 6 of this prospectus.
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 , 2004.
You should rely only on the information contained or incorporated by
reference in this prospectus and any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer to sell these securities in any state where the offer is not permitted.
You should not assume that the information contained in this prospectus or any
prospectus supplement or information incorporated in such documents is accurate
as of any date other than the date of such documents. Our business, financial
condition, results of operations and prospects may have changed since that date.
TABLE OF CONTENTS
Page
----
About This Prospectus............................................................. 1
The Company....................................................................... 2
Disclosure Regarding Forward-Looking Statements................................... 5
Risk Factors...................................................................... 6
Use of Proceeds................................................................... 9
Selling Shareholders ............................................................. 10
Plan of Distribution.............................................................. 12
Description of Capital Stock ..................................................... 15
Legal Matters..................................................................... 16
Experts........................................................................... 16
Where You Can Find More Information............................................... 16
Documents Incorporated By Reference............................................... 17
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using the SEC's shelf registration rules.
Under the shelf registration rules, using this prospectus and, if required, one
or more prospectus supplements, the Selling Shareholders may sell from time to
time, in one or more offering, the shares of common stock covered by this
prospectus. The shares covered by this prospectus include 553,333 outstanding
shares of common stock and 193,666 shares of common stock issuable upon the
exercise of warrants that we previously issued to the Selling Shareholders.
This prospectus also covers any shares of common stock that may be
become issuable pursuant to anti-dilution adjustment provisions that would
increase the number of shares issuable upon exercise of the warrants as a result
of stock splits, stock dividends or similar transactions.
A prospectus supplement may add, update or change information contained
in this prospectus. We recommend that you read carefully this entire prospectus,
especially the section entitled "Risk Factors" beginning on page 6, and the
section entitled "Documents Incorporated By Reference" beginning on page 16, and
any supplements before making a decision to invest in our common stock.
1
THE COMPANY
We are a single-source/turn-key provider of technology-based security
solutions for medium and large commercial and governmental agencies in the
United States.
Security Distributing and Marketing magazine (SDM) ranks the top 100
largest firms selling closed circuit TV (CCTV), access control and integrated
security systems. We were ranked No. 22 in SDM's Top Systems Integrators Report
published in July 2004.
As a single-source/turn-key provider of diversified technology-based
integrated security solutions, we can expedite project completion, optimize
system performance and manpower performance. The continually evolving security
requirements of commercial and government entities, together with rapidly
advancing technology, provides numerous opportunities for us to assist our
clients with their security needs.
We believe that the following key attributes provide us with a
sustainable competitive advantage:
o Experience and expertise;
o Technological sophistication;
o Quality control; and
o Strong list of references.
Our Strategy
Our strategy consists of the following components:
o Maintain and develop long-term relationships with clients;
o Focus on high value added services;
o Continue to expand our client base in targeted industries;
o Maintain a high level of technological sophistication; and
o Sell additional services to our established client base.
Our three operating units are integration, evacuation planning and
specialty products.
Our Integration Solution
At the beginning of each new client relationship, we designate one
member of our professional staff as the client service contact. This individual
is the point person for communications between the client and us and often acts,
as the client's project manager for all of its security needs. Our engagement
may include:
o Consulting and planning;
o Engineering and design;
o Systems installation and management;
o Systems training; and
o Maintenance and technical support.
2
Consulting and planning
Security consulting and planning are the initial phases of determining
a security solution for a project. We have developed a planning process that
identifies all systems, policies and procedures that are required for the
successful operation of a security system that will both meet a client's current
needs and accommodate its projected future requirements. Our consulting and
planning process includes the following steps:
o Identify the client's objectives and security system
requirements;
o Survey the site, including inventory of physical components
and software and evaluation of client's existing
infrastructure and security system;
o Assess and prioritize the client's vulnerabilities;
o Develop and evaluate system alternatives;
o Recommend a conceptual security plan design;
o Estimate the cost of implementing the conceptual plan; and
o Develop a preliminary implementation schedule.
As a result of this process, we provide the client with a master plan
for an effective security solution that addresses routine operating needs as
well as emergency situations.
We believe that our comprehensive planning process enables our clients
to budget for their security requirements on a long-term basis, identify
opportunities for cost reduction and prepare for future risks.
Engineering and design
The engineering and design process involves preparation of detailed
project specifications and working drawings by a team of our engineers, systems
designers and computer-aided design system operators. These specifications and
drawings detail the camera sensitivity requirements, layout of the control
center, placement of cameras, card readers and other equipment and electrical
requirements. Throughout our engineering and design process, our goal is to
understand our client's operational preferences in order to design a system that
is functional, cost-effective and accommodates our client's present and future
requirements. In addition, we attempt to incorporate our client's existing
personnel, equipment and other physical resources into the system design.
When retained as a single-source provider for turnkey security
solutions, we select system components required under the specifications and
drawings. We recommend that our customers buy proven off-the-shelf devices and
software and resort to custom equipment when absolutely necessary.
