AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 10, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
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REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PERFORMANCE TECHNOLOGIES, INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 16-1158413
(State Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
315 SCIENCE PARKWAY
ROCHESTER, NEW YORK 14620
(716) 256-0200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-----------------
DONALD L. TURRELL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PERFORMANCE TECHNOLOGIES, INCORPORATED
315 SCIENCE PARKWAY
ROCHESTER, NEW YORK 14620
(716) 256-0200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
JEFFREY H. BOWEN, ESQ.
HARTER, SECREST & EMERY LLP
700 MIDTOWN TOWER
ROCHESTER, NEW YORK 14604
(716) 232-6500
----------------
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
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
Title Of Amount to be Proposed Maximum Proposed Maximum Amount of
Shares To Registered Offering Price Aggregate Registration
Be Registered per unit (1) Offering Price Fee
- -------------- ------------ ---------------- ---------------- -------------
Common Stock, 2,165,732 $16.094 $34,855,291 $9,689.77
$.01 par value Shares
(1) The price of $16.094, which was the average of the high and low prices of
the Common Stock on the Nasdaq National Market System on January 7, 2000 is
set forth solely for the purpose of computing the registration fee pursuant
to Rule 457(c).
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 THAT 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.
<PAGE>
2,165,732 SHARES
PERFORMANCE TECHNOLOGIES, INCORPORATED
COMMON STOCK
--------------------
This Prospectus relates to the public offering of 2,165,732 shares of
our Common Stock, par value $.01 per share. This offering will not be
underwritten. All 2,165,732 shares may be offered by certain of our stockholders
or by pledgees, donees, transferees or other successors in interest who receive
the shares as a gift, partnership distribution or other non-sale related
transfer. All of these shares were originally issued in connection with the
acquisition of MicroLegend Telecom Systems Inc., a Canadian company, through the
acquisition of MicroLegend's outstanding capital stock. As part of the
acquisition, MicroLegend became a wholly-owned subsidiary of 3688283 Canada
Inc., which is our wholly-owned Canadian subsidiary. The issuance of the shares
was exempt from registration under Section 4(2) of the Securities Act of 1933,
as amended. We are registering the shares pursuant to Section 7.1 of the Share
Acquisition Agreement by and among us, our subsidiary, MicroLegend and two of
the principal stockholders of MicroLegend.
The shares we are registering may be offered by the selling
stockholders from time to time in transactions in the over-the-counter market,
in negotiated transactions, or in a combination of such methods of sale. The
shares may be offered at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to prevailing market prices or
at negotiated prices. The selling stockholders may effect such transactions by
selling the shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the selling stockholders and/or the purchasers of the shares for whom such
broker-dealers act as agents or to whom they sell as principals, or both. This
compensation might be in excess of customary commissions. For further
information, see the section entitled "Plan of Distribution" below.
We will not receive any of the proceeds from the sale of these shares.
We have agreed to bear certain expenses in connection with the registration of
the shares being offered and sold by the selling stockholders. Our Common Stock
is quoted on the Nasdaq National Market under the symbol "PTIX." On January 7,
2000 the average of the high and low bid price for the Common Stock was $16.469.
Our principal executive office is located at 315 Science Parkway,
Rochester, New York 14620. Our telephone number is (716) 256-0200.
-------------------
The selling stockholders and any broker-dealers or agents that
participate with the selling stockholders in the distribution of the shares may
be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, and any commissions received by them and any profit on
the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This offering of our Common Stock involves certain risks. For further
information, please see the section entitled "Risk Factors."
The date of this Prospectus is January 10, 2000
<PAGE>
RISK FACTORS
We Must Successfully Manage Technological Change and the Introduction
of New Products. The market for the SS7 inter-networking products produced by
MicroLegend are characterized by rapid technological change and frequent
introduction of products based on new technologies. As these products are
introduced, the standards of the industry change. Additionally, the overall
computer networking industry is volatile as the effects of new technologies, new
standards, new products and short life cycles contribute to changes in the
industry and the performance of industry participants. Our future revenue in
this market will depend upon our ability to anticipate technological change and
to develop and introduce enhanced products on a timely basis that meet or exceed
new industry standards. New product introductions could contribute to quarterly
fluctuations in operating results as orders for new products commence and orders
for existing products decline. Moreover, significant delays can occur between a
product's introduction and commencement of volume production. If we are not able
to develop and manufacture new products in a timely manner, if we have problems
with reliability, quality or availability of our products or their component
parts, or if we fail to achieve market acceptance for our products, our revenues
and operating results may be adverse effected.
