As filed with the Securities and Exchange Commission on December 15, 2000
REGISTRATION NO. 333-______
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XYBERNAUT CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 54-1799851
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(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
12701 FAIR LAKES CIRCLE
FAIRFAX, VIRGINIA 22033
(703) 631-6925
------------------------------
(Address, including zip code, and telephone number,
Including area code, of registrant's principal executive offices)
EDWARD G. NEWMAN
12701 FAIR LAKES CIRCLE
FAIRFAX, VIRGINIA 22033
(703) 631-6925
------------------------------
(Name, address, including zip code, and telephone number,
Including area code, of agent for service)
Copy to:
Martin Eric Weisberg, Esq.
Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
(212) 704-6000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
PROPOSED
TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(1) OFFERING PRICE AGGREGATE REGISTRATION
PER SHARE OFFERING PRICE FEE
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.01 par value per share.. 717,703 (2) $ 3.047 (4) $ 2,186,841.04 $ 577.33
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
Common Stock, $.01 par value per share.. 119,880 (2)(3) $ 6.250 (5) $ 749,250.00 $ 197.80
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
Common Stock, $.01 par value per share ..... 7,700 (2) $ 3.047 (4) $ 23,461.90 $ 6.19
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
Common Stock, $.01 par value per share ..... 40,000 (2) $ 3.047 (4) $ 121,880.00 $ 32.18
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
Common Stock, $.01 par value per share ..... 31,371 (2) $ 3.047 (4) $ 95,587.44 $ 25.24
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
Common Stock, $.01 par value per share ..... 5,597,656 (2) $ 3.047 (4) $ 17,056,057.83 $ 4,502.80
--------------------------------------------- ------------------- ------------------- ----------------- ---------------
Common Stock, $.01 par value per share ..... 3,105,057 (2)(3) $ 4.331 (5) $ 13,448,001.87 $ 3,550.27
---------------------------------------------------------------------------------------------------------- ---------------
Total Registration Fee...................... $ 8,891.81
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</TABLE>
(1) Represents the shares of common stock being registered for resale by the
selling stockholders.
(2) Pursuant to Rule 416, the shares of common stock offered hereby also include
such presently indeterminate number of shares of common stock as shall be
issued by us to the selling stockholders upon adjustment under anti-dilution
provisions covering the additional issuance of shares by Xybernaut resulting
from stock splits, stock dividends or similar transactions.
(3) Represents the number of shares of common stock issuable upon exercise of
warrants to purchase shares of our common stock.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (g) of the Securities Act of 1933, as amended
(the "Securities Act"); based on the average ($3.047) of the bid ($3.031)
and asked ($3.063) price on the Nasdaq National Market on December 11, 2000.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(g) of the Securities Act, based on the higher of (a)
the exercise price of the warrants or (b) the offering price of securities
of the same class included in this registration statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE>
The information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell nor is it seeking an offer to buy these securities in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER __, 2000
PROSPECTUS
XYBERNAUT CORPORATION
9,619,367 SHARES OF COMMON STOCK
The selling stockholders of Xybernaut Corporation listed on page 9 of this
prospectus are offering for sale up to 9,619,367 shares of common stock of
Xybernaut under this prospectus.
The selling stockholder may offer its shares through public or private
transactions, at prevailing market prices, or at privately negotiated prices.
See "Plan of Distribution."
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NASDAQ National Market Symbol: "XYBR"
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On December 11, 2000, the closing price of one share of our common stock on
the NASDAQ National Market was $3.031.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD CAREFULLY
CONSIDER THE FACTORS DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING
ON PAGE 2 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this prospectus is _________________, 2000
<PAGE>
RISK FACTORS
BEFORE YOU BUY SHARES OF OUR COMMON STOCK, YOU SHOULD BE AWARE THAT
THERE ARE VARIOUS RISKS ASSOCIATED WITH THAT PURCHASE, INCLUDING THOSE DESCRIBED
BELOW. YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS, TOGETHER WITH ALL OF
THE OTHER INFORMATION IN THIS PROSPECTUS AND THE DOCUMENTS WE HAVE INCORPORATED
BY REFERENCE IN THE SECTION "WHERE YOU CAN FIND MORE INFORMATION ABOUT US,"
BEFORE YOU DECIDE TO PURCHASE SHARES OF OUR COMMON STOCK.
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RISKS ASSOCIATED WITH OUR HISTORY OF LOSSES AND FUTURE NEED FOR CAPITAL
-----------------------------------------------------------------------------
WE HAVE A HISTORY OF LOSSES AND, IF WE DO NOT ACHIEVE PROFITABILITY, WE MAY NOT
BE ABLE TO CONTINUE OUR BUSINESS IN THE FUTURE.
Our research, development, sales, marketing and general and
administrative expenses have resulted in significant losses and are expected to
continue to result in significant losses for the foreseeable future. We have
incurred the following losses since 1994:
Fiscal years ended:
o March 31, 1994 $47,352
o March 31, 1995 $1,303,892
o December 31, 1996 $5,238,536
o December 31, 1997 $9,479,966
o December 31, 1998 $13,111,488
o December 31, 1999 $16,775,797
Three months ended:
o March 31, 2000 $4,534,762
o June 30, 2000 $5,862,012
o September 30, 2000 $5,941,963
WE COULD BE REQUIRED TO CUT BACK OR STOP OPERATIONS IF WE ARE UNABLE TO RAISE OR
OBTAIN NEEDED FINANCING.
