AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1997
REGISTRATION NO. 333-18489
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
PRE-EFFECTIVE AMENDMENT NO. 3 TO
FORM S-1 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------
NEXAR TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 04-3268334
(STATE OR OTHER JURISDICTION 3571 (I.R.S.
OF INCORPORATION OR (PRIMARY STANDARD INDUSTRIAL EMPLOYER
ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION
NUMBER)
----------------
182 TURNPIKE ROAD, WESTBOROUGH, MASSACHUSETTS 01581 (508) 836-8700
(ADDRESS INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ALBERT J. AGBAY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
NEXAR TECHNOLOGIES, INC.
182 TURNPIKE ROAD
WESTBOROUGH, MASSACHUSETTS 01581
(508) 836-8700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
STEPHEN K. FOGG, ESQ.
WILLIAM C. ROGERS, ESQ. MITCHELL C. LITTMAN, ESQ.
CHOATE, HALL & STEWART LITTMAN KROOKS ROTH & BALL P.C.
Exchange Place, 53 State Street 655 Third Avenue
Boston, Massachusetts 02109 New York, New York 10017
(617) 248-5000 (212) 490-2020
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]____________ .
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]_______________.
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
================================================================================
EXPLANATORY NOTE
This Registration Statement contains two forms of prospectus: (i) one to be
used in connection with an initial public offering of 2,500,000 shares of Common
Stock by the Company (the "Company Prospectus") and (ii) one to be used in
connection with the secondary sale from time to time of up to 6,700,000 shares
of Common Stock by certain Selling Security Holders (the "Selling Security
Holders' Prospectus"). The Company Prospectus and the Selling Security Holders'
Prospectus will be identical in all respects except for the alternate pages for
the Selling Security Holders' Prospectus which are included herein after the
final page of the Company Prospectus and are labelled "Alternate Page for
Selling Security Holders' Prospectus." Final forms of the Prospectus will be
filed with the Securities and Exchange Commission under Rule 424(b).
Information contained herein is subject to completion or amendment. A Securities
and Exchange Commission. These securities may not be sold nor becomes effective.
This prospectus shall not constitute an offer to sell or the in any State in
which such offer, solicitation or sale would be unlawful prior registration
statement relating to these securities has been filed with the may offers to buy
be accepted prior to the time the registration statement solicitation of an
offer to buy nor shall there be any sale of these securities to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED MARCH 5, 1997
PROSPECTUS
2,500,000 SHARES
[LOGO]
COMMON STOCK
All of the 2,500,000 shares of Common Stock of Nexar Technologies, Inc.
("NEXAR" or the "Company") offered hereby (the "Offering") are being sold by the
Company, an indirect subsidiary of Palomar Medical Technologies, Inc.
("Palomar"). Following the Offering, Palomar will beneficially own approximately
67.4% of the Common Stock (assuming no exercise of the Underwriters'
over-allotment option), including 1,200,000 shares of the Common Stock subject
to a contingent repurchase right of the Company at a nominal price per share in
the event that the Company does not achieve certain performance milestones set
forth in an agreement between the Company and Palomar, and shares of Common
Stock which Palomar may acquire upon conversion of shares of Convertible
Preferred Stock. See "Certain Transactions" and "Description of Capital Stock."
In addition to the shares offered hereby, 6,700,000 shares of Common Stock
are being registered for sale by Palomar and three institutional investors from
time-to-time in the open market. See "Shares Eligible for Resale." Such
transactions are being registered by separate prospectus concurrently with the
Offering. The Company will not receive any proceeds from any sale of such
shares. Palomar has advised the Underwriters' representatives that it has no
current intention to sell any of its shares in the foreseeable future, but it is
not precluded from doing so in its discretion. See "Risk Factors -- Substantial
Number of Registered Shares Eligible for Resale."
Prior to the Offering, there has not been a public market for the Common
Stock of the Company. It is currently estimated that the initial public offering
price will be between $11.00 and $13.00 per share. See "Underwriting" for
information relating to the factors to be considered in determining the initial
public offering price. Application has been made to have the Common Stock quoted
on the Nasdaq National Market under the symbol "NEXR."
----------------
SEE "RISK FACTORS" BEGINNING ON PAGE 6 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
----------------
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.
<TABLE>
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UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC COMMISSIONS(1) COMPANY(2)
<S> <C> <C> <C>
Per Share ..................... $ $ $
Total(3) ...................... $ $ $
</TABLE>
================================================================================
(1) Does not reflect additional compensation to Sands Brothers & Co., Ltd.,
the lead representative of the Underwriters, payable by the Company in the
form of warrants entitling Sands Brothers & Co., Ltd. to purchase up to
250,000 shares of Common Stock during the four-year period commencing on
the first anniversary date of this Prospectus at an exercise price equal
to 165% of the initial public offering price (the "Warrants") and a
non-accountable expense allowance equal to 2% of the aggregate price to
the public of the shares of Common Stock offered hereby. For information
regarding indemnification of the Underwriters, see "Underwriting."
(2) Before deducting expenses estimated at $1,000,000 payable by the Company.
(3) The Company has granted to the Underwriters a 45-day option to purchase up
to 375,000 additional shares of Common Stock solely to cover
over-allotments, if any. See "Underwriting." If such option is exercised
in full, the total Price to Public, Underwriting Discounts and
Commissions, and Proceeds to Company will be $ , $ and $ , respectively.
The shares of Common Stock are being offered by the several Underwriters
named herein, subject to prior sale, when, as and if accepted by them, and
subject to certain conditions. It is expected that certificates for the shares
of Common Stock offered hereby will be available for delivery on or about ,
1997, at the office of Sands Brothers & Co., Ltd., 90 Park Avenue, New York, New
York 10016.
SANDS BROTHERS & CO., LTD. CREDIT LYONNAIS SECURITIES (USA) INC.
, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
NEXAR
FOR PEOPLE WHO BUY PCS. AND FOR PEOPLE WHO SELL THEM.
[PHOTOGRAPH OF NEXAR PC WITH SIDE PANELS BEING REMOVED)
Every computer end-user market is concerned about obsolescence. Corporate
America and small businesses. The government and the educational system. Small
and home offices. This is what makes NEXAR personal computers so refreshing --
they forestall system obsolescence.
NEXAR offers PCs to its resellers without the CPU, RAM, cache and hard drive
pre-installed, allowing them to configure the PC with their customers' choice of
components. Unlike other upgradeable or modular computers, NEXAR PCs are not
based on a proprietary architecture. Industry-standard components can be used.
The customer, not the manufacturer's technician, is in control of enhancements
to the system. Upgrading can be done in a matter of minutes. Without any tools.
Without training. Without the help of a technician. When more performance is
needed, only specific components need upgrading. Not the whole PC.
The removable hard drive is a feature that's particularly desirable where
security is an issue, or when a user wants portable data to go. It also makes
possible the use of multiple operating systems on a single PC.
NEXAR resellers can precisely meet their customer's technical and budgetary
requirements without exposing themselves to inventory depreciation caused by the
rapid advance of technology coupled with frequent price declines. Today's best
technology at today's best price.
[NEXAR LOGO)
IN CONNECTION WITH THE OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF
THE COMPANY OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ NATIONAL
MARKET, IN THE OVER-THE-COUNTER MARKET, OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
NEXAR TECHNOLOGY
MAKES CUSTOM CONFIGURATIONS EASY!
[PHOTOGRAPH OF RIGHT SIDE OF NEXAR PC WITH SIDE PANEL REMOVED)
Snap off the right side panel of a NEXAR personal computer and uncover the
difference between a NEXAR PC and conventional models: direct access to the key
system defining components. A second side panel on the left side provides access
to expansion card slots.
NEXAR PCs are sold as high performance system platforms, usually shipped to
resellers fully configured except for the CPU, RAM, cache, and hard drive, all
of which can be installed by the reseller in minutes. No tools. No custom parts.
No special training.
This means that NEXAR resellers can offer a competitively priced,
custom-tailored, high-performance PC. Resellers save on labor and are less
exposed to the high costs of holding older inventory.
The new NEXAR 11 supports SDRAM, EDO, or FPM memory, pipeline burst cache,
EIDE or SCSI Hard Drives, concurrent PCI bus and Universal Serial Bus. All
industry standard components -- no proprietary parts.
NEXAR PCs support Pentium processors with MMX multi media extension
technology, while its ISA/PCI controller supports state-of-the-art video, fax,
network and sound cards. Today's PC, ready for tomorrow's technology.
2-A
NEXAR
Easy to customize now.
Easy to upgrade later.
NEXAR offers current and next-generation compatibility combined with an
innovative, patent-pending design which allows the CPU, RAM, and cache to be
accessed without technical assistance and without opening the entire chassis.
This means that the components which become obsolete the fastest can be easily
replaced. The result is an extended lifespan, lower cost of ownership and
investment protection.
* Configures and upgrades easily in seconds - no tools needed.
* CPU, cache and RAM are located at the outside of the cabinet, under a
removable side panel.
* A second removable side panel provides easy access to expansion card
slots.
* Slide-in slide-out hard drive caddy.
* Concurrent PCI bus and universal serial bus (USB).
* Supports 33,600 DSVD modem ISDN and video, fax, network and sound cards
for telephone and video conferencing.
* Upgradable to next-generation Intel Pentium and AMD chips with
MMX(TM).
* Upgradable to 128 MB SDRAM
[NEXAR LOGO)
2-B
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and the Consolidated Financial Statements, including the Notes
thereto, appearing elsewhere in this Prospectus.
THE COMPANY
Nexar Technologies, Inc. develops, manufactures and markets
high-performance, competitively-priced desktop personal computers (PCs) based on
patent-pending technologies. Unlike conventional PCs, NEXAR systems permit (i)
resellers to offer a custom-configured PC on demand, and (ii) end-users to
easily upgrade or switch important components of the PC to accommodate emerging
and future technologies resulting in a significant extension of the computer's
useful life. NEXAR sells a high-performance system which is typically shipped to
resellers without the key system defining components (microprocessor, memory and
hard drive), but which is otherwise fully configured. This approach:
* Enables the end-user, whether corporate or individual, to buy a system
configured exactly to that customer's technical and budgetary requirements
and, later, to easily upgrade the PC's key components with
industry-standard products.
* Enables the Company's channel resellers to reduce their exposure to
inventory depreciation caused by rapid advances in technology and frequent
price reductions of the key system components, which typically account for
more than 50% of the cost of a PC.
* Enables the Company's resellers to compete with direct marketers, such as
Dell Computer and Gateway 2000, because a NEXAR PC provides resellers with
the ability to promptly deliver a custom-configured, high-performance PC
at a competitive price.
* Enables the Company to maintain profit margins unaffected by the
forecasting risks borne by conventional PC manufacturers who operate
within a several-month-long cycle from (i) component procurement to (ii)
assembly to (iii) date-of-sale, all conducted in an environment of rapid
technological advances and frequent price reductions.
The Company's objective is to become the industry leader in designing and
marketing PCs with technology which enables resellers and end-users, in an easy
and cost-effective manner, to upgrade and transition the CPU and the other key
system defining components in accordance with the known and anticipated roadmaps
of various makers of fundamental and leading-edge PC technology. The Company
does not market its products directly to end-users, but instead distributes its
products through a growing network of international, national and regional
distributors, value-added and other resellers, original equipment manufacturers,
system integrators, computer superstores, direct response resellers, and
independent dealers.
The Company's current PCs are based on an industry-standard, open
architecture design, co-engineered by HCL Hewlett Packard Ltd., which allows the
central processing unit (CPU), random access memory (RAM), and cache memory to
be replaced by end-users without technical assistance and without opening the
entire chassis. The Company's current model accepts Intel Corporation's
Pentium(R) and compatible CPUs, including the recently released Pentium
processor with MMX multimedia extension technology. NEXAR PCs also include, as a
standard feature, a removable hard drive, permitting its replacement and the
further advantages of increased data portability and security, and the use of
multiple operating systems in a single PC.
NEXAR has developed and expects to soon market a new generation of PCs
featuring the Company's patent-pending Cross-Processor Architecture(tm) (NEXAR
XPA(tm)) in which any one of several state-of-the-art CPUs can be initially
included or later installed, including Intel's Pentium or Pentium Pro and
compatible CPUs. The NEXAR XPA technology is being designed to also accommodate
microprocessors based on other technologies, such as the Alpha CPU made by
Digital Equipment Corporation.
NEXAR is led by its Chairman and Chief Executive Officer, Albert J. Agbay,
who has more than twenty years experience at various computer companies,
including senior management positions at PC makers such as NEC, Panasonic and
Leading Edge.
3
THE OFFERING
Unless otherwise indicated herein, the information in this Prospectus (i)
has been adjusted to give effect to a 120-for-1 stock split of the Company's
common stock, $0.01 par value (the "Common Stock"), effected on December 18,
1996, (ii) gives effect to the conversion of $11,000,000 of indebtedness owed to
related parties into 1,900,000 shares of Common Stock upon closing of the
Offering, and (iii) assumes no exercise of the Underwriters' over-allotment
option. See "Description of Capital Stock," "Certain Transactions" and
"Underwriting."
Common Stock offered by the Company.............. 2,500,000 shares
Common Stock to be outstanding
after the Offering......................... 9,200,000 shares(1)
Use of proceeds ............................. For repayment of $8,249,549 of
indebtedness to related
parties and general
corporate purposes,
including working capital,
product development and
capital expenditures. See
"Use of Proceeds."
Proposed Nasdaq National Market symbol ....... NEXR
- ------------
(1) Based on the number of shares of Common Stock outstanding on December 31,
1996. Includes 1,200,000 shares of Common Stock to be held by Palomar
subject to a contingent repurchase right of the Company at a nominal price
per share in the event the Company does not achieve certain performance
milestones. Such 1,200,000 shares are not includable in the computation of
earnings per common and common equivalent share while subject to such
contingency. See Note 3 of Notes to Consolidated Financial Statements.
Excludes (i) 3,055,920 shares of Common Stock issuable upon exercise of
stock options outstanding as of December 31, 1996 at a weighted average
exercise price of $0.52 per share, of which options to purchase 1,063,973
shares were then exercisable, (ii) 304,560 shares (assuming an initial
public offering price of $12.00 per share) of Common Stock reserved for
issuance upon conversion of shares of Convertible Preferred Stock, and (iii)
1,050,000, 50,000 and 50,000 shares of Common Stock reserved for issuance
under stock options to be granted upon the effectiveness of the Offering at
exercise prices equal to 100%, 85% and 50%, respectively, of the initial
public offering price. See "Certain Transactions," "Capitalization,"
"Management -- Stock Plans" and "Beneficial Ownership of Management."
RISK FACTORS
Each prospective investor should carefully consider the information set
forth under the heading "Risk Factors" beginning on page 6 before making an
investment decision with respect to the shares of Common Stock offered hereby.
Certain statements contained herein expressing the beliefs and expectations of
the Company regarding its future results or performance are forward-looking
statements that involve a number of risks and uncertainties. The Company's
actual results could differ significantly from the results discussed in such
forward-looking statements. Important factors that could cause or contribute to
such differences are set forth under "Risk Factors" and elsewhere in this
Prospectus.
-------------------
The Company was incorporated in Delaware in March 1995 as a wholly-owned
subsidiary of Palomar Medical Technologies, Inc., a publicly-held corporation
that develops, manufactures and markets medical laser devices and electronics
products. The Company's principal executive offices are located at 182 Turnpike
Road, Westborough, Massachusetts 01581, and its telephone number is (508)
836-8700. Unless the context otherwise requires, the "Company" and "NEXAR" refer
to Nexar Technologies, Inc. and its wholly-owned subsidiary, Intelesys
Corporation, a Delaware corporation.
4
SUMMARY CONSOLIDATED FINANCIAL DATA
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PERIOD FROM
INCEPTION
(MARCH 7, 1995) TO YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
Net revenues $ 619,629 $18,695,364
Cost of revenues 574,611 16,392,483
------- ----------
Gross profit 45,018 2,302,881
Total operating expenses(1) 2,306,452 9,813,020
--------- ---------
Net loss $(2,261,434) $(7,510,139)
=========== ===========
Pro forma net loss per common and common equivalent share(2): $ (0.27) $ (0.89)
=========== ===========
Pro forma weighted average number of common and common
equivalent shares outstanding: 8,421,838 8,421,838
========= =========
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DECEMBER 31, 1996
-----------------------------------------------
PRO FORMA
ACTUAL PRO FORMA(3) AS ADJUSTED(3)(4)
---------- ------------ -----------------
<S> <C> <C> <C>
CONSOLIDATED BALANCE SHEETS DATA:
Cash $ 2,738,983 $ 2,738,983 $ 20,792,892
Working capital 11,424,555 11,424,555 29,711,464
Total assets 19,589,121 19,589,121 36,956,572
Amounts due to related parties(5) 23,817,998 8,249,549 --
Stockholders' (deficit) equity (9,771,173) 5,797,276 31,647,276
</TABLE>
(1) Includes $525,000 and $1,375,000 of non-recurring litigation costs in 1995
and 1996, respectively. See Notes 2 and 10 of Notes to Consolidated
Financial Statements.
(2) Computed on the basis described in Note 3(b) of Notes to Consolidated
Financial Statements.
(3) Presented on a pro forma basis to give effect to the conversion of
indebtedness to related parties totaling $11,000,000 at December 31, 1996
into 1,900,000 shares of Common Stock and the conversion of $4,568,449 due
to related parties into 45,684 shares of Convertible Preferred Stock. See
"Certain Transactions."
(4) Adjusted to give effect to the receipt of the net proceeds from the sale of
the 2,500,000 shares of Common Stock offered by the Company hereby at an
assumed initial public offering price of $12.00 per share and includes the
repayment of $8,249,549 of amounts due to related parties. See "Use of
Proceeds," "Capitalization" and "Certain Transactions."
(5) Represents amounts due to Palomar and Palomar Electronics Corporation
(PEC). See Note 2 of Notes to Consolidated Financial Statements.
5
RISK FACTORS
In addition to the other information contained in this Prospectus,
prospective investors should consider carefully the following risk factors, as
well as those discussed elsewhere in this Prospectus, before making an
investment decision with respect to the shares of Common Stock offered hereby.
Prospective investors are advised that statements contained herein
expressing the beliefs and expectations of the Company regarding its future
results or performance are forward-looking statements that involve a number of
risks and uncertainties. The Company's actual results could differ significantly
from the results discussed in such forward-looking statements. Factors that
could cause or contribute to such differences include those discussed below and
elsewhere in this Prospectus.
LIMITED OPERATING HISTORY; HISTORY OF OPERATING LOSSES; ACCUMULATED DEFICIT
The Company was incorporated in March 1995 and commenced selling its PCs in
volume in April 1996. Accordingly, the Company has a limited operating history
upon which an evaluation of the Company and its prospects can be based. The
Company's prospects must be evaluated with regard to the risks encountered by a
company in an early stage of development, particularly in light of the
uncertainties relating to the intensely competitive market in which the Company
operates. As of December 31, 1996, the Company had an accumulated deficit of
$9,771,573. Although the Company anticipates realizing revenue growth during the
first six months of 1997, the Company's ability to generate significant revenue
thereafter is subject to substantial uncertainty. In addition, the Company
anticipates that its operating expenses will increase substantially in the
foreseeable future as it further develops its technology, increases its sales
and marketing activities, creates and expands the distribution channels for its
services and broadens its customer support capabilities. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
RISKS ASSOCIATED WITH INTENSE COMPETITION
The desktop PC industry is intensely competitive and may become more so as
the result of, among other things, the introduction of new competitors
(including large multi-national, diversified companies) and possibly weakening
demand. The Company currently competes in the desktop PC market principally with
Acer America Corporation, Apple Computer, Inc., Compaq Computer Corporation,
Dell Computer Corporation, Gateway 2000, Inc., Hewlett-Packard Company,
International Business Machines Corporation (IBM) and Packard Bell NEC, Inc. In
addition, the Company is planning to compete in the network server market
commencing by late 1997 with a server complementing its desktop PCs against
established companies such as Advanced Logic Research, Inc. (ALR), Compaq
Computer, Dell Computer, Hewlett-Packard and IBM. All of these companies have
stronger brand recognition, significantly greater financial, marketing,
manufacturing, technological and distribution resources, broader product lines
and larger installed customer bases than does the Company. Principal competitive
factors include product features, product performance, quality and reliability,
the ability to deliver product to customers in a timely fashion, customer
service and support, marketing and distribution capabilities and price. Also, in
order to compete successfully, the Company must attract and retain a sufficient
number of management, sales and technical personnel with high levels of relevant
skills and meaningful experience. Although the Company has assembled an
experienced senior management team, there can be no assurance that the Company
will be able to attract and retain sufficient numbers of additional personnel,
as the need for such individuals increases with the Company's anticipated
growth, or maintain or improve its current position with respect to any of these
or other competitive factors. This intense competition could result in loss of
customers or pricing pressures, which would negatively affect the Company's
results of operations.
The Company's ability to compete favorably is dependent, in significant
part, upon its ability to control costs, react timely and appropriately to
short-and long-term trends and competitively price its products while
preventing erosion of its margins, and there is no assurance that the Company
will be able to do so. Many of the Company's competitors can devote greater
managerial and financial resources than the Company can to develop, promote and
distribute products and provide related consulting and training services. Some
of the Company's competitors have established, or may
6
establish, cooperative arrangements or strategic alliances among themselves or
with third parties, thus enhancing their ability to compete with the Company.
There can be no assurance that the Company will be able to compete successfully
against current or future competitors or that the competitive pressures faced by
the Company will not materially and adversely affect its business, operating
results and financial condition. See "Business -- Competition."
DEPENDENCE ON SUBSTANTIAL CUSTOMER
In the fiscal year ended December 31, 1996, one customer of the Company,
Government Technology Services, Inc. (GTSI), a leading supplier of desktop
systems to United States government agencies, accounted for a majority of the
Company's revenues. The Company expects that GTSI will continue to be an
important customer, but that sales to GTSI as a percentage of total revenues
will decline substantially as the Company further expands its distribution
network and increases its overall sales. The Company has entered into an
agreement with GTSI pursuant to which GTSI serves as the Company's exclusive
federal reseller with respect to Government Services Administration (GSA)
scheduled purchases, provided that GTSI purchases at least $35 million of the
Company's products in 1997. GTSI is under no obligation, however, to purchase
any products of the Company. If GTSI makes fewer purchases in 1997 than the
Company anticipates, that would have a material adverse effect on the Company.
See "Business -- Customers," "Business -- Strategy" and Note 3(i) of Notes to
Consolidated Financial Statements.
MANAGEMENT OF GROWTH
The anticipated rapid growth in the size, geographic scope and complexity of
the Company's business and development of its customer base are expected to
place a significant strain on the Company's management, operations and capital
needs. The Company's continued growth, if any, will require it to attract,
motivate and retain additional highly skilled technical, managerial, consulting,
sales and marketing personnel both in the United States and abroad, and will
also require the Company to enhance its financial and managerial controls and
reporting systems. There is no assurance that the Company can manage its growth
effectively or that the Company will be able to attract and retain the necessary
personnel to meet its business challenges. If the Company is unable to manage
its growth effectively, the Company's business, financial condition and
operating results would be materially and adversely affected. See "Management's
Discussion and Analysis of Financial Condition of Results of Operations."
SIGNIFICANT CAPITAL REQUIREMENTS; UNCERTAINTY OF ADDITIONAL FUNDING
The Company's capital requirements in connection with its development and
marketing activities have been and will continue to be significant. Although the
Company believes that its existing capital resources, together with the proceeds
of the Offering and interest earned thereon, will be adequate to satisfy its
capital requirements for at least the next twelve months, the Company's future
capital requirements will depend on many factors, some of which are not within
the control of the Company. These factors include sales of its existing
products, the continued progress in, and magnitude of, its research and product
development programs, the costs involved in filing, prosecuting, enforcing and
defending patent claims, competing technological and market developments and the
costs and success of its commercialization activities. There can be no assurance
that the Company may not in the future require additional funding. If the
Company requires additional funding, there can be no assurance that it will be
able to obtain such funding on acceptable terms, if at all. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
DEPENDENCE ON NEW PRODUCTS; MARKET ACCEPTANCE
The Company's future success will be highly dependent upon its ability to
develop, produce and market products that incorporate new technology, are priced
competitively and achieve significant market acceptance. There can be no
assurance that the Company's products will be technically advanced or
commercially successful due to the rapid improvements in computer technology and
resulting product obsolescence. There
7
is also no assurance that the Company will be able to deliver commercial
quantities of new products in a timely manner. The success of new product
introductions is dependent on a number of factors, including market acceptance,
the Company's ability to anticipate and manage risks associated with product
transitions, effective product marketing, proper management of inventory levels
in line with anticipated product demand and the timely manufacturing of products
in appropriate quantities to meet anticipated demand. In addition, although the
Company plans to offer by late 1997 a network server complementing its desktop
PCs, and plans to commence shipment of NEXAR XPA PCs by mid-1997, the Company
currently has no other product lines, such as notebook computers or other
computer related products, planned. The failure of the Company to develop,
produce and market commercially viable products could result in the Company's
business, operating results and financial condition being materially and
adversely affected. See "Business -- Product Development" and " -- Products."
PRODUCT DEVELOPMENT RISKS
The Company's product development efforts will continue to require
substantial investments by the Company for third-party development, refinement
and testing, and there can be no assurance that the Company will have the
resources sufficient to make such investments. Participants in the PC industry
generally rely on the creation and implementation of technology standards to win
the broadest market acceptance for their products. The Company must successfully
monitor and participate in the development of standards while continuing to
differentiate its products in a manner valued by customers. Industry
participants generally accept, and may encourage, the use of their intellectual
property by third parties under license, nonetheless, when intellectual property
owned by competitors or suppliers becomes accepted as an industry standard, the
Company must obtain a license, purchase components utilizing such technology
from the owners of such technology or their licensees, or otherwise acquire
rights to use such technology. The failure of the Company to license, purchase
or otherwise acquire rights to such technologies could result in the Company's
business, operating results and financial condition being materially and
adversely affected. See "Business -- Product Development" and " -- Products."
DEPENDENCE ON OUTSIDE PRODUCT ENGINEERING
The Company currently has only a limited product development staff. The
Company has entered into a Development Agreement with GDA Technologies, Inc.
(GDA), a provider of computer engineering services, to develop its new
patent-pending NEXAR XPA technology and to implement this technology on several
motherboards to be introduced for use in its PCs by mid-1997. Although the
Company believes that it could find and engage equivalent development and
engineering services elsewhere within a reasonable period of time, or hire
sufficient capable engineers to perform such development work in-house, the
inability of GDA to adequately perform such services on a timely basis could
have a material adverse effect on the Company. See "Business -- Product
Development."
UNCERTAINTY REGARDING INTELLECTUAL PROPERTY RIGHTS
The Company's success is dependent in large part upon its intellectual
property rights. The Company has rights to two pending patent applications
covering the essential technology which enables the easy installation, removal
and replacement of key components in the Company's PCs. The Company filed a
patent application in late 1996 covering its proprietary Cross Processor
Architecture(tm) (NEXAR XPA(tm)) technology, which is expected to be used in the
Company's PCs by mid-1997. Also, the Company has agreed to acquire, no later
than the closing of the Offering, a patent application originally filed in March
1995, together with the related technology which is currently included in the
Company's PCs under an exclusive license agreement. See "Business --
Intellectual Property" and "Certain Transactions -- Other Related Party
Transactions." Although the Company has been advised that a notice of
allowability has been issued by the United States Patent and Trademark Office
with respect to certain of the claims made in the patent application to be
acquired, there can be no assurance that this preliminary determination will
result in the issuance of a patent or that a patent will be issued with respect
to the Company's XPA patent application. Even if issued, there can be no
assurance that any such patents would survive a legal challenge to their
validity or provide adequate protection. In addition, the Company has not
conducted any formal study of prior art and, therefore, has not determined what
effect any prior art may have on any such patents that may issue. The Company
also relies on copyrights, unpatented trade secrets and trademarks to protect
its proprietary technology. No assurance
8
can be given that the Company's competitors will not independently develop or
otherwise acquire substantially equivalent techniques or otherwise gain access
to the Company's proprietary technology or that the Company can ultimately
protect its rights to such proprietary technology. In addition, there can be no
assurance that the Company will be able to afford the expense of any litigation
which may be necessary to enforce its rights under any such patents that may
issue. The Company also relies on confidentiality agreements with its
collaborators, employees, advisors, vendors and consultants to protect its
proprietary technology. There can be no assurance that these agreements will not
be breached, that the Company would have adequate remedies for any breach or
that the Company's trade secrets will not otherwise become known or be
independently developed by competitors. Failure to obtain or maintain patent and
trade secret protection, for any reason, could have a material adverse effect on
the Company's business, financial condition and results of operations. See
"Business -- Intellectual Property."
POTENTIAL INFRINGEMENT OF PROPRIETARY TECHNOLOGY
Although the Company believes that its products do not infringe patents or
other proprietary rights of third parties, there can be no assurance that the
Company is aware of all patents or other proprietary rights that may be
infringed by the Company's products, that any infringement does not exist or
that infringement may not be alleged by third parties in the future. If
infringement is alleged, there can be no assurance that the necessary licenses
would be available on acceptable terms, if at all, or that the Company would
prevail in any related litigation. Patent litigation can be extremely protracted
and expensive even if the Company ultimately prevails, and involvement in such
litigation and related diversion of management attention and resources could
have a material adverse effect on the business, results of operations and
financial condition of the Company. See "Business -- Intellectual Property."
RISK OF TECHNOLOGICAL OBSOLESCENCE
There can be no assurance that products or technologies of the Company's
competitors will not render the Company's products or technologies
noncompetitive or obsolete. Although the Company's product lines have been
designed to forestall such obsolescence, there can be no assurance that the
Company's products will be competitive with products offered by other
manufacturers. In addition, delays in access to technology developed by
competitors and suppliers could slow the Company's design and manufacture of
components and subsystems that distinguish its products. If the Company is
unable for technological or other reasons to develop and introduce new or
enhanced products and services in a timely and effective manner, the Company's
business, operating results and financial condition would be materially and
adversely affected. See "Business -- Product Development" and " -- Products."
FORECASTING ISSUES
Because of the pace of technological advances in the computer industry, the
Company must introduce on a timely basis new products that offer customers
competitive technologies while managing the production and marketing cycles of
its existing products. Forecasting demand for newly-introduced products is
complicated by the availability of different product models, which may include
various types of built-in peripherals and software in certain markets. As a
result, while overall demand may be in line with the Company's projections and
manufacturing implementation, local market variations can lead to differences
between expected and actual demand and resulting delays in shipment, which can
affect the Company's financial results. See "Business -- Strategy" and " --
Products."
DEPENDENCE UPON WANG LABORATORIES TO PERFORM SERVICE OBLIGATIONS
All of the Company's products are sold with a three year limited warranty on
hardware with one year on-site service. The Company currently lacks the
capability to provide technical support for its PCs in the field and has
contracted with Wang Laboratories, Inc. (Wang) to perform all of the Company's
warranty obligations with respect to its products. Wang provides NEXAR's
customers on-site hardware support, including diagnostics and repair and also
provides telephone support for software products bundled with NEXAR's systems
for a period of 90 days. While the Company selected Wang based on its belief
that Wang has the capability to perform these warranty obligations on a timely
and efficient
9
basis, the failure of Wang to meet the demands of the end-users of the Company's
products could materially and adversely affect the reputation of the Company and
its products, which in turn could result in lower sales and profits. See
"Business -- Customer Service and Support."
DEPENDENCE ON MARKET SUCCESS OF THIRD PARTY CHANNEL DISTRIBUTION
The Company does not sell its products directly to end-users, but relies
instead on a variety of distribution channels, primarily distributors,
value-added and other resellers, original equipment manufacturers (OEMs),
systems integrators, direct response resellers, and independent dealers. The
Company's revenue is dependent, among other things, upon the ability of these
distribution channels to sell the Company's products to end-users. Factors
affecting the ability of these distribution channels to develop and sell their
products include competition, their ability to offer products that meet user
requirements at acceptable prices and overall economic conditions in both the
United States and foreign markets. The Company's business, results of operations
and financial condition would be materially and adversely affected if these
distribution channels are unsuccessful in selling the Company's products. See
"Business -- Sales and Marketing."
RELIANCE ON SUPPLIERS; RISK OF DELAY
The Company's manufacturing process requires a high volume of quality
components that are procured from third party suppliers. Reliance on suppliers,
as well as industry supply conditions generally, involves several risks,
including the possibility of defective parts, a shortage of components,
increases in component costs and reduced control over delivery schedules, any or
all of which could adversely affect the Company's financial results. As part of
the manufacturing process, the Company uses industry standard components for its
products. Most of these components are generally available from multiple
sources; however, the Company relies on two outside contractors to manufacture
motherboards used in its PCs and plans to rely on a sole outside contractor to
manufacture the motherboards to be used in its planned server product. In
addition, the Company relies on a single supplier to produce its customized
chassis and has several other single supplier relationships for less critical
components, and the lack of availability of timely and reliable supply of
components from these sources could adversely affect the Company's business.
Also, the Company ultimately is reliant on major suppliers of key components,
such as CPUs and chipsets sold by Intel, which are included in the Company's
products, either at the request of a customer prior to shipment or by the
Company's resellers. Occasionally, such components are subject to allocations
and the Company has at times experienced difficulty in obtaining sufficient
quantities of such products. In some cases, alternative sources of supply are
not readily available for some of the Company's single-sourced components. In
other cases, the Company may establish a working relationship with a single
source, even when multiple suppliers are available, if the Company believes it
is advantageous to do so due to performance, quality, support, delivery,
capacity or price considerations. Where alternative sources are available,
qualification of the alternative suppliers and establishment of reliable
supplies could result in delays, which could adversely affect the Company's
manufacturing processes and results of operations.
The Company occasionally experiences delays in receiving certain components,
which can cause delays in the shipment of some products to customers. During the
fourth quarter of 1996, the Company did not have in inventory and was unable to
obtain on a timely basis sufficient quantities of certain key components to meet
outstanding purchase orders, which caused the financial results for such period
to be adversely affected and may adversely affect future sales to customers
whose orders were not promptly shipped. The Company has also been unable to
obtain sufficient quantites of certain components in the first quarter of 1997,
which has caused delays in some shipments. There can be no assurance that the
Company will be able to continue to obtain additional supplies of reliable
components in a timely or cost-effective manner. See "Business --
Manufacturing."
RISKS ASSOCIATED WITH INVENTORY LEVELS
Although the design of the NEXAR PC provides the Company with the ability to
operate with reduced inventories of components and finished goods, shifts in
technology and market demand may nevertheless result in excess inventory,
declining inventory values or even obsolescence. Maintaining a low inventory
level is dependent upon the Company's ability to achieve targeted revenue and
product mix. There can be no assurance that the Company will be able to maintain
optimal inventory levels in future periods. See "Business -- Manufacturing."
10
CONCENTRATION OF OWNERSHIP BY PALOMAR AND MANAGEMENT
Upon completion of the Offering, Palomar will beneficially own approximately
66% of the outstanding Common Stock (approximately 64% if the overallotment
option granted to the Underwriters is exercised in full) including 1,200,000
shares which are subject to a repurchase right of the Company at a nominal price
per share in the event the Company fails to meet certain performance milestones
set forth in an agreement between the Company and Palomar. In addition, 45,684
shares of Convertible Preferred Stock will be issued to Palomar upon the closing
of the Offering in exchange for retirement of $4,568,449 of indebtedness owed by
the Company to Palomar. Such shares of Convertible Preferred Stock shall be
convertible into shares of Common Stock at the option of the holders thereof at
a price per share equal to 125% of the initial public offering price of the
Common Stock. At an assumed initial public offering price of $12.00 per share,
the 45,684 shares of Convertible Preferred Stock issued to Palomar upon the
closing would be convertible into 304,560 shares of Common Stock. Prior to any
such conversion, the holders of such Convertible Preferred Stock shares shall
have voting rights equal to the number of shares of Common Stock such
Convertible Preferred Stock are convertible into on the record date of any
matter voted on by the stockholders of the Company. The holders of such shares
of Convertible Preferred Stock shall have identical further rights as holders of
shares of Common Stock, with the sole exception that such shares of Convertible
Preferred Stock shall have the additional right to a liquidation preference of
$100 per share ($4,568,400 in the aggregate and equal to $15.00 per share of
Common Stock into which such shares of Convertible Preferred Stock are
convertible, assuming an initial public offering price of $12.00 per share),
plus, in the case of each such share of Convertible Preferred Stock, an amount
equal to any dividend declared but unpaid thereon, over the Common Stock. Such
liquidation preference would be payable upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company and also upon certain
change of control transactions, such as a merger or a sale of substantially all
the assets of the Company. See "Description of Capital Stock -- Preferred
Stock."
As a result of its current holdings of and rights to acquire additional
shares of Common Stock, Palomar does and will be able to control the Company
through its ability to determine the outcome of elections of the Company's
directors, amend the Company's Certificate of Incorporation and By-laws and take
certain other actions requiring the vote or consent of stockholders of the
Company. This concentration of ownership may have the effect of delaying or
preventing a change in control of the Company. In addition, upon completion of
the Offering, the current executive officers and directors of the Company will
hold stock options exercisable for an aggregate number of shares of Common Stock
equal to approximately 27.4% of the outstanding Common Stock assuming the
exercise of all such options (approximately 26.7% if the over-allotment option
is exercised in full). Approximately 70.0% of the shares subject to such options
are subject to vesting based on the option holder's length of service with the
Company. See "Principal Stockholder," "Certain Transactions" and "Beneficial
Ownership of Management."
DEPENDENCE ON KEY PERSONNEL
The Company's future success depends to a significant extent on certain key
personnel, including its Chairman and Chief Executive Officer, Albert J. Agbay,
and its other executive officers and certain technical, managerial, consulting,
sales and marketing personnel. The loss of the services of any of these
individuals or group of individuals could have a material adverse effect on the
Company's business, operating results and financial condition. The Company
intends to seek to obtain key-man life insurance on Mr. Agbay. The Company is
not contemplating securing any significant amount of key-man life insurance on
any of its other executive officers or other key employees. See "Business --
Strategy," "-- Products" and "Management."
POTENTIAL FLUCTUATIONS IN QUARTERLY RESULTS
The Company's quarterly revenues, expenses and operating results are likely
to vary considerably in the future. Such fluctuations can be traced to many
factors, including the timing and terms of large transactions, delays in
customer acceptance, delays in receiving components, the length of sales cycles,
changes in the level of operating expenses, demand for the Company's products
and services, the introduction of new products and product enhancements by the
Company and its competitors, changes in
11
customer budgets, competitive conditions in the industry and general economic
conditions. For example, during the fourth quarter of 1996, the Company did not
have in inventory and was unable to obtain on a timely basis sufficient
quantities of key components to meet outstanding purchase orders, which caused
the financial results for such period to be adversely affected and which may
adversely affect future sales to customers whose orders were not promptly
shipped. The Company has also been unable to obtain sufficient quantities of
certain components in the first quarter of 1997, which has caused delays in some
shipments. The Company budgets its product development and other expenses
anticipating future revenues. If revenues fall below expectations, the Company's
business, operating results and financial condition are likely to be materially
and adversely affected because a proportionately smaller amount of the Company's
expenses vary with its revenues. As a result, the Company believes that
period-to-period comparisons of its operating results are not necessarily
meaningful and should not be relied upon to predict future performance. Due to
the foregoing factors, it is likely that, in some future quarters, the Company's
operating results will fall below the market's or investors' expectations, and,
in such event, the price of the Common Stock would likely be materially and
adversely affected. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
RISKS ASSOCIATED WITH INTERNATIONAL EXPANSION
The Company plans to expand its business into international markets. To
date, the Company has minimal experience in marketing and distributing its
products internationally and plans to establish alliances with sales
representative organizations and resellers with particular experience in
international markets. Accordingly, the Company's success in international
markets will be substantially dependent upon the skill and expertise of such
international participants in marketing the Company's products. There can be no
assurance that the Company will be able to successfully market, sell and deliver
its products in these markets. In addition, there are certain risks inherent in
doing business in international markets, such as unexpected changes in
regulatory requirements, export restrictions, tariffs and other trade barriers,
difficulties in staffing and managing foreign operations, political instability
and fluctuations in currency exchange rates and potentially adverse tax
consequences, which could adversely impact the success of the Company's
international operations. There can be no assurance that one or more of such
factors will not have a material adverse effect on the Company's future
international operations and, consequently, on the Company's business, financial
condition or operating results. See "Business -- Sales and Marketing."
NO PRIOR PUBLIC MARKET; POSSIBLE VOLATILITY OF STOCK PRICE
Prior to the Offering, there has been no public market for the Company's
Common Stock, and there can be no assurance that an active public market for the
Common Stock will develop or be sustained after the Offering. The initial
offering price will be determined by negotiation between the Company and the
Representatives based upon several factors. See "Underwriting." The market price
of the Company's Common Stock is likely to be highly volatile and could be
subject to wide fluctuations in response to quarterly variations in operating
results, announcements of technological innovations or new products by the
Company or its competitors, changes in financial estimates by securities
analysts, or other events or factors, many of which are beyond the Company's
control. In addition, the stock market has experienced significant price and
volume fluctuations that have particularly affected the market prices of equity
securities of many high technology companies and that often have been unrelated
to the operating performance of such companies. These broad market fluctuations
may adversely affect the market price of the Company's Common Stock. In the
past, following periods of volatility in the market price for a company's
securities, securities class action litigation has often been instituted. Such
litigation could result in substantial costs and a diversion of management
attention and resources which could have a material adverse effect on the
Company's business, financial condition or operating results.
RISKS ASSOCIATED WITH UNSPECIFIED USE OF PROCEEDS
The principal purposes of the Offering are to increase the Company's working
capital and financial flexibility, to facilitate future access by the Company to
public equity markets and to provide increased visibility, credibility and name
recognition for the Company in a marketplace where many of its competitors are
publicly-held companies. The Company intends to use the net proceeds to repay
certain indebtedness
12
to related parties in the amount of $8,249,549 and for working capital and other
general corporate purposes. A portion of the proceeds may be used for the
acquisition and/or development of complementary products, technologies and/or
businesses. The Company has not as yet identified specific uses for a majority
of the net proceeds, and, pending such uses, the Company expects that it will
invest net proceeds in short-term, interest-bearing, investment-grade
securities. Accordingly, the Company's management will have broad discretion as
to the use of such net proceeds without any action or approval of the Company's
stockholders. See "Use of Proceeds."
EFFECT OF ANTI-TAKEOVER PROVISIONS
Certain provisions of the Company's First Restated Certificate of
Incorporation (the "Restated Charter") and Amended and Restated By-laws (the
"By-laws") and of Delaware law could have the effect of making it more difficult
for a third party to acquire, or of discouraging a third party from attempting
to acquire, control of the Company. Such provisions could limit the price that
investors might be willing to pay in the future for Common Stock. These
provisions will require that the Company have a Board of Directors comprised of
three classes of directors with staggered terms of office, provide for the
issuance of "blank check" preferred stock by the Board of Directors without
stockholder approval, require super-majority approval to amend certain
provisions in the Restated Charter and By-laws, require that all stockholder
actions be taken at duly called annual or special meetings and not by written
consent, and impose various procedural and other requirements that could make it
more difficult for stockholders to effect certain corporate actions.
Furthermore, the Company is subject to the anti-takeover provisions of Section
203 of the Delaware General Corporation Law, which prohibits the Company from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
first becomes an "interested stockholder," unless the business combination is
approved in a prescribed manner. The application of Section 203 could also have
the effect of delaying or preventing a change of control of the Company. See
"Description of Capital Stock."
SUBSTANTIAL NUMBER OF REGISTERED SHARES ELIGIBLE FOR FUTURE SALE
Sales of a substantial number of shares of Common Stock in the public market
following the Offering could adversely affect the market price for the Common
Stock. Upon the closing of the Offering, the Company will have an aggregate of
9,200,000 shares of Common Stock outstanding, assuming no exercise of the
Underwriters' over-allotment option and no exercise of outstanding options to
purchase Common Stock. All of these shares, including the 2,500,000 shares sold
in the Offering, are freely tradable without restriction or further registration
under the Securities Act of 1933, as amended (the "Securities Act"). Also, as of
December 31, 1996, employees and directors of the Company held options
exercisable for the acquisition of 3,055,920 shares of Common Stock
(approximately 65% of which shall be exercisable upon consummation of the
Offering, as of December 31, 1996) and the Company will grant options
exercisable for 1,050,000, 50,000 and 50,000 shares of Common Stock upon the
effectiveness of the Offering at exercise prices equal to 100%, 85% and 50%,
respectively, of the initial public offering price. The Company intends to
register all such shares subject to options for resale from time to time under
the Securities Act soon after consummation of the Offering. "Description of
Capital Stock," "Shares Eligible for Future Sale" and "Certain Transactions."
DILUTION
Purchasers of Common Stock in the Offering will experience immediate
and substantial dilution of $9.23 per share, assuming an initial public
offering price of $12.00 per share, in net tangible book value per share
of Common Stock from the initial public offering. See "Dilution."
