AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1997
REGISTRATION NO. 333-12393
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
REGISTRATION STATEMENT ON FORM SB-2
ON
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------------------
ACCELR8 TECHNOLOGY CORPORATION
----------------------------------------------------
(Exact Name Of Registrant As Specified In Its Charter)
COLORADO 84-1072256
--------------------------------- ------------------
(State Or Other Jurisdiction (I.R.S. Employer
Of Incorporation Or Organization) Identification No.)
303 East 17th Avenue
Denver, Colorado 80203
Telephone: (303) 863-8088
-------------------------------------------------
(Address, Including Zip Code, And Telephone Number,
Including Area Code, Of Registrant's Principal Executive Offices)
Thomas V. Geimer, Chairman of the Board
Accelr8 Technology Corporation
303 East 17th Avenue
Denver, Colorado 80203
Telephone: (303) 863-8088
--------------------------------------------------------
(Name, Address, Including Zip Code, And Telephone Number,
Including Area Code, Of Agent For Service)
COPIES TO:
Henry F. Schlueter, Esq.
Celia Velletri, Esq.
Schlueter & Associates, P.C.
Suite 1700, 1050 Seventeenth Street
Denver, Colorado 80265
Telephone: (303) 292-3883
-----------------------------------------
Approximate Date Of Commencement Of Proposed Sale To Public:
-------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.[ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[ X ]
<PAGE>
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. Form SB-2 (SEC Registration No. 333-12393) [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered Per Share(1) Price (Registration Fee(1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Representative's Warrants 34,500 $.00289 $100 ---
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value,(3) 34,500 $8.40 $289,800 $89
Underlying Representative's Warrants
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Registration Fee was previously paid in connection with the Registration
Statement on Form SB-2 filed with the Commission (SEC File No. 333-12393).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- ii -
<PAGE>
<TABLE>
<CAPTION>
CROSS REFERENCE SHEET BETWEEN ITEMS OF FORM S-3
AND PROSPECTUS
ITEM IN FORM S-3 LOCATION IN PROSPECTUS
----------------- ----------------------
<S> <C> <C>
1. Forepart of Registration Statement and Outside
Front Cover of Prospectus................................... Facing Page; Cross Reference Sheet; Outside
Front Cover Page.
2. Inside Front and Outside Back
Cover Pages of Prospectus................................... Inside Front Cover Page; Outside Back
Cover Page.
3. Summary Information, Risk Factors and Ratio
of Earnings to Fixed Charges................................ Prospectus Summary; Risk Factors.
4. Use of Proceeds............................................. Prospectus Summary; Use of Proceeds.
5. Determination of Offering Price............................. Outside Front Cover Page; Plan of
Distribution.
6. Dilution.................................................... Not Applicable.
7. Selling Security Holders.................................... Selling Shareholders.
8. Plan of Distribution........................................ Plan of Distribution.
9. Description of Securities to be Registered.................. Outside Front Cover Page;
Description of Capital Stock.
10. Interests of Named Experts and Counsel...................... Legal Matters; Experts.
11. Material Changes............................................ Not Applicable.
12. Incorporation of Certain Information by Reference........... Incorporation of Certain Documents by
Reference.
13. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities.............. Not Applicable.
- iii -
</TABLE>
<PAGE>
LEGEND FOR COVER PAGE OF PROSPECTUS
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
- iv -
<PAGE>
SUBJECT TO COMPLETION, DATED DECEMBER 19, 1997
34,500 SHARES
[ACCELR8 LOGO]
ACCELR8 TECHNOLOGY CORPORATION
COMMON STOCK
This Prospectus relates to 34,500 shares of Common Stock (the "Shares") of
Accelr8 Technology Corporation (the "Company"), all of which Shares are issuable
upon exercise of representative's warrants (the "Representative's Warrants" or
"Warrants") sold to Janco Partners, Inc. (the "Representative") in connection
with an underwritten public offering undertaken in November 1996. The Shares
will be offered by the holders of the Warrants who exercise their
Representative's Warrants and thereby purchase the underlying Shares (the
"Selling Shareholders"). The Company will receive the $8.40 per Share upon
exercise of the Representative's Warrants (i.e., the exercise price of the
Representative's Warrants), but will not receive any of the proceeds from the
sale of Shares by the Selling Shareholders. The Company has agreed to pay the
expenses of registering the Shares offered hereby estimated at $11,000.