We have made a strategic decision not to represent any equipment
manufacturer exclusively, thereby maintaining objectivity and flexibility in
equipment selection. We believe that our technical proficiency with the products
of a wide range of manufacturers enables us to select components that will best
meet a project's requirements.
3
Systems installation and management
Under the supervision of our project manager, our technicians install
hardware, integrate hardware and software, and validate and test the system.
Subcontractors typically perform the aspects of systems integration that do not
require a high level of technical expertise, such as electrical installation and
basic construction.
Components that may be integrated in a security system include the
following:
o Access control systems, which are designed to exclude
unauthorized personnel from specified areas;
o Intrusion detection systems, which detect unauthorized door
and window openings, glass breakage, vibration, motion,
noise and alarms and other peripheral equipment;
o Closed circuit television systems, which monitor and record
entry and exit activity or provide surveillance of
designated areas;
o Critical condition monitoring systems, which provide alarm
monitoring and supervision of various systems and
facilities; and
o Fire detection systems, intercoms, public address and
network connectivity that can expand a local security system
into a closely controlled worldwide system.
Systems training
Upon the completion of a systems integration project, we typically will
provide the customer with system-documentation and training in the operation and
maintenance of the system.
Maintenance and technical- support
We provide maintenance and technical support services on a scheduled,
on-call, or emergency basis. These services include developing and implementing
maintenance programs both for security systems designed, engineered, or
integrated by us and for existing systems.
Our Evacuation Planning Solution
Our evacuation planning division works with companies and managers of
high-rise office buildings to analyze their specific facilities needs with
emergency preparedness plans. We provide demonstrations, training and
recommendation to clients. Our evacuation planning division provides a wide
array of services, including:
o Development of emergency plans and procedures;
o Expand existing fire/emergency and preparedness response
plans;
o Articulate building strategy to the tenants;
o Provide tenant inclusion;
o Increase building community unity, awareness and confidence;
and
o Employee training.
4
Our Specialty Products Solution
The Company's specialty products solutions are provided by two wholly
owned subsidiaries, Viscom Products, Inc. ("Viscom") and Airorlite
Communications, Inc. ("Airorlite"). Viscom has developed an integrated standard
solution for mobile digital recorders for deployment on municipal buses and
trains. This product is now being manufactured by a third party in accordance
with Viscom's standards. Airorlite specializes in the design, manufacture and
maintenance of wireless communications equipment used to enhance emergency radio
frequency services and cellular communication for both fixed and mobile
applications.
We were incorporated in Delaware on November 18, 1999. Our principal
executive offices are located at 280 Midland Avenue, Saddle Brook, New Jersey
07663, and our telephone number is (201) 794-6500.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus contain "forward-looking statements" as defined by the Private
Securities Litigation Reform Act of 1995. The forward-looking statements include
certain statements pertaining to our capital resources, performance and results
of operations. In addition, all statements regarding anticipated growth in our
revenue, anticipated market conditions and results of operations are
forward-looking statements. To identify forward-looking statements look for
words like "believes," "expects," "may," "will," "should," "seeks," "intends,"
"plans," "estimates" or "anticipates" and similar words or phrases. Discussions
of strategy, plans or intentions often contain forward-looking statements.
These, and all forward-looking statements, necessarily depend on assumptions,
data or methods that may be incorrect or imprecise.
Such statements reflect the current views of the Company and its
management with respect to future events and are subject to certain risks,
uncertainties and assumptions. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions prove incorrect, our
actual results, performance or achievements could differ materially from the
results expressed in, or implied by, these forward-looking statements.
Our actual results may differ materially from the results predicted or
from any other forward-looking statements made by, or on behalf of, us and
reported results should not be considered as an indication of future
performance. The potential risks and uncertainties include, among other things,
those described under "Risk Factors" elsewhere in this prospectus.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
events, levels of activity, performance, or achievements. We do not assume
responsibility for the accuracy and completeness of the forward-looking
statements. We do not intend to update any of the forward-looking statements
after the date of this prospectus to conform them to actual results.
5
RISK FACTORS
The securities offered hereby involve a high degree of risk. Investors
should carefully consider the risks and uncertainties described below, as well
as all of the other information contained in the disclosure documents included
in this memorandum. Any of the following risks could materially adversely affect
our business, financial condition or operating results and could adversely
affect the value of an investment in our common stock.
We may not be able to develop or acquire new technological solutions necessary
for our customers' requirements
Our success depends on acquiring or developing new technology to
satisfy our customers' needs. Any failure or delay to deliver these advances on
our part could have a negative impact on our business.
We are dependent upon a small number of customers for a large portion of our
revenues
We have a small number of customers from which we receive a large
portion of our sales. However, no single customer comprised more than 10% of
total sales for 2003. In 2002, there were three customers that had 24%, 18% and
13% of total sales. Sales from governmental agencies accounted for 21% of our
sales in 2003 versus 57% in 2002. Our experience has been that some of these
substantial customers will be a source of significant sales in the succeeding
year and some will not. Consequently, we are often required to replace one
customer with one or more other customers in order to generate the same amount
of sales. There can be no assurance that we will continue to be able to do so.