13
USE OF PROCEEDS
The net proceeds to the Company from the sale of the 2,500,000 shares of
Common Stock offered by the Company pursuant to the Offering are estimated to be
$25,850,000 ($29,877,500 if the Underwriters exercise their over-allotment
option in full), assuming an initial public offering price of $12.00 per share
and after deducting estimated underwriting discounts and commissions and
estimated offering expenses payable by the Company.
The principal purposes of the Offering are to increase the Company's equity
capital and to create a public market for the Company's Common Stock, which will
facilitate future access by the Company to the public equity markets, enhance
the ability of the Company to use its Common Stock as consideration for
acquisitions and as a means for attracting and retaining key employees. The
Company intends to use the proceeds of the Offering to repay non-interest
bearing demand indebtedness to related parties, which was $8,249,549 at December
31, 1996 (including $2,750,000 incurred by Palomar on the Company's behalf to
settle claims of a former executive officer and to acquire certain technology;
see "Certain Transactions") and for general corporate purposes, including
working capital, product development and capital expenditure. The amount and
timing of expenditures may vary significantly depending upon numerous factors
including the success of the Company's currently marketed product, the continued
progress in, and magnitude of the Company's research and product development
programs, market acceptance of the Company's new products, the timing and costs
involved in obtaining regulatory clearances and approvals, the costs involved in
filing, prosecuting, enforcing and defending patent claims, and competing
technological and market developments and the costs and success of its
commercialization activities. Based upon its current operating plan, the Company
believes that its existing capital resources, together with the proceeds of the
Offering and interest earned thereon, will be adequate to satisfy its capital
requirements for at least the next twelve months.
A portion of the net proceeds of the Offering may also be used for
investments in or acquisitions of complementary businesses, products or
technologies, although the Company has not entered into any commitments or
negotiations with respect to any such transactions. Pending such use, the
Company expects to invest the net proceeds in short-term, interest-bearing,
investment grade securities.
DIVIDEND POLICY
The Company has never declared or paid any cash dividends on its Common
Stock and does not anticipate paying any cash dividends in the foreseeable
future. The Company currently intends to retain future earnings to fund the
development and growth of its business.
14
CAPITALIZATION
The following table sets forth the capitalization of the Company (i) actual
as of December 31, 1996 (ii) pro forma as of December 31, 1996 to give effect to
the conversion of $11,000,000 and $4,568,449 due to related parties into
1,900,000 shares of Common Stock and 45,684 shares of Convertible Preferred
Stock, respectively, and (iii) pro forma as adjusted to give effect to the sale
of 2,500,000 shares of Common Stock offered hereby at an assumed initial public
offering price of $12.00 per share and the receipt of the net proceeds
therefrom, after deducting the estimated underwriting discounts and commissions
and estimated offering expenses payable by the Company. See "Use of Proceeds."
This information should be read in conjunction with the Company's Consolidated
Financial Statements and the Notes thereto appearing elsewhere in this
Prospectus.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1996
-------------------------------------------
PRO FORMA AS
ACTUAL PRO FORMA(1) ADJUSTED(1)(2)
------ ------------ --------------
<S> <C> <C> <C>
Amounts due to related parties(1) ............ $23,817,998 $ 8,249,549 --
----------- ----------- ------------
Stockholder's (deficit) equity:
Preferred Stock, par value $0.01 per share,
10,000,000 shares authorized; no shares
issued and outstanding, actual; 45,684
issued and outstanding, pro forma and pro
forma as adjusted ......................... -- 457 457
Common Stock, par value $0.01 per share,
30,000,000 shares authorized; 4,800,000
shares issued and outstanding, actual;
6,700,000 shares issued and outstanding,
pro forma; and 9,200,000 shares issued and
outstanding, pro forma as adjusted ........ 48,000 67,000 92,000
Additional paid-in capital ................. (47,600) 15,501,392 41,326,392
Accumulated deficit ........................ (9,771,573) (9,771,573) (9,771,573)
---------- ---------- ----------
Total stockholders' (deficit) equity ......... (9,771,173) 5,797,276 31,647,276
---------- --------- ----------
Total capitalization .................... $14,046,825 $14,046,825 $31,647,276
=========== =========== ===========
</TABLE>
- ---------------
(1) Adjusted to give effect to the conversion of indebtedness to related
parties totaling $11,000,000 and $4,568,449 at December 31, 1996 into
1,900,000 shares of Common Stock and 45,684 shares of Convertible Preferred
Stock, respectively. See "Certain Transactions."
(2) Adjusted to give effect to the receipt of the net proceeds from the sale of
the 2,500,000 shares of Common Stock offered by the Company hereby at an
assumed initial public offering price of $12.00 per share and the repayment
of $8,249,549 of amounts due to related parties. See "Use of Proceeds" and
"Certain Transactions."
15
DILUTION
The pro forma negative net tangible book value of the Company at December
31, 1996 was ($1,072,631) or ($0.16) per share of Common Stock. Pro forma net
tangible book value per share is equal to the Company's total tangible assets
less total liabilities, divided by the total number of shares of Common Stock
outstanding and includes the effect of the conversion upon the closing of the
Offering of $11,000,000 of indebtedness to related parties into 1,900,000 shares
of Common Stock. Net tangible book value dilution per share represents the
difference between the amount per share paid by purchasers of shares of Common
Stock in the Offering made hereby and the adjusted pro forma net tangible book
value per share of Common Stock immediately after completion of the Offering.
After giving effect to the sale by the Company of the 2,500,000 shares of Common
Stock offered hereby at an assumed initial public offering price of $12.00 per
share, and after deducting the estimated underwriting discounts and commissions
and estimated offering expenses, the pro forma net tangible book value of the
Company as of December 31, 1996 would have been $25,463,827 or $2.77 per share
of Common Stock. This represents an immediate increase in such adjusted net
tangible book value of $2.93 per share to existing stockholders and an immediate
dilution of $9.23 per share to new investors purchasing shares in the Offering.
If the initial public offering price is higher or lower, the dilution to the new
investors will be, respectively, greater or less. The following table
illustrates this per share dilution:
<TABLE>
<CAPTION>
<S> <C> <C>
Assumed initial public offering price per share ............. $12.00
Pro forma negative net tangible book value per share as of
December 31, 1996 ...................................... $(0.16)
Increase per share attributable to new investors ......... 2.93
----
Adjusted pro forma net tangible book value per share after the
offering .................................................... 2.77
----
Dilution per share to new investors ......................... $9.23
=====
</TABLE>
The following table summarizes on the pro forma basis described above, the
number of shares of Common Stock purchased from the Company, the total
consideration paid to the Company and the average price paid per share by its
existing stockholder and by new investors (assuming an initial public offering
price of $12.00 per share):
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION(1)
---------------- ---------------------- AVERAGE
PRICE PER
NUMBER PERCENT AMOUNT PERCENT SHARE
------ ------- ------ ------- -----
<S> <C> <C> <C> <C> <C>
Existing stockholders 6,700,000 72.8% $ 11,000,400 26.8% $ 1.64
New investors 2,500,000 27.2 30,000,000 73.2% 12.00
--------- ---- ---------- ----
Total 9,200,000 100.0% $41,000,400 100.0%
========= ===== =========== =====
</TABLE>
(1) Gives effect to the conversion of indebtedness to related parties totalling
$11,000,000 at December 31, 1996 into 1,900,000 shares of Common Stock.
The foregoing table excludes (i) 3,055,920 shares of Common Stock issuable
upon exercise of stock options outstanding as of December 31, 1996, at a
weighted average exercise price of $0.52 per share, of which options to purchase
1,063,973 shares were then exercisable, and (ii) 1,050,000, 50,000 and 50,000
shares of Common Stock reserved for issuance under stock options to be granted
upon the effectiveness of the Offering at exercise prices equal to 100%, 85% and
50%, respectively, of the initial public offering price. See "Management --
Stock Plans," "Beneficial Ownership of Management" and "Certain Transactions."
16
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data set forth below as of and for the
period from inception (March 7, 1995) to December 31, 1995, and for the year
ended December 31, 1996, are derived from consolidated financial statements of
the Company audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report thereon included elsewhere in this Prospectus. The
selected consolidated financial data presented below should be read in
conjunction with, and are qualified by reference to, the Consolidated Financial
Statements and Notes thereto included elsewhere in this Prospectus. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
PERIOD FROM
INCEPTION
(MARCH 7, 1995) TO YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
Net revenues $ 619,629 $ 18,695,364
Cost of revenues 574,611 16,392,483
--------- ---------
Gross profit 45,018 2,302,881
Operating expenses:
Research and development 104,383 803,186
Selling and marketing 581,482 4,819,379
General and administrative 1,095,587 2,815,455
Litigation costs 525,000 1,375,000
--------- ---------
Total operating expenses 2,306,452 9,813,020
--------- ---------
Net loss $(2,261,434) $(7,510,139)
=========== ===========
Pro forma net loss per common and common equivalent share(1): $ (0.27) $ (0.89)
----------- -----------
Pro forma weighted average number of common and common
equivalent shares outstanding: 8,421,838 8,421,838
========= =========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1996
--------------------------------------------
PRO FORMA AS
ACTUAL PRO FORMA(2) ADJUSTED(2)(3)
------ ------------ --------------
<S> <C> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Cash $ 2,738,983 $ 2,738,983 $ 20,792,892
Working capital 11,424,555 11,424,555 29,711,464
Total assets 19,589,121 19,589,121 36,956,572
Amounts due to related parties(4) 23,817,998 8,249,549 --
Stockholders' (deficit) equity (9,771,173) 5,797,276 31,647,276
</TABLE>
- ------------
(1) Computed on the basis described in Note 3(b) of Notes to Consolidated
Financial Statements.
(2) Presented on a pro forma basis to give effect to the conversion of
indebtedness to related parties totaling $11,000,000 at December 31, 1996
into 1,900,000 shares of Common Stock and the conversion of $4,568,449 due
to related parties into 45,684 shares of Convertible Preferred Stock. See
"Certain Transactions."
(3) Adjusted to give effect to the receipt of the net proceeds from the sale of
the 2,500,000 shares of Common Stock offered by the Company hereby at an
assumed initial public offering price of $12.00 per share and includes the
repayment of $8,249,549 of amounts due to related parties. See "Use of
Proceeds," "Capitalization" and "Certain Transactions."
(4) Represents amounts due to Palomar and Palomar Electronics Corporation. See
Note 2 of Notes to Consolidated Financial Statements.
17
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion of the financial condition and results of operation
of the Company should be read in conjunction with the Company's Consolidated
Financial Statements and Notes thereto, and the other financial information
included elsewhere in this Prospectus.
OVERVIEW
The Company was incorporated in Delaware on March 7, 1995. Since the
commencement of operations in March 1995, the Company has focused on developing
its products and its marketing and distribution strategies and did not generate
material revenues until April 1996. As a result, the Company incurred
substantial losses principally from expenses incurred from the development of
its products, the establishment of its manufacturing operations, sales
administration organization and obtaining key personnel to adequately support
the Company's expected growth. Total revenues from the sale of its PCs for the
year ended December 31, 1996 were $18,695,364. For the three and nine month
periods ended December 31, 1996, the Company generated total revenues of
$7,353,938 and $18,577,896, respectively. During 1997, the Company expects its
selling and marketing expenses, general and administrative expenses and its
research and development expenses will increase significantly. Selling and
marketing expenses are expected to increase significantly as a result of
continued expansion of distribution channels, strategic relationships,
headcount, and marketing programs. Increases in general and administrative
expenses are planned as the Company expands its executive management, finance
and administration support, information systems and other administrative
functions required to support the Company's operations and the costs associated
with being a publicly-held company. The Company's expected levels of research
and development expenditures are based on a plan for current product
enhancements and new product development.
The Company commenced shipment of its proprietary PCs in April 1996. For the
three months ended June 30, 1996, September 30, 1996 and December 31, 1996, the
Company sold approximately 2,317, 7,920 and 6,786 units, respectively. All of
the Company's working capital to date has been from loans made to it by Palomar
and Palomar's wholly-owned subsidiary, Palomar Electronics Corporation (PEC),
which is the direct parent of the Company. The Company's prospects must be
considered in light of the risks, expenses, difficulties and delays frequently
encountered in connection with the formation and early phases of operations of a
new business, combined with the development and commercialization of new
products based on innovative technology and rapid technological change and the
high level of competition in the PC industry. To address these risks, the
Company must, among other things, respond to competitive developments, continue
to attract, retain and motivate qualified management and other employees,
continue to upgrade its technologies and commercialize its products and services
which incorporate such technologies, and achieve market acceptance for its PCs.
There can be no assurance that the Company will be successful in addressing such
risks. See "Risk Factors."
The Company has achieved only moderate revenues to date and has been
dependent upon one customer. The Company's ability to continue to generate
significant revenues is subject to substantial uncertainty. The limited
operating history of the Company makes the prediction of future results of
operations difficult or impossible, and therefore, there can be no assurance
that the Company will sustain revenue growth or profitability. Due to all of the
foregoing factors, it is possible that in some future quarter, the Company's
operating results may be below the expectations of public market analysts and
investors. In such event, the price of the Company's Common Stock could be
materially and adversely affected. See "Risk Factors."
RESULTS OF OPERATIONS
The following table sets forth unaudited consolidated quarterly financial data
for each of the four quarters in 1995 and 1996 and such information expressed as
a percentage of the Company's total revenues. This unaudited quarterly
information has been prepared on the same basis as the audited financial
information presented elsewhere herein and, in management's opinion, includes
all adjustments (consisting only of normal recurring adjustments) that the
Company considers necessary for a fair presentation of the information for the
quarters presented. In view of the Company's recent growth and other factors,
the Company believes that quarter-to-quarter comparisons of its financial
results are not necessarily meaningful and should not be relied upon as an
indication of future performance.
18
<TABLE>
<CAPTION>
FISCAL QUARTER ENDED
-------------------------------------------------------------------------------------------------------
PERIOD FROM
INCEPTION
(MARCH 7,
1995) TO
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1995 1995 1995 1995 1996 1996 1996 1996
--------- -------- ------------ ------------ --------- --------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENTS OF
OPERATIONS DATA:
Net revenues $ -- $ 212,120 $ 51,379 $ 356,130 $ 117,468 $ 2,033,811 $9,190,147 $ 7,353,938
Cost of revenues -- 194,030 33,857 346,724 116,388 1,798,229 7,423,725 7,054,141
--------- ---------- ---------- ------------ ---------- ----------- ---------- -----------
Gross profit -- 18,090 17,522 9,406 1,080 235,582 1,766,422 299,797
--------- ---------- ---------- ------------ ---------- ----------- ---------- -----------
Operating expenses:
Research and
development -- -- 24,263 80,120 67,318 102,728 130,961 502,179
Selling and marketing 6,746 123,486 169,845 281,405 327,284 1,678,727 981,200 1,832,168
General and
administrative -- 185,230 291,163 619,194 441,627 634,282 619,979 1,119,567
Litigation costs -- -- -- 525,000 -- -- -- 1,375,000
--------- ---------- ---------- ------------ ---------- ----------- ---------- -----------
Total operating expenses 6,746 308,716 485,271 1,505,719 836,229 2,415,737 1,732,140 4,828,914
--------- ---------- ---------- ------------ ---------- ----------- ---------- -----------
Net income (loss) $ (6,746) $ (290,626)$ (467,749) $ (1,496,313) $ (835,149) $(2,180,155) $ 34,282 $(4,529,117)
======== ========== ========== ============ ========== =========== ========== ===========
Backlog -- -- -- -- -- $ 598,455 $2,616,259 $4,101,400
======== ========== ========== ============ ========== =========== ========== ===========
AS A PERCENTAGE OF NET REVENUES:
Net revenues 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of revenues 91.5 65.9 97.4 99.1 88.4 80.8 95.9
---------- ---------- ------------ ---------- ----------- ---------- -----------
Gross profit 8.5 34.1 2.6 0.9 11.6 19.2 4.1
Operating expenses:
Research and development -- 47.2 22.5 57.3 5.1 1.4 6.8
Selling and marketing 58.2 330.6 79.0 278.6 82.5 10.7 24.9
General and administrative 87.3 566.7 173.9 376.0 31.2 6.7 15.2
Litigation costs -- -- 147.4 -- -- -- 18.7
---------- ---------- ------------ ---------- ----------- ---------- -----------
Total operating expenses 145.5% 944.5% 422.8% 711.9% 118.8% 18.8% 65.6%
---------- ---------- ------------ ---------- ----------- ---------- -----------
Net income (loss) -- -- -- -- -- 0.4% (61.5)%
========== ========== ============ ========== =========== ========== ===========
</TABLE>
Prior to April 1996 the Company only had minimal revenues from sales of a
non-proprietary PC. In addition, the Company's operations through April 1996
consisted principally of start-up activity associated with the design,
development, manufacturing and marketing of its upgradeable PC. Accordingly, the
Company generated significant operating losses through June 30, 1996. The
quarter ended September 30, 1996 was the Company's first entire quarter of
manufacturing and shipments of its products. The Company's gross profit as a
percentage of revenues for the three months ended September 30, 1996 was 19.2%.
The Company's gross profit as a percentage of revenues was 4.1% for the three
months ended December 31, 1996. This decrease from the prior quarter was due to
revenue shortfalls caused primarily by a delay in receiving certain key
components necessary to meet outstanding purchase orders. The Company believes
that its gross profit as a percentage of revenues will improve during 1997 as
the Company strengthens its procurement procedures and realizes labor and
material costs savings and efficiencies from full scale manufacturing
operations. During the quarters ended December 31, 1995 and 1996, the Company
incurred $525,000 and $1,375,000, respectively, in litigation costs to settle
potential claims against the Company. The Company also recorded management
bonuses to be paid by Palomar totaling $1,000,000 in the quarter ended December
31, 1996. The 57% increase in product order backlog from the third to the fourth
quarter of 1996 was due to new orders from additional customers and the
inability of the Company to obtain on a timely basis sufficient quantities of
circuit boards and chassis. One customer represented 69%, 10% and 25% of the
Company's total backlog for the quarters ended June 30, 1996, September 30, 1996
and December 31, 1996, respectively. See "Business -- Backlog."
The Company has experienced and expects to continue to experience
significant fluctuations in future quarterly operating results that may be
caused by many factors. These factors include, among others, the demand for the
Company's products, the distribution of the Company's products, the timing of
the introduction of products by the Company's competitors, the timing and rate
at which the Company increases its expenditures to support projected growth,
competitive conditions in the industry and general economic conditions. The
Company believes that period-to- period comparisons of its operating results are
not meaningful and should not be relied upon as any indication of future
19
performance. Due to the foregoing factors, among others, it is likely that the
Company's future quarterly operating results from time to time will not meet the
expectations of market analysts or investors, which may have an adverse effect
on the price of the Company's Common Stock.
PERIOD FROM INCEPTION (MARCH 7, 1995) TO DECEMBER 31, 1995 AND THE YEAR
ENDED DECEMBER 31, 1996
Net Revenues. Net revenues increased to $18,695,364, for the year ended
December 31, 1996, from $619,629 for the period from inception to December 31,
1995. The majority of the revenues generated in 1995 were from the sale of
non-proprietary PCs. The Company ceased the production of these PCs in June of
1995 to concentrate on the development of its upgradeable PCs. The increase in
revenues during the year ended December 31, 1996 from the period ended December
31, 1995 was principally due to the introduction of the Company's upgradeable PC
in April 1996. The Company anticipates that revenues will continue to increase
as the Company further expands its production capabilities, marketing and
distribution efforts.
Gross Profit. Gross profit was $2,302,881, or 12.3% of net revenues, for the
year ended December 31, 1996 as compared to $45,018, or 7.3% of net revenues,
for the period ended December 31, 1995. The Company began full scale production
of its patent-pending PCs during the second quarter of 1996. The increase in
gross profit was primarily attributable to this introduction and initial volume
shipments of the Company's upgradeable PC in April 1996. As the Company
continues to expand its manufacturing operations and achieve economies of scale,
its gross profit is expected to improve.
Research and Development. Research and development expenses consist
primarily of expenses incurred for the design and development of the Company's
upgradeable PCs and a charge for management bonuses. Research and development
expenses increased to $803,186, or 669.5%, during the year ended December 31,
1996 as compared to $104,383 for the period ended December 31, 1995. The primary
reason for this increase is $375,000 of management bonuses for 1996 to be paid
by Palomar. The Company anticipates a substantial increase in its research and
development expenses to continue its development of its NEXAR XPA technology and
other technologies related to the development of its products.
Selling and Marketing. Selling and marketing expenses consist primarily of
salaries, commissions, consulting fees, trade show expenses, advertising and
marketing costs and a charge for management bonuses to be paid by Palomar.
Selling and marketing expenses increased 728.8% to $4,819,379 for the year ended
December 31, 1996 from $581,482 for the period ended December 31, 1995. This
increase in selling and marketing expenses was the result of the addition of
sales and marketing personnel, related to establishing the Company's
distribution channels, supporting the introduction of the Company's upgradeable
PC, and attendance of various trade shows. The Company intends to increase the
amount of expenditures for selling and marketing as a result of its expected
growth, however, as a percentage of sales this amount may decrease as revenues
are expected to increase at a greater rate than the expenses incurred for
selling and marketing.
General and Administrative. General and administrative expenses consist
primarily of expenses for finance, office operations, administration and general
management activities including legal, accounting and other professional fees.
General and administrative expenses increased 157.0% to $2,815,455 for the year
ended December 31, 1996 from $1,095,587 for the period ended December 31, 1995.
This increase in expenses during the year ended December 31, 1996 was
attributable to the additional expenditures for general and administrative
expenses as a result of the Company's anticipated growth and a charge for
management bonuses to be paid by Palomar. The Company anticipates that general
and administrative expenses will continue to increase due to its forecasted
growth.
Litigation Costs. Litigation costs represent the expenses to settle
potential claims against the Company. See Notes 2 and 10 of the Notes to the
Consolidated Financial Statements.
INCOME TAXES
The Company files a tax return included in the consolidated group with
Palomar. The Company has generated federal net operating loss carryforwards for
federal income tax purposes of approximately $6,375,000. Utilization of the net
operating losses may be subject to an annual limitation due to the changes in
the Company's ownership resulting from the Offering. See Note 5 of the Notes to
Consolidated Financial Statements.
20
LIQUIDITY AND CAPITAL RESOURCES
Since its inception, the Company has financed all of its operations
primarily through loans from related parties, which have provided aggregate net
proceeds to the Company of approximately $23,818,000. At December 31, 1996, the
Company had approximately $2,739,000 in cash.
Net cash used in operating activities was approximately $1,860,000 during
the period from inception to December 31, 1995. Net cash used in operations was
approximately $14,420,000 for the year ended December 31, 1996. The significant
use of cash by operating activities was the result of a net loss of
approximately $7.5 million during the year together with cash used to finance a
significant increase in accounts receivable and inventory purchases.
The Company's investing activities used net cash of approximately $103,000
and $493,000 during the period from inception to December 31, 1995 and the year
ended December 31, 1996, respectively. Expenditures for property and equipment
were approximately $103,000 for the period from inception to December 31, 1995
and $187,000 for the year ended December 31, 1996. The Company has no material
commitments other than its facility and equipment leases. The Company
anticipates a substantial increase in its capital expenditures for the first six
months of 1997.
The Company has no credit facilities with unaffiliated lenders and believes that
its available cash resources combined with the net proceeds of the Offering, and
interest earned thereon, as well as anticipated funds from operations will be
sufficient to meet its presently anticipated working capital and capital
expenditure requirements through December 31, 1997. Thereafter, the Company may
need to raise additional funds. The Company may need to raise additional funds
sooner in order to fund more rapid expansion, to develop new or enhanced
products, to respond to competitive pressures or to acquire complementary
businesses or technologies. If additional funds are raised through the issuance
of equity securities, the percentage ownership of the stockholders of the
Company will be reduced, stockholders may experience additional dilution, or
such equity securities may have rights, preferences or privileges senior to
those of the holders of the Common Stock. There can be no assurance that
additional financing will be available when needed on terms favorable to the
Company or at all. Palomar has agreed to continue to fund the Company, if
needed, at least through December 31, 1997. If adequate funds are not available
or are not available on acceptable terms, the Company may be unable to develop
or enhance products or services, take advantage of future opportunities, or
respond to competitive pressures, which could have a material adverse effect on
the Company's business, financial condition or operating results. See "Risk
Factors" and "Dilution."
21
BUSINESS
Nexar Technologies, Inc. develops, manufactures and markets
high-performance, competitively- priced desktop personal computers (PCs) based
on patent-pending technologies. Unlike conventional PCs, NEXAR systems permit
(i) resellers to offer a custom-configured PC on demand, and (ii) end-users to
easily upgrade or switch important components of the PC to accommodate emerging
and future technologies resulting in a significant extension of the computer's
useful life. NEXAR sells a high-performance system which is typically shipped to
resellers without the key system defining components (microprocessor, memory and
hard drive), but which is otherwise fully configured. This approach:
* Enables the end-user, whether corporate or individual, to buy a system
configured exactly to that customer's technical and budgetary requirements
and, later, to easily upgrade the PC's key components with
industry-standard products.
* Enables the Company's channel resellers to reduce their exposure to
inventory depreciation caused by rapid advances in technology and frequent
price reductions of the key system components, which typically account for
more than 50% of the cost of a PC. Because NEXAR PCs allow the key
components to be installed by the reseller at the point of sale, the
reseller benefits from improved and more stable profit margins and reduced
reliance on an inventory of multiple pre-configured systems.
* Enables the Company's resellers to compete with direct marketers, such as
Dell Computer and Gateway 2000, because a NEXAR PC provides resellers with
the ability to promptly deliver a custom-configured, high-performance PC
at a competitive price.
* Enables the Company to maintain profit margins unaffected by the
forecasting risks borne by conventional PC manufacturers who operate
within a several-month-long cycle from (i) component procurement to (ii)
assembly to (iii) date-of-sale, all conducted in an environment of rapid
technological advances and frequent price reductions. Since the key
components of a NEXAR PC are typically installed by a reseller immediately
prior to use or sale, the Company avoids the loss of profit margin from
making inaccurate predictions of the most desired mix of key system
components in the marketplace several months in the future, from paying
yesterday's higher prices for components, or from discounting aging
technology.
The Company's objective is to become the industry leader in designing and
marketing PCs with technology which enables resellers and end-users, in an easy
and cost-effective manner, to upgrade and transition the CPU and the other key
system defining components in accordance with the known and anticipated roadmaps
of various makers of fundamental and leading-edge PC technology.
The Company's current PCs are based on an industry-standard, open
architecture design, co-engineered by HCL Hewlett Packard Ltd., which allows the
central processing unit (CPU), random access memory (RAM), and cache memory to
be replaced by end-users without technical assistance and without opening the
entire chassis. The Company's current model accepts Intel Corporation's
Pentium(R) and compatible CPUs, including the recently released Pentium
processor with MMX multimedia extension technology. NEXAR PCs also include, as a
standard feature, a removable hard drive, permitting its replacement and the
further advantages of increased data portability and security, and the use of
multiple operating systems in a single PC.
NEXAR has developed and expects to soon market a new generation of PCs
featuring the Company's patent-pending Cross-Processor Architecture(tm) (NEXAR
XPA(tm)) in which any one of several state-of-the-art CPUs can be initially
included or later installed, including Intel Corporation's Pentium or Pentium
Pro and compatible CPUs. The NEXAR XPA technology is being designed to also
accommodate microprocessors based on other technologies, such as the Alpha CPU
made by Digital Equipment Corporation (DEC).
22
NEXAR is led by its Chairman and Chief Executive Officer, Albert J. Agbay,
who has more than twenty years experience at various computer companies,
including senior management positions at PC makers such as NEC, Panasonic and
Leading Edge. See "Management." The Company does not market its products
directly to end-users, but instead distributes its products through a growing
network of international, national and regional distributors, value-added and
other resellers, original equipment manufacturers (OEMs), system integrators,
computer superstores, direct response resellers, and independent dealers. The
Company has entered into an agreement with Wang Laboratories, Inc. (Wang),
pursuant to which Wang provides end-users of NEXAR PCs with hardware and
software support, including diagnostics and repair, covered by the Company's
three-year limited warranty and optional extended service contracts.
The Company was incorporated in March 1995 as a wholly-owned subsidiary of
Palomar Medical Technologies, Inc., a publicly-held corporation that develops,
manufactures and markets medical laser devices and electronics products.
INDUSTRY BACKGROUND
The market for PCs is large and growing at a strong rate, although more
moderately than in the early 1990s. According to forecasts by International Data
Corporation (IDC), an independent industry analyst, 81.5 million PCs with a
value of $182.5 billion, including 64.9 million desktop PCs (worth $128.1
billion), will be shipped worldwide in 1997, an increase of 16.7% over estimated
1996 shipments. In the United States, IDC forecasts that in 1997, 30.6 million
PCs (worth $68.6 billion), including 23.9 million desktops (worth $46.0
billion), will be shipped. IDC forecasts that worldwide, in the year 2000, 117.6
million PCs (worth $247.7 billion), including 91.0 million desktops (worth
$169.9 billion), will be shipped. In the United States, IDC forecasts that in
the year 2000, 42.0 million PCs (worth $89.3 billion), including 31.2 million
desktops (worth $56.1 billion), will be shipped. These estimates indicate that
desktop PCs will continue to represent more than 75% of worldwide PC sales
through the year 2000.
Factors driving the PC industry's growth include continued
price/performance improvements of fundamental PC technologies fueled by intense
competition, the growth of the Internet, and the convergence of content,
technologies, and communications on the PC which broadens its base of
applications and users. Also contributing to growth are the aging installed base
of 386 and 486 CPU systems, the introduction of next generation CPUs, and the
development of applications that more fully utilize the capabilities of the more
advanced microprocessors and require ever increasing amounts of storage
capabilities. The Company believes that as businesses recognize the benefits of
distributed computing and thus increase their interest in distributed
enterprise-wide networks (e.g., "intranets"), and as small business and home
office markets grow worldwide, demand for PCs will further increase.
The PC market has been characterized by intense competition and substantial
technological advances occurring over short periods of time. Hundreds of vendors
compete in today's PC marketplace. Leading manufacturers include Acer, Apple
Computer, Compaq Computer, Dell Computer, Gateway 2000, Hewlett-Packard, IBM,
and Packard Bell NEC. See " -- Competition." Rapid technology advances have
resulted in high rates of product innovation and enhancements, and short product
life cycles, creating difficult choices for both current owners and prospective
purchasers of PC systems. PC users occasionally find that they cannot
effectively use the latest software programs, or even the latest enhancements to
their existing software programs, because their PC has insufficient memory,
their CPU is too slow, or their hard drive is full and cannot store additional
data. Consequently, a user who does not wish to forego the latest technology
advancements must either attempt to upgrade his or her existing PC (to the
extent the system can be upgraded and which typically requires technical
assistance) or make a substantial investment in a newer, more powerful PC.
In recent months, a migration by end-users, especially among corporate
users, to next generation PCs, such as Windows NT(R)/Pentium Pro and competing
systems, has begun to accelerate. The increase in the capabilities of such
systems is occurring concurrently with an increase in the number of variables,
23
such as compatibility with 32-bit software applications and multimedia
functionality, which PC buyers must consider in making purchasing decisions. The
result is a more intricate outlook for evaluation of PC technology advancements,
one illustration of which is the following recently published assessment of the
x86 microprocessor roadmap focusing on the anticipated availability of Intel's
MMX technology (which enhances performance of multimedia and communications
applications) and 16- versus 32-bit software performance among various vendor
lines:
16-bit performance 32-bit performance
Intel Pentium-200 Cyrix 6x86-P200+* Intel Pentium Pro*
Intel P55C** AMD K6**
Cyrix M2** Intel Klamath***
AMD K6** Intel Deschutes****
Intel Deschutes****
16-bit performance and MMX 32-bit performance and MMX
Intel P55C** Cyrix M2**
Cyrix M2** AMD K6**
AMD K6** Intel Klamath***
Intel Deschutes**** Intel Deschutes****
* 1996
** Early 1997
*** Mid-1977
**** Late 1997
Source: BYTE Magazine. November, 1996. Reproduced with permission.
(C)by The McGraw-Hill Companies, Inc. New York, N.Y. All rights reserved.
The above chart outlines the choices presented by the following product
releases: Intel introduced MMX into its P55C model in January 1997. Also, in
early 1997, Advanced Micro Devices, Inc. (AMD(R)) and Cyrix Corporation are
expected to introduce new microprocessors which incorporate architectural
enhancements to Pentium-class processors providing significant performance
improvements when running multimedia applications. AMD will support MMX on their
K6 CPU and the Cyrix(R) M2 processor is expected to be MMX compatible. In
mid-1997, Intel is expected to introduce its Pentium II (previously code-named
Klamath) processor, a next generation Pentium Pro-class CPU that supports MMX
technology and improves 16-bit software performance (the current Pentium-Pro,
which does not include MMX technology, is designed primarily for 32-bit
applications). In late 1997, Intel is expected to release Deschutes, the
code-name for a Pentium Pro CPU processor which is expected to support clock
speeds of 300 to 333 MHz.
24
Competing with x86 microprocessors in various computer markets are the RISC
(Reduced Instruction Set Computing) microprocessor lines, such as DEC's Alpha,
the PowerPC offered by IBM, Motorola and Apple, and CPUs offered by Sun
Microsystems, Inc., Silicon Graphics, Inc. and others. RISC, which was developed
for use in high performance systems such as UNIX(R) network servers and
workstations, is a modern microprocessor architecture requiring significantly
fewer transistors than the older x86 architecture. RISC processors are highly
scaleable and well-suited for performing high speed calculations. The more
established x86 vendors have dominated the RISC-based lines due in part to
software compatibility issues, which are starting to diminish as more
applications are written to work on RISC processors and enhancements (such as
DEC's FX!32 translation software) become available to permit software which
previously could only run on x86 CPUs to work with a RISC microprocessor. DEC
has recently sharply reduced the price of its Alpha CPU in order to compete in
the PC market, claiming that the Alpha is twice as fast as Intel's Pentium Pro
for Window's NT applications or other complex design analysis for applications
such as image rendering, video editing, video conferencing, and mechanical
design, and applications requiring 3-D graphics, such as modeling, animation or
simulations.
This rapid escalation of technology has caused instability in the PC
industry. Because several months may lapse between the manufacture and the
actual sale date of a conventional, pre-configured system, PC manufacturers face
substantial business risk in forecasting which components to include and the
pricing of the system. As technology advancements and price reductions occur,
vendors which have shipped pre-configured systems to their resellers are forced
to offer price protection by reducing the price of their products and issuing
credits to the reseller. These and other concessions further erode the profit
margin of the manufacturer. Meanwhile, resellers unavoidably accumulate
overpriced and aging inventory, and end-users are offered a discount on
yesterday's technology.
One of the fastest growing segments of the PC market is the telephone and
mail order direct response market. Companies in this market, primarily Gateway
and Dell, have been able to capitalize on the destabilizing effect of rapid
technological advances and frequent price reductions. According to IDC, 20
percent of PCs were sold directly to end-users in 1995, up from 18.7 percent of
a smaller market in 1994. This trend appears to have accelerated in recent
months. According to IDC, while the still healthy growth rate of worldwide PC
shipments slowed in the fourth quarter of 1996, as compared to the fourth
quarter of 1995, Dell's shipments grew 69 percent worldwide and Gateway's
shipments grew 39 percent in the United States (where most of Gateway's sales
occur). Because direct marketers sell directly to end-users on a build-to-order
basis, they can sell the latest technology to end-users more quickly than
traditional PC suppliers. In addition, because they have large and rapidly
changing inventories of components, direct marketers can also offer more
configurations of their PCs at the latest industry price points than resellers
who are subject to longer manufacturing to date-of-sale cycles. Some PC
manufacturers have addressed the same market challenge by allowing reseller
partners to perform "channel assembly" in completing the configuration of their
PCs.
THE NEXAR PC SOLUTION
NEXAR believes that its approach of offering the reseller the ability to
provide systems designed for "just-in-time" delivery of key components and easy
upgradability not only relieves the dissatisfaction of end-users regarding
rapid obsolescence of their systems, but also provides the channel reseller with
the most comprehensive solution available for competing with the direct
marketers and addressing the fundamental causes of the low profitability
currently characterizing the PC distribution channel. Because NEXAR's current
and anticipated models simplify upgrades, and because NEXAR XPA systems will
permit cross- processor transitions, the Company believes its PCs could have
useful life cycles up to twice as long as those of most conventionally designed
PCs.
NEXAR systems are designed to be sold by the Company without the key system
defining components. The reseller is then able to offer a NEXAR PC at a
competitive price by avoiding the typical PC manufacturer mark-up on the key
components, which typically represent more than 50 percent of the cost of the
PC. Conventional PC configurations are customarily determined at the
manufacturing site prior to shipment to the reseller thus forcing the end-user
to accept the manufacturers' pre-determined configuration and a price that
includes the manufacturers' mark-up on the key
25
components. Unlike other previously marketed "modular" PCs, NEXAR PCs are
designed to be used with industry-standard components, which can be obtained
from numerous sources at the optimal time and at a competitive price to the
reseller or the end-user.
The NEXAR PC. The current NEXAR PC features an innovative architecture
including patent- pending technology which the Company currently has a license
to market on an exclusive worldwide basis and which it has agreed to acquire no
later than the consummation of the Offering. See " -- Intellectual Property" and
"Certain Transactions." The key elements of this architecture are a custom
designed main integrated circuit board ("motherboard"), co-engineered by HCL
Hewlett Packard Ltd., and a mid-tower chassis design allowing ease of access
through removable side panels, permitting non-technically trained users to
install and replace the key components with industry-standard, off-the-shelf
products. The CPU, RAM and cache of a conventional PC typically reside on top of
a motherboard (usually unaccessible without opening the entire chassis) which
also includes expansion board slots for peripheral and controller cards for
communicating with mass storage and input/output components. The current NEXAR
PC technology places sockets for the CPU, RAM and cache on the undercarriage of
the motherboard, which is accessible through a removable side panel on the
chassis. This design also provides access through another removable side panel
to the expansion slots for cards providing features such as networking and
multimedia functionality. The NEXAR PC also features a lockable, removable hard
disk drive mounted on rails in a design similar to that used in many laptop
computers. This provides the added benefits of permitting increased portability
of data and increased security, attributes which appeal to many government and
corporate buyers, and the use of multiple operating systems on one PC.
The NEXAR XPA PC. When introduced, the Company expects that its
patent-pending NEXAR XPA systems will offer its resellers and end-users all of
the same ease of upgradability features and benefits within a CPU family. NEXAR
XPA will also permit multiple and cross-processor upgrades and transitions on a
single PC. NEXAR XPA PCs, which are scheduled for release in mid-1997, will
allow resellers or end-users to initially select or later vary the type of
microprocessor used in the system from among those based on competing
technologies, such as Pentium, Pentium Pro, Pentium II (Klamath) and other x86
CPUs, or the RISC-based processors such as DEC's Alpha. The Company believes
this capability will become increasingly important as technology advances and
the demands of personal computing intensify. End-users without this ability to
cost-effectively upgrade or switch microprocessors and operating platforms will
face the daunting task of precisely forecasting their own increasingly intensive
information and other computing system requirements, not only with regard to
speed, memory, and data access, but also to accommodate the demands of
graphics-rich applications, Internet and intranet capability and diverse
multimedia functionality. The Company expects that customers purchasing a NEXAR
XPA system will be able to not only increase their PC's speed and capacity as
such advances become available, but will also be able to custom-fit their
operating platform to ever-increasing application needs and capabilities by
converting their system from among various x86 or RISC-based processor lines,
and from among Windows NT, OS/2(R), Mac(R) OS, UNIX and other operating systems.
The Company believes that in most cases, regardless of the demands of the
end-user, a NEXAR XPA PC will be an optimal solution to purchasers seeking
investment protection of their system infrastructure.
STRATEGY
The Company's objective is to claim a significant share of the desktop PC
market by offering open-architecture PCs incorporating technology which enables
end-users in an easy and cost-effective manner to upgrade and transition to the
new and varied CPU platforms of different manufacturers in accordance with
expected roadmaps of fundamental and leading-edge PC technology. The principal
elements of NEXAR's strategy to achieve its goal include the following:
ESTABLISH AND MAINTAIN TECHNOLOGICAL LEADERSHIP IN UPGRADABLE AND
CROSS-PROCESSOR PCS
The Company intends to devote most of its product development efforts to the
implementation of the NEXAR XPA technology to a broad range of microprocessor
platforms and to monitoring and participating in developments in the computer
markets in which it competes generally. These efforts
26
seek to ensure that the Company's future products offer the distribution channel
and end-users the same benefits of investment protection and technical
flexibility as the Company's current and next generation PCs. The Company
intends to periodically advance the design of its PCs, including the NEXAR XPA
technology, to address announced and anticipated technological advances by
leading makers of the system defining components. See " -- Product Development."
FOCUS ON ADVANTAGES OF NEXAR PC DESIGN
The Company believes that its level of success to date (more than $18
million in net sales in the first nine months shipping its current PCs) in the
intensely competitive PC marketplace demonstrates that its central focus on
offering state-of-the-art PCs which forestall system obsolescence will be well
received in the PC marketplace. The Company further believes that the increased
flexibility of its next generation of PCs featuring NEXAR XPA will provide NEXAR
a significant competitive advantage as more variables, such as enhanced
multimedia performance and 32-bit software applications, become factors in the
purchasing decisions within the PC markets in which the Company does and intends
to participate. The design of the Company's existing PCs currently allow, and
the upcoming NEXAR XPA systems are being designed to permit, NEXAR resellers to
offer a significantly broader range of configurations than is possible with
conventionally designed PCs. The benefits of NEXAR's PCs to end-users include
the following:
* Protects the consumer's PC investment by allowing end-users to purchase a
customized PC and to later upgrade components to keep up with technology
advances without incurring the expense of a new system.
* Saves management information systems (MIS) departments of large and small
enterprises time and expense upgrading components or replacing outdated
systems.
* End-users are not locked into the upgrade path of a single manufacturer,
but, instead, can utilize numerous widely-available, industry-standard
components and platforms.
LEVERAGE INDUSTRY EXPERIENCE OF MANAGEMENT TEAM
The Company believes that one of its key competitive advantages is its
sales, marketing and management teams. Several members of the Company's senior
management team, including its Chairman and Chief Executive Officer, Albert J.
Agbay, have worked together for a number of years at various PC companies. Mr.
Agbay has more than twenty years experience working for computer companies,
including PC makers such as NEC, Panasonic and Leading Edge. See "Management."
FOCUS ON CHANNEL MARKETING
The Company markets its products through multiple channels of distribution,
using a controlled distribution model in which a limited number of resellers and
distributors are given exclusive or shared responsibility for certain
territories or market segments in exchange for best-efforts sales volume or
marketing commitments. The Company is initially targeting commercial entities
rather than the home consumer market. Accordingly, the Company primarily
distributes its PCs not through retail outlets, but through the following
channels:
Distributors and Resellers. The Company plans to expand its network of
distributors and resellers by emphasizing the following advantages attained by
carrying NEXAR PCs:
* Reduced inventory depreciation risk and improved profit margins enhanced
by using one system platform and sourcing components on a "just-in-time"
basis.
* The ability to be "first to market" with the latest technology on a
consistent basis by offering customers "next generation" components
without concern for existing pre-configured inventory levels.
* Lower inventory costs due to the ability to stock one line of
semi-configured NEXAR systems in place of several lines of pre-configured
PCs.
* The ability to custom-configure a system on a build-to-order basis in
order to compete effectively against direct marketers such as Gateway 2000
and Dell Computer.
27
In order to enlist resellers to carry NEXAR PCs, the Company has established
a Reseller Partnership Program, under which resellers receive volume price
discounts negotiated by NEXAR on components, making it possible for resellers to
configure and sell the NEXAR PC at competitive prices.
Government Resellers. The Company believes that, in addition to the other
advantages of NEXAR PCs and the increased security and other benefits of the
removable hard disk drive described herein, the NEXAR PC is particularly
appealing to many government buyers because the time required for ordering
entirely new systems is often prohibitive under government regulations, while
component parts can be more timely requisitioned, thereby allowing a government
office to more easily remain technologically current. The Company has entered
into an agreement with Government Technology Services, Inc. (GTSI), a leading
supplier of desktop systems to the U.S. government, pursuant to which GTSI
serves as NEXAR's exclusive federal reseller with respect to GSA scheduled
purchases provided that GTSI purchase at least $35 million of the Company's
products in 1997. GTSI is, however, under no obligation to purchase any products
of the Company. In the year ended December 31, 1996, GTSI accounted for a
majority of the Company's revenues. The Company expects that GTSI will continue
to be an important customer, but that sales to GTSI as a percentage of total
revenue will decline substantially as the Company further expands its
distribution network and increases its overall sales. See " -- Customers." The
Company also pursues relationships with resellers selling to government agencies
not purchasing from the GSA Schedule.
