SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
ANNUAL REPORT
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
Commission file No. 0-11447
DATAKEY, INC.
(Name of small business issuer in its charter)
MINNESOTA 41-1291472
(State of incorporation or organization) (I.R.S. Employer Identification No.)
407 West Travelers Trail, Burnsville, Minnesota 55337
(Address of principal executive offices)
Issuer's telephone number, including area code: (612) 890-6850
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.05 per share (Title of Class)
Check whether the Issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the Issuer was required to file such
reports) and (2) has been subject to such filing requirements for the last 90
days. YES X NO ____
Check if there is no disclosure of delinquent filers pursuant to Item 405 of
Regulation S-B contained herein and no disclosure will be contained, to the best
of Issuer's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-KSB or any amendment to
this Form 10-KSB. [ X ]
Issuer's revenues for its most recent fiscal year: $5,866,035.
The aggregate market value of the voting stock (Common Stock) held by
non-affiliates was approximately $105,041,148 based upon the closing sale price
of the Issuer's Common Stock on March 16, 2000.
As of March 16, 2000, there were 8,007,879 shares of the Issuer's Common Stock
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Part II of this Annual Report on Form 10-KSB incorporates by reference
information (to the extent specific sections are referred to herein) from the
Issuer's Annual Report to Shareholders for the year ended December 31, 1999 (the
"1999 Annual Report"). Portions of the Company's definitive Proxy Statement for
its Annual Meeting of Shareholders to be held on May 31, 2000 are incorporated
by reference pursuant to Rule 12b-23 into Items 9, 10 and 11 of Part III.
Transitional Small Business Disclosure Format (check one) YES [ ] NO [ X ]
<PAGE>
PART I
ITEM 1. DESCRIPTION OF BUSINESS
General
Datakey, Inc. (the "Company") was incorporated under the laws of the
State of Minnesota in 1976 under the name "The Systems Group, Inc." In 1980, the
Company changed its name to Datakey, Inc. The Company provides product,
subsystem and system solutions to record, store and transmit electronic
information. Datakey also manufactures and sells products and systems directed
to the information security market which enable user identification and
authentication, secure data exchange and information validation. It also
provides OEM products, consisting of proprietary memory keys, cards and other
custom-shaped tokens that serve as a convenient way to carry electronic
information and are packaged to survive in portable environments.
The Company's first portable memory products, consisting of an
electronic key and support electronics, were introduced in 1981 for applications
requiring convenient storage, transportation and management of information. The
Company's current products utilize semiconductor technology to provide a storage
device more versatile than conventional portable information products such as
keys, badges and magnetic stripe cards. The Company's current product line of
portable memory devices and associated interface products provide up to
32,768,000 bits of data storage which are used in a wide range of applications
including communications security, computer security, facility security, vending
and process control.
Each of the Company's portable memory systems consist of one or more
portable memory devices, access devices and, for certain models, interface
modules containing microprocessors. These components, together with the user's
processor-based equipment, function as an integrated system allowing
instantaneous processing of personalized data carried within a portable data
carrier. Through the incorporation of advanced semiconductor memory technology,
the Company's portable memory device is able to store and carry substantial
amounts of information. When the memory device is used in conjunction with the
other components of the Company's system, information can be selectively
altered, added to or erased, as required, to effectively and reliably manage or
control a particular activity or transaction.
In 1997, the Company introduced information security systems that
utilize smart cards or smart keys and are designed to provide advanced
information security utilizing digital signatures and encryption. These systems
incorporate hardware and software to provide a higher level of security than is
obtainable with current software only solutions.
Current Products and Products Under Development
Electronic Products (EP)
Portable Memory Devices. Portable memory devices are electronic devices
which store information. They have a plastic exterior, are in the forms of keys,
cards, or custom shaped tokens and encapsulate semiconductor memory. Certain
devices have been designed to store information which may be retrieved, altered,
erased or updated; while other devices have been designed to store one-time
programmable information which may be retrieved but not altered or updated. The
<PAGE>
storage capacities of the Company's portable memory devices range from 1,024
bits to 32,768,000 bits. The portable memory devices are priced generally
between $2 and $100 per unit, depending on capacities and quantities purchased.
Access Device. The access device is the element into which a portable
memory device is inserted to provide the interconnection between the portable
memory device and the electronic interface circuitry or the host processor-based
equipment. It is through this physical interconnection that the data contained
in the portable memory device is transmitted to the electronic interface or to
the host interface. Several models of the access device have been developed to
handle the Company's different portable memory devices. The access devices are
priced generally between $15 and $120 per unit, depending on models and
quantities purchased.
Interface. The interface is the electronics control module between the
access device and a customer's processor-based equipment. This module is used
with the Company's serial communication key and contains all the necessary
electronics to control information within the key and to coordinate the
information requests of the host equipment. This communication process is
managed by the system's firmware, which is a software program existing within
the interface. For some applications, this firmware structures, secures and
verifies the information within the portable device, and may allow separate
groups or files of data to reside in a single portable device and be secure from
access except by equipment authorized to manage a particular group or file of
data. The interface is priced between $70 and $120 per unit, depending on models
and quantities purchased.
System Level Products. During 1999, the EP business began to develop
and market system level products that contain application software and utilize
the Company's access devices. If sales of such products succeed as the Company
expects, the Company expects such sales to represent an increasing percentage of
EP revenue in 2000 and later years.
Information Security Solutions (ISS)
For the past four years, Datakey has been developing and marketing
"token-based" (smart card or smart key) products that provide advanced
information security solutions to the problems of organizations, worldwide. The
Company introduced the first release of these token-based information security
systems in September 1997 and additional versions were introduced in 1998 and
1999. The Company expects to offer additions and enhancements to its current
products and to launch new versions of SignaSURE CIP in 2000. The launch and
success of such products is dependent on further successful development efforts
and market acceptance, along with other risks.
See "Forward Looking Statements."
SignaSURE CIP. Password-based software programs that implement
public-key cryptography technology for information security offer easier
operation and improved data integrity over symmetric cryptography software.
Password-based security, however, is insufficient for networks with connections,
such as the Internet, outside of the organization. The Company's SignaSURE CIP
(Cryptographic Interface Provider) is designed to solve this problem, allowing
the Internet to be used safely for electronic commerce.
SignaSURE CIP allows users and value-added resellers to upgrade
software-only systems to token-based information security and gain the benefit
of secure Internet operation. Token-based information security implements a
two-level security scheme--something that is owned (a hardware token) and
something that is known (a password to activate the token)--for a much stronger
level of security than password-based software solutions. SignaSURE CIP provides
token add-ons to Cryptoki (PKCS-11) standard information security interface
applications and for applications that incorporate Microsoft's CryptoAPI (API).
These products offer "load, plug and play" convenience for strong information
security.
<PAGE>
SignaSURE CIP products include a user-unique smart card or smart key
that holds the critical information to perform the cryptographic functions
necessary for information privacy and data integrity, a companion reader/writer
that plugs into a computer's serial port, PCMCIA port or floppy disk drive, and
software which is loaded into the workstation and interfaces to the application
program. The Company introduced, in September 1997, a version of SignaSURE CIP
that utilizes the standard PKCS #11 (Cryptoki) Interface and then in January
1998, it released a version that utilizes either the PKCS#11 interface or
Microsoft's CryptoAPI.
SignaSURE DTK (Developers Tool Kit). SignaSURE DTK is a turnkey package
to allow software developers to integrate Datakey hardware tokens and a public
key Infrastructure (PKI) into their applications. DTK includes up to three main
components: hardware cryptographic tokens, interface and integration software
and security infrastructure products. DTK is available in several configurations
ranging from a token with a reader/writer and integration software, to the full
PKI configuration that issues and manages hardware tokens and digital
certificates. This product flexibility allows user-developers who utilize
SignaSURE DTK to integrate just what is needed for their application. Datakey
began selling SignaSURE DTK in 1997.
SignaSURE ESS (Enterprise Security Suite). Many organizations have made
the transition from large mainframe systems to more flexible, but much less
secure, client-server networks and intranets. Client-server networks and
intranets allow digital information to reside on networks, rather than at the
desktop so many authorized users can access the same information. Authorized
users may include company employees, suppliers and customers who can be
connected to the network via an extranet, or located remotely from the
enterprise. SignaSURE ESS offers a solution to manage a network, intranet and
Internet computing structure to allow only authorized users access to
information. Information can then be transmitted securely and stored safely on
both private and public networks without privacy and data integrity concerns.
SignaSURE ESS represents a family of modules that provide e-mail, browsing, file
encryption and other additional planned security functions in an integrated
"end-to-end" data security system that assures secure network access,
confidential information exchange, integrity of data and transaction
non-repudiation. Secure, personalized smart cards or keys are employed within a
public key infrastructure to provide a higher level of information security than
is provided by software-only solutions. Security functions are integrated into
applications like Microsoft Office(TM), thereby providing seamless security
operation to the user. SignaSURE ESS will operate over the Internet, and wide
and local area networks enabling secure information exchange for all users,
whether local or remote to the enterprise. SignaSURE ESS includes a
user-personalized smart card or smart key and companion reader/writer for
workstation or laptop to perform the functions necessary for information privacy
and data integrity. It also incorporates client software that manages secure
information and interfaces to applications, and server-based, enterprise
infrastructure hardware and software that initialize SignaSURE ESS and
continuously ensure that all users are authorized. ESS also includes an optional
secure stand-alone workstation to initialize cards and provide backup of private
keys for recovery purposes. Several ESS modules are currently in beta testing.
We plan to release SignaSURE ESS and start development of additional security
modules in 2000.
SignaSURE PrivateAccess (SPA). Security concerns limit many companies
from making private information available on their web sites. Threats from
hackers and other unauthorized users stop many businesses from opening the lines
of digital communication between themselves and their business partners.
SignaSURE PrivateAccess provides a secure solution, using SSL technology and
Datakey's smart cards.
PrivateAccess enables a completely secure extranet environment for
remote users to interact with a company through the World Wide Web. It provides
secure, real-time access to any special information available on a company's web
site. Smart cards allow for strong user authentication and guard against
<PAGE>
password guessing, unauthorized users, sniffing attacks and other hacking
techniques to offer the highest security available for online business
information.
PrivateAccess is pre-configured and pre-installed, which the Company
believes distinguishes it as the first turnkey extranet solution using smart
card based security. It comes complete with the necessary hardware, server
software, smart cards/readers and client software to provide a total extranet
solution - all available in one package. SignaSURE PrivateAccess is currently in
beta testing and the Company intends to release it to production in the third
quarter of 2000.
The following chart shows Datakey's SignaSURE products:
SignaSURE Product
- ------------ ------------------------ ----- ----- ----- -----
Attribute CIP DTK ESS SPA
- ------------ ------------------------ ----- ----- ----- -----
Customer Organizational End-User x x x
------------------------ ----- ----- ----- -----
Software Developer x
- ------------ ------------------------ ----- ----- ----- -----
System Type Integrated Solution x x
------------------------ ----- ----- ----- -----
Add-on Subsystem x
------------------------ ----- ----- ----- -----
Component x
- ------------ ------------------------ ----- ----- ----- -----
Application Information Security x x x
------------------------ ----- ----- ----- -----
Token Integration x x
- ------------ ------------------------ ----- ----- ----- -----
Hardware Datakey Smart Token x x x x
------------------------ ----- ----- ----- -----
Datakey Reader/Writer x x x x
- ------------ ------------------------ ----- ----- ----- -----
Software Security Solution x x
------------------------ ----- ----- ----- -----
Token Interface x x
- ------------ ------------------------ ----- ----- ----- -----
Research and Development
During 1998 and 1999, the Company continued the development of portable
memory devices to expand its line of standard products as well as to introduce
solution-oriented products complete with application software. The Company also
continued its development of token-based information security products.
As the need for computer security products continues to grow, the
Company has been expending significant effort into development and improvement
of token-based computer information security systems. The Company's SignaSURE
line of information security products, which were initially released for sale
during 1997, are designed to provide encryption and digital signatures required
for electronically generated documents on computer networks.
The technology involved in information security systems is undergoing
rapid expansion and advancement which could result in the development of new
products and systems which may make the Company's present information security
products obsolete. The initial development effort for the Company's information
security products was completed in 1997 but the Company must continue to improve
its present information security products in order to remain competitive.
<PAGE>
In 1999 and 1998, research and development expenses were $2,282,000 and
$1,673,000, respectively. The Company expects that research and development
expenses in 2000 will exceed $2,500,000.
Manufacturing
The Company's in-house manufacturing capabilities include
microelectronic assembly, plastic injection molding, automated surface mount
assembly, and general electronic assembly. The Company also utilizes independent
subcontractors from time to time to perform certain manufacturing functions. The
Company provides a 90-day warranty on domestic sales, a 180-day warranty on
sales to its international distributors to cover the longer shelf life of the
Company's products, and a 180-day warranty on sales to the government.
In an effort to more efficiently produce products, to reduce product
costs, and to increase its manufacturing flexibility, the Company intends to
continue to improve certain manufacturing processes and add capital equipment to
its manufacturing operations. While the Company believes that these steps will
provide a greater level of control over, and flexibility in, its manufacturing
processes, there are no assurances that the Company's ability to produce
products and to meet required delivery schedules will be sufficiently improved
to meet the demands created by increased sales and more complex manufacturing
processes.
Sources of Supply
The Company purchases a microprocessor, with its proprietary operating
system masked into the chip, from a single source supplier. The Company intends
to continue purchasing microprocessors from this supplier during 2000 but will
continue to evaluate alternative sources of supply.
Due to the unique nature of these cryptographic microprocessors, there
are currently a limited number of alternative sources of supply and, due to
different operating systems and other characteristics, one supplier's
microprocessors are not easily interchanged with another. Should the present
source of supply become inadequate or inferior to other offerings in the future
or should it experience unforeseen issues, the Company will be required to incur
a significant cost and possibly experience a gap in supply to switch to a new
supplier.
The Company has several qualified sources from which to purchase
printed circuit boards and electronic components for most of its standard
portable memory devices. The components for the Company's products are, in
general, available from multiple suppliers. Many of the plastic components are
molded on the Company's in-house molding equipment or suppliers' molding
equipment using Company-owned tooling.
The Company purchases integrated circuits primarily through nationwide
multivendor distributors. If, for any reason, the Company would have to cancel
or reduce a particular integrated circuit order, it might thereafter have to pay
a higher price for the integrated circuits. Since general economic conditions
have an effect on the supply and cost of integrated circuits, there is no
guarantee that the Company will be able to obtain adequate quantities of
integrated circuits to meet all of its production needs during periods of short
supply.
<PAGE>
Significant Customer
The Company sells its electronic products to a number of commercial
original equipment manufacturers and other customers, including governmental
entities. At this time, the Company is not dependent on any one customer or few
customers, except for the United States government, the loss of which would have
a material adverse effect on its business.
Marketing
General. While there appears to be a broad range of applications and
potential customers for portable memory devices, no single application group has
evidenced strong, long-term growth potential. The diversity of potential
applications has made it difficult for the Company to focus its limited
marketing resources. In 1998, sales to EP customers decreased to $5,241,000, and
in 1999 they decreased to $4,550,000. As sales of the new system-level products
come on line, the Company believes that EP sales may increase in 2000.
ISS products for the information security marketplace were introduced
in 1997 and resulted in revenue of $629,000 during 1998 and $1,316,000 during
1999. In 2000, the Company expects revenue from these products to increase
significantly as additional pilot programs are commenced, certain customers
convert into production mode and the Company signs additional licensing
agreements. As with any new product line, revenue will depend on customer
acceptance, the extent of which is difficult to assess at this time.
Markets for Datakey Products. Datakey markets and sells its EP and ISS
products through a combination of direct sales representatives, dealers,
distributors and agents who are distinctly focused on selling either the EP
products or the ISS products but not both. In addition, both business units have
a number of business relationships and alliances with companies that integrate
Datakey's products into their own product offerings or act as a referral source
and/or reseller.
Sales in the United States are generally conducted through direct sales
representatives. International sales are generally conducted through
distributors or agents. The Company currently has a number of distributors in
Europe, Asia, Australia, New Zealand, and South America and plans to add more
international distributors as appropriate to serve those markets. In 1999 and
1998, sales to domestic customers and the corresponding percentage of total
revenue, were approximately $4,216,000 (72%) and $4,279,000 (73%), respectively.
Sales to international customers, and the corresponding percentage of total
revenue, were approximately $1,630,000 (28%) and $1,591,000 (27%), respectively.
Backlog
As of March 3, 2000, the Company had an order backlog totaling
approximately $2,015,000. Although the orders generally contain scheduled
shipment dates, they may be accelerated, delayed or canceled at the customer's
request. The Company does not believe that the current backlog is necessarily
indicative of future backlog levels.
Competition
Electronic Products. The Company's primary competition for electronic
products sold to original equipment manufacturers is presently, and is expected
to remain, conventional portable information systems, such as keys and cards,
and more advanced portable information systems including those in the familiar
credit card format, such as "smart cards," Personal Computer Memory Card
<PAGE>
Industry Association (PCMCIA) cards, magnetic stripe cards, bar-code cards and
laser technology cards. The Company's products, when used as a portable data
base, may also compete with centralized data base systems. Many of the
manufacturers of these portable information devices and systems are large,
well-established companies.
A number of European and Japanese firms continue to develop and refine
the smart card technologies. Some of these companies have established branch
offices in the United States to explore the United States market. To date, the
smart card has been used primarily in Europe, where it has been implemented
extensively in prepaid telephone systems and more recently in loyalty programs
and various cashless vending applications. In the United States, smart cards are
currently being used mainly in field trial environments. Although the Company
does not have complete information about the status of these trials, the Company
believes that, in time, the smart card will be successfully developed and could
become a competitor, especially in those markets which have a history of using a
card or a preference for card-type devices.
Memory cards, such as PCMCIA standard cards, are functionally
equivalent to the Company's portable memory devices in that they utilize
semiconductor memory in card-shaped devices made of plastic. Memory cards
generally have larger memory capacities than the devices currently offered by
the Company and historically incorporated volatile, battery-backed memory
elements. More recently, nonvolatile (principally "Flash Memory") memory
elements which do not require battery backup have become more prominent. They
are used in such applications as laser printer fonts, instrumentation,
electronic lettering machines and fax/modems, and are also used as replacements
or "add ons" to diskettes and hard drives for data storage in certain desktop,
notebook and smaller portable computers.
Magnetic stripe cards are relatively inexpensive and are used
extensively in the access control industry and in the banking and credit card
industries. These markets are not priority markets for the Company's portable
information devices. Magnetic stripe cards are not conveniently updated, have
limited storage capacity and generally have a useful life of one or two years.
As a result, the Company believes its products are technologically superior and
may be more cost-effective for applications requiring more complex technologies.