The research, development, commercialization, manufacturing and
marketing of our products will likely require financial resources which are
significantly in excess of those presently available to us. If we are not able
to arrange financing or other third party arrangements on acceptable terms, we
may be unable to fully develop and commercialize any of our products and could
be required to cut back or stop operations.
-2-
<PAGE>
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RISKS ASSOCIATED WITH THE INDUSTRY IN WHICH WE OPERATE
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OUR FUTURE REVENUES AND ABILITY TO PRODUCE NEW PRODUCTS DEPEND SUBSTANTIALLY ON
THE SUCCESS OF THE MOBILE ASSISTANT(R) SERIES.
Our Mobile Assistant(R) series currently consists of one product, the
MA(R) IV. The Mobile Assistant serIes is our principal product, and our success
will depend to a large extent upon its commercial acceptance, which cannot be
assured. We have signed an agreement with IBM to design, develop and manufacture
the computer portion of Xybernaut's next generation of wearable computer systems
and are introducing new models of the MA IV. Additional product development will
result in a significant increase in our research and development expenses that
may be unrecoverable should commercialization of new products prove
unsuccessful. We also could require additional funding if research and
development expenses are greater than we anticipate. As with most high
technology products, new models of the Mobile Assistant series must be
introduced periodically for our company to remain competitive. There can be no
assurance that these new models can be successfully developed or commercially
accepted.
WE MAY HAVE TO LOWER PRICES OR SPEND MORE MONEY TO EFFECTIVELY COMPETE AGAINST
COMPANIES WITH GREATER RESOURCES THAN US WHICH COULD RESULT IN LOWER REVENUES
AND/OR PROFITS.
The success of our products in the marketplace depends on many factors,
including product performance, price, ease of use, support of industry
standards, competing technologies and customer support and service. Given these
factors we cannot assure you that we will be able to compete successfully. For
example, if our competitors offer lower prices, we could be forced to lower
prices which could result in reduced or negative margins and a decrease in
revenues. If we do not lower prices we could lose sales and market share. In
either case, if we are unable to compete against our main competitors which
include established companies like Computing Devices International, a division
of Ceridian Corporation, ViA Inc., Texas Microsystems, Telxon, Symbol, Norand,
Teltronics, Inc. a subsidiary of Interactive Solutions, Raytheon, and others, we
would not be able to generate sufficient revenues to grow our company or reverse
our history of losses.
In addition, we may have to spend more money to effectively compete for
market share, including funds to expand our infrastructure, which is a capital
and time extensive process. Further, if other companies choose to aggressively
compete against us, we may have to reduce our prices and spend more money on
advertising, promotion, trade shows, product development, marketing and overhead
expenses, hiring and retaining personnel, and developing new technologies. These
lower prices and higher expenses would hurt our net income and profits.
CURRENCY FLUCTUATIONS, ESPECIALLY IN THE JAPANESE YEN AND GERMAN MARK, MAY
SIGNIFICANTLY INCREASE OUR EXPENSES AND AFFECT OUR RESULTS OF OPERATIONS.
The exchange rates for some local currencies in countries where we
operate may fluctuate in relation to the U.S. dollar. Such fluctuations may have
an adverse effect on our competitive position
-3-
<PAGE>
as well as our expenses, revenues, earnings, assets or liabilities when local
currencies are translated into U.S. dollars. We have significant operations in
Asia, primarily Japan, and Europe, primarily Germany. Also, we are party to
supplier arrangements with several companies in Japan and Europe for the
production of the Mobile Assistant series. Our foreign operations, including
payments to our suppliers, are typically funded in the local currencies. Any
changes in the value of the U.S. dollar against these currencies could result in
an increase in our reported expenses or inventory costs or a decrease in our
reported revenues which, if substantial, could have a material adverse effect on
our financial condition and results of operations.
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RISK ASSOCIATED WITH
OUR INTERNAL OPERATIONS AND POLICIES
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SINCE WE DO NOT INTEND TO DECLARE DIVIDENDS IN THE FORESEEABLE FUTURE, THE
RETURN ON YOUR INVESTMENT WILL DEPEND UPON APPRECIATION OF THE MARKET PRICE OF
YOUR SHARES.
We have never paid any dividends on our common stock. Our board of
directors does not intend to declare any dividends in the foreseeable future,
but intends to retain all earnings, if any, for use in our business operations.
As a result, the return on your investment in Xybernaut will depend upon any
appreciation in the market price of the common stock. The holders of common
stock are entitled to receive dividends when, as and if declared by the board of
directors out of funds legally available for dividend payments. The payment of
dividends, if any, in the future is within the discretion of our board of
directors and will depend upon our earnings, capital requirements and financial
condition, and other relevant factors.
ACQUISITION AND INTEGRATION OF XYBERNAUT SOLUTIONS, INC.
On April 7, 2000, we completed the acquisition of Xybernaut Solutions,
Inc. (formerly Selfware, Inc.), a Virginia Corporation, through an exchange of
stock. Xybernaut Solutions provides software and services and has approximately
30 full-time employees. Revenues for Xybernaut Solutions for the year ended
December 31, 1999 were approximately $5.0 million, which were substantially
greater than the $3.3 million of revenue for our company during that period.