VARs, Systems Integrators and OEMs. The Company believes its PCs enable
value-added resellers (VARs) and systems integrators to offer their clients a
more flexible and cost effective PC and network solution. By offering NEXAR PCs,
VARs and system integrators are able to minimize depreciation of their inventory
and deliver a custom configured system solution virtually on demand, and enable
their customers to reduce their MIS costs. The Company seeks to capture market
share in some territories by entering into agreements with OEMs who will deliver
PCs to their customers with both the OEM's brand name and a product label
identifying that the base unit contains NEXAR technology.
PENETRATE INTERNATIONAL MARKETS
Industry forecasts indicate that the overall international PC market is
growing and will continue to grow faster than the domestic market during the
next several years. Initially, the Company's international strategy is to keep
its overseas sales and marketing costs low by partnering with established
channel participants, especially in Europe where end-users are just beginning to
migrate to the Pentium processor. The Company is currently negotiating with Bull
HN Information Systems to provide NEXAR PCs to Bull's South American division,
which would enable Bull to configure systems with components obtained within the
borders of various countries, thereby producing savings on import taxes and
related charges.
SALES AND MARKETING
The Company's marketing strategy is channel-based, focused primarily on
distributors, value added and other resellers, system integrators, rather than
on end-users. During its initial marketing period, NEXAR has concentrated on
building awareness of NEXAR and its innovative PC architecture with its channel
resellers. To accomplish this, NEXAR advertises regularly in industry
publications such as Computer Reseller News and VAR Business. To generate
end-user "pull-through" demand, NEXAR also advertises in publications such as PC
Week, PC World and PC Magazine. The current NEXAR PC has been reviewed in
publications such as Windows Sources, Windows Magazine, PC World, Computer
Shopper, Computer Reseller News, Computer Life and Government Computer News.
NEXAR provides broad co-op advertising and joint marketing support to its
channel-reseller customers. In particular, NEXAR has co-marketed extensively
with GTSI, its largest customer, to the federal government market. See " --
Strategy -- Government Resellers." The Company conducts its marketing primarily
through meetings with and sales presentations to national and regional
resellers. In addition, the Company displays its products at national and
international trade shows such as COMDEX and PC Expo.
28
The Company executes its marketing strategy primarily through the efforts of
a direct sales force and through independent manufacturer sales representatives.
As of December 31, 1996, NEXAR's sales force consisted of 16 people, eight
located at its Westborough, Massachusetts headquarters and the remainder in
regional locations. The Company intends to increase the size of its sales force
as its revenue grows. As of December 31, 1996, the Company was also a party to
agreements with five independent manufacturer sales representatives. These sales
representatives are primarily responsible for securing sales of NEXAR products
to regional resellers and are paid commissions based on such sales.
CUSTOMERS
The Company manufactures and sells its PCs to resellers of varying size and
market share, including national and regional distributors, value-added and
other resellers, computer and office superstores, system integrators, direct
response resellers, and independent dealers.
The following is a representative listing of NEXAR resellers:
<TABLE>
<CAPTION>
<S> <C>
NATIONAL AND REGIONAL DISTRIBUTORS COMPUTER SUPERSTORES
- ---------------------------------- --------------------
Ingram Micro, Inc. Fry's Electronics, Inc.
Gates/Arrow Distributing, Inc. Elek-tek, Inc.
MicroAge Computer Centers, Inc. Nationwide Computers & Electronics, Inc.
Avnet Computer Marketing Group The Computer Factory
Computer Attic
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
OEMS AND VARS GOVERNMENT RESELLERS DIRECT RESPONSE RETAILER
- ------------- -------------------- ------------------------
Bull HN Information Government Technology MicroWarehouse, Inc.
Systems Services, Inc. (GTSI)
CompUSA Inc. Comstor/GE Capital
GSMBSoft Systems, Inc. Pulsar Data Systems Inc.
Gibraltar Computer
Bay Resources Inc.
</TABLE>
In the fiscal year ended December 31, 1996, GTSI accounted for a majority of
the Company's revenues. The Company expects that GTSI will continue to be an
important customer, but that sales to GTSI as a percentage of total revenue will
decline substantially as the Company further expands its distribution network
and increases its overall sales. The Company's business plan for 1997
anticipates that sales to GTSI will continue to represent a significant portion
of the Company's sales during the fiscal year. The Company has entered into an
agreement with GTSI pursuant to which GTSI must purchase at least $35 million
worth of products in order to retain its status as the Company's exclusive
reseller with respect to GSA scheduled purchases, but GTSI is under no
obligation to purchase any products from the Company. The loss of GTSI as a
significant customer, or if GTSI purchases significantly less products than the
Company anticipates, would have a material adverse effect on the Company. See
"-- Strategy -- Channel Marketing -- Focus on Government Resellers" and Note 3
of Notes to Consolidated Financial Statements.
29
PRODUCTS
The NEXAR PC is a high-performance system platform configured with the
following components: system chassis with removable side panels, custom designed
motherboard, power supply, video controller, input/output controller, floppy
disk drive, caddy for removable hard disk, keyboard, mouse, and hardware
manuals. The Company occasionally includes additional components, including the
key system defining components (CPU, memory and hard drive) and peripherals such
as monitors and modems at the customer's request. NEXAR PCs sold by resellers
fully configured have list prices generally ranging from $1,200 to $2,500,
depending upon the components included.
The following graphic illustrates the broad range of configurations made
possible by a NEXAR PC:
GRAPHIC DEPICTING NEXAR PC INDICATING ALTERNATIVES AVAILABLE WITH RESPECT TO
REPLACEABLE COMPONENTS. THE GRAPHIC CONTAINS THE FOLLOWING TEXT POINTING TO THE
RELEVANT PORTIONS OF THE PC:
* Removable hard drive caddy slides in and out, and locks in place
* DIMM and SIMM memory (RAM) sockets
* Secondary cache socket
* Easy access to CPU socket for upgrades
* Right side, removable panel to access processor, memory, cache and
voltage regulator module
* Left side, removable panel to access modem, video, audio and network
interface cards
* Voltage regulator module socket to accommodate higher performing CPUs
operating at varying voltages
CPU Alternatives: A single Socket 7 with zero insertion force (ZIF) lever
allows for easy removal and insertion of the microprocessor. The motherboard is
designed to accept current and future Pentium and compatible processors by
adjusting the bus speed and synchronizing the voltage output of the motherboard.
NEXAR's custom designed motherboard not only accommodates these future processor
technologies but allows the end user to install the processor and make the
adjustments to bus speed and voltage without technical assistance.
Hard Drive Alternatives: The removable caddy supports industry
standard EIDE or SCSI hard drives. The Company offers a SCSI controller as
an option.
Memory Alternatives: For random access memory, the NEXAR PC motherboard
includes 2 SIMM and 2 DIMM sockets supporting up to 128MB of either Fast Page
Mode, Extended Data Output or Synchronous Dynamic Random Access Memory. For
secondary cache memory, a single socket supports either
256K or 512K "cache on a stick" modules.
FUTURE PRODUCTS
NEXAR XPA PCs. NEXAR currently plans to begin shipping its patent-pending
NEXAR Cross-Processor Architecture systems in the second quarter of 1997. The
NEXAR XPA systems will offer all of the same features and benefits as the
Company's current PCs and will also permit
30
cross-processor upgrades on a single PC. A NEXAR XPA PC will allow resellers or
end-users to initially select or later vary the type of microprocessor used in
the system from one of several state-of-the-art CPU product families, and, as
NEXAR introduces replaceable circuit boards compatible with the initial system
purchased, RISC-based microprocessors. Initially, NEXAR XPA systems will enable
the use of either Pentium CPUs or the Pentium Pro CPUs which currently have
different socket configurations and are thus not currently replaceable in
conventional PCs. The multi-platform support will be designed to accept either
Microsoft Windows 95, Windows NT or RISC-based operating systems. In addition,
NEXAR XPA systems will support emerging expansion bus technologies, such as
universal serial bus and accelerated graphics port (AGP).
The NEXAR Server. NEXAR currently plans to offer by late 1997 a
state-of-the-art conventionally-designed, high performance file server offering
the option of one to four Pentium Pro CPUs with fault tolerance and redundant
design of critical components to support mission-critical database,
Internet-server and transaction processing applications. This product is being
planned because some of NEXAR's resellers have requested a server of this design
to complete NEXAR's product offerings to the corporate end-users.
CUSTOMER SERVICE AND SUPPORT
NEXAR PCs are sold with a three-year limited warranty on hardware with
one-year on-site service. To provide its customers with technical support, NEXAR
has entered into an agreement with Wang, pursuant to which Wang provides NEXAR's
customers with one year on-site hardware support, including diagnostics and
repair. Wang also provides telephone support for software products bundled with
NEXAR's systems for a period of ninety days after purchase. Wang support is
provided directly to NEXAR's customers. In addition, service contract extensions
are available. Customers can also obtain hardware support via the Internet or a
toll free telephone number. While the Company selected Wang based on its belief
that Wang has the capability to perform these warranty obligations on a timely
and efficient basis, the failure of Wang to meet the demands of the end-users of
the Company's products could materially and adversely affect the reputation of
the Company and its products, which in turn could result in lower sales and
profits.
PRODUCT DEVELOPMENT
The market for NEXAR's products is characterized by rapid technological
change involving the application of a number of advanced technologies, including
those relating to computer hardware and software, mass storage devices, and
other peripheral components. The Company's ability to remain competitive depends
upon its ability to anticipate and effectively react to technological change.
The Company currently has only a limited product development staff. The Company
has entered into a Development Agreement with GDA Technologies, Inc. (GDA), a
provider of computer engineering services, to develop its new patent-pending
Cross-Processor Architecture and to implement this technology on several main
integrated circuit boards to be introduced for use in NEXAR PCs in mid- 1997.
Although the Company believes that it could find and engage equivalent
development and engineering services elsewhere within a reasonable period of
time, or hire sufficient capable engineers to perform such development work
in-house, the inability of GDA to adequately perform such services on a timely
basis could have a short-term material adverse effect on the Company. The
Company estimates that it will spend approximately $500,000 in the first six
months of 1997 for various product development activities, predominately
engineering services performed by GDA.
From its inception, NEXAR has devoted continuing efforts to research and
development activities both to develop the current line of NEXAR PCs and to
introduce new models that further leverage the Company's proprietary technology
in providing simplified upgradability of major components and the ability to
accommodate emerging and future technologies. Current development efforts are
principally directed to implementation of its new NEXAR XPA architecture. The
Company's future success will be highly dependent upon its ability to develop,
produce and market products that incorporate new technology, are priced
competitively and achieve significant market acceptance. There can be no
assurance that the Company's products will be technically advanced or
commercially successful due to the rapid improvements in computer technology and
resulting product obsolescence. There is also no assurance that the Company will
31
be able to deliver commercial quantities of new products in a timely manner. The
success of new product introductions is dependent on a number of factors,
including market acceptance, the Company's ability to anticipate and manage
risks associated with product transitions, the effective management of inventory
levels in line with anticipated product demand and the timely manufacturing of
products in appropriate quantities to meet anticipated demand. The failure of
the Company to develop, produce and market commercially viable products could
result in the Company's business, operating results and financial condition
being materially and adversely affected.
The Company's product development efforts will continue to require
substantial investments by the Company for third-party research, refinement and
testing, and there can be no assurance that the Company will have the resources
sufficient to make such investments. Participants in the PC industry generally
rely on the creation and implementation of technology standards to win the
broadest market acceptance for their products. The Company must successfully
manage and participate in the development of standards while continuing to
differentiate its products in a manner valued by customers. While industry
participants generally accept, and may encourage, the use of their intellectual
property by third parties under license, nonetheless, when intellectual property
owned by competitors or suppliers becomes accepted as an industry standard, the
Company must obtain a license, purchase components utilizing such technology
from the owners of such technology or their licensees, or otherwise acquire
rights to use such technology. The failure of the Company to license, purchase
or otherwise acquire rights to such technologies could result in the Company's
business, operating results and financial condition being materially and
adversely affected.
MANUFACTURING
The Company operates a 100,000 square foot manufacturing facility in
Hayward, California. The Company's manufacturing operations consist primarily of
assembly, test and quality control of its PC systems. The single shift capacity
of the facility is up to 15,000 units produced per month, although NEXAR's
actual manufacturing capacity depends in part on the ability of NEXAR's
suppliers to provide it with assembled circuit boards.
The Company uses industry-standard components for its products and contracts
with specific vendors to manufacture certain components included in its
products, primarily circuit boards. Most of these components are generally
available from multiple sources; however, NEXAR relies on two contract
manufacturers to manufacture motherboards used in its PCs and plans to rely on a
sole outside contractor to manufacture the motherboard used in its server
product. In the fourth quarter of 1996, the Company was unable to obtain on a
timely basis sufficient quantities of certain key components to meet all of its
outstanding purchase orders. The Company has also been unable to obtain
sufficient quantities of certain components in the first quarter of 1997, which
has caused delays in some shipments. It has since taken certain steps, including
increasing inventory levels, developing additional suppliers and improving
management procedures, to reduce the likelihood of such shortages in the future.
The Company conducts testing and quality control evaluations and integrates the
circuit boards into the finished product. The Company intends to seek ISO 9002
certification during 1997.
BACKLOG
The Company had $4,101,400 of unfilled firm purchase orders as of December
31, 1996, a 57 percent increase from September 30, 1996. This level of and
increase in backlog was due to new orders from additional customers and the
delay in meeting outstanding purchase orders during the fourth quarter of 1996
because the Company was unable to obtain on a timely basis sufficient quantities
of key components. The Company does not believe that its current and future
product order backlogs are or will be a meaningful indicator of the Company's
business prospects as it expects it will generally be able to ship its products
within 30 days of the receipt of orders. See "-- Manufacturing," "Management's
Discussion and Analysis of Financial Condition and Results of Operation," and
"Risk Factors -- Reliance on Suppliers."
COMPETITION
The desktop PC industry is intensely competitive and may become more so as
the result of, among other things, the introduction of new competitors
(including large multi-national, diversified companies) and possibly weakening
demand. The Company currently competes in the desktop PC market principally with
32
Acer, Apple Computer, Compaq Computer, Dell Computer, Gateway 2000,
Hewlett-Packard, IBM and Packard Bell NEC. In addition, the Company plans to
compete in the network server market by late 1997 with established companies
such as ALR, Compaq, Dell, Hewlett-Packard and IBM. All of these companies have
stronger brand recognition, significantly greater financial, marketing,
manufacturing, technological and distribution resources, broader product lines
and larger installed customer bases than does the Company. Principal competitive
factors include product features, product performance, quality and reliability,
the ability to deliver product to customers in a timely fashion, customer
service and support, marketing and distribution capabilities and price. Also, in
order to compete successfully, the Company must attract and retain a sufficient
number of management, sales, and technical personnel with high levels of
relevant skills and meaningful experience. Although the Company has assembled an
experienced senior management team, there can be no assurance that the Company
will be able to attract and retain sufficient numbers of additional personnel,
as the need for such individuals increases with the Company's anticipated
growth, or maintain or improve its current position with respect to any of these
or other competitive factors. This intense competition could result in loss of
customers or pricing pressures, which would negatively affect the Company's
results of operations.
The Company's ability to compete favorably is dependent, in significant
part, upon its ability to control costs, react timely and appropriately to
short- and long-term trends and competitively price its products while
preventing erosion of its margins, and there is no assurance that the Company
will be able to do so. Many of the Company's competitors can devote greater
managerial and financial resources than the Company can to develop, promote and
distribute products and provide related consulting and training services. Some
of the Company's competitors have established, or may establish, cooperative
arrangements or strategic alliances among themselves or with third parties, thus
enhancing their ability to compete with the Company. There can be no assurance
that the Company will be able to compete successfully against current or future
competitors or that the competitive pressures faced by the Company will not
materially and adversely affect its business, operating results and financial
condition.
INTELLECTUAL PROPERTY
The Company's success is dependent in large part upon its intellectual
property rights. The Company has rights to two pending patent applications
covering the essential technology which enables the easy installation, removal
and replacement of key components in the Company's PCs. The Company filed a
patent application in late 1996 covering its proprietary Cross Processor
Architecture(tm) (NEXAR XPA(tm)) technology, which is expected to be used in the
Company's PCs by mid-1997. Also, the Company has agreed to acquire, no later
than the closing of the Offering, a patent application originally filed in March
1995 together with the related technology which is currently included in the
Company's PCs under an exclusive license agreement. See "Certain Transactions --
Other Related Party Transactions." Although the Company has been advised that a
notice of allowability has been issued by the United States Patent and Trademark
Office with respect to certain of the claims made in the patent application to
be acquired, there can be no assurance that this preliminary determination will
result in the issuance of a patent or that a patent will be issued with respect
to the Company's XPA patent application. Even if issued there can be no
assurance that any such patents would survive a legal challenge to their
validity or provide adequate protection. In addition, the Company has not
conducted any formal study of prior art and, therefore, has not determined what
effect any prior art may have on any such patents that may issue. The Company
also relies on copyrights, unpatented trade secrets and trademarks to protect
its proprietary technology. In addition, there can be no assurance that the
Company will be able to afford the expense of any litigation which may be
necessary to enforce its rights under any such patent. Also, no assurance can be
given that the Company's competitors will not independently develop or otherwise
acquire substantially equivalent techniques or otherwise gain access to the
Company's proprietary technology or that the Company can ultimately protect its
rights to such proprietary technology. The Company also relies on
confidentiality agreements with its collaborators, employees, advisors, vendors
and consultants to protect its proprietary technology. There can be no assurance
that these agreements will not be breached, that the Company would have adequate
remedies for any breach or that the Company's trade secrets will not otherwise
become known or be independently developed by competitors. Failure to obtain or
maintain patent and trade secret protection, for any reason, could have a
material adverse effect on the Company's business, financial condition and
results of operations.
33
Although the Company believes that its products do not infringe patents or
other proprietary rights of third parties, there can be no assurance that the
Company is aware of patents or other proprietary rights that may be infringed by
the Company's products, that any infringement does not exist or that
infringement may not be alleged by third parties in the future. If infringement
is alleged, there can be no assurance that the necessary licenses would be
available on acceptable terms, if at all, or that the Company would prevail in
any related litigation. Patent litigation can be extremely protracted and
expensive even if the Company ultimately prevails, and involvement in such
litigation could have a material adverse effect on the business, results of
operations and financial condition of the Company.
EMPLOYEES
As of December 31, 1996, NEXAR had 67 employees, including executive
officers, sales, marketing, technical support, finance, manufacturing,
engineering, and administrative personnel. Twenty-eight of these employees are
employed at the Westborough, Massachusetts facility, and 39 are employed at the
Hayward, California facility. In addition, the Company currently utilizes
contract labor to meet its manufacturing needs on an ongoing basis. None of the
Company's employees is represented by a collective bargaining agreement, nor has
the Company experienced work stoppages. The Company believes that its relations
with its employees are satisfactory.
FACILITIES
The Company's headquarters and executive offices are located in a leased
facility in Westborough, Massachusetts. The Westborough facility also serves as
the base for NEXAR's sales, marketing, technical support, and general and
administrative functions. The facility, totaling approximately 7,000 square
feet, is leased through August 1998. The annual rent under the terms of the
lease agreement is approximately $84,000 per year. The Company believes that
suitable additional or alternative space will be available, when needed, on
commercially reasonable terms.
The Company's manufacturing, engineering, and warehousing operations are
located in a leased facility in Hayward, California, which is leased for a five
year period expiring in August 2001, with a five year option to extend. The
annual base rent under the lease agreement begins at approximately $288,000 in
the first year and increases annually to approximately $528,000 in 2001. The
Company is also responsible for the operating expenses and real estate taxes
relating to the leased premises.
See "Manufacturing."
LITIGATION
As of the date of this Prospectus, the Company is not a party to any
material legal proceedings, except as arise in the ordinary course of its
business.
34
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The executive officers, directors and director nominee of the Company and
their ages as of December 31, 1996 are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
<S> <C> <C>
Albert J. Agbay 48 Chairman of the Board, Chief Executive Officer
and President
Gerald Y. Hattori 45 Vice President of Finance, Chief Financial
Officer and Treasurer
Michael J. Paciello 45 Executive Vice President
Liaqat Y. Khan 45 Executive Vice President of Manufacturing
Victor J. Melfa, Jr. 38 Senior Vice President of Sales
E. Craig Conrad 38 Vice President of Marketing
James P. Lucivero 41 Vice President -- Eastern United States Sales
Steven Georgiev 62 Director and Secretary
Joseph E. Levangie(1) 51 Director
Buster C. Glosson(1) 54 Director
Joseph P. Caruso 37 Director and Assistant Secretary
Morton Goldman 67 Director Nominee
</TABLE>
- ----------
(1) Member of the Audit Committee
ALBERT J. AGBAY has been Chief Executive Officer and President of the
Company since March 1995 and its Chairman of the Board of Directors since
October 1995. From July 1994 to February 1995, Mr. Agbay served as Chief
Executive Officer of Columbia Advanced Systems Corporation (Columbia Advanced
Systems), a manufacturer of PCs and a subsidiary of Apaq, Inc., also a
manufacturer of PCs. From August 1993 to July 1994, Mr. Agbay served as Chairman
and Chief Executive Officer of Swan Technologies, Inc. (Swan), a direct response
supplier of PCs and peripheral computer products. Swan filed a petition for
reorganization under Chapter 11 of the United States Bankruptcy Code in December
1994. From January 1990 to March 1993, Mr. Agbay served as President and Chief
Executive Officer of Leading Edge Products, Inc. (Leading Edge), a manufacturer
of PCs. From April 1988 to January 1990, Mr. Agbay served in senior management
as Northeast Region General Manager for Panasonic Communications and Systems
Company, a manufacturer of electronics and telecommunications products. From
August 1985 to April 1989, Mr. Agbay worked for Panasonic Industrial Company, in
its Computer Products Division as Northeast Region Manager and later assumed
more territorial responsibility as Group General Manager, Eastern Region.
GERALD Y. HATTORI has been Vice President of Finance, Chief Financial
Officer and Treasurer of the Company since October 1996. Prior to joining the
Company, from September of 1987 to September 1996, Mr. Hattori served as
corporate controller at SIPEX Corporation, a manufacturer of analog
semiconductors. Mr. Hattori previously held various corporate and divisional
financial management positions from January 1974 to August 1987 at Sanders, a
Lockheed Martin Company.
MICHAEL J. PACIELLO has been Executive Vice President of the Company
since March 1995. From July 1994 to March 1995, Mr. Paciello served as
Executive Vice President of Columbia Advanced Systems. From August 1993 to
July 1994, Mr. Paciello served as Executive Vice President of Swan. Before
joining Swan, Mr. Paciello served from October 1991 to August 1993 as
Executive Vice President, and from January 1990 to October 1991 as Vice
President of Sales, of Leading Edge.
LIAQAT Y. KHAN has been Executive Vice President of Manufacturing for the
Company since December 1996. He was Vice President of Manufacturing from
September 1995 to November 1996. From August 1993 to May 1995, Mr. Khan served
as Vice President at Intelligent Computers and Technologies,
35
Inc., a PC manufacturer which filed a petition for reorganization under Chapter
11 of the Bankruptcy Code in May 1995. From February 1992 to May 1993, he was
Vice President of Manufacturing for Asina, Inc., which subsequently changed its
name to Apaq, Inc., a computer products manufacturer. From August 1991 to
February 1992 Mr. Khan served as Director of Manufacturing for Synergistic
Computers, Inc., a desktop computer manufacturer. During this period, Mr. Khan
was also President of A&M Research, a manufacturer of mechanical components for
high tech applications.
VICTOR J. MELFA, JR. has been Senior Vice President of Sales for the Company
since March 1995. From July 1994 to February 1995, Mr. Melfa served as Vice
President of Sales for Columbia. From February 1994 to July 1994, Mr. Melfa
worked at Swan Technologies as Vice President of Marketing. From February 1993
to February 1994, Mr. Melfa served as an Executive Vice President of Ameriquest
Technologies, Inc., a computer products distributor and wholly-owned subsidiary
of Computer 2000. In February of 1993, Ameriquest Technologies acquired Vitronix
Corp., a computer products distributor situated in Westborough, Massachusetts.
Mr. Melfa was President of Vitronix Corp. from September 1984 to February 1993.
E. CRAIG CONRAD is Vice President of Marketing for the Company, a position
he has held since joining the Company in April 1996. From May 1995 to April
1996, Mr. Conrad served as the Director of Consumer Marketing for Digital
Equipment Corporation in Maynard, Massachusetts. From May 1993 to April 1995,
Mr. Conrad worked at IBM as Program Director of Consumer Desktop Brand
Management for the Aptiva line of PCs and was a Director of Marketing
Communications for AMBRA Computer Corporation, a subsidiary of IBM formed in
1993. From February 1990 to April 1993, Mr. Conrad was Director of Marketing at
Leading Edge.
JAMES P. LUCIVERO has been Vice President -- Eastern United States Sales of
the Company since March 1995. From September 1994 to February 1995 Mr. Lucivero
served as Vice President of Sales at Columbia Advanced Systems. From September
1993 to July 1994, Mr. Lucivero was Vice President of Sales at Swan
Technologies, Inc. From January 1990 to July 1993, Mr. Lucivero served as Senior
Vice President at Leading Edge Products, Inc.
STEVEN GEORGIEV has been a director of the Company since March 1995 and was
Chairman of the Board of Directors from March 1995 to September 1995. He has
served as Chief Executive Officer of Palomar since November 12, 1993, becoming a
full time employee in January 1995. Mr. Georgiev was a consultant to Dymed
Corporation, (Dymed), Palomar's predecessor, from June 1991 until the September
1991 merger of Dymed with Palomar, at which time he became Palomar's Chairman of
its Board of Directors. Mr. Georgiev is a financial and business consultant to a
variety of emerging, high growth companies. Mr. Georgiev has been a director of
Excel Technology, Inc., a publicly-held company located in Hauppauge, New York,
since October 1992, and was a director of Cybernetics Products, Inc., a
publicly-held company, from August 1988 until January 1992. Mr. Georgiev was
Chairman of the Board of Directors of Dynatrend, Inc. a publicly-traded
consulting firm that he co- founded in 1972, until February 1989. Dynatrend,
Inc. was subsequently acquired by EG&G, Inc., a publicly-held company. Mr.
Georgiev is also Chairman of the Board of The American Materials and
Technologies, Inc., a publicly-held company.
JOSEPH E. LEVANGIE has been a director of the Company since March 1995 and a
director of Palomar since August 1991. He was a consultant to Dymed from June
1991, until its merger with Palomar, at which time he became Palomar's part-time
Chief Financial Officer, a position he held until December 1992. He is currently
a part time consultant to Palomar. Mr. Levangie is also Chief Executive Officer
of JEL & Associates, a private financial consulting firm which he founded in
1980. Currently Mr. Levangie serves as a director for GreenMan Technologies,
Inc., a publicly-held corporation.
BUSTER C. GLOSSON has been a director of the Company since December 1996.
From 1965 until June 1994, he was an officer in the United States Air Force
(USAF). Most recently, he served as a Lieutenant General and Deputy Chief of
Staff for plans and operations, Headquarters USAF, Washington, D.C. Mr. Glosson
is a veteran of combat missions in Vietnam and, during the Gulf War, he
commanded the 14th Air Force Division and was the architect of the Gulf War Air
Campaign. In 1994 he founded and has since served as President of Eagle Ltd., a
consulting firm concentrating on international business opportunities in the
high-technology arena. He is also Chairman and CEO of Alliance Partners Inc., an
investment holding company developing international oil and power projects.
36
He has also served as a director of GreenMan Technologies, Inc., a publicly-held
company, since August 1994, of The American Materials and Technologies
Corporation, and of Skysat Communication Network Corporation, a publicly held
company, since July 1996.
JOSEPH P. CARUSO has been a director of the Company since December 1996. He
was previously a director from March 1995 to September 1995 and President of the
Company in March 1995. Mr. Caruso joined Palomar in March 1992 as Controller in
a part-time capacity, becoming a full-time employee in June 1992 and their Chief
Financial Officer in January 1993. From October 1989 to June 1992, Mr. Caruso
was the Chief Financial Officer of Massachusetts Electrical Manufacturing Co.,
Inc., a privately held manufacturer of power distribution equipment.
MORTON GOLDMAN has agreed to become a director of the Company upon
consummation of the Offering. Since July 1994, Mr. Goldman has been a private
investor. From 1982 to July 1994 Mr. Goldman was Chairman of the Board of
Elek-Tek, Inc., a publicly held reseller of personal computers and related
products. Mr. Goldman co-founded Elek-Tek in 1979 and held numerous senior
management positions with the company from 1979 to May 1992, including Chief
Advertising and Marketing Director.
CLASSES OF DIRECTORS
Each director currently holds office until the next annual meeting of
stockholders and until that director's successor has been elected and qualified.
Pursuant to the Company's Restated Charter, upon the consummation of the
Offering, the Company's Board of Directors will be composed of three classes
serving staggered three year terms.
EXECUTIVE OFFICERS
Executive officers of the Company are elected by the Board of Directors on
an annual basis and serve until the next annual meeting of the Board of
Directors and until their successors have been duly elected and qualified. There
are no family relationships among any of the executive officers or directors of
the Company.
BOARD COMMITTEES
The Company's Board of Directors has established an Audit Committee and
appointed Messrs. Glosson and Levangie to be its members. The Audit Committee
will be responsible for nominating the Company's independent accountants for
approval by the Board of Directors, reviewing the scope, results and costs of
the audit with the Company's independent accountants and reviewing the financial
statements and audit practices of the Company. The Company does not currently
have a compensation or nominating committee, or committees performing equivalent
functions of either a compensation or nominating committee.
DIRECTOR COMPENSATION
No compensation has ever been paid to any of the directors of the Company
for service in such capacity to the Company. Non-employee directors of the
Company shall be eligible to receive stock options under the Company's 1996
Non-Employee Director Stock Option Plan after consummation of the Offering. See
" -- Stock Plans -- Director Plan."
EXECUTIVE COMPENSATION
The following table sets forth compensation awarded to, earned by or paid
for services rendered to the Company in all capacities during the fiscal years
ended December 31, 1995 and December 31, 1996 by the Company's Chief Executive
Officer and for the fiscal year ended December 31, 1996 by the other four most
highly compensated executive officers of the Company (collectively, the "Named
Executive Officers"). Pursuant to rules of the Securities and Exchange
Commission (SEC), information with respect to years prior to 1996 is not
provided with respect to the Named Executive Officers, other than the Chief
Executive Officer, for whom information was previously filed with respect to
1995, pursuant to an SEC filing requirement.
37
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
ANNUAL COMPENSATION COMPENSATION
------------------- ------------
NUMBER OF
OTHER SECURITIES
ANNUAL UNDERLYING ALL OTHER
YEAR SALARY($) BONUS($) COMPENSATION($)(1) OPTIONS COMPENSATION(2)
---- --------- -------- ------------------ ------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Albert J. Agbay 1996 $225,000 $376,472(3) $12,000 1,044,480 $ 4,750
Chief Exective Officer and
President
1995 182,423 -- 12,000 1,651,203(4) --
Liaqat Y. Kahn 1996 111,923 340,840(3) 8,250 361,560 4,750
Executive Vice President of
Manufacturing
Michael J. Paciello 1996 110,000 83,720(3) 6,000 241,080 4,750
Executive Vice President
Victor J. Melfa, Jr. 1996 100,384 81,115(3) 6,000 241,080 4,750
Senior Vice President of Sales
James P. Lucivero 1996 100,000 80,645(3) 6,000 241,080 4,750
Vice President of Sales --
Eastern United States
</TABLE>
- ---------
(1) Consists of amounts paid as car allowances.
(2) Consists of the Company's contribution under Palomar's deferred
compensation plan established by Palomar for it and its subsidiaries under
Section 401(k) of the Internal Revenue Code.
(3) Includes $325,000, $325,000, $65,000, $65,000 and $65,000 in bonuses to be
paid by Palomar to Messrs. Agbay, Khan, Paciello, Melfa and Lucivero,
respectively.
(4) Such option grant was cancelled pursuant to an agreement between Mr. Agbay
and Palomar Electronics Corporation (PEC), a wholly-owned subsidiary of
Palomar, in connection with a September 1995 reorganization in which the
Company became a wholly-owned subsidiary of PEC. Pursuant to such
agreement, Mr. Agbay received an option exercisable for shares of common
stock of PEC in consideration of his agreement to cancel such options. Such
option grant issuable for common stock of PEC was subsequently cancelled
pursuant to a cancellation agreement between Mr. Agbay and PEC. Mr. Agbay
separately received a new option grant in 1996 as reflected in his
beneficial ownership set forth in the table appearing under "Beneficial
Ownership of Principal Stockholder and Management" below.
<TABLE>
<CAPTION>
OPTION GRANTS IN LAST FISCAL YEAR
---------------------------------
POTENTIAL REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF STOCK PRICE
APPRECIATION
FOR OPTION TERMS($)(3)
----------------------
NUMBER OF % OF TOTAL
SECURITIES OPTIONS
UNDERLYING GRANTED TO EXERCISE
OPTIONS EMPLOYEES IN PRICE EXPIRATION
NAME GRANTED FISCAL YEAR ($/SH.) DATE 5% 10%
---- ------- ----------- ------- ---- -- ---
<S> <C> <C> <C> <C> <C> <C>
Albert J. Agbay 1,044,480(1) 36.0% .0025 01/30/2001 $721.43 $1,594.16
Liaqat Y. Kahn 361,560(2) 12.5% .0025 01/30/2001 $249.73 $ 551.84
Michael J. Paciello 241,080(2) 8.3% .0025 01/30/2001 $166.51 $ 367.95
Victor J. Melfa, Jr. 241,080(2) 8.3% .0025 01/30/2001 $166.51 $ 367.95
James P. Lucivero 241,080(2) 8.3% .0025 01/30/2001 $166.51 $ 367.95
- --------
(1) Such option was fully exercisable on the date of grant. See also footnote
(4) to the Summary Compensation Table above.
(2) The exercisability of all such options were initially granted subject to
ratable annual vesting over four years. The respective employment
agreements of each of the indicated Named Executive Officers provide that
half of all such option shares shall vest upon consummation of the Offering
and that such option shares shall vest in full on the first anniversary
date of the Offering or upon a change in control transaction. See "--
Employment and Severance Agreements."
(3) As required by rules of the SEC, potential values stated are based on the
prescribed assumption that the Company's Common Stock will appreciate in
value from the date of grant to the end of the option term at rates
(compounded annually) of 5% and 10%, respectively, and therefore are not
intended to forecast possible future rates of appreciation, if any, in the
price of the Company's Common Stock. The total of all stock options granted
to the Company's directors and employees, including executive officers,
during fiscal 1996 was approximately 71% of the total shares of Common
Stock outstanding at the end of the fiscal year.
</TABLE>
38
FISCAL YEAR-END OPTION VALUES
The following option year-end value table sets forth information with
respect to the unrealized value (the difference between the exercise price and
fair market value of the Common Stock ($12.00) as determined by the Board of
Directors) of unexercised options issued by the Company and held by the Named
Executive Officers on December 31, 1996. No options were exercised by any of the
Named Executive Officers in 1996. Only vested options as of such date were then
exercisable.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES UNDERLYING UNEXERCISED VALUE OF UNEXERCISED IN-THE-MONEY
OPTIONS AT FISCAL YEAR END OPTIONS AT FISCAL YEAR END($)
(ALL EXERCISABLE AT FISCAL YEAR-END) (ALL EXERCISABLE AT FISCAL YEAR END)
NAME VESTED UNVESTED TOTAL VESTED UNVESTED TOTAL
---- ------ -------- ----- ------ -------- -----
<S> <C> <C> <C> <C> <C> <C>
Albert J. Agbay 1,044,480 -- 1,044,480 $12,531,149 $ -- $12,531,149
Liaqat Y. Khan -- 361,560 361,560 -- 4,337,816 4,337,816
Michael J. Paciello -- 241,080 241,080 -- 2,892,357 2,892,357
Victor J. Melfa, Jr. -- 241,080 241,080 -- 2,892,357 2,892,357
James P. Lucivero -- 241,080 241,080 -- 2,892,357 2,892,357
</TABLE>
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Company does not have a compensation committee. No executive officer of
the Company has served as a director or a member of the compensation committee
(or other committee serving an equivalent function) of another entity, whose
executive officers served as a director of the Company. Mr. Agbay, Chairman of
the Board of Directors and the Chief Executive Officer and President of the
Company, participates in deliberations of the Board of Directors concerning
executive officer compensation.
STOCK PLANS
1995 STOCK OPTION PLAN
The Company's 1995 Stock Option Plan (as amended, the "1995 Plan") was
adopted by the Board of Directors and approved by the sole stockholder of the
Company as of March 1995. An amendment and restatement of the 1995 Plan was
adopted by the Board and approved by the Company's stockholders in February
1997. The 1995 Plan provides for the grant of stock options to employees,
officers and directors of, and consultants or advisors to, the Company and its
subsidiaries. Under the 1995 Plan, the Company may grant options qualified as
"incentive stock options" under U.S. federal tax law or non-qualified stock
options. Incentive stock options may only be granted to employees of the Company
or its parents or subsidiaries. A total of 5,300,000 shares of Common Stock may
be granted under the 1995 Plan. Unless sooner terminated pursuant to its terms,
the 1995 Plan will terminate in June 2005.
1996 EMPLOYEE STOCK PURCHASE PLAN
The Company's 1996 Employee Stock Purchase Plan (the "Purchase Plan") was
adopted by the Board of Directors in December 1996, and approved by its
stockholders in February 1997 and will become effective upon the closing of the
Offering. The Purchase Plan authorizes the issuance of up to a total of 200,000
shares of Common Stock to participating employees.
All employees of the Company whose customary employment is in excess of 20
hours per week and more than five months per year, other than those employees
who own 5% or more of the stock of the Company, will be eligible to participate
in the Purchase Plan. As of December 31, 1996, approximately 66 of the Company's
employees would have been eligible to participate in the Purchase Plan. The
Purchase Plan will be implemented by one or more offerings of such duration as
the Board of Directors or a committee thereof may determine, provided that no
offering period may be longer than 27 months. An eligible employee participating
in an offering will be able to purchase Common Stock at a price equal to the
lessor of: (i) 85% of its fair market value on the date the right was granted,
or (ii) 85% of its fair market value on the date the right was exercised.
Payment for Common Stock purchased under the Purchase Plan will be through
regular payroll deduction or lump sum cash payment, or both, as determined by
the Board of Directors or a committee thereof. The maximum value of Common Stock
39
an employee may purchase during an offering period is 10% of the employee's base
salary during such period, calculated on the basis of the employee's
compensation rate on the date the employee elects to participate in that
offering.
DIRECTOR PLAN
The Company's 1996 Non-Employee Director Plan (the "Director Plan") was
adopted by the Board of Directors in December 1996 and approved by its
stockholders in February 1997 and will become effective upon the closing of the
Offering. Under the terms of the Director Plan, options to purchase 15,000
shares of Common Stock (the "Initial Options") will be granted to each person
who becomes a non-employee director after the effective date of the Offering and
who is not otherwise affiliated with the Company, effective as of the date of
election to the Board of Directors. The Initial Options will vest in equal
annual installments over three years after the date of grant. In addition each
non-employee director will receive 10,000 shares ("Annual Options") on the date
of each annual meeting of the Company's stockholders held after the closing of
the Offering. The Annual Options will vest on the first anniversary of the date
of grant. Both Initial Options and Annual Options will be exercisable at the
fair market value of the Common Stock on the date of grant. A total of 100,000
shares of Common Stock may be issued upon the exercise of stock options granted
under the Director Plan. Unless sooner terminated pursuant to its terms, the
Director Plan will terminate in December 2006.
401(K) PLAN OF PALOMAR
The Company's employees are eligible to participate in Palomar's deferred
compensation plan under Section 401(k) of the Internal Revenue Code (the "401(k)
Plan"). The 401(k) Plan is available to all employees who are over the age of 18
and have been employed by the Company for more than six months. Employees may
contribute a maximum of 15% of their salary to the 401(k) Plan and matching
contributions equal to 50% of an employee's contribution are made to a
designated fund of the 401(k) Plan invested solely in Palomar common stock. The
Company intends to establish its own 401(k) Plan following the initial public
offering of the Common Stock.
EMPLOYMENT AND SEVERANCE AGREEMENTS
Mr. Agbay and the Company are parties to an employment agreement for a five
year term expiring in March 2002. Unless either party chooses otherwise by
notice to the other, the agreement automatically extends at the end of each year
for an additional year throughout the term of the agreement. The agreement
provides that Mr. Agbay is entitled to receive an annual base salary of $250,000
in 1997 subject to annual increases by the Board of Directors (or a duly formed
compensation committee thereof) and is eligible to receive an annual incentive
bonus upon the achievement of mutually agreed upon revenue and net income
performance objectives determined annually by the Board of Directors or
compensation committee thereof and Mr. Agbay. The employment agreement also
provides that Mr. Agbay shall receive a sales commission of $2.00 per computer
sold by the Company throughout the term of his employment with the Company.
Under his employment agreement, if Mr. Agbay's employment is terminated by
the Company without cause following a "change of control" (as defined in the
agreement), Mr. Agbay will receive the following severance payments and further
benefits: (i) $2,250,000, (ii) full payment of any accrued, unpaid salary, bonus
and benefit payments; (iii) a sum equal to three years of his highest to date
annual base pay; (iv) a sum equal to three times his highest to date annual
bonus earned; (v) full immediate vesting of any issued but unvested stock
options; (vi) three years of continuation of participation in the Company's
benefits (to the extent not received by Mr. Agbay in another position),
including health, disability and life insurance, qualified and non-qualified
retirement and pensions plans or, if any, the then current value of the same in
cash if the terms of such plans preclude such continued participation; and (vii)
such additional sums as are necessary for Mr. Agbay to meet any additional
federal taxes due to the payment of severance pay and other benefits having been
contingent upon a change in control. If Mr. Agbay's employment is terminated by
the Company without cause in the absence of such a change of control, Mr. Agbay
will be entitled to all of the foregoing severance payments and other benefits,
other than any additional sums required for the payment of federal taxes in the
event of a change in control transaction and in lieu of a cash payment of
$2,250,000, Mr. Agbay shall be
40
entitled to a minimum (the "Minimum Amount") of (i) $1,000,000 if he is
terminated on or prior to December 31, 1997, or (ii) $1,500,000 if he is
terminated on or after January 1, 1998, subject in either case to increase as
follows:
(x) If the Company achieves $150,000,000 in total revenues in any fiscal
year prior to his termination, Agaby shall be entitled to $3,000,000; and
(y) if (x) is not achieved, Mr. Agbay shall receive a sum equal to (but not
greater, in any event, than $3,000,000) the applicable Minimum Amount plus
either (i) if the Minimum Amount is $1,000,000, an amount equal to the product
of $2,000,000 multiplied by the quotient (the "Quotient Amount") of (A) the
amount by which the Company's total revenues for the four previous completed
fiscal quarters of the Company prior to the date of Mr. Agbay's termination
exceeds $70,000,000, divided by (B) $80,000,000, or (ii) if the Minimum Amount
is $1,500,000, an amount equal to the product of $1,500,000 multiplied by the
Quotient Amount.
In addition, if Mr. Agbay's termination occurs after January 1, 2000, and
the remaining term of Mr. Agbay's contract immediately prior to his termination
is more than three years, Mr. Agbay shall receive an amount of cash equal to (at
the highest prior levels) the amount of both his base pay and incentive pay
which would be paid out over such remaining period of time rather than three
years of such base and incentive pay. If Mr. Agbay were to resign following a
reduction in his responsibilities or pay or change in location, his agreement
deems such a termination as having been effected by the Company.
Upon expiration of Mr. Agbay's term of employment, Mr. Agbay will receive
the following severance payments and further benefits: (i) $2,225,000, but only
if the Company has achieved cumulative total revenues of $150,000,000 for the
period commencing on January 1, 1997 to the date of expiration, (ii) full
payment of any accrued, unpaid salary, bonus and benefit payments; (iii) a sum
equal to eighteen months of his highest to date annual base pay; (iv) a sum
equal to one and one-half of his highest to date annual bonus earned; and (v)
eighteen months of continuation of participation in the Company's benefits (to
the extent not received by Mr. Agbay in another position), including health,
disability and life insurance, qualified and non-qualified retirement and
pensions plans or, if any, the then current value of the same in cash if the
terms of such plans preclude such continued participation. If Mr. Agbay were to
resign prior to the expiration of the term of employment agreement and absent a
reduction in his responsibilities or pay or change in location, Mr. Agbay will
receive the following severance payments and further benefits: (i) $1,000,000 if
he resigns on or after January 1, 2000, (ii) full payment of any accrued, unpaid
salary, bonus and benefit payments; (iii) a sum equal to eighteen months of his
highest to date annual base pay; (iv) a sum equal to one and one-half of his
highest to date annual bonus earned; and (v) eighteen months of continuation of
participation in the Company's benefits (to the extent not received by Mr. Agbay
in another position), including health, disability and life insurance, qualified
and non-qualified retirement and pensions plans or, if any, the then current
value of the same in cash if the terms of such plans preclude such continued
participation. If Mr. Agbay's employment were to be terminated for cause (as
defined in the agreement), Mr. Agbay would be entitled only to full payment of
any accrued, unpaid, salary, bonus and benefit payments and retention of any
fully vested stock options and similar vested benefits. Pursuant to the
agreement, throughout the term of his employment, Mr. Agbay will serve as Chief
Executive Officer of the Company.