The Selling Shareholders have advised the Company that they intend to sell
the Shares offered hereby as principals for their own accounts from time to time
in the over-the-counter market at prices prevailing at the time of sale. The
Registration Statement of which this Prospectus forms a part must be current at
the time of sale. See "Plan of Distribution."
On December 18, 1997, the last sale price of the Common Stock was $22 per
share. See "Price Range of Common Stock." The Company's Common Stock is traded
on the Nasdaq National Market under the symbol "ACLY".
------------------------------------
AN INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" ON PAGE 5 FOR A DISCUSSION OF CERTAIN RISKS ASSOCIATED WITH AN
INVESTMENT IN THE SECURITIES OFFERED HEREBY.
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------------------
THE DATE OF THIS PROSPECTUS IS __________________________, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company under the Exchange Act may
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Seven World Trade Center, 13th Floor, New
York, New York 10048, and Northwestern Atrium Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material may also be obtained from the
Public Reference Section of the Commission at prescribed rates.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus omits certain information contained in the
Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the offering. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference. The
Company's Common Stock is quoted on the Nasdaq National Market, and such reports
and other information can also be inspected at the offices of Nasdaq Operations,
1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-KSB filed on October 29, 1997, as
amended on October 30, 1997, for the fiscal year ended July 31, 1997.
2. The quarterly report on Form 10-QSB filed on December 10, 1997 for the
quarter ended October 31, 1997.
3. The Proxy Statement for Annual Meeting of Stockholders, dated December
12, 1997.
4. The description of the Company's capital stock contained in the
Company's Registration Statement on Form SB-2 (S.E.C. File No. 333-12393)
initially filed with the Commission on September 20, 1996, which was declared
effective on November 18, 1996 pursuant to the Securities Act, is hereby
incorporated by reference into this Prospectus.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold, or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded to
the extent that a statement contained herein or in any other document
subsequently filed and incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Commission maintains a web site at http://www.sec.gov that contains reports,
proxy and information statements, and other information regarding issuers that
file electronically with the Commission.
- 2 -
<PAGE>
Any person receiving a copy of this Prospectus may obtain without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, other than exhibits to such documents. Requests for such
copies should be directed to Thomas V. Geimer, Chairman, Accelr8 Technology
Corporation, 303 East 17th Avenue, #108, Denver, Colorado 80203, Telephone:
(303) 863-8088.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus. See "Risk Factors" for
information prospective investors should consider.
The Company
Accelr8 Technology Corporation (the "Company") is a leading provider of
software tools and consulting services for Year 2000 compliance and for
conversion from Digital Equipment Corporation's ("DEC") VAX/VMS Legacy Systems
to UNIX and NT open client/server environments. The Year 2000 Problem is
expected to create widespread system failures due to the use of computer
programs that rely on two-digit date codes to perform computations and other
decision-making functions. The Company's "NAVIG8-2000" tools facilitate timely
and cost effective Year 2000 assessment and remediation across the multiple
language environment of DEC Legacy Systems and UNIX environments. The Company's
other focus - the conversion from DEC VAX/VMS Legacy Systems to UNIX open
client/server environments - is based on the fact that VAX/VMS Legacy Systems
use a proprietary computer operating system which is not compatible with other
manufacturers' hardware and software, whereas UNIX is a powerful, open
architecture system which is compatible with a wide range of hardware platforms
and software applications, including commercial off-the-shelf software ("COTS").
The Company believes that UNIX has become the most widely used client/server
operating system, and that the trend to client/server open systems, such as the
systems offered by UNIX and Microsoft Corporation's Windows NT operating system
("NT"), will continue for the foreseeable future. The Company's "MIGR8" tools
provide dependable solutions for migration of DEC VAX/VMS applications from the
proprietary environment of VMS to the open systems environment of UNIX.