In order to achieve the expected benefits of our acquisition of
Xybernaut Solutions, we must successfully combine the two businesses. We may not
be able to combine the technologies and operations quickly and smoothly. In the
event that our combination with Xybernaut Solutions does not go smoothly,
serious harm to our business, financial condition and prospects may result.
Combining the two businesses will entail significant diversion of our
management's time and attention. In addition, we may be required to spend
additional time or money on combination issues that would otherwise have been
spent on developing our business and services or other matters.
-4-
<PAGE>
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RISKS WHICH MAY DILUTE THE VALUE OF YOUR XYBERNAUT
SHARES OR LIMIT THE EFFECT OF THEIR VOTING POWER
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THE PRICE OF OUR COMMON STOCK IS HIGHLY VOLATILE.
The price of our common stock is highly volatile. During the period
from January 1, 1999 to December 11, 2000 the closing price of our common stock
has ranged from a high of $23.75 to a low of $1.00. Following periods of
volatility in the market price of a company's securities, securities class
action litigation has often been instituted against such a company. If similar
litigation were instituted against us, it could result in substantial costs and
a diversion of our management's attention and resources, which could have an
adverse effect on our business. The volatile fluctuations of the market price
are based on (1) the number of shares in the market at the time as well as the
number of shares we may be required to issue in the future, compared to the
market demand for our shares; (2) our performance and meeting expectations of
our performance, including the development and commercialization of our products
and proposed products; (3) market conditions for technology companies in the
small capitalization sector; and (4) general economic and market conditions.
OUR EXECUTIVE OFFICERS, DIRECTORS AND PRINCIPAL STOCKHOLDERS, TOGETHER, MAY
EXERCISE CONTROL OVER ALL MATTERS SUBMITTED TO A VOTE OF STOCKHOLDERS.
As of December 11, 2000, our executive officers, directors and
principal stockholders beneficially owned, in the aggregate, approximately 15%
of our outstanding shares of common stock. These stockholders, if acting
together, may be able to effectively control most matters requiring approval by
our stockholders. The voting power of these stockholders under certain
circumstances could have the effect of delaying or preventing a change in
control of Xybernaut.
WE HAVE 11,298,480 SHARES OF OUR COMMON STOCK RESERVED FOR FUTURE ISSUANCES
WHICH CAN SUBSTANTIALLY DILUTE THE VALUE OF YOUR XYBERNAUT COMMON STOCK.
The issuance of reserved shares would dilute the equity interest of
existing stockholders and could have a significant adverse effect on the market
price of our common stock. As of December 11, 2000, we had 11,298,480 shares of
common stock reserved for possible future issuances upon conversion of
outstanding options and warrants. These options and warrants are convertible
into or exercisable for shares of common stock at prices that may represent
discounts from future market prices of the common stock. The exercise of these
options or warrants could result in substantial dilution to existing holders of
common stock. The sale of the common stock acquired at a discount could have a
negative impact on the trading price of the common stock and could increase the
volatility in the trading price of the common stock. See the section entitled
"Dilution" for a summary of the number of shares which could be issued upon
conversion of the outstanding preferred stock at various market prices.
In addition, we may seek additional financing which may result in the
issuance of additional shares of our capital stock and/or rights to acquire
additional shares of our capital stock. Those additional issuances of capital
would result in a reduction of your percentage interest in Xybernaut.
-5-
<PAGE>
ANTI-TAKEOVER MEASURES IN OUR CERTIFICATE OF INCORPORATION COULD ADVERSELY
AFFECT THE VOTING POWER OF THE HOLDERS OF THE COMMON STOCK.
Our certificate of incorporation authorizes anti-takeover measures such
as the authority to issue "blank check" preferred stock and the staggered terms
of the members of our board of directors. Those measures could have the effect
of delaying, deterring or preventing a change in control without any action by
the shareholders. In addition, issuance of preferred stock, without shareholder
approval, on those terms as the board of directors may determine, could
adversely affect the voting power of the holders of the common stock, including
the loss of voting control to others. See "Description of Securities."
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements which
involve substantial risks and uncertainties. These forward-looking statements
can generally be identified because the context of the statement includes words
such as "may," "will," "except," "anticipate," "intend," "estimate," "continue,"
"believe," or other similar words. Similarly, statements that describe our
future plans, objectives and goals are also forward-looking statements. Our
factual results, performance or achievements could differ materially from those
expressed or implied in these forward-looking statements as a result of certain
factors, including those listed in "Risk Factors" and elsewhere in this
prospectus.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
over the Internet at the SEC's Website at "http://www.sec.gov."
We have filed with the SEC a registration statement on Form S-3 to
register the shares being offered. This prospectus is part of that registration
statement and, as permitted by the SEC's rules, does not contain all the
information included in the registration statement. For further information with
respect to us and our common stock, you should refer to the registration
statement and to the exhibits and schedules filed as part of the registration
statement, as well as the documents discussed below.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update or supersede this information.
This prospectus may contain summaries of contracts or other documents.
Because they are summaries, they will not contain all of the information that
may be important to you. If you would like complete information about a contract
or other document, you should read the copy filed as an exhibit to the
registration statement or incorporated in the registration statement by
reference.