Mr. Khan and the Company are parties to an employment agreement for a five
year term expiring in October 2001. Unless either party chooses otherwise by
notice to the other, the agreement automatically extends at the end of each year
for an additional year throughout the term of the agreement. The agreement
provides that Mr. Khan is entitled to receive an annual base salary of $150,000
in 1997 subject to annual increases by the Board of Directors (or a duly formed
compensation committee thereof) and is eligible to receive an annual incentive
bonus upon the achievement of mutually agreed upon revenue and net income
performance objectives determined annually by the Chief Executive Officer and
Mr. Khan. The employment agreement also provides that Mr. Khan shall receive a
sales commission of $2.00 per computer sold by Company throughout the term of
his employment with the Company.
Under his employment agreement, if Mr. Khan's employment is terminated by
the Company without cause following a "change of control" (as defined in the
agreement), Mr. Khan will receive the following severance payments and further
benefits: (i) $750,000, (ii) full payment of any accrued, unpaid salary, bonus
41
and benefit payments; (iii) a sum equal to one year of his highest to date
annual base pay; (iv) a sum equal to his highest to date annual bonus earned;
(v) full immediate vesting of any issued but unvested stock options; (vi) one
year of continuation of participation in the Company's benefits (to the extent
not provided to Mr. Khan in another position), including health, disability and
life insurance, qualified and non-qualified retirement and pensions plans or, if
any, the then current value of the same in cash if the terms of such plans
preclude such continued participation; and (vii) such additional sums as are
necessary for Mr. Khan to meet any additional federal taxes and/or penalties due
to the payment of severance pay and other benefits having been contingent upon a
change in control. If Mr. Khan's employment is terminated by the Company without
cause in the absence of such a change of control, Mr. Khan will be entitled to
all of the foregoing severance payments and other benefits, other than any
additional sums required for the payment of federal taxes and/or penalities in
the event of a change in control transaction.
Upon expiration of Mr. Khan's term of employment, Mr. Khan will receive the
following severance payments and further benefits: (i) $750,000, but only if the
Company has achieved cumulative total revenues of $150,000,000 for the period
commencing on January 1, 1997 to the date of expiration, (ii) full payment of
any accrued, unpaid salary, bonus and benefit payments; (iii) a sum equal to one
year of his highest to date annual base pay; (iv) a sum equal to his highest to
date annual bonus earned; and (v) one year of continuation of participation in
the Company's benefits (to the extent not received by Mr. Khan in another
position), including health, disability and life insurance, qualified and
non-qualified retirement and pensions plans or, if any, the then current value
of the same in cash if the terms of such plans preclude such continued
participation. If Mr. Khan's employment were to be terminated for cause (as
defined in the agreement), Mr. Khan would be entitled only to full payment of
any accrued, unpaid, salary, bonus and benefit payments and retention of any
fully vested stock options and similar vested benefits.
The Company is also party to substantially similar employment agreements
with each of the other Named Executive Officers: Messrs. Paciello, Melfa and
Lucivero. These agreements provide for annual base salaries ranging from
$110,000 to $150,000, as well as annual bonuses based upon the achievement of
mutually agreed upon revenue and net income objectives between the Chief
Executive Officer of the Company and the respective Named Executive Officers.
Each of these agreements is for a term expiring in March 2000. Each of these
agreements provides for severance pay equal to twelve months of the Named
Executive Officer's highest monthly base pay if employment is terminated without
cause.
In addition, each of the employment agreements described above (other than
Mr. Agbay's) provides that fifty percent of all shares subject to stock options
held by each of the Named Executive Officers will vest upon consummation of the
Offering and all such option shares will vest in full one year after
consummation of the Offering and upon a change of control (as defined in the
agreements). Each of the employment agreements described in the preceding
paragraphs include a non-competition covenant pursuant to which the Named
Executive Officers of the Company are prohibited from competing with the Company
during their respective terms of employment and for a period of 12 months
thereafter. Also, each of the agreements described above provides for car
allowances ranging from $600 to $1,000 per month. Original employment agreements
with each of the Named Executive Officers provided for stock option grants to
such executive officers, all of which options were terminated by agreements
dated as of December 1, 1995 between the Company and each of the Named Executive
Officers. Information with respect to options subsequently granted to the
executive officers is set forth above in this Executive Compensation section and
below under the heading "Beneficial Ownership of Management."
42
CERTAIN TRANSACTIONS
CONVERSION OF PALOMAR DEBT AND ESCROW OF CONTINGENT SHARES
The Company wishes to advise potential investors that the net income after
taxes, total revenues and per share value of the Common Stock milestones set
forth below are not intended to and do not in any manner constitute a forecast,
projection or expectation of the Company, its management, Palomar or the
Underwriters for the Company's future results of operations or appreciation in
the value of Common Stock. See "Risk Factors."
Palomar and its wholly-owned subsidiary PEC have provided all of the
Company's funds for operations to date in the form of non-interest bearing
loans. The total amount of funds provided by Palomar and PEC has been
$21,792,998 and $2,025,000, respectively, through December 31, 1996. The amount
owed to Palomar includes $2,750,000 incurred by Palomar on behalf of the Company
to settle claims of a former executive officer and to acquire certain
technology. See "-- Other Related Party Transactions" below. On February 28,
1997 the Company entered into an agreement with Palomar whereby upon the closing
of the Offering, $8,249,549 of such indebtedness will be repaid to Palomar,
$4,568,449 will be converted into 45,684 shares of Convertible Preferred Stock
with the terms described below, and $11,000,000 will be converted into 1,900,000
shares of the Common Stock, of which 700,000 shares will be issued without
restriction. Pursuant to such agreement, the balance of 1,200,000 shares of the
Common Stock (the "Contingent Shares") shall be subject to mandatory repurchase,
in whole or in part, by the Company at $0.01 per share after the 48 month
anniversary of the Offering unless earlier released from escrow as described
below. The Contingent Shares shall be placed in escrow, subject to release to
Palomar in installments of 400,000 shares each (upon achievement of any 3 of the
4 milestones specified below; none, some, or all of which may occur) as follows:
(a) if the Company achieves $7,000,000 in net income after taxes or $100
million in total revenues for the fiscal year ended December 31, 1997;
(b) if the Company achieves $14,000,000 in net income after taxes or $200
million in total revenues for the fiscal year ended December 31, 1998;
(c) if the Company achieves $21,000,000 in net income after taxes or $300
million in total revenues for the fiscal year ended December 31, 1999; and
(d) if the Company achieves $28,000,000 in net income after taxes or $400
million in total revenues for the fiscal year ended December 31, 2000.
Alternatively, all of the Contingent Shares will be released to Palomar
immediately upon the happening of any one of the following:
(x) if the average per share market value closing bid price of the
Company's Common Stock is (i) 175% of the initial public offering price for
ten consecutive trading days at any time prior to the 12-month anniversary
of the Offering, or (ii) 225% of the initial public offering price for ten
consecutive trading days at any time prior to the 24-month anniversary of
the Offering, or (iii) 275% of the initial public offering price for ten
consecutive trading days at any time prior to the 36-month anniversary of
the Offering, or (iv) 325% of the initial public offering price for ten
consecutive trading days at any time prior to the 48-month anniversary of
the Offering; or
(y) if the Company achieves $70,000,000 in cumulative net income after
taxes for the four fiscal years ended December 31, 2000, or if the Company
is party to any merger (other than a merger with a subsidiary or in which
the Company is the survivor and "acquiror"), a sale of substantially all
assets of the Company or similar change in control transaction.
If any or all of the alternative conditions for release of the Contingent
Shares has not occurred by the 48-month anniversary of the Offering, the balance
of the Contingent Shares in escrow at such time shall be repurchased by the
Company as described above.
The 45,684 shares of Convertible Preferred Stock issued to Palomar upon the
closing will be convertible into shares of Common Stock at the option of the
holders thereof.
43
At an assumed initial public offering price of $12.00 per share, the 45,684
shares of Convertible Preferred Stock issued to Palomar upon the closing shall
be convertible into 304,560 shares of Common Stock. Prior to any such
conversion, the holders of shares of such Convertible Preferred Stock shall have
voting rights equal to the number of shares of Common Stock on an "as-converted"
basis on the record date of any matter voted on by the stockholders of the
Company. Other terms of the Convertible Preferred Stock are set forth in this
Prospectus under the caption "Description of Capital Stock."
Palomar and PEC incurred general and administrative expenses on behalf of
the Company, totalling approximately $100,000 and $128,000 for the period from
inception (March 7, 1995) to December 31, 1995 and for the year ended December
31, 1996, respectively. There is no intention by Palomar to charge management
fees to the Company. During the year ended December 31, 1996 Palomar and its
subsidiaries other than the Company purchased approximately $197,000 of products
from the Company. All such amounts due the Company were outstanding at December
31, 1996 and the Company anticipates it will be paid all such amounts upon
consummation of the Offering. Palomar has agreed to pay $1,000,000 of management
bonuses for services rendered in 1996.
OTHER RELATED PARTY TRANSACTIONS
The Company's current PCs are shipped with motherboards based on technology
licensed from Technovation Computer Labs, Inc. (Technovation), a Nevada
corporation which, to the best of the Company's knowledge, is owned by Babar I.
Hamirani, a former executive officer of the Company whose employment was
terminated by the Company on November 29, 1996. The Company has agreed to
acquire all such technology and a patent application related thereto, and settle
all claims between Mr. Hamirani and the Company, no later than the closing of
the Offering pursuant to an Asset Purchase and Settlement Agreement by and among
Mr. Hamirani, Technovation, the Company and Palomar dated as of February 28,
1997 (the "Asset Purchase and Settlement Agreement"). Pursuant to the Asset
Purchase and Settlement Agreement and a separate asset purchase agreement
between the Company and Palomar, Palomar will first acquire the subject
technology and then convey such technology to the Company. See Note 10 of Notes
to Consolidated Financial Statements. Through December 31, 1996, potential
royalties which had accrued under the license agreement were less than the
Company's tooling and development costs, which the Company is entitled to offset
against royalties under the license agreement. See "Business -- Intellectual
Property."
During the year ended December 31, 1996, the Company was party to several
purchase and sale transactions with Computer Universe, a trade name of Amerisel,
Inc. which was a dealer of the Company's PCs located in San Francisco,
California. The Company believes that Amerisel, Inc. was owned during such
period by Liaqat Y. Khan, an executive officer of the Company, by Mr. Hamirani,
who was during such period an executive officer of the Company, and members of
Mr. Khan's and Mr. Hamirani's families. Mr. Khan has advised the Company that he
and his wife have since disposed of their ownership in Amerisel, Inc. Such
transactions were in the aggregate approximate amount of $830,000 during such
period, including approximately $430,000 in purchases of components by Computer
Universe. As of December 31, 1996, approximately $220,000 in amounts receivable
owed by Computer Universe were past due and the Company took charges in the
amount of $220,000 with respect to such overdue amounts. The Company believes
that the substantial majority of these transactions were on terms no less
favorable to the Company than could be obtained from unaffiliated parties
considered to be important customers. Pursuant to the Asset Purchase and
Settlement Agreement described in the preceding paragraph, the Company has
agreed to release Computer Universe and its affiliates from all liabilities with
respect to amounts owed to the Company relating to such transactions and any
other claims of the Company arising on or before the date of such agreement
against Computer Universe and its affiliates, including Mr. Hamirani. In
December 1996, the Board of Directors of the Company established a policy for
considering transactions with directors, officers, and shareholders of the
Company and their affiliates. Pursuant to this policy, the Board of Directors of
the Company will not approve any such related party transactions unless the
Board of Directors has determined that the terms of the transaction are no less
favorable to the Company than those available from unaffiliated parties. Because
this policy is not contained in the Company's Certificate of Incorporation or
Bylaws, this policy is subject to change at any time by the vote of the Board of
Directors. It currently is not contemplated that this policy will be changed.
44
Comtel Corporation ("Comtel"), a wholly-owned subsidiary of Dynaco
Corporation (a wholly- owned subsidiary of Palomar), is a contract manufacturer
of PC modem cards and PC boards. In the fourth quarter of 1996 the Company
purchased components from Comtel for consideration in the approximate amount of
$693,000. The Company believes that all of its transactions with Comtel were on
terms no less favorable to the Company than could be obtained from unaffiliated
parties.
Mr. Goldman, a nominee for director of the Company, is a greater than 10
percent stockholder of Elek-Tek, Inc., a customer of the Company. In the fiscal
year ended December 31, 1996, the Company sold approximately $105,000 in
products to Elek-Tek. All such sales were on terms based on arms length
negotiation.
STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of Common Stock as of December 31, 1996 by its stockholders. Other
than Palomar, PEC, certain of their officers and directors, and Mr. Agbay,
Chairman and Chief Executive Officer of the Company, no other person
beneficially owns more than 5% of the Common Stock. Information with respect to
Mr. Agbay is provided in the following table.
<TABLE>
<CAPTION>
NUMBER OF
SHARES
BENEFICIALLY
NAME AND ADDRESS OWNED PERCENT
---------------- ----- -------
<S> <C> <C>
Palomar Medical Technologies, Inc. 4,200,000(1) 87.4%
66 Cherry Hill Drive
Beverly, Massachusetts 01915
The Travelers Insurance Company 200,000 4.2
One Tower Square
Hartford, Connecticut 06183
GFL Advantage Fund Limited 200,000 4.2
c/o Citco
Kaya Flamboyan 9
Curacao, Netherlands, Antilles
Clearwater Fund IV LLC 200,000 4.2
611 Druid Road East
Suite 200
Clearwater, Florida 34616
</TABLE>
- ----------
(1) The shares of the Common Stock beneficially owned by Palomar are held by
Palomar Electronics Corporation (PEC), a wholly-owned direct subsidiary of
Palomar. After the sale of the Common Stock in the Offering, Palomar
(through its ownership of PEC) will beneficially own approximately 66%
(6,100,000 shares) of the outstanding Common Stock (approximately 64% if
the Underwriters' over- allotment option is exercised in full), including
1,900,000 shares of Common Stock that will be issued upon the closing of
the Offering to Palomar and PEC in exchange for retirement of $11,000,000
of indebtedness owed by the Company to Palomar and PEC. See "Certain
Transactions."
45
BENEFICIAL OWNERSHIP OF MANAGEMENT
The following table sets forth certain information as of December 31, 1996
regarding the beneficial ownership of the Common Stock, as well as information
regarding the beneficial ownership of the common stock of Palomar and PEC, with
respect to (i) each of the Named Executive Officers, Directors and Director
Nominee of the Company, and (ii) all directors and executive officers of the
Company as a group.
<TABLE>
<CAPTION>
COMPANY COMMON STOCK PALOMAR COMMON STOCK PEC COMMON STOCK
-------------------- -------------------- ----------------
NUMBER OF NUMBER OF NUMBER OF
NAME SHARES PERCENT SHARES PERCENT SHARES PERCENT
---- ------ ------- ------ ------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
Albert J. Agbay 1,044,480(1) 17.9% 50,000(1) *
Chairman and Chief
Executive Officer
c/o Nexar Technologies, Inc.
182 Turnpike Road
Westborough,
Massachusetts 01581
Liaqat Y. Kahn 90,390(1)(2) 1.8 11,250(1) *
Executive Vice President of
Manufacturing
Michael J. Paciello 60,270(1)(3) 1.2
Executive Vice President
Victor J. Melfa, Jr. 60,270(1)(3) 1.2 2,450 *
Senior Vice President, Sales
James P. Lucivero 60,270(1)(3) 1.2
Vice President, Eastern United
States Sales
Morton Goldman
Director Nominee
DIRECTORS AND EXECUTIVE OFFICERS OF
PALOMAR SERVING AS NEXAR DIRECTORS**
- ------------------------------------
Steven Georgiev 4,240,170(4) 88.3 1,070,820(6) 3.4%
Joseph E. Levangie 4,240,170(4) 88.3 612,985(7) 2.0
Joseph P. Caruso 4,240,170(4) 88.3 691,825(8) 2.2
Buster C. Glosson 4,208,250(4) 87.5 53,333(9) *
All directors, director nominee
and executive officers as a
group (13 persons) 5,704,680(5) 90.7% 2,485,913 7.92% 11,250 *
</TABLE>
- --------
* Less than 1%.
** Each with an address c/o Palomar as set forth above.
(1) Consists entirely of shares issuable upon the exercise of options or
warrants exercisable within sixty days of December 31, 1996.
(2) Excludes 135,585 option shares which vest in full upon consummation of the
Offering.
(3) Excludes 90,405 option shares which vest in full upon consummation of the
Offering.
(4) Includes, under the deemed beneficial ownership rules of the Securities and
Exchange Commission, 4,200,000 shares of Common Stock held by PEC, as to
which each such director disclaims beneficial ownership and shares issuable
upon the exercise of options and warrants exercisable within sixty days of
December 31, 1996.
46
(5) Includes 1,492,840 shares issuable upon exercise of options exercisable
within sixty days of December 31, 1996 and 4,200,000 shares held by PEC, as
to which each director deemed to beneficially own such shares disclaims
beneficial ownership. Excludes 451,950 shares which vest upon consummation
of the Offering.
(6) Includes options to purchase 100,000 shares issuable upon exercise of
five-year options expiring August 26, 2001, at an exercise price of $8.00
per share; 157,000 shares issuable upon exercise of five-year warrants
granted in July 1995, at an exercise price of $2.00 per share; 80,000
shares issuable upon exercise of five-year warrants granted in August 1995,
at an exercise price of $2.125 per share; and 300,000 shares issuable upon
exercise of five-year warrants granted in February 1996, at an exercise
price of $6.75 per share; 66,666 shares issuable upon exercise of five-year
warrants granted in December 1996 at an exercise price of $6.00 per share.
(7) Includes 4,500 shares held by Mr. Lavangie's wife, beneficial ownership of
which Mr. Levangie disclaims. Also includes 60,000 shares issuable upon
exercise of five-year warrants granted in March 1992, at an exercise price
of $.60 per share; 150,000 shares issuable upon exercise of five-year
warrants granted in July 1995, at an exercise price of $2.00 per share;
100,000 shares issuable upon exercise of five-year warrants granted in
August 1995, at an exercise price of $2.125 per share; and 150,000 shares
issuable upon exercise of five-year warrants granted in February 1996, at
an exercise price of $6.75 per share; 50,000 shares issuable upon exercise
of five-year warrants granted in August 1996 at an exercise price of $8.00
per share; 50,000 shares issuable upon exercise of five-year warrants
granted in December 1996 at an exercise price of $6.00 per share.
(8) Includes 30,000 shares issuable upon the exercise for five-year options
expiring June 14, 1998, at an exercise price of $3.50 per share; 70,000
shares of Palomar Common Stock issuable upon exercise of five-year options
expiring April 6, 1999, at an exercise price of $2.375 per share; 75,000
shares issuable upon exercise of five-year options expiring July 4, 2000,
at an exercise price of $2.00 per share; 66,666 shares issuable upon
exercise of five-year options expiring August 26, 2001, at an exercise
price of $8.00 per share; 100,000 shares issuable upon exercise of
five-year warrants granted in August 1995, at an exercise price of $2.125
per share; and 150,000 shares issuable upon exercise of five-year warrants
granted in February 1996, at an exercise price of $6.75 per share; 100,000
shares issuable upon exercise of five-year options expiring October 6, 1999
at an exercise price of $2.375 per share; 33,333 shares issuable upon
exercise of five-year warrants granted in December 1996 at an exercise
price of $6.00 per share.
(9) Includes 20,000 shares issuable upon exercise of four-year warrants granted
in August 1995, at an exercise price of $2.125; and 33,333 shares issuable
upon exercise of five-year warrants granted in August 1996, at an exercise
price of $8.00 per share.
47
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 30,000,000 shares of
Common Stock, $0.01 par value, and 10,000,000 shares of preferred stock, $0.01
par value per share (the "Preferred Stock"), which may be issued in one or more
series.
COMMON STOCK
As of December 31, 1996, there were 4,800,000 shares of Common Stock
outstanding, 4,200,000 of which were all held of record by PEC. Based upon the
number of shares outstanding as of that date and giving effect to the issuance
of the 2,500,000 shares of Common Stock offered by the Company hereby and the
issuance of 1,900,000 shares of Common Stock to Palomar and PEC upon conversion
of $11,000,000 of indebtedness (see "Certain Transactions"), but assuming no
exercise of the Underwriters' over-allotment option or exercise of outstanding
stock options, there will be 9,200,000 shares of Common Stock outstanding upon
the closing of the Offering.
Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Accordingly, holders of a majority of the shares of Common Stock
entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared by the Board of Directors out of
funds legally available therefor, subject to any preferential dividend rights of
outstanding Preferred Stock. Upon the liquidation, dissolution or winding up of
the Company, the holders of Common Stock are entitled to receive ratably the net
assets of the Company available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding Preferred Stock.
Holders of the Common Stock have no preemptive, subscription, redemption or
conversion rights. The outstanding shares of Common Stock are, and the shares
offered by the Company in the Offering will be, when issued and paid for, fully
paid and nonassessable. The rights, preferences and privileges of holders of
Common Stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of Preferred Stock which the Company may
designate and issue in the future. Upon the closing of the Offering, there will
be no shares of Preferred Stock outstanding.
PREFERRED STOCK
Upon filing of the Restated Charter, the Board of Directors will be
authorized, subject to certain limitations prescribed by law, without further
stockholder approval, to issue from time to time up to an aggregate of
10,000,000 shares of Preferred Stock in one of more series and to fix or alter
the designations, preferences, rights and any qualifications, limitations or
restrictions of the shares of each such series thereof, including the dividend
rights, dividend rates, conversion rights, voting rights, terms of redemption
(including sinking fund provisions), redemption price or prices, liquidation
preferences and the number of shares constituting any series or designations of
such series. The Board of Directors has authorized and approved the issuance of
a new series of Preferred Stock designated Convertible Preferred Stock with the
terms thereof being set forth in the Restated Charter as summarized in the
following paragraph. Upon the closing of the Offering, $4,568,449 of
indebtedness owed by the Company to related parties will be converted into
45,684 shares of Convertible Preferred Stock. The issuance of any additional
shares of Preferred Stock may have the effect of delaying, deferring or
preventing a change of control of the Company. The Company has no present plans
to issue any additional shares of Preferred Stock. See "Risk Factors -- Effect
of Anti-Takeover Provisions."
Each outstanding share of the Convertible Preferred Stock shall be entitled
to vote on each matter on which the stockholders of the Company shall be
entitled to vote, and each holder of Convertible Preferred Stock shall have the
voting rights equal to the number of shares of Common Stock such Convertible
Preferred Stock is convertible into on the record date of any matter to be voted
on by the stockholders of the Company. The holders of the Convertible Preferred
Stock shall have neither
48
preemptive rights to acquire additional shares of the stock of the Company nor
the right to cumulate their shares for the purpose of electing directors of the
Company, or for any other purpose. The Board of Directors may cause dividends to
be paid to holders of shares of the Convertible Preferred Stock out of funds
legally available for the payment of dividends. Any dividend or distribution on
the Convertible Preferred Stock shall be paid at the same rate and in the same
manner as the Common Stock.
Each share of the Convertible Preferred Stock is convertible into Common
Stock at the option of the holders thereof. At an assumed initial public
offering price of $12.00 per share, the 45,684 shares of Convertible Preferred
Stock issued to Palomar upon the closing shall be convertible into 304,560
shares of Common Stock. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, then, before any
distribution or payment shall be made to or set apart for the holders of Common
Stock, the holders of the Convertible Preferred Stock shall be entitled to
receive a liquidation preference of $100.00 per share plus, in the case of each
share, an amount equal to any dividend declared but unpaid thereon. A merger or
consolidation of the Company into or with any other corporation, a merger of any
other corporation into the Company, or a sale, lease, exchange, transfer or
similar disposition by the Company in one or a series of related transactions of
all or substantially all of its assets may be deemed a liquidation, dissolution
or winding up of the Company and in such case, the holders of the Convertible
Preferred Stock shall be entitled to receive the liquidation preference
described above.
DELAWARE LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, this statute prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person becomes an interested stockholder, unless the
business combination is approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested stockholder. Subject to certain exceptions,
an "interested stockholder" is a person who, together with affiliates and
associates, owns (or within the prior three years did own) 15% or more of the
corporation's voting stock. The Company may elect not to be governed by Section
203 by means of an amendment to the Company's Restated Charter or By-Laws which
has been approved by stockholders holding a majority of its outstanding voting
securities.
The Restated Charter provides for a classified Board of Directors, that
vacancies on the Board shall be filled solely by the remaining directors, and
that stockholders may remove a director only for cause. The Company's By-Laws
provide that a stockholder may nominate candidates for directorships only upon
written notice delivered to the Company not less than 90 days prior to any
meeting of stockholders. The Restated Charter also provides that stockholder
action may be taken only by a vote at a meeting of stockholders and not by
written consent in lieu of a meeting and that special meetings of stockholders
may only be called by the Board or the President.
Finally, the Restated Charter provides that none of its provisions may be
amended except by the vote of two-thirds of the outstanding voting shares unless
such amendment has been proposed and declared advisable by the Board.
The foregoing provisions may discourage unsolicited takeover attempts. The
Company believes that the potential benefits of encouraging persons seeking to
acquire control of the Company to negotiate with the Company outweigh the
potential disadvantages of discouraging such proposals.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is The First
National Bank of Boston.
49
SHARES ELIGIBLE FOR FUTURE SALE
Upon the closing of the Offering, the Company will have an aggregate of
9,200,000 shares of Common Stock outstanding, assuming no exercise of the
Underwriters' over-allotment option and no exercise of outstanding options to
purchase Common Stock. All of these shares, including the 2,500,000 shares sold
in the Offering, are freely tradable without restriction or further registration
under the Securities Act of 1933, as amended (the "Securities Act").
Also, as of December 31, 1996, employees and directors of the Company held
options exercisable for the acquisition of 3,055,920 shares of Common Stock
(approximately 65% of which shall be exercisable upon consummation of the
Offering), at an average weighted exercise price of $0.52 a share. In addition,
certain employees and directors of the Company shall be granted options upon the
effectiveness of the Offering exercisable for an aggregate of 1,050,000, 50,000
and 50,000 shares of Common Stock at exercise prices equal to 100%, 85% and 50%,
respectively, of the initial public offering price. Unless registered for
resale, shares acquired upon exercise of options held by "affiliates" of the
Company, as that term is defined in Rule 144 under the Securities Act ("Rule
144"), may generally only be sold in compliance with the limitations of Rule 144
described below. In addition to the 6,100,000 shares of Common Stock to be held
by Palomar which have been registered under the Registration Statement of which
this Prospectus is a part, Palomar, upon the closing of the Offering, will also
hold 45,684 shares of Convertible Preferred Stock which will be convertible into
304,560 shares of Common Stock, assuming an initial public offering price of
$12.00 per share. See "Certain Transactions."
In general, under Rule 144 (giving effect to recent changes to the holding
periods described below adopted by the Securities and Exchange Commission to
become effective April 29, 1997) a person (or persons whose shares are
aggregated), including an affiliate, who has beneficially owned shares for at
least one year is entitled to sell, by means of a broker transaction, within any
three-month period commencing 90 days after the effective date of the Offering
(the "Effective Date"), a number of shares that does not exceed the greater of
(i) 1% of the then outstanding shares of Common Stock (approximately 92,000
shares immediately after the Offering) or (ii) the average weekly trading volume
in the Common Stock during the four calendar weeks preceding the date on which
notice of such sale is filed, subject to certain restrictions. In addition, a
person who is not deemed to have been an affiliate of the Company at any time
during the 90 days preceding a sale and who has beneficially owned the shares
proposed to be sold for at least two years would be entitled to sell such shares
under Rule 144(k) without regard to the requirements described above. To the
extent that shares were acquired from an affiliate of the Company, such
stockholder's holding period for the purpose of effecting a sale under Rule 144
commences on the date of transfer from the affiliate. Although Palomar is an
affiliate of the Company, because it has registered such shares under the
Registration Statement of which this Prospectus is a part, the volume and other
limitations of Rule 144 are not applicable to the sale of such registered
shares.
Prior to the Offering, there has been no public market for the Common Stock.
No prediction can be made as to the effect, if any, that market sales of shares
or the availability of shares for sale will have on the market price of the
Common Stock prevailing from time to time. The Company is unable to estimate the
number of shares that may be sold in the public market pursuant to Rule 144,
since this will depend on the market price of the Common Stock, the personal
circumstances of the sellers and other factors. Nevertheless, sales of
significant amounts of the Common Stock in the public market could adversely
affect the market price of the Company's Common Stock and could impair the
Company's ability to raise capital through an offering of its equity securities.
As of the Effective Date, the Company intends to file a Form S-8 registration
statement under the Securities Act to register all shares of Common Stock
issuable under the Company's 1995 Stock Option Plan, the Director Plan and the
Stock Purchase Plan (collectively, the "Stock Plans"). See "Management -- Stock
Plans." Such registration statement is expected to be become effective
immediately upon filing, and shares covered by that registration statement will
thereupon be eligible for sale in the public markets, subject to Rule 144
limitations applicable to affiliates, and the "lock-up" agreements described in
the next paragraph.
50
All directors and executive officers of the Company, who will hold upon
closing of the Offering in the aggregate options exercisable for 3,485,280
shares (approximately 56% of which shall be exercisable upon consummation of the
Offering) shares of Common Stock, have agreed, pursuant to agreements with Sands
Brothers & Co., Ltd, who is acting as the lead representative for the several
Underwriters (the "Representative"), that they will not, without the prior
written consent of the Representative, sell or otherwise dispose of any shares
of Common Stock or options to acquire shares of Common Stock during the 180-day
period following the Effective Date. Neither Palomar nor the three
instititutional investors who will collectively hold an aggregate of 6,700,000
shares upon closing of the Offering will be subject to any such lock-up
agreement.
Prior to the Offering, there has not been any public market for the Common
Stock of the Company. Further sales of substantial amounts of Common Stock in
the open market may adversely affect the market price of the Common Stock and
could impair the Company's future ability to raise capital through the sale of
its equity securities.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, the
Company has agreed to sell to each of the Underwriters named below, for whom
Sands Brothers & Co., Ltd. ("Sands Brothers") and Credit Lyonnais Securities
(USA) Inc. are acting as the Representatives, and each of the Underwriters has
severally agreed to purchase from the Company, the respective number of shares
of Common Stock set forth opposite its name below.
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER SHARES
----------- ------
<S> <C>
Sands Brothers & Co., Ltd.
Credit Lyonnais Securities (USA) Inc.
---------
TOTAL 2,500,000
=========
</TABLE>
The Underwriters have agreed, subject to the terms and conditions of the
Underwriting Agreement, to purchase all of the shares of Common Stock offered
hereby if any of such securities are purchased.
The Underwriters have advised the Company that they propose to offer the
shares of Common Stock to the public at the public offering price set forth on
the cover page of this Prospectus. The Underwriters may allow to certain dealers
who are members of the National Association of Securities Dealers, Inc. (the
"NASD") concessions, not in excess of $ per share of Common Stock, of which not
in excess of $ per share of Common Stock may be reallowed to other dealers which
are members of the NASD.
The Company has granted to the Underwriters an option, exercisable within 45
days from the date of this Prospectus, to purchase up to 375,000 additional
shares of Common Stock at the public offering price set forth on the cover page
of this Prospectus, less the underwriting discounts and commissions. The
Underwriters may exercise this option in whole or, from time to time in part,
solely for the purpose of covering over-allotments, if any, made in connection
with the sale of shares of Common Stock offered hereby.
The Company has agreed to pay Sands Brothers a non-accountable expense
allowance of 2% of the gross proceeds of this offering, $50,000 of which has
been paid to date. The Company has also agreed to pay all expenses in connection
with qualifying the shares of Common Stock offered hereby for sale under the
laws of such states as the Underwriters may designate, including expenses of
counsel retained for such purpose by the Underwriters.
51
The Company has agreed to sell to Sands Brothers or its designees, for
nominal consideration, warrants (the "Warrants") to purchase up to 250,000
shares of Common Stock at an exercise price of $ per share (165% of the initial
public offering price). The Warrants may not be exercised or transferred for one
year from the date of this Prospectus, except to the officers or shareholders of
the Representative, and are exercisable during the four year period commencing
on the first anniversary date of this Prospectus (the "Warrant Exercise Term").
During the Warrant Exercise Term, the holders of the Warrants are given, at
nominal cost, the opportunity to profit from a rise in the market price of the
Company's Common Stock. To the extent that the Warrants are exercised, dilution
to the interests of the Company's shareholders will occur. Further, the terms
upon which the Company will be able to obtain additional equity capital may be
adversely affected since the holders of the Warrants can be expected to exercise
them at a time when the Company would, in all likelihood, be able to obtain any
needed capital on terms more favorable to the Company than those provided in the
Warrants. Any profit realized by Sands Brothers on the sale of the Warrants or
the underlying shares of Common Stock may be deemed additional underwriting
compensation. The Warrants contain provisions providing for the adjustment of
the exercise price upon the occurrence of certain events, including
reclassifications, dividends, splits and other similar events. Subject to
certain limitations and exclusions, the Company has agreed, at the request of
the holders of a majority of the Warrants, at the Company's expense, to register
the shares underlying the Warrants under the Securities Act on one occasion
during the Warrant Exercise Term and to include the underlying shares in any
appropriate registration statement which is filed by the Company during the five
years following the date of this Prospectus.
The Company has also agreed, for a period commencing the date of this
Prospectus and expiring upon the earlier of (i) three (3) years from the date of
this Prospectus or (ii) such time in which the Company consummates an
underwritten secondary equity public offering, at Sands Brother's request, to
nominate and use its best efforts to elect a designee of Sands Brothers as a
member of or, at Sands Brothers' option, as a non-voting advisor to the Board of
Directors of the Company. As of the date of this Prospectus, Sands Brothers has
not yet exercised its right to designate such person.
All of the Company's executive officers and directors have agreed not to
sell or dispose of any securities of the Company for a period of six months
following the date of this Prospectus, without first obtaining the prior written
approval of Sands Brothers, which can withhold in its sole discretion.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act.
Prior to this offering, there has been no public trading market for the
Common Stock. Consequently, the initial public offering price of the Common
Stock has been determined by negotiations between the Company and the
Representatives. Among the factors considered in determining the offering price
were the Company's financial conditions and prospects, market prices of similar
securities of comparable publicly traded companies, certain financial and
operating information of companies engaged in activities similar to those of the
Company and the general conditions of the securities markets.
LEGAL MATTERS
The validity of the shares of Common Stock offered by this Prospectus will
be passed upon for the Company by Choate, Hall & Stewart (a partnership
including professional corporations), Boston, Massachusetts. Certain legal
matters in connection with the Offering will be passed upon for the Underwriters
by Littman Krooks Roth & Ball P.C., New York, New York.
EXPERTS
The financial statements included in this Prospectus or elsewhere in the
Registration Statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto and are
included herein upon the authority of said firm as experts in giving said
reports.
52
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-1 under the Securities Act with
respect to the shares of Common Stock offered hereby. As permitted by the rules
and regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement. For further information with respect to
the Company and the Common Stock offered hereby, reference is hereby made to the
Registration Statement, amendments thereto, and to the exhibits and schedules
filed therewith. Statements contained in this Prospectus as to the contents of
any agreement or other document filed as an exhibit to the Registration
Statement are not necessarily complete, and in each instance reference is made
to the copy of such agreement filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference. The
Registration Statement, including the exhibits and schedules filed therewith,
and amendments thereto, may be inspected without charge at the Commission's
Public Reference Room, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the Commission's regional offices located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and at Northwest Atrium Center,
Suite 1400, 500 West Madison Street, Chicago, Illinois 10048. Copies of the
Registration Statement may be obtained from the Commission from its Public
Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549, upon payment
of prescribed fees. The Registration Statement is also available on the
Commission site on the World Wide Web at http://www.sec.gov.
The Company intends to distribute to its stockholders annual reports
containing financial statements audited by its independent accountants and will
make available copies of quarterly reports for the first three quarters of each
fiscal year containing unaudited financial statements.
TRADEMARKS
The Company's logo, Cross-Processor Architecture, Nexar, Nexar Technologies,
NEXAR XPA and XPA are trademarks of the Company. This Prospectus also includes
trademarks of companies other than the Company.
53
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants F-2
Consolidated Balance Sheets as of December 31, 1995 and 1996, and Pro forma as of
December 31, 1996 (Unaudited) F-3
Consolidated Statements of Operations for the period from inception (March 7, 1995)
to December 31, 1995 and for the Year Ended December 31, 1996 F-4
Consolidated Statements of Stockholders' Deficit for the period from
inception (March 7, 1995) to December 31, 1995 and for the Year Ended December 31, 1996 F-5
Consolidated Statements of Cash Flows for the period from inception
(March 7, 1995) to December 31, 1995 and for the Year Ended December 31, 1996 F-6
Notes to Consolidated Financial Statements F-7
</TABLE>
F-1
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Nexar Technologies, Inc.:
We have audited the accompanying consolidated balance sheets of Nexar
Technologies, Inc. (a Delaware corporation and majority-owned subsidiary of
Palomar Medical Technologies, Inc.) and subsidiary as of December 31, 1995 and
1996, and the related consolidated statements of operations, stockholders'
deficit and cash flows for the period from inception (March 7, 1995) to December
31, 1995 and for the year ended December 31, 1996. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Nexar Technologies, Inc. and
subsidiary as of December 31, 1995 and 1996, and the results of their operations
and their cash flows for the period from inception (March 7, 1995) to December
31, 1995 and for the year ended December 31, 1996, in conformity with generally
accepted accounting principles.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
January 24, 1997 (except with respect
to the matter discussed
in Note 10 as to which
the date is February 28, 1997)
F-2
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
DECEMBER 31, DECEMBER 31, 1996
1995 1996 PRO FORMA
------------ ------------ -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
CURRENT ASSETS:
Cash $ 980,618 $ 2,738,983 $ 2,738,983
Accounts receivable, net of allowance of $12,000 and
$603,953 in 1995 and 1996, respectively 327,471 7,747,007 7,747,007
Inventories 8,432 6,112,821 6,112,821
Prepaid expenses and other current assets 52,150 368,040 368,040
------------ ------------ -----------
Total current assets 1,368,671 16,966,851 16,966,851
------------ ------------ -----------
PROPERTY AND EQUIPMENT, NET 100,674 254,812 254,812
------------ ------------ -----------
PURCHASED TECHNOLOGY -- 1,375,000 1,375,000
------------ ------------ -----------
OTHER ASSETS -- 992,458 992,458
------------ ------------ -----------
$ 1,469,345 $ 19,589,121 $ 19,589,121
============ ============ ============
LIABILITIES AND STOCKHOLDERS' (DEFICIT) EQUITY
CURRENT LIABILITIES:
Accounts payable $ 178,154 $ 4,537,052 $ 4,537,052
Accrued expenses 609,333 1,005,244 1,005,244
------------ ------------ -----------
Total current liabilities 787,487 5,542,296 5,542,296
------------ ------------ -----------
DUE TO RELATED PARTIES 2,942,892 23,817,998 8,249,549
------------ ------------ -----------
COMMITMENTS AND CONTINGENCIES (Note 7)
STOCKHOLDERS' (DEFICIT) EQUITY:
Preferred Stock, $.01 par value --
Authorized -- 10,000,000 shares
Issued and Outstanding -- None at December 31, 1995 and
1996; 45,684 shares pro forma -- -- 457
Common Stock, $.01 par value --
Authorized -- 30,000,000 shares
Issued and outstanding -- 4,800,000 shares at
December 31, 1995 and 1996; 6,700,000 shares pro forma 48,000 48,000 67,000
Additional paid-in capital (47,600) (47,600) 15,501,392
Accumulated deficit (2,261,434) (9,771,573) (9,771,573)
------------ ------------ -----------
Total stockholders' (deficit) equity (2,261,034) (9,771,173) 5,797,276
------------ ------------ -----------
$ 1,469,345 $ 19,589,121 $ 19,589,121
============ ============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
F-3
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
PERIOD FROM
INCEPTION
(MARCH 7, 1995) TO YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
NET REVENUES $ 619,629 $ 18,695,364
COST OF REVENUES 574,611 16,392,483
----------- ------------
Gross profit 45,018 2,302,881
----------- ------------
OPERATING EXPENSES:
Research and development 104,383 803,186
Selling and marketing 581,482 4,819,379
General and administrative 1,095,587 2,815,455
Litigation costs (Notes 2 and 10) 525,000 1,375,000
----------- ------------
Total operating expenses 2,306,452 9,813,020
----------- ------------
Net loss $(2,261,434) $ (7,510,139)
============ ============
PRO FORMA NET LOSS PER COMMON AND COMMON EQUIVALENT SHARE (Note 3(b)) $ (0.27) $ (0.89)
============ ============
PRO FORMA WEIGHTED AVERAGE NUMBER OF COMMON AND
COMMON EQUIVALENT SHARES OUTSTANDING (Note 3(b)) 8,421,838 8,421,838
============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
F-4
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' DEFICIT
<TABLE>
<CAPTION>
COMMON STOCK
TOTAL
NUMBER OF $.01 ADDITIONAL ACCUMULATED STOCKHOLDERS'
SHARES PAR VALUE PAID-IN CAPITAL DEFICIT (DEFICIT) EQUITY
--------- --------- --------------- ----------- ----------------
<S> <C> <C> <C> <C> <C>
INITIAL ISSUANCE OF COMMON STOCK,
MARCH 7, 1995 4,800,000 $ 48,000 $ (47,600) $ -- $ 400
Net loss -- -- -- (2,261,434) (2,261,434)
--------- --------- --------------- ----------- --------------
BALANCE, DECEMBER 31, 1995 4,800,000 48,000 (47,600) (2,261,434) (2,261,034)
Net loss -- -- -- (7,510,139) (7,510,139)
--------- --------- --------------- ----------- --------------
BALANCE, DECEMBER 31, 1996 4,800,000 $ 48,000 $ (47,600) $(9,771,573) $ (9,771,173)
========= ======== =============== ============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
F-5
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
PERIOD FROM
INCEPTION
(MARCH 7, 1995) TO YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (2,261,434) $ (7,510,139)
Adjustments to reconcile net loss to net cash used
in operating activities --
Litigation costs 500,000 1,375,000
Management bonuses to be paid by Palomar -- 1,000,000
Depreciation and amortization 2,119 33,166
Changes in current assets and liabilities --
Accounts receivable (327,471) (7,419,536)
Inventories (8,432) (6,104,389)
Prepaid expenses and other current assets (52,150) (315,890)
Accounts payable 178,154 4,358,898
Accrued expenses 109,333 162,911
---------- -----------
Net cash used in operating activities (1,859,881) (14,419,979)
---------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment (102,793) (187,304)
Increase in other assets -- (306,000)
---------- -----------
Net cash used in investing activities (102,793) (493,304)
---------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Due to related parties 2,942,892 16,671,648
Proceeds from initial issuance of common stock 400 --
---------- -----------
Net cash provided by financing activities 2,943,292 16,671,648
---------- -----------
NET INCREASE IN CASH 980,618 1,758,365
CASH, BEGINNING OF PERIOD -- 980,618
---------- -----------
CASH, END OF PERIOD $ 980,618 $ 2,738,983
============ ============
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING AND
FINANCING ACTIVITIES:
Deferred offering costs $ -- $ 686,459
============ ============
Purchase of technology $ -- $ 1,375,000
============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
F-6
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) OPERATIONS AND ORGANIZATION
Nexar Technologies, Inc. (the Company or Nexar) is in its early stages of
manufacturing, marketing and selling personal computers with an unconventional
circuit board design that enables end users to easily upgrade and replace the
microprocessor, memory and hard drive components. The Company markets its
products through multiple channels of distribution.
Nexar was incorporated in Delaware on March 7, 1995. The Company is a
majority-owned subsidiary of Palomar Electronics Corporation (PEC). PEC is a
wholly owned subsidiary of Palomar Medical Technologies, Inc. (Palomar).
The Company's personal computers are in the early stage of product
development, and as such, success of future operations is subject to a number of
risks similar to those of other companies in the same stage of development.
Principal among these risks are the successful development and marketing of its
products, short product life cycles, reliance on a single customer, the need to
achieve profitable operations, intense competition from substitute products and
significantly larger companies, dependence on Palomar for funding and the need
to obtain adequate financing to fund future operations and dependence on key
individuals.