We Must Deal Effectively with Competition. The SS7 inter-networking
business is extremely competitive. We face competition from a number of
established and emerging computer communications and inter-networking device
companies. While MicroLegend is currently the leading SS7 inter-networking
provider, many of our principal competitors also have established brand name
recognition and market positions and may have greater experience and financial
resources to spend for promotion, advertising, research and product development
than we have. Several of these competitors have recently introduced or announced
their intentions to introduce new competitive products. In addition, as we
broaden our product offerings, we may face competition from new competitors.
Companies in related markets could offer products with functionality similar or
superior to that offered by our products. Increased competition could result in
price reductions, reduced margins and loss of market share, all of which would
materially and adversely affect our revenue and operating results. There can be
no assurance that we will be able to compete successfully with our existing or
new competitors or that competitive pressures we face in this industry will not
have a material adverse effect on our revenue and operating results.
We are Dependent on Several Key Customers in the SS7 Inter-networking
Market. There can be no assurance that the principal customers of MicroLegend
will continue to purchase products from us at current levels. Customers
typically did not enter into long-term volume purchase contracts with
MicroLegend. In addition, MicroLegend's customers have certain rights to extend
or delay the shipment of their orders. The loss of one or more of MicroLegend's
major customers, and the reduction, delay or cancellation of orders or a delay
in shipment of products to such customers would have a material adverse effect
on our revenue and operating results.
We May Experience Fluctuations in Annual and Quarterly Results. In
relation to the product lines and business acquired as a result of the
MicroLegend acquisition, our annual and quarterly operating results may in the
future vary significantly depending on factors such as the timing and shipment
of significant orders, new product introductions by us and our competitors,
market acceptance of new and enhanced versions of our products, changes in our
pricing policies and those of our competitors, the mix of distribution channels
through which our products are sold, our inability to obtain sufficient supplies
of sole or limited source components for our products, seasonal and general
economic conditions.
We are Dependent on Third Party Component Suppliers. Certain components
used in MicroLegend's products are currently available only from one or a
limited number of sources. Although prior to the acquisition MicroLegend was
generally able to obtain adequate supplies of these components, there can be no
assurance that future supplies will be adequate for our needs or will be
available on acceptable prices and terms. Our inability in the future to obtain
sufficient limited-source components, or to develop alternative sources, could
result in delays in product introduction or shipments, and increased component
prices could negatively affect our gross margins, either of which will have a
material adverse effect on our revenue and operating results.
We are Dependent on Proprietary Technology. Our success in the SS7
inter-networking business depends upon our proprietary technologies. Prior to
the acquisition, MicroLegend relied principally upon trademark, copyright and
trade secret laws to protect its proprietary technologies. MicroLegend generally
entered into confidentiality or license agreements with its distributors,
customers and potential customers and limited access to and distribution of the
source code to its software and other proprietary information. MicroLegend's
employees were subject to its employment policy regarding confidentiality. We
will maintain similar standards and enforce similar safeguards of former
MicroLegend proprietary technology in the future. However, there can be no
assurance that the steps taken in this regard by MicroLegend in the past or us
in the future will be adequate to prevent misappropriation of our technologies
or to provide an effective remedy in the event of a misappropriation by others.
Although our management believes that our products and those produced
by MicroLegend do not infringe on the proprietary rights of third parties, there
can be no assurance that infringement claims will not be asserted, resulting in
costly litigation in which we may not ultimately prevail. Adverse determinations
in such litigation could result in the loss of our proprietary rights, subject
us to significant liabilities, require us to seek licenses from third parties or
prevent us from manufacturing or selling our products, any of which will have a
material adverse effect on our revenue and operating results.
Because of the existence of a large number of patents in the computer
networking industry and the rapid rate of issuance of new patents or new
standards or to obtain important new technology, it may be necessary for us to
enter into technology licenses from others. There can be no assurance that these
third party technology licenses will be available to us on commercially
reasonable terms. The loss of or inability to obtain any of these technology
licenses could result in delays or reductions in product shipments. Any such
delays or reductions in product shipments will have a material adverse effect on
the our revenue and operating results.
We are Dependent on Certain Key MicroLegend Personnel. Our success in
the SS7 inter-networking business depends on the continued contributions of
certain key MicroLegend personnel, many of whom would be difficult to replace.
It will also depend on our ability to attract and retain skilled employees.
Although our employees are subject to our employment policy regarding
confidentiality and ownership of inventions, employees are not otherwise subject
to employment agreements or non-competition covenants. Changes in personnel
could adversely affect our operating results.