Other portable memory devices, including one in a "button" form and
others in shapes similar to the Data Key, are becoming more common in the
marketplace. Many of these competing devices utilize similar semiconductor
components and electronic interfaces. The Company expects competition from these
alternative devices to continue in the future.
Another technology utilizes a strip of reflective material which is
laminated into a card. Information is inscribed on this material through use of
a laser beam. Since these cards can contain several million bits of information,
the Company believes that this technology will be a competitor in portable
information markets where very large information storage capacities are required
and instantaneous management of information is not essential.
The Company's ability to compete in the portable information market
will depend primarily on its ability to demonstrate superior product performance
at cost-effective prices and on the enhanced features of its system which make
it more effective than competing systems.
Information Security Solutions. Datakey currently offers token-based
(smart card, smart key) information security solutions which are primarily
utilized in encryption for electronic mail privacy, private and secure file
transfer and digital signatures for electronic document authentication. The
Company is continuing a significant product development effort to expand the
applications and ease-of-use of its products and systems.
See "Products--Information Security Solutions."
<PAGE>
Competition in the information security business is varied with
companies offering hardware solutions, software solutions and combinations of
hardware and software solutions. As awareness for security on the Internet,
company intranets and on other local area networks has increased over the past
few years, many companies have introduced software and/or hardware based
products to provide security. These products range from software-based password
only systems to firewalls, which may be very sophisticated. Other applications
are using hand held hardware devices, commonly referred to as tokens, to provide
access to networks and, in some cases, use encryption and digital signatures to
further secure networks.
The Company's advanced information security products, some of which are
released and some of which are currently in development, are based upon a smart
card or smart key and utilize encryption and digital signatures. They also
include extensive software to make the system user-friendly and seamless with
common desktop software packages. The Company feels this will provide a unique
combination of advanced security features at a reasonable selling price. There
are several companies operating in this highly competitive and rapidly changing
marketplace, however, and many of such companies have strong name recognition
and vast financial resources. The Company believes it can compete on the basis
of its unique design and ease of use. The initial reception to the Company's
products in the marketplace, beginning in late 1997, has been encouraging and
sales of evaluation units and units for pilot programs have been progressing
very well. There are no assurances, however, that the existing and future
products will, in the long term, be accepted in the marketplace.
Patents and Trademarks
The Company has been granted several patents by the United States
Patent and Trademark Office relative to the Data Key, its key interface and its
overall portable information device technology. The Company has sought and will,
when appropriate, continue to seek patent protection in several foreign
countries. The federal registration of the Datakey trademark was approved in
1985. In an industry characterized by rapid technological change, the Company
believes that the knowledge, experience and creativity of its employees will
prove to be more important than patent protection.
Employees
As of March 1, 2000, the Company employs 53 full-time employees, 12 of
whom are involved in manufacturing, 3 in materials handling, 1 in quality
assurance, 15 in engineering, 13 in marketing/sales and 9 in general and
administrative areas. In addition, the Company uses contract labor during peak
production times and for major projects. The Company's employees are not subject
to a collective bargaining agreement, and the Company believes that its employee
relations are good.
Forward Looking Statements
Certain statements made in this Form 10-KSB, which are summarized here, are
forward-looking statements that involve risk and uncertainties, and actual
results may be materially different. Factors that could cause actual results to
differ include, but are not limited to, those identified:
o The expectations that Datakey in 2000 will release SignaSURE ESS, SignaSURE
Private Access, new versions of SignaSURE CIP and new system-level
electronic products are subject to the risk of unanticipated problems or
delays in development and depends upon market acceptance and demand, as
well as other general market conditions and competitive conditions within
this market, including the introduction of products by competitors.
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o The expectation that commercial EP sales may increase in 2000 depends on
acceptance by new customers identified by the Company's sales
representatives, as well as other general market conditions and competitive
conditions.
o The expectation that revenues from ISS products will increase significantly
depends on the ability of the Company's sales force to commence additional
pilot programs with new customers, the success of current and future pilot
programs and the resulting customer interest in converting to production
mode, as well as the Company's success in securing additional licensing
agreements.
ITEM 2. DESCRIPTION OF PROPERTY
The Company's corporate offices and manufacturing facility, located at
407 West Travelers Trail, Burnsville, Minnesota, consists of approximately
25,000 square feet. Approximately one-half of the space is used for
manufacturing and warehousing, and the balance for present and future office
space. All of this space is rented under a lease which extends through June
2004. The annualized rent expense for the space currently occupied is $170,000,
plus a portion of the operating expenses and real estate taxes.
ITEM 3. LEGAL PROCEEDINGS
There are no material legal proceedings pending to which the Company is
a party or of which any of its property is the subject.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during
the fourth quarter of fiscal year 1999.
<PAGE>
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's common stock is currently traded on the Nasdaq SmallCap
Market under the symbol DKEY. Prior to May 11, 1999, it was traded on the Nasdaq
National Market. The high and low sale prices for the common stock by quarter as
reported by Nasdaq are set forth in the following table for 1999 and 1998.
On March 15, 2000, the Company had approximately 1,500 shareholders,
including approximately 1,200 beneficial owners. The Company has never paid
dividends on its common stock and does not plan to in the foreseeable future.
Sale Prices
High Low
1999
1st Quarter................................. $5 5/8 $2
2nd Quarter................................. $4 3/8 $2 1/8
3rd Quarter................................. $3 1/2 $1 9/32
4th Quarter................................. $3 7/8 $1
1998
1st Quarter................................. $4 $2 3/4
2nd Quarter................................. $7 1/2 $2 5/8
3rd Quarter................................. $6 7/8 $2 7/8
4th Quarter................................. $3 3/4 $1 15/16
On February 15, 2000, the Company completed a $4,000,000 financing. All
investors were accredited and the Company relied on Rule 506 of Regulation D for
an exemption from registration requirements. In connection with the financing,
the Company issued 800,000 shares of common stock and five-year warrants to
purchase an aggregate of 800,000 shares of the Company's common stock with an
exercise price of $5.00 per share (the "Warrants"). As part of the financing,
the parties also entered into a Registration Rights Agreement, pursuant to which
the Company agreed to file a registration statement on Form S-1 or Form S-3 by
March 27, 2000 covering the resale of shares of the Company's common stock
issued on February 11, 2000 and February 15, 2000 and issuable upon exercise of
the Warrants. The Company also paid a placement agent, Miller, Johnson & Kuehn,
Incorporated $372,100 in commissions plus accountable expenses, and issued to
such agent a warrant to purchase 80,000 shares of Company common stock at an
exercise price of $5.50 per share.
Between January 11, 2000 and March 21, 2000, the Company sold an
aggregate of 657,000 shares of common stock for $821,250 upon the exercise of
warrants by investors who acquired the warrants in connection with a private
placement completed on June 21, 1999. On March 16, 2000, the Company sold an
aggregate of 54,052 shares of common stock for $145,940 upon the exercise of
warrants originally issued to the placement agent in connection with the private
placement completed on June 21, 1999. On March 16, 1999, the Company also sold
97,000 shares of common stock for $133,375 upon the exercise of warrants
originally issued to the placement agent in connection with a private placement
completed on October 29, 1999. For each of these issuances, the Company relied
upon Section 4(2) of the Securities Act, which provides an exemption for
transactions not involving a public offering.
<PAGE>
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
The information required by Item 6 is incorporated by reference from
the Company's 1999 Annual Report, a portion of which is included herewith in
Exhibit 13.1 to this Report.
ITEM 7. FINANCIAL STATEMENTS
The following financial statements of the Company are included as part
of Exhibit 13.1 to this Report:
Independent Auditor's Report
Consolidated Balance Sheets as of December 31, 1999 and 1998
Consolidated Statements of Operations for Years Ended December
31, 1999 and 1998
Consolidated Statements of Stockholders' Equity for Years Ended
December 31, 1999 and 1998
Consolidated Statements of Cash Flows for Years Ended December
31, 1999 and 1998
Notes to Consolidated Financial Statements
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS,
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
The information required by Item 9 regarding the Company's directors
and executive officers is incorporated by reference to the Company's proxy
statement for its 2000 Annual Meeting of Shareholders under the captions
"Determination of Number and Election of Directors" and "Executive Officers of
the Company." The Company's proxy statement will be filed pursuant to Rule 14a-3
within 120 days after the close of the fiscal year for which this report is
filed.
The information relating to compliance with Section 16(a) of the
Exchange Act is incorporated by reference to the Company's proxy statement for
its 2000 Annual Meeting of Shareholders under the caption "Section 16(a)
Beneficial Ownership Compliance."
ITEM 10. EXECUTIVE COMPENSATION
The information required by Item 10 is incorporated by reference to the
Company's proxy statement for its 2000 Annual Meeting of Shareholders under the
caption "Executive Compensation."
<PAGE>
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by Item 11 is incorporated by reference to the
Company's proxy statement for its 2000 Annual Meeting of Shareholders under the
caption "Security Ownership of Management and Certain Beneficial Owners."
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
The following exhibits are included in this report: See "Exhibit Index"
immediately following the financial statements following the signature page of
this Form 10-KSB.
(b) Reports on Form 8-K
The Company filed two reports on Form 8-K, one dated October 25, 1999
announcing its financial results for the quarter ended October 2, 1999 and one
dated October 29, 1999 relating to a $1,500,000 financing and additional
issuances of securities.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Issuer has caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Dated: March 24, 2000 DATAKEY, INC.
BY: /s/ Carl P. Boecher
Carl P. Boecher
Chief Executive Officer and Director
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed by the following persons on behalf of the Company,
in the capacities, and on the dates, indicated:
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Carl
P. Boecher and Alan G. Shuler as his true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to this Annual Report on Form 10-KSB and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, acting alone, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming said attorneys-in-fact and agents, acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
SIGNATURES TITLES DATE
/s/ Carl P. Boecher Chief Executive Officer and March 24, 2000
Carl P. Boecher Director (Principal Executive
Officer)
/s/ Alan G. Shuler Vice President and Chief March 24, 2000
Alan G. Shuler Financial Officer (Principal
Financial and Accounting Officer)
/s/ Thomas R. King Director and Secretary March 24, 2000
Thomas R. King
/s/ Terrence W. Glarner Director March 24, 2000
Terrence W. Glarner
/s/ Gary R. Holland Chairman of the Board of March 24, 2000
Gary R. Holland Directors
/s/ Eugene W. Courtney Director March 24, 2000
Eugene W. Courtney
<PAGE>
DATAKEY, INC.
EXHIBIT INDEX TO ANNUAL REPORT
ON FORM 10-KSB
For the Fiscal Year Ended December 31, 1999
Exhibit No. Description
3.1 Restated Articles of Incorporation, as amended
3.2 Bylaws, as Amended (Incorporated by reference to Exhibit 3.2 to Form
10-K for fiscal year ended December 31, 1988)
10.1 1987 Datakey, Inc. Stock Option Plan (Incorporated by reference to
Exhibit 10.7 to Form 10-K for fiscal year ended December 31, 1987)*
10.2 Amendment dated March 15, 1991 to 1987 Datakey, Inc. Stock Option Plan
(Incorporated by reference to Exhibit 10.5 to Form 10-K for fiscal year
ended December 31, 1991)*
10.3 Amendments dated July 1, 1995 and March 19, 1996 to 1987 Datakey, Inc.
Stock Option Plan (Incorporated by reference to Exhibit 10.5 to Form
10-KSB for fiscal year ended December 31, 1996)*
10.4 License Agreement between CTS Corporation and the Company dated March
9, 1988 (Incorporated by reference to Exhibit 10.8 to Form 10-K for
fiscal year ended December 31, 1987)
10.5 Lease between the Company and Kraus-Anderson, Inc. dated June 3, 1987,
as amended on February 10, 1988, December 23, 1988, February 13, 1992
and April 1, 1992 (Incorporated by reference to Exhibit 10.12 to Form
10-K for fiscal year ended December 31, 1991)
10.6 Manufacturing Agreement between Duncan Industries and the Company dated
August 27, 1993 (Incorporated by reference to Exhibit 10.16 to Form
10-KSB for fiscal year ended December 31, 1993)
10.7 Employment Agreement between Carl P. Boecher and the Company dated
January 1, 1999 (Incorporated by reference to Exhibit 10.1 to Form
10-QSB for fiscal quarter ended April 3, 1999)*
10.8 Employment Agreement between Alan G. Shuler and the Company dated
January 1, 1999 (Incorporated by reference to Exhibit 10.2 to Form
10-QSB for fiscal quarter ended April 3, 1999)*
10.9 Employment Agreement between Michael L. Sorensen and the Company dated
January 1, 1999 (Incorporated by reference to Exhibit 10.3 to Form
10-QSB for fiscal quarter ended April 3, 1999)*
10.10 1997 Management Incentive Plan, as amended March 10, 1997 (Incorporated
by reference to Exhibit 10 to Form 10-QSB for fiscal quarter ended June
28, 1997)*
10.11 Lease Amendment No. 5 dated December 17, 1996 to Lease between the
Company and Kraus-Anderson, Inc. dated June 3, 1987 (Incorporated by
reference to Exhibit 10.22 to Form 10-KSB for fiscal year ended
December 31, 1996)
<PAGE>
10.12 1997 Stock Option Plan (Incorporated by reference to Exhibit 10.15 to
Form 10-KSB for fiscal year ended December 31, 1997)*
10.13 Forms of Incentive and Nonqualified Stock Option Agreements under 1997
Stock Option Plan (Incorporated by reference to Exhibit 10.16 to Form
10-KSB for fiscal year ended December 31, 1997)*
10.14 Lease Extension and Expansion Agreement between the Company and
Kraus-Anderson, Incorporated dated April 19, 1999.
10.15 Employment Agreement between Timothy Russell and the Company dated
August 16, 1999*
13.1 Portions of 1999 Annual Report
21.1 Subsidiaries of the Company (Incorporated by reference to Exhibit 21.1
to Form 10-KSB for fiscal year ended December 31, 1994)
23.1 Independent Accountant's Consent
24.1 Power of attorney for Carl P. Boecher, Alan G. Shuler, Thomas R. King,
Terrence W. Glarner, Gary R. Holland, Eugene W. Courtney (included on
the signature page of this Form 10-KSB)
27 Financial Data Schedule (filed with electronic version only)
* Designates a management contract or compensatory plan or arrangement.
CERTIFICATE OF
RESTATED ARTICLES OF INCORPORATION OF
DATAKEY, INC.
We the undersigned William P. Flies and Thomas R. King, respectively
the president and secretary of Datakey, Inc., a corporation subject to the
provisions of the Minnesota Business Corporations Act, do hereby certify that,
pursuant to action taken by the directors of the Corporation at a regularly
scheduled meeting thereof and a majority vote of the outstanding shares of the
Corporation present in person or by proxy at an annual meeting thereof, the
Corporation effective as of May 24, 1982 elected to become governed by Minnesota
Statutes Ch. 302A and, in addition, approved and adopted the following Restated
Articles of Incorporation to supercede and take place of the existing Articles
of Incorporation.
ARTICLE I
The name of the Corporation is Datakey, Inc.
ARTICLE II
The registered office of this Corporation is located at 12281 Nicollet
Avenue South, Burnsville, Minnesota, 55337.
ARTICLE III
3.01 The aggregate number of shares of stock which this Corporation
shall have the authority to issue is 5,000,000. All common stock issued by the
Corporation shall have a par value of $.05 per share.
3.02. The board of directors may from time to time establish by
resolution different classes or series of shares and may fix the rights and
preferences of said shares in any class or series.
3.03. No shareholder of the Corporation shall have any preemptive
rights.
3.04. No shareholder shall be entitled to any cumulative voting rights.
3.05. The shareholders shall take action by the affirmative vote of the
holders of a majority of the voting power of all voting shares outstanding,
except where a larger proportion is required by law, these articles or a
shareholder control agreement.
ARTICLE IV
The name and address of the original incorporator of this Corporation
is: William P. Flies, 12808 Woodview Lane, Burnsville, Minnesota, 55337.
ARTICLE V
The names and addresses of the present board of directors are:
William P. Flies Richard A. Walter
12281 Nicollet Avenue 10101 E. Bren Road
Burnsville, MN 55337 Minnetonka, MN 55343
Thomas R. King Timothy P. Stepanek
600 Midwest Plaza Bldg. 1730 Midwest Plaza Bldg.
Minneapolis, MN 55402 Minneapolis, MN 55402
IN WITNESS WHEREOF, we have hereunto set our hands this 24th day of
May, 1982.
/s/ William P. Flies
William P. Flies, President
/s/ Thomas R. King
Thomas R. King, Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
William P. Flies and Thomas R. King, being duly sworn on oath, depose
and say that they are, respectively, the president and secretary of Datakey,
Inc., the corporation named in the foregoing certificate; that said certificate
contains a true statement of the action of the shareholders and board of
directors of said corporation; that said certificate is executed on behalf of
said corporation by its express authority; and that they further acknowledge the
same to be their free act and deed and the free act, and deed of said
corporation.
/s/ William Flies
/s/ Thomas R. King
Subscribed and sworn to before me this 24th day of May, 1982.
/s/ Elizabeth A. Forehand
Notary Public - Minnesota
Hennepin County
My commission expires 3-13-87
<PAGE>
OFFICERS' CERTIFICATE OF
DATAKEY, INC.
We, the undersigned, John H. Underwood and Thomas R. King, the
respective President and Secretary of Datakey, Inc., a corporation subject to
the provisions of Minnesota Statutes, Chapter 302A, do hereby certify that the
Minutes of Action Without Meeting of the Board of Directors of the corporation
dated December 23, 1985, a copy of which is attached hereto and incorporated
herein by reference, in which the Board of Directors authorized the issuance of
Preferred Stock, were unanimously adopted and approved by such Board of
Directors.
IN WITNESS WHEREOF, we have subscribed our names this 23rd day of
December, 1985.
/s/ John H. Underwood
John H. Underwood
President
/s/ Thomas R. King
Thomas R. King
Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this 23rd day of December, 1985, before a Notary Public within and
for said County, personally appeared John H. Underwood and Thomas R. King, to me
personally known, being by me duly sworn, and did say that they are the
President and Secretary, respectively, of the corporation named above and that
the said instrument was signed on behalf of the corporation and the persons who
signed said instrument acknowledged it to be the free act and deed of said
corporation.
/s/ Diane M. Dossetto
Notary Public - Minnesota
Ramsey County
My commission expires 7-10-90
<PAGE>
MINUTES OF ACTION WITHOUT MEETING
OF THE BOARD OF DIRECTORS OF
DATAKEY, INC.
The undersigned, being all of the members of the Board of Directors of
Datakey, Inc., hereby adopt, by action without meeting, the following
resolutions to be effective as of December 23, 1985, to-wit:
RESOLVED: That the Preferred Stock authorizing resolutions, which
resolutions are attached hereto as Exhibit A and which resolutions
establish a class of Convertible Preferred Stock be and they hereby are
adopted.