The Company's objective is to enhance its position as a leading provider of
integrated solutions which will solve the Year 2000 Problem and meet the
conversion needs of VAX/VMS users. The Company's strategy for achieving its
objectives includes: (i) near term focus on the Year 2000 Market; (ii)
commercialization of the Company's Windows NT conversion tool set; (iii)
continue emphasis on consulting services and establishment of Year 2000 and
UNIX/NT conversion teams; (iv) developing and introducing new software tools and
services; (v) development of relationships with significant providers of
outsourcing services for an entity's information technology needs; (vi)
expanding the Company's international marketing programs, particularly in Europe
and Asia; (vii) securing additional consulting projects from existing and future
clients; (viii) continuing to target large corporations and government agencies
which require integrated solutions to their Legacy System conversion needs; and
(ix) investing in or acquiring complementary businesses, technologies or product
lines.
The Company was incorporated in 1982 under the laws of the State of
Colorado. The Company's executive offices are located at 303 East 17th Avenue,
Suite 108, Denver, Colorado 80203, and its telephone number is (303) 863-8088.
- 3 -
<PAGE>
The Offering
Common Stock offered by Selling Shareholders ....... 34,500 shares
Common Stock outstanding at October 31, 1997 ....... 7,832,507 shares (1)
Common Stock outstanding upon completion
of this offering .............................. 7,867,007 shares
Use of proceeds .................................... The shares of Common
Stock are being offered
by the Selling
Shareholders. The Company
will not receive any
proceeds from sale of the
Shares offered hereby.
Proceeds received by the
Company upon exercise of
the Warrants by the
Selling Shareholders will
be added to the Company's
working capital.
Terms of the Representative's Warrants ............. Each Representative's
Warrant is exerciseable
at a price of $8.40 in
order to obtain one share
of the Company's Common
Stock.
Nasdaq National Market symbol ...................... ACLY
- ----------------------
(1) Excludes options to acquire 335,000 shares held by employees of the Company
that may be exercised to acquire shares of Common Stock, and options to
acquire an aggregate of 50,000 shares of Common Stock held by the outside
directors of the Company.
- 4 -
<PAGE>
RISK FACTORS
In addition to the other information in this Prospectus, prospective
investors should carefully consider the following risk factors prior to making
an investment in the Common Stock offered hereby.
Dependence on Key Employees. The Company's success depends to a significant
extent upon a number of key management and technical personnel, the loss of one
or more of whom could have a material adverse effect on the Company's results of
operations. The Company carries key man life insurance in the amount of $5
million on Thomas V. Geimer, as well as life insurance on seven of its key
employees, including Thomas V. Geimer, Harry J. Fleury, Franz Huber and Timothy
Fitzpatrick, in the amount of $250,000 for each individual. The Board of
Directors has adopted resolutions under which one-half of the proceeds of any
such insurance will be dedicated to a beneficiary designated by the insured.
There can be no assurance that the proceeds from such life insurance policies
would be sufficient to compensate the Company for the loss of any of these
employees, and these policies do not provide any benefits to the Company if
these employees become disabled or are otherwise unable to render services to
the Company. Further, the Company does not currently have employment agreements
with any of its officers or key employees, and does not currently intend to have
such employment agreements in the future. The Company believes that its
continued success will depend in large part upon its ability to attract and
retain highly skilled technical, managerial, sales and marketing personnel.
There can be no assurance that the Company will be successful in attracting and
retaining the personnel it requires to develop and market new and enhanced
products and to conduct its operations successfully.
Management of Growth. The Company's rapid growth in business in recent
quarters has placed and may continue to place a significant strain on the
Company, particularly on its customer services organization. Any failure by the
Company to respond quickly to the service needs of its customers could cause the
loss of customers and have a material adverse effect on the Company's results of
operations. The Company's future operating results will depend on its ability to
expand its services organization and infrastructure commensurate with its
expanding base of customers and on its ability to attract, hire and retain
skilled employees. There can be no assurance that the Company will be able to
effectively manage any future growth.