All of our orders and contracts may be cancelled so there is a risk
that our backlog may not be fulfilled. As of June 30, 2004, our backlog was
approximately $22,400,000.
Some of our orders and contracts may be subject to cancellation by our
customers at any time so we cannot be certain that we will recognize sales from
them.
We are dependent on a few vendors, and we rely on timely deliveries of equipment
from all outside sources
There are a few vendors from whom we obtain devices and software for
specific access control and imaging, remote transmission, smart key and mobile
applications. The loss of any one of these companies as suppliers could have a
material adverse impact on our business, financial condition and results of
operations if we are unable to develop or acquire new technologies from other
sources. While we believe alternative vendors are available, we have not yet
identified them.
Timely vendor deliveries of equipment meeting our stringent
quality-control standards from all suppliers are also important to our business
because each installed system requires a variety of elements to be fully
functioning. The failure to deliver any critical device or component, when
needed, in operating condition, can delay a project, trigger vendor penalties,
halt progress payments or result in cancellation of a contract or order.
We experience intense competition for business from a variety of sources
In systems integration, we compete for new business with large
construction firms, electrical contractors, and consultants in the security
business and other systems integrators. Many of our competitors are much larger
than we are and have greater resources. In order to effectively compete in the
future, we may have to charge less for our services that may result in lower
profit margins.
6
We rely on only a few key executives
James E. Henry and Irvin F. Witcosky, our two executives, are vital to
our business operations. The loss of any one of them could have a material
adverse impact on our business, financial condition or results of operations.
Our business and growth will suffer if we are unable to hire and retain highly
skilled personnel
Competition for highly skilled employees is intense in our industry.
The design and the installation of our systems requires substantial technical
capabilities in many disparate disciplines from mechanics and computer science
to electronics and advanced software. Our future success depends on our ability
to attract, train, motivate and retain highly skilled employees. If we are
unable to hire and retain skilled personnel, our growth may be restricted, the
quality of our products and services diminished and our sales and the value of
your investment reduced. We may be unable to retain our skilled employees or
attract, assimilate and retain other highly skilled employees in the future.
We have not been consistently profitable and may not be profitable in the future
For the years ended December 31, 2002 and 2003 our sales were
$18,830,093 and $18,261,065, respectively, and our net income (loss) was
$305,052 and $(2,957,102), respectively. For the six months ended June 30, 2003
and 2004 our sales were $7,226,421 and $12,191,983, respectively. Our net (loss)
for the six months ended June 30, 2003 and 2004 was $(1,629,237) and $(155,955),
respectively. Our profitability has not been continuous and we can make no
assurance that we will be profitable in the future.
Our quarterly results will continue to fluctuate
Our quarterly results have varied significantly in the past and will
likely continue to do so in the future due to a variety of factors, including
the timing and nature of projects from which revenues are recognized during any
particular quarter. Such fluctuations may contribute to the volatility in the
market price for our common stock.
Lengthy sales cycle
Sale of our services and products frequently involves a substantial
commitment of resources to evaluate a potential project and prepare a proposal.
In addition, approval of proposals often involves a lengthy process due to
clients' internal procedures and capital expenditure approval processes. We may
not be awarded a project that we have prepared a proposal for and, even if we
are, a substantial period of time may elapse from when we made the proposal to
when we recognize sales from the project.
We may make acquisitions or form joint ventures that are unsuccessful
Part of our growth strategy may involve acquisitions or joint ventures
with other system integrators.
This strategy is subject to the following risks:
o We may not be able to identify suitable acquisition and
joint venture candidates.
o If the purchase price of an acquisition includes cash, we
may need to use a significant portion of our available cash.
7
o Even if we make an acquisition of a company or form a joint
venture, we could have difficulty assimilating the acquired
company's operations and personnel or working with the joint
venture. These difficulties could disrupt our ongoing
business, distract our management and employees and increase
our expenses and charges, and, thus, could have a material
impact on our business, financial condition and results of
operations.
o We may not be able to retain key employees of the acquired
companies or maintain good relations with its customers or
suppliers.
o We may be required to incur additional debt.
o We may be required to issue equity securities to pay for
acquisition, which will dilute existing shareholders.
o We may have to incur significant accounting charges, such as
impairment of intangible assets, which may adversely affect
our results of operations.
Our Chief Executive Officer and Chief Operating Officer own the majority of our
common stock and their interests may be different from and conflict with yours
Mr. Henry and Mr. Witcosky beneficially own a total of approximately
48.94% of our outstanding common stock, without taking into account shares
issuable under common stock purchase warrants and stock options. Accordingly, if
they act together, they will have the power to control the election of all of
our directors and other issues for which the approval of our shareholders is
required.