AVAILABLE INFORMATION
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
this offering of our Common Stock. If any such information or representations
are given or made, such information or representations must not be relied upon
as having been authorized by us, by any selling stockholder or by any other
person. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that information herein
is correct as of any time subsequent to the date hereof. This Prospectus does
not constitute an offer to sell or a solicitation of an offer to buy any
security other than the Common Stock covered by this Prospectus, nor does it
constitute an offer to or solicitation of any person in any jurisdiction in
which such offer or solicitation may not lawfully be made.
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended. As a result, we files reports, proxy
statements, information statements and other information with the Securities and
Exchange Commission (the "SEC"). You may inspect and copy any reports, proxy
statements and other information that we file at the Public Reference Room
maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. You can
obtain copies of such materials by mail from the Public Reference Room of the
SEC at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. You may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330. The SEC maintains a World Wide Web site
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC. The address of the
SEC's web site is http://www.sec.gov. Our Common Stock is quoted on the Nasdaq
National Market, and such material may also be inspected at the offices of
Nasdaq Operations, 1735 K Street N.W. Washington, D.C. 20006.
We have filed with the SEC a Registration Statement on Form S-3
(together with all amendments and exhibits, referred to in this Prospectus as
the "Registration Statement") under the Securities Act of 1933 with respect to
the Common Stock we are offering. This Prospectus does not contain, nor is it
required to contain, all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. For further information regarding us and our Common
Stock, you should refer to the Registration Statement and its exhibits and
schedules. The Registration Statement, including its exhibits and schedules, may
be inspected as described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC (File No. 0-27460) pursuant
to the Securities Exchange Act of 1934 are incorporated herein by reference:
1. Our Annual Report on Form 10-K for the fiscal year ended December 31, 1998,
filed March 30, 1999; 2. Our Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30, and September 30, 1999; 3. Our Current Report on Form
8-K filed on December 21, 1999; 4. The description of our Common Stock, par
value $.01 per share, contained in our Registration Statement on Form S-1 filed
on January 18, 1996 including any amendment or report filed for the purpose of
updating such description; and 5. All reports and other documents filed by us
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 subsequent to the date of this Prospectus and prior to the termination of
this offering.
Any statement contained in a document incorporated by reference herein
shall be deemed to be incorporated by reference in this Prospectus and to be
part hereof from the date of filing of such documents. Any statement modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus. We will provide to you upon written or
oral request and without charge a copy of any or all of such documents which are
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the documents that
this Prospectus incorporates). Written requests for copies should be directed to
Dorrance W. Lamb, Vice President of Finance, at our principal executive offices:
Performance Technologies, Incorporated 315 Science Parkway, Rochester, New York
14620. Our telephone number is (716) 256-0200.
THE COMPANY
Our principal executive offices are located at 315 Science Parkway,
Rochester, New York 14620. Our telephone number is (716) 256-0200.
PLAN OF DISTRIBUTION
We will receive no proceeds from this offering. The shares offered by
this Prospectus may be sold by the selling stockholders from time to time in
transactions in the over-the-counter market, in negotiated transactions, or in a
combination of such methods of sale, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices. The selling stockholders may effect such
transactions by selling the shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the selling stockholders and/or the purchasers of the shares
for whom such broker-dealers may act as agents or to whom they sell as
principals, or both. This compensation might be in excess of customary
commissions. The shares we are offering may be sold either pursuant to this
Registration Statement or pursuant to Rule 144 issued by the SEC under the
Securities Act of 1933.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling stockholders and any broker-dealers or agents that
participate with the selling stockholders in the distribution of the shares may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933,
and any commissions received by them and any profit on the resale of the shares
purchased by them may be deemed to be underwriting commissions or discounts
under federal law.