Dependence on Year 2000 Market and Conversion of DEC VAX/VMS Legacy
Systems. The growth in the Company's professional services fees in fiscal 1997
resulted primarily from demand for its Year 2000 Problem services as awareness
of the Year 2000 Problem has grown. In addition, this demand has also accounted
for a significant portion of software license revenue for the same period as
customers have acquired the Company's software products to help address their
Year 2000 concerns. Should the demand for the Company's Year 2000 solutions and
products decline significantly as a result of new technologies, competition or
other factors, the Company's professional service fees and license revenues
would be materially and adversely affected. The Company anticipates the Year
2000 market will decline, perhaps rapidly, following the year 2000. It is the
Company's strategy to leverage customer relationships and knowledge of customer
application systems derived from its Year 2000 solutions to market other
products and services beyond the Year 2000 market. However, there can be no
assurance that this strategy will be successful, and should the Company be
unable to market other products and services as demand in the Year 2000 market
declines, whether as a result of technological change, competition or other
factors, the Company's business, results of operations and financial condition
will be materially and adversely affected.
The Company's only other software products and services are designed for
conversion from VAX/VMS Legacy Systems to UNIX and NT open client/server
environments. Future revenues from this line of business are dependent upon
users of VAX/VMS Legacy Systems electing to convert their data and applications
to UNIX and NT environments. To the extent that users of VAX/VMS Legacy Systems
- 5 -
<PAGE>
elect to abandon their VAX/VMS applications and data and to re-write their
information technology systems entirely in UNIX or NT environments without
conversion, the Company's revenues and future prospects could be materially and
adversely affected.
Concentration of Revenues. A significant portion of the Company's revenues
have been derived from substantial orders placed by a small number of customers.
As a result, the Company's revenues have been concentrated among a relatively
small number of customers. In fiscal 1997, one customer accounted for 13% of the
Company's revenues, and in fiscal 1996 revenues from the Company's three largest
customers amounted to 41% of the Company's total revenues. The Company expects
that it will continue to be dependent upon a limited number of customers for
significant portions of its revenues in future periods. Generally, the Company
is hired for a specific project that will be completed within a fixed period of
time. Once a project has been completed, customers generally will not require
significant services in the future. However, during particular periods, certain
customers may be significant. There can be no assurance that revenues from
customers that accounted for significant revenues in past periods, individually
or as a group, will continue or, if continued, will reach or exceed historical
levels in any future period. The Company's operating results may in the future
be subject to substantial period-to-period fluctuations as a consequence of such
customer concentration.
Ability to Respond to Technological Change. The Company's future success
will depend significantly on its ability to enhance its current products and
develop or acquire and market new products which keep pace with technological
developments and evolving industry standards as well as respond to changes in
customer needs. There can be no assurance that the Company will be successful in
developing or acquiring product enhancements or new products to address changing
technologies and customer requirements adequately, that it can introduce such
products on a timely basis or that any such products or enhancements will be
successful in the marketplace. The Company's delay or failure to develop or
acquire technological improvements or to adapt its products to technological
change would have a material adverse effect on the Company's business, results
of operations and financial condition.
Dependence Upon Proprietary Technology; Intellectual Property Rights. The
Company relies primarily on a combination of copyright, trademark and trade
secret laws, employee and third party disclosure agreements, license agreements
and other intellectual property protection methods to protect its proprietary
rights. The Company's proprietary software products are generally licensed to
customers on a "right to use" basis pursuant to a perpetual, nontransferable
license that generally restricts use to the customer's internal purposes and to
a specific computer platform that has been assigned a "key code." However, it
may be possible for unauthorized third parties to copy or reverse engineer
certain portions of the Company's products or obtain and use information the
Company regards as proprietary. The Company currently has no patents and
existing trade secret and copyright laws provide only limited protection. The
Company's competitive position and operations may be adversely affected by
unauthorized use of its proprietary information, and there can be no assurance
that the protections put in place by the Company will be adequate.