We have broad discretion to use the offering proceeds and how we invest these
proceeds may not yield a favorable return
Our management has broad discretion to use the proceeds from this
offering. The failure of our management to apply these funds effectively could
have a material adverse effect on our business, financial condition and results
of operations and could cause the price of our common stock to decline.
Our stock price may fluctuate, which may make it difficult to resell your shares
at attractive prices
The market price of our common stock may be highly volatile. The market
prices of securities of other technologically oriented companies of similar size
have been extremely volatile. Factors that could cause volatility in our stock
price include:
o fluctuations in our quarterly operating results;
o changes in the market valuations of other security or
technology companies and stock market prices and volume
fluctuations generally;
o economic conditions specific to the security industry;
o announcements by us or our competitors relating to new
services or technologies, significant acquisitions,
strategic relationships, joint ventures or capital
commitments;
o applicable regulatory developments; and
o additions or departures of our key personnel.
8
Availability of significant amount of our common stock for sale could cause its
market price to decline
If our stockholders sell substantial amounts of our common stock in the
public market following this offering or the perception exists that such sales
could occur, including shares issued upon exercise of outstanding common stock
purchase warrants, the market price of our common stock could fall.
As of August 13, 2004, there were 5,740,398 shares of our common stock
issued and outstanding. Of those outstanding shares, 553,333 shares, plus an
additional 193,666 shares issuable under outstanding warrants are being
registered for resale under this prospectus. A sale of all or a significant
portion of these shares could have an adverse impact on our stock price.
USE OF PROCEEDS
The net proceeds from the sale of the securities covered by this
prospectus will be received by the Selling Shareholders. We will not receive any
of the proceeds from any sale by any Selling Shareholder of the securities
covered by this prospectus.
9
SELLING SHAREHOLDERS
The following table sets forth, as of August 13, 2004, information as
to the shares of common stock that may be sold in this offering by the Selling
Shareholders. Because the Selling Shareholders may offer all or a portion of the
shares of common stock offered by this prospectus at any time and from time to
time after the date hereof, we cannot predict the number of shares that each
Selling Shareholder may retain upon completion of this offering. In the table
below, the percentage ownership after the offering is based upon the assumed
sale by the Selling Shareholders of all shares they may offer for sale pursuant
to this prospectus. Beneficial ownership includes both outstanding common stock
and shares issuable upon the exercise of warrants. All such warrants are
exercisable during a five year period commencing January 27, 2005. The
percentages for each shareholder are calculated based on 5,740,398 shares of
common stock issued and outstanding at August 13, 2004, plus the additional
shares that the Selling Shareholder is deemed to beneficially own as set forth
in the table, which includes some of the shares offered by this prospectus. The
exercise prices of the warrants pursuant to which those additional securities
are issuable are subject to adjustment in certain circumstances. The shares
offered by this prospectus shall be deemed to include shares offered by any
pledgee, donee, transferee or other successor in interest of any of the Selling
Shareholders listed below, provided that this prospectus is amended or
supplemented if required by applicable law.
The information in this table is based upon information provided by
each respective Selling Shareholder.
Beneficial Ownership Beneficial Ownership
Before this Offering After this Offering
-------------------- --------------------
Number of Shares Being Number of
Name shares Percentage Offered Shares Percentage
---- ------ ---------- ------- ------ ----------
Bristol Investment Fund, Ltd. (1) 62,500 1.1 62,500 0 --
Global Bermuda Limited Partnership (2) 68,750 1.2 68,750 0 --
Lakeshore International, Ltd. (3) 275,000 4.8 275,000 0 --
Merced Partners Limited Partnership (4) 78,125 1.4 78,125 0 --
SRG Capital, LLC (5) 87,500 1.5 87,500 0 --
Tamarack International, Ltd. (6) 78,125 1.4 78,125 0 --
TCMP(3) Partners (7) 41,666 * 41,666 0 --
Roth Capital Partners, LLC (8) 55,333 * 55,333 0 --
---------------------
* Less than one percent
(1) The shares beneficially owned and being offered by Bristol Investment Fund,
Ltd. consist of 12,500 shares issuable upon the exercise of warrants
(exercisable commencing January 27, 2005) with an exercise price of $7.60
per share, and 50,000 shares of our common stock held outright. Bristol
Capital Advisors, LLC is the investment manager of Bristol Investment Fund,
Ltd. Paul Kessler is the manager of Bristol Capital Advisors, LLC, and as
such has voting and investment control over these securities. Mr. Kessler
disclaims beneficial ownership of these securities.
(2) The shares beneficially owned and being offered by Global Bermuda Limited
Partnership consist of 13,750 shares issuable upon the exercise of warrants
(exercisable commencing January 27, 2005) with an exercise price of $7.60
per share, and 55,000 shares of our common stock held outright. John D.
Brandenborg and Michael J. Frey are the Natural Control Persons of Global
Capital Management, Inc.