Under applicable federal rules and regulations, any person engaged in
the distribution of our Common Stock may not simultaneously engage in market
making activities with respect to our Common Stock for a period of two business
days prior to the commencement of such distribution. In addition, and without
limiting the foregoing, each selling stockholder will be subject to applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
of the SEC promulgated thereunder. These rules include, without limitation,
Rules 10b-6 and 10b-7, which may limit the timing of purchases and sales of
shares of our Common Stock by the selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth the number of shares of Common Stock
owned by each of the selling stockholders. Except for Thomas Blain and Reginald
T. Cable, each of whom is an officer of MicroLegend Telecom Systems Inc., a
company which is now one of our affiliates, none of these selling stockholders
has had a material relationship with us within the past three years other than
as a result of the ownership of our Common Stock. Because the selling
stockholders may offer all or some of the Common Stock which they hold pursuant
to the offering contemplated by this Prospectus, and because there are currently
no agreements, arrangements or understandings with respect to the sale of any of
the shares, no estimate can be given as to the amount of shares that will be
held by the selling stockholders after completion of this offering. The shares
offered by this Prospectus may be offered from time to time by the selling
stockholders named below or by pledgees, donees, transferees or other successors
in interest who receive the shares as a gift, partnership distribution or other
non-sale related transfer.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Number of Shares Percent of Number of Shares
Name of Selling Beneficially Outstanding Registered for
Stockholder Owned Shares Sale Hereby (1)
- ------------------ ---------------- ----------- -----------------
3414850 Canada Inc. 994,294 7.4% 994,294
2384434 Canada Inc. 994,293 7.4% 994,293
Thomas Blain 60,059 * 60,059
Reginald T. Cable 60,059 * 60,059
Philippe Tanguay 2,267 * 2,267
Louis C. Ferland 5,086 * 5,086
Kerry Keirstead 932 * 932
Yuqiang Zhang 1,012 * 1,012
R. Michael Hasson 10,490 * 10,490
Peter Butler 1,881 * 1,881
Normand Glaude 10,490 * 10,490
Michael Gaines 3,496 * 3,496
Marc Labonte 4,874 * 4,874
Kim Keirstead 4,238 * 4,238
Eric A. Schmidt 1,958 * 1,958
Egan Cheung 456 * 456
Jean Brisard 2,575 * 2,575
Songling Yang 834 * 834
Brian Gregory Holmes 710 * 710
Cindi Viegas 477 * 477
Robert G. Mason 2,119 * 2,119
Kelly W. Porter 318 * 318
Clark Lee 1,033 * 1,033
Paulette Gregory 318 * 318
Michael Whiten 668 * 668
Lee Christensen 371 * 371
Andrew L. Booth 424 * 424
--------- -------- ---------
Total 2,165,732 16.4% 2,165,732
========= ======== =========
</TABLE>
* Represents beneficial ownership of less than 1%.
(1) This Registration Statement shall also cover any additional shares of our
Common Stock which become issuable in connection with the Common Stock
registered for sale hereby by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt of
consideration which results in an increase in the number of our outstanding
shares of Common Stock.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
us by Harter, Secrest & Emery LLP, Rochester, New York.
EXPERTS
Our consolidated balance sheets as of December 31, 1997 and December
31, 1998 and our consolidated statements of income, retained earnings, and cash
flow for each of the three years in the period ended December 31, 1998
incorporated by reference in this Prospectus, have been incorporated herein in
reliance on the report of PriceWaterhouseCoopers LLP, independent accountants,
given on the authority of that firm as experts in accounting and auditing.
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Performance Technologies,
Incorporated (the "Company") in connection with the sale of Common Stock being
registered. All amounts are estimates except the SEC registration fee.
SEC Registration Fee $ 9,690
Legal fees and expenses 15,000
Accounting fees and expenses 10,000
Miscellaneous 5,000
------
Total $39,690
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
With respect to indemnification of directors and officers, Section 145
of the Delaware General Corporation Law ("DGCL") provides that a corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding, if
the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. Under this provision of the DGCL, the termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had
reasonable cause to believe that the person's conduct was unlawful.
Furthermore, the DGCL provides that a corporation shall have the power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
The Company's Restated Certificate of Incorporation (the "Certificate of
Incorporation") and By-laws, as amended (the "By-laws") provide for limitation
of the liability of directors to the Company and its stockholders and for
indemnification of directors, officers, employees and agents of the Company,
respectively, to the maximum extent permitted by the DGCL.
The Certificate of Incorporation provides that directors are not liable
to the Company or its stockholders for monetary damages for breaches of
fiduciary duty as a director, except for liability (a) for any breach of the
director's duty of loyalty to the Company or its stockholders, (b) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (c) for dividend payments or stock repurchases in violation of
Delaware law, or (d) for any transaction from which the director derived any
improper personal benefit.
The By-laws include provisions by which the Company will indemnify its
officers and directors and other persons against expenses, judgments, fines and
amounts paid in settlement with respect to threatened, pending or completed
suits or proceedings against such persons by reason of serving or having served
the Company as officers, directors or in other capacities, except in relation to
matters with respect to which such persons shall be determined not to have acted
in good faith, lawfully or in the best interests of the Company. With respect to
matters to which the Company's officers, directors, employees, agents or other
representatives are determined to be liable for misconduct or negligence in the
performance of their duties, the By-laws provide for indemnification only to the
extent that the Company determines that such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.
ITEM 16. EXHIBITS
(2) Share Acquisition Agreement.