(2) RELATIONSHIP WITH PALOMAR MEDICAL TECHNOLOGIES, INC. AND PALOMAR
ELECTRONICS CORPORATION
Palomar and PEC have funded all of the Company's operations to date. Palomar
has agreed to continue to fund the Company, if needed, at least through December
31, 1997. The total amount of funds provided by Palomar and PEC has been
$21,792,998 and $2,025,000, respectively, through December 31, 1996. The
weighted average balances of these contributions were approximately $767,000 and
$9,791,000 for the period ended December 31, 1995 and the year ended December
31, 1996, respectively. All of these loans have been non-interest-bearing. On
December 19, 1996, the Company entered into an agreement with Palomar whereby
$11,000,000 of advances from Palomar and PEC will be converted into 1,900,000
shares of the Company's common stock upon the closing of the proposed initial
public offering contemplated herein. In addition, by an agreement between the
Company and Palomar, 1,200,000 of these shares will be held in escrow subject to
a contingent repurchase right of the Company, at a nominal price per share, and
will only be released upon the attainment of certain revenue, net income and
stock price milestones, as defined (See Notes 3(a) and (b)). The Company has
also agreed to repay Palomar $8,249,549 upon the closing of the proposed initial
public offering contemplated herein and convert $4,568,449 due to Palomar and
PEC into 45,684 shares of Convertible Preferred Stock at an assumed initial
public offering price of $12.00 per share.
The pro forma consolidated balance sheet at December 31, 1996 reflects the
conversion of $11,000,000 of amounts owed to Palomar and PEC into 1,900,000
shares of the Company's common stock and the conversion of $4,568,449 due to
Palomar and PEC into 45,684 shares of Convertible Preferred Stock.
The accompanying consolidated financial statements include the assets,
liabilities, income and expenses of the Company, as included in Palomar's
consolidated financial statements, but do not include PEC's general corporate
debt, which is used to finance operations of all of PEC's respective business
segments, or an allocation of PECs interest expense.
Palomar has incurred certain general and administrative expenses on behalf
of Nexar totaling approximately $100,000 and $128,000 for the period from
inception (March 7, 1995) to December 31, 1995 and for the year ended December
31, 1996, respectively. Palomar also agreed to pay bonuses to the Company's
management totaling $1,000,000 for the year ended December 31, 1996. These
expenses have been reflected in the historical consolidated financial statements
of Nexar for the respective periods. Management believes the method for
allocating expenses is reasonable and approximates the cost on a stand-alone
basis.
Included in accounts receivable in the accompanying consolidated balance
sheet at December 31, 1996 is approximately $197,000 due from Palomar and its
majority-owned subsidiaries for product purchases. There was no amount due from
Palomar at December 31, 1995.
F-7
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(2) RELATIONSHIP WITH PALOMAR MEDICAL TECHNOLOGIES, INC. AND PALOMAR
ELECTRONICS CORPORATION -- (CONTINUED)
During the year ended December 31, 1996, the Company purchased inventory
components from affiliated companies totaling approximately $693,000, of which
approximately $693,000 is included in accounts payable in the accompanying
consolidated balance sheet as of December 31, 1996.
In 1995, as part of the Company's organization, the Company agreed to settle
a complaint brought against the Company and its Chief Executive Officer. As part
of the settlement, the Company was required to pay $525,000, and Palomar agreed
to issue warrants to purchase 108,000 shares of Palomar's common stock at $5.00
per share, the fair value of Palomar common stock at that date. This warrant had
minimal value. The Company recorded the $525,000 as litigation expense, which is
included in operating expenses in the accompanying consolidated statement of
operations for the period ended December 31, 1995.
(3) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying consolidated financial statements reflect the application
of certain accounting policies described below and elsewhere in the accompanying
notes to consolidated financial statements.
(a) Unaudited Pro Forma Presentation
The unaudited pro forma consolidated balance sheet as of December 31, 1996
reflects the conversion of $11,000,000 due to Palomar and PEC into 1,900,000
shares of the Company's common stock and the conversion of $4,568,449 due to
Palomar and PEC into 45,684 shares of Convertible Preferred Stock at an assumed
initial public offering price of $12.00 per share. In connection with this
conversion of amounts due to related parties, by agreement between Palomar and
the Company, 1,200,000 of the common shares will be held in escrow and only be
released to Palomar based upon the Company's achievement of certain revenue, net
income and stock price milestones, as defined, through December 31, 2000.
(b) Pro Forma Net Loss Per Common And Common Equivalent Share
Pro forma net loss per common and common equivalent share for the period
from inception (March 7, 1995 to December 31, 1995) and for the year ended
December 31, 1996 is computed by dividing the net loss by the pro forma weighted
average number of common and common equivalent shares outstanding during the
period. Pursuant to Securities and Exchange Commission Staff Accounting Bulletin
No. 83, and Accounting Principles Board (APB) Opinion No. 15, the pro forma
weighted average number of common and common equivalent shares outstanding
assumes the conversion of $11,000,000 due to Palomar into 700,000 shares of the
Company's common stock (excluding 1,200,000 shares of common stock subject to a
contingent repurchase right of the Company, at a nominal price per share, and
will only be released upon the attainment of certain revenue, net income and
stock price milestones, as defined, in an agreement between Palomar and the
Company), and assumes that all common stock and common stock equivalents issued
within 12 months prior to the initial filing of the registration statement
related to the Company's anticipated initial public offering have been included
in the calculation, using the treasury stock method, as if they were outstanding
for all periods immediately preceding the initial public offering. Options
issued more than 12 months prior to this Registration Statement have not been
included as their effect would be anti-dilutive. Historical net loss per share
has not been presented as such information is not considered to be relevant or
meaningful.
(c) Principles Of Consolidation
The accompanying consolidated financial statements include the accounts of
the Company and its wholly owned subsidiary, Intelesys Corporation (a Delaware
corporation). All significant intercompany balances and transactions have been
eliminated in consolidation.
F-8
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(3) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -- (CONTINUED)
(d) Use Of Estimates In The Preparation Of The Financial Statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(e) Revenue Recognition
The Company recognizes product revenue upon shipment. The Company has
established programs which, under specified conditions, provide price protection
and or enable customers to return products. The effects of these programs are
estimated and current period revenue and cost of revenue are reduced
accordingly. This is standard industry practice, and no other contingencies
exist relating to these programs. Provisions are made at the time of sale for
any applicable warranty costs expected to be incurred.
During the year ended December 31, 1996, the Company recognized revenue
totaling approximately $2,500,000 for products whose title passed to a customer
and such customer instructed the Company to hold the product at its
manufacturing facility on the customer's behalf. Subsequent to December 31, 1996
all of this product had been shipped to this customer. Included in accounts
receivable at December 31, 1996 is approximately $160,000 due from this customer
related to this transaction. The Company has recognized this revenue in
accordance with the Securities and Exchange Commission Accounting and Auditing
Enforcement Release No. 108.
(f) Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market
and consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1995 1996
------------ -----------
<S> <C> <C>
Raw materials $ 8,432 $ 4,214,097
Work-in-process -- 244,230
Finished goods -- 1,129,494
------- -----------
$ 8,432 $ 5,587,821
======= ===========
</TABLE>
Work-in-process and finished goods inventories consist of material, labor
and manufacturing overhead.
(g) Depreciation And Amortization
Property and equipment are stated at cost. The Company provides for
depreciation and amortization on property and equipment using the straight-line
method by charges to operations that allocate the cost of assets over their
estimated useful lives. The cost of property and equipment and their estimated
useful lives are summarized as follows:
<TABLE>
<CAPTION>
ESTIMATED DECEMBER 31, DECEMBER 31,
ASSET CLASSIFICATION USEFUL LIFE 1995 1996
-------------------- ----------- ---- ----
<S> <C> <C> <C>
Machinery and equipment 5 Years $ 76,614 $ 112,705
Computer equipment 5 Years 700 80,744
Furniture and fixtures 5 Years 25,479 47,718
Leasehold improvements Life of lease -- 48,930
--------- ----------
102,793 290,097
Less -- Accumulated depreciation and amortization 2,119 35,285
--------- ----------
$ 100,674 $ 254,812
========= ==========
</TABLE>
F-9
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(3) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -- (Continued)
(h) Other Assets
As of December 31, 1996, the Company has incurred costs of approximately
$686,000 in connection with the proposed initial public offering of the
Company's common stock, contemplated herein. These costs have been deferred and
are included in other assets in the accompanying consolidated balance sheet as
of December 31, 1996. Upon the consummation of the proposed initial public
offering, the deferred offering costs will be charged to stockholders' equity as
a reduction of the gross proceeds.
(i) Concentration of Credit Risk
Statement of Financial Accounting Standards (SFAS) No. 105, Disclosure of
Information About Financial Instruments with Off-Balance-Sheet Risk and
Financial Instruments with Concentrations of Credit Risk, requires disclosures
of any significant off-balance-sheet and credit risk concentrations. The Company
has no significant off-balance-sheet concentrations of credit risk such as
foreign currency exchange contracts, options contracts or other foreign hedging
arrangements. Financial instruments that subject the Company to credit risk
consist primarily of cash and trade accounts receivable. The Company places its
cash in highly rated financial institutions. The Company's accounts receivable
credit risk is limited to three customers for the period from inception (March
7, 1995) to December 31, 1995 who accounted for approximately $440,000 of total
revenues and approximately $275,000 of accounts receivable at December 31, 1995,
and one customer for the year ended December 31, 1996, who represented
approximately $12,270,000 of total revenues and approximately $4,256,000 of
accounts receivable at December 31, 1996. To reduce risk, the Company routinely
assesses the financial strength of its customers and, as a consequence, believes
that its accounts receivable credit risk exposure is limited. The Company
maintains an allowance for potential credit losses. During the year ended
December 31, 1996, the Company sold approximately $430,000 of product to a
company owned by a current and former officer of Nexar. The Company collected
$210,000 of this amount and wrote off the remaining balance, approximately
$220,000, as uncollectible during the year ended December 31, 1996. The Company
has not experienced any other significant losses related to individual customers
or groups of customers in any particular industry or geographic area.
(j) Financial Instruments
The estimated fair values of the Company's financial instruments, which
include cash, accounts receivable, accounts payable and amounts due to related
parties, approximate their carrying value.
(k) Research and Development Expenses
The Company charges research and development expenses to operations as
incurred.
(4) STOCKHOLDERS' DEFICIT
(a) Recapitalization
In December 1996, the Company amended its Certificate of Incorporation,
increasing the number of authorized shares of the Company's capital stock to
40,000,000, of which 30,000,000 shares are designated as common stock, $.01 par
value, and 10,000,000 shares are designated as preferred stock, $.01 par value,
and also declared a 120-for-1 stock split of the Company's common stock,
effected in the form of a stock dividend. This stock split has been
retroactively reflected in the accompanying consolidated financial statements
and notes to consolidated financial statements for all periods presented.
In December 1996, the Board of Directors approved the issuance of up to
45,684 shares of Convertible Preferred Stock, effective on the closing of the
initial public offering contemplated herein. The Convertible Preferred Stock
will be entitled to voting rights equal to the number of common shares into
which the preferred stock may be converted. The Convertible Preferred Stock will
be convertible
F-10
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(4) STOCKHOLDERS' DEFICIT -- (Continued)
(a) Recapitalization (Continued)
into common shares at the option of the holder thereof at a price based on the
initial public offering price. The holder of the Convertible Preferred Stock
will be able to convert each share of Convertible Preferred Stock into 6.67
shares of common stock based on an assumed initial public offering price of
$12.00 per share. The Convertible Preferred Shares also have a preference upon
liquidation of $100 per share, resulting in a total liquidation preference of
$4,568,400.
(b) Stock Option Plans
In August 1995, the Company established the 1995 Stock Option Plan (the
Plan), which provides for the issuance of a maximum of 4,800,000 shares of
common stock, which may be issued as incentive stock options (ISOs) or
nonqualified stock options. Subsequent to December 31, 1996 the Board of
Directors increased the number of shares issuable under the Plan to 5,300,000.
Under the terms of the Plan, ISOs may not be granted at less than the fair
market value on the date of grant. ISO grants to holders of 10% or more of the
combined voting power of all classes of Company stock must be granted at an
exercise price of 110% of the fair market value at the date of grant. Pursuant
to the Plan, options are generally exercisable at varying dates over one to
three years, as determined by the Board of Directors, and must have terms not to
exceed 10 years (five years for 10% or greater stockholders).
On January 30, 1996 and July 19, 1996 the Company granted options to
purchase 3,234,480 and 83,000 respective shares of the Company's Common Stock at
an exercise price of $0.0025 and $4.25 per share. The price per share was based
on the fair market value of the Company's Common Stock as determined by the
Board of Directors on the date of grant.
The Company has also agreed to issue, upon consummation of the initial
public offering, options to purchase 50,000 and 50,000 shares of the Company's
common stock at 85% and 50% of the initial public offering price, respectively.
Upon the granting of these options, the Company will record deferred
compensation expense for the difference between the exercise price and the price
of the initial public offering, if any. In addition, the Board of Directors
approved the issuance of stock options to purchase 1,050,000 shares of the
Company's common stock at the initial public offering price upon the
effectiveness of the proposed initial public offering price to certain
employees, directors and officers of Palomar and the Company. These stock
options will vest over periods ranging from four to five years, except for stock
options to purchase 800,000 shares of the Company's common stock, which may vest
earlier, upon the achievement of certain revenue, net income and stock price
milestones, as defined, through December 31, 2000.
In December 1996, The Director Plan was adopted by the Board of Directors.
The Director Plan will become effective upon the closing of the proposed initial
public offering. Under the terms of the Director Plan, initial options (the
Initial Options) to purchase 15,000 shares of common stock will be granted to
each person who becomes a non-employee director after the closing date of the
proposed initial public offering and who is not otherwise affiliated with the
Company, effective as of the date of election to the Board of Directors. The
Initial Options will vest in equal annual installments over three years after
the date of grant. In addition, each non-employee director will receive annually
options to purchase 10,000 shares (Annual Options) on the date of each annual
meeting of the Company's stockholders held after the closing of the initial
public offering. The Annual Options will vest one year from the date of grant. A
total of 100,000 shares of common stock may be issued upon the exercise of stock
options granted under the Director Plan. Unless sooner terminated pursuant to
its terms, the Director Plan will terminate in December 2006.
Subsequent to December 31, 1996, the Board of Directors authorized
amendments to employment agreements accelerating the vesting of certain options
to purchase 451,950 shares of the Company's common stock upon the closing of the
initial public offering contemplated herein. In addition, the Board of Directors
approved amendments to employment agreements accelerating the vesting of options
to purchase 903,900 shares of the Company's common stock to vest one year from
the closing of the initial public offering contemplated herein.
F-11
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(4) STOCKHOLDERS' DEFICIT -- (CONTINUED)
(b) Stock Option Plans (Continued)
The Company accounts for its stock-based compensation plans under APB
Opinion No. 25, Accounting for Stock Issued to Employees. In October 1995, the
Financial Accounting Standards Board issued SFAS No. 123, Accounting for
Stock-Based Compensation, which is effective for fiscal years beginning after
December 15, 1995. SFAS No. 123 establishes a fair-value-based method of
accounting for stock-based compensation plans. The Company has adopted the
disclosure-only alternative under SFAS No. 123, which requires disclosure of the
pro forma effects on earnings and earnings per share as if SFAS No. 123 had been
adopted, as well as certain other information.
The Company has computed the pro forma disclosures required under SFAS No.
123 for all stock options granted as of December 31, 1996 using the
Black-Scholes option pricing model prescribed by SFAS No. 123.
The assumptions used and the weighted average information for the period
from inception (March 7, 1995) to December 31, 1995 and for the year ended
December 31, 1996 are as follows:
<TABLE>
<CAPTION>
PERIOD FROM INCEPTION
(MARCH 7, 1995) TO YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
Risk-free interest rates 6.11% 5.23%-6.51%
Expected dividend yield -- --
Expected lives 4.5 years 4.5 years
Expected volatility 51% 51%
Weighted average grant-date fair value of
options granted during the period $0.001 $0.45
Weighted-average exercise price $0.001 $0.45
Weighed-average remaining contractual life of
options outstanding 4.58 years 4.13 years
Weighted average exercise price of 5,733 and
1,063,973 options exercisable at December 31,
1995 and 1996, respectively $0.001 $0.0025
</TABLE>
The effect of applying SFAS No. 123 would be as follows:
<TABLE>
<CAPTION>
PERIOD FROM INCEPTION
(MARCH 7, 1995) TO YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
Pro forma net loss $ (2,261,434) $ (7,646,716)
============ ============
Pro forma net loss per share $ (0.27) $ (0.91)
============ ============
</TABLE>
The following table summarizes all stock option activity under the Plan:
<TABLE>
<CAPTION>
NUMBER EXERCISE
OF SHARES PRICE
---------- --------------
<S> <C> <C>
Inception, March 7, 1995 -- $ --
Granted 20,640 .001
========= ==============
Balance, December 31, 1995 20,640 .001
Granted 3,396,840 .0025-10.00
Terminated (361,560) .0025
--------- --------------
Balance, December 31, 1996 3,055,920 $ .001--$10.00
========= ==============
Exercisable, December 31, 1996 1,063,973 $ .001-$0.0025
========= ==============
</TABLE>
F-12
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(4) STOCKHOLDERS' DEFICIT -- (CONTINUED)
(c) Employee Stock Purchase Plan
In December 1996, the Company's Board of Directors adopted the Company's
1996 Employee Stock Purchase Plan (the Purchase Plan). The Purchase Plan will
become effective upon the closing of the proposed initial public offering and
authorizes the issuance of up to a total of 200,000 shares of Common Stock to
participating employees.
(d) Underwriter's Warrant
Upon the consummation of the proposed initial public offering contemplated
herein, the Company will issue to the underwriter, as part of their investment
banking fee, warrants to purchase 250,000 shares of the Company's common stock
at a price equal to 120% of the initial public offering price per share.
(5) INCOME TAXES
The Company and Palomar file a consolidated income tax return. The
consolidated tax return reflected net operating losses for the year ended
December 31, 1995. It is anticipated the consolidated tax return will also
reflect a net operating loss for the year ended December 31, 1996. If Palomar's
equity ownership drops below 80%, which is anticipated to occur upon the
completion of the proposed initial public offering, the Company will file its
own income tax return.
The Company accounts for income taxes in accordance with SFAS No. 109,
Accounting for Income Taxes, on a separate Company basis. Under SFAS No. 109,
deferred tax assets or liabilities are computed based on the differences between
the financial statement and income tax bases of assets and liabilities using
currently enacted tax rates. Deferred income tax expenses or credits are based
on changes in the assets or liability from period to period.
As of December 31, 1996, the Company had generated net operating loss
carryforwards for federal and state income tax purposes of approximately
$6,375,000 that expire through 2011. The Company also has certain tax credits
available to offset future federal and state income taxes, if any. Net operating
loss carryforwards and credits are subject to review and possible adjustment by
the Internal Revenue Service and may be limited in the event of certain
cumulative changes in ownership interests of significant stockholders over a
three-year period in excess of 50%, as defined. The Company may experience a
change in ownership in excess of 50% upon completion of the proposed initial
public offering, contemplated herein. The Company does not believe that these
changes in ownership will significantly impact the Companys ability to utilize
its net operating loss carryforwards.
The approximate income tax effect of each type of temporary difference and
carryforward is as follows:
<TABLE>
<CAPTION>
1995 1996
---------- -----------
<S> <C> <C>
Net operating loss carryforwards $ 830,000 $ 2,567,000
Litigation costs -- 550,000
Management bonuses -- 403,000
Other temporary differences 75,000 385,000
---------- ------------
905,000 3,905,000
Less -- Valuation allowance (905,000) (3,905,000)
---------- ------------
-- $ --
========== =============
</TABLE>
Under SFAS No. 109, the Company cannot recognize a deferred tax asset for
the future benefit of the net operating loss carryforwards unless it concludes
that it is "more likely than not" that the deferred tax asset would be realized.
Due to its early stage of development and history of operating losses, the
Company has recorded a full valuation allowance against its otherwise
recognizable deferred tax assets.
F-13
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(6) ACCRUED EXPENSES
Accrued expenses consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1995 1996
----------- -----------
<S> <C> <C>
Accrued payroll and related costs $ 51,452 $ 128,373
Accrued settlement costs 500,000 --
Other accrued expenses 57,881 876,871
-------- -----------
Total $609,333 $ 1,005,244
======== ===========
</TABLE>
(7) COMMITMENTS AND CONTINGENCIES
(a) Operating Leases
The Company leases its corporate office and manufacturing facility under
operating lease arrangements expiring through August 2001. The Company also
leases certain equipment under operating leases expiring through September 2000.
Future minimum lease payments under all operating leases at December 31,
1996 are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED AMOUNT
- ----------------- ------
<S> <C>
1997 $ 418,000
1998 450,000
1999 453,000
2000 506,000
2001 352,000
-----------
$ 2,179,000
===========
</TABLE>
Rent expense related to all operating leases was approximately $85,000 and
$161,000 for the period from inception (March 7, 1995) to December 31, 1995 and
for the year ended December 31, 1996, respectively.
(b) License Agreements
In August 1995, the Company entered into a license agreement with
Technovation Computer Labs, Inc. (Licensor). The Licensor is affiliated with a
former officer of the Company. The license agreement gives Nexar the right to
manufacture, sell and use a system designed by the Licensor, which allows
external replacement of certain component parts. In exchange for these rights,
the Company pays a royalty on each unit sold, as defined. The term of the
agreement is for five years (three years on an exclusive basis), renewable for
an additional five-year period at the option of the Company. For the period from
inception (March 7, 1995) to December 31, 1995 and for the year ended December
31, 1996, royalties charged to operations were immaterial. Subsequent to
December 31, 1996, Palomar and the Licensor entered into an Asset Purchase and
Settlement Agreement, see Note 10.
In March 1996, the Company entered into a software license agreement with
4-Home Productions (4-Home), a Division of Computer Associates International,
Inc. The license agreement gives the Company the right to use, reproduce,
display and distribute certain of 4-Homes software application
F-14
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(7) COMMITMENTS AND CONTINGENCIES -- (CONTINUED)
(b) License Agreements (Continued)
programs within the United States, Canada and Puerto Rico. In exchange for these
rights, the Company paid 4-Home a nonrefundable fee of $25,000 and will pay a
royalty on all units sold, as defined, that are bundled with 4-Homes' software
applications. The term of the agreement is for one year and will automatically
renew for additional one-year periods unless written notice of termination is
made by either party 60 days prior to the end of the initial or any subsequent
term. No royalties have been incurred under this agreement as of December 31,
1996.
(c) Service Agreement
In March 1996, the Company entered into a maintenance service agreement with
Wang Laboratories, Inc. (Wang). The agreement states that Wang will provide
certain maintenance services for certain equipment manufactured by the Company
for a term of three years and, thereafter, on a year-to-year basis at the option
of the Company. The payment terms are based on the greater of certain minimum
amounts or the failure rate, as defined, multiplied by the number of units sold
per month. As of December 31, 1996, the Company incurred and charged to
operations approximately $126,000 under this agreement.
(d) Development Agreement
In November 1996, the Company entered into a development agreement with
another company (the Developer) whereby the Developer would develop certain
technology for the Company for approximately $250,000, in accordance with the
development agreement. In addition, the Company may be required to pay
additional amounts based on product sold, not to exceed $500,000. No royalties
have been incurred under this agreement as of December 31, 1996.
(e) Milestone Agreement
In connection with the Company's proposed initial public offering, Palomar
will place 1,200,000 shares of the Company's common stock received for the
conversion of certain amounts due to Palomar and PEC in escrow (see Note 2).
These shares will only be released from escrow upon the achievement by the
Company of a minimum revenue and net income milestone or minimum stock price, as
defined.
(f) Employment Agreements
The Company has an employment agreement with its Chief Executive Officer
(CEO) expiring in March 2002, unless extended. The agreement provides for annual
salary and bonus for the CEO and a commission of $2.00 per computer sold by the
Company. Upon termination of employment with the Company, as defined, the CEO
will be entitled to amounts ranging from $1,000,000 to $3,000,000 in cash, three
to five years of salary, bonus and participation in the Company's benefit plans,
immediate vesting of unvested stock options and an income tax "gross up" for all
of the above items in the event of a change of control, as defined.
The Company has an employment agreement with another executive officer
expiring in March 2002, unless extended. The agreement provides for annual
salary and bonus for the officer and a commission of $2.00 per unit sold by the
Company. Upon termination of employment with the Company, as defined, the
officer will be entitled to up to $750,000 in cash, one year of salary, bonus
and participation in the Company's benefit plans, immediate vesting of unvested
stock options and an income tax "gross up" for all of the above items in the
event of a change of control, as defined.
The Company has substantially similar employment agreements with certain
other executive officers that provide for annual salaries and bonuses to the
officers and expire in March 2000. Each of these agreements provide for 12
months severance upon termination of employment, as defined.
F-15
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(8) 401(K) PROFIT SHARING PLAN
In April 1996, the Company began participating in a 401(k) plan established
by Palomar. The 401(k) plan covers substantially all employees who have
satisfied a six-month service requirement and have attained the age of 18.
Employees may contribute up to 15% of their salary, as defined, subject to
restrictions defined by the Internal Revenue Service. Matching contributions
equal to 50% of all employee contributions are made in the form of Palomar's
common stock. Upon the closing of the initial public offering contemplated
herein, it is managements intention to establish its own 401(k) plan. The
matching contributions vest ratably over a three-year period. The Company's
expense under this matching contribution was immaterial through December 31,
1996.
(9) FINANCING ARRANGEMENTS
In August 1996, the Company entered into a financing program with IBM Credit
Corporation (IBM) whereby IBM will finance all hardware, software and associated
products sold or marketed by the Company to any entity (Remarketer) that has
already executed a financing agreement with IBM to purchase products from the
Company. This financing program gives title of the products sold by the Company
to the Remarketer, and IBM finances the purchase price of the products. In
addition, under certain circumstances, as defined, IBM has the right to require
the Company to repurchase products upon default by the Remarketer. As of
December 31, 1996, the Company has not received any proceeds under this
agreement.
In August 1996, the Company entered into a financing agreement with AT&T
Capital Corporation (AT&T) whereby AT&T would provide to certain distributors or
dealers, financing for the purchase of the Company's products. Under certain
circumstances, as defined, AT&T has the right to require the Company to
repurchase products upon default of payment by the distributor to AT&T. As of
December 31, 1996, the Company has not received any proceeds under this
agreement.
(10) SUBSEQUENT EVENTS
In 1996, an attorney for a former executive officer of the Company
threatened to file a lawsuit or seek arbitration proceeding against the Company
regarding the Company's termination of this executive's employment and the
Company's license agreement with the Licensor.
On February 28, 1997, Palomar and the Company entered into an Asset Purchase
and Settlement Agreement with this former executive and Licensor. Under the
terms of this agreement, Palomar has agreed to pay this former executive and
certain of his affiliates $1,250,000 in cash and deliver $1,500,000 worth of
Palomar's common stock in exchange for all right, title and interest in and to
all the technology licensed under Company's license agreement with the Licensor
and a complete release and settlement of all claims between this former
executive and the Company. Palomar paid $75,000 upon the execution of this
agreement. Palomar will issue its common shares and remit $475,000 to this
former executive on the earlier of April 30, 1997 or the closing of the initial
public offering, contemplated herein. The $700,000 balance of the cash
consideration will be held in escrow, subject to release to the former executive
and/or Licensor in the absence of a breach of a representation, warranty or
covenant within one year after the closing.
Palomar has agreed to assign to the Company all of its rights and title in
the technology to be received under the Asset Purchase and Settlement Agreement
immediately upon the receipt thereof, and has charged to the Company the costs
associated with this claim and the purchase of the technology. The Company has
allocated $1,375,000 of the consideration to settle this claim and has reflected
this amount as litigation expense in its statement of operations for the year
ended December 31, 1996. The remaining consideration totaling $1,375,000 has
been allocated to the purchase of the technology as of December 31, 1996 and
will be amortized over the technology's estimated useful life.
The Company has included $2,750,000 in Due to Related Parties as of December
31, 1996 in connection with this settlement.
F-16
Product engineering and manufacturing are located in NEXAR's l00,000 sf facility
in Hayward, Calilornia. Corporate headquarters are in Westborough,
Massachusetts.
[PHOTOGRAPHS OF EXTERIOR AND INTERIOR OF CALIFORNIA MANUFACTURING FACILITY]
[NEXAR LOGO]
182 Turnpike Road
Westborough, MA 01581
l -888-NEXAR-PC
================================================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED HEREIN, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY, OR BY ANY OF THE UNDERWRITERS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER 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 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 SUBSEQUENT TO ITS DATE.
----------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary 3
Risk Factors 6
Use of Proceeds 14
Dividend Policy 14
Capitalization 15
Dilution 16
Selected Consolidated Financial Data 17
Management's Discussion and Analysis of
Financial Condition and Results of
Operations 18
Business 22
Management 35
Certain Transactions 43
Stockholders 45
Beneficial Ownership of Management 46
Description of Capital Stock 48
Shares Eligible for Future Sale 50
Underwriting 51
Legal Matters 52
Experts 52
Additional Information 53
Trademarks 53
Index to Consolidated Financial Statements F-1
</TABLE>
UNTIL , 1997 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS
EFFECTING TRANSACTIONS IN THE COMMON STOCK, WHETHER OR NOT PARTICIPATING IN THIS
DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO
THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS
AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
================================================================================
2,500,000 SHARES
[LOGO)
COMMON STOCK
----------
PROSPECTUS
----------
SANDS BROTHERS & CO., LTD.
Credit Lyonnais Securities (USA) Inc.
, 1997
================================================================================
ALTERNATE PAGE FOR SELLING SECURITY HOLDERS' PROSPECTUS
SUBJECT TO COMPLETION, DATED , 1997
PROSPECTUS
- ----------
6,700,000 SHARES
[LOGO)
COMMON STOCK
This Prospectus relates to the resale of up to 6,700,000 shares of Common
Stock of Nexar Technologies, Inc. ("NEXAR" or the "Company") held by Palomar
Medical Technologies, Inc. ("Palomar"), The Travelers Insurance Company, GFL
Advantage Fund Limited and Clearwater Fund IV LLC (collectively, the "Selling
Security Holders"). Prior to the Company's initial public offering, as described
below, there has not been a public market for the Common Stock of the Company.
The shares of Common Stock being offered hereby were acquired by the Selling
Security Holders pursuant to a private offering of Common Stock in private
transactions exempt from registration under federal and state securities laws.
SEE "RISK FACTORS" BEGINNING ON PAGE 6 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON
STOCK OFFERED HEREBY.
The Selling Security Holders and their agents, donees, distributees,
pledgees and other successors in interest may offer and sell the remainder of
the shares from time to time in one or more transactions on The Nasdaq Stock
Market, or otherwise, at market prices then prevailing or in negotiated
transactions. The shares may also be sold pursuant to option, hedging or other
transactions with broker-dealers. The shares may also be offered in one or more
underwritten offerings, although no such arrangments have been made. The
underwriters in an underwritten offering, if any, and the terms and conditions
of any such offering will be described in a supplement to this Prospectus. See
"Selling Security Holders" and "Plan of Distribution."
On , 1997, the Company consummated an initial public offering (the
"Offering") of 2,500,000 shares of Common Stock through Sands Brothers & Co.,
Ltd. (the "Representative") as the representative of several underwriters. The
Company will not receive any of the proceeds from the sale of the shares by the
Selling Security Holders. See "Use of Proceeds." The Common Stock of the Company
is traded on the National Market of the Nasdaq Stock Market (the "Nasdaq
National Market") under the symbol "NEXR". On , 1997, the last reported sale
price of Common Stock on the Nasdaq National Market was $ per share.
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.
THE DATE OF THIS PROSPECTUS IS , 1997.
ALTERNATE PAGE FOR SELLING SECURITY HOLDERS' PROSPECTUS
THE OFFERING
The 6,700,000 shares of Common Stock offered by the Selling Security Holders
are identical to the 2,500,000 shares of Common Stock offered and sold by the
Company in its underwritten initial public offering (the "Offering") by separate
prospectus. Upon completion of the Offering, 9,200,000 shares of Common Stock
were outstanding based on the number of shares of Common Stock outstanding on
December 20, 1996 and excluding (i) 3,055,920 shares of Common Stock issuable
upon exercise of stock options outstanding as of December 20, 1996 at a weighted
average exercise price of $0.52 per share, of which options to purchase
1,063,973 shares were then exercisable, and (ii) 800,000 shares of Common Stock
reserved for issuance under stock options to be granted upon the effectiveness
of the Offering at the initial public offering price. See "Capitalization,"
"Management -- Stock Plans" and "Beneficial Ownership of Management." Such
9,200,000 shares outstanding includes 1,900,000 shares of Common Stock which
were issued to related parties upon conversion of $11,000,000 of indebtedness
upon the closing of the Offering. See "Certain Transactions."
ALTERNATE PAGE FOR SELLING SECURITY HOLDERS' PROSPECTUS
USE OF PROCEEDS
The Company will receive no proceeds from the sale of Common Stock by the
Selling Security Holders. The net proceeds to the Company from the sale of the
2,500,000 shares of Common Stock offered by the Company pursuant to the Offering
are estimated to be $25,850,000 ($29,877,500 if the Underwriters exercise their
over-allotment option in full), assuming an initial public offering price of
$12.00 per share and after deducting estimated underwriting discounts and
commissions and estimated offering expenses payable by the Company.
The principal purposes of the Offering are to increase the Company's equity
capital and to create a public market for the Company's Common Stock, which will
facilitate future access by the Company to the public equity markets, enhance
the ability of the Company to use its Common Stock as consideration for
acquisitions and as a means for attracting and retaining key employees. The
Company intends to use the proceeds of the Offering to repay non-interest
bearing demand indebtedness to related parties, which was $8,249,549 at December
31, 1996 (including $2,750,000 incurred by Palomar on the Company's behalf to
settle claims of a former executive officer and to acquire certain technology;
see "Certain Transactions") and for general corporate purposes, including
working capital, product development and capital expenditure. The amount and
timing of expenditures may vary significantly depending upon numerous factors
including the success of the Company's currently marketed product, the continued
progress in, and magnitude of the Company's research and product development
programs, market acceptance of the Company's new products, the timing and costs
involved in obtaining regulatory clearances and approvals, the costs involved in
filing, prosecuting, enforcing and defending patent claims, and competing
technological and market developments and the costs and success of its
commercialization activities. Based upon its current operating plan, the Company
believes that its existing capital resources together with the proceeds of the
Offering and interest earned thereon, will be adequate to satisfy its capital
requirements for at least the next twelve months.
A portion of the net proceeds of the Offering may also be used for
investments in or acquisitions of complementary businesses, products or
technologies, although the Company has not entered into any commitments or
negotiations with respect to any such transactions. Pending such use, the
Company expects to invest the net proceeds in short-term, interest-bearing,
investment grade securities.
ALTERNATE PAGE FOR SELLING SECURITY HOLDERS' PROSPECTUS
SELLING SECURITY HOLDERS
Set forth below, with respect to each of the Selling Security Holders, is
the number of shares of Common Stock beneficially owned as of December 31, 1996,
the number of shares of Common Stock offered pursuant to this Prospectus and the
number of shares to be owned after completion of this offering (assuming the
sale of all of the shares offered hereby).
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF SHARES
TOTAL NUMBER OF SHARES TO BE TO BE OWNED AFTER
NAME AND ADDRESS SHARES OWNED(1) OFFERED OR SOLD THE OFFERING
---------------- --------------- --------------- ------------
6,100,000 6,100,000 0
<S> <C> <C> <C>
Palomar Medical Technologies, Inc. ......
66 Cherry Hill Drive
Beverly, Massachusetts 01915
200,000 200,000 0
The Travelers Insurance Company .........
One Tower Square
Hartford, Connecticut 06183
GFL Advantage Fund Limited .............. 200,000 200,000 0
c/o Citco
Kaya Flamboyan 9
Curacao, Netherlands, Antilles
Clearwater Fund IV LLC .................. 200,000 200,000 0
611 Druid Road East
Suite 200
Clearwater, Florida 34616
</TABLE>
- -----------
(1) The shares of the Common Stock beneficially owned by Palomar are held by
Palomar Electronics Corporation (PEC), a wholly-owned direct subsidiary of
Palomar. After the sale of the Common Stock in the Offering, Palomar
(through its ownership of PEC) will beneficially own approximately 66%
(6,100,000 shares) of the outstanding Common Stock (approximately 64% if
the Underwriters' over- allotment option is exercised in full), including
1,900,000 shares of Common Stock that will be issued upon the closing of
the Offering to Palomar and PEC in exchange for retirement of $11,000,000
of indebtedness owed by the Company to Palomar and PEC. See "Certain
Transactions."
CONCURRENT OFFERING
The Registration Statement of which this Prospectus is a part also covers
2,500,000 shares of Common Stock offered by the Company made pursuant to a
separate prospectus.
ALTERNATE PAGE FOR SELLING SECURITY HOLDERS' PROSPECTUS
PLAN OF DISTRIBUTION
The Selling Security Holders and their agents, donees, distributees,
pledgees and other successors in interest may, from time to time, offer for sale
and sell or distribute the shares to be offered by them hereby (a) in
transactions executed on the Nasdaq National Market, or any securities exchange
on which the shares may be traded, through registered broker-dealers (who may
act as principals, pledgees or agents) pursuant to unsolicited orders or offers
to buy, (b) in negotiated transactions, or (c) through other means. The shares
may be sold from time to time in one or more transactions at market prices
prevailing at the time of sale or a fixed offering price, which may be changed,
or at varying prices determined at the time of sale or at negotiated prices.
Such prices will be determined by the Selling Security Holders or by agreement
between the Selling Security Holders and their underwriters, dealers, brokers or
agents. The shares may also be offered in one or more underwritten offerings.
The underwriters in an underwritten offering, if any, and the terms and
conditions of any such offering will be described in a supplement to this
Prospectus.
In connection with distribution of the shares, the Selling Security Holders
may enter into hedging or other option transactions with broker-dealers in
connection with which, among other things, such broker-dealers may engage in
short sales of the shares pursuant to this Prospectus in the course of hedging
the positions they may assume with one or more of the Selling Security Holders.
The Selling Security Holders may also sell shares short pursuant to this
Prospectus and deliver the shares to close out such short positions. The Selling
Security Holders may also enter into option or other transactions with
broker-dealers which may result in the delivery of shares to such broker-dealers
who may sel1 such shares pursuant to this Prospectus. The Selling Security
Holders may also pledge the shares to a broker-dealer and upon default the
broker-dealer may effect the sales of the pledged shares pursuant to this
Prospectus.
The distribution of the shares by the Selling Security Holders is not
subject to any underwriting agreement. Any underwriters, dealers, brokers or
agents participating in the distribution of the shares may receive compensation
in the form of underwriting discounts, concessions, commissions or fees from the
Selling Security Holders and/or purchasers of shares, for whom they may act.
Such discounts, concessions, commissions or fees will not exceed those customary
for the type of transactions involved. In addition, the Selling Security Holders
and any such underwriters, dealers, brokers or agents that participate in the
distribution of shares may be deemed to be underwriters under the Securities
Act, and any profits on the sale of shares by them and any discounts,
commissions or concessions received by any of such persons may be deemed to be
underwriting discounts and commissions under the Securities Act. Those who act
as underwriter, broker, dealer or agent in connection with the sale of the
shares will be selected by the Selling Security Holders and may have other
business relationships with the Company and its subsidiaries or affiliates in
the ordinary course of business.
The aggregate proceeds to the Selling Security Holders from the sale of the
shares offered by the Selling Security Holders hereby will be the purchase price
of such shares less any broker's commissions.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdiction 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 of qualification
requirement is available and is complied with.
The Selling Security Holders and any broker-dealer, agent or underwriter
that participates with the Selling Security Holders in the distribution of the
shares may be deemed to be "underwriters" within the meaning of the Securities
Act, in which event any commissions received by such broker-dealers, agents or
underwriters 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.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares offered hereby may not simultaneously
engage in market making activities with respect to the shares for a period of
two business days prior to the commencement of such distribution. In addition,
and without limiting the foregoing, the Selling Security Holders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Rules 10b-2, l0b-5, l0b-6 and l0b-7,
which provisions may limit the timing of sales of the shares by the Selling
Security Holders.
There is no assurance that the Selling Security Holders will sell any or all
of the shares described herein and may transfer, devise or gift such securities
by other means not described herein. The Company is permitted to suspend the use
of this Prospectus in connection with sales of the shares by holders during
certain periods of time under certain circumstances relating to pending
corporate developments and public filings with the Commission and similar
events. Expenses of preparing and filing the registration statement and any and
all amendments thereto will be borne by the Company.
================================================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED HEREIN, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING SECURITY HOLDERS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER 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 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 SUBSEQUENT TO ITS DATE.
----------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary
Risk Factors
Use of Proceeds
Dividend Policy
Capitalization
Dilution
Selected Consolidated Financial Data
Management's Discussion and Analysis of
Financial Condition and Results of
Operations
Business
Management
Certain Transactions
Selling Security Holders
Beneficial Ownership of Management
Description of Capital Stock
Shares Eligible for Future Sale
Underwriting
Legal Matters
Experts
Additional Information
Trademarks
Index to Consolidated Financial Statements F-1
</TABLE>
================================================================================
ALTERNATE PAGE FOR SELLING
SECURITY HOLDERS' PROSPECTUS
================================================================================
6,700,000 SHARES
[LOGO)
COMMON STOCK
----------
PROSPECTUS
----------
, 1997
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses (other than underwriting discounts and commissions)
payable by the Registrant in connection with the sale of the Common Stock
offered hereby are as follows:
<TABLE>
<CAPTION>
<S> <C>
SEC Filing fee $ 37,720
NASD Filing fee 12,948
Nasdaq National Market fee 40,500
Printing and mailing expenses 100,000
Legal fees and expenses 400,000
Accounting fees and expenses 300,000
Blue Sky fees and expenses (including legal fees) 25,000
Transfer agent and registrar fees and expenses 2,500
Miscellaneous 81,332
----------
Total $1,000,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware provides
that a corporation may indemnify a director, officer, employee or agent against
expenses (including attorneys' fees), judgments, fines and for amounts paid in
settlement in respect of or in successful defense of any action, suit or
proceeding if he acted in good faith and in a manner he 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 his
conduct was unlawful.
Article Tenth of the Registrant's Restated Certificate of Incorporation
provides that no director of the Registrant shall be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit. Article Tenth further provides
that a director's personal liability shall be eliminated or limited in the
future to the fullest extent permitted from time to time by the Delaware General
Corporation Law.
Article Eleventh of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall, to the fullest extent permitted from time to
time under the Delaware General Corporation Law, indemnify each of its directors
and officers against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement in respect of any action, suit or proceeding in
which such director or officer may be involved or with which he may be
threatened, while in office or thereafter, by reason of his or her actions or
omissions in connection with services to the Registrant, such indemnification to
include prompt payment of expenses in advance of the final disposition of any
such action, suit or proceeding.
The directors and officers of the Registrant are beneficiaries of a
director's and officer's liability insurance policy maintained by the
Registrant's parent corporation, Palomar Medical Technologies, Inc. Such policy
provides coverage up to $5,000,000 and will continue to apply to the
Registrant's officers and directors while in force and for as long as Palomar
owns more than 50% of the issued and outstanding voting stock of the Registrant.
II-1
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this registration statement, the
Registrant has issued the following securities that were not registered under
the Securities Act:
(a) In March 1995, the Registrant issued 40,000 shares of Common Stock to
Palomar (which subsequently transferred such shares to PEC without
consideration) for consideration of $400.
No underwriters were involved in the foregoing sales of securities. Such
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by an
issuer not involving any public offering or the rules and regulations
thereunder. All of the foregoing securities are deemed restricted securities for
the purposes of the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
--- -----------
<S> <C>
+1.1 -- Draft of Underwriting Agreement
+3.1 -- Certificate of Incorporation of the Registrant, as amended
+3.2 -- Form of Restated Certificate of Incorporation to be filed by the Registrant
+3.3 -- Amended and Restated By-laws of the Registrant
+4.1 -- Articles Fourth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and Fifteenth
of the Restated Certificate of Incorporation of the Registrant to be filed by
the Registrant (included in Exhibit 3.2)
+4.2 -- Articles II, III, IV, V, VI, VII, VIII, IX, X, XIV, XXI, XXVI, XXVII, of the Registrant's
By-laws, as amended (included in Exhibit 3.3)
4.3 -- Agreement dated as of February 28, 1997 between Palomar Medical Technologies,
Inc. and the Registrant
4.4 -- Registration Rights Agreement dated as of December 18, 1996 between the Registrant
and The Travelers Insurance Company
4.5 -- Registration Rights Agreement dated as of December 31, 1996 between the Registrant
and GFL Advantage Fund Limited.