10
("Global Capital"), a Delaware corporation. Global Capital is the general
partner of Global Bermuda Limited Partnership. As such, each of Global
Capital, Mr. Brandenborg and Mr. Frey have investment power and voting
control over these securities, but each disclaims beneficial ownership of
these securities.
(3) The shares beneficially owned and being offered by Lakeshore International
Ltd. consist of 55,000 shares issuable upon the exercise of warrants
(exercisable commencing January 27, 2005) with an exercise price of $7.60
per share, and 220,000 shares of our common stock held outright. John D.
Brandenborg and Michael J. Frey are the Natural Control Persons of Global
Capital Management, Inc. ("Global Capital"), a Delaware corporation. Global
Capital is the general partner of EBF & Associates, L.P. ("EBF"), a
Delaware limited partnership. EBF is the general partner of Hunter Capital
Management, L.P. ("Hunter Capital"), a Delaware limited partnership. Hunter
Capital is the investment manager of Lakeshore International, Ltd. As such,
each of Hunter Capital, EBF, Global Capital, Mr. Brandenborg and Mr. Frey
have investment power and voting control over these securities, but each
disclaims beneficial ownership of these securities.
(4) The shares beneficially owned and being offered by Merced Partners Limited
Partnership consist of 15,625 shares issuable upon the exercise of warrants
(exercisable commencing January 27, 2005) with an exercise price of $7.60
per share, and 62,500 shares of our common stock held outright. John D.
Brandenborg and Michael J. Frey are the Natural Control Persons of Global
Capital Management, Inc. ("Global Capital"), a Delaware corporation. Global
Capital is the general partner of Merced Partners Limited Partnership. As
such, each of Global Capital, Mr. Brandenborg and Mr. Frey have investment
power and voting control over these securities, but each disclaims
beneficial ownership of these securities.
(5) The shares beneficially owned and being offered by SRG Capital, LLC consist
of 17,500 shares issuable upon the exercise of warrants (exercisable
commencing January 27, 2005) with an exercise price of $7.60 per share, and
70,000 shares of our common stock held outright. SRG Capital, LLC has
identified Edwin Mecabe and Tai May Lee, jointly as the Registered Holder
of these securities. SRG Capital, LLC is an affiliate of a broker-dealer
and has represented to the Company that it acquired the shares in the
ordinary course of business and that, at the time of such acquisition, it
did not have any agreements or understandings, directly or indirectly, with
any person to dispose of the shares, other than a commitment by us to
register the shares pursuant to a shelf registration statement.
(6) The shares beneficially owned and being offered by Tamarack International
Ltd. consist of 15,625 shares issuable upon the exercise of warrants
(exercisable commencing January 27, 2005) with an exercise price of $7.60
per share, and 62,500 shares of our common stock held outright. John D.
Brandenborg and Michael J. Frey are the Natural Control Persons of Global
Capital Management, Inc. ("Global Capital"), a Delaware corporation. Global
Capital is the general partner of EBF & Associates, L.P. ("EBF"), a
Delaware limited partnership. EBF is the general partner of Hunter Capital
Management, L.P. ("Hunter Capital"), a Delaware limited partnership. Hunter
Capital is the investment manager of Tamarack International, Ltd. As such,
each of Hunter Capital, EBF, Global Capital, Mr. Brandenborg and Mr. Frey
have investment power and voting control over these securities, but each
disclaims beneficial ownership of these securities.
(7) The shares beneficially owned and being offered by TCMP(3) Partners consist
of 8,333 shares issuable upon the exercise of warrants (exercisable
commencing January 27, 2005) with an exercise price of $7.60 per share, and
33,333 shares of our common stock held outright. TCMP3 Partners has
identified Steven Slawson and Walter Schenker as the Natural Control
Persons of TCMP3 Partners with investment power and voting control over
these securities.
11
(8) The shares beneficially owned and being offered by Roth Capital Partners
LLC consist of 55,333 shares issuable upon the exercise of warrants
(exercisable commencing January 27, 2005) with an exercise price of $7.60
per share. Roth Capital Partners, LLC is a broker-dealer.
On May 27, 2004, we engaged Roth Capital Partners, LLC, which is one of the
Selling Shareholders listed above, to serve as our exclusive financial advisor
and placement agent in connection with a private placement of our common stock.
We issued the warrant described in footnote 8 to the table above to Roth Capital
Partners, LLC and also paid that firm a cash fee in the amount of $265,600 as
compensation for its services as placement agent in connection with a private
placement completed pursuant to that agreement and reimbursed that firm $25,000
for out-of-pocket expenses incurred in connection therewith. That private
placement related to 746,999 of the shares of common stock covered by this
prospectus, including the 553,333 shares that are presently outstanding and the
138,333 shares issuable upon the exercise of the warrants described in footnotes
1 through 7 to the table above.