(5) Opinion of Harter, Secrest & Emery LLP.
(23.1) Independent Accountants' Consent.
(23.2) Consent of Harter, Secrest & Emery LLP (included in the
Opinion of Counsel filed as Exhibit 5)
(24) Power of Attorney
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes (subject to the proviso
contained in Item 512(a) of Regulation S-K):
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
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.
(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 which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that is 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 Rochester, State of New York, on this ____ day of
January 10, 2000.
PERFORMANCE TECHNOLOGIES, INCORPORATED
Dated: January 10, 2000
By: /s/ DONALD L. TURRELL
--------------------------
Donald L. Turrell,
President, Chief Executive
Officer and Director
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:
/s/Donald L. Turrell
- ----------------------- President, Chief Executive January 10, 2000
Donald L. Turrell Officer and Director
(Principal Executive Officer)
/s/Dorrance W. Lamb
- ----------------------- Vice President of Finance January 10, 2000
Dorrance W. Lamb and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/Charles E. Maginness
- ----------------------- Chairman of the Board January 10, 2000
Charles E. Maginness and Director
/s/John M. Slusser
- ----------------------- Director January 10, 2000
John M. Slusser
/s/Bernard Kozel
- ----------------------- Director January 10, 2000
Bernard Kozel
/s/John E. Mooney
- ----------------------- Director January 10, 2000
John E. Mooney
/s/Paul L. Smith
- ----------------------- Director January 10, 2000
Paul L. Smith
<PAGE>
INDEX TO EXHIBITS
(2) Share Acquisition Agreement (Exhibit (2))1
(5) Opinion of Harter, Secrest & Emery LLP
(23.1) Independent Accountants' Consent
(23.2) Consent of Harter, Secrest & Emery LLP (included in the Opinion
of Counsel filed as Exhibit (5))
(24) Power of Attorney
1 Exhibit previously filed as part of, and incorporated herein by reference to,
the Registrant's Form 8-K filed with the Commission on December 21, 1999. The
exhibit number contained in parenthesis refers to the exhibit number in such
Form 8-K.
<PAGE>
Exhibit (5)
January 7, 2000
Performance Technologies, Incorporated
315 Science Parkway
Rochester, New York 14620
Re: Performance Technologies, Incorporated
Registration Statement on Form S-3
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-3, filed this date under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission (the "Registration
Statement"), in respect of an aggregate of 2,165,732 authorized and issued
shares of the Common Stock, par value $.01 per share (the "Common Stock"), of
Performance Technologies, Incorporated (the "Corporation"), which may be sold by
certain stockholders of the Corporation.
We have examined the following corporate records and proceedings of the
Corporation in connection with the preparation of this opinion: its Certificate
of Incorporation; its By-laws as currently in force and effect; its Minute
Books, containing minutes and records of other proceedings of its stockholders
and its Board of Directors, from the date of incorporation to the date hereof;
the Registration Statement; applicable provisions of the laws of the State of
Delaware; and such other documents and matters as we have deemed necessary.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Corporation, certificates and documents issued
by public officials and authorities, and information received from searchers of
public records.
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and is validly
existing under the laws of the State of Delaware.
2. The Corporation had the authority to issue an aggregate of
2,165,732 shares of Common Stock.
3. The shares of Common Stock issued by the Corporation were
validly authorized and legally issued and outstanding, fully paid and
non-assessable.
We hereby consent to be named in the Registration Statement as attorneys
passing upon legal matters in connection with the registration of the 2,165,732
shares of Common Stock covered thereby, and we hereby consent to the filing of
this opinion as Exhibit (5) to the Registration Statement.
Very truly yours,
/s/ HARTER, SECREST & EMERY LLP
-------------------------------
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-3
of our report dated February 12, 1999 relating to the consolidated financial
statements of Performance Technologies, Inc., which appears in such Registration
Statement. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
Rochester, NY
January 10, 2000
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Donald L. Turrell and Dorrance W. Lamb,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for him and in his name, place, and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) 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 powers and authority to do and perform each and
every act and things requisite or 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 their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on January 7, 2000, by the
following persons in the capacities indicated:
/s/Charles E. Maginness
- ----------------------- Chairman of the Board January 10, 2000
Charles E. Maginness and Director
/s/John M. Slusser
- ----------------------- Director January 10, 2000
John M. Slusser
/s/Bernard Kozel
- ----------------------- Director January 10, 2000
Bernard Kozel
/s/John E. Mooney
- ----------------------- Director January 10, 2000
John E. Mooney
/s/Paul L. Smith
- ----------------------- Director January 10, 2000
Paul L. Smith