-6-
<PAGE>
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 (File No. 0-19041) until all of the shares
are sold:
o Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999;
o Quarterly Reports on Form 10-Q for the periods ended March 31,
2000, June 30, 2000 and September 30, 2000;
o Current Report on Form 8-K dated April 7, 2000;
o Current Report on Form 8-K dated November 15, 2000; and
o The description of our common stock contained in the
registration statement on Form 8-A filed on July 15, 1996
under the Exchange Act (File No. 0-15086), including all
amendments or reports filed for the purpose of updating that
description.
You may request a copy of these filings, at no cost, by writing to us
at 12701 Fair Lakes Circle, Suite 550, Fairfax, Virginia 22033, (703) 631-6925,
Attention: John F. Moynahan or by e-mail at [email protected].
You can review and copy the registration statement, its exhibits and
schedules, as well as the documents listed below, at the public reference
facilities maintained by the SEC as described above. The registration statement,
including its exhibits and schedules, are also available on the SEC's web site.
USE OF PROCEEDS
The selling stockholder is selling all of the shares covered by this
prospectus for its own accounts. Accordingly, we will not receive any proceeds
from the resale of the shares.
We will receive proceeds, if any, from the exercise of warrants. We
will use those proceeds, if any, for working capital and general corporate
purposes.
We will bear the expenses relating to this registration, other than
discounts and commissions, which will be paid by the selling stockholders.
DILUTION
As of December 11, 2000, we had issued and outstanding 45,008,119
shares of common stock. At that date, there were an additional 11,298,480 shares
of common stock reserved for possible future issuances as follows:
o options to purchase 4,783,543 shares at an exercise price
between $1.37 and $16.56 per share. We have registered the
shares issuable upon exercise of the options under the
Securities Act;
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<PAGE>
o warrants to purchase 3,514,937 shares at a price between $2.00
and $18.00 per share. Of the 3,514,937 shares, we have
registered a total of 222,500 shares issuable upon exercise of
these warrants. This prospectus covers an additional 3,224,937
shares of common stock issuable upon exercise of warrants,
which shares will be freely tradable without restriction
(subject to prospectus delivery requirements) on the effective
date of the registration statement. The remaining 67,500
shares will be deemed to be "restricted securities" when
issued; and
o 3,000,0000 shares issuable upon exercise of options under the
2000 Stock Incentive Plan which have not been granted as of
December 11, 2000. We have not registered the shares issuable
upon exercise of the options under the Securities Act but it
is our intention to do so in the future. Until such time as we
have registered the shares issuable under these option, these
shares will be deemed "restricted securities" when issued.
The shares which will be deemed "restricted securities" may be sold
under Rule 144. Rule 144 permits sales of "restricted securities" by any person,
whether or not an affiliate of the issuer, after one year. At that time, sales
can be made subject to the Rule's volume and other limitations and after two
years by non-affiliates without adhering to Rule 144's volume or other
limitations. In general, an "affiliate" is a person with the power to manage and
direct our policies. The SEC has stated that, generally, executive officers and
directors of an entity are deemed affiliates of the issuing entity.
-8-
<PAGE>
SELLING STOCKHOLDERS
This prospectus covers the resale by the selling stockholders of up to
9,619,367 shares of our common stock.
The following table lists the selling stockholder and certain
information regarding the ownership by such selling stockholder of shares of our
common stock as of December 11, 2000, and as adjusted to reflect the sale of the
shares. Information concerning the selling stockholder, its pledgees, donees and
other non-sale transferees who may become selling stockholders, may change from
time to time. To the extent the selling stockholder or any of its
representatives advise us of such changes, we will report those changes in a
prospectus supplement to the extent required. See "Plan of Distribution."
The registration of the following shares through this registration
statement allows the following entity to sell its share holdings in the future
on the open market and is not necessarily an indication of intent to sell the
shares.
<TABLE>
<CAPTION>
Percentage ----------------------
Shares of Common of Common Shares of Common Shares of Common
Stock Owned Prior to Stock Owned Stock to be Stock Owned
Offering Prior to Sold(1) after Offering (1)(2)
the Offering ----------------------
Number Percent
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<S> <C> <C> <C> <C> <C> <C>
Archway Holdings Limited 837,583 (3) 1.9% 837,583 (3) 0
*
Ady Wiernick, as trustee for Capella Computers 7,700 * 7,700 0
Ltd. *
NWCS LLC 40,000 (4) * 40,000 (4) 0 *
The Wall Street Group, Inc. 31,371 (5) * 31,371 (5) 0 *
Pequot Scout Fund, LP 630,000 (6) 1.4% 630,000 (6) 0 *
Pequot Navigator Offshore Fund, Inc. 70,000 (7) * 70,000 (7) 0 *
Cranshire Capital, L.P. 1,449,400 (8) 3.2% 1,400,000 (8) 49,400 *
Euram Cap Strat. "A" Fund Limited 295,600 (9) * 280,000 (9) 15,600 *