FURTHER RESOLVED: That the officers of the corporation be, and they
hereby are, authorized and directed to take whatever action is
necessary to effect the foregoing resolutions.
/s/ John H. Underwood
John H. Underwood
/s/ William P. Flies
William P. Flies
/s/ Timothy A. Stepanek
Timothy A. Stepanek
/s/ Thomas R. King
Thomas R. King
<PAGE>
EXHIBIT A
MINUTES OF ACTION
WITHOUT MEETING OF THE
BOARD OF DIRECTORS OF DATAKEY, INC.
The undersigned, being all of the members of the Board of Directors of
Datakey, Inc., hereby adopt, by action without meeting, the following resolution
to be effective as of December 23, 1985, to-wit:
WHEREAS, the Articles of Incorporation of Datakey, Inc., a Minnesota
corporation, authorize the corporation to issue an aggregate of 5,000,000 shares
of capital stock and empower the corporation's Board of Directors to establish
from time to time by resolution different classes or series of shares and to fix
the rights and preferences of said shares in any class or series; and
WHEREAS, there currently are outstanding 2,979,750 shares of Common
Stock, the remaining 2,020,250 authorized shares of capital stock being
undesignated; and
WHEREAS, the corporation's Board of Directors deems it to be in the
best interests of the corporation and its shareholders to establish a second
class of capital stock, Convertible Preferred Stock, having certain rights and
preferences;
NOW, THEREFORE, BE IT RESOLVED, that the 5,000,000 shares of capital
stock authorized by the Articles of Incorporation of this corporation be, and
they hereby are, designated as belonging to the following classes having the
relative rights and preferences set forth below:
Section 1. Shares and Classes Authorized.
Of the 5,000,000 shares which the corporation is authorized to issue,
4,000,000 shares shall be designated Common Stock, par value $.05, 400,000
shares shall be designated Convertible Preferred Stock and 600,000 shares shall
be undesignated capital stock.
<PAGE>
Section 2. Right and Preferences of Convertible Preferred Stock.
The rights and preferences of the 400,000 shares of Convertible
Preferred Stock shall be as set forth in Exhibit 1 which is attached hereto and
made a part hereof.
/s/ William P. Flies
William P. Flies
/s/ John H. Underwood
John H. Underwood
/s/ Timothy A. Stepanek
Timothy A. Stepanek
/s/ Thomas R. King
Thomas R. King
<PAGE>
EXHIBIT 1
CERTIFICATE OF RIGHTS AND PREFERENCES
OF
CONVERTIBLE PREFERRED STOCK
OF
DATAKEY, INC.
(A). Classification of Undesignated Shares.
Of the 1,000,000 undesignated shares which the corporation is
authorized to issue under its Articles of Incorporation, 400,000 of such shares
shall all be classified as shares of Convertible Preferred Stock of the
corporation (the "Preferred Stock"). Such shares of Preferred Stock, together
with the 4,000,000 authorized shares of Common Stock of the corporation (the
"Common Stock") and the balance of the undesignated shares of the corporation,
are sometimes hereinafter collectively referred to as the "capital stock".
(B). Voting Privileges.
(a) General. Each holder of Preferred Stock shall have that
number of votes on all matters submitted to the stockholders that is equal to
the number of shares of Common Stock into which such holder's shares of
Preferred Stock are then convertible, as hereinafter provided. Except as
otherwise provided in subparagraph (b) below, and except as otherwise required
by agreement or law, the shares of capital stock of the corporation shall vote
as a single class on all matters submitted to the stockholders.
(b) Without the affirmative vote of the holders (acting
together as a class) of at least a majority (with respect to (1) below) or at
least 90% (with respect to (2) below) of the shares of Preferred Stock at the
time outstanding, the corporation shall not:
(1) authorize or issue any shares of stock having a priority over
Preferred Stock or ranking on a parity therewith as to the
payment or distribution of assets upon the liquidation or
dissolution, voluntary or involuntary, of the corporation; or
(2) amend the Articles of Incorporation of the corporation so as
to alter any existing provision relating to Preferred Stock.
(c) No Cumulative Voting. No holder of shares of capital stock
shall have any cumulative voting rights.
(C). No Preemptive Rights.
No holder of shares of any class of capital stock shall be entitled as
such, as a matter of right, to subscribe for, purchase or receive any part of
any new or additional issue of stock of any class whatsoever, or of securities
convertible into or exchangeable for any stock of any class whatsoever, whether
now or hereafter authorized and whether issued for cash or other consideration
or by way of dividend.
(D). Cash Dividends.
Any dividend declared must be payable with respect to all outstanding
shares of capital stock of the corporation. In the event any dividend is
declared with respect to the capital stock, each holder of Preferred Stock shall
be paid such cash dividend on the basis of the number of shares of Common Stock
into which such holder's shares of Preferred Stock are then convertible, as
hereinafter provided.
(E). Other Terms of the Preferred Stock.
(a) Liquidation Preference. In the event of either an
involuntary or a voluntary liquidation or dissolution of the corporation, the
holders of shares of Preferred Stock shall be entitled to receive out of the
assets of the corporation an amount equal to $2.50 per share. In the event of
either an involuntary or voluntary liquidation or dissolution of the
corporation, payment shall be made to the holders of the Preferred Stock in the
amounts herein fixed before any payment shall be made or any assets distributed
to the holders of the Common Stock or any other class of shares of the
corporation ranking junior to the Preferred Stock with respect to payment of
dividends or upon dissolution or liquidation of the corporation. If upon any
such liquidation or dissolution of the corporation the assets available for
distribution `shall be insufficient to pay the holders of all outstanding shares
of Preferred Stock the full amounts to which they respectively shall be
entitled, the holders of such shares shall share pro rata in any such
distribution.
The merger or consolidation of the corporation into or with
another corporation or the merger or consolidation of any other corporation into
or with the corporation (in which consolidation or merger the stockholders of
the corporation receive distribution of cash or securities or other property as
a result of such consolidation or merger), or the sale, transfer or other
disposition of all or substantially all of the assets of the corporation, shall
be deemed, for purposes of determining the amounts to be received by the holders
of the Preferred Stock in such merger, consolidation, sale, transfer or other
disposition, to be a liquidation or dissolution of the corporation for purposes
of this subparagraph (a) if the holders of a majority of the outstanding shares
of Preferred Stock so elect by giving written notice thereof to the corporation
at least two days before the effective date of such event. If no such notice is
given, the provisions of subparagraph (c)(7) hereof shall apply.
Nothing hereinabove set forth shall affect in any way the
right of each holder of shares of Preferred Stock to convert such shares at any
time and from time to time in accordance with subparagraph (c) below.
(b) Redemptions. Redemptions of shares of Preferred Stock by
the corporation without the consent of the holders thereof are not permitted.
Mandatory redemptions of shares of Preferred Stock by the corporation are not
required.
(c) Conversion Right; Mandatory Conversion. At the option of
the holders thereof, the shares of Preferred Stock shall be convertible, at the
office of the corporation (or at such other office or offices, if any, as the
Board of Directors may designate), into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100th of a share) of Common
Stock of the corporation, at the conversion price, determined as hereinafter
provided, in effect at the time of conversion, each share of the Preferred Stock
being taken at $2.50 for the purpose of such conversion. The price at which
shares of Common Stock shall be delivered upon conversion (herein called the
"conversion price") shall be initially $2.50 per share of Common Stock (i.e., at
an initial conversion rate of one share of Common Stock for each share of
Preferred Stock), provided, however, that such initial conversion price shall be
subject to adjustment from time to time in certain instances as hereinafter
provided. The following provisions shall govern such right of conversion:
(1) In order to convert shares of Preferred Stock into shares of
Common Stock of the corporation, the holder thereof shall
surrender at any office hereinabove mentioned the certificate
or certificates therefor, duly endorsed to the corporation or
in blank, and give written notice to the corporation at such
office that such holder elects to convert such shares. Shares
of Preferred Stock shall be deemed to have been converted
immediately prior to the close of business on the day of the
surrender of such shares for conversion as herein provided,
and the person entitled to receive the shares of Common Stock
of the corporation issuable upon such conversion shall be
treated for all purposes as the record holder of such shares
of Common Stock at such time. As promptly as practicable on or
after the conversion date, the corporation shall issue and
deliver or cause to be issued and delivered at such office a
certificate or certificates for the number of shares of Common
Stock of the corporation issuable upon such conversion.
(2) The conversion price shall be subject to adjustment from time
to time as hereinafter provided. Upon each adjustment of the
conversion price each holder of shares of Preferred Stock
shall thereafter be entitled to receive the number of shares
of Common Stock of the corporation obtained by multiplying the
conversion price in effect immediately prior to such
adjustment by the number of shares issuable pursuant to
conversion immediately prior to such adjustment and dividing
the product thereof by the conversion price resulting from
such adjustment.
(3) Except for the issuance of Conversion Stock and Warrant Stock
(as those terms are defined in the Preferred Stock Purchase
Agreement dated December 16, 1985 among the corporation and
the Purchasers named therein) (a) if and whenever on or prior
to June 30, 1987 the corporation shall issue or sell any
shares of its Common Stock for a consideration per share less
than the conversion price in effect immediately prior to the
time of such issue or sale, then forthwith upon such issue or
sale the conversion price shall be reduced to such lesser
price, and (b) if and whenever after June 30, 1987 the
corporation shall issue or sell any shares of its Common Stock
for a consideration per share less than the conversion price
in effect immediately prior to the time of such issue or sale,
and/or the corporation shall issue or sell any shares of
Common Stock for a consideration per share less than the
market price on the date of such issue or sale, then forthwith
upon such issue or sale the conversion price shall be reduced
to the price (calculated to the nearest cent) determined by
dividing (1) an amount equal to the sum of (aa) the number of
shares of Common Stock outstanding immediately prior to such
issue or sale multiplied by the then existing conversion
price, and (bb) the consideration, if any, received by the
corporation upon such issue or sale, by (2) an amount equal to
the sum of (aa) the number of shares of Common Stock
outstanding immediately prior to such issue or sale and (bb)
the number of shares of Common Stock thus issued or sold.
For the purposes of this subparagraph (3), the
following provisions (i) to (vii), inclusive, shall also be
applicable:
(i) In case at any time the corporation shall grant
(whether directly or by assumption in a merger or
otherwise) any rights to subscribe for or to
purchase, or any options for the purchase of, (a)
Common Stock or (b) any obligations or any shares of
stock of the corporation which are convertible into,
or exchangeable for, Common Stock (any of such
obligations or shares of stock being hereinafter
called "Convertible Securities") whether or not such
rights or options or the right to convert or exchange
any such Convertible Securities are immediately
exercisable, and the price per share for which Common
Stock is issuable upon the exercise of such rights or
options or upon conversion or exchange of such
Convertible Securities (determined by dividing (x)
the total amount, if any, received or receivable by
the corporation as consideration for the granting of
such rights or options, plus the minimum aggregate
amount of additional consideration payable to the,
corporation upon the exercise of such rights or
options, plus, in the case of such Convertible
Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the
issue of such Convertible Securities and upon the
conversion or exchange thereof, by (y) the total
maximum number of shares of Common Stock issuable
upon the exercise of such rights or options or upon
the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such rights
or options) shall be less than the conversion price
in effect immediately prior to the time of the
granting of such rights or options, then the total
maximum number of shares of Common Stock issuable
upon the exercise of such rights or options or upon
conversion or exchange of the total maximum amount of
such Convertible Securities issuable upon the
exercise of such rights or options shall (as of the
date of granting of such rights or options) be deemed
to have been issued for such price per share. Except
as provided in subparagraph (6) below, no further
adjustments of the conversion price shall be made
upon the actual issue of such Common Stock or of such
Convertible Securities upon exercise of such rights
or options or upon the actual issue of such Common
Stock upon conversion or exchange of such Convertible
Securities.
(ii) In case the corporation shall issue or sell (whether
directly or by assumption in a merger or otherwise)
any Convertible Securities, whether or not the rights
to exchange or convert thereunder are immediately
exercisable, and the price per share for which Common
Stock is issuable upon such conversion or exchange
(determined by dividing (x) the total amount received
or receivable by the corporation as consideration for
the issue or sale of such Convertible Securities,
plus the minimum aggregate amount of additional
consideration, if any, payable to the corporation
upon the conversion or exchange thereof, by (y) the
total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the
conversion price in effect immediately prior to the
time of such issue or sale, then the total maximum
number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible
Securities shall (as of the date of the issue or sale
of such Convertible Securities) be deemed to be
outstanding and to have been issued for such price
per share, provided that (a) except as provided in
subparagraph (6) below, no further adjustments of the
conversion price shall be made upon the actual issue
of such Common Stock upon conversion or exchange of
such Convertible Securities, and (b) if any such
issue or sale of such Convertible Securities is made
upon exercise of any rights to subscribe for or to
purchase or any option to purchase any such
Convertible Securities for which adjustments of the
conversion price have been or are to be made pursuant
to other provisions of this subparagraph (3), no
further adjustment of the conversion price shall be
made by reason of such issue or sale.
(iii) In case the corporation shall, after June 30, 1987,
declare a dividend or make any other distribution
upon any capital stock of the corporation payable in
Common Stock or Convertible Securities, or in any
rights or options to purchase any Common Stock or
Convertible Securities, any Common Stock or
Convertible Securities, or any such rights or
options, as the case may be, issuable in payment of
such dividend or distribution shall be deemed to have
been issued or sold without consideration.
(iv) In case any shares of Common Stock or Convertible
Securities or any rights or options to purchase any
such Common Stock or Convertible Securities shall be
issued or sold for cash, the consideration received
therefor shall be deemed to be the amount received by
the corporation therefor, without deducting therefrom
any expenses incurred or any underwriting commissions
or concessions paid or allowed by the corporation in
connection therewith. In case any shares of Common
Stock or Convertible Securities or any rights or
options to purchase any such Common Stock or
Convertible Securities shall be issued or sold for a
consideration other than cash, the amount of the
consideration other than cash received by the
corporation shall be deemed to be the fair value of
such consideration as determined by the Board of
Directors of the corporation, without deducting
therefrom any expenses incurred or any underwriting
commissions or concessions paid or allowed by the
corporation in connection therewith. In case any
shares of Common Stock or Convertible Securities or
any rights or options to purchase such Common Stock
or Convertible Securities shall be issued in
connection with any merger or consolidation in which
the corporation is the surviving corporation, the
amount of consideration therefor shall be deemed to
be the fair value as determined by the Board of
Directors of the corporation of such portion of the
assets and business of the non-surviving corporation
or corporations as such Board shall determine to be
attributable to such Common Stock, Convertible
Securities, rights or options, as the case may be. In
the event of any consolidation or merger of the
corporation in which the corporation is not the
surviving corporation or in the event of any sale of
all or substantially all of the assets of the
corporation for stock or other securities of any
other corporation, the corporation shall be deemed to
have issued a number of shares of its Common Stock
for stock or securities of the other corporation
computed on the basis of the actual exchange ratio on
which the transaction was predicated and for a
consideration equal to the fair market value on the
date of such transaction of such stock or securities
of the other corporation, and if any such calculation
results in adjustment of the conversion price, the
determination of the number of shares of Common Stock
issuable upon conversion immediately prior to such
merger, conversion or sale, for purposes of
subparagraph (7) below, shall be made after giving
effect to such adjustment of the conversion price.
(v) In case the corporation shall take a record of the
holders of its Common Stock for the purpose of
entitling them (a) to receive a dividend or other
distribution payable in Common Stock or in
Convertible Securities, or in any rights or options
to purchase any Common Stock or Convertible
Securities, or (b) to subscribe for or purchase
Common Stock or Convertible Securities, then the date
of such record shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to
have been issued or sold upon the declaration of such
dividend or the making of such other distribution or
the date of the granting of such rights of
subscription or purchase, as the case may be.
(vi) The number of shares of Common Stock outstanding at
any given time shall not include shares owned or held
by or for the account of the corporation, and the
disposition of any such shares shall be considered an
issue or sale of Common Stock for the purpose of this
subparagraph (3).
(vii) "Market price" shall mean the average of the high and
low prices of the Common Stock sales on all exchanges
on which the Common Stock may at the time be listed,
or, if there shall have been no sales on any such
exchange on any such day, the average of the bid and
asked prices at the end of such day, or, if the
Common Stock shall not be so listed, the average of
the bid and asked prices at the end of the day in the
over-the-counter market, in each case averaged over a
period of 20 consecutive business days prior to the
date as of which "market price" is being determined.
If at any time the Common Stock is not listed on any
exchange or quoted in the over-the-counter market,
the "market price" shall be deemed to be the higher
of (i) the book value thereof as determined by any
firm of independent public accountants of recognized
standing selected by the Board of Directors of the
corporation as of the last day of any month ending
within 60 days preceding the date as of which the
determination is to be made, or (ii) the fair value
thereof determined in good faith by the Board of
Directors of the corporation as of a date which is
within 15 days of the date as of which the
determination is to be made.
(4) In case the corporation shall declare a dividend or make a
distribution upon the Common Stock payable otherwise than out
of earnings or earned surplus (including dividends or
distributions in Common Stock or Convertible Securities, or in
any rights or options to purchase any Common Stock or
Convertible Securities), then thereafter each holder of shares
of Preferred Stock upon the conversion thereof will be
entitled to receive the number of shares of Common Stock into
which such shares of Preferred Stock have been converted, and,
in addition and without payment therefor, the cash, stock or
other securities and other property which such holder would
have received by way of dividends (otherwise than out of such
earnings or surplus) if continuously since such holder became
the record holder of such shares of Preferred Stock such
holder (i) had been the record holder of the number of shares
of Common Stock then received, and (ii) had retained all
dividends or distributions in stock or securities (including
Common Stock or Convertible Securities, or in any rights or
options to purchase any Common Stock or Convertible
Securities) payable in respect of such Common Stock or in
respect of any stock or securities paid as dividends or
distributions and originating directly or indirectly from such
Common Stock. For the purposes of the foregoing a dividend or
distribution other than in cash shall be considered payable
out of earnings or earned surplus only to the extent that such
earnings or surplus are charged an amount equal to the fair
value of such dividend or distribution as determined by the
Board of Directors of the corporation.
(5) In case the corporation shall at any time subdivide its
outstanding shares of Common Stock into a greater number of
shares, the conversion price in effect immediately prior to
such subdivision shall be proportionately reduced, and
conversely, in case the outstanding shares of Common Stock of
the corporation shall be combined into a smaller number of
shares, the conversion price in effect immediately prior to
such combination shall be proportionately increased.