5.1 -- Opinion of Choate, Hall & Stewart with respect to legality of the shares of Common
Stock of the Registrant being registered
+10.1 -- Lease dated as of July 28, 1995 between the Registrant and W.D.P. Corp., a Massachusetts
corporation
+10.2 -- Lease dated as of August 9, 1996 between the Registrant and IBG Huntwood Associates,
a California general partnership
+**10.3 -- License Agreement between the Registrant and Technovation Computer Labs, Inc.
dated as of August 1, 1995
+**10.4 -- International Service Agreement between the Registrant and Wang Laboratories,
Inc. dated September 1, 1996
+**10.5 -- On-Site Maintenance & Service Agreement between the Registrant and Wang Laboratories,
Inc. dated October 2, 1995
+10.6 -- Letter agreement dated as of December 17, 1996 between the Registrant and Government
Technology Services, Inc.
*10.7 -- 1995 Stock Option Plan, as amended
*10.8 -- 1996 Employee Stock Purchase Plan
*10.9 -- 1996 Non-Employee Directors Stock Option Plan
II-2
*10.10 -- Key Employee Agreement between the Registrant and Albert J. Agbay
*10.11 -- Key Employee Agreement between the Registrant and Gerald Y. Hattori
*10.12 -- Key Employee Agreement between the Registrant and Michael J. Paciello
*10.13 -- Key Employee Agreement between the Registrant and Liaqat Y. Khan
*10.14 -- Key Employee Agreement between the Registrant and Victor J. Melfa, Jr.
*10.15 -- Key Employee Agreement between the Registrant and James P. Lucivero
*10.16 -- Key Employee Agreement between the Registrant and E. Craig Conrad
**10.17 -- Development Agreement dated as of November 12, 1996 between the Registrant and
GDA Technologies, Inc.
*10.18 -- Amendment to Key Employment Agreement between the Registrant and Gerald Y. Hattori
*10.19 -- Amendment to Key Employment Agreement between the Registrant and Michael J. Paciello
*10.20 -- Amendment to Key Employment Agreement between the Registrant and Liaqat Y. Khan
*10.21 -- Amendment to Key Employment Agreement between the Registrant and Victor J. Melfa
*10.22 -- Amendment to Key Employment Agreement between the Registrant and James P. Lucivero
10.23 -- Asset Purchase Agreement dated as of February 28, 1997 among the Registrant, Palomar
Medical Technologies, Inc., Babar I. Hamirani and Technovation Computer Labs,
Inc.
10.24 -- Asset Purchase Agreement dated as of February 28, 1997 between the Registrant
and Palomar Medical Technologies, Inc.
*10.25 -- Form of Warrant Agreement between the Registrant and Sands Brothers & Co., Ltd.
11.1 -- Statement Re: Earnings Per Share
+21.1 -- List of Registrant's subsidiaries
*23.1 -- Consent of Choate, Hall & Stewart (included in Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP
+24.1 -- Power of Attorney
27.1 -- Financial Data Schedule
</TABLE>
- ---------
+ Previously filed.
* To be filed by amendment.
** Confidential Treatment requested as to portions of the exhibit indicated
which have been filed separately with the Securities and Exchange Commission.
(b) Financial Statement Schedules:
Valuation and Qualifying Accounts
All other schedules are omitted because they are not applicable, not
required under the instructions, or all of the information required is set forth
in the financial statements or notes thereto.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (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
II-3
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in the volume of securities
offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities
and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(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.
(f) To provide to the underwriters at the closing specified in the
underwriting agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt delivery to each
purchaser.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to provisions described in Item 14 above,
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 of indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
(i) (1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS PRE-EFFECTIVE AMENDMENT NO. 3 TO REGISTRATION STATEMENT ON
FORM S-1 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE TOWN OF WESTBOROUGH, MASSACHUSETTS ON MARCH 5, 1997.
NEXAR TECHNOLOGIES, INC.
By: /s/ ALBERT J. AGBAY
-------------------------------
ALBERT J. AGBAY
CHIEF EXECUTIVE OFFICER,
PRESIDENT AND CHAIRMAN OF
THE BOARD
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
PRE-EFFECTIVE AMENDMENT NO. 3 HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
<S> <C> <C> <C>
/s/ ALBERT J. AGBAY Chief Executive Officer March 5, 1997
---------------------------- (Principal Executive Officer),
ALBERT J. AGBAY President and Chairman of the
Board of Directors
/s/ GERALD Y. HATTORI Vice President of Finance, March 5, 1997
----------------------------- Chief Financial Officer and
GERALD Y. HATTORI Treasurer (Principal Financial
and Accounting Officer)
*
---------------------------- Director March 5, 1997
STEVEN GEORGIEV
*
---------------------------- Director March 5, 1997
JOSEPH E. LEVANGIE
*
---------------------------- Director March 5, 1997
JOSEPH P. CARUSO
*
---------------------------- Director March 5, 1997
BUSTER C. GLOSSON
*By: /s/ ALBERT J. AGBAY
-----------------------------
ATTORNEY-IN-FACT
</TABLE>
II-5
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS ON SCHEDULE
To Nexar Technologies, Inc.:
We have audited, in accordance with generally accepted auditing standards,
the consolidated financial statements of Nexar Technologies, Inc. and subsidiary
included in this registration statement and have issued our report thereon dated
January 24, 1997 (except with respect to the matter discussed in Note 10 as to
which the date is February 28, 1997). Our audit was made for the purpose of
forming an opinion on the basic financial statements taken as a whole. The
schedule listed in Item 16(b) above is the responsibility of the Company's
management and is presented for purposes of complying with the Securities and
Exchange Commission's rules and is not part of the basic financial statements.
This schedule has been subjected to the auditing procedures applied in the audit
of the basic financial statements and, in our opinion, fairly states, in all
material respects, the financial data required to be set forth therein, in
relation to the basic financial statements taken as a whole.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
January 24, 1997
S-1
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
BALANCE, BALANCE,
BEGINNING OF END OF
PERIOD INCREASES(1) DEDUCTIONS PERIOD
------ ------------ ---------- ------
<S> <C> <C> <C> <C>
ACCOUNTS RECEIVABLE RESERVE:
December 31, 1995 $ -- $ 12,000 $ -- $ 12,000
December 31, 1996 $ 12,000 $ 811,096 $ (219,143) $ 603,953
</TABLE>
- -------
(1) Includes allowances for doubtful accounts, sales returns and stock
rebalancing arrangements.
S-2
[INSERT EXHIBIT 1.1]
EXHIBIT 4.3
Agreement Between
Palomar Medical Technologies, Inc.
and Nexar Technologies, Inc.
This Agreement dated as of the 28th day of February, 1997 is by and
between Palomar Medical Technologies, Inc. (together with its subsidiaries other
than Nexar, "Palomar") and Nexar Technologies, Inc. ("Nexar") a wholly owned
subsidiary of Palomar.
Palomar has provided all of Nexar's funds for operations to date in the
form of non-interest bearing loans. The total amount of funds provided by
Palomar through December 31, 1996 has been $23,817,998 (the "Indebtedness"),
including $2,750,000 incurred by Palomar on the Company's behalf to settle
claims of a former executive officer and to acquire certaint technology (for
further assignment to the Company) from such officer and a company controlled by
such officer. The purpose of this Agreement, among other things, is to set forth
the terms and conditions for repayment or contribution to capital of Nexar for
the Indebtedness. Accordingly, the parties hereby agree as follows:
1. General Terms. Upon the closing of an initial public offering (an
"IPO") of the common stock of Nexar, $8,249,549 of the Indebtedness
will be repaid to Palomar, $4,568,449 will be converted into 45,684
shares of Nexar's Convertible Preferred Stock, and $11,000,000 will be
converted into 1,900,000 shares of Nexar's common stock, of which
700,000 will be issued without restriction. The balance of 1,200,000
shares (the "Contingent Shares") shall be subject to mandatory
repurchase, in whole or in part, by Nexar at $0.01 per share at any
time after the 48 month anniversary of the IPO unless released from
escrow under Section 2, below.
2. Escrow of Contingent Shares. The Contingent Shares shall be placed in
escrow, subject to release to Palomar in installments of 400,000 shares
each (upon achievement of any 3 of the 4 milestones specified below;
none, some, or all of which may occur) as follows:
(a) if Nexar achieves $7,000,000 in net income after
taxes or $100 million in total revenues for the
fiscal year ended December 31, 1997;
(b) if Nexar achieves $14,000,000 in net income after
taxes or $200 million in total revenues for the
fiscal year ended December 31, 1998;
(c) if Nexar achieves $21,000,000 in net income after
taxes or $300 million in total revenues for the
fiscal year ended December 31, 1999; and
(d) if Nexar achieves $28,000,000 in net income after
taxes or $400 million in total revenues for the
fiscal year ended December 31, 2000.
Alternatively, all of the Contingent Shares will be released to Palomar
immediately upon the happening of any one of the following:
(y) if the average per share market value closing bid
price of Nexar's common stock is (i) 175% of the IPO
price for ten consecutive trading days at any time
prior to the 12 month anniversary of the IPO, or (ii)
225% of the IPO price for ten consecutive trading
days at any time prior to the 24 month anniversary of
the IPO, or (iii) 275% of the IPO price for ten
consecutive trading days at any time prior to the 36
month anniversary of the IPO, or (iv) 325% of the IPO
price for ten consecutive trading days at any time
prior to the 48 month anniversary of the IPO; or
(z) if Nexar achieves $70,000,000 in cumulative net
income after taxes for the four fiscal years ended
December 31, 2000 or if Nexar is party to any merger
(other than a merger with a subsidiary or in which
Nexar is the survivor and "acquiror"), a sale of
substantially all assets or similar change in control
transaction.
If any or all of the alternative conditions for release of the
Contingent Shares has not occurred by the 48 month anniversary of the
IPO, any of the Contingent Shares remaining subject to escrow at such
time shall be repurchased by Nexar as described above.
This Agreement amends, restates and supersedes in its entirety an
agreement between the parties hereto with respect to the subject matter hereof
dated December 19, 1996, which amended, restated and superseded an agreement
dated October 1, 1996.
[Signatures appear on the following page.]
2
Executed as a sealed instrument as of the date first above written.
PALOMAR MEDICAL TECHNOLOGIES, INC.
By: Steven Georgiev
-----------------------
Chairman and CEO
NEXAR TECHNOLOGIES, INC.
By: Albert J. Agbay
-----------------------
President
3
EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is by and between
Nexar Technologies, Inc., a Delaware corporation ("Nexar"), and The Travelers
Insurance Company, a Connecticut corporation ("Travelers").
IN CONSIDERATION of the mutual covenants contained in this Agreement
and good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
Reference is made to that certain Securities Purchase Agreement (the
"Securities Purchase Agreement"), of even date herewith, by and between Palomar
Electronics Corporation, a Delaware corporation ("Palomar"), and The Travelers
Insurance Company, a Connecticut corporation ("Purchaser").
Nexar agrees that if at any time Nexar shall determine to register
under the Securities Act of 1933, as amended (the "Securities Act"), any of its
securities, except shares to be issued solely in connection with any acquisition
of any entity or business, shares issuable solely upon the exercise of stock
options, or shares issuable solely pursuant to employee benefit plans, it shall
use its best efforts to include in such registration statement all of the Shares
for future sale by Purchaser under Rule 415, except that if, in connection with
any offering involving an underwriting of Common Stock to be issued by Nexar,
the managing underwriter shall impose a limitation on the number of shares of
such Common Stock which may be included in any such registration statement
because, in its judgment, such limitation is necessary to effect an orderly
public distribution, and such limitation is imposed pro rata with respect to all
securities whose holders have a contractual, incidental ("piggy back") right to
include such securities in the registration statement and as to which inclusion
has been requested pursuant to such right, then Nexar shall only be obligated to
include such portion, if any, of the Shares as shall be permitted by such
managing underwriter. These piggy back registration rights may only be assigned
by Purchaser to its affiliates if such affiliates agree in writing to be bound
by the lock up provisions (if any) agreed to by Purchaser and only with prior
written notice to Nexar and Palomar; these rights are not otherwise assignable
to affiliates of the Purchaser or to third parties. Purchaser shall complete
such questionnaires and supply such information for inclusion in any
registration as Nexar shall reasonably request.
In the event the initial public offering of Nexar's securities does not
occur or any of the Shares are not registered, in each case, on or before June
30, 1997 for any reason whatsoever, Purchaser shall have the right to require
Nexar to file a registration statement covering the Shares pursuant to the
Securities Act by giving written notice thereof to Nexar. Nexar shall use its
best efforts to cause the registration statement to become effective no later
than September 30, 1997 and to remain effective until such time as all of the
Shares have been sold pursuant to such registration statement. If Purchaser
intends to distribute the Shares by means of an underwriting, it shall advise
Nexar as part of its written request for registration and shall have the right
to select an underwriter. Nexar shall furnish to the
Purchaser such number of copies of the prospectus contained in the registration
statement as requested to facilitate the public sales of the Shares. Nexar shall
use its best efforts to cause the Shares to be listed on the NASDAQ Small-Cap
Market.
Nexar shall bear all costs associated with the registration and listing
of the Shares and Purchaser shall bear any underwriting commissions and
discounts.
Nexar may not, without the prior written consent of Purchaser, enter
into any agreement that would be inconsistent with the rights granted to
Purchaser hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the following date.
Dated: December 18, 1996 NEXAR TECHNOLOGIES, INC.
By: Albert J. Agbay
------------------------------------------
Title: President and Chief Executive Officer
---------------------------------------
THE TRAVELERS INSURANCE
COMPANY
By: Jordan M. Stitzer
------------------------------------------
Title: Vice President
----------------------------------------
EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of December 31, 1996, by and among Nexar
Technologies, Inc., a Delaware corporation ("NEXAR"), and GFL Advantage Fund
Limited, a British Virgin Islands corporation (the "Stockholder").
WHEREAS, the Stockholder is purchasing 200,000 shares (the "Shares") of
NEXAR common stock, $0.01 par value per share ("Common Stock"), from NEXAR's
principal stockholder, Palomar Electronics Corporation ("PEC"), pursuant to a
Securities Purchase Agreement of even date herewith between the Stockholder and
PEC (the "Purchase Agreement") and PEC and the Stockholder have requested that
NEXAR, as an accommodation to PEC and the Stockholder, provide the Stockholder
with certain registration rights in connection therewith;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
(c) "Holder" shall mean any holder of Restricted Securities.
(d) The terms "register," "registered" and "registration" all refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act ("registration statement"), and the
declaration or ordering of the effectiveness of such registration statement.
(e) "Restricted Securities" shall mean the Shares sold to the
Stockholder pursuant to the Purchase Agreement and any other NEXAR shares of
Common Stock issued in respect of the Shares upon subdivisions, combinations,
stock dividends, reclassifications, recapitalizations or similar events, or any
other shares of capital stock issued in exchange for or in replacement of the
Shares in a merger or otherwise.
(f) "Registrable Securities" shall have the meaning set forth in the
preface of Section 3 below.
(g) "Registration Expenses" shall mean all expenses incurred by NEXAR
in complying with its obligations under Sections 3 and 4 of this Agreement,
including, without limitation, all federal and state registration, qualification
and filing fees, printing expenses, fees and disbursements of counsel for NEXAR,
blue sky fees and expenses, and the expense of any special audits incident to or
required by any such registration.
(g) "Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(h) "Selling Expenses" shall mean all selling commissions and fees and
disbursements of counsel for the Holders applicable to the sale of Restricted
Securities pursuant to this Agreement.
2. Restrictions on Transferability; Representations and Warranties, etc.
2.1 Restrictions. The Restricted Securities shall not be sold,
assigned, transferred or pledged except upon the conditions specified in this
Section 2, which conditions are intended to ensure compliance with the
provisions of the Securities Act. Each Holder will cause any proposed purchaser,
assignee, transferee, or pledgee of the Restricted Securities held by the Holder
to agree to take and hold such securities subject to the provisions and upon the
conditions specified in this Section 2.
2.2 Restrictive Legend. The Stockholder understands and acknowledges
that the Restricted Securities have not been registered under the Securities
Act, or under any applicable blue sky or state securities law, on the grounds
that the sale of the Restricted Securities to the Stockholder pursuant to the
Purchase Agreement are exempt from registration pursuant to Section 4(1) of the
Securities Act and are exempt from qualification pursuant to exemptions
available under state securities laws. The Stockholder acknowledges and
understands that the Restricted Securities acquired by the Stockholder must be
held indefinitely unless such Restricted Securities are subsequently registered
under the Securities Act and applicable blue sky and state securities laws or
unless an exemption from such registration is available. Each certificate
representing the Restricted Securities (unless otherwise permitted by the
provisions of Section 2.3 below) shall be stamped or otherwise imprinted with a
legend in the following form (in addition to any legend required under
applicable state securities laws):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state. These securities have been
acquired for investment and not with a view toward
distribution or resale. Such securities may not be offered for
sale, sold, delivered after sale, transferred, pledged or
hypothecated in the absence of an effective registration
statement covering such securities under the Act an any
applicable state securities
-2-
laws, unless the holder shall have obtained an opinion of
counsel satisfactory to the corporation that such registration
is not required."
NEXAR shall be entitled to make a notation on its records and give instructions
to any transfer agent of the Restricted Securities in order to implement the
restrictions on transfer established in this Section 2.
2.3 Notice of Proposed Transfers. Unless the Stockholder exercises in
full its option pursuant to the Option Agreement between it and Palomar Medical
Technologies, Inc. of even date herewith, prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities, unless there is in
effect a registration statement under the Securities Act covering the proposed
transfer, the Holder thereof shall give written notice to NEXAR of such Holder's
intention to effect such transfer, sale, assignment or pledge. Each such notice
shall describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and, if requested by NEXAR, shall be
accompanied, at such Holder's expense, by either (i) a written opinion of legal
counsel who shall be, and whose legal opinion shall be, reasonably satisfactory
to NEXAR, addressed to NEXAR, to the effect that the proposed transfer of the
Restricted Securities may be effected without registration under the Securities
Act, or (ii) a "no action" letter from the Commission to the effect that the
transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the Holder of such Restricted Securities shall transfer such
Restricted Securities in accordance with the notice delivered by the Holder to
NEXAR. NEXAR will not require an opinion of counsel for transactions made in
reliance on Rule 144 under the Securities Act except in unusual circumstances,
the existence of which shall be determined in good faith by the Board of
Directors of NEXAR. Each certificate evidencing the Restricted Securities
transferred as provided above shall bear, except if such transfer is made
pursuant to an effective registration statement under the Securities Act or Rule
144, the appropriate restrictive legend set forth in Section 2.2 above, except
that such certificate shall not bear such restrictive legend if in the opinion
of counsel for such Holder and NEXAR such legend is not required in order to
establish compliance with any provision of the Securities Act.
2.4 Investment Representations. The Stockholder represents and warrants
to NEXAR that it is or will be acquiring the Restricted Securities for its own
account for investment purposes only and not with a view to distribution. The
Stockholder also respectively represents and warrants that it (a) has such
knowledge and experience in financial and business matters, either alone or with
advisors, that such stockholder is capable of evaluating the merits and risks of
acquiring the Restricted Securities; and (b) has the ability to bear the
economic risks of ownership of the Restricted Securities.
2.5 Representation of NEXAR.
(a) This Agreement has been duly and validly authorized,
executed and delivered on behalf of NEXAR and is a valid and binding agreement
of NEXAR enforceable
-3-
in accordance with its terms, subject as to enforceability to general principles
of equity and to bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors' rights generally.
(b) The Registration Statement when it becomes effective and
the forms of final prospectus included therein (and any amendment or supplement
thereto) when filed with the Commission pursuant to Rule 424(b) will comply as
to form with the Securities Act and the regulations thereunder and will in all
material respects conform to the requirements of the Securities Act and the
regulations, and neither the Registration Statement nor such prospectuses, nor
any amendment or supplement thereto, on such dates, will contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that this
representation and warranty does not apply to statements or omissions made in
reliance upon and in conformity with the information furnished in writing to
NEXAR by or on behalf of the Holder in connection with the Registration
Statement or any prospectus included therein or any amendment or supplement
thereto by the Holder expressly for use therein.
3. Registration and Sale. Not later than 45 days following the date hereof,
NEXAR shall prepare and file with the Commission an amendment to its
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on December 20, 1996 (File No. 333-18489) (as amended from time to
time, the "Registration Statement") covering the sale under Rule 415 promulgated
under the Securities Act and pursuant to the Selling Security Holders'
Prospectus (as defined in the Registration Statement), by the Holders of the
Restricted Securities sold to the Holders (the "Registrable Securities");
provided, however that if NEXAR shall furnish to the Holders a certificate
signed by the President of NEXAR stating that in the good faith judgment of the
Board of Directors of NEXAR it would be seriously detrimental to NEXAR or its
stockholders for such an amendment to the Registration Statement to be filed in
the near future, then NEXAR's obligation to file such amendment shall be
deferred for a period not to exceed 90 days from the date such certificate is
furnished to the Holders.
(a) Obligations of NEXAR. In connection with the Registration
Statement, NEXAR will:
(i) use its best efforts to cause such registration
statement to become effective as soon as is practicable and to remain
effective until all Registrable Securities have been sold, but in no
event shall NEXAR be obligated to use its best efforts to cause such
registration statement to remain effective as to any Registrable
Securities beyond the second anniversary (or the first anniversary if
Rule 144 is amended to permit sales of restricted stock thereunder
after one year) of the date of the issuance thereof and the Company
represents and warrants that the Registration Statement when declared
effective shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or
necessary to make
-4-
the statements therein, in light of the circumstances in which they
were made, not misleading;
(ii) furnish to the Holders such reasonable number of copies
of the registration statement, preliminary prospectus, final prospectus
and such other documents as they may reasonably request in order to
facilitate the public offering of such securities;
(iii) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities;
(iv) use its best efforts to register and qualify the
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as shall
be reasonably requested by the Holders, prepare and file in those
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof with respect to the
disposition of all Registrable Securities, provided that NEXAR shall
not be required in connection therewith or as a condition thereto to
file a general consent to service of process in any such states or
jurisdictions;
(v) promptly notify each Holder of the happening of any
event of which the Company has knowledge, as a result of which the
prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a
supplement or amendment to the Registration Statement to correct such
untrue statement or omission, and deliver such number of copies of such
supplement or amendment to each Holder as such Holder may reasonably
request, provided that the Company shall have the right to delay the
filing of any such amendment or supplement for a period not to exceed
120 days if in the good faith judgment of the Board of Directors of the
Company, such delay is in the best interest of the Company and its
stockholders and a certificate to such effect is delivered to each
Holder;
(vi) permit a single firm of counsel designated as selling
stockholders' counsel by the Holders who hold a majority in interest of
the Registrable Securities being sold to review the Registration
Statement and all amendments and supplements thereto a reasonable
period of time prior to their filing with the SEC with a reasonable
opportunity to comment thereon;
-5-
(vii) comply with the provisions of Rule 416(b) under the
Securities Act requiring the amendment of the registration statement to
reflect any stock split, stock dividend or similar transaction
affecting the Common Stock and occurring after the date hereof;
(viii) promptly notify each Holder who holds Registrable
Securities being sold (or, in the event of an underwritten offering,
the managing underwriters) of the issuance by the SEC of any stop order
or other suspension of effectiveness of the Registration Statement; and
(ix) use its best efforts to cause all the Registrable
Securities covered by the Registration Statement to be listed on the
Nasdaq SmallCap or National Market;
(x) cooperate with the Holders who hold Registrable
Securities being offered and the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing
Registrable Securities to be offered pursuant to the Registration
Statement and enable such certificates to be in such denominations or
amounts as the case may be, as the managing underwriter or
underwriters, if any, or the Holders may reasonably request and
registered in such names as the managing underwriter or underwriters,
if any, or the Holders may request; and, within three business days
after a Registration Statement which includes Registrable Securities is
ordered effective by the SEC, NEXAR shall deliver to the transfer agent
for the Registrable Securities (with copies to the Holders whose
Registrable Securities are included in such Registration Statement) an
instruction that permits sales of securities in a timely fashion that
complies with then mandated securities settlement procedures for
regular way market transactions and delivery of unlegended securities
in settlement of such sales; provided, however, that in the case of a
sale by the Holders of the Registrable Securities in connection with
NEXAR's initial public offering, NEXAR shall have timely complied with
its obligations under this Section 3(a)(x) if it shall have so complied
in time to permit delivery of the Registrable Securities by the Holder
at the same time as the closing of NEXAR's initial public offering; and
(xi) take all other reasonable actions necessary to expedite
and facilitate disposition by the Holders of the Registrable Securities
pursuant to the Registration Statement.
Notwithstanding anything to the contrary contained in this Agreement, the sole
remedy of the Stockholder for the failure of NEXAR to cause the Registration
Statement to become effective despite the exercise of its best efforts to do so,
shall be to avail itself of the incidental ("piggyback") registration rights set
forth in Section 4 below.
-6-
(b) Obligations of the Holders. In connection with the Registration
Statement or any registration statement described in Section 4 below which
includes Registrable Shares hereunder, each Holder will:
(i) furnish to NEXAR such information regarding such
Holder, the Registrable Securities and any other NEXAR shares of Common
Stock beneficially held by him or her, and the distribution proposed by
such Holder as NEXAR may reasonably request in writing and as shall be
required in connection with any registration, qualification or
compliance referred to in this Agreement; and
(ii) if, after a registration statement becomes effective,
NEXAR advises the holders of Registrable Securities that NEXAR
considers it appropriate for the registration statement to be amended,
the Holders of such shares shall suspend any further sales of their
Registrable Securities until NEXAR advises them that the registration
statement has been amended.
(c) Expenses. All Registration Expenses incurred in connection with any
registration pursuant to this Agreement shall be borne by NEXAR. All Selling
Expenses shall be borne by the respective Holder selling Registrable Securities.
4. Incidental Registration Rights. If NEXAR is unable to cause the Registration
Statement described in Section 3 to become effective, at any time NEXAR shall
otherwise determine to register under the Securities Act, any of its securities,
except shares to be issued solely in connection with any acquisition of any
entity or business, shares issuable solely upon the exercise of stock options,
or shares issuable solely pursuant to employee benefit plans, NEXAR shall use
its best efforts to include in such registration statement all of the
Registrable Shares, except that if, in connection with any offering involving an
underwriting of capital stock to be issued by NEXAR, the managing underwriter
shall impose a limitation on the number of shares of such capital stock which
may be included in any such registration statement because, in its judgment,
such limitation is necessary to effect an orderly public distribution, and such
limitation is imposed pro rata with respect to all securities whose holders have
a contractual, right to include such securities in the registration statement
and as to which inclusion has been requested pursuant to such right, then NEXAR
shall only be obligated to include such portion, if any, of the Registrable
Shares as shall be permitted by such managing underwriter.
5. Reports Under Exchange Act.
With a view to making available to the Holders the benefits of Rule 144
under the Securities Act and any other rule or regulation of the Commission that
may at any time permit a Holder to sell Restricted Securities to the public
without registration NEXAR agrees that after the consummation of an initial
public offering of its Common Stock, so long as any Restricted Securities shall
be held by any Holders, NEXAR shall use its best efforts to:
-7-
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of NEXAR under the Securities Act and the Exchange Act;
(c) list all Restricted Securities on such securities exchanges as the
Common Stock of NEXAR is listed; and
(d) furnish to any Holder, so long as such Holder owns any Restricted
Securities, forthwith upon written request (i) a written statement by NEXAR that
it has complied with the reporting requirements set forth in subparagraph (c)(1)
of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the most
recent annual or quarterly report of NEXAR and such other reports and documents
filed by NEXAR with the Commission, and (iii) such other information (but not
any opinion of counsel) as may be reasonably requested by any Holder seeking to
avail himself or herself of any rule or regulation of the Commission which
permits the selling of any Restricted Securities without registration.
6. Indemnification.
6.1 NEXAR Indemnification of Holders. NEXAR will indemnify and hold
harmless each Holder, each of such Holder's officers and directors and partners,
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, preliminary prospectus, offering circular, any blue sky
application, or other document, or any amendment or supplement thereto, incident
to any such registration, qualification or compliance, or based on any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by NEXAR
of the Securities Act or any rule or regulation promulgated under the Securities
Act applicable to NEXAR in connection with any such registration, qualification
or compliance, and NEXAR will reimburse each such Holder, each of its officers
and directors, and each person controlling such Holder, each such underwriter
and each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that NEXAR
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission or alleged untrue statement or omission, made in reliance upon and
in conformity with written information furnished to NEXAR by an
-8-
instrument duly executed by such Holder, controlling person or underwriter, as
the case may be, and stated to be specifically for use therein.
6.2 Holders' Indemnification of NEXAR. Each Holder, severally, but not
jointly, will indemnify and hold harmless NEXAR, each of its directors and
officers, each underwriter, if any, of NEXAR's securities covered by such a
registration statement, each person who controls NEXAR or such underwriter
within the meaning of Section 15 of the Securities Act, and each other such
Holder, each of its officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, from and against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any such registration statement, any blue sky
application, preliminary prospectus, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse NEXAR, such Holders, such directors, officers,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement, any blue
sky application, preliminary prospectus, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to NEXAR by an instrument duly executed by such Holder and stated to be
specifically for use therein. Notwithstanding the foregoing, the liability of
each Holder under this subsection (b) shall be limited in an amount equal to the
public offering price of the shares sold by such Holder, provided, however,
subject to such limitation on the amount of money damages, the provisions of
this sentence shall not limit or restrict any other right or action of NEXAR
against the Holders arising out of any such untrue statement or omission
contained in any registration statement, prospectus, offering circular or other
documents in reliance upon and in conformity with written information furnished
to NEXAR by such Holder in the manner described hereinabove.
6.3 Procedures. Each party entitled to indemnification under this
Section 6 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld) after notice from the
Indemnifying Party of its election to assume the defense thereof, the
Indemnifying Party will not be liable to the Indemnified Party for any legal or
other expenses in connection with the defense thereof other than reasonable
investigation costs, and the Indemnified Party may participate in such defense
at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as
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provided herein shall not relieve the Indemnifying Party of its obligations
under this Section 6 unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action and
provided further, that the Indemnifying Party shall not assume the defense for
matters as to which there is a conflict of interest or separate and different
defenses. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. No Indemnifying Party shall be liable for indemnification hereunder
with respect to any settlement or consent to judgment, in connection with any
claim or litigation to which these indemnification provisions apply, that has
been entered into without the prior consent of the Indemnifying Party (which
consent will not be unreasonably withheld).
6.4 Legal Expenses. In the event of any indemnification hereunder, the
Indemnifying Party shall pay the reasonable fees and expenses of counsel for the
Indemnified Party or Parties in connection with the claim or litigation to which
such indemnification applies.
6.5 Contribution. To the extent any indemnification by an Indemnifying
Party is prohibited or limited by law, the Indemnifying Party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under this Section 6 to the fullest extent permitted by law; provided,
however, that (a) no contribution shall be made under circumstances where the
make would not have been liable for indemnification under the fault standards
set forth in this Section 6, (b) no seller of Registrable Securities guilt of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation and (c)
contribution by an seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale of such
Registrable Securities.
7. Transfer of Registration Rights.
The rights of a Holder under this Agreement may be assigned to a
transferee or assignee acceptable to NEXAR, which acceptance shall not be
unreasonably withheld, in connection with any transfer or assignment of
Registrable Securities by a Holder provided that: (i) such transfer may
otherwise be effected in accordance with applicable securities laws, and (ii)
such assignee or transferee acquires at least 20% of the transferring Holder's
Registrable Securities, and (iii) NEXAR must be given written notice prior to
the time of said transfer, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being assigned.
8. Miscellaneous.
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8.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts applicable to
contracts entered into and wholly to be performed within The Commonwealth of
Massachusetts.
8.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.3 Headings. The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
8.4 Notices. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively given upon personal
delivery, or three days after deposit in the United States mail, by registered
or certified mail (or by airmail, if notice shall be sent outside the United
States), postage prepaid, addressed (a) if to NEXAR, at its principal executive
office, attention: President, and (b) if to a Holder at such address as shall be
the address of record of the Holder on the registry of NEXAR, or at such other
address as any Holder may designate in accordance with the terms hereof.
8.5 Amendment of Registration Rights. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and Stockholders who hold a majority in interest
of the Registrable Securities. Any amendment or waiver effected in accordance
with this Section 8.5 shall be binding upon each Holder and the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above written.
NEXAR TECHNOLOGIES, INC.
By:Albert J. Agbay
----------------------------------
Title:Chairman,Chief Executive Officer
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GFL ADVANTAGE FUND LIMITED
By: A.P. de Groot
------------------------
Title: President
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EXHIBIT 5.1
CHOATE, HALL & STEWART
a Partnership Including Professional Corporation
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2891
Telephone (617) 248-5000
Facsimile (617) 248-4000
Telex 49615860
March 5, 1997
Nexar Technologies, Inc.
182 Turnpike Road
Westborough, Massachusetts 01581
Gentlemen:
This opinion is delivered to you in connection with the registration
statement (the "Registration Statement") on Form S-1 of Nexar Technologies, Inc.
(the "Company") filed with the Securities and Exchange Commission on December
20, 1996 by the Company under the Securities Act of l933, as amended (the
"Act"), for registration under the Act of 9,200,000 shares of the common stock,
$0.01 par value (the "Common Stock"), of the Company.
We are familiar with the Certificate of Incorporation and the by-laws
of the Company, as amended, the records of the corporate proceedings of the
Company, and the Registration Statement. We have also made such further
investigation as we have deemed necessary for the purposes of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be sold by the Company pursuant to the forms of
prospectus contained in the Registration Statement (together, the "Prospectus")
have been validly authorized for issuance and, when issued against receipt of
the purchase price described in the Prospectus, will be legally issued, fully
paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an exhibit
to the Registration Statement and the reference to our firm in the Prospectus
under the caption "Legal Matters."
Very truly yours,
CHOATE, HALL & STEWART
EXHIBIT 10.17
CONFIDENTIAL TREATMENT DELETED (DENOTED BY "[CMD]") AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION TOGETHER
WITH CONFIDENTIAL TREATMENT REQUEST REGARDING DELETIONS.
DEVELOPMENT AGREEMENT
BETWEEN NEXAR TECHNOLOGIES, INC.
AND GDA TECHNOLOGIES, INC.
1. INTRODUCTION
1.1 This is an agreement for GDA Technologies, Inc. ("GDA"), a
California corporation, to perform engineering services in
connection with the development of certain computer
circuit boards and related technology for Nexar
Technologies, Inc. ("Nexar"), a Delaware corporation, in
accordance with an agreed-upon set of Specifications and a
Milestone and Payment Schedule. To the extent that GDA has
performed portions of the services described herein prior
to the date hereof, all such services shall be considered
for all purposes as performed under and pursuant to the
terms hereof.
2. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
2.1 "Agreement" shall mean this Agreement between Nexar and
GDA, including the Schedules and Exhibits hereto.
2.2 "Boards" shall mean the integrated circuit boards to be
engineered by GDA hereunder based on the [CMD] described
in this Agreement, which shall consist of all Deliverables
as stated in the Specifications (Schedule A), and the
Milestone and Payment Schedule (Schedule B).
2.3 "Confidential Information" shall mean any information
relating to or disclosed in the course of this Agreement,
which is or should be reasonably understood to be
confidential or proprietary to the disclosing party.
"Confidential Information" shall not include information
(a) already lawfully known to the receiving party, (b)
disclosed in published materials, (c) generally known to
the public, or (d) lawfully obtained from any third party.
2.4 "Deliverables" are the items that are specified in the
Specifications and the Milestone and Payment Schedule as
items to be delivered to Nexar.
2.5 "Final Deliverables" are the items that are specified in
the Milestone and Payment Schedule as the last and final
delivery to Nexar.
2.6 "Milestone and Payment Schedule" shall mean the schedule
of time for delivery of and payment for the Deliverables,
as set forth in Schedule B.
2.7 "Specifications" shall mean requirements for the Boards'
required operation, functions, capabilities and
performance and the documentation to be delivered
therewith, as described in Schedule A attached hereto, or
as revised by the parties under procedures set forth in
this Agreement.
2.8 "Technical Manuals" shall mean a complete description of
the Boards, written in accordance with the requirements of
the Specifications.
2.9 "Technology" shall mean all of the technology, proprietary
information and/or intellectual property which has been or
is developed by GDA under this Agreement, as well as
apparatus, articles of manufacture, prototypes, and
documentation or other tangible media embodying such
technology, proprietary information and/or intellectual
property or in which they are expressed.
3. REPRESENTATIONS AND WARRANTIES
3.1 Nexar represents and warrants that it has the corporate
authority to enter into this Agreement and to perform its
obligations under this Agreement.
3.2 GDA represents and warrants that it has the corporate
authority to enter into this Agreement and to perform its
obligations under this Agreement.
4. DEVELOPMENT OF BOARDS
4.1 GDA shall complete the development of the Boards and other
Deliverables by the respective dates set forth in the
Milestone and Payment Schedule and shall apply such
resources and efforts as shall be reasonably necessary to
accomplish this task.
5. CHANGES IN SPECIFICATIONS AND MILESTONE AND PAYMENT SCHEDULE
5.1 Either Nexar or GDA may propose changes in the
Specifications or to the Milestone and Payment Schedule.
Nexar and GDA must agree, in writing, to the changes prior
to any such modifications, and to the effect, if any, on
payments due under this Agreement.
5.2 Nexar may not require work or features not set forth in
the Specifications unless agreed to in writing. GDA will
not be compensated, other than as stated in this
Agreement, unless such additional payments are agreed to
in advance in writing.
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6. RESOURCES TO BE PROVIDED TO GDA BY NEXAR
6.1 Nexar shall supply to GDA all information and resources
that GDA shall reasonably require to carry out the work
required by this Agreement, including:
(a) [CMD]
(b) [CMD]
(c) [CMD]
(d) [CMD]
(e) [CMD]
(f) [CMD]
(g) [CMD]
(h) [CMD]
(i) [CMD]
(j) [CMD]
(k) [CMD]
7. CONFIDENTIALITY
7.1 Each party acknowledges that it will receive Confidential
Information of the other party relating to technical,
marketing, product, and/or business affairs. Each party
agrees that all Confidential Information of the other
party shall be held in strict confidence and shall not be
disclosed or used without express written consent of the
other party, except as may be required by law.
7.2 Upon or prior to its execution of this Agreement GDA shall
have each of its employees, independent contractors and
any other individual or entity engaged by GDA who have
worked on and/or are working on the Technology sign a
confidentiality and assignment of technology agreement, in
the form of Exhibit A hereto, which includes a covenant to
maintain confidentiality as required by this Agreement and
which assigns to GDA any and all right, title and interest
of all such individuals and entities to any and all of the
Technology (which right, title and interest GDA, in turn,
assigns to Nexar under Section 11 hereof). GDA shall
deliver all such agreements to Nexar together with this
Agreement at the time of its execution hereof and GDA
hereby represents and warrants to Nexar that the
representations and warranties of each such individual or
entity set forth in such agreements are true and accurate.
Attached hereto as Exhibit B is a list of all GDA
employees, directors, independent contractors, and any
other individual or entity engaged by GDA who have worked
on and/or are working on the
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Technology and a copy of any other confidentiality and
assignment of technology agreements between all such
individuals or entities and GDA, all of which (including
Exhibit B) GDA represents and warrants is accurate and
complete as of the date hereof. GDA shall update Exhibit B
from time to time upon Nexar's request and shall have all
future employees, independent contractors and any other
individual or entity engaged by GDA who work on the
Technology sign confidentiality and assignment of
technology agreements, in substantially the form of
Exhibit A, prior to any such individuals or entities
receiving any Confidential Information relating to or
working on the Technology.
7.3 In addition to the foregoing provisions of this Section 7,
GDA agrees that from the date hereof none of the terms of
this Agreement shall be disclosed by GDA or any of its
officers, directors, independent contractors or employees,
to any other party, including any employee of Nexar unless
expressly authorized in writing by the Chief Executive
Officer of Nexar. A list of the only Nexar employees whom
the Chief Executive Officer of Nexar has authorized from
the date hereof to receive information with respect to
this Agreement is attached hereto as Exhibit C.
8. NON-COMPETITION
8.1 From the date hereof until the acceptance of the Final
Deliverables, and for a period of ten years thereafter,
GDA shall not supply or agree to supply to any party other
than Nexar technology with a form factor substantially
similar to the Boards or technology that will or is likely
to be directly competitive with the [CMD]. The provisions
of this paragraph shall survive termination of this
Agreement.
9. DELIVERY AND ACCEPTANCE OF DELIVERABLES
9.1 GDA shall deliver various Deliverables at the times and in
the manner specified in the Milestone and Payment
Schedule.
9.2 If GDA fails to make timely delivery of any Deliverable as
specified in the Milestone and Payment Schedule, Nexar may
give GDA notice of the failure. After such notice, GDA
shall have thirty (30) days to make the specified
delivery. Failure to submit the Deliverables within such
period shall be a material breach that shall entitle Nexar
to terminate this Agreement in accordance with the
provisions on Termination.
9.3 Nexar may inspect and test each of the Deliverables when
received to determine if it conforms to the requirements
of the Specifications. Any
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Deliverable not rejected by Nexar within thirty (30) days
shall be deemed accepted.
9.4 If any Deliverable is rejected, Nexar shall give GDA
notice of the rejection and the reasons for rejection. GDA
shall then have thirty (30) days to cure deficiencies.
After resubmission within such thirty (30) day period,
Nexar may again inspect the Deliverable to confirm that it
conforms to requirements of the Specifications. If the
resubmitted Deliverable does not conform to the
requirements of this Agreement, the failure will be a
material breach that shall entitle Nexar to terminate this
Agreement in accordance with the provisions on
Termination. If the resubmitted Deliverable is rejected,
Nexar shall give notice to GDA stating the reasons for
rejection.
9.5 Notice of failure to make timely delivery, rejection, or
subsequent resubmission shall not affect the due date for
subsequent Deliverables as required by this Agreement
unless otherwise agreed in writing.
9.6 If the Final Deliverables in any material respect do not
conform to the Specifications, and such non-conformity is
not cured as provided in this Agreement, the failure will
be a material breach that shall entitle Nexar to terminate
this Agreement in accordance with the provisions on
Termination. Alternatively, Nexar, at its option, may
accept the Final Deliverables as non- conforming. If it
does so, it shall give prompt notice to GDA stating the
known defects, and may withhold and deduct, from amounts
otherwise due and payable to GDA upon acceptance of the
Final Deliverables, the amount of reasonable out-of-pocket
costs to correct, modify, and/or complete the Boards in
accordance with the Specifications. From time to time, and
as soon as is practicable, Nexar shall provide GDA with
notice of all sums withheld and expended and shall turn
over to GDA all funds withheld that are not so applied
when such remedial work is completed.
9.7 GDA shall provide to Nexar or to such other person as
Nexar shall designate, from time to time, as reasonably
required before production of the Boards, all assistance
and information reasonably necessary to ensure that a
Technical Manual for each of the Boards is complete and
accurate. GDA shall review a draft of each such Technical
Manual upon Nexar's request and promptly provide all
corrections required to Nexar, for which review and
correction Nexar shall pay GDA at the rate of [CMD] per
hour.
10. PAYMENT
10.1 Nexar shall pay GDA the amounts due upon the execution of
this Agreement as specified in the Milestone and Payment
Schedule. Upon acceptance of each Deliverable, Nexar shall
pay GDA the amounts as specified in the
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Milestone and Payment Schedule. Payment shall be due
within twenty (20) days of acceptance of each Deliverable,
other than the deferred consideration component which
shall be paid as specified in the Milestone and Payment
Schedule. Payment by mail shall be deemed made when
mailed.
10.2 If any payment is not made as required, GDA may give
notice of the failure to pay. The failure to pay, if not
cured within thirty (30) days after notice, shall entitle
GDA to terminate this Agreement in accordance with the
provisions on Termination.
11. INTELLECTUAL PROPERTY RIGHTS IN THE TECHNOLOGY
11.1 GDA hereby irrevocably assigns and shall assign worldwide
the entirety of its right, title and interest in the
Technology to Nexar, its successors and assigns, such
assignment including by way of non-limiting example:
(a) all right, title and interest in any
invention, modification, or advance, whether or not
patentable, included in the Technology;
(b) all right, title and interest in any
invention, modification, or advance, whether or not
patentable, pertaining to the technology known as the
[CMD] and domestic or foreign patent applications
disclosing or claiming such invention, modification or
advance, any continuation, continuation-in- part or
division of such patent application and any patent issuing
thereon, and any reissue, re-examination or extension of
such patent;
(c) all right, title and interest in any
domestic or foreign patent application disclosing and/or
claiming the Technology, any continuation,
continuation-in-part, or divisional of such application,
and any patent issuing on any such application, and any
reissue, reexamination or extension of any such patent;
(d) all right, title and interest in any
invention based on the Technology and/or on any other
technology, proprietary information and/or intellectual
property of Nexar to which GDA had access in the course of
engagement by Nexar, which invention is conceived or
reduced to practice within two years after termination of
such engagement, any patent domestic or foreign patent
application disclosing or claiming any such invention, any
continuation, continuation-in-part, or divisional of such
application, and any patent issuing on any such
application, and any reissue, reexamination or extension
of any such patent;
(e) all right, title and interest in any
works created or authored by the GDA in the course of such
engagement or within one year after the
- 6 -
termination thereof pertaining to the Technology, and all
copyright, worldwide, in such works (as used in this
agreement, "copyright" refers to copyright, moral rights
and semiconductor mask work rights); and
(f) all right, title and interest to any
apparatus, articles of manufacture, prototypes, and
documentation or other tangible media included in or
embodying the Technology, including, without limitation,
all apparatus, articles of manufacture, prototypes, design
and engineering drawings and specifications, created,
authored, developed or otherwise acquired by GDA in the
course of such engagement or within one year after the
termination thereof.