Photon Fund Ltd. 763,636 (10) 1.7% 763,636 (10) 0 *
The dotCom Fund, LLC 101,818 (11) * 101,818 (11) 0 *
TCMP3 Partners 101,920 (12) * 101,920 (12) 0 *
Deephaven Private Placement Trading, Ltd. 509,090 (13) 1.1% 509,090 (13) 0 *
Crescent International Ltd. 445,455 (14) 1.0% 445,455 (14) 0 *
Crestview Capital Fund, LP 203,127 (15) * 203,127 (15) 0 *
RAM Trading Ltd. 580,290 (13) 1.1% 509,090 (13) 71,200 *
Atlas Capital, L.P. 28,509 (16) * 28,509 (16) 0 *
Presidio Partners 576,417 (17) 1.3% 576,417 (17) 0 *
Geary Partners 285,090 (18) * 285,090 (18) 0 *
Riggs Partners, LLC 53,480 (19) * 53,480 (19) 0 *
Knott Partners, L.P. 351,909 (20) * 351,909 (20) 0 *
Matterhorn Offshore Fund Ltd. 77,512 (21) * 77,512 (21) 0 *
The Common Fund 140,050 (22) * 140,050 (22) 0 *
RoyCap Inc. 140,000 (23) * 140,000 (23) 0 *
Kodiak Opportunity Offshore, Ltd. 184,038 (24) * 140,700 (24) 43,338 *
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Percentage ----------------------
Shares of Common of Common Shares of Common Shares of Common
Stock Owned Prior to Stock Owned Stock to be Stock Owned
Offering Prior to Sold(1) after Offering (1)(2)
the Offering ----------------------
Number Percent
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<S> <C> <C> <C> <C> <C> <C>
Kodiak Opportunity 3C7, L.P. 50,205 (25) * 38,381 (25) 11,824 *
Kodiak Opportunity, L.P. 98,677 (26) * 75,439 (26) 23,238 *
Precept Capital Master Fund, G.P. 215,955 (27) * 151,455 (27) 64,500 *
Balmore Funds, S.A. 254,545 (28) * 254,545 (28) 0 *
Austost Anstalt Schaan 254,545 (28) * 254,545 (28) 0 *
Herbert Place LLC 254,545 (28) * 254,545 (28) 0 *
Vertical Ventures LLC 866,000 (29) 1.9% 866,000 (29) 0 *
</TABLE>
* Less than 1%
--------------
(1) Assumes that the selling stockholder will exercise all of its warrants, if
any, into common stock.
(2) Assumes all of the securities offered hereby will be sold by the selling
stockholder.
(3) Includes 119,880 shares of common stock issuable upon exercise of warrants.
(4) Represents shares of common stock issued to International Business
Solutions, an affiliate of NWCS LLC, as compensation for marketing related
services.
(5) Includes 31,371 shares of common stock issued in lieu of cash as
compensation for services performed for the period between June 30, 1999 and
November 30, 2000.
(6) Includes 180,000 shares of common stock issuable upon exercise of warrants.
(7) Includes 20,000 shares of common stock issuable upon exercise of warrants.
(8) Includes 400,000 shares of common stock issuable upon exercise of warrants.
(9) Includes 80,000 shares of common stock issuable upon exercise of warrants.
(10)Includes 218,182 shares of common stock issuable upon exercise of warrants.
(11)Includes 29,091 shares of common stock issuable upon exercise of warrants.
(12)Includes 29,120 shares of common stock issuable upon exercise of warrants.
(13)Includes 145,454 shares of common stock issuable upon exercise of warrants.
(14)Includes 127,273 shares of common stock issuable upon exercise of warrants.
(15)Includes 58,036 shares of common stock issuable upon exercise of warrants.
(16)Includes 8,145 shares of common stock issuable upon exercise of warrants.
(17)Includes 164,690 shares of common stock issuable upon exercise of warrants.
(18)Includes 81,454 shares of common stock issuable upon exercise of warrants.
(19)Includes 15,280 shares of common stock issuable upon exercise of warrants.
(20)Includes 100,545 shares of common stock issuable upon exercise of warrants.
(21)Includes 22,145 shares of common stock issuable upon exercise of warrants.
(22)Includes 40,014 shares of common stock issuable upon exercise of warrants.
-10-
<PAGE>
(23)Includes 40,000 shares of common stock issuable upon exercise of warrants.
(24)Includes 40,200 shares of common stock issuable upon exercise of warrants.
(25)Includes 10,966 shares of common stock issuable upon exercise of warrants.
(26)Includes 21,554 shares of common stock issuable upon exercise of warrants.
(27)Includes 43,273 shares of common stock issuable upon exercise of warrants.
(28)Includes 72,727 shares of common stock issuable upon exercise of warrants.
(29)Represents shares of common stock issuable upon exercise of warrants.
The common stock have the material rights and obligations discussed
below and under the section entitled "Description of Securities." We have filed
the agreements relating to these rights and obligations with the SEC. We urge
you to read them in their entirety.
Archway Holdings Limited acquired its shares of common stock and
warrants exercisable into common stock in a private placement transaction
entered into on September 29, 2000. Under the terms of the common stock purchase
agreement between Archway Holdings Limited and us, we agreed to sell 717,703
shares of our common stock at approximately $4.18 per share, representing a 24%
discount to the lowest bid price of the common stock on the day immediately
preceding the transaction, for gross proceeds of $3,000,000. We also issued
warrants to purchase 119,880 shares of our common stock at $6.25 per share. The
warrants are exercisable for a period of 5 years from the date of issuance and
may be called by us if the market price of our common stock exceeds $10.00 per
share for any 10 trading days during a 15 trading day period. In connection with
our sale of the common stock, we agreed to use our best efforts to file a
registration statement to register for resale the shares of common stock,
including the shares of common stock issuable upon exercise of the warrants.