(6) If (i) the purchase price provided for in any right or option
referred to in clause (i) of subparagraph (3), or (ii) the
additional consideration, if any, payable upon the conversion
or exchange of Convertible Securities referred to in clause
(i) or clause (ii) of subparagraph (3), or (iii) the rate at
which any Convertible Securities referred to in clause (i) or
clause (ii) of subparagraph (3) are convertible into or
exchangeable for Common Stock, shall change at any time (other
than under or by reason of provisions designed to protect
against dilution), the conversion price then in effect
hereunder shall forthwith be increased or decreased to such
conversion price as would have obtained had the adjustments
made upon the issuance of such rights, options or Convertible
Securities been made upon the basis of (a) the issuance of the
number of shares of Common Stock theretofore actually
delivered upon the exercise of such options or rights or upon
the conversion or exchange of such Convertible Securities, and
the total consideration received therefor, and (b) the
issuance at the time of such change of any such options,
rights, or Convertible Securities then still outstanding for
the consideration, if any, received by the corporation
therefor and to be received on the basis of such changed
price; and on the expiration of any such option or right or
the termination of any such right to convert or exchange such
Convertible Securities, the conversion price then in effect
hereunder shall forthwith be increased to such conversion
price as would have obtained had the adjustments made upon the
issuance of such rights or options or Convertible Securities
been made upon the basis of the issuance o the shares of
Common Stock theretofore actually delivered (and the total
consideration received therefor) upon the exercise of such
rights or options or upon the conversion or exchange of such
Convertible Securities. If the purchase price provided for in
any right or option referred to in clause (i) of subparagraph
(3), or the rate at which any Convertible Securities referred
to in clause (i) or clause (ii) of subparagraph (3) are
convertible into or exchangeable for Common Stock, shall
decrease at any time under or by reason of provisions with
respect thereto designed to protect against dilution, then in
case of the delivery of Common Stock upon the exercise of any
such right or option or upon conversion or exchange of any
such Convertible Security, the conversion price then in effect
hereunder shall forthwith be decreased to such conversion
price as would have obtained had the adjustments made upon the
issuance of such right, option or Convertible Security been
made upon the basis of the issuance of (and the total
consideration received for) the shares of Common Stock
delivered as aforesaid.
(7) If any capital reorganization or reclassification of the
capital stock of the corporation, or consolidation or merger
of the corporation with another corporation, or the sale of
all or substantially all of its assets to another corporation
shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities or assets with
respect to or in exchange for Common Stock, then, as a
condition of such reorganization, reclassification,
consolidation, merger or sale, and subject to subparagraph (a)
above, lawful and adequate provision shall be made whereby the
holders of Preferred Stock shall thereafter have the right to
receive upon the basis and upon the terms and conditions
specified herein and in lieu of the shares of the Common Stock
of the corporation immediately theretofore receivable upon the
conversion of Preferred Stock, such shares of stock,
securities or assets as may be issued or payable with respect
to or in exchange for a number of outstanding shares of such
Common Stock equal to the number of shares of such stock
immediately theretofore receivable upon the conversion of
Preferred Stock had such reorganization, reclassification,
consolidation, merger or sale not taken place, plus all
dividends unpaid and accumulated or accrued thereon to the
date of such reorganization, reclassification, consolidation,
merger or sale, and in any such case appropriate provision
shall be made with respect to the rights and interests of the
holders of Preferred Stock to the end that the provisions
hereof (including without limitation provisions for
adjustments of the conversion price and of the number of
shares receivable upon the conversion of Preferred Stock)
shall thereafter be applicable, as nearly as may be in
relation to any shares of stock, securities or assets
thereafter receivable upon the conversion of Preferred Stock.
The corporation shall not effect any such consolidation,
merger or sale, unless prior to the consummation thereof the
successor corporation (if other than the corporation)
resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument
executed and mailed to the holders of Preferred Stock, at the
last addresses of such holders appearing on the books of the
corporation, the obligation to deliver to such holder such
shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to
receive.
(8) Upon any adjustment of the conversion price, then and in each
case the corporation shall give written notice thereof, by
first-class mail, postage prepaid, addressed to the holders of
Preferred Stock, at the addresses of such holders as shown on
the books of the corporation, which notice shall state the
conversion price resulting from such adjustment and the
increase or decrease, if any, in the number of shares
receivable at such price upon the conversion of Preferred
Stock, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is
based.
(9) In case at any time:
(i) the corporation shall declare any cash dividend on
its Common Stock at a rate in excess of the rate of
the last cash dividend theretofore paid;
(ii) the corporation shall pay any dividend payable in
stock upon its Common Stock or make any distribution
(other than regular cash dividends) to the holders of
its Common Stock;
(iii) the corporation shall offer for subscription pro rata
to the holders of its Common Stock any additional
shares of stock of any class or other rights;
(iv) there shall be any capital reorganization, or
reclassification of the capital stock of the
corporation, or consolidation or merger of the
corporation with, or sales of all or substantially
all of its assets to, another corporation; or
(v) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the
corporation;
then, in any one or more of said cases, the corporation shall
give written notice, by first-class mail, postage prepaid,
addressed to the holders of Preferred Stock at the addresses
of such holders as shown on the books of the corporation, of
the date on which (a) the books of the corporation shall close
or a record shall be taken for such dividend, distribution or
subscription rights, or (b) such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up shall take place, as the case may
be. Such notice shall also specify the date as of which the
holders of Common Stock of record shall participate in such
dividend, distribution or subscription rights, or shall be
entitled to exchange their Common Stock for securities or
other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up, as the case may be. Such written
notice shall be given at least 20 days prior to the action in
question and not less than 20 days prior to the record date or
the date on which the corporation's transfer books are closed
in respect thereto.
(10) If any event occurs as to which in the opinion of the Board of
Directors of the corporation the other provisions of this
paragraph (c) are not strictly applicable or if strictly
applicable would not fairly protect the rights of the holders
of Preferred Stock in accordance with the essential intent and
principles of such provisions, then the Board of Directors
shall make an adjustment in the application of such
provisions, in accordance with such essential intent and
principles, so as to protect such rights as aforesaid.
(11) As used in this paragraph (c) the term "Common Stock" shall
mean and include the corporation's presently authorized Common
Stock and shall also include any capital stock of any class of
the corporation hereafter authorized which shall not be
limited to a fixed sum or percentage in respect of the rights
of the holders thereof to participate in dividends or in the
distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the corporation;
provided that the shares receivable pursuant to conversion of
shares of Preferred Stock shall include shares designated as
Common Stock of the corporation as of the date of issuance of
such shares of Preferred Stock, or, in case of any
reclassification of the outstanding shares thereof, the stock,
securities or assets provided for in subparagraph (7) above.
(12) No fractional shares of Common Stock shall be issued upon
conversion, but, instead of any fraction of a share which
would otherwise be issuable, the corporation shall pay a cash
adjustment in respect of such fraction in an amount equal to
the same fraction of the market price per share of Common
Stock, determined pursuant to subparagraph (3)(vii) above, as
of the close of business on the day of conversion.
Mandatory Conversion. Preferred Stock shall automatically be converted into
shares of Common Stock of the corporation, without any act by the corporation or
the holders of Preferred Stock, concurrently with the closing of the first
public offering by the corporation of shares of Common Stock of the corporation
registered under the Securities Act of 1933, as amended, in which (1) the
offering is underwritten on a firm commitment basis by an underwriter, or a
group of underwriters represented by an underwriter or underwriters, and (2) the
aggregate public offering price of the securities sold for cash by the
corporation in the offering, net of expenses payable by the corporation in
connection with such offering, is at least $5,000,000, and (3) the public
offering price per share of Common Stock is at least $5 (as adjusted from time
to time to reflect stock splits, dividends, recapitalizations, combinations or
the like). As used herein, the term "closing" shall mean the delivery by the
corporation to the underwriters of certificates representing the shares of
Common Stock of the corporation offered to the public against delivery to the
corporation by such underwriters of payment therefor. The term "firm commitment
basis" with respect to the underwriting of such public offering shall mean a
commitment pursuant to a written underwriting agreement under which the nature
of the underwriters' commitment is such that all securities will be purchased by
such underwriters if any securities are purchased by such underwriters. Each
holder of a share of Preferred Stock so converted shall be entitled to receive
the full number of shares of Common Stock into which such share of Preferred
Stock held by such holder could be converted if such holder had exercised its
conversion right at the time of closing of such public offering. Upon such
conversion, each holder of a share of Preferred Stock shall immediately
surrender such share in exchange for appropriate stock certificates representing
a share or shares of Common Stock of the corporation.
<PAGE>
ARTICLES OF AMENDMENT OF ARTICLES OF INCORPORATION
OF
DATAKEY, INC.
Pursuant to the provisions of Minnesota Statutes, Section 302A.135, the
following Amendment of Section 3.01 of the Articles of Incorporation of Datakey,
Inc. was adopted at a meeting of the shareholders of the corporation duly
convened and held on the 6th day of May, 1986, by a vote of 84% of the voting
power of all shares entitled to vote:
"3.01 The aggregate number of shares of stock which this
corporation shall have authority to issue is 12,500,000 shares,
consisting of 10,000,000 shares of Common Stock, par value $.05,
400,000 shares of Preferred Stock and 2,100,000 undesignated shares." I
swear that the foregoing is true and accurate and that I have the
authority to sign this document on behalf of the corporation.
/s/ John H. Underwood
John H. Underwood, President
STATE OF MINNESOTA )
) SS.
COUNTY OF Dakota )
The foregoing instrument was acknowledged before me this 25th day of
June, 1986, by John H. Underwood, President of Datakey, Inc., a Minnesota
corporation, on behalf of the corporation.
/s/ Bette F. Feahr
Notary Public - Minnesota
Dakota County
My commission expires 8-20-91
(Notarial Seal)
<PAGE>
ARTICLES OF AMENDMENT OF ARTICLES OF INCORPORAT10N
OF
DATAKEY, INC.
Pursuant to the provisions of Minnesota Statutes, Section 302A.135, the
following Amendment of the Articles of Incorporation of Datakey, Inc., adding
Article VI, was adopted at a meeting of the shareholders of the corporation duly
convened and held on the May 12, 1987, by a majority vote of the voting power of
all shares entitled to vote:
"ARTICLE VI - LIMITATION OF DIRECTOR LIABILITY
6.1) To the fullest extent permitted by the Minnesota Business
Corporation Act as the same exists or may hereafter be amended, a
director of this corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director."
I swear that the foregoing is true and accurate and that I have the
authority to sign this document on behalf of the corporation.
/s/ John H. Underwood
John H. Underwood, President
STATE OF MINNESOTA )
) SS.
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this 27 day of May,
1987, by John H. Underwood, President of Datakey, Inc., a Minnesota corporation,
on behalf of the corporation.
/s/ Bette F. Feahr
Notary Public - Minnesota
Dakota County
My commission expires 8-20-91
(Notarial Seal)
<PAGE>
Notice of Change of Registered Office
by
DATAKEY, INC.
Pursuant to Minnesota Statutes, Section 302A.123, the undersigned hereby
certifies that the Board of Directors of the above named Minnesota Corporation
has resolved to change the corporation's registered office or agent:
FROM: Datakey, Inc.
12281 Nicollet Avenue South
Burnsville, MN 55337
TO: Datakey, Inc.
407 West Travelers Trail
Burnsville, MN 55337-2554
The new address may not be a post office box. It must be a street address,
pursuant to Minnesota Statutes, Section 302A.011, Subd. 3.
The effective date of the change will be the 1st day of July, 1987 or the day of
filing of this certificate with the Secretary of State, whichever is later.
I swear that the foregoing is true and accurate and that I have the authority to
sign this document on behalf of the corporation.
/s/ George H. M. Rountree
George H. M. Rountree
Vice President Finance
July 11, 1988
State of Minnesota )
) ss.
County of Dakota )
The foregoing instrument was acknowledged before me on this 11th day of
July, 1988.
/s/ Bette F. Feahr
Notary Public - Minnesota
Dakota County
My commission expires 8-20-91
State of Minnesota
Department of State
Filed: August 10, 1988
<PAGE>
STATEMENT OF DESIGNATION OF SHARES
OF
DATAKEY, INC.
The undersigned hereby certifies that the resolutions set forth on
Exhibit A attached hereto were duly adopted by the Board of Directors of
Datakey, Inc. on May 11, 1998.
I swear that the foregoing is true and accurate and that I have the
authority to sign this document on behalf of the corporation.
May 14, 1998
DATAKEY, INC.
/s/ Alan G. Shuler
Alan G. Shuler
Vice President and Chief Financial Officer
<PAGE>
EXHIBIT A
DESIGNATION OF SERIES A CONVERTIBLE CUMULATIVE PREFERRED STOCK
WHEREAS, pursuant to the Articles of Incorporation of this corporation,
the Board of Directors has authority to establish, from the 2,100,000
undesignated shares of capital stock, one or more classes or series of shares,
to designate each such class or series, and to fix the relative rights and
preferences of each such class or series; and
WHEREAS, the Board of Directors deem it advisable to designate shares
of Series A Convertible Cumulative Preferred Stock;
NOW, THEREFORE, RESOLVED, that of the 2,100,000 undesignated shares
currently authorized, 150,000 shares are hereby designated as shares of Series A
Convertible Cumulative Preferred Stock, which shares shall have the terms as set
forth on Exhibit A hereto.
<PAGE>
EXHIBIT A
RIGHTS, PREFERENCES AND RESTRICTIONS OF PREFERRED STOCK
The rights, preferences, restrictions and other matters relating to the
Series A Convertible Cumulative Preferred Stock (the "Series A Preferred Stock")
are as follows:
1. Dividend Provisions. Upon issuance, dividends shall accrue on each
share of outstanding Series A Preferred Stock at an annual rate equal to $1.264
per share per annum (8% of the Original Issue Price, as defined herein). Such
dividends shall be cumulative and shall be payable upon any conversion of the
Series A Preferred Stock pursuant to Section 3 hereof. Such dividends shall only
be paid out of legally available funds of the Company. Such dividends shall be
payable by the Company, in its sole discretion, all in cash or all by the
issuance of a number of shares of the Company's unrestricted, freely tradable
common stock equal to the dividends owing on the Series A Preferred Stock;
provided, however, that prior to the payment of any such dividend by the
issuance of shares of the Company's common stock, the Company shall deliver to
the Investors an opinion of its counsel stating that all such shares have been
validly registered, and that they are duly authorized, validly issued and
nonassessable. For the purposes hereof, the number of shares of the Company's
common stock issuable in lieu of any cash dividend payment shall equal the total
dividend payment then due divided by the per share price of such stock. The per
share price of the Company's common stock shall be determined based on the
average closing bid price of such stock quoted on The Nasdaq Stock Market for
the ten consecutive trading days prior to the payment of such dividends.
Dividends on shares of the Series A Preferred Stock shall accrue beginning on
the date of issuance of the shares of Series A Preferred Stock, shall compound
on an annual basis and shall be payable upon conversion of the Series A
Preferred Stock (a "Payment Date"). All accrued and unpaid dividends on the
Series A Preferred Stock must be paid before any dividends may be declared or
paid on any other junior series of preferred or common stock issued by the
Company.
2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up
of the Company, either voluntary or involuntary, the holders of the previously
issued Convertible Preferred Stock (the "Convertible Preferred Stock") and the
Series A Preferred Stock shall be entitled to receive, prior and in preference
to any distribution of any of the assets of the Company to the holders of common
stock by reason of their ownership thereof, an amount per share equal to $2.50
for the Convertible Preferred Stock, and for the Series A Preferred Stock the
sum of (i) $15.80, as adjusted pursuant to Section 4(c) hereof (the "Original
Issue Price"), and (ii) an amount equal to cumulative unpaid dividends on such
shares (respectively, a "Liquidation Amount"). If upon the occurrence of such an
event, the assets and funds thus distributed among the holders of the
Convertible Preferred Stock and the Series A Preferred Stock shall be
insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then, the entire assets and funds of the Company legally
available for distribution shall be distributed ratably among the holders of the
Convertible Preferred Stock and the Series A Preferred Stock in proportion to
the amount of such stock owned by each such holder multiplied by the appropriate
Liquidation Amount.
(b) Upon the completion of the distribution required by
subparagraph (a) of this Section 2, if assets remain in the Company, the
remaining assets of the Company shall be distributed ratably among the holders
of the Company's common stock and the Series A Preferred Stock in proportion to
the number of shares of common stock held by each (assuming full conversion of
all shares of Series A Preferred Stock).
(c) (i) For purposes of this Section 2, a liquidation,
dissolution or winding up of the Company shall be deemed to be occasioned by, or
to include, (A) the acquisition of the Company by another entity by means of any
transaction or series of related transactions (including any reorganization,
merger or consolidation but excluding any merger effected exclusively for the
purpose of changing the domicile of the Company); or (B) a sale of all or
substantially all of the assets of the Company, unless the Company's
shareholders as constituted immediately prior to such acquisition or sale will,
immediately after such acquisition or sale (by virtue of securities issued as
consideration for the Company's acquisition or sale or otherwise) hold at least
50% of the voting power of the surviving or acquiring entity.
(ii) In any of such events, if the consideration received
by the Company is other than cash, its value will be deemed its fair market
value.
(iii) In the event the requirements of this Section 2
are not complied with, the Company shall forthwith either:
(A) cause such closing to be postponed until such
time as the requirements of this Section 2 have been complied with, or
(B) cancel such transaction, in which event the
rights, preferences and privileges of the holders of the Convertible Preferred
Stock and the Series A Preferred Stock shall revert to and be the same as such
rights, preferences and privileges existing immediately prior to the date of the
first notice referred to in subsection 2(c)(iv) hereof.
(iv) The Company shall give each holder of record of
Convertible Preferred Stock and the Series A Preferred Stock written notice of
such impending transaction not later than 20 days prior to the shareholders'
meeting called to approve such transaction, or 20 days prior to the closing of
such transaction, whichever is earlier, and shall also notify such holders in
writing of the final approval of such transaction; provided, however, that the
holder of any shares of then outstanding Convertible Preferred Stock or Series A
Preferred Stock shall have the right during such 20-day period to convert such
shares pursuant to Section 3 hereof. The first of such notices shall describe
the material terms and conditions of the impending transaction and the
provisions of this Section 2, and the Company shall thereafter give such holders
prompt notice of any material changes. The transaction shall in no event take
place sooner than 20 days after the Company has given the first notice provided
for herein or sooner than ten days after the Company has given notice of any
material changes provided for herein; provided, however, that such periods may
be shortened upon the written consent of the holders of the Convertible
Preferred Stock and the Series A Preferred Stock that are entitled to such
notice rights or similar notice rights and that represent at least a majority of
the voting power of all then outstanding shares of each of the classes of
preferred stock, voting separately as a class.