11.2 GDA hereby covenants that it will promptly disclose to
Nexar, all inventions, modifications, or advances, whether
or not patentable, pertaining to the Technology made by
GDA (or those employees, independent contractors and any
other individual or entity engaged thereby GDA who have
worked on and/or are working on the Technology) during the
course of such engagement or within one year after
termination thereof.
11.3 GDA hereby covenants that no assignment, license, or other
transfer or encumbrance has, been, or will be made by them
that would conflict with this assignment of all entire
right, title and interest in the Technology and in the
intellectual property rights therein to Nexar.
11.4 GDA hereby covenants that all services performed by it
during the course of its engagement with Nexar have been
and shall be on a work-for-hire basis in favor of Nexar
and that any works resulting therefrom are "works made for
hire" (as that term is defined in Section 101 of the
United States Copyright Act) on behalf of Nexar.
11.5 GDA shall execute such documents as Nexar shall reasonably
require to evidence and confirm the transfer of rights
made under this Agreement.
11.6 Nexar may patent, register copyrights, retain in secrecy,
and/or otherwise take actions to protect, any of the
Technology and any improvements, modifications, advances
and derivatives thereof in any and all countries and
jurisdictions as Nexar sees fit. GDA agrees to cooperate
with Nexar and perform all acts that are necessary and
proper, or that Nexar otherwise deems desirable, in order
to secure, maintain or enforce protection of the
Technology. By way of non-limiting example, GDA shall
provide timely cooperation to Nexar and its
representatives to facilitate preparation of patent
applications on the Technology, and GDA shall have a right
to review (but not approve) any such patent application
prior to the filing thereof. Nexar agrees to compensate
[CMD], at the rate of [CMD] per hour, for his time
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spent on assisting Nexar in preparing, prosecuting,
maintaining or continuing any such patent applications.
11.6 No license, assignment, or other transfer of (or release
of obligations with respect to) intellectual property
rights by Nexar is intended or implied by the provisions
of this Section 11.
12. WARRANTY
12.1 GDA warrants, for a period of five years after acceptance
of the Final Deliverables (the "Warranty Period"), that
the Boards will perform in substantial conformity with the
Specifications. However, GDA and Nexar agree that due to
the nature of complex integrated circuit boards such as
the Boards, GDA may not be able to find and remove all
defects and errors. ACCORDINGLY, NEXAR'S SOLE AND
EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE
TO AVAIL ITSELF OF THE PROCEDURES SET FORTH IN THE SECTION
OF THIS AGREEMENT ENTITLED "MAINTENANCE." EXCEPT AS
EXPRESSLY STATED HEREIN, ALL WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE DISCLAIMED.
12.2 GDA WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
13. MAINTENANCE
13.1 During the Warranty Period GDA shall use reasonable
efforts to provide to Nexar all corrections and/or
modifications necessary to correct problems, logical
errors, and bugs in the Boards reported to GDA in writing.
The first [CMD] hours of the efforts of GDA's employees on
such tasks shall be without charge. Thereafter GDA may
bill for the time of its employees at [CMD] per hour. Such
bills may be rendered to Nexar at month end and are
payable thirty (30) days after receipt. GDA shall have no
obligation to fix problems or errors resulting from
Nexar's modification of the Boards.
13.2 If GDA fails to correct any problem, logical error, or bug
reported during the Warranty Period within thirty (30)
days of notice, Nexar may contract for such work to be
done by any third party that agrees in writing to hold in
confidence the Confidential Information of GDA.
14. TECHNOLOGY WARRANTY
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14.1 GDA represents and warrants to the best of its knowledge
it is the owner of all right, title and interest in the
Technology, that no other person or entity (other than
Nexar) has any license or ownership interest therein, that
the Technology and all aspects of it are original, and
that GDA has full and absolute right to transfer the
Technology. GDA will indemnify each of Nexar and its
officers, directors and employees from any and all
actions, suits, complaints, claims, judgments, orders,
costs, amounts paid in settlement, liabilities, losses,
and fees, including court costs and reasonable attorneys'
fees and expenses, or similar adverse consequences,
arising out of any failure of the foregoing
representations set forth in this Section 14 to be true.
Without derogation of the foregoing, Nexar acknowledges
that [CMD].
15. FUTURE PROJECTS; RIGHT OF FIRST REFUSAL
15.1 Nexar and GDA agree to work together in good faith to
reach agreement for development of the following [CMD] on
specification and milestone and payment terms mutually
acceptable to each:
(a) [CMD]
(b) [CMD]
(c) [CMD]
(d) [CMD]
15.2 For a period of five years from the date hereof, GDA
agrees to provide Nexar with a right of first refusal, and
to work with Nexar in good faith to reach agreement on
mutually acceptable terms, with respect to any future GDA
development proposal (other than one generated by a
customer, or prospective customer, of GDA other than
Nexar) which relates to Nexar's current or demonstrably
anticipated products or research and development, prior to
proposing to do any such development work for any other
party. Nexar agrees to notify GDA whether it will exercise
its right of first refusal within seven (7) days after
receiving notice from GDA of the bona fide terms of any
such GDA proposal. If Nexar declines to commit to such
development project on such terms (or on other terms
mutually satisfactory to GDA and Nexar), GDA shall be free
to offer such proposal to third parties on terms no less
favorable to GDA than those first offered to Nexar.
16. TERM AND TERMINATION
16.1 The term of this Agreement shall commence on the date
hereof, and shall continue until all requirements of this
Agreement are met, unless sooner terminated in accordance
with the provisions set forth in this Agreement.
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16.2 Either party may terminate this Agreement:
16.2.1 In accordance with provisions
stated in this Agreement that
provide for termination,
16.2.2 In the event that the other
party ceases business operations
or is in any bankruptcy or state
insolvency or receivership
proceeding not dismissed in
thirty (30) days or assigns its
assets for the benefit of
creditors, or
16.2.3 In the event of any material
breach by the other party which
is not cured within thirty (30)
days after notice thereof from
the non-breaching party.
16.2.4 Upon any termination of this
Agreement by any party all
provisions of the Sections 3, 7,
8, 10, 11, 12, and 14 shall
remain in effect.
17. REMEDIES
17.1 Except as is otherwise provided in this Agreement, the
parties shall have such remedies for breach or termination
as are provided by applicable law.
17.2 The parties agree that in the case of the breach of any
provision of the section of this Agreement entitled
Confidentiality or Competition, the aggrieved party will
suffer immediate and irreparable harm, and that a petition
for immediate injunctive relief will therefore be
appropriate.
18. GENERAL PROVISIONS
18.1 RELATIONSHIP OF PARTIES. GDA shall be deemed to have the
status of an independent contractor, and nothing in this
Agreement shall be deemed to place the parties in the
relationship of employer-employee, principal-agent,
partners or joint venturers. [CMD].
18.2 PAYMENT OF TAXES. GDA shall be responsible for any
withholding taxes, payroll taxes, disability insurance
payments, unemployment taxes, and other taxes or charges
incurred in the performance of this Agreement.
18.3 FORCE MAJEURE. Neither party shall be deemed in default of
this Agreement to the extent that performance of their
obligations or attempts to cure any breach are delayed or
prevented by reason of any act of God, fire, nature
disaster, accident, act of government, shortages of
materials or supplies, or
- 10 -
any other cause beyond the control of such party ("Force
Majeure") provided that such party gives the other party
written notice thereof promptly and, in any event, within
fifteen (15) days of discovery thereof and uses its best
efforts to cure the delay. In the event of such a Force
Majeure, the time for performance or cure shall be
extended for a period equal to the duration of the Force
Majeure but not in excess of thirty days.
18.4 ASSIGNMENTS. Nexar may assign this Agreement, without
GDA's consent, to any third party which succeeds by
operation of law to, purchases, or otherwise acquires
substantially all of the assets of Nexar and assumes
Nexar's obligations hereunder. Notwithstanding the above,
Nexar shall retain the obligation to pay if the assignee
fails to pay as required by the payment obligations of
this Agreement. GDA may not assign its obligations under
this agreement without Nexar's written consent, which
Nexar may withhold in its complete discretion.
18.5 PARTIAL INVALIDITY. Should any provision of this Agreement
be held to be void, invalid, or inoperative, the remaining
provisions of this Agreement shall not be affected and
shall continue in effect as though such provisions were
deleted.
18.6 NO WAIVER. The failure of either party to exercise any
right or the waiver by either party of any breach, shall
not prevent a subsequent exercise of such right or be
deemed a waiver of any subsequent breach of the same or
any other term of this Agreement.
18.7 NOTICE. Any notice required or permitted to be sent
hereunder shall be in writing and shall be sent in a
manner requiring a signed receipt, such as Federal
Express, courier delivery, or if mailed, registered or
certified mail, return receipt requested. Notice is
effective upon receipt. Notice to Nexar shall be addressed
to the Chief Executive Officer or such other person or
address as Nexar may designate. Notice to GDA shall be
addressed to the President or such other person or address
as GDA may designate.
18.8 ENTIRE AGREEMENT. This Agreement, including the Schedules
and Exhibits thereto, states the entire agreement between
the parties on this subject and supersedes all prior
negotiations, understandings, and agreements between the
parties concerning the subject matter. No amendment or
modification of this Agreement shall be made except by a
writing signed by both parties.
18.9 GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with the substantive law of The
Commonwealth of Massachusetts without regard to choice of
law principles.
- 11 -
18.10 VENUE AND JURISDICTION OF LEGAL ACTIONS. Any legal action
brought concerning this Agreement or any dispute hereunder
shall be brought only in the courts of The Commonwealth of
Massachusetts or in the federal courts located in such
state, and both parties agree to submit to the
jurisdiction of these courts.
Executed under seal as a Massachusetts instrument as of November 12, 1996.
Nexar Technologies, Inc.
By: Albert J. Agbay, Chief Executive Officer
GDA Technologies, Inc.
By: Alanghat G. Karunakaran, President
ds1/319199
- 12 -
SCHEDULE A
SPECIFICATIONS
--------------
[CMD]
- -----
The [CMD] to be engineered by GDA will have the following features:
- [CMD]
- [CMD]
[CMD]
STATEMENT OF WORK
- -----------------
Development of the following [CMD]:
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
GDA technologies is responsible for the following development
activities:
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
- [CMD]
DELIVERABLES
- ------------
GDA will deliver the following at the completion of the project:
- Specifications
- Schematics, both hard and soft copies
- [CMD]
- [CMD]
- [CMD]
- 13 -
SCHEDULE B
MILESTONE AND PAYMENT SCHEDULE
------------------------------
The following Schedule shall govern milestones and payments for the
development of the Boards.
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
Development costs are split into [CMD] components. [CMD]. The cost per
hour is based on the complexity of the design. The following gives the NRE cost
outline for this project.
<TABLE>
<CAPTION>
===========================================================================================================================
No. Item Description Number $/Hr. Total
of Hrs.
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
1 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
2 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
3 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
4 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
5 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
6 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
7 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
8 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
9 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
10 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
11 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
- 14 -
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
[CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
12 [CMD] [CMD] [CMD] [CMD]
- ---------------------------------------------------------------------------------------------------------------------------
===========================================================================================================================
</TABLE>
The deferred consideration [CMD] shall be paid to GDA on a [CMD] basis
at the rates described below:
1. [CMD] [CMD]
2. [CMD] [CMD]
3. [CMD] [CMD]
4. [CMD] [CMD]
5. [CMD] [CMD]
- 15 -
EXHIBIT A
CONFIDENTIALITY AND ASSIGNMENT AGREEMENT
This Confidentiality and Assignment Agreement is effective this ___ day
of _____________, 1996.
WHEREAS, the individual whose name appears below (the "Assignor") has
been and/or may be engaged by GDA Technologies, Inc., a California corporation
("GDA") on behalf of Nexar Technologies, Inc., a Delaware corporation (the
"Assignee"), for purposes relating to the research, development, design,
development, fabrication and/or manufacture of technology pertaining to
computers, including, without limitation, [CMD];
WHEREAS, in the course of such engagement, the Assignor may have, or
may have had, access to technology, proprietary information and/or intellectual
property of Assignee;
WHEREAS, in the course of such engagement, the Assignor may conceive,
develop, author, or otherwise make, and/or may have conceived, developed,
authored or otherwise made, technology, proprietary information and/or
intellectual property (including but not limited to [CMD], as well as apparatus,
articles of manufacture, prototypes, and documentation or other tangible media
embodying such technology, proprietary information and/or intellectual property
or in which they are expressed (collectively, the "Technology");
WHEREAS, the Assignor is desirous of assigning all right, title and
interest in the Technology to GDA, and whereas GDA is, in turn, desirous of
assigning all right, title and interest in the Technology to Assignee;
WHEREAS, listed in Exhibit I hereto, by country, application serial
number, filing date, inventor(s), and patent number, if any, are all domestic
and foreign patents and patent applications, filed in the name of Assignor,
disclosing and/or claiming the Technology;
WHEREAS, listed in Exhibit II hereto, by title, author(s), publication
date, country, application serial number, filing date, and registration number,
if any, are all domestic and foreign copyright registrations and applications,
filed on works authored by the Assignor pertaining to the Technology;
NOW THEREFORE, in consideration of one dollar ($1.00) and other good
and valuable consideration the receipt of which is hereby acknowledged by
Assignor, Assignor hereby assigns and shall assign worldwide the entirety of his
or her right, title and interest in the Technology to GDA, and THEREFORE in
consideration for one dollar ($1.00) and other good and valuable consideration
the receipt of which is hereby acknowledged by GDA, GDA hereby assigns and shall
assign worldwide the entirety of its right, title and interest in the Technology
to Assignee, its successors and assigns, such assignment including by way of
non-limiting example:
- 16 -
(a) all right, title and interest in any invention,
modification, or advance, whether or not patentable, included in
the Technology;
(b) all right, title and interest in any invention,
modification, or advance, whether or not patentable, pertaining to
the technology known as [CMD] thereof, and domestic or foreign
patent applications disclosing or claiming the such invention,
modification or advance, any continuation, continuation-in-part or
division of such patent application and any patent issuing
thereon, and any reissue, re-examination or extension of such
patent;
(c) all right, title and interest in any domestic or
foreign patent application disclosing and/or claiming the
Technology, any continuation, continuation-in-part, or divisional
of such application, and any patent issuing on any such
application, and any reissue, reexamination or extension of any
such patent;
(d) all right, title and interest in any invention based
on the Technology and/or on any other technology, proprietary
information and/or intellectual property of Nexar to which
Assignor had access in the course of such engagement, which
invention is conceived or reduced to practice within one year
after termination of such engagement, any patent domestic or
foreign patent application disclosing or claiming any such
invention, any continuation, continuation-in-part, or divisional
of such application, and any patent issuing on any such
application, and any reissue, reexamination or extension of any
such patent;
(e) all right, title and interest in any works created or
authored by the Assignor in the course of such engagement or
within one year after the termination thereof pertaining to the
Technology, any copyright in such works, or domestic or foreign
copyright applications or registrations on such works, including
but not limited to the copyright applications and registrations
listed in Exhibit II (as used in this agreement, "copyright"
refers copyright, moral rights and semiconductor mask work
rights); and
(f) all right, title and interest to any apparatus,
articles of manufacture, prototypes, and documentation or other
tangible media included in the Technology, including, without
limitation, all apparatus, articles of manufacture, prototypes,
design and engineering drawings and specifications, created,
authored, developed or otherwise acquired by Assignor in the
course of such engagement or within one year after the termination
thereof.
As to inventions that qualify fully under the provisions of Section
2870 of the California Labor Code, the Assignor acknowledges that he or she has
been notified that this Agreement does not apply to any of those inventions that
Assignor developed entirely on his or her own time without using GDA's or
Nexar's equipment, supplies, facilities, or trade secret information, except for
those inventions that either: (1) relate at the time of conception or reduction
to practice of the invention to GDA's business (including that on behalf of
- 17 -
Nexar), or actual or demonstrably anticipated research or development of GDA, or
(2) result from any work performed by Assignor for GDA.
No license, assignment, or other transfer of (or release of obligations
with respect to) intellectual property rights by Nexar to GDA or Assignor, or by
GDA to Assignor, is intended or implied by the provisions hereof.
The Assignor hereby covenants that no assignment, license, or other
transfer or encumbrance has, been, or will be made by them that would conflict
with this assignment all entire right, title and interest in the Technology to
Assignee.
Assignor hereby covenants that the lists in Exhibits I and II are
complete and accurate.
Assignor hereby covenants that he or she will promptly disclose to GDA
(and, in turn, GDA will promptly disclose to Nexar), all inventions,
modifications, or advances, whether or not patentable, made by Assignor during
the course of such engagement or within one year after termination thereof
Assignor hereby covenants that all services performed by Assignor
during the course of such engagement were and/or are on a work-for-hire basis in
favor of Nexar and that any works resulting therefrom are "works made for hire"
(as that term is defined in Section 101 of the United States Copyright Act) on
behalf of Nexar.
Assignor hereby covenants they he or she will (i) provide, on request,
to the Assignee (or its representatives) all pertinent facts and documents
relating to the Technology (including, by way of example, any patents and patent
applications listed in Exhibit I, and any legal equivalent thereof in this or a
foreign country, and any further patents that may issue thereon) as may be known
and accessible to it, and (ii) testify as to the same in any interference,
opposition, litigation or proceeding related thereto, and (iii) will promptly
execute and deliver to the Assignee (or its representatives) such instruments or
affidavits as may be necessary or desirable to secure assignment of the rights,
titles and interests conveyed herein, and to protect and enforce the same or to
otherwise carry out the purposes thereof.
Assignor hereby covenants that he or she has and will maintain in
confidence and not disclose, duplicate or use any confidential information
contained in the Technology or in the technology, proprietary information and/or
intellectual property of Assignee to which (on behalf of himself/herself, heirs,
successors and assigns) the Assignor may have had access during the aforesaid
engagement, and that he or she has. As used herein, "confidential information"
means any information, except that which (i) is generally known in the industry
or trade, (ii) becomes generally known in the industry or trade without fault of
the covenanting party, (iii) can be shown covenanting party to have been known
by it prior to receipt from GDA or Assignee, or (iv) is disclosed to the
covenanting party by a third party in a lawful manner and without any
restriction on disclosure.
ASSIGNOR
- 18 -
---------------------------------------
Printed Name:
--------------------------
Residence:
-----------------------------
Date:
----------------------------------
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C>
STATE OF _______________________
SS.
COUNTY OF _____________________
Before me this ________day of _________, 19____, personally appeared ________________________, known to me to be the person
whose name is subscribed in the foregoing Assignment and acknowledged that he executed the same as his free act and deed for the
purposes therein contained
------------------------------
NOTARY PUBLIC
[Notary's Seal Here] My Commission Expires:
====================================================================================================================================
</TABLE>
GDA Technologies, Inc.
By___________________________________
Alanghat G. Karunakaran, President
<TABLE>
<CAPTION>
====================================================================================================================================
<S> <C> <C>
STATE OF _______________________
SS.
COUNTY OF _____________________
Before me this ________day of _________, 19____, personally appeared Alanghat G. Karunakaran known to me to be the person
whose name is subscribed in the foregoing Assignment and acknowledged that he executed the same as his free act and deed for the
purposes therein contained
------------------------------
NOTARY PUBLIC
[Notary's Seal Here] My Commission Expires:
=====================================================================================================================
</TABLE>
- 19 -
EXHIBIT B
GDA PARTIES WORKING ON TECHNOLOGY
---------------------------------
[CMD]
[CMD]
[CMD]
[CMD]
- 20 -
EXHIBIT C
AUTHORIZED NEXAR EMPLOYEES
--------------------------
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
[CMD]
- 21 -
EXHIBIT 10.23
ASSET PURCHASE AND SETTLEMENT AGREEMENT
This Asset Purchase and Settlement Agreement (this "Agreement") is made
as of February 28, 1997 by and among Palomar Medical Technologies, Inc., a
Delaware corporation ("Palomar"), Nexar Technologies, Inc., a Delaware
corporation which is a majority owned subsidiary of Palomar ("Nexar"),
Technovation Computer Labs, Inc., a Nevada corporation ("Seller"), and Babar I.
Hamirani.
W I T N E S S E T H:
WHEREAS, Babar I. Hamirani has conceived, developed, authored, made or
otherwise acquired or asserted ownership of technology, proprietary information
and/or intellectual property for facilitating the installation, replacement or
upgrading of personal computer components, such technology, proprietary
information and/or intellectual property including but not limited to United
States Patent Application Serial No. 08/409,317, filed on 3/23/95, entitled
"System Permitting the External Replacement of the CPU and/or DRAM SIMMs
Microchip Board" and further including but not limited to an "additional" patent
application on Hamirani's behalf, as referred to in a letter dated December 19,
1996, from Hamirani's counsel, Law Offices of Dan A. Craddock, to Mr. Ronald J.
Kransdorf;
WHEREAS, Nexar contends that it has been assigned certain technology,
proprietary information and/or intellectual property of Babar I. Hamirani in
accord with a Key Employment Agreement executed by him on or about August 1,
1995 (the "Employment Agreement"); Babar I.
Hamirani contends otherwise;
WHEREAS, Nexar contends that Babar I. Hamirani was the holder of
certain rights to options in Palomar Electronics Corporation, a subsidiary of
Palomar, which rights lapsed unvested upon Babar I. Hamirani's termination of
employment on November 29, 1996; Babar I. Hamirani contends otherwise;
WHEREAS, Babar I. Hamirani contends that he is the holder of certain
rights to options in Nexar and/or Palomar Electronics Corporation; Nexar and
Palomar contend otherwise;
WHEREAS, Seller is the owner of assets including all technology,
proprietary information and/or intellectual property licensed to Nexar under the
License Agreement between the parties dated August 25, 1995 (the "License
Agreement"), and including technology, proprietary information and/or
intellectual property acquired from Babar I. Hamirani;
WHEREAS, Seller and Babar I. Hamirani desire to sell, and Palomar
desires to buy, all of the existing technology, proprietary information and/or
intellectual property of Seller and Babar I. Hamirani pertaining to technologies
intended to facilitate the installation, replacement and upgrading of personal
computers, including without limitation all of the technology, proprietary
information and/or intellectual property licensed to Nexar under the License
Agreement, or otherwise owned by Seller;
WHEREAS, Babar I. Hamirani's employment with Nexar was terminated on
November 29, 1996 and Babar I. Hamirani has raised certain issues in connection
with such termination;
WHEREAS, the parties wish to settle for all time all known and unknown
claims relating to Babar I. Hamirani's termination, the License Agreement, the
Employment Agreement, including Babar I. Hamirani's options claims, and further
wish to effect a sale of technology, proprietary information and intellectual
property described below by Seller and Babar I. Hamirani to Palomar;
WHEREAS, Babar I. Hamirani is a principal of Amerisel, Inc, a
California corporation (d/b/a Computer Universe) ("Computer Universe"), which
Nexar contends is indebted to it in the approximate amount of $271,000 for goods
sold by Nexar, and Nexar is willing to forgive such indebtedness in
consideration of the mutual covenants and obligations of the parties to this
Agreement and for mutual releases between Nexar and Computer Universe;
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties hereinafter set forth, the parties hereby agree
as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.0 Definitions. As used in this Agreement, the term "Hamirani" refers
to Babar I. Hamirani. As used in this Agreement, the term "affiliates" refers to
those persons listed on Exhibit 1.0 hereto.
1.1 Purchased Assets. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 1.4) Seller and Hamirani shall
sell, convey, transfer, assign and deliver to Palomar, and Palomar shall
purchase, all right, title and interest in the assets defined below
(collectively, the "Purchased Assets"):
(i) Technology. The Purchased Assets shall include all right,
title and interest in the following technology, proprietary
information, and intellectual property (collectively, the
"Technology"):
(a) ISPA and XPA. All right, title and interest in any
invention, modification, or advance (whether or not
patentable) created, developed, realized, acquired, owned,
conceived or made by or on behalf of Seller or Hamirani
(independently or with others), or in which Seller or Hamirani
have a legal or equitable right of ownership, through the
Closing Date (as defined in Section 1.4), pertaining to
technologies intended to facilitate the installation,
replacement, and/or upgrading of personal computer components
(including, by way of non-limiting example, technologies
sometimes referred to as "Inverted Socket Processor
Architecture,"
2
"ISPA," "ISPA 1," "ISPA 2," "ISPA 3," "Cross Processor
Architecture," and/or "XPA");
(b) Patents and Applications. All right, title and interest in
all patents and patent applications owned by, acquired by,
issued to, naming, filed by or on behalf of, Seller or
Hamirani, or in which Seller or Hamirani have a legal or
equitable right of ownership, through the Closing Date,
disclosing or claiming any invention, modification, or advance
referred to in Section 1.1(i)(a); any further applications
claiming a right of priority from such patents or patent
applications (including, without limitation, any divisional,
continuation, continuation-in-part, or convention
applications); and any patents issuing on any such
applications; any reissue, reexamination or extension of any
such patents; such patents and applications including, by way
of non-limiting example, United States Patent Application
Serial No. 08/409,317, filed on 3/23/95, entitled "System
Permitting the External Replacement of the CPU and/or DRAM
SIMMs Microchip Board" (the "Patent Application") and the
aforementioned "additional" patent application (not yet filed)
referred to in the letter dated December 19, 1996, from
Hamirani's counsel to Mr. Ronald J. Kransdorf (the "Additional
Patent Application");
(c) Copyright. All right, title and interest, if any should
exist, in any works of authorship, copyright applications or
copyright registrations created by, owned by, acquired by,
issued to, naming, filed by or on behalf of, Seller or
Hamirani, or in which Seller or Hamirani have a legal or
equitable right of ownership, through the Closing Date,
relating to any invention, modification, advance, technology,
patent, or application referred to in Sections 1.1(i)(a) - (b)
(as used herein and throughout this agreement, "copyright"
includes copyright, moral rights and semiconductor mask work
rights);
(d) Trademark. All right, title and interest, if any should
exist, in any trademarks, trademark applications or trademark
registrations, created by, owned by, acquired by, issued to,
naming, filed by or on behalf of, Seller or Hamirani, or in
which Seller or Hamirani have a legal or equitable right of
ownership, through the Closing Date, for use in connection
with goods or services relating to any invention,
modification, advance, technology, patent, or application
referred to in Sections 1.1(i)(a) - (b) (including, by way of
non-limiting example, actual or potential trademarks such as
"Inverted Socket Processor Architecture," "ISPA," "ISPA 1,"
"ISPA 2," "ISPA 3," "Cross Processor Architecture," and/or
"XPA"), as well as the goodwill of Seller's or Hamirani's
businesses (or that part of the such goodwill) connected with
the use of and symbolized by such trademarks; in the case of
trademarks and trademark applications for which there is an
intent to use, Seller and Hamirani acknowledge that assignment
of such trademarks and trademark applications is being made
concurrent with the assignment of such businesses or portions
thereof to which those trademarks and trademark applications
pertain, which businesses are ongoing and
3
existing; the term "trademark" as used herein and throughout
this agreement refers to both trademarks and service marks;
(e) Trade Secrets. All right, title and interest, if any
should exist, in any trade secrets and know-how developed,
realized, acquired, owned, or made by or on behalf of Seller
or Hamirani (independently or with others), or in which Seller
or Hamirani have a legal or equitable right of ownership,
through the Closing Date, relating to any invention,
modification, advance, technology, patent, or application
referred to in Sections 1.1(i)(a) - 1.1(i)(b);
(f) Documentation. All right, title and interest, if any
should exist, to any documentation (in whatever form and
stored on whatever medium) created by, owned by, acquired by,
issued to, filed by or on behalf of, Seller or Hamirani, or in
which Seller or Hamirani have a legal or equitable right of
ownership, through the Closing Date, relating to any
invention, modification, advance, technology, patent, or
application referred to in Sections 1.1(i)(a) - 1.1(i)(b);
such documentation including, without limitation, all design
and engineering drawings and specifications (the
"Documentation");
(g) Prototypes. All right, title and interest, if any should
exist, to any prototypes, mock-ups, simulations, or other
implementations (whether or not completed or functional)
created, developed, realized, acquired, owned, or made by or
on behalf of Seller or Hamirani (independently or with
others), or in which Seller or Hamirani have a legal or
equitable right of ownership, through the Closing Date,
relating to any invention, modification, advance, technology,
patent, or application referred to in Sections 1.1(i)(a) -
1.1(i)(b);
(h) Other Seller Assets. All right, title and interest in the
technology, proprietary information and/or intellectual
property licensed to Nexar under the License Agreement,
including without limitation that constituting the "Licensed
Technology and Know-How", "Invention", "Technical
Information", Documentation", "Licensed Patent Rights", and
"Improvement" through the Closing Date;
(ii) Causes of Actions. The Purchased Assets shall also include all right,
title and interest in all causes of action, claims and similar rights
arising under law or contract for assignment or other transfer to
Seller or Hamirani, or for performance of duties on behalf of Seller or
Hamirani, relating to any invention, modification, advance, technology,
patent or application therefor, trademark, trademark registration or
application therefore, work of authorship, copyright registration or
application therefor, trade secret or know-how, documentation,
prototype mock-ups, simulations, or other implementations referred to
in Sections 1.1(i)(a) - 1.1(i)(g) through the Closing Date. In the
event Palomar and/or Nexar pursue a cause of action under this
paragraph and Seller and/or Hamirani are named as parties in any such
legal proceeding, then Palomar and/or Nexar agree to defend and hold
Seller and/or Hamirani harmless pursuant to paragraph 8.3 below except
insofar as such actions are the
4
result of an act or omission by Seller and/or Hamirani in contravention
of the purposes and terms of this Agreement.
As used in this Section 1.1, the terms patent, patent application,
trademark, trademark application, trademark registration, copyright, copyright
application, copyright registration, and the like, refer to the corresponding
domestic, international, regional and foreign intellectual property rights, if
any should exist. Thus, by way of non-limiting example, the references in
Section 1.1(i)(b) to patents and patent application refers to domestic patents
and patent applications, international patents and patent applications, regional
patents and patent applications, and foreign patents and patent applications.
The purchase and sale transactions described above in this Section 1.1
is herein referred to as the "Asset Sale."
1.2 No Assumption of Liabilities. Neither Nexar nor Palomar shall
assume any liabilities or obligations of Seller or Hamirani whatsoever,
including, without limitation, any obligation or liability relating to any of
the agreements included in the Purchased Assets or product warranty, liability
or similar claims relating to products delivered or services performed on or
prior to the date of the Closing or any other claims arising out of actions (or
inaction) or other events initially occurring on or prior to the date of the
Closing. It is agreed that Seller and Hamirani shall be solely liable for all
liabilities and obligations arising from Seller's or Hamirani's respective
ownership, possession, use or operation of the Purchased Assets, the sale,
licensing or other disposition of the Technology, and other incidents and
occurrences relating to the Purchased Assets during the period on or prior to
the date of the Closing.
1.3. Escrow Agent; Escrow Agreement. Union Bank of California or other
appropriate California financial institution shall serve as Escrow Agent
pursuant to the terms of an Escrow Agreement substantially in the form of
Exhibit 1.3 hereto and to be mutually agreed upon by the parties thereto which
shall be executed at the Closing by the parties hereto and said Escrow Agent.
1.4 The Closing. On the earlier of April 30, 1997 or the closing of the
initial public offering of the common stock of Nexar (the "Closing Date"), (i)
Seller and Hamirani will deliver to Palomar and Nexar the various certificates,
instruments and documents referred to in Section 6.1, and (ii) Palomar and Nexar
will deliver, or cause to be delivered, to Seller, Hamirani, Computer Universe
and the Escrow Agent, as the case may be, the consideration specified in Section
5.1(b), (c), (d) and (e) and the various instruments and documents referred to
in Section 6.2 (the "Closing"). If the closing of the initial public offering of
the common stock of Nexar occurs before April 30, 1997, then the Closing shall
occur on the same date as the closing of the Nexar initial public offering and
the Closing will be first in time. The Closing shall take place at the offices
of Ropers, Majeski, Kohn & Bentley, 80 North First Street, San Jose, California,
or such other place as agreed to by the parties.
5
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER AND HAMIRANI
Seller and Hamirani each jointly and severally represent and warrant to
Palomar and Nexar that the following are true and complete as of the date
hereof.
2.1 Organization, Standing and Power. Seller is a corporation duly
organized, validly existing and in good standing under the laws of Nevada and
has full corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. Seller is duly qualified
and in good standing as a foreign corporation in California and every other
jurisdiction where the conduct of its business or the character of its
properties requires such qualification, or Seller believes qualification is
unnecessary at this time. Seller has duly obtained all permits, licenses and
other qualifications under all applicable laws, regulations, ordinances or
orders of public authorities, or otherwise, that Seller believes are necessary
to the current conduct of its business. Seller has no subsidiaries and does not
control directly or indirectly or have any direct or indirect equity
participation in any corporation, partnership, trust or other business.
2.2 Authority and Binding Obligation. This Agreement has been duly
authorized, executed and delivered by each of the Seller and Hamirani, and
Seller has the corporate power and authority to enter into and perform the
obligations to be performed by it hereunder, and Hamirani has the power and
authority to enter into and perform the obligations to be performed by him
hereunder. This Agreement and the Bills of Sale and other instruments of
transfer and agreements of Seller and Hamirani referred to in Section 6.1
respectively constitute the valid and binding obligations of Seller and
Hamirani, enforceable against each in accordance with their respective terms,
except that such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to enforcement of
creditor's rights generally and is subject to general principles of equity.
2.3 No Consents Necessary. No consents or approvals of or notifications
to any governmental authority or other person not a party hereto is required in
connection with the execution and delivery of this Agreement by Seller and
Hamirani or the performance by Seller and Hamirani of all of their respective
obligations hereunder.
2.4 No Breach. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (a) violate any
provision of the charter or bylaws of Seller or Hamirani's affiliates, or any
material law, regulation, ordinance, judgment or decree applicable to Seller or
Hamirani or any of their respective properties or assets; (b) violate, conflict
with or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time, or both, would constitute) a default under the terms of any material
written contract, mortgage, lease, bond, indenture, agreement, franchise or
other instrument or obligation of Seller or Hamirani; or (c) result in the
creation of any lien or encumbrance (collectively, "Liens") upon the Purchased
Assets.
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2.5 Intellectual Property.
(a) Seller and/or Hamirani own the Technology in its entirety both
legally and beneficially that is to be sold, conveyed, transferred, assigned and
delivered to Palomar by this Agreement. Seller and/or Hamirani have not
assigned, licensed, transferred or otherwise conveyed any rights in the
Technology to Computer Universe, Khurum Hamirani, Tariq Hamirani or others.
(b) Seller and/or Hamirani own legally enforceable rights to make, use,
sell, offer for sale, import, disclose, duplicate, distribute, display and to
prepare derivatives of apparatus, processes, articles of manufacture, works of
authorship and copies in any medium, goods and services embodying the
Technology, subject, prior to the close of business on the date hereof, only to
the terms of the License Agreement.
Exhibit 2.5(a) sets forth a true and complete list of all
trademarks, trademark applications, trademark registrations, patents and patent
applications, copyright applications, copyright registrations, included in the
Technology (collectively, the "Assigned Applications/Registrations"), and
specifies (i) for each such trademark application, trademark registration,
patent application, patent, copyright application, and copyright registration,
the jurisdiction in which it has been filed and/or issued, the date of filing,
the application number, and the registration number (where applicable), and (ii)
for each such trademark, the identity of the mark, its dates of first use
anywhere and first use in interstate commerce, the goods and/or services with
which it is used, and the jurisdictions in which it has been used.
Exhibit 2.5(b) sets forth a true and complete list of all
tangible and intangible assets, other then the Assigned
Applications/Registrations, included in the Purchased Assets, including without
limitation apparatus, articles of manufacture, prototypes and Documentation or
other tangible media, contract rights, causes of action, claims and similar
rights, whether accrued or not.
Exhibit 2.5(c) sets forth a true and complete list of all
material third-party patents, trademarks, copyrights, know-how, proprietary
information or other technology (including software) (the "Third Party
Intellectual Property Rights"), and any other property of third parties which
are incorporated in, are, or form a part of, the Technology. Exhibit 2.5(c) also
sets forth a true and complete list of (i) all material licenses, sublicenses
and other agreements as to which Seller and/or Hamirani is a party and pursuant
to which any person is authorized to use any of the Technology and/or the
Assigned Applications/Registrations; (ii) all material licenses, sublicenses and
other agreements as to which Seller is a party and pursuant to which Seller
and/or Hamirani is authorized to use any Third Party Intellectual Property
Rights relating to any technology referred to in Section 1.1(i)(a); and (iii)
all material licenses, sublicenses and other agreements as to which Seller
and/or Hamirani is a party and pursuant to which Seller and/or Hamirani is
authorized to make, use, sell, offer for sale, import, disclose and/or modify
any Technology and/or the Assigned Applications/Registrations.
No claims are currently pending or, to the knowledge of Seller or
Hamirani, threatened by any person or entity, nor do Seller or Hamirani know of
any valid grounds for any bona fide claims
7
(i) to the effect that the manufacture, use, sale, offering for sale, import,
disclosure, duplication, distribution, display, licensing, assignment, and/or
preparation of derivatives based on any product, process, work of authorship or
copy utilizing the Technology infringes on any copyright, patent, trademark, or
trade secret of a third party; (ii) against the use by Seller or Hamirani of the
any trademarks, trade names, trade secrets, copyrights, patents, patent
applications, technology, know-how or computer software programs and
applications relating to any technology referred to in Section 1.1(i)(a) used in
their respective businesses as currently conducted; (iii) challenging the
ownership, validity or effectiveness of any of Assigned
Applications/Registrations, the Technology, and/or the Purchased Assets; or (iv)
challenging Seller's or Hamirani's license or legally enforceable right to make
use of Third Party Intellectual Rights. Notwithstanding the above, all parties
are aware, as evidenced by Nexar's recent filings with the Securities and
Exchange Commission, that Liaqat Y. Khan may have a threatened claim regarding
the subject technology.
To the knowledge of Seller and Hamirani, all patents, patent
applications, trademarks, trademark applications, registered trademarks,
copyright applications, and registered copyrights included in the Technology are
valid and subsisting. To the knowledge of Seller and Hamirani, there is no
material unauthorized use, infringement or misappropriation of any Assigned
Applications/Registrations or the Technology by any third party, including any,
current or former officer, director, stockholder, or employee of Seller or
Hamirani. Notwithstanding the above, Seller and/or Hamirani may have a claim
against GDA for material unauthorized use, infringement or misappropriation of
the Technology in design work for Nexar (all right, title and interest in such
claim, as well as in any related cause of action or similar rights arising under
law or contract, are assigned and transferred to Palomar pursuant to Section
1.1(ii) hereof).
(c) All copies of any source code for software or firmware constituting
part of the Technology are in Seller's and/or Hamirani's possession and control
(and shall be delivered to Palomar upon Closing) and no officers, employees,
agents, outside consulting or contract engineers or designers or actual or
potential customers of Seller, or any other third party, have any rights to or
possess such source code.
(d) There are no licenses or other authorizations not possessed by
Seller or Hamirani which are required for Palomar and Nexar to utilize, modify,
market and distribute the Technology and Documentation to at least the same
extent as Seller and/or Hamirani prior to the Closing Date.
(e) Seller and Hamirani have taken all appropriate actions to protect
the secrecy and confidentiality of the Technology and the non-public information
included in the Documentation. To the knowledge of Seller and Hamirani, the
Assigned Applications/Registrations are presently protectable and are not part
of the public domain or literature, nor have they been used, divulged or
appropriated for the benefit of any past or present employees or other persons,
or to the detriment of Seller or Hamirani. All persons who have been involved in
the development of the Technology and Documentation have executed
confidentiality and nondisclosure agreements covering all non-public information
included in the Documentation in the forms previously delivered to Palomar.
Notwithstanding the above, Seller and/or Hamirani have not obtained a written
Nondisclosure Agreement with HCL-Hewlett Packard, Ltd. or HCL America ("HCL
America") relating to design
8
work performed for Seller and/or Hamirani regarding United States Patent
Application Serial No. 08/409,317. Seller and/or Hamirani have not assigned,
licensed, transferred or otherwise conveyed any rights in the Technology to HCL
America.
(f) Seller and/or Hamirani pay no royalty under any Technology and have
the right to bring actions for the infringement thereof (except as limited by
the License Agreement).
(g) There are no legal or governmental proceedings pending, other than
patent, trademark, and copyright application prosecution proceedings, relating
to the Technology, and to Seller's and Hamirani's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or others.
(h) Seller and/or Hamirani are not aware of any facts that would
preclude assignment to Palomar and Nexar of clear title to the Technology,
including without limitation the Assigned Applications/Registrations, free from
any encumbrances or liens.
(i) The Seller and/or Hamirani have complied with the USPTO duty of
candor and disclosure for each of the patents and patent applications included
in the Technology.
(j) The Seller and/or Hamirani are not aware of any facts which would
render any patent, copyright or trademark registrations included in, or that may
issue from the Technology, unenforceable or invalid.
(k) The Seller and/or Hamirani are unaware of any facts which would
preclude the grant of a patent, trademark registration or copyright registration
from pending applications therefor included in the Technology.
2.6 Agreements and Other Arrangements. Exhibit 2.6 lists all of the
agreements and other arrangements, if any, to which Seller or Hamirani are a
party or by or to which they or their assets are bound or subject and which are
material to Seller or Hamirani, their businesses, the Technology, including,
without limitation, the following: (a) design, engineering, manufacturing,
assembly, joint venture and partnership agreements; (b) license agreements; (c)
agreements with any outside consulting or contract engineers or designers or
other representative of Seller or Hamirani. There have been delivered or made
available to Nexar true and complete copies of all of the agreements and other
arrangements listed in Exhibit 2.6 and all other Exhibits hereto. All such
agreements and arrangements are in full force and effect and constitute legal,
valid and binding obligations upon Seller and/or Hamirani and, to their
knowledge, the respective other parties thereto, enforceable in accordance with
their respective terms (except that such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally and is subject to general
principles of equity). Seller and/or Hamirani have paid in full or accrued all
material amounts due by it thereunder and has satisfied in all material
respects, or provided for, all of its material liabilities and obligations
thereunder. Except as disclosed in Exhibit 2.6, Seller and/or Hamirani are not
in default under any material provision of any such agreement or arrangement,
nor, to its knowledge, is any other party to such agreement or
9
arrangement in default of any material provision thereunder, nor does any
condition exist that, with notice or lapse of time or both, would constitute a
default thereunder, which default would have a materially adverse effect on
Seller and/or Hamirani or their respective businesses.
2.7 No Employees. Other than Babar I. Hamirani, Seller has no employees
and no employee has ever been compensated for any services rendered for or on
behalf of Seller or is due any such compensation for services rendered. Any
individual or entity engaged by Seller or Hamirani to perform any design,
engineering, manufacturing or assembly services with respect to the Technology
has been retained strictly on the basis of work-for-hire and no liens or
ownership interest of any kind whatsoever has arisen in connection with any such
services.
2.8 Purchase of Securities for Investment. The Seller and/or Hamirani
are acquiring the Palomar Shares (as defined in Section 5.1(b)) for its own
account for investment purposes only and not with a view to distribution. Each
of Seller and Hamirani has such knowledge and experience in financial and
business matters, either alone or with advisors, that each is capable of
evaluating the merits and risks of acquiring the Palomar Shares.
2.9 Affiliates. The affiliates of Hamirani are listed on Exhibit 1.0
hereto. Hamirani is the sole shareholder of Seller. Other than Seller and
Computer Universe, Hamirani does not have any other affiliated businesses.
2.10 No Excluded Technology. There is no technology, proprietary
information or intellectual property owned by Seller or Hamirani, or in which
Seller or Hamirani have a legal or equitable right of ownership, which will not
be included in the Purchased Assets transferred to Palomar and Nexar by the
Bills of Sale and other instruments of transfer referred to in Section 6.1 of
the Agreement, and which are related to the Technology.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PALOMAR AND NEXAR
Palomar and Nexar each represent and warrant to Seller that the
following are true and complete as of the date hereof:
3.1 Organization, Standing and Power. Each of Nexar and Palomar is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware, duly qualified as a foreign corporation to do business in
Massachusetts and California and has full corporate power and authority to own,
lease and operate its respective properties and to carry on its respective
business as proposed to be conducted.
3.2 Authority and Binding Obligation. This Agreement has been duly
authorized, executed and delivered by each of Nexar and Palomar, and each of
Nexar and Palomar has the corporate power and authority to enter into and
perform the obligations to be performed respectively
10
by each hereunder. This Agreement constitutes the valid and binding obligations
of each of Nexar and Palomar, enforceable against each in accordance with its
respective terms, except that such enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditor's rights generally and is subject to general principles
of equity.