Capella Computers Ltd. acquired its 7,700 shares of common stock as
partial payment for software products and marketing services being provided by
Capella pursuant to the Agreement dated as of May 1, 2000.
NWCS, LLC acquired its 40,000 shares of common stock as payment for
marketing related services to be provided by International Business Solutions,
an affiliate of NWCS, LLC and one of our customers, for the promotion of our
products between November 2000 and June 2001.
The Wall Street Group, Inc. provided financial public relations
services to us in the amount of $93,139 for the period between June 30, 1999 and
November 30, 2000. The 31,371 shares of common stock were issued to The Wall
Street Group, Inc. in lieu of a cash payment for the services based on a price
per share equal to $2.969, the market price of our common stock on the day
immediately preceding the date of our agreement.
The remaining selling stockholders acquired their shares of common
stock in a private placement transaction which closed on November 15, 2000.
Under the terms of the Common Stock and Warrant Purchase Agreement by and among
those selling stockholders and us, we agreed to sell 5,597,656 shares of common
stock at $2.75 per share, representing an approximate 21% discount to the
closing price on the day immediately preceding the closing date, for gross
proceeds of $15,393,554. In connection therewith, we also issued warrants to
purchase in the aggregate 2,239,057 shares of our common stock. The warrants
have an exercise price of $4.33, are exercisable
-11-
<PAGE>
for a period of 4 years from the date of issuance and have adjustment provisions
for standard dilution events including stock splits, stock dividends and similar
transactions. We may call (i) up to 50% of the warrants if the common stock
trades at a price equal to or greater than $7.50 per share for 10 consecutive
trading days and (ii) the remaining 50% of the warrants if the common stock
trades at a price equal to or greater than $15.00 per share for 10 consecutive
trading days.
In connection with our sale of common stock pursuant to the Common
Stock and Warrant Purchase Agreement, we entered into a registration rights
agreement pursuant to which, among other things, we agreed to use our best
efforts to file a registration statement to register for resale the shares of
common stock, including the shares of common stock issuable upon exercise of the
warrants, by December 15, 2000 and have such registration statement declared
effective by January 15, 2001. If the registration statement is not declared
effective by January 15, 2001, we will have to pay to each of the holders
liquidated damages in an amount equal to 2% of the purchase price paid by that
holder for the shares of common stock purchased pursuant to the Common Stock and
Warrant Purchase Agreement for each 30 day period after January 15, 2001 until
the registration statement is declared effective. Payment of the liquidated
damages will be either in cash or in shares of common stock at the option of the
holder.
In connection with our sale of common stock pursuant to the Common
Stock and Warrant Purchase Agreement, we paid a fee to Vertical Ventures LLC in
cash of an amount equal to $1,006,848.59 and issued warrants to purchase up to
in the aggregate 866,000 shares of common stock. These warrants have the same
terms as the warrants issued to the investors pursuant to the Common Stock and
Warrant Purchase Agreement. The shares of common stock issuable upon exercise of
these warrants are being registered herein.
Other than as indicated above and being investors in private placements
and other financings for our common stock, the selling stockholders are not
affiliated with us and have not had any material relationship with us during the
past three years.
DESCRIPTION OF SECURITIES
ANTI-TAKEOVER CONSIDERATIONS.
Our certificate of incorporation authorizes the issuance of up to
6,000,000 shares of $0.01 par value preferred stock. The issuance of preferred
stock with such rights could have the effect of limiting stockholder
participation in certain transactions such as mergers or tender offers and could
discourage or prevent a change in our management. We have no present intention
to issue any additional preferred stock.
We have a classified or staggered board of directors which limits an
outsider's ability to effect a rapid change of control of our board. In
addition, at the 1998 Annual Meeting of Stockholders held on September 24, 1998,
our shareholders approved measures to amend our certificate of incorporation and
by-laws, where applicable, to:
o implement an advance notice procedure for the submission of
director nominations and other business to be considered at
annual meetings of stockholders;
-12-
<PAGE>
o permit only the President, the Vice Chairman of our board, the
Secretary or our board of directors to call special meetings
of stockholders and to limit the business permitted to be
conducted at such meetings to be brought before the meetings
by or at the direction of our board;
o provide that a member of our board of directors may only be
removed for cause by an affirmative vote of holders of at
least 66 2/3% of the voting power of the then outstanding
shares entitled to vote generally in the election of directors
voting together as a single class;
o fix the size of our board of directors at a maximum of twelve
directors, with the authorized number of directors set at ten,
and our board of directors having the sole power and authority
to increase or decrease the number of directors acting by an
affirmative vote of at least a majority of the total number of
authorized directors most recently fixed by our board of
directors;
o provide that any vacancy on the board may be filled for the
unexpired term (or for a new term in the case of an increase
in the size of the board) only by an affirmative vote of at
least a majority of the remaining directors then in office
even if less than a quorum, or by the sole remaining director;
o eliminate stockholder action by written consent;
o require the approval of holders of 80% of the then outstanding
voting stock and/or the approval of 66 2/3% of the directors
for certain corporate transactions; and
o require an affirmative vote of 66 2/3% of the voting stock in
order to amend or repeal any adopted amendments to the
certificate of incorporation and bylaws adopted at the
meeting.