3. Conversion.
(a) Conversion Right. At the option of the holder thereof,
each share of Series A Preferred Stock shall be convertible at any time during
the period commencing on the day on which the Series A Preferred Stock is issued
and expiring on May 15, 2000 (the date which is the second anniversary of the
date of issuance of the Series A Preferred Stock); provided, however, that such
expiration date shall be extended for a number of days equal to the number of
days beyond the 90th day following the date of issuance of the Series A
Preferred Stock that the Registration Statement (as such term is defined in the
Registration Rights Agreement, of even date herewith, entered into by and
between the Company and the Investors set forth on Schedule A thereto) is not
effective (such date, including any extension thereof pursuant to the foregoing
proviso, being herein referred to as the "Second Anniversary"). The Series A
Preferred Stock shall be convertible at the office of the Company or any
transfer agent for such stock into such number of fully paid and nonassessable
shares of the Company's common stock as is determined by dividing the Original
Issue Price, subject to adjustment as provided in Section 4, by the Conversion
Price applicable to such shares, determined as hereafter provided, in effect on
the date the certificates representing such shares are surrendered for
conversion (the "Conversion Date"). The Conversion Price shall be equal to the
average closing bid price of one share of the Company's common stock as quoted
by the Nasdaq SmallCap Market, the Nasdaq National Market or the principal
exchange upon which shares of the Company's common stock may be listed, or, if
the Company's common stock shall not then be quoted on the Nasdaq SmallCap
Market or the Nasdaq National Market or listed on a national securities
exchange, but shall otherwise be traded in the over-the-counter market, on such
over-the-counter market for the ten-day period ending on the day prior to the
Conversion Date (the "Trading Period") multiplied by .8 (the "Conversion
Price"); provided, however, that in no event shall the Conversion Price exceed
$5.00 per share or be less than $2.75 (the "Maximum Price" and "Minimum Price,"
respectively) per share; and provided, further, that appropriate adjustments
shall be made in determining the average closing bid price if a recapitalization
or other event affecting the Company's common stock shall occur during the
Trading Period.
(b) Dividend Payment. Should the Company, pursuant to Section
1 hereof, not elect to pay all outstanding, cumulative, accrued and unpaid
dividends on the Series A Preferred Stock in shares of its common stock, the
Company shall pay, in immediately available funds, to the holder of any shares
of Series A Preferred Stock being converted, within two days, all such dividends
on the date that it receives notice of such holder's intent to convert such
shares pursuant to (d) below. Separately, should the Company elect to pay all
outstanding, cumulative, accrued and unpaid dividends on the Series A Preferred
Stock in shares of its common stock, it shall, within two business days of
receiving a holder's notice of intent to convert, deliver certificates
representing such shares to the holder of the Series A Preferred Stock.
(c) Automatic Conversion. Any shares of Series A Preferred
Stock remaining outstanding on the Second Anniversary shall be automatically
converted pursuant to the conversion terms of Section 3(a) above. The Conversion
Date with respect to such automatic conversion shall be the Second Anniversary.
In any event, the Company shall, within two business days after automatic
conversion of the Series A Preferred Stock, issue and deliver a certificate or
certificates for the number of shares of the Company's common stock to which
each former holder of Series A Preferred Stock is entitled. Notwithstanding the
foregoing, no automatic conversion of the Series A Preferred Stock shall occur
pursuant to this Section unless (i) all shares of the Company's common stock
underlying the shares of Series A Preferred Stock may be sold pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
(ii) the Company's common stock is listed and trading on The Nasdaq Stock
Market, and (iii) the Company has reserved and available for issuance a number
of shares of its common stock sufficient to cover conversion of all outstanding
shares of Series A Preferred Stock.
(d) Mechanics of Conversion. Before any holder of Series A
Preferred Stock shall be entitled to convert the same into shares of the
Company's common stock, he, she or it shall surrender the certificate or
certificates therefor, duly endorsed, at the office of the Company or of any
transfer agent for the Series A Preferred Stock, and shall give written notice,
via facsimile, to the Company, at its principal corporate office, of the
election to convert the same and shall state therein the name or names in which
the certificate or certificates for shares of the Company's common stock are to
be issued. The Company shall, immediately thereafter (and in any event no more
than two business days thereafter), issue and deliver to such holder of Series A
Preferred Stock at the address shown on the Company's records or at such other
address as such party may designate by written notice to the Company, or to the
nominee or nominees of such holder, a certificate or certificates for the number
of shares of the Company's common stock to which such holder shall be entitled
pursuant to Section 3(a) and a certificate representing shares of Series A
Preferred Stock not so converted by the holder. Such conversion shall be deemed
to have been made immediately prior to the close of business on the Conversion
Date, and the person or persons entitled to receive the shares of the Company's
common stock issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such shares of the Company's common stock as of
such date.
(e) Mechanics of Automatic Conversion. On the Conversion Date
with respect to the automatic conversion pursuant to subsection 3(c) above, the
certificates representing shares of Series A Preferred Stock shall immediately
represent that number of shares of the Company's common stock into which such
shares are convertible. Holders of Series A Preferred Stock shall deliver their
certificates, duly endorsed in blank, to the principal office of the Company,
together with a notice setting out the name or names (with addresses) and
denominations in which the certificates representing such shares of common stock
issuable upon conversion are to be issued and including instructions for
delivery thereof. The person entitled to receive the shares of the Company's
common stock issuable upon such conversion shall be treated for all purposes as
the record holder of such shares of common stock at and on the Conversion Date,
and the rights of such person as a holder of shares of Series A Preferred Stock
shall cease and terminate at and on the Conversion Date, in any case without
regard to any failure by such holder to deliver the certificates or the notice
required by this subsection 3(e). On the Conversion Date with respect to
automatic conversion, the Company shall pay all outstanding, cumulative, accrued
and unpaid dividends, either by the issuance of shares of its common stock or in
cash, pursuant to the provisions set forth in (a) above; provided, however, that
should the Company elect to pay such dividends by the issuance of additional
shares of its common stock, the person entitled to receive such shares of the
Company's common stock issuable upon such conversion shall be treated for all
purposes as the record holder of such additional shares on the Conversion Date
(f) No Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Section 3 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of the
holders of the Series A Preferred Stock against impairment.
(g) No Fractional Shares. No fractional shares shall be issued
upon the conversion of any share or shares of the Series A Preferred Stock, and
the number of shares of the Company's common stock to be issued shall be rounded
to the nearest whole share. Whether or not fractional shares are issuable upon
such conversion shall be determined on the basis of the total number of shares
of Series A Preferred Stock the holder is at the time converting into shares of
the Company's common stock and the number of shares of such common stock
issuable upon such aggregate conversion.
(h) Notices of Record Date. In the event of any taking by the
Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Company shall mail to each holder of Series A
Preferred Stock, at least 20 days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right.
(i) Reservation of Stock Issuable Upon Conversion. The Company
shall at all times reserve and keep available out of its authorized but unissued
shares of common stock, solely for the purpose of effecting the conversion of
the shares of the Series A Preferred Stock, such number of its shares of its
common stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of the Series A Preferred Stock; and if at any time
the number of authorized but unissued shares of the Company's common stock shall
not be sufficient to effect the conversion of all then outstanding shares of the
Series A Preferred Stock, in addition to such other remedies as shall be
available to the holder of such Series A Preferred Stock, the Company will take
such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of common stock to such number of
shares as shall be sufficient for such purposes, including engaging in best
efforts to obtain the requisite shareholder approval of any necessary amendment
to the Company's Articles of Incorporation.
(j) Notices. Any notice required by the provisions of this
Section 3 to be given to the holders of shares of Series A Preferred Stock shall
be deemed given if deposited in the United States mail, postage prepaid, and
addressed to each holder of record at his, her or its address appearing on the
books of the Company.
4. Anti-Dilution Provisions.
The Original Issue Price shall be subject to adjustment from
time to time upon the happening of any of the following events: (a) In the event
the Company shall issue or sell any shares of its common stock (except as
provided in paragraph (e) hereof) for a consideration per share less than the
greater of (A) $5.00, or (B) 80% of the Market Price (as defined below) on the
date of such issue or sale, then the Original Issue Price shall be increased to
such greater price (calculated to the nearest cent) as shall be determined by
multiplying the Original Issue Price by a fraction, the numerator of which shall
be the number of shares of the Company's common stock outstanding immediately
after the issuance or sale of such additional shares, and the denominator of
which shall be the sum of (i) the number of shares of the Company's common stock
outstanding immediately prior to the issuance or sale of such additional shares,
and (ii) the number of shares of the Company's common stock which the aggregate
consideration received for the issuance or sale of such additional shares would
purchase at the greater of $5.00, or if such shares of the Company's common
stock shall have been issued for a consideration per share less than 80% of the
Market Price on the date of issuance or sale, the current Market Price. For
purposes of this paragraph, all shares of the Company's common stock issuable
upon exercise of outstanding options and warrants shall be deemed to be
outstanding.
(b) For the purposes of paragraph 4(a) above, the following
subparagraphs (i) to (vii), inclusive, shall be applicable:
(i) If at any time the Company shall issue or sell any
rights to subscribe for, or any rights or options to purchase, shares of its
common stock or any stock or other securities convertible into or exchangeable
for such common stock (such convertible or exchangeable stock or securities
being hereinafter called "Convertible Securities"), whether or not such rights
or options or the right to convert or exchange any such Convertible Securities
shall be immediately exercisable, and the price per share for which shares of
the Company's common stock shall be issuable upon the exercise of such rights or
options or upon conversion or exchange of such Convertible Securities
(determined by dividing (1) the total amount, if any, received or receivable by
the Company as consideration for the granting of such rights or options, plus
the minimum aggregate amount of additional consideration payable to the Company
upon the exercise of such rights or options, plus, in the case of any such
rights or options which shall relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the issue or
sale of such Convertible Securities and upon the conversion or exchange thereof,
by (2) the total number of shares of the Company's common stock issuable upon
the exercise of such rights or options or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such rights or
options) shall be less than the greater of (x) the $5.00, or (y) 80% of the
Market Price at the time of such issue or sale, then the total number of shares
of the Company's common stock issuable upon the exercise of such rights or
options or upon conversion or exchange of the total amount of such Convertible
Securities issuable upon the exercise of such rights or options shall (as of the
date of granting of such rights or options) be deemed to be outstanding and to
have been issued for such price per share, and except as provided in paragraph
4(d), no further adjustments of the Original Issue Price shall be made upon the
actual issue of such shares of common stock or of such Convertible Securities,
upon the exercise of such rights or options or upon the actual issue of such
common stock upon conversion or exchange of such Convertible Securities.
(ii) If at any time the Company shall issue or sell
any Convertible Securities, whether or not the rights to exchange or convert
thereunder shall be immediately exercisable, and the price per share for which
shares of the Company's common stock shall be issuable upon such conversion or
exchange (determined by dividing (1) the total amount received or receivable by
the Company as consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange thereof, by (2) the
total number of shares of the Company's common stock issuable upon the
conversion or exchange of all such Convertible Securities) shall be less than
the greater of (x) $5.00, or (y) 80% of the Market Price at the time of such
issue or sale, then the total number of shares of the Company's common stock
issuable upon conversion or exchange of all such Convertible Securities shall
(as of the date of the issue or sale of such Convertible Securities) be deemed
to be outstanding and to have been issued for such price per share, and, except
as provided in paragraph 4(d), no further adjustments of the Original Issue
Price shall be made upon the actual issue of such shares of common stock upon
conversion or exchange of such Convertible Securities. In addition, if any issue
or sale of such Convertible Securities shall be made upon exercise of any rights
to subscribe for or to purchase or any option to purchase any such Convertible
Securities for which adjustments of the Original Issue Price shall have been or
shall be made pursuant to other provisions of this paragraph 4(b)(ii), no
further adjustment of the Original Issue Price shall be made by reason of such
issue or sale.
(iii) If at any time the Company shall declare and
pay a dividend or make any other distribution upon the shares of its common
stock payable in such stock or Convertible Securities, any such stock or
Convertible Securities, as the case may be, issuable in payment of such dividend
or distribution shall be deemed to have been issued or sold without
consideration.
(iv) If at any time any shares of the Company's common
stock or Convertible Securities or any rights or options to purchase shares of
any such stock or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Company therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions or discounts paid or allowed by the
Company in connection therewith. In case any shares of the Company's common
stock or Convertible Securities or any rights or options to purchase any such
common stock or Convertible Securities shall be issued or sold for a
consideration other than cash, the amount of the consideration other than cash
received by the Company shall be deemed to be the fair value of such
consideration as determined by the Company's Board of Directors, without
deduction therefrom of any expenses incurred or any underwriting commissions or
concessions or discounts paid or allowed by the Company in connection therewith.
In case any shares of the Company's common stock or Convertible Securities or
any rights or options to purchase any such common stock or Convertible
Securities shall be issued in connection with any merger of another corporation
into the Company, the amount of consideration therefor shall be deemed to be the
fair value of the net assets of such merged corporation as determined by the
Company's Board of Directors after deducting therefrom all cash and other
consideration (if any) paid by the Company in connection with such merger.
(v) If at any time the Company shall take a record of
the holders of its common stock for the purpose of entitling them (1) to receive
a dividend or other distribution payable in shares of the Company's common stock
or in Convertible Securities, or (2) to subscribe for or purchase shares of the
Company's common stock or Convertible Securities, then such record date shall be
deemed to be the date of the issue or sale of the shares of the Company's common
stock deemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution or the date of the granting of such
right of subscription or purchase, as the case may be.
(vi) The number of shares of the Company's common
stock outstanding at any given time shall not include shares owned or held by or
for the account of the Company, provided that such shares are neither issued,
sold or otherwise distributed by the Company.
(vii) For purposes hereof, the "Market Price" shall
mean the average closing bid price of the Company's common stock on the Nasdaq
SmallCap Market, the Nasdaq National Market or the principal exchange upon which
shares of the Company's common stock may be listed, or, if the Company's common
stock shall not then be quoted on the Nasdaq SmallCap Market or the Nasdaq
National Market or listed on a national securities exchange, but shall otherwise
be traded in the over-the-counter market, on such over-the-counter market, in
each case for the ten day period immediately preceding any determination of such
"Market Price" (subject to appropriate adjustments which shall be made in
determining the average closing bid price if a recapitalization or other event
affecting the Company's common stock shall occur during such 10-day period). If
at any time shares of the Company's common stock shall not be quoted on the
Nasdaq SmallCap Market or the Nasdaq National Market, listed on a national
securities exchange, or otherwise traded in the over-the-counter market, the
"Market Price" of a share of the Company's common stock shall be deemed to be
the higher of (x) the book value thereof (as determined by any firm of
independent public accountants of nationally recognized standing selected by the
Company's Board of Directors) as of the last day of any month ending within 60
days preceding the date of determination, or (y) the fair value thereof (as
determined in good faith by the Company's Board of Directors) as of a date which
shall be within 15 days of the date of determination.
(c) In case at any time the Company shall subdivide its
outstanding shares of common stock into a greater number of shares, the Original
Issue Price in effect immediately prior to such subdivision, the Maximum Price
and the Minimum Price shall be proportionately reduced, and the Company shall
subdivide the Series A Preferred Stock in the same proportion. In case at any
time the outstanding shares of the Company's common stock shall be combined into
a smaller number of shares, the Original Issue Price in effect immediately prior
to such combination, the Maximum Price and the Minimum Price shall be
proportionately increased, and the Company shall combine the Series A Preferred
Stock in the same proportion. Any adjustment under this paragraph 4(c) shall
become effective at the close of business on the date the subdivision or
combination shall become effective. The Company will take such corporate action
as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Series A Preferred Stock to such number of shares as
shall be sufficient for any such purposes, including engaging in best efforts to
obtain the requisite shareholder approval of any necessary amendment to the
Company's Articles of Incorporation.
(d) If the purchase or exercise price provided for in any
right or option referred to in paragraph 4(b)(i), or the rate at which any
Convertible Securities referred to in paragraph 4(b)(i) or (ii) shall be
convertible into or exchangeable for shares of the Company's common stock, shall
change or a different purchase or exercise price or rate shall become effective
at any time or from time to time (including any change resulting from
termination of such right, option or convertible security), then, upon such
change becoming effective, the Original Issue Price then in effect hereunder
shall forthwith be increased or decreased to such Original Issue Price as would
have been obtained had the adjustments made upon the granting or issuance of
such rights or options or Convertible Securities been made upon the basis of (A)
the issuance of the number of shares of the Company's common stock theretofore
actually delivered upon the exercise of such options or rights or upon the
conversion or exchange of such Convertible Securities, and (B) the granting or
issuance at the time of such change of any such options, rights or Convertible
Securities then still outstanding for the consideration, if any, received by the
Company therefor and to be received on the basis of such changed price.
(e) The Company shall not be required to make any adjustment
to the Original Issue Price in the case of:
(i) the granting, after the date hereof, by the Company of
stock options under the Company's 1997 Stock Option Plan, so long as the shares
of the Company's common stock underlying such options are covered by the 800,000
shares currently reserved for issuance under such plan as of the date hereof,
assuming approval by the Company's shareholders of the 300,000 share increase at
the Company's 1998 Annual Meeting of Shareholders;
(ii) the issuance of shares of the Company's common stock,
pursuant to the exercise of the options referred to in paragraph 4(e)(i) above
or the exercise of any other options or warrants outstanding as of the date
hereof; or
(iii) the issuance of shares of the Series A Preferred
Stock hereunder or of shares of the Company's common stock upon the conversion
of any shares of the Series A Preferred Stock or upon the exercise of the
Warrant or the Warrant issued to Miller, Johnson & Kuehn, Incorporated on the
same date as the Preferred Stock Purchase Agreement to which this certificate of
Designation is an Exhibit.
5. Voting Rights. The holder of each share of Series A Preferred Stock
shall have the right to the number of votes on all matters submitted to the
Company's shareholders that shall be equal to the number of shares of the
Company's common stock into which such holder's shares of Series A Preferred
Stock shall then be convertible (assuming a conversion as of the record date set
for the vote).
6. Status of Converted Stock. In the event any shares of Series A
Preferred Stock shall be converted pursuant to Section 3 hereof, the shares of
Series A Preferred Stock so converted shall be canceled and shall not be
issuable by the Company. The Articles of Incorporation of the Company shall be
appropriately amended to effect the corresponding reduction in the Company's
authorized capital stock.
7. Notice of Adjustment. The Company shall provide all holders of
shares of Series A Preferred Stock five business days prior written notice of
any adjustments in the Original Issue Price, the Maximum Price, the Minimum
Price or any other adjustments made pursuant to the provisions hereof.
<PAGE>
STATEMENT OF DESIGNATION
OF ADDITIONAL SHARES
OF
DATAKEY, INC.
The undersigned hereby certifies that the resolutions set forth below
were duly adopted by the Board of Directors of Datakey, Inc., a Minnesota
corporation, on January 25, 2000:
WHEREAS, pursuant to the Articles of Incorporation of this
corporation, the Board of Directors has authority to establish, from
the 1,950,000 undesignated shares of capital stock, one or more classes
or series of shares and to fix the relative rights and preferences of
each such class of or series; and
WHEREAS, the Board of Directors deems it advisable to
designate additional common shares;
NOW, THEREFORE, RESOLVED, that, of the 1,950,000 undesignated
shares, currently authorized, 1,000,000 shares are designated as
additional common shares.