PLAN OF DISTRIBUTION
The Selling Shareholders, which as used herein includes donees,
pledgees, transferees or other successors-in-interest selling shares of common
stock or interests in shares of common stock received after the date of this
prospectus from a selling stockholder as a gift, pledge, partnership
distribution or other transfer, may, from time to time, sell, transfer or
otherwise dispose of any or all of their shares of common stock or interests in
shares of common stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These dispositions may
be at fixed prices, at prevailing market prices at the time of sale, at prices
related to the prevailing market price, at varying prices determined at the time
of sale, or at negotiated prices.
The Selling Shareholders may use any one or more of the following
methods when disposing of shares or interests therein:
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;
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 effected after the date the registration
statement of which this prospectus is a part is declared
effective by the SEC;
o through the writing or settlement of options or other
hedging transactions, whether through an options exchange or
otherwise;
o broker-dealers may agree with the Selling Shareholders 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.
The Selling Shareholders may, from time to time, pledge or grant a
security interest in some or all of the shares of common stock owned by them
and, if they default in the performance of their secured
12
obligations, the pledgees or secured parties may offer and sell the shares of
common stock, from time to time, under this prospectus, or under an amendment to
this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act amending the list of Selling Shareholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this
prospectus. The Selling Shareholders also may transfer the shares of common
stock in other circumstances, in which case the transferees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
In connection with the sale of our common stock or interests therein,
the Selling Shareholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume. The Selling
Shareholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Shareholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the Selling Shareholders from the sale of the
common stock offered by them will be the purchase price of the common stock less
discounts or commissions, if any. Each of the Selling Shareholders reserves the
right to accept and, together with their agents from time to time, to reject, in
whole or in part, any proposed purchase of common stock to be made directly or
through agents. We will not receive any of the proceeds from this offering. Upon
any exercise of the warrants by payment of cash, however, we will receive the
exercise price of the warrants.
The Selling Shareholders also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under the Securities Act
of 1933, provided that they meet the criteria and conform to the requirements of
that rule.
The Selling Shareholders and any underwriters, broker-dealers or agents
that participate in the sale of the common stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the Securities Act. Any
discounts, commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the Securities Act.
Selling Shareholders who are "underwriters" within the meaning of Section 2(11)
of the Securities Act will be subject to the prospectus delivery requirements of
the Securities Act.
To the extent required, the shares of our common stock to be sold, the
names of the Selling Shareholders, the respective purchase prices and public
offering prices, the names of any agents, dealer or underwriter, any applicable
commissions or discounts with respect to a particular offer will be set forth in
an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if
applicable, the common stock may be sold in these jurisdictions only through
registered or licensed brokers or dealers. In addition, in some states the
common stock may not be sold unless it has been registered or qualified for sale
or an exemption from registration or qualification requirements is available and
is complied with.
We have advised the Selling Shareholders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the Selling Shareholders and their affiliates.
In addition, we will make copies of this prospectus (as it may be supplemented
or amended from time to time) available to the Selling Shareholders for the
purpose of
13
satisfying the prospectus delivery requirements of the Securities Act. The
Selling Shareholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
We have agreed to indemnify the Selling Shareholders against
liabilities, including liabilities under the Securities Act and state securities
laws, relating to the registration of the shares offered by this prospectus.
We have agreed with the Selling Shareholders to keep the registration
statement of which this prospectus constitutes a part effective until the
earlier of (1) such time as all of the shares covered by this prospectus have
been disposed of pursuant to and in accordance with the registration statement
or (2) the date on which the shares may be sold pursuant to Rule 144(k) of the
Securities Act.
14
DESCRIPTION OF CAPITAL STOCK
As of August 13, 2004, the Company was authorized to issue:
o 10,000,000 shares of common stock, $0.01 par value, of which
5,740,398 shares were issued and outstanding; and
o 2,000,000 shares of preferred stock, $0.01 par value, none
of which were outstanding.
This description of our securities is a summary and does not contain
all the information that may be important to you. You should read this summary
together with our certificate of incorporation, as amended, our bylaws, and the
applicable provisions of the Delaware General Corporation Law. For more
information, you should read "Documents Incorporated by Reference."
Holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote of stockholders and do not have
cumulative voting rights. Accordingly, holders of a majority of the shares of
our common stock entitled to vote in any election of directors may elect all of
the directors standing for election. Apart from preferences that may be
applicable to any shares of preferred stock outstanding at the time, holders of
our common stock are entitled to receive dividends, if any, ratably as may be
declared from time to time by our board of directors out of funds legally
available therefore. Upon our liquidation, dissolution or winding up, the
holders of our common stock are entitled to receive ratably, our net assets
available after the payment of all liabilities and liquidation preferences on
any outstanding preferred stock. Holders of our common stock have no preemptive,
subscription, redemption or conversion rights, and there are no redemption or
sinking fund provisions applicable to the common stock. The outstanding shares
of our common stock are, and the shares offered in this offering will be, when
issued and paid for, validly issued, duly authorized, fully paid and
nonassessable. The rights, preferences and privileges of holders of our common
stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock which we may designate and
issue in the future. No shares of preferred stock are presently outstanding and
as of the date of this prospectus, we do not have any present plan to issue any
shares of preferred stock.