There can be no assurance that third parties will not assert infringement
or other claims against the Company with respect to any existing or future
products, or that licenses would be available if any Company technology were
successfully challenged by a third party, or if it became desirable to use any
third-party technology to enhance the Company's products. Litigation to protect
the Company's proprietary information or to determine the validity of any
third-party claims could result in significant expense to the Company and divert
the efforts of the Company's technical and management personnel, whether or not
such litigation is determined in favor of the Company.
- 6 -
<PAGE>
Competition. The market for the Company's products and services is
competitive and subject to rapid change. There can be no assurance that
competitors will not develop products or alternative technologies that: (i) are
superior to the Company's products; (ii) achieve greater market acceptance; or
(iii) make the Company's products obsolete. Further, there can be no assurance
that the Company will be able to compete successfully with its present or
potential competition, or that competition will not have a material adverse
effect on the Company's results of operations and financial condition.
Possible Volatility of Stock Price; Dividend Policy. The market price of
the Company's Common Stock could be subject to significant fluctuations in
response to variations in actual and anticipated quarterly operating results,
changes in earnings estimates by analysts, announcements of new products or
technological innovations by the Company or its competitors, and other events or
factors. In addition, the stocks of many technology companies have experienced
extreme price and volume fluctuations that have often been unrelated to the
companies' operating performance. The Company does not intend to pay any cash
dividends on its Common Stock in the foreseeable future.
Control by Management. The officers, directors and key employees of the
Company own approximately 17.5% % of the outstanding shares of Common Stock and,
if they exercise all of the options and warrants that they currently hold, they
will own approximately 20.1% of the Company's outstanding shares of Common
Stock. Due to their stock ownership, the officers, directors and key employees
may be in a position to elect the Board of Directors and, therefore, to control
the business and affairs of the Company, including certain significant corporate
actions such as acquisitions, the sale or purchase of assets and the issuance
and sale of the Company's securities.
Shares Eligible for Future Sale. As of July 31, 1997, the Company had
reserved 385,000 shares of Common Stock for issuance upon exercise of options
which have been or may be granted pursuant to its stock option plans ("Plan
Options"), and 1,140,000 shares for issuance upon the exercise of warrants and
options by Thomas V. Geimer at an exercise price of $0.24 per share. An
aggregate of 335,000 of the Plan Options are exercisable at $0.36 per share, and
the remaining 50,000 Plan Options which are currently outstanding are
exercisable at $7.25 per share. In October, Mr. Geimer exercised his options and
warrants and simultaneously contributed 1,129,110 shares being to a Rabbi Trust
for the benefit of Thomas V. Geimer. Under the terms of the Rabbi Trust these
shares will be held in the trust, and carried as treasury stock by the Company.
The Rabbi Trust provides that upon Mr. Geimer's death, disability, or
termination of his employment the shares will be released ratably over the
subsequent ten (10) years, unless the Board of Directors determines otherwise.
Sales of Common Stock underlying Plan Options or shares released by the Rabbi
Trust to Mr. Geimer may adversely affect the price of the Common Stock.
Important Factors related to Forward-Looking Statements and Associated
Risks. This Prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, and the Company intends that such
forward-looking statements be subject to the safe harbors created thereby. These
forward-looking statements include the plans and objectives of management for
future operations, including plans and objectives relating to the products and
future economic performance of the Company. The forward-looking statements
included herein are based on current expectations that involve a number of risks
and uncertainties. These forward-looking statements are based on assumptions
that the Company will continue to provide services and develop, market and ship
products on a timely basis, that competitive conditions within the software
industry will not change materially or adversely, that demand for the Company's
products and services will remain strong, that the Company will retain existing
independent sales representatives and key management personnel, that the
Company's forecasts will accurately anticipate market demand and that there will
be no material adverse change in the Company's operations or business.