I swear that the foregoing is true and accurate and that I have the
authority to sign this document on behalf of the corporation.
Dated: February 10, 2000
/s/ Carl P. Boecher
Carl P. Boecher, President and
Chief Executive Officer of Datakey, Inc.
LEASE EXTENSION AND EXPANSION AGREEMENT
THIS LEASE EXTENSION AND EXPANSION AGREEMENT, made and entered into
this 19th day of April, 1999, by and between Kraus-Anderson(R), Incorporated, a
Minnesota corporation (hereinafter referred to as "Landlord"), and Datakey,
Inc., a Minnesota corporation ( hereinafter referred to as "Tenant");
WITNESSETH THAT WHEREAS:
A. Landlord is leasing to Tenant and Tenant is leasing from Landlord certain
premises commonly known as 401-409 West Travelers Trail, Burnsville, Minnesota
and located in Suite 201 through 205 of the Gateway Business Park, Phase II (the
"Complex"), pursuant to written Lease Agreement dated June 3, 1987, as amended
by First Amendment To Lease Agreement dated February 10, 1988, Second Amendment
To Lease Agreement dated December 23, 1988, Amendment No. 3 To Lease Agreement
dated February 13, 1992, Amendment No. 4 To Lease Agreement dated April 1, 1992
and by Lease Amendment No. 5 dated December 17, 1996 (collectively referred to
as the "Lease"); Said premises consist of approximately 11,093 square feet of
office space, approximately 6,000 square feet of technical space and
approximately 1,395 square feet of warehouse space, for a combined area of
approximately 18,488 square feet of floor space as shown crosshatched in blue on
Exhibit A attached hereto (the "Original Leased Premises"); and
B. WHEREAS, Landlord and Tenant desire to amend the Lease to provide that
Tenant's leased space will be increased by approximately an additional 4,589
square feet of office space and approximately an additional 2,295 square feet of
warehouse space, for a combined additional leased area of approximately 6,884
square feet of floor space located in Suite 206 and 207, located adjacent to the
Original Leased Premises, such total of additional leased area being shown
crosshatched in red on Exhibit A attached hereto (the "Expansion Area");
C. WHEREAS, the parties hereto also desires to extend the term of the Lease by a
period of five (5) years and to amend certain other provisions thereof;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby amend the Lease
and agree as follows:
1. ARTICLE 1, SECTION 2 - PREMISES AND TERM:
In lieu of Tenant's existing Renewal Option set forth in Paragraph 10
of Amendment No. 3 To Lease Agreement (the "Renewal Option"), the term
of the Lease is hereby extended for an additional five (5) year period,
to commence on July 1, 1999 and to expire on June 30, 2004.
The Renewal Option is hereby deleted from the Lease as if it had never
been a part thereof.
2. ARTICLE 1, SECTION 1 - PREMISES:
Landlord shall continue to lease to Tenant and Tenant shall continue to
lease from Landlord the Original Leased Premises, in accordance with
the terms of the Lease. Beginning on July 1, 1999 ("Expansion Date")
and continuing through the extended Lease expiration date of June 30,
2004, the Landlord hereby also leases to Tenant and Tenant hereby
leases from Landlord the Expansion Area. Except as otherwise
specifically provided in this amendment, Tenant's lease of the Original
Leased Premises and the Expansion Area, combined, shall be upon the
same terms and conditions as set forth in the Lease, and from and after
the Expansion Date of July 1, 1999, the term "Leased Premises" shall be
defined to mean the Original Leased Premises together with the
Expansion Area, said combined premises totaling approximately 25,372
square feet of space.
3. EARLY OCCUPANCY PERIOD:
Tenant shall have the right to use and occupy the Expansion Area for
the period from the date upon which this amendment is fully-executed
between Landlord and Tenant and continuing until the Expansion Date of
July 1, 1999 (the "Construction Period") for purposes of adapting the
premises to Tenant's use under this Lease. Tenant's use and occupancy
of the Expansion Area during the Construction Period shall be governed
by all the terms and conditions of this Lease, including, but not
limited to, the payment by Tenant of all charges for utility services
furnished to the Expansion Area; provided, however, that Tenant shall
not owe or pay Landlord any sums for base rent, real estate taxes,
insurance, or operating costs associated with the Expansion Area during
said Construction Period.
4. ARTICLE 3 - BASE RENT AND ADDITIONAL RENT:
a) Additional rents under the Lease for the Expansion Area shall
commence to be due and payable pursuant to the Lease from and after the
Expansion Date of July 1, 1999.
b) Tenant shall continue paying Base Rent for the Original Leased
Premises at the existing fixed annual Base Rent amount until June 30,
1999.
c) Article 3 of the Lease is hereby amended to provide that the fixed
annual Base Rent for the Original Leased Premises and the Expansion
Area shall be blended for the combined premises beginning on July 1,
1999, according to the adjusted schedule of fixed annual Base Rent as
follows:
Rental Period: Annual Base Rent Monthly Base Rent
------------- ---------------- -----------------
07/01/99 -06/30/2000 $164,918.00 $13,743.17
07/01/00 -06/30/2001 $171,261.00 $14,271.75
07/01/01 -06/30/2002 $177,604.00 $14,800.33
07/01/02 -06/30/2003 $183,947.00 $15,328.92
07/01/03 -06/30/2004 $190,290.00 $15,857.50
e) Paragraph 4 of Amendment No. 4 To Lease Agreement is hereby deleted
in its entirety.
5. ARTICLE 4, SECTION 4 - OPERATING COST ADJUSTMENT:
From and after the Expansion Date, "Tenant's Proportionate Share" as
that phrase is used in the Lease, according to Article 4, Section 4 of
the Lease, shall be increased from 34.56% to 47.42% from the Expansion
Date of July 1, 1999 through the extended Lease term, ending on June
30, 2004.
6. ADDITIONAL PROVISIONS - LEASEHOLD IMPROVEMENT ALLOWANCE:
Landlord shall pay to Tenant an allowance ("Improvement Allowance") in
an amount of One Hundred Sixty One Thousand and No/100 Dollars
($161,000.00) upon the following terms and conditions:
a) The Improvement Allowance shall be applied to the cost of making
improvements to the Original Leased Premises and Expansion Area in
preparation for Tenant's lease thereof;
b) Prior to commencing any construction at the Original Leased Premises
and the Expansion Area, Tenant shall forward a copy of all construction
drawings and specifications to the Landlord for the Landlord's prior
written approval, which shall not be unreasonably withheld or delayed;
c) All construction shall meet fire and safety standards and all other
city codes.
d) Landlord shall not be obligated to pay Tenant any part of the
Improvement Allowance until such time as Tenant has furnished to
Landlord signed lien waivers for all work and materials provided in
connection with said improvements.
7. ARTICLE 8 - HEATING, VENTILATING AND AIR CONDITIONING SYSTEM REPAIRS:
a) Landlord shall continue to keep and maintain in good repair the
heating, ventilating and air conditioning system ("HVAC") serving the
Original Leased Premises and/or Expansion Area, in accordance with the
terms of the Lease, as amended hereby. Landlord shall, at all times,
have access to the HVAC units, and may enter upon the Original Leased
Premises and/or the Expansion Area for the purpose of repairing and
maintaining it.
b) In the event the cost to repair any one particular HVAC unit serving
the Original Leased Premises and/or the Expansion Area shall exceed 75%
of the cost to replace such unit, then Landlord, at Landlord's option,
shall replace said HVAC unit.
c) Tenant's liability for the cost of replacing any one particular HVAC
unit as provided herein shall be 50% of the actual cost incurred by
Landlord.
8. The expiration date of the term of the Lease, as set forth therein and
as amended hereby, and all other conditions and covenants of the Lease
shall apply with full force and effect to Tenant's lease of the
Expansion Area. From and after the Expansion Date, the Phrase "Leased
Premises", as used in the Lease, shall be construed to mean the
Original Leased Premises crosshatched in blue on Exhibit A together
with the Expansion Area crosshatched in red on Exhibit A, said combined
premises totaling approximately 25,372 square feet of space.
9. Except as herein specifically modified and amended, and as previously
amended on February 10, 1988, December 23, 1988, February 13, 1992,
April 1, 1992 and on December 17, 1996, the Lease shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Extension and Expansion Agreement as of the day and year first above written.
KRAUS-ANDERSON, INCORPORATED DATAKEY, INC.
By /s/ Burton F. Dahlberg By /s/ Alan Shuler
Burton F. Dahlberg Alan Shuler
Its President Its Vice President & CFO
LANDLORD TENANT
EMPLOYMENT AGREEMENT
This Employment Agreement made and entered into effective as of August
16, 1999, by and between Datakey, Inc., a Minnesota corporation (the "Company"
or "Datakey"), and Timothy L. Russell ("Executive").
RECITALS
Executive has recently been named the Vice President and General
Manager ("VP/GM") of the Company's Integrated System Solutions ("ISS") business
unit. The Company and the Executive are desirous that the Executive continue to
serve the Company in this capacity under the following terms and conditions.
AGREEMENT
1. Employment
a. Datakey agrees to continue to employ Executive on a full-time basis
as the Vice President and General Manager, ISS.
b. Executive agrees that he will, at all times, faithfully,
industriously, and, to the best of his abilities, experience and talents,
continue to perform all the duties and responsibilities that may be required of
him as an officer of Datakey.
2. Term of Employment
a. Subject to the terms and conditions hereof, Executive shall be
employed for a term ("Employment Term") commencing on August 16, 1999 and
terminating on August 15, 2000 unless extended as set forth in Subsection 2b
below.
b. This Agreement will be renewed automatically after August 15, 2000
for additional one-year periods unless either party gives the other party
written notice 30 days before August 16, 2000 or 30 days before the end of any
one-year period thereafter of his or its intention to terminate the Agreement.
3. Base Monthly Compensation
As compensation for his services to Datakey, Executive shall be paid a
monthly salary of $9,583.33, plus salary increases, if any, approved by the
Board of Directors and documented in the Executive's personnel and/or payroll
records, payable in accordance with Datakey's periodic payment periods.
4. Bonus
Executive shall be eligible for a quarterly performance bonus of
$20,000 plus increases, if any, approved by the Board of Directors and
documented in the Executive's personnel and/or payroll records. The performance
bonus shall be based upon achievement of certain objectives agreed upon in
advance between executive and the president and CEO of Datakey. During the
initial term of this agreement Executive shall receive 50% of the quarterly
bonus ("Guaranteed Bonus") without regard to achieving the agreed upon
objectives. Executive will also participate in Datakey's Long-Term Incentive
Plan.
5. Other Benefits
During the term of this Agreement, Executive will be eligible to
receive certain other benefits described in the attached Exhibit A, subject to
such changes as Datakey may adopt from time to time for officers of the Company
and salaried employees generally.
6. Termination
a. Notwithstanding Section 2 above, the Employment Term or any
extension thereof shall terminate upon the happening of any of the following
events:
(i) Mutual written agreement between the Board of Directors of
Datakey and Executive to terminate his employment;
(ii) Executive's death;
(iii) Executive's disability, defined as physically or
mentally unable to perform his duties as an officer of the
Company for a period of six consecutive months, as determined
by a mutually agreeable physician; or
(iv) For cause (as defined below) upon written notice from the
Board of Directors specifying the nature of the cause.
b. For purposes of this Agreement, "cause" shall include the commission
of any felony, gross misdemeanor, or any act of fraud in connection with the
affairs of Datakey.
7. Payment Upon Termination of Employment for Cause or Voluntary
Resignation
If Executive is terminated for cause or voluntarily resigns, Executive
shall not be eligible to receive any severance benefits except as specifically
agreed to at time of termination. The date of termination under this Section 7
shall be on the day the notice of termination for cause is given or 30 days from
the date the notice of resignation is given. Executive shall be entitled to no
additional compensation past the date of a notice of termination for cause or
after 30 days from the notice of resignation.
8. Payment Upon Termination of Employment Without Cause or Termination
Upon Failure to Renew
a. If, during the term of this Agreement Executive is terminated
without cause, and without cause shall include death, disability or mutual
agreement, or if the Company fails to renew the Agreement as of August 16, 2000,
or at the end of any one-year extension, Executive shall not be entitled to
receive his agreed compensation for the balance of the term of this Agreement
but shall instead receive a severance payment equal to his base monthly
compensation payable for six months in accordance with Datakey's payroll periods
beginning the first month following the last month of his employment term, plus
quarterly bonus payments for two quarters, each quarterly payment equal to the
average quarterly bonus paid during the prior four quarters.
b. Base compensation shall be deemed to be the amount of current
compensation on the date of termination reflected in the Company's personnel
files but, in any event, no less than $9,583.33 per month.
c. The payments provided for under this Section 8 shall, in the event
of Executive's death, continue and shall be payable to his wife if she survives
or, if not, to his estate.
d. The Company will continue to provide medical and health coverage,
under its plans as they currently exist or may hereafter be amended, at Company
subsidized rates during the six-month severance pay period. Thereafter,
Executive and his covered dependents will be entitled to elect to continue
coverage under COBRA to the extent it is available. Coverage by the Company or
under COBRA will end on the earlier of Executive's obtaining new employment,
which gives him the ability to provide medical and health insurance coverage for
himself and his family through his new employer, or the failure to pay any
premium when due. In addition, the supplemental life and disability insurance
and auto allowance as listed on Exhibit A will continue for six months at
Company expense.
9. Termination of Employment or Resignation Within Twelve Months of a
Change in Control
a. If Employee's employment is terminated within twelve months of a
Change of Control, or if Employee resigns within twelve months of a Change of
Control because of a material diminution of position responsibilities or
remuneration or relocation of 50 miles or more in work location, notwithstanding
such termination or resignation, Employee shall receive his base monthly
compensation for a period of twelve months in accordance with Datakey's payroll
periods beginning the first month following Employee's termination or
resignation in accordance with the Company's payroll periods, plus quarterly
bonus payments for four quarters, each quarterly payment equal to the average
quarterly bonus paid during the prior four quarters.
b. The Company will continue to provide medical and dental coverage,
under its plans as they currently exist or may hereafter be amended, at Company
subsidized rates during the twelve month severance pay period, provided
Executive elects to extend such medical and dental coverage under COBRA.
Thereafter, Executive and his covered dependents will be entitled to elect to
continue coverage under COBRA, at his own expense, to the extent and for as long
as it is available. Coverage by the Company or under COBRA will end on the
earlier of Executive's obtaining new employment, which gives him the ability to
provide medical and health insurance coverage for himself and his family through
his new employer, or the failure to pay any premium when due. In addition, the
supplemental life and disability insurance and auto allowance as listed on
Exhibit A will continue for twelve months at Company expense.
c. A Change in Control shall be deemed to have occurred if: (a) any
person or entity not currently a shareholder of the Company becomes the
beneficial owner of thirty-five percent (35%) or more of the Company's
outstanding securities other than any institution, individual, individuals
acting in concert, or entity owning thirty-five percent (35%) or more of the
Company's outstanding securities as of the date of this Agreement; (b) the
consummation of a merger or consolidation of the Company into or with any other
corporation; (c) the consummation of a plan of complete liquidation of the
Company; or (d) the consummation of the sale of substantially all of the
Company's assets.
d. The payments provided for under this Section 9 shall, in the event
of Employee's death, continue and be payable to his wife if she survives or, if
not, to his estate.
10. Nondisclosure
Except by written permission from Datakey, Executive shall never
disclose or use any trade secrets, sales projections, formulations, customer
lists or information, product specifications or information, credit information,
production know-how, research and development plans or other information not
generally known to the public ("Confidential Information") acquired or learned
by Executive during the course, and on account, of his employment, whether or
not developed by Executive, except as such disclosure or use may be required by
his duties to Datakey, and then only in strict accordance with his obligations
of service and loyalty thereto. Upon termination of employment, Executive agrees
to deliver to Datakey all Confidential Information.
11. Inventions
Any invention, discovery, improvement, or idea, whether patentable or
copyrightable or not, and whether or not shown or described in writing or
reduced to practice ("Invention") shall be promptly and fully disclosed by
Executive to the Company, and the Company will hold in trust for its sole right
and benefit, any Invention that Executive, during the period of employment, and
for one year thereafter, make, conceive, or reduce to practice or cause to be
made, conceived, or reduced to practice, either alone or in conjunction with
others, that:
a. Relates to any subject matter pertaining to Executive's employment
with the Company;
b. Relates to or is directly or indirectly connected with the Company's
business, products, projects, or Confidential Information; or
c. Involves the use of any time, material, or facility of the
Company's.
Executive hereby assigns to the Company all of his right, title, and
interest in and to all such Inventions and, upon the Company's request, shall
execute, verify, and deliver to the Company such documents including, without
limitation, assignments and applications for Letters Patent, and shall perform
such other acts, including, without limitation, appearing as a witness in any
action brought in connection with this Employment Agreement that is necessary to
enable the Company to obtain the sole right, title, and benefit to all such
Inventions.
12. Specific Performance
Executive acknowledges that a breach of this Employment Agreement would
cause Datakey irreparable injury and damage which could not be remedied or
adequately compensated by damages at law; therefore, Executive expressly agrees
that Datakey shall be entitled, in addition to any other remedies legally
available, to injunctive and/or other equitable relief to prevent a breach of
this Employment Agreement.
13. Noncompetition
a. Executive will not, directly or indirectly, alone or in any capacity
with another legal entity, (i) engage in any activity that competes in any
respect with Datakey, (ii) contact or in any way interfere or attempt to
interfere with the relationship of Datakey with any current or potential
customers of Datakey, or (iii) employ or attempt to employ any employee of
Datakey (other than a former employee thereof after such employee has terminated
employment with the Datakey), for the following periods:
(i) six months if the termination is without cause or upon
failure to renew under Paragraph 8; or
(ii) twelve months if the termination is for cause or
voluntary resignation under Paragraph 7; or
(iii) twelve months if the termination is covered by Paragraph
9.
b. Executive acknowledges that Datakey markets products throughout the
United States and that Datakey would be harmed if Executive conducted any of the
activities described in this Section 13 anywhere in the United States.
Therefore, Executive agrees that the covenants contained in this Section 13
shall apply to all portions of, and throughout, the United States.
c. Executive acknowledges that if he fails to fulfill his obligations
under this Section 13, the damages to Datakey would be very difficult to
determine. Therefore, in addition to any other rights or remedies available to
Datakey at law, in equity, or by statute, Executive hereby consents to the
specific enforcement of the provisions of this Section 13 by Datakey through an
injunction or restraining order issued by the appropriate court.
d. To the extent any provision of this Section 13 shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of such
provision and this Section 13 shall be unaffected and shall continue in full
force and effect. In furtherance to and not in limitation of the foregoing,
should the duration or geographical extent of, or business activities covered
by, any provision of this Section 13 be in excess of that which is valid and
enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which are validly and enforceably
covered. Executive acknowledges the uncertainty of the law in this respect and
expressly stipulates that this Section 13 be given the construction which
renders its provisions valid and enforceable to the maximum extent (not
exceeding its expressed terms) possible under applicable laws.