Anti-Takeover Effects of Provisions of Delaware Law
Section 203 of the Delaware General Corporation Law contains provisions
that may make the acquisition of control of our company by means of a tender
offer, open market purchase, proxy fight or otherwise, more difficult. We must
comply with the provisions of this law. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner.
A "business combination" includes a merger, asset sale or other
transaction resulting in a financial benefit to the interested stockholder. An
"interested stockholder" is a person who, together with affiliates and
associates, owns, or, in some cases, within three years prior, did own, 15% or
more of the corporation's voting stock. Under Section 203, a business
combination between us and an interested stockholder is prohibited unless it
satisfies one of the following three conditions:
o our board of directors must have previously approved either
the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder;
o upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of our voting
stock
15
outstanding at the time the transaction commenced,
excluding, for purposes of determining the number of shares
outstanding, shares owned by (1) persons who are directors
and also officers and (2) employee stock plans, in some
instances; and
o the business combination is approved by our board of
directors and authorized at an annual or special meeting of
the stockholders by the affirmative vote of the holders of
at least 66 2/3% of our outstanding voting stock that is not
owned by the interested stockholder.
LEGAL MATTERS
Certain legal matters with respect to the securities will be passed
upon for us by Milberg Weiss Bershad & Schulman LLP, New York, New York.
EXPERTS
The consolidated financial statements of Diversified Security
Solutions, Inc. as of December 31, 2003 and for each of the years in the
two-year period ended December 31, 2003 incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Demetrius & Company, LLC, an independent registered public accounting firm, as
indicated in their report in respect thereto, and are included herein in
reliance upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Because we are subject to the informational requirements of the
Exchange Act, we file reports, proxy statements and other information with the
SEC. You may read and copy these reports, proxy statements and other information
at the public reference facilities maintained by the SEC at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. You may also obtain copies of those
materials at prescribed rates from the public reference section of the SEC at
450 Fifth Street, Washington, D.C. 20549. You may obtain information on the
operation of the public reference room by calling the SEC at (800) SEC-0330. In
addition, we are required to file electronic versions of those materials with
the SEC through the SEC's EDGAR system. The SEC maintains a web site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
The information in this prospectus may not contain all the information
that may be important to you. You should read the entire prospectus, as well as
the documents incorporated by reference in the prospectus, and the Registration
Statement of which this prospectus is a part, including the exhibits thereto,
before making an investment decision.
We will furnish without charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of any and all of
these filings (except exhibits, unless they are specifically incorporated by
reference into this prospectus). You should direct any requests for copies to:
Diversified Security Solutions, Inc.
280 Midland Avenue
Saddle Brook, NJ 076363
Attention: Kayleen Kausrud
Telephone: (201) 794-6500 extension 3049
16
DOCUMENTS INCORPORATED BY REFERENCE
In this prospectus, we have incorporated by reference certain
information we have filed, or will file, with the SEC. 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. Any statement contained in any document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded, for purposes of this prospectus, to the extent that a statement
contained in or omitted from this prospectus, or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We incorporate by reference the documents listed below:
o our Annual Report on Form 10-KSB for the year ended December
31, 2003 filed with the SEC on April 1, 2004;
o our quarterly reports on Form 10-QSB for the quarters ended
March 31, 2004 and June 30, 2004 filed with the SEC on May
17, 2004 and August 13, 2004, respectively;
o our current reports on Form 8-K originally filed on May 13,
2004, July 21, 2004 and July 28, 2004 respectively; and
o the description of our common stock contained in Form 8-A
filed on November 14, 2001 and the related description our
registration statement on Form SB-2 (Registration No.
333-94477), as amended.
All documents that we file pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act (i) after the date of the initial registration
statement of which this prospectus forms a part and prior to effectiveness of
the registration statement, and (ii) after the date of this prospectus and prior
to the termination of the offering of the shares shall be deemed to be
incorporated by reference in this prospectus and to be a part hereof from the
date of filing of such documents.
You may obtain copies of those documents from us, free of cost, by
contacting us at the address or telephone number provided in "Where You Can Find
More Information" immediately above.
Information that we file later with the SEC and that is incorporated by
reference in this prospectus will automatically update and supersede information
contained in this prospectus. You will be deemed to have notice of all
information incorporated by reference in this prospectus as if that information
was included in this prospectus.
17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the fees and expenses in connection with
the resales of the securities registered hereunder. We will pay all of the costs
identified below. Except for the SEC registration fee and the placement agent
fees and expenses, all amounts are estimates.
SEC registration fee ................................................................... $ 507.30
Accounting fees and expenses............................................................ 3,000.00
Legal fees and expenses................................................................. 50,000.00
Placement agent fees and expenses....................................................... 290,600.00
American Stock Exchange listing fee..................................................... 14,940.00
Printing expenses....................................................................... 750.00
Miscellaneous........................................................................... 5,000.00
-----------
Total................................................................................... $364,797.30
===========
Item 15. Indemnification of Directors and Officers.