Those measures combined with the ability of our board of directors to
issue "blank check" preferred stock and the staggered terms of the members of
our board of directors, could have the effect of delaying, deterring or
preventing a change in control without any further action by the stockholders.
In addition, the issuance of preferred stock, without stockholder approval, on
such terms as our board may determine, could adversely affect the voting power
of the holders of the common stock, including the loss of voting control to
others.
TRANSFER AGENT AND REGISTRAR
Continental Stock Transfer & Trust Company is our Transfer Agent and
Registrar for our common stock.
PLAN OF DISTRIBUTION
The selling stockholder and its pledgees, donees, transferees and other
subsequent owners, may offer its shares at various times in one or more of the
following transactions:
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<PAGE>
o on any U.S. securities exchange on which our common stock may
be listed at the time of sale
o in the over-the-counter market
o in privately negotiated transactions
o in connection with short sales; or
o in a combination of any of the above transactions.
The selling stockholder may offer its shares of common stock at
prevailing market prices at the time of sale, at prices related to those
prevailing market prices, at negotiated prices or at fixed prices.
The selling stockholder may also sell the shares under Rule 144 instead
of under this prospectus, if Rule 144 is available for those sales.
The transactions in the shares covered by this prospectus may be
effected by one or more of the following methods:
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
o purchases by a broker or dealer as principal, and the resale
by that broker or dealer for its account under this
prospectus, including resale to another broker or dealer;
o block trades in which the broker or dealer will attempt to
sell the shares as agent but may position and resell a portion
of the block as principal in order to facilitate the
transaction; or
o negotiated transactions between selling stockholders and
purchasers without a broker or dealer.
The selling stockholder and any broker-dealers or other persons acting
on the behalf of parties that participate in the distribution of the shares may
be deemed to be underwriters. Any commissions or profits they receive on the
resale of the shares may be deemed to be underwriting discounts and commissions
under the Securities Act.
As of the date of this prospectus, we are not aware of any agreement,
arrangement or understanding between any broker or dealer and any of the selling
stockholders with respect to the offer or sale of the shares under this
prospectus.
We have advised the selling stockholder that during the time it is
engaged in distributing shares covered by this prospectus, it must comply with
the requirements of the Securities Act and Rule 10b-5 and Regulation M under the
Exchange Act. Under those rules and regulations, it:
o may not engage in any stabilization activity in connection
with our securities;
o must furnish each broker which offers common stock covered by
this prospectus with the number of copies of this prospectus
which are required by each broker; and
o may not bid for or purchase any of our securities or attempt
to induce any person to purchase any of our securities other
than as permitted under the Exchange Act.
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<PAGE>
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 145 of the Delaware General Corporation Law allows companies to
indemnify their directors and officers against expenses, judgments, fines and
amounts paid in settlement under the conditions and limitations described in the
law. Our certificate of incorporation authorizes us to indemnify our officers,
directors and other agent to the fullest extent permitted under Delaware law.
Our certificate of incorporation provides that a director is not
personally liable for monetary damages to us or our stockholders for breach of
his or her fiduciary duties as a director. A director will be held liable for a
breach of his or her duty of loyalty to us or our stockholders, his or her
intentional misconduct or willful violation of law, actions or in actions not in
good faith, an unlawful stock purchase or payment of a dividend under Delaware
law, or transactions from which the director derives an improper personal
benefit. This limitation of liability does not affect the availability of
equitable remedies against the director including injunctive relief or
rescission.
We have purchased a directors and officers liability and reimbursement
policy that covers liabilities of our directors and officers arising out of
claims based upon acts or omissions in their capacities as directors and
officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
Parker Chapin LLP, New York, New York, a stockholder of our company,
will pass upon the validity of the securities offered hereby. Martin Eric
Weisberg, Esq., a member of the firm, is our Secretary, one of our Directors,
and a stockholder in our company.
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<PAGE>
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-KSB/A for the years ended December 31,
1999 and 1998, have been so incorporated in reliance on the report of Grant
Thornton LLP, independent certified public accountants, given on the authority
of said firm as experts in auditing and accounting.
-16-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
========================================================= ======================================================
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER
PERSON TO GIVE ANY INFORMATION OR TO REPRESENT ANYTHING OTHER
THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE
OFFER CONTAINED HEREIN, AND, IF GIVEN OR MADE, YOU SHOULD NOT
RELY UPON SUCH INFORMATION OR REPRESENTATIONS AS HAVING BEEN
AUTHORIZED BY XYBERNAUT CORPORATION. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER 9,619,367
THAN THOSE TO WHICH IT RELATES OR AN OFFER TO SELL, OR
A SOLICITATION OF AN OFFER TO BUY, THOSE TO WHICH IT
RELATES IN ANY STATE TO ANY PERSON TO WHOM IT IS NOT SHARES OF COMMON STOCK
LAWFUL TO MAKE SUCH OFFER IN SUCH STATE. THE DELIVERY
OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME AFTER THE
DATE OF THIS PROSPECTUS.
XYBERNAUT CORPORATION
TABLE OF CONTENTS
Page
----
Risk Factors.........................................2
Where You Can Find More
Information About Us.........................6
Use of Proceeds......................................7
Dilution.............................................7
Selling Stockholders ................................9
Plan of Distribution ...............................13
Indemnification for Securities
Act Liabilities.............................15 ------------
Legal Matters.......................................15
Experts ............................................16 PROSPECTUS
------------
_________________________, 2000
========================================================= ======================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which will
be paid by us in connection with the issuance and distribution of the
securities being registered on this registration statement. The selling
stockholders will not incur any of the expenses set forth below. All
amounts shown are estimates.