3.3 Consents and Approvals. No consents or approvals of nor
notification to any governmental authority or other person not a party hereto is
required in connection with the execution and delivery of this Agreement by
Nexar and Palomar or the performance by Nexar and Palomar of their respective
obligations hereunder.
3.4 No Breach. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (a) violate any
provision of the charter or by-laws of Nexar or Palomar nor any material law,
regulation, ordinance, judgment or decree applicable to Nexar or Palomar or
their respective properties or assets; or (b) violate or conflict with any
agreement to which Nexar or Palomar is a party.
ARTICLE IV
SETTLEMENT OF CLAIMS
4.1. Seller and Hamirani shall deliver to Palomar and Nexar at the
Closing a duly executed General Release identical in form to Exhibit 4.1 hereof.
4.2. Palomar and Nexar shall deliver to Seller and Hamirani at the
Closing a duly executed General Release identical in form to Exhibit 4.2 hereof.
4.3. Seller and Hamirani shall cause Computer Universe to deliver to
Nexar at the Closing a duly executed General Release identical in form to
Exhibit 4.3(a) hereof; Nexar shall deliver to Computer Universe at the Closing a
duly executed General Release identical in form to Exhibit 4.3(b) hereof.
ARTICLE V
CONSIDERATION
5.1 Consideration. The consideration for the Purchased Assets and
releases by Seller, Hamirani and Computer Universe of all subject claims shall
be as follows:
(a) $75,000 in the aggregate, which shall be paid to Seller and/or
Hamirani on the date of execution of this Agreement by the
parties hereto; and
11
(b) The number of shares of the common stock of Palomar, $.01 par
value per share ("Palomar Common Stock"), which have an
aggregate market value (based on the per share closing bid of
the Palomar Common Stock on the business day immediately prior
to The Nasdaq Stock Market on the Closing Date of $1,500,000
(the "Palomar Shares"), to be delivered to Seller and/or
Hamirani on the Closing Date; and
(c) $425,000 in the aggregate to be paid to Seller and/or Hamirani
on the Closing Date; and
(d) $700,000 in deferred consideration to be delivered to the
Escrow Agent on the Closing Date pursuant to the terms of the
Escrow Agreement; and
(e) $50,000 to be paid to Computer Universe on the Closing Date
pursuant to the terms of the mutual releases between Nexar and
Computer Universe in the form of Exhibits 4.3(a) and (b)
attached hereto.
ARTICLE VI
CLOSING
6.1. Obligations of Seller and Hamirani at the Closing. At the Closing,
Seller and Hamirani shall deliver or cause to be delivered to Palomar and/or
Nexar the following:
(a) (i) Bills of Sale identical in form to Exhibit 6.1(a)(i), and
such other instruments of transfer for the Purchased Assets
(including by non-limiting example assignments of patents,
patent applications, copyrights and trademarks) in form and
substance reasonably satisfactory to Palomar, Nexar and their
counsel and sufficient to convey to Palomar all of Seller's
and Hamirani's right, title and interest in and to the
Purchased Assets; and (ii) such instruments of transfer shall
include, by non-limiting example, assignments of the Patent
Application, the Additional Patent Application and other
technology in the form of an Assignment of Technology
identical in form to Exhibit 6.1(a)(ii) sufficient for
recordation with the United States Patent and Trademark Office
and other governmental offices;
(b) all Documentation and any tangible or intangible reduction to
practice or other representation of the Technology not already
in Palomar's or Nexar's possession; and
(c) a counterpart to the Escrow Agreement, duly executed by
Seller, Hamirani and the Escrow Agent;
(d) a counterpart of the Investment and Registration Rights
Agreement in the form of Exhibit 6.1(d) ("Investment
Agreement"), duly executed by Seller and Hamirani;
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(e) a General Release identical in form to Exhibit 4.1, duly
executed by Seller and Hamirani;
(f) a General Release identical in form to Exhibit 4.3(a), duly
executed by Computer Universe;
(g) all copies of the Assigned Applications/Registrations
(including the Patent Application and the Additional Patent
Application not yet filed), along with copies of the Patent
Application's entire history of prosecution, or "file
history", before the respective government offices (such file
history to include, but not be limited to, copies of the
application, filing receipts, office actions, responses,
notices of allowability and/or allowance, and any other
correspondence between the applicant and respective government
office with respect to such Assigned
Applications/Registrations), which copies Palomar and Nexar
shall have a right to conduct a nonqualitative inspection at
the Closing; and
(h) such other certificates, and documents and instruments as
Nexar may reasonably request to effectuate and evidence the
transactions contemplated hereby and the satisfaction of the
obligations of Seller and Hamirani under this Agreement.
6.2 Obligations of Nexar and Palomar at the Closing. At the Closing,
Palomar and Nexar shall deliver or cause to be delivered to Seller and Hamirani
the following:
(a) the $425,000 cash consideration specified in Section 5.1(c);
(b) the Palomar Shares;
(c) the $700,000 deferred consideration to be delivered to the
Escrow Agent pursuant to the Escrow Agreement;
(d) the $50,000 cash consideration to be delivered to Computer
Universe;
(e) a General Release identical in form to Exhibit 4.2, duly
executed by Nexar and Palomar;
(f) a General Release identical in form to Exhibit 4.3(b), duly
executed by Nexar;
(g) a counterpart to the Escrow Agreement, duly executed by
Palomar;
(h) a counterpart to the Investment Agreement, duly executed by
Palomar; and
(i) a copy of the lock-up agreement between Nexar and its
directors and officers; and
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(j) such other certificates, documents and instruments as Seller
may reasonably request to effectuate and evidence the
transactions contemplated hereby and the satisfaction of the
obligations of Palomar and Nexar under this Agreement. By the
Closing Date, Seller and Hamirani will provide specific
Closing instructions regarding which portions of the
consideration shall be made out to Seller as opposed to
Hamirani.
ARTICLE VII
OTHER COVENANTS AND AGREEMENTS
7.1 Prior Agreement Terminated. The License Agreement to which Nexar
and Seller are parties, shall be automatically terminated and have no further
force and effect as of the close of business on the Closing Date and neither
party shall thereafter have any liability whatsoever to the other thereunder.
7.2 Non-Compete; Non-Disparagement; No Bad Acts. Hamirani and Seller
agree that neither will during the period commencing upon execution of this
Agreement and ending on the Closing Date, either alone or jointly with, or as
manager or agent for, any person, corporation, partnership, joint venture or
other business organization, directly or indirectly engage or participate in,
assist or consult with in any manner or in any capacity, or have any interest in
or make any loan to any person, corporation, partnership, joint venture or other
business organization, or any company, which is engaged in manufacturing,
development, or sale of products incorporating any technology referred to in
Section 1.1(i).
Hamirani and Seller further agree that neither will during the period
ending six months following the Closing Date, either alone or jointly with, or
as manager or agent for, any person, corporation, partnership, joint venture or
other business organization, directly or indirectly, solicit any person or
persons in the employment of Palomar or Nexar in any capacity whatsoever to
terminate such association and work for Hamirani, Seller, or any affiliates.
Commencing upon execution of this Agreement through the period ending
12 months following the Closing Date, the parties mutually agree that they will
not make any statement, orally or in writing, which disparages or damages the
reputation, quality of work, capabilities or integrity of any other party, as
the law provides, or do any wrongful act or omission which may damage the
reputation, quality of work, capabilities or integrity of any other party, as
the law provides.
Commencing upon execution of this Agreement through the period ending
12 months following the Closing Date, the parties mutually agree that they will
not interfere with or damage any beneficial or contractual relationship of the
other party, as the law provides.
7.3 Further Assurances of Seller and Hamirani. Commencing upon
execution of this Agreement (and thereafter, as applicable), Seller and Hamirani
shall (i) maintain the pendency,
14
validity and enforceability of Assigned Applications/Registrations and shall not
allow them to go abandoned or reduce their scope; (ii) maintain the secrecy of
all legally protectable trade secrets and know-how included in Technology; and
(iii) take no other actions tending to reduce the scope of the Technology and/or
Purchased Assets. After the Closing, Seller and Hamirani each hereby covenant
that they will (i) execute, acknowledge and deliver any further assignments,
conveyances and other assurances, documents and instruments of transfer
reasonably requested by Palomar and/or Nexar from time to time and shall take
any other action consistent with the terms of this Agreement that may be
reasonably requested by Palomar and/or Nexar for the purpose of selling,
transferring, assigning, granting, conveying, delivering or confirming to
Palomar and/or Nexar as of the date of the Closing (or such other date
thereafter as the parties shall deem appropriate) any or all of the Purchased
Assets; (ii) provide any further facts and documents as may be known and
accessible to Seller and/or Hamirani requested by Palomar and/or Nexar relating
to the Technology, and testify (at Palomar and/or Nexar's cost) as to the same
in any interference, opposition, litigation or proceeding related thereto, and
(iii) execute, acknowledge and deliver any further instruments or affidavits
reasonably requested by Palomar and/or Nexar from time to time to apply for,
obtain maintain, and enforce patents, copyrights, trade secrets and other
proprietary rights in the Technology assigned hereunder or to otherwise carry
out the purposes hereof. Neither the Seller nor Hamirani shall retain any copies
of the Purchased Assets or materials disclosing or containing nonpublic aspects
of the same. If requested by Palomar and/or Nexar, Seller and/or Hamirani, at
Palomar and/or Nexar's cost, shall prosecute or otherwise enforce in Seller's
and/or Hamirani's own names for the benefit of Palomar and/or Nexar any claims,
rights or benefits that are transferred to Palomar and/or Nexar by this
Agreement and that require prosecution or enforcement in Seller's and/or
Hamirani's names.
7.4 Further Assurances of Palomar and Nexar. All officers and directors
of Nexar shall agree to hold their shares of Nexar stock for a period not less
than six (6) months from the date of closing of Nexar's initial public offering.
A copy of the lock-up agreement confirming same shall be provided to Seller and
Hamirani at the Closing. Palomar and Nexar shall not fund any litigation or
other legal proceeding (except any defense or counterclaim) brought in the name
of any Palomar or Nexar director, officer, employee, or any others against
Seller or Hamirani for the period ending four years following the Closing Date.
ARTICLE VIII
INDEMNIFICATION
8.1 Survival of Representations and Warranties. The representations and
warranties made by each of the parties in this Agreement shall be deemed to have
been relied upon by the other parties hereto and shall survive the Closing,
provided that in no event shall any party be entitled to seek indemnification in
respect of any breach of a representation or warranty made herein pursuant to
this Article VIII unless the party seeking indemnification has made a written
claim therefor pursuant to Section 9.9 prior to January 1, 2000.
15
8.2 Indemnification Provisions.
(i) In the event Seller and/or Hamirani breaches (or in the
event any third party alleges facts that, if true, would mean Seller
and/or Hamirani has breached) any of their representations, warranties,
and covenants contained herein, provided that Palomar and/or Nexar
makes a written claim for indemnification against Seller and/or
Hamirani by notice to Hamirani pursuant to Section 9.9 prior to January
1, 2000, then Seller and Hamirani jointly and severally agree to
indemnify Nexar and Palomar from and against the entirety of any
actions, suits, proceedings, hearing, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in
settlement, liabilities, obligations, taxes, liens, losses, expenses,
and fees, including court costs and reasonable attorney's fees and
expenses ("Adverse Consequences") Nexar or Palomar may suffer through
and after the date of the claim for indemnification (including any
Adverse Consequences Nexar or Palomar may suffer after December 31,
1999) resulting from, arising out of, relating to, in the nature of, or
caused by the breach (or the alleged breach).
(ii) In the event Palomar or Nexar breaches (or in the event
any third party alleges facts that, if true, would mean Palomar or
Nexar has breached) any of its representations, warranties, and
covenants contained herein, provided that Hamirani makes a written
claim for indemnification against Palomar or Nexar pursuant to Section
9.9 prior to January 1, 2000, then Palomar and Nexar agree to indemnify
each of the Seller and Hamirani from and against the entirety of any
Adverse Consequences the Seller or Hamirani may suffer through and
after the date of the claim for indemnification (including any Adverse
Consequences the Seller or Hamirani may suffer after December 31, 1999)
resulting from, arising out of, relating to, in the nature of, or
caused by the breach (or the alleged breach).
8.3 Matters Involving Third Parties.
(i) If any third party shall notify any party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against any other
party (the "Indemnifying Party") under this Article VIII, then the
Indemnified Party shall promptly notify each Indemnifying Party thereof
in writing; provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then
solely to the extent) the Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A)
the Indemnifying Party notifies the Indemnified Party in writing within
15 days after the Indemnified Party has given notice of the Third Party
Claim that the Indemnifying Party will indemnify the Indemnified Party
from and against the entirety of any Adverse Consequences the
Indemnified Party may suffer resulting from, arising out of, relating
to, in the nature of, or caused by the Third Party Claim, (B) the
16
Indemnifying Party provides the Indemnified Party with evidence
reasonably acceptable to the Indemnified Party that the Indemnifying
Party will have the financial resources to defend against the Third
Party Claim and fulfill its indemnification obligations hereunder, (C)
the Third Party Claim involves only money damages and does not seek an
injunction or other equitable relief, (D) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the good
faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice materially adverse to the continuing
business interests of the Indemnified Party, and (E) the Indemnifying
Party conducts the defense of the Third Party Claim actively and
diligently.
(iii) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with Section 8.3(ii)
above, (A) the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third Party
Claim, (B) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (not
to be withheld unreasonably), and (C) the Indemnifying Party will not
consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of
the Indemnified Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Article 8.3(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party may
defend against, and consent to the entry of any judgment or enter into
any settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in
connection therewith), (B) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of defending
against the Third Party Claim (including reasonable attorneys' fees and
expenses), and (C) the Indemnifying Parties will remain responsible for
any Adverse Consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Article VIII.
8.4 Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any party may have for breach of representation,
warranty, or covenant.
ARTICLE IX
GENERAL PROVISIONS
9.1 Publicity. Neither Hamirani nor Seller or any of their affiliates
shall issue any press release or other public statement with respect to the
transactions contemplated by this Agreement
17
without the prior written consent of Palomar and Nexar, which consent will not
be unreasonably withheld.
9.2 Headings. The subject headings of the Sections and subsections of
this Agreement are included for purposes of convenience only and shall not
affect the interpretation of any of its provisions.
9.3 Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement among the parties pertaining to the subject
matter contained herein and supersedes all prior agreements, representations and
understandings of the parties. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the party to be bound.
No waiver of any of the provisions of this Agreement shall be deemed a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
9.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.5 Severability; Reformation. In case any one or more of the
provisions (or parts of a provision) contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
(or part of a provision) of this Agreement; and this Agreement shall, to the
fullest extent lawful, be reformed and construed as if such invalid, illegal or
unenforceable provision (or part of a provision) had never been contained
herein, and such provision (or part) reformed so that it will be valid, legal
and enforceable to the maximum extent possible, consistent with the parties'
intent.
9.6 Other Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under this Agreement on
any persons other than the parties to it and their respective successors and
permitted assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action against any party to this Agreement.
9.7 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interests and obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other, which consent shall not be unreasonably withheld,
except that Palomar may assign this Agreement to any of its subsidiaries
(provided that Palomar remains obligated hereunder) or to any purchaser of all
or substantially all of the capital stock or assets of Palomar, whether by
merger or otherwise.
9.8 Governing Law. Except for the General Releases in the form of
Exhibits 4.1, 4.2, 4.3(a) and 4.3(b) which shall be construed in accordance
with, and governed by, the laws of the State
18
of California, this Agreement and the exhibits hereto shall be construed in
accordance with, and governed by, the laws of The Commonwealth of Massachusetts,
including, without limitation, its statutes of limitations, but without giving
effect to its rules governing choice of law.
9.9 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and delivered by personal delivery,
mail, overnight courier or telecopy. Such communications shall be deemed given,
if by personal delivery, when received; if by mail, when mailed by certified or
registered mail (postage prepaid and return receipt requested); or if by
overnight courier or telecopy, when delivered to such courier or sent by
telecopy (provided that the party giving such communication has confirmation of
such courier delivery or telecopy delivery), and, in each case, addressed to the
party to whom notice is to be given as set forth below:
Palomar:
Palomar Medical Technologies, Inc.
66 Cherry Hill Drive
Beverly, Massachusetts 01915
Telephone: (508) 921-9300
Facsimile: (508) 921-5801
Attention: Steven Georgiev, Chairman
Nexar:
Nexar Technologies, Inc.
182 Turnpike Road
Westborough, Massachusetts 01581
Attention: Albert J. Agbay
Chairman and Chief Executive Officer
Telephone: (508) 836-8700
Facsimile: (508) 836-8729
with a copy to:
Stephen K. Fogg, Esq.
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109
Telephone: (617) 248-5000
Facsimile: (617) 248-4000
19
Seller and Hamirani:
c/o Babar I. Hamirani
180 Victory Circle
San Ramon, California 94583
Telephone:
Facsimile:
with a copy to:
Michael J. Ioannou, Esq.
Ropers, Majeski, Kohn & Bentley
60 North First Street
San Jose, California 95110
Telephone: (408) 287-6262
Facsimile: (408) 297-6819
Any party may change its address or the individual(s) to whom notice is to be
given for purposes of this Section 9.9 by giving the other parties notice of the
new address or individual in the manner set forth above; provided that any such
notice of change of address or individual shall not be in effect until received.
9.10 Arbitration. For the period ending 12 months following the Closing
Date, or so long as there is deferred compensation held by the Escrow Agent
pursuant to the Escrow Agreement, the sole forum for the litigation of any
dispute arising under or in connection with this Agreement or any exhibit hereto
shall be by binding arbitration conducted by J.A.M.S/ENDISPUTE in San Francisco,
California by a person chosen by mutual agreement of the parties, and if the
parties fail to agree, chosen by J.A.M.S/ENDISPUTE. The parties agree that if
the amount in controversy exceeds $100,000, then the discovery procedures as
established by the Federal Rules of Civil Procedure shall be incorporated into
the J.A.M.S/ENDISPUTE applicable rules. The prevailing party in any such
proceeding shall be entitled to recover attorney's fees and costs incurred in
that proceeding.
* * * * *
20
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed under seal as of the date and year first above
written.
PALOMAR MEDICAL TECHNOLOGIES, INC.,
/s/ Sarah B. Reed By: Joseph P. Caruso
- ------------------------ ----------------------------------
Witness Treasurer and Chief Financial
Officer
NEXAR TECHNOLOGIES, INC.
/s/ Reginald F. Thors By: Albert J. Agbay
- ------------------------ ----------------------------------
Witness Chairman and
Chief Executive Officer
TECHNOVATION COMPUTER LABS, INC.
/s/ Michael J. Ioannou By: Babar I. Hamirani
- ------------------------- ----------------------------------
Witness President
/s/ Michael J. Ioannou Babar I. Hamirani
- ------------------------- -----------------------------------
Witness Babar I. Hamirani
21
Exhibit 1.0
Affiliates
Michelle Hamirani
Technovation Computer Labs, Inc.
Amerisel, Inc. (d/b/a Computer Universe)
22
EXHIBIT 2.5(A)
LIST OF TRADEMARKS, TRADEMARK APPLICATIONS,
TRADEMARK REGISTRATIONS, PATENTS AND PATENT
APPLICATIONS, COPYRIGHT APPLICATIONS AND COPYRIGHT REGISTRATIONS
o United States Patent Application Serial No. 08/409,317, filed on March 23,
1995, entitled "System Permitting the External Replacement of the CPU
and/or DRAM SIMMs Microchip Board."
EXHIBIT 2.5(B)
LIST OF TANGIBLE AND INTANGIBLE ASSETS
1. All documents regarding United States Patent Application Serial No.
08/409,317, filed on March 23, 1995, entitled "System Permitting the
External Replacement of the CPU and/or DRAM SIMMs Microchip Board"
("Patent Application").
2. Assignment of the Patent Application to Technovation Computer Labs, Inc.
(presently in Nexar's possession).
3. All documents regarding the additional patent application not yet filed as
referred to in Daniel Craddock's letter dated December 19, 1996, to Ronald
J. Kransdorf.
4. All documents relating to design work to be performed by GDA and/or HCL
(presently in Nexar's possession).
5. All nondisclosure agreements with GDA, Frog Design, Studio Red and Inotec.
6. All document not otherwise listed in this Exhibit relating to the subject
Technology, including designs, schematics and/or drawings (most, if not
all, are currently in Nexar's possession).
EXHIBIT 2.5(C)
LIST OF MATERIAL THIRD-PARTY PATENTS, TRADEMARKS,
COPYRIGHTS, KNOW-HOW, PROPRIETARY INFORMATION
None.
EXHIBIT 2.6
LIST OF AGREEMENTS AND ARRANGEMENTS
1. The License Agreement referred to on the first page of the Asset Purchase
and Settlement Agreement.
2. A Product Development Agreement with GDA.
3. Non-Disclosure Agreements with GDA, Frog Design, Studio Red and Inotec.
EXHIBIT 4.1
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR I. HAMIRANI
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Babar I. Hamirani ("Hamirani") and Technovation Computer Labs,
Inc. ("TCL") (hereinafter jointly referred to as the "Releasing Parties"),
hereby jointly and severally remise, release and forever discharge Palomar
Medical Technologies, Inc. and Nexar Technologies, Inc. (f/k/a Dynasys Systems
Corporation) and all of their respective subsidiaries, including without
limitation Intelesys Corporation (f/k/a Dynasys/Intelligent Systems
Corporation), and each of their respective officers, directors, employees and
agents, except Albert J. Agbay and Liaqat Y. Khan (hereinafter collectively
referred to as the "Released Parties") of and from all debts, demands, actions,
causes of action, suits, accounts, covenants, contracts, agreements, damages,
and any and all claims, obligations, demands and liabilities whatsoever of every
name and nature, both in LAW and in EQUITY, which any one or more of the
Releasing Parties now has or ever had from the beginning of the world to this
date against any one or more of the Released Parties, including, but without
limiting the generality of the foregoing, of and from any claim, obligation,
demand or liability arising out of (i) that certain Key Employee Agreement
entered into by and between Hamirani and Dynasys/Intelligent Systems Corporation
as of August 1, 1995; and (ii) that certain License Agreement entered into by
and between TCL and Dynasys Systems Corporation as of August 25, 1995.
Notwithstanding the generality of the foregoing, nothing herein shall release
any Released Party from any claim, obligation, demand or liability arising out
of that certain Asset Purchase and Settlement Agreement entered into as of
February 28, 1997 by and among the Releasing Parties and the Released Parties,
which agreement shall include all exhibits thereto.
The Releasing Parties understand and agree that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Parties.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Parties, the Releasing Parties
expressly acknowledge that this release is intended to include in its effect,
without limitation, all claims which they do not know or suspect to exist in
their favor at the time of execution hereof and that the settlement reflected in
this release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of ____________,
1997.
-----------------------------------------
Babar I. Hamirani
TECHNOVATION COMPUTER LABS, INC.
By:______________________________________
Babar I. Hamirani, President
EXHIBIT 4.2
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR I. HAMIRANI
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Palomar Medical Technologies, Inc. and Nexar Technologies, Inc.
(f/k/a Dynasys Systems Corporation) and all of their respective subsidiaries,
including without limitation Intelesys Corporation (f/k/a Dynasys/Intelligent
Systems Corporation) (hereinafter jointly referred to as the "Releasing
Parties"), hereby jointly and severally remise, release and forever discharge
Babar I. Hamirani ("Hamirani") and Technovation Computer Labs, Inc. ("TCL") and
its officers, directors, employees and agents (hereinafter collectively referred
to as the "Released Parties") of and from all debts, demands, actions, causes of
action, suits, accounts, covenants, contracts, agreements, damages, and any and
all claims, obligations, demands and liabilities whatsoever of every name and
nature, both in LAW and in EQUITY, which any one or more of the Releasing
Parties now has or ever had from the beginning of the world to this date against
any one or more of the Released Parties, including, but without limiting the
generality of the foregoing, of and from any claim, obligation, demand or
liability arising out of (i) that certain Key Employee Agreement entered into by
and between Hamirani and Dynasys/Intelligent Systems Corporation as of August 1,
1995; and (ii) that certain License Agreement entered into by and between TCL
and Dynasys Systems Corporation as of August 25, 1995. Notwithstanding the
generality of the foregoing, nothing herein shall release any Released Party
from any claim, obligation, demand or liability arising out of that certain
Asset Purchase and Settlement Agreement entered into as of February 28, 1997 by
and among the Releasing Parties and the Released Parties, which agreement shall
include all exhibits thereto.
The Releasing Parties understand and agree that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Parties.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Parties, the Releasing Parties
expressly acknowledge that this release is intended to include in its effect,
without limitation, all claims which they do not know or suspect to exist in
their favor at the time of execution hereof and that the settlement reflected in
this release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of ____________,
1997.
PALOMAR MEDICAL TECHNOLOGIES, INC.
By:______________________________________
Its:
hereunto duly authorized
NEXAR TECHNOLOGIES, INC.
By:______________________________________
Its:
hereunto duly authorized
EXHIBIT 4.3(A)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR I. HAMIRANI
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Amerisel, Inc. (d/b/a Computer Universe) (hereinafter referred to
as the "Releasing Party") hereby remises, releases and forever discharges Nexar
Technologies, Inc., its officers, directors, employees and agents, except Albert
J. Agbay and Liaqat Y. Khan (hereinafter collectively referred to as the
"Released Party") of and from all debts, demands, actions, causes of action,
suits, accounts, covenants, contracts, agreements, damages, and any and all
claims, demands, obligations and liabilities whatsoever of every name and
nature, both in LAW and in EQUITY, which the Releasing Party now has or ever had
from the beginning of the world to this date against the Released Party.
The Releasing Party understands and agrees that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Party.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Party, the Releasing Party
expressly acknowledges that this release is intended to include in its effect,
without limitation, all claims which it does not know or suspect to exist in its
favor at the time of execution hereof and that the settlement reflected in this
release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of ___________,
1997.
AMERISEL, INC.
By:______________________________________
Khurum Hamirani, President
EXHIBIT 4.3(B)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR I. HAMIRANI
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Nexar Technologies, Inc. (hereinafter referred to as the
"Releasing Party") hereby remises, releases and forever discharges Amerisel,
Inc. (d/b/a Computer Universe), its officers, directors, employees and agents
(hereinafter collectively referred to as the "Released Party") of and from all
debts, demands, actions, causes of action, suits, accounts, covenants,
contracts, agreements, damages, and any and all claims, demands, obligations and
liabilities whatsoever of every name and nature, both in LAW and in EQUITY,
which the Releasing Party now has or ever had from the beginning of the world to
this date against the Released Party.
The Releasing Party understands and agrees that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Party.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Party, the Releasing Party
expressly acknowledges that this release is intended to include in its effect,
without limitation, all claims which it does not know or suspect to exist in its
favor at the time of execution hereof and that the settlement reflected in this
release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of
________________, 1997.
NEXAR TECHNOLOGIES, INC.
By:______________________________________
Its:
hereunto duly authorized
EXHIBIT 6.1(A)(I)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR HAMIRANI
BILL OF SALE
KNOW BY THESE PRESENTS: That, for valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Technovation Computer Labs,
Inc., a Nevada corporation ("SELLER"), hereby sells, conveys, transfers, assigns
and delivers to Palomar Medical Technologies, Inc., a Delaware corporation
("BUYER"), to have and hold forever for its own use and benefit, all of SELLER's
right, title and interest in and to the "Purchased Assets" as defined in the
Asset Purchase and Settlement Agreement dated as of February 28, 1997 (the
"Purchase Agreement") by and among BUYER, SELLER, Nexar Technologies, Inc. and
Babar I. Hamirani, free and clear of any lien, encumbrance, claim or interest
whatsoever.
SELLER hereby constitutes and appoints BUYER, its successors and
assigns, the true and lawful attorneys of SELLER, with full power of
substitution, to demand and receive from time to time any and all of the
Purchased Assets, to defend or compromise any and all actions, suits or
proceedings in respect of any of the Purchased Assets, and to collect, for the
account of BUYER, all receivables and proceeds of any character included in the
Purchased Assets. SELLER hereby declares that said appointment made and powers
granted are coupled with an interest and are and shall be perpetual and
irrevocable and shall not be terminated by any act of SELLER or by the
occurrence of any other event or in any other manner or for any other reason.
This Bill of Sale shall be binding upon SELLER and its successors and
assigns and inure to the benefit of BUYER and its successors and assigns.
IN WITNESS WHEREOF, the Bill of Sale has been duly executed and sealed
on behalf of SELLER as of ____________, 1997.
TECHNOVATION COMPUTER LABS, INC.
By: _____________________________________
Babar I. Hamirani, President
Witnessed By:
- -----------------------------------------
EXHIBIT 6.1(A)(I)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR HAMIRANI
BILL OF SALE
KNOW BY THESE PRESENTS: That, for valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Babar I. Hamirani ("SELLER"),
hereby sells, conveys, transfers, assigns and delivers to Palomar Medical
Technologies, Inc., a Delaware corporation ("BUYER"), to have and hold forever
for its own use and benefit, all of SELLER's right, title and interest in and to
the "Purchased Assets" as defined in the Asset Purchase and Settlement Agreement
dated as of February 28, 1997 (the "Purchase Agreement") by and among BUYER,
SELLER, Technovation Computer Labs, Inc and Nexar Technologies, Inc., free and
clear of any lien, encumbrance, claim or interest whatsoever.
SELLER hereby constitutes and appoints BUYER, its successors and
assigns, the true and lawful attorneys of SELLER, with full power of
substitution, to demand and receive from time to time any and all of the
Purchased Assets, to defend or compromise any and all actions, suits or
proceedings in respect of any of the Purchased Assets, and to collect, for the
account of BUYER, all receivables and proceeds of any character included in the
Purchased Assets. SELLER hereby declares that said appointment made and powers
granted are coupled with an interest and are and shall be perpetual and
irrevocable and shall not be terminated by any act of SELLER or by the
occurrence of any other event or in any other manner or for any other reason.
This Bill of Sale shall be binding upon SELLER and its successors and
assigns and inure to the benefit of BUYER and its successors and assigns.
IN WITNESS WHEREOF, the Bill of Sale has been duly executed and sealed
on behalf of SELLER as of _____________, 1997.
-----------------------------------------
Babar I. Hamirani
Witnessed By:
- -----------------------------------------
EXHIBIT 6.1(A)(II)
ASSIGNMENT OF TECHNOLOGY
This Assignment is made as of the earlier of April 30, 1997 or the
closing of the initial public offering of the common stock of Nexar
Technologies, Inc., a Delaware corporation which is a majority owned subsidiary
of Palomar ("Nexar") (the "Closing Date") by and among Palomar Medical
Technologies, Inc., a Delaware corporation ("Palomar"), Nexar, Technovation
Computer Labs, Inc., a Nevada corporation ("Seller"), and Babar I. Hamirani
("Hamirani").
WHEREAS, pursuant to the Asset Purchase and Settlement Agreement
effective among the parties as of February 28, 1997, Seller and Hamirani wish to
transfer and Palomar wishes to acquire the technology, proprietary information
and intellectual property described below.
NOW, THEREFORE, for one dollar ($1.00) and other valuable consideration
the receipt of which they hereby acknowledge, Seller and Hamirani hereby assign
to Palomar, its successors and assigns, all right, title and interest in the
following technology, proprietary information, and intellectual property
(collectively, the "Technology"):
(a) ISPA and XPA. All right, title and interest in any invention,
modification, or advance (whether or not patentable) created,
developed, realized, acquired, owned, conceived or made by or on behalf
of Seller or Hamirani (independently or with others), or in which
Seller or Hamirani have a legal or equitable right of ownership,
through the Closing Date, pertaining to technologies intended to
facilitate the installation, replacement, and/or upgrading of personal
computer components (including, by way of non-limiting example,
technologies sometimes referred to as "Inverted Socket Processor
Architecture," "ISPA," "ISPA 1," "ISPA 2," "ISPA 3," "Cross Processor
Architecture," and/or "XPA");
(b) Patents and Applications. All right, title and interest in all
patents and patent applications owned by, acquired by, issued to,
naming, filed by or on behalf of, Seller or Hamirani, or in which
Seller or Hamirani have a legal or equitable right of ownership,
through the Closing Date, disclosing or claiming any invention,
modification, or advance referred to in Section (a); any further
applications claiming a right of priority from such patents or patent
applications (including, without limitation, any divisional,
continuation, continuation-in-part, or convention applications); and
any patents issuing on any such applications; any reissue,
reexamination or extension of any such patents; such patents and
applications including, by way of non-limiting example, United States
Patent Application Serial No. 08/409,317, filed on 3/23/95, entitled
"System Permitting the External Replacement of the CPU and/or DRAM
SIMMs Microchip Board" (the "Patent Application") and the "additional"
patent application (not yet filed) referred to in the letter dated
December 19, 1996, from Hamirani's counsel to Mr. Ronald J. Kransdorf
(the "Additional Patent Application");
(c) Copyright. All right, title and interest, if any should exist, in
any works of authorship, copyright applications or copyright
registrations created by, owned by, acquired by, issued to, naming,
filed by or on behalf of, Seller or Hamirani, or in which
ASSIGNMENT OF TECHNOLOGY
Page 2
- --------------------------------------------------------------------------------
Seller or Hamirani have a legal or equitable right of ownership,
through the Closing Date, relating to any invention, modification,
advance, technology, patent, or application referred to in Sections (a)
- (b) (as used herein and throughout this agreement, "copyright"
includes copyright, moral rights and semiconductor mask work rights);
(d) Trademark. All right, title and interest, if any should exist, in
any trademarks, trademark applications or trademark registrations,
created by, owned by, acquired by, issued to, naming, filed by or on
behalf of, Seller or Hamirani, or in which Seller or Hamirani have a
legal or equitable right of ownership, through the Closing Date, for
use in connection with goods or services relating to any invention,
modification, advance, technology, patent, or application referred to
in Sections (a) - (b) (including, by way of non-limiting example,
actual or potential trademarks such as "Inverted Socket Processor
Architecture," "ISPA," "ISPA 1," "ISPA 2," "ISPA 3," "Cross Processor
Architecture," and/or "XPA"), as well as the goodwill of Seller's or
Hamirani's businesses (or that part of the such goodwill) connected
with the use of and symbolized by such trademarks; in the case of
trademarks and trademark applications for which there is an intent to
use, Seller and Hamirani acknowledge that assignment of such trademarks
and trademark applications is being made concurrent with the assignment
of such businesses or portions thereof to which those trademarks and
trademark applications pertain, which businesses are ongoing and
existing; the term "trademark" as used herein and throughout this
agreement refers to both trademarks and service marks;
(e) Trade Secrets. All right, title and interest, if any should exist,
in any trade secrets and know-how developed, realized, acquired, owned,
or made by or on behalf of Seller or Hamirani (independently or with
others), or in which Seller or Hamirani have a legal or equitable right
of ownership, through the Closing Date, relating to any invention,
modification, advance, technology, patent, or application referred to
in Sections (a) - (b);
(f) Documentation. All right, title and interest, if any should exist,
to any documentation (in whatever form and stored on whatever medium)
created by, owned by, acquired by, issued to, filed by or on behalf of,
Seller or Hamirani, or in which Seller or Hamirani have a legal or
equitable right of ownership, through the Closing Date, relating to any
invention, modification, advance, technology, patent, or application
referred to in Sections (a) - (b); such documentation including,
without limitation, all design and engineering drawings and
specifications (the "Documentation");
(g) Prototypes. All right, title and interest, if any should exist, to
any prototypes, mock-ups, simulations, or other implementations
(whether or not completed or functional) created, developed, realized,
acquired, owned, or made by or on behalf of Seller or Hamirani
(independently or with others), or in which Seller or Hamirani have a
legal or equitable right of ownership, through the Closing Date,
relating to any invention, modification, advance, technology, patent,
or application referred to in Sections (a) - (b); and
(h) Other Seller Assets. All right, title and interest in the
technology, proprietary information and/or intellectual property
licensed to Nexar under the License Agreement
ASSIGNMENT OF TECHNOLOGY
Page 3
- --------------------------------------------------------------------------------
between the parties dated August 25, 1995 (the "License Agreement"),
including without limitation that constituting the "Licensed Technology
and Know-How", "Invention", "Technical Information", Documentation",
"Licensed Patent Rights", and "Improvement";
As used in Section (a) - (h), the terms patent, patent application,
trademark, trademark application, trademark registration, copyright, copyright
application, copyright registration, and the like, refer to the corresponding
domestic, international, regional and foreign intellectual property rights, if
any should exist. Thus, by way of non-limiting example, the references in
Section (b) to patents and patent application refers to domestic patents and
patent applications, international patents and patent applications, regional
patents and patent applications, and foreign patents and patent applications.
The assignment of all right, title and interest in any invention,
modification, or advance referred to in Section (a) includes by way of
non-limiting example the right to file patent applications and obtain patents,
utility models, industrial models and designs for any such invention,
modification, or advance in the name of Palomar, its successors, assigns or
nominees, throughout the world, including all rights of priority, all rights to
publish cautionary notices reserving ownership of such invention, modification,
or advance and all rights to register said invention, modification, or advance
in appropriate registries.
Seller and Hamirani hereby authorize and request any official whose
duty is to issue the patents referred to in Section (b) to issue such any and
all such patents to Palomar, its successors, assigns or nominees.
The assignment of all right, title and interest in any works or
authorship, copyright applications or copyright registrations referred to in
Section (c) includes by way of non-limiting example the right to secure such
copyright registrations therein or any resulting registrations in the name of
Palomar, its successors, assigns or nominees, as claimant and the right to
secure renewals, reissues, and extensions of any such copyright or copyright
registration in the United States of America or any foreign country.
Schedule I, attached hereto, sets forth a true and complete list of all
trademarks, trademark applications, trademark registrations, patents and patent
applications, copyright applications, copyright registrations, included in the
Technology, and specifies (i) for each such trademark application, trademark
registration, patent application, patent, copyright application, and copyright
registration, the jurisdiction in which it has been filed and/or issued, the
date of filing, the application number, and the registration number (where
applicable), and (ii) for each such trademark, the identity of the mark, its
dates of first use anywhere and first use in interstate commerce, the goods
and/or services with which it is used, and the jurisdictions in which it has
been used.
Seller and Hamirani each hereby covenant that they will (i) execute,
acknowledge and deliver any further assignments, conveyances and other
assurances, documents and instruments of transfer reasonably requested by
Palomar and/or Nexar from time to time and shall take any other action
consistent with the terms of this Assignment that may be reasonably requested by
ASSIGNMENT OF TECHNOLOGY
Page 4
- --------------------------------------------------------------------------------
Palomar and/or Nexar for the purpose of selling, transferring, assigning,
granting, conveying, delivering or confirming to Palomar and/or Nexar as of the
date of the Closing (or such other date thereafter as the parties shall deem
appropriate) any or all of the Technology; (ii) provide any further facts and
documents as may be known and accessible to Seller and/or Hamirani requested by
Palomar, its successors, assignees or nominees relating to the Technology, and
testify (at Palomar's and/or Nexar's (and each of their successors', assignees'
or nominees') cost) as to the same in any interference, opposition, litigation
or proceeding related thereto, and (iii) execute, acknowledge and deliver any
further instruments or affidavits reasonably requested by Palomar, its
successors, assignees or nominees from time to time to apply for, obtain
maintain, and enforce patents, copyrights, trade secrets and other proprietary
rights in the Technology assigned hereunder or to otherwise carry out the
purposes hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed under seal as of the date and year first above
written.
TECHNOVATION COMPUTER LABS, INC.
By:_______________________________________
Babar I. Hamirani, President
________________________________________
Babar I. Hamirani
________________________________________________________________________________
STATE OF _______________________
SS.
COUNTY OF _____________________
Before me this ________day of _________, 19____, personally appeared
Babar I. Hamirani, known to me to be the person whose name is subscribed in the
foregoing Assignment and acknowledged that he executed the same as his free act
and deed for the purposes therein contained
------------------------------
NOTARY PUBLIC
[Notary's Seal Here] My Commission Expires:
________________________________________________________________________________
EXHIBIT 10.24
ASSET PURCHASE AGREEMENT BETWEEN
PALOMAR MEDICAL TECHNOLOGIES, INC.
AND NEXAR TECHNOLOGIES, INC.
This Agreement dated as of the 28th day of February, 1997 is by and
between Nexar Technologies, Inc. ("Nexar") and Palomar Medical Technologies,
Inc. ("Palomar").
Reference is made to the Asset Purchase and Settlement Agreement of
even date herewith by and among Nexar, Palomar, Babar I. Hamirani, and
Technovation Computer Labs, Inc. (the "Asset Purchase and Settlement
Agreement"), pursuant to which, among other things, Palomar shall acquire on
behalf of Nexar, all right, title and interest to the Purchased Assets (as
defined in the Asset Purchase and Settlement Agreement). The purpose of this
Agreement is to set forth the terms and conditions for transfer of the Purchased
Assets to Nexar and payment therefor to Palomar. Accordingly, the parties hereby
agree as follows:
1. Immediately following Palomar's receipt of Bills of Sale and such
other transfer and assignment documents as are delivered to Palomar pursuant to
the Asset Purchase and Settlement Agreement at the closing thereof, Palomar
shall execute and deliver substantially similar transfer and assignment
documents to Nexar fully conveying all right, title and interest, free and clear
of liens and claims, in and to the Purchased Assets to Nexar.
2. If the transfers described in Section 1 above occur after the
consummation of the initial public offering of the common stock of Nexar (the
"IPO"), Nexar shall pay Palomar the sum of $2,750,000 in cash for its purchase
of the Purchased Assets. If such transfers occur prior to the IPO, Nexar shall
instead deliver to Palomar a promissory note in the principal amount of
$2,750,000 and bearing variable interest at the "prime rate" (as published from
time to time in the Wall Street Journal (currently 8.25%) per annum, all such
amounts of principal and interest earned thereon to be payable not earlier than
the earlier of 5 years from the date of such transfers or the consummation of
the IPO, provided that interest shall be payable on each anniversary date of the
execution and deliver of such note if the IPO has not closed by each such
anniversary date until principal thereunder is paid in full,.
3. Palomar agrees that at Nexar's request it will subordinate its right
to payment of principal and interest on the promissory note described in Section
2 to the extent required in order for Nexar to secure, if reasonably necessary,
a commitment from a first priority senior secured commercial lender.
[Signatures appear on the following page.]
Executed as a sealed instrument as of the date first above written.
PALOMAR MEDICAL TECHNOLOGIES, INC.
By: Steven Georgiev
-------------------------------
Chairman and CEO
NEXAR TECHNOLOGIES, INC.
By: Albert J. Agbay
-------------------------------
President
2
EXHIBIT 11.1
NEXAR TECHNOLOGIES, INC. AND SUBSIDIARY
STATEMENT RE: EARNINGS PER SHARE
<TABLE>
<CAPTION>
PERIOD FROM
INCEPTION
(MARCH 7, 1995) TO YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1996
----------------- -----------------
<S> <C> <C>
Net loss $(2,261,434) $(7,510,139)
=========== ===========
Weighted average common shares outstanding 4,800,000 4,800,000
Common stock equivalents issued within twelve months of initial public
offering 2,921,838 2,921,838
Pro forma conversion of amounts due to related parties 700,000 700,000
------- -------
Weighted average number of common and common equivalent shares
outstanding 8,421,838 8,421,838
========= =========
Pro forma net loss per share $ (0.27) $ (0.89)
=========== ===========
</TABLE>
- ----------
Pursuant to Securities and Exchange Commission Staff Accounting Bulletin No. 83,
stock, stock options and stock warrants issued at prices below the initial
public offering price during the 12-month period immediately preceding the
initial filing date of the Company's Registration Statement of its initial
public offering have been included as outstanding for all periods presented. The
dilutive effect of the common stock equivalents was computed in accordance with
the treasury-stock method.
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our firm) included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
February 28, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-Mos
<FISCAL-YEAR-END> Dec-31-1996
<PERIOD-START> Jan-01-1996
<PERIOD-END> Dec-31-1996
<CASH> 2,738,983
<SECURITIES> 0
<RECEIVABLES> 8,350,960
<ALLOWANCES> 603,953
<INVENTORY> 6,112,821
<CURRENT-ASSETS> 16,966,851
<PP&E> 290,097
<DEPRECIATION> 35,285
<TOTAL-ASSETS> 19,589,121
<CURRENT-LIABILITIES> 5,542,296
<BONDS> 0
0
0
<COMMON> 48,000
<OTHER-SE> (47,600)
<TOTAL-LIABILITY-AND-EQUITY> 19,589,121
<SALES> 18,695,364
<TOTAL-REVENUES> 18,695,364
<CGS> 16,392,483
<TOTAL-COSTS> 16,392,483
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (7,510,139)
<INCOME-TAX> 0
<INCOME-CONTINUING> (7,510,139)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (7,510,139)
<EPS-PRIMARY> (0.89)
<EPS-DILUTED> (0.89)
</TABLE>