14 Miscellaneous
a. Waiver by Datakey of a breach of any provision of this Agreement by
Executive shall not operate or be construed as a waiver of any subsequent breach
by Executive.
b. This Agreement shall be binding upon and inure to the benefit of
Datakey, its successors and assigns, and as to Executive, his heirs, personal
representatives, estate, legatees, and assigns.
c. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements whether written or oral relating hereto.
d. This Agreement shall be governed by and construed under the laws of
the State of Minnesota.
IN WITNESS WHEREOF, the parties have hereto executed this Employment
Agreement effective as of the day and year first above written.
DATAKEY, INC.
By /s/ Carl P. Boecher
Carl P. Boecher, President
/s/ Timothy L. Russell
Timothy L. Russell, Executive
<PAGE>
EXHIBIT A
TO
EMPLOYMENT AGREEMENT DATED AUGUST 16, 1999
EXECUTIVE BENEFITS
- -- Group health, dental, life and disability insurance, 401K plan, 125
plan and other benefits as provided to all employees
- -- Supplemental life insurance in the amount of $200,000, based upon
standard rates and underwriting decisions regarding medical history,
paid 100% by the Company
- -- Supplemental long-term disability insurance paying up to $4,000 per
month based upon standard rates and underwriting decisions regarding
medical history, paid 90% by the Company
- -- Auto allowance of $500 per month
- -- Four weeks of annual vacation; unused vacation cannot be carried over
- -- Sick leave as needed, up to 90 days at the discretion of the CEO
- -- Comprehensive annual physical examination at Park Nicollet Executive
Health Center paid by the Company
- -- Up to $6,000 to be applied only to outplacement counseling of
Executive's choice and paid directly to the outplacement counselor
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION & RESULTS OF
OPERATIONS
Results of Operations
The table below summarizes changes in selected operating indicators, showing
certain income, cost and expense items as a percentage of total revenue for each
of the past two years. Inflation has not been a significant factor in Datakey's
operations to date.
Percentage of Total
Revenue
---------------------------
Year Ended December 31, 1999 1998
------------- -------------
Revenue.......................... 100% 100%
Cost and Expenses
Cost of goods sold............... 60 63
Research and development......... 39 29
Marketing and sales.............. 37 35
General and administrative....... 14 13
------------- -------------
Total cost and expenses....... 150 140
Interest income.................. 0 1
Loss before income taxes......... (50) (39)
Income taxes..................... - -
-------------
-------------
Net loss......................... (50)% (39)%
------------- -------------
Comparison of 1999 with 1998
Total revenue: Total revenue was $5,866,000 in 1999 compared to $5,870,000 in
1998. The substantially equivalent revenue was due to a reduction in orders from
a few key Electronic Products (EP) customers offset by an increase in orders in
the Information Security Solutions (ISS) business segment. ISS revenue in 1999
increased to $1,316,000 compared to $629,000 in 1998.
Gross margins: The gross profit margin increased to 40 percent in 1999 from 37
percent in 1998. This improvement was principally due to a larger percentage of
ISS sales which, generally, carry higher gross profit margins.
Research and development: Research and development (R&D) expense increased by 36
percent to $2,282,000 in 1999 from $1,673,000 in 1998. R&D expense increased
during 1999 as the Company invested in significant upgrades and enhancements to
its ISS products and also developed system level products for the EP business
unit.
Marketing and sales, General and administrative: Marketing and sales expense
increased 4 percent to $2,151,000 in 1999 from $2,069,000 in 1998. The increase
in 1999 expense resulted from increases in advertising and promotional
activities to promote the Company's information security products.
General and administrative expenses increased 4 percent to $822,000 in 1999
from $794,000 in 1998 primarily as a result of increases in office rental and
real estate tax.
Interest income: Interest income decreased to $3,000 in 1999 from $58,000 in
1998 due to a decline in the Company's interest bearing cash equivalent
accounts.
Income tax expense: As a result of the net cumulative operating losses of
approximately $10,000,000 at December 31, 1999, and $8,000,000 at December 31,
1998 the Company recorded no income tax expense in either year.
Net loss. Net loss in 1999 was $2,909,000 compared to $2,289,000 in 1998
primarily due to the significant 1999 increase in marketing, sales and R&D
expenditures in advance of sufficient revenues from the ISS business unit to
offset these increased expenses.
Comparison of 1998 with 1997
Total revenue: Total revenue was $5,870,000 in 1998, a decrease of 2 percent
from $5,977,000 in 1997. The revenue decrease was primarily due to a reduction
in orders from a few key Electronic Products (EP) customers, offset, in part, by
an increase in orders in the Information Systems Solutions (ISS) business
segment.
Gross margins: The gross profit margin increased to 37 percent in 1998 from 27
percent in 1997. This improvement was principally due to improved materials and
labor costs in relation to selling prices and a reduction in scrap and yield
loss.
Research and development: Research and development (R&D) expense decreased by 47
percent to $1,673,000 in 1998 from $3,186,000 in 1997. R&D expense declined
substantially because the initial new product development phase was completed in
1997, and the Company was able to concentrate on product enhancements and
upgrades during 1998.
Marketing and sales, General and administrative: Marketing and sales expense
increased 21 percent to $2,069,000 in 1998 from $1,716,000 in 1997. The increase
in 1998 expense resulted from increases in sales salaries, advertising and
promotional activities to promote the Company's information security products.
General and administrative expenses increased 11 percent to $794,000 in 1998
from $713,000 in 1997 primarily as a result of increases in office rental, real
estate tax, and corporate insurance expense.
Interest income: Interest income decreased to $58,000 in 1998 from $170,000 in
1997 due to a decline in the Company's interest bearing cash equivalent
accounts.
Income tax expense: As a result of the net cumulative operating losses of
approximately $8,000,000 at December 31, 1998, the Company recorded no income
tax expense in 1998 compared to a tax expense of $325,000 in 1997.
Liquidity and Capital Resources
The Company had a reduction of $509,000 in cash and cash equivalents in 1999
compared to a reduction of $452,000 in cash and cash equivalents in 1998. The
1999 reduction resulted from the net loss of $2,909,000, due in part to
significant expenditures totaling $4,434,000 in research and development and
marketing which were principally related to the Company's new products. The
decrease in cash was offset, in part, by $2,537,000 in proceeds from the sale of
securities. The Company invested $271,000 in the purchase of equipment and
maintenance of licenses and patents in 1999 compared to $183,000 in 1998. Cash
and cash equivalents as of December 31, 1999, were $345,000 as compared to
$854,000 as of December 31, 1998. Since the beginning of 2000, the Company has
received over $5,000,000 from the sale of securities.
Datakey's balance sheet reflects $2,080,000 in working capital and a current
assets to current liabilities ratio of 2.9 to 1 as of December 31, 1999.
In 2000, the Company plans to increase new product development, marketing
activities and inventory levels. Based on its current plan, which assumes
significantly increased revenues from its ISS segment, the Company believes its
working capital together with its bank line of credit, which the Company plans
to extend for another year, and proceeds from the sale of securities will be
sufficient to fund its planned operations and product development and
promotional activities in 2000. In the event that the revenues for the Company's
ISS products are significantly less than projected, the Company's ability to
extend its current bank credit line may be jeopardized and the Company's ability
to maintain its current business operations will be materially and adversely
affected.
Outlook & Risks
Certain statements in this Annual Report are forward looking, are based upon
current expectations and actual results may differ materially due to risks and
uncertainties, including those set forth below.
Revenue: Revenue from the EP segment is expected to increase gradually during
2000 as shipments of new system level products to new customers come on line.
Revenue from the ISS segment is expected to increase as more pilot programs move
into a deployment phase, additional pilot programs are commenced and additional
licensing agreements are arranged. Revenue increases from both the EP and ISS
segments depend on customer acceptance, competition, and the effectiveness of
the Company's marketing and sales organization. There is no assurance that the
Company will achieve its revenue plan.
Gross margins: A gradual improvement in gross profit margins during 2000 is
expected through effective material purchasing, an anticipated increase in
revenue without an attendant increase in factory overhead, an anticipated
increase in the revenue contribution from ISS products that, generally, carry
higher margins, and improvements in manufacturing efficiency. Such an increase
in gross margin depends on achievement of the expected purchasing prices,
realization of the revenue increases, and a continuation of improvement in
factory processes.
Research and development: The Company intends to increase funding for new
product development activities in 2000 by about 35 percent compared to 1999 to
accelerate the pace at which new products and product enhancements are released
into the marketplace. The ability to increase such funding depends on the
Company's capital resources.
Marketing and sales, General and administrative: Marketing and sales expenses
are expected to increase about 75 percent in 2000 to support new product
introductions, increase the number of sales and marketing personnel dedicated to
the Company's ISS products and to support the expected increase in revenue.
General and administrative expenses in 2000 are expected to increase about 30
percent from the 1999 level.
Interest income (expense): Interest income is expected to increase materially in
2000 as the Company intends to invest the proceeds from the sale of securities,
completed in early 2000, into interest bearing accounts.
Income taxes: As a result of a net operating loss carry-forward the Company does
not expect to record an income tax benefit or expense during 2000.
Expected loss: The Company expects to report a loss in 2000. The Company's
ability to attain profitability after 2000 will depend primarily on its ability
to significantly increase the revenue contribution from its ISS segment. Based
upon the level of sales of Information Security Solutions products to date,
there has not been sufficient market acceptance to be assured that, after 2000,
Information Security Solutions sales will increase significantly or that the
Company will attain profitability.
Year 2000
The Company has experienced no interruption in its business operations as a
result of year 2000 issues in its major software systems. The Company has,
likewise, not been made aware of any year 2000 malfunctions in the imbedded
software contained in the products and systems sold by the Company. Should a
problem come to light in the future the Company believes that, since nothing
material has surfaced at this point, the cost to remedy any defects is likely to
be insignificant.
<PAGE>
CONTENTS
- --------------------------------------------------------------------------------
INDEPENDENT AUDITOR'S REPORT 1
- --------------------------------------------------------------------------------
FINANCIAL STATEMENTS
Consolidated balance sheets 2 - 3
Consolidated statements of operations 4
Consolidated statements of stockholders' equity 5 - 6
Consolidated statements of cash flows 7
Notes to consolidated financial statements 8 - 16
- --------------------------------------------------------------------------------
<PAGE>
INDEPENDENT AUDITOR'S REPORT
To the Stockholders
Datakey, Inc.
Burnsville, Minnesota
We have audited the accompanying consolidated balance sheets of Datakey, Inc.
and Subsidiary as of December 31, 1999 and 1998, and the related consolidated
statements of operations, stockholders' equity, and cash flows for the years
then ended. These consolidated financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
consolidated 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 consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated 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 consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Datakey, Inc. and
Subsidiary as of December 31, 1999 and 1998, and the results of their operations
and their cash flows for the years then ended, in conformity with generally
accepted accounting principles.
/s/ McGladrey & Pullen, LLP
Minneapolis, Minnesota
February 4, 2000, except for Note 10, as to which
the date is February 15, 2000
1
<PAGE>
DATAKEY, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
December 31, 1999 and 1998
<TABLE>
<CAPTION>
ASSETS (Note 3) 1999 1998
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 344,922 $ 853,827
Trade receivables, less allowance for doubtful accounts of
$26,000 and $30,000 in 1999 and 1998, respectively (Note 7) 1,474,480 859,636
Inventories (Note 2) 1,328,991 1,007,948
Prepaid expenses and other 29,981 56,237
---------- ----------
Total current assets 3,178,374 2,777,648
---------- ----------
Other Assets
Licenses and patents, less amortization--1999 $364,832;
1998 $229,523 (Note 8) 668,036 674,481
---------- ----------
Equipment and Leasehold Improvements, at cost
Production tooling 1,306,260 1,251,857
Equipment 2,768,214 3,012,184
Furniture and fixtures 317,103 304,853
Leasehold improvements 278,371 286,916
---------- ----------
4,669,948 4,855,810
Less accumulated depreciation 3,917,996 3,771,659
---------- ----------
751,952 1,084,151
---------- ----------
$4,598,362 $4,536,280
========== ==========
</TABLE>
See Notes to Consolidated Financial Statements.
2
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY 1999 1998
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
Current Liabilities
Accounts payable $ 803,887 $ 435,873
Accrued expenses:
Compensation 197,335 162,509
Other 97,144 66,364
Accrued dividends (Note 5) -- 67,023
----------- -----------
Total current liabilities 1,098,366 731,769
----------- -----------
Commitments and Contingencies (Notes 5 and 8)
Stockholders' Equity (Notes 5, 6, and 10)
Convertible preferred stock, voting, liquidation value $2.50 per
share; authorized 400,000 shares; issued and outstanding
150,000 shares 375,000 375,000
Series A convertible cumulative preferred stock, voting,
8% cumulative, liquidation value $15.80 per share plus
accrued dividends; authorized 150,000 shares; issued and
outstanding 0 shares in 1999 and 83,957 shares in 1998 -- 1,326,519
Common stock, par value $0.05 per share; authorized 10,000,000
shares; issued and outstanding 6,322,285 shares in 1999 and
3,045,704 shares in 1998 316,114 152,285
Additional paid-in capital 8,501,543 4,793,665
Accumulated deficit (5,692,661) (2,842,958)
----------- -----------
3,499,996 3,804,511
----------- -----------
$ 4,598,362 $ 4,536,280
=========== ===========
</TABLE>
3
<PAGE>
DATAKEY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
Years Ended December 31, 1999 and 1998
<TABLE>
<CAPTION>
1999 1998
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Net sales (Note 7) $ 5,866,035 $ 5,870,250
----------- -----------
Costs and expenses:
Cost of goods sold 3,522,670 3,681,124
Research and development 2,281,962 1,672,837
Marketing and sales 2,151,488 2,069,288
General and administrative 821,952 793,948
----------- -----------
Total costs and expenses 8,778,072 8,217,197
----------- -----------
Operating loss (2,912,037) (2,346,947)
Interest income 2,898 57,572
----------- -----------
Loss before income taxes (2,909,139) (2,289,375)
Income tax expense (Note 4) -- --
----------- -----------
Net loss $(2,909,139) $(2,289,375)
Net loss attributable to common stockholders:
Net loss $(2,909,139) $(2,289,375)
Preferred stock beneficial conversion feature (Note 5) -- (395,000)
Preferred stock dividends (Note 5) (81,568) (78,313)
----------- -----------
Net loss attributable to common stockholders $(2,990,707) $(2,762,688)
=========== ===========
Basic and diluted loss per common share $ (0.80) $ (0.94)
Weighted-average common shares:
Basic and diluted 3,730,499 2,931,465
</TABLE>
See Notes to Consolidated Financial Statements.
4
<PAGE>
DATAKEY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Years Ended December 31, 1999 and 1998
<TABLE>
<CAPTION>
Series A Cumulative
Convertible Preferred Stock Preferred Stock
---------------------------- -----------------------------
Shares Amount Shares Amount
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Balance, December 31, 1997 150,000 $ 375,000 -- $ --
Issuance of common stock under stock options (Note 6) -- -- -- --
Issuance of Series A preferred stock (net of offering expenses)
(Note 5) -- -- 100,000 1,580,000
Preferred stock beneficial conversion feature (Note 5) -- -- -- --
Preferred stock dividends (Note 5) -- -- -- --
Conversion of Series A preferred stock, including accrued
dividends, to common stock (Note 5) -- -- (16,043) (253,481)
Net loss -- -- -- --
----------- ----------- ----------- -----------
Balance, December 31, 1998 150,000 375,000 83,957 1,326,519
Conversion of Series A preferred stock, including accrued
dividends, to common stock (Note 5) -- -- (83,957) (1,326,519)
Issuance of common stock (net of offering expenses) -- -- -- --
Preferred stock dividends (Note 5) -- -- -- --
Preferred stock dividends forgiven (Note 5) -- -- -- --
Compensation expense on stock options -- -- -- --
Net loss -- -- -- --
----------- ----------- ----------- -----------
Balance, December 31, 1999 150,000 $ 375,000 -- $ --
=========== =========== =========== ===========
(continued)
</TABLE>
See Notes to Consolidated Financial Statements
5
<PAGE>
DATAKEY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Years Ended December 31, 1999 and 1998
(continued)
<TABLE>
<CAPTION>
Common Stock Additional
---------------------- Paid-In Accumulated
Shares Amount Capital Deficit Total
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1997 2,887,235 $144,361 $4,089,283 $ (80,270) $ 4,528,374
Issuance of common stock under stock options (Note 6) 62,500 3,125 230,105 -- 233,230
Issuance of Series A preferred stock (net of offering expenses)
(Note 5) -- -- (180,695) -- 1,399,305
Preferred stock beneficial conversion feature (Note 5) -- -- 395,000 (395,000) --
Preferred stock dividends (Note 5) -- -- -- (67,023) (67,023)
Conversion of Series A preferred stock, including accrued
dividends, to common stock (Note 5) 95,969 4,799 259,972 (11,290) --
Net loss -- -- -- (2,289,375) (2,289,375)
---------- -------- ---------- ----------- -----------
Balance, December 31, 1998 3,045,704 152,285 4,793,665 (2,842,958) 3,804,511
Conversion of Series A preferred stock, including accrued
dividends, to common stock (Note 5) 997,555 49,878 1,284,228 (7,587) --
Issuance of common stock (net of offering expenses) 2,279,026 113,951 2,423,239 -- 2,537,190
Preferred stock dividends (Note 5) -- -- -- (73,981) (73,981)
Preferred stock dividends forgiven (Note 5) -- -- -- 141,004 141,004
Compensation expense on stock options -- -- 411 -- 411
Net loss -- -- -- (2,909,139) (2,909,139)
---------- -------- ---------- ----------- -----------
Balance, December 31, 1999 6,322,285 $316,114 $8,501,543 $(5,692,661) $ 3,499,996
========== ======== ========== =========== ===========
</TABLE>
See Notes to Consolidated Financial Statements.