Filing fee for registration statement........ $8,891.81
Legal fees and expenses...................... $10,000.00
Accounting expenses.......................... $5,000.00
---------
Total........................................ $23,891.81
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in general, that a corporation
incorporated under the laws of the State of Delaware, such as the
registrant, may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than a derivative action by or in the
right of the corporation) by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In the case of a derivative action, a Delaware
corporation may indemnify any such person against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification will be made in respect of
any claim, issue or matter as to which such person will have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery of the State of Delaware or any other court
in which such action was brought determines such person is fairly and
reasonably entitled to indemnity for such expenses.
Our certificate of incorporation provides that directors will not be
personally liable for monetary damages to us or our stockholders for breach of
fiduciary duty as a director, except for liability resulting from a breach of
the director's duty of loyalty to us or our stockholders, intentional misconduct
or willful violation of law, actions or inactions not in good faith, an unlawful
stock
<PAGE>
purchase or payment of a dividend under Delaware law, or transactions from
which the director derives improper personal benefit. Such limitation of
liability does not affect the availability of equitable remedies such as
injunctive relief or rescission. Our certificate of incorporation also
authorizes us to indemnify our officers, directors and other agents, by bylaws,
agreements or otherwise, to the fullest extent permitted under Delaware law. We
have entered into an indemnification agreement with each of our directors and
officers which may, in some cases, be broader than the specific indemnification
provisions contained in our certificate of incorporation or as otherwise
permitted under Delaware law. Each indemnification agreement may require us,
among other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as a director or
officer, against liabilities arising from willful misconduct of a culpable
nature, and to obtain directors' and officers' liability insurance if available
on reasonable terms.
We maintain a directors and officers liability policy with Genesis
Insurance Company that contains a limit of liability of $3,000,000 per policy
year.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
NUMBER DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Form of Warrant issued to Archway Holdings Limited
4.2 Form of Warrant issued in connection with the November 2000 private placement
4.3 Form of Common Stock Purchase Agreement dated as of September 29, 2000
4.4 Form of Common Stock and Warrant Purchase Agreement dated as of November 2000
4.5 Form of Registration Rights Agreement in connection with the November 2000 private placement
5.1 Opinion of Parker Chapin LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Parker Chapin LLP (included in their opinion filed as Exhibit 5.1)
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
II-19
<PAGE>
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of the issue.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
II-20
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fairfax, Commonwealth of Virginia on December 15,
2000.
XYBERNAUT CORPORATION
By: /s/ Edward G. Newman
--------------------------------
Edward G. Newman
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes Edward G. Newman and Steven A. Newman, each acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Form S-3 and to
file the same with exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or is substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities indicated on December 14, 2000.
<TABLE>
<CAPTION>
<S> <C>
/s/ Edward G. Newman Chairman of the Board and Chief Executive
------------------------------------------------------- Officer
Edward G. Newman
/s/ Tod R. Rehm
----------------------------------------------------- President and Chief Operating Officer
Tod R. Rehm
/s/ Steven A. Newman Executive Vice President and Vice Chairman
----------------------------------------------------- of the Board
Steven A. Newman
II-21
<PAGE>
/s/ Kazuyuki Toyosato Executive Vice President
----------------------------------------------------- Asian Operations and Director
Kazuyuki Toyosato
/s/ John F. Moynahan Senior Vice President and
----------------------------------------------------- Chief Financial Officer
John F. Moynahan
/s/ Martin Eric Weisberg
----------------------------------------------------- Director
Martin Eric Weisberg
/s/ Lt. Gen. Harry E. Soyster Director
-----------------------------------------------------
Lt. Gen. Harry E. Soyster
/s/ James J. Ralabate
----------------------------------------------------- Director
James J. Ralabate
/s/ George Allen
----------------------------------------------------- Director
George Allen
/s/ Keith P. Hicks
----------------------------------------------------- Director
Keith P. Hicks
/s/ Phillip E. Pearce
----------------------------------------------------- Director
Phillip E. Pearce
/s/ Eugene J. Amobi
----------------------------------------------------- Director
Eugene J. Amobi
/s/ Edwin Vogt
----------------------------------------------------- Director
Edwin Vogt
</TABLE>
II-22
<PAGE>
SECURITIES AND
EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
-------------
EXHIBITS TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
XYBERNAUT CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED
IN ITS CHARTER)
DECEMBER __, 2000
E-1
<PAGE>
NUMBER DESCRIPTION OF EXHIBIT
<TABLE>
<CAPTION>
<S> <C>
4.1 Form of Warrant issued to Archway Holdings Limited
4.2 Form of Warrant issued in connection with the November 2000 private placement
4.3 Form of Common Stock Purchase Agreement dated as of September 29, 2000
4.4 Form of Common Stock and Warrant Purchase Agreement in connection with the November 2000
private placement
4.5 Form of Registration Rights Agreement in connection with the November 2000 private placement
5.1 Opinion of Parker Chapin LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Parker Chapin LLP (included in their opinion filed as Exhibit 5.1)
</TABLE>
E-2