As permitted by Section 145 of the Delaware General Corporation Law,
Diversified Security Solutions, Inc.'s Certificate of Incorporation includes a
provision that eliminates the personal liability of its directors to Diversified
Security Solutions, Inc. or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (A) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (B) for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (C) under Section 174 of the Delaware General
Corporation Law, or (D) for any transaction which the director derived an
improper personal benefit. In addition, as permitted by Section 145 of the
Delaware General Corporation Law, the Bylaws of Diversified Security Solutions,
Inc. provide that the Corporation shall indemnify its directors and officers
under certain circumstances, including those circumstances in which
indemnification would otherwise be discretionary, and Diversified Security
Solutions, Inc. is required to advance expenses to its officers and directors as
incurred in connection with proceedings against them for which they may be
indemnified.
The indemnification provision in the Bylaws may be sufficiently broad
to permit indemnification of Diversified Security Solutions, Inc.'s executive
officers and directors for liabilities arising under the Securities Act of 1933,
as amended.
Item 16. Exhibits.
See the exhibit index on the page following the signature page. The
exhibit index filed herewith and appearing immediately before the exhibits
hereto is incorporated by reference in response to this Item 16.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
18
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represents a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high 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 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) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement related to
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 New York, State of New York, on this 20th day of
August, 2004.
DIVERSIFIED SECURITY SOLUTIONS, INC.
By: /s/ James E. Henry
-----------------------------------------
James E. Henry
Chairman, Chief Executive Officer,
Treasurer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS THAT each individual whose signature
appears below appoints James E. Henry, Irvin F. Witcosky and Brian L. Reach, and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-3 and to sign any registration
statement for the same offering covered by this Registration Statement that is
to be effective upon filing pursuant to Rule 415 promulgated under the
Securities Act of 1933 and all post-effective amendments thereto, and to file
the same, with all exhibits thereto and all other 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 anything appropriate or necessary to be done, as fully and for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman, Chief Executive Officer,
Treasurer and Director (Principal
/s/ James E. Henry Executive Officer) August 20, 2004
----------------------
James E. Henry
Chief Operating Officer, President,
/s/ Irvin F. Witcosky Secretary and Director August 20, 2004
----------------------
Irvin F. Witcosky
/s/ Brian L. Reach Vice Chairman and Director August 20, 2004
----------------------
Brian L. Reach
20
Signature Title Date
--------- ----- ----
Chief Financial Officer
/s/ Douglas West (Principal Financial Officer) August 20,2004
------------------------
Douglas West
------------------------- Director ----------------------
Robert Benou
/s/ Robert DeLia Director August 20, 2004
------------------------
Robert DeLia
/s/ Joseph P. Ritorto
------------------------- Director August 20, 2004
Joseph P. Ritorto
21
EXHIBIT INDEX
Exhibit
Number Exhibit Description Method of Filing
------ ------------------- ----------------
3.1 Certificate of Incorporation of the Company....................................(1)
3.2 By-laws of the Company.........................................................(1)
3.3 Certificate of Amendment of the Certificate of Incorporation of the
Company, filed on July 5, 2001..............................................(2)
3.4 Certificate of Amendment of the Certificate of Incorporation of the
Company, filed on August 28, 2001............................................(2)
4.1 Specimen Common Stock Certificate of the Company...............................(3)
4.2 Securities Purchase Agreement, dated as of July 20, 2004, by and
among the Company and the purchasers listed on the signature
pages thereto incorporated by reference to Exhibit 10.1 to the
Company's Current Report on Form 8-K filed July 21, 2004.....................(4)
4.3 Registration Rights Agreement, dated as of July 20, 2004, between
the Company and the investors named on the signature pages thereto
incorporated by reference to Exhibit 10.2 to the Company's Current
Report on Form 8-K filed July 21, 2004.......................................(4)
5.1 Opinion of Milberg Weiss Bershad & Schulman LLP................................ *
23.1 Consent of Demetrius & Company, L.L.C.......................................... *
23.2 Consent of Milberg Weiss Bershad & Schulman LLP (included in
Exhibit 5.1)................................................................. *
99.1 Form of Warrant dated as of July 27, 2004, issued by the Company
to Roth Capital Partners, LLC and to each of the investors named
in the Registration Rights Agreement filed as Exhibit 4.2 hereto.............(4)
(1) Incorporated by reference to the Registration Statement on Form SB-2 File
No. 333-94477, filed with the Securities and Exchange Commission on January 12,
2002 (The "Registration Statement").
(2) Incorporated by reference to Amendment No. 4 to the Registration Statement
filed with the Securities and Exchange Commission on September 25, 2001.
(3) Incorporated by reference to Amendment No. 6 to the Registration Statement
filed with the Securities and Exchange Commission on November 13, 2001.
(4) Incorporated by reference to Current Report on Form 8-K filed with the
Securities and Exchange Commission on July 21, 2004.
* Filed herewith.
22