6
<PAGE>
DATAKEY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years Ended December 31, 1999 and 1998
<TABLE>
<CAPTION>
1999 1998
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash Flows From Operating Activities
Net loss $(2,909,139) $(2,289,375)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation 440,820 515,391
Amortization 135,309 47,722
Loss on disposal of equipment 33,854 --
Noncash compensation 411 --
Changes in assets and liabilities:
Trade receivables (614,844) (225,369)
Inventories (321,043) 74,789
Accounts payable 368,014 251,770
Other 91,862 (275,833)
----------- -----------
Net cash used in operating activities (2,774,756) (1,900,905)
----------- -----------
Cash Flows From Investing Activities
Purchase of equipment (177,475) (126,294)
Proceeds on sale of equipment 35,000 --
License and patent costs (128,864) (56,901)
----------- -----------
Net cash used in investing activities (271,339) (183,195)
----------- -----------
Cash Flows From Financing Activities
Net proceeds from issuance of common stock 2,537,190 233,230
Net proceeds from issuance of preferred stock -- 1,399,305
----------- -----------
Net cash provided by financing activities 2,537,190 1,632,535
----------- -----------
Decrease in cash and cash equivalents (508,905) (451,565)
Cash and Cash Equivalents
Beginning 853,827 1,305,392
----------- -----------
Ending $ 344,922 $ 853,827
=========== ===========
Supplemental Schedule of Noncash Investing and Financing Activities
Decrease in liability for license obligation $ -- $ (439,000)
Beneficial conversion feature (Note 5) -- 395,000
Accrued dividends (Note 5) -- 67,023
Preferred stock dividend converted to common stock 7,587 11,290
Preferred stock dividends forgiven (Note 5) 141,004 --
=========== ===========
</TABLE>
See Notes to Consolidated Financial Statements
7
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Nature of Business and Significant Accounting Policies
Nature of business: Datakey, Inc., is an international supplier of electronic
products and services. The Company provides product, subsystem, and system
solutions to record, store, and transmit electronic information. The Company
also provides products and systems directed to the information security market,
which enables user identification and authentication, secure data exchange, and
information validation. The Company also provides electronic products,
consisting of proprietary memory keys, cards, and other custom-shaped tokens,
that serve as a convenient way to carry electronic information and are packaged
to survive in portable environments.
A summary of significant accounting policies follows:
Principles of consolidation: The consolidated financial statements include the
accounts of Datakey, Inc., and its wholly owned subsidiary (together, the
Company). All significant intercompany accounts and transactions have been
eliminated in consolidation.
Use of estimates: 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.
Cash and cash equivalents: For purposes of reporting in the consolidated
statements of cash flows, the Company includes all cash accounts and all highly
liquid debt instruments purchased with an original maturity of three months or
less as cash and cash equivalents on the accompanying consolidated balance
sheets.
The Company maintains its cash in bank deposit accounts which, at times, may
exceed federally insured limits. The Company has not experienced any losses in
such accounts.
Inventories: Inventories are stated at the lower of cost (first-in, first-out
method) or market.
Licenses and patents: Licenses and patents are stated at cost. Patents are being
amortized using the straight-line method over their economic useful lives, which
have been estimated to be five years. The costs of the license agreements are
amortized to cost of goods sold as the products incorporating the licensed units
are sold.
Accounting for long-lived assets: The Company periodically reviews the
utilization of its licenses, patents, and other long-lived assets for
impairment. To date, management has determined that no impairment in the value
of these assets has occurred. Certain licenses with a carrying value totaling
approximately $439,000 will expire in December 2001. Beginning in 2000, the
license will be amortized over the remaining 24 months of the licensing
agreement, or as the products incorporating the licensed units are sold, if
greater.
8
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Nature of Business and Significant Accounting Policies (Continued)
Depreciation: Depreciation of equipment and leasehold improvements is computed
on the straight-line and accelerated methods over the following estimated useful
lives:
Years
- ---------------------------------------------------------------------------
Production tooling 2-5
Equipment 3-7
Furniture and fixtures 7
Leasehold improvements Life of
lease
Warranty costs: The Company provides for estimated normal warranty costs at the
time of product sales to customers and for other costs associated with specific
items at the time their existence and amounts are determinable.
Income taxes: Deferred taxes are provided on an asset and liability method
whereby deferred tax assets are recognized for deductible temporary differences
and operating loss or tax credit carryforwards, and deferred tax liabilities are
recognized for taxable temporary differences. Temporary differences are the
differences between the amounts of assets and liabilities recorded for income
tax and financial reporting purposes. Deferred tax assets are reduced by a
valuation allowance when management determines that it is more likely than not
that some portion or all of the deferred tax assets will not be realized.
Deferred tax assets and liabilities are adjusted for the effects of changes in
tax laws and rates on the date of enactment.
Revenue recognition: The Company records sales revenue upon shipment of product
or providing services to the customer. The Company's practice is to grant credit
on an unsecured basis to customers who meet certain financial criteria.
Research and development: Research and development costs are charged to expense
as incurred.
Advertising: Expenditures for advertising costs are expensed as incurred.
Fair value of financial instruments: The Company's financial instruments consist
of cash and cash equivalents and short-term trade receivables and payables for
which current carrying amounts approximate fair value.
Loss per share: The Company computes basic and diluted net loss per share based
upon the weighted-average number of common shares outstanding during each year.
Preferred stock dividends and, in 1998, the beneficial conversion feature
related to the Series A preferred stock (Note 5) are included in the net loss
attributable to stockholders in calculating basic and diluted loss per share.
Potential common shares, such as options, warrants, and convertible preferred
stock (as discussed in Note 6), were not included in the computation of diluted
loss per common share as their effect is antidilutive.
9
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1. Nature of Business and Significant Accounting Policies (Continued)
Due to the losses in 1999 and 1998, basic and diluted loss per share were the
same for each of these years.
Note 2. Inventories
Inventories consist of the following components as of December 31, 1999 and
1998:
1999 1998
- --------------------------------------------------------------------------
Raw materials $ 777,154 $ 638,671
Work in process 173,385 73,181
Finished goods 378,452 296,096
----------------------------
$ 1,328,991 $ 1,007,948
----------------------------
Note 3. Line of Credit
The Company has available a $1,000,000 line of credit from a bank which bears
interest at 1.25 percent above the prime rate (9.75 percent at December 31,
1999) and is secured by substantially all assets of the Company. The line of
credit expires in May 2000 and is subject to annual renewal. There were no
balances outstanding as of December 31, 1999 or 1998.
Note 4. Income Taxes
There has been no tax expense recorded due to losses in both 1999 and 1998.
The income tax benefit is different from that which would be computed by
applying the U.S. federal income tax rate (35 percent) to pretax loss as
follows:
<TABLE>
<CAPTION>
December 31
----------------------------
1999 1998
- ----------------------------------------------------------------------------------------
<S> <C> <C>
Computed "expected" federal tax benefit at statutory rates $ (1,018,000) $ (801,000)
Effect of net operating loss, with no current benefit 1,018,000 801,000
----------------------------
Actual tax expense $ -- $ --
----------------------------
</TABLE>
10
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 4. Income Taxes (Continued)
Deferred taxes consist of the following components as of December 31, 1999 and
1998:
1999 1998
- ------------------------------------------------------------------------
Deferred tax assets:
Allowance for doubtful accounts $ 9,000 $ 11,000
Inventory 244,000 159,000
Warranty reserve 11,000 11,000
Compensation and benefits 26,000 26,000
Net operating loss carryforward 3,700,000 2,981,000
Research and development tax credit 239,000 172,000
Contributions carryforward 15,000
----------- -----------
Total gross deferred tax assets 4,244,000 3,360,000
Valuation allowance (4,200,000) (3,244,000)
----------- -----------
Net deferred tax assets 44,000 116,000
Deferred tax liability:
Depreciation (44,000) (116,000)
----------- -----------
Net deferred taxes $ -- $ --
=========== ===========
Realization of deferred tax assets is dependent upon the generation of
sufficient future taxable income. Management has determined that sufficient
uncertainty exists regarding the realizability of the net deferred tax assets
and, accordingly, has entirely reserved the net deferred tax assets of the
Company.
At December 31, 1999, the Company's net operating loss and tax credit
carryforwards expire as follows:
Research and
Operating Development
Loss Tax Credit
Carryforward Carryforward
- ---------------------------------------------------------
2011 $ 1,850,000 $ --
2012 3,540,000 113,000
2018 2,560,000 59,000
2019 2,450,000 67,000
----------- -----------
$10,400,000 $ 239,000
=========== ===========
The future use of the federal net operating losses may be limited under the
provisions of the Internal Revenue Code, Section 382, which relates to a 50
percent change in control over a three-year period. Further changes of control
may result in additional limitations of the remaining carryforward. Utilization
of the carryforwards is dependent upon the Company attaining profitable
operations in the future.
11
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 5. Stockholders' Equity
Convertible preferred stock: The preferred stock is convertible at the rate of
one share of common stock for each share of preferred stock, subject to certain
antidilution adjustments. Conversion is mandatory in the event of certain future
public offerings of corporate stock. The holders of the preferred stock have
certain piggyback and demand registration rights, have a liquidation preference
of $2.50 per share, and share in dividends paid on common stock.
Series A convertible cumulative preferred stock: In May 1998, the Company
completed a $1.58 million convertible preferred stock offering which entitled
the preferred stockholders to convert their investment into common shares at 80
percent of the average closing price (for a 10-day period prior to conversion)
of the Company's common stock. Because the preferred stock could have been
converted to common stock at a 20 percent discount to average market value, a
"beneficial conversion feature," which was valued at $395,000, was recorded by
the Company in 1998. The beneficial conversion feature did not require the
Company to disburse any cash and was recorded by increasing both additional
paid-in capital and accumulated deficit, with no effect on overall stockholders'
equity.
The holders of the Series A convertible preferred stock were also entitled to
receive dividends at the rate of 8 percent annually, which were payable at the
option of the Company in cash or shares of the Company's common stock.
Accumulated dividends of $7,587 were paid in 1999 by issuance of 2,457 shares of
common stock. Dividends of $141,004 were forgiven by two stockholders in
exchange for the right to convert their Series A convertible preferred stock
into common stock at $1.25 per common share. All outstanding shares of the
Series A convertible cumulative preferred stock were converted into 995,098
shares of common stock during 1999; therefore, there are no dividends accrued at
December 31, 1999.
Undesignated stock: The Company has 1,950,000 shares of undesignated capital
stock.
Note 6. Stock Options and Warrants
Stock options: The Company has reserved 800,000 common shares for issuance under
qualified and nonqualified stock options for its key employees and directors.
The Company has also reserved 50,000 common shares for issuance under
nonqualified options to various distributors, dealers, and consultants. Option
prices are generally at the fair market value of the stock at the time the
option was granted. Options become exercisable as determined at the date of
grant by a committee of the Board of Directors. Options expire 10 years after
the date of grant, unless an earlier expiration date is set at the time of
grant.
12
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 6. Stock Options and Warrants (Continued)
The Company has adopted the disclosure-only provisions of Statement of Financial
Accounting Standards No. 123, Accounting for Stock-Based Compensation.
Accordingly, no compensation cost has been recognized for the stock option
plans. Had compensation cost for the Company's stock option plans been
determined based on the fair value at the grant date for awards in 1999 and
1998, consistent with the provisions of SFAS No. 123, the Company's net loss
attributable to common stockholders and basic and diluted loss per share would
have changed to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
Years Ended December 31
------------------------------
1999 1998
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
Net loss attributable to common stockholders, as reported $(2,990,707) $(2,762,688)
Net loss attributable to common stockholders, pro forma (3,305,195) (3,080,178)
Basic and diluted loss per share, as reported (0.80) (0.94)
Basic and diluted loss per share, pro forma (0.89) (1.05)
</TABLE>
The fair value of each option grant is estimated on the date of grant using the
Black-Scholes option-pricing model, with the following weighted-average
assumptions used for grants in 1999 and 1998:
<TABLE>
<CAPTION>
Years Ended December 31
----------------------
1999 1998
- -----------------------------------------------------------------------------------------
<S> <C> <C>
Expected dividend yield -- --
Expected stock price volatility 75.53 65.79
Risk-free interest rate 5.63 5.22
Expected life of options 4.83 years 3.6 years
Weighted-average fair value of options granted during the year $ 1.42 $ 0.92
</TABLE>
The pro forma effect on net loss attributable to common stockholders in 1999 and
1998 is not representative of the pro forma effect in future years because it
does not take into consideration pro forma compensation expense related to
grants made prior to 1995.
Additional information relating to all outstanding options as of December 31,
1999 and 1998, is as follows:
<TABLE>
<CAPTION>
1999 1998
---------------------------- ------------------------
Weighted- Weighted-
Average Average
Exercise Exercise
Shares Price Shares Price
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Options outstanding at
beginning of year 952,333 $ 3.97 701,333 $ 3.84
Options exercised (8,000) 3.63 (62,500) 3.73
Options forfeited (243,500) 4.61 (41,000) 3.12
Options granted 310,748 2.10 354,500 4.13
--------- -------- ------- --------
Options outstanding at end of year 1,011,581 $ 3.24 952,333 $ 3.97
========= ======== ======= ========
</TABLE>
13
<PAGE>
Note 6. Stock Options and Warrants (Continued)
The following table summarizes information about stock options outstanding at
December 31, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------ ----------------------------
Weighted-
Average
Number Remaining Weighted Number Weighted-
Range of Outstanding Contractual Average Exercisable Average
Exercise at December 31, Life Exercise at December 31, Exercise
Prices 1999 (Years) Price 1999 Price
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$0.01 6,123 9.98 $ 0.01 143 $ 0.01
$1.50 - $2.25 230,500 9.27 1.82 28,664 2.25
$2.50 - $3.75 555,792 7.21 3.17 245,569 3.34
$3.813 - $5.38 209,166 6.97 4.91 126,632 4.89
$7.25 10,000 6.42 7.25 10,000 7.25
--------- ----- -------- --------- --------
$0.01 - $7.25 1,011,581 7.64 $ 3.24 411,008 $ 3.84
--------- ----- -------- --------- --------
</TABLE>
At December 31, 1998, there were 395,668 options exercisable at a
weighted-average exercise price of $4.30.
Employee stock purchase plan: Under its 1998 employee stock purchase plan, which
became effective for the plan year beginning January 1, 1999, the Company is
authorized to issue up to 100,000 shares of common stock to its full-time
employees, nearly all of whom are eligible to participate. Employees can choose
each year to have up to 10 percent of their earnings withheld to purchase the
Company's stock at a price that is 85 percent of the lower of its
beginning-of-year or end-of-year fair market value. No shares were issued under
the plan in 1999.
Warrants: The Company has issued warrants to purchase shares of common stock at
prices between $1.25 and $6.60 per share. All warrants are currently
exercisable. Warrants outstanding at December 31, 1999, total 1,470,155 and
expire as follows:
2003 48,213
2004 10,000
2008 37,890
2009 1,374,052
Note 7. Major Customers and International Sales
Major customer: Sales to U.S. government agencies for 1999 and 1998 were
approximately $608,000 and $536,000, respectively. Accounts receivable from U.S.
government agencies were approximately $158,000 and $30,000 at December 31, 1999
and 1998, respectively. There were no other major customers in 1999 or 1998.
International sales: Export sales to international customers for 1999 and 1998
were approximately $1,630,000 and $1,591,000, respectively. Accounts receivable
from international customers were approximately $388,000 and $288,000 at
December 31, 1999 and 1998, respectively.
14
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 8. Commitments and Contingencies
License agreement: The Company has entered into various license agreements to
allow the Company to bundle licensed products into certain of the Company's
products. Under the agreements, payments are based upon the number of units sold
and the nature of the item bundled. In these agreements, the Company agreed to
purchase a minimum quantity of software units over a specified period of time.
The value of the minimum purchase is included in the initial license agreement.
Lease: The Company leases its office and warehouse facilities under a
noncancelable operating lease which expires in June 2004.
Future lease commitments are as follows:
2000 $ 168,000
2001 174,000
2002 181,000
2003 187,000
2004 95,000
------------
$ 805,000
------------
Rent expense totaled approximately $189,000 and $160,000 in 1999 and 1998,
respectively.
Note 9. Operating Segments
The Company's reportable segments are strategic business units that offer
different products and services. They are managed separately because each
business requires different technology and marketing strategies. The Company has
two reportable segments: Electronic Products (EP) and ISS Information Security
Solutions (ISS). The Electronic Products segment produces and markets
proprietary memory keys, cards, and other custom-shaped tokens that serve as a
convenient way to carry electronic information. The ISS Information Security
Solutions segment produces and markets products for the information security
market, which enable user identification and authentication, secure data
exchange, and information validation.
The accounting policies of the segments are the same as those described in the
summary of significant accounting policies. There are no intersegment
transactions. The Company evaluates performance based on operating earnings of
the respective segments.
<TABLE>
<CAPTION>
December 31, 1999
------------------------------------------------------------------
EP ISS Unallocated Total
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue $ 4,550,000 $ 1,316,000 $ -- $ 5,866,000
Depreciation and amortization 411,000 165,000 -- 576,000
Segment profit (loss) (18,000) (2,894,000) 3,000 (2,909,000)
</TABLE>
15
<PAGE>
Datakey, Inc. and Subsidiary
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 9. Operating Segments (Continued)
<TABLE>
<CAPTION>
December 31, 1998
---------------------------------------------------------------
EP ISS Unallocated Total
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue $ 5,241,000 $ 629,200 $ -- $ 5,870,200
Depreciation and amortization 423,300 139,800 -- 563,100
Segment profit (loss) 573,100 (2,917,300) 54,800 (2,289,400)
</TABLE>
The Company does not segregate total assets between its two segments.
Note 10. Subsequent Events
In January 2000, the Company issued 672,832 shares of its common stock for
proceeds of $905,068, which included the exercise of 647,000 warrants.
On February 15, 2000, the Company completed a $4,000,000 private placement of
800,000 shares of common stock with net proceeds of approximately $3,650,000. In
connection with this transaction, the Company issued 880,000 warrants to
purchase common stock with exercise prices of between $5.00 and $5.50 per share.
16
Exhibit 23.1
Consent of Independent Accountant
We hereby consent to the incorporation by reference of our report, dated
February 4, 2000, with respect to the financial statements of Datakey, Inc. (the
"Company") included in this Form 10-KSB into the Company's previously filed
Registration Statements on Form S-8 No, 33-14144, No. 33-47068, No. 33-67280,
No. 333-11405, No. 33-80894, No. 333-43937 and No. 333-83999 and on Form S-3
No. 333-56711, No. 333-84007, No. 333-91779, No. 333-90969 and No. 94087.
/s/ McGladrey & Pullen, LLP
Minneapolis, Minnesota
March 23, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<CASH> 344,922
<SECURITIES> 0
<RECEIVABLES> 1,500,480
<ALLOWANCES> 26,000
<INVENTORY> 1,328,991
<CURRENT-ASSETS> 3,178,374
<PP&E> 4,669,948
<DEPRECIATION> 3,917,996
<TOTAL-ASSETS> 4,598,362
<CURRENT-LIABILITIES> 1,098,366
<BONDS> 0
0
375,000
<COMMON> 316,114
<OTHER-SE> 2,808,882
<TOTAL-LIABILITY-AND-EQUITY> 4,598,362
<SALES> 5,866,035
<TOTAL-REVENUES> 5,866,035
<CGS> 3,522,670
<TOTAL-COSTS> 3,522,670
<OTHER-EXPENSES> 5,255,402
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (2,909,139)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,909,139)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,909,139)
<EPS-BASIC> (0.80)
<EPS-DILUTED> (0.80)
</TABLE>