- 7 -
<PAGE>
Assumptions relating to the foregoing involve judgments with respect to, among
other things, future economic, competitive and market conditions and future
business decisions, all of which are difficult or impossible to predict
accurately and many of which are beyond the control of the Company. Although the
Company believes that the assumptions underlying the forward-looking statements
are reasonable, any of the assumptions could prove inaccurate and, therefore,
there can be no assurance that the results contemplated in forward-looking
information will be realized. In addition, the business and operation of the
Company are subject to substantial risks which increase the uncertainty inherent
in such forward-looking statements. In light of the significant uncertainties
inherent in the forward-looking information included herein, the inclusion of
such information should not be regarded as a representation by the Company or
any other person that the objectives or plans of the Company will be achieved.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares offered hereby. Upon exercise of the Warrants, the Company will receive
net proceeds of approximately $289,800 . Such proceeds will be used as working
capital and for general corporate purposes. Net proceeds not immediately
required will be invested principally in U.S. government securities, short-term
certificates of deposit, money market funds or other short-term,
interest-bearing securities.
PRICE RANGE OF COMMON STOCK
Since November 19, 1996, the Company's Common Stock has traded on the
Nasdaq National Market under the symbol "ACLY." Prior to that date, the Common
Stock was traded in the over-the-counter market on the Nasdaq Electronic
Bulletin Board. On December 18, 1997, the last sale price of the Common Stock
was $22 per share.
The table set forth below presents the range, on a quarterly basis, of high
and low bid prices per share of Common Stock as reported by the National
Quotation Bureau, Inc. The quotations represent prices between dealers and do
not include retail markup, markdown or commissions and may not necessarily
represent actual transactions. The prices for the quarters ended after October
31, 1996, present high and low sale prices as reported by Nasdaq.
Quarter Ended High Low
- ------------- ---- ---
Fiscal 1996
October 31, 1995(1) .56 .48
January 31, 1996(1) .64 .44
April 30, 1996(1) 1.50 .80
July 31, 1996(1) 4.00 1.40
Fiscal 1997
October 31, 1996(1) 10.125 3.75
January 31, 1997 30-5/8 7-1/4
April 30, 1997 17-3/8 11-1/4
July 31, 1997 18 12-1/4
Fiscal 1998
October 31, 1997 24-5/8 12
- ------------------------
(1) These prices have been adjusted to reflect the one-for-four reverse stock
split that was effected at the close of business on November 18, 1996.
- 8 -
<PAGE>
The Company had approximately 108 shareholders of record as of July 31,
1997, which does not include shareholders whose shares are held in street or
nominee names. Management of the Company believes that there are over 600
beneficial owners of its Common Stock.
DIVIDEND POLICY
The Company has never declared or paid cash dividends on its Common Stock.
The Company plans to retain all future earnings (if any) for use in its business
and, therefore, does not anticipate paying any cash or stock dividends in the
foreseeable future. Any payment of cash dividends in the future will be
dependent upon the Company's financial condition and results of operations, as
well as other factors that the Board of Directors deems relevant.
SELLING SHAREHOLDERS
The following table sets forth the number of Shares to be owned by each of
the Selling Shareholders upon full exercise of the Representative's Warrants,
and the number of Shares to be sold. The Company has been advised that the
Selling Shareholders have sole voting and investment power with respect to all
of the Shares listed opposite their name.
Amount Of Beneficial Ownership
---------------------------------------------------
Number Of Shares
Name No. Of Shares % Of Class Being Offered
- ---- ------------- ---------- -------------
Jan E. Helen 13,500 * 13,500
Alan Angelich 6,100 * 6,100
Linda Walseth 4,900 * 4,900
Ted Henderson 3,000 * 3,000
George Levi 3,000 * 3,000
Mark Buben 1,000 * 1,000
Janco Partners, Inc. 3,000 * 3,000
- ----------------
* Less than 1%
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Company that they intend to sell
the Shares offered as principals for their own accounts. The Shares will be sold
from time to time in the over-the-counter market, in privately negotiated sales
or on other markets. The Registration Statement of which this Prospectus forms a
part must be current at any time during which the Selling Shareholders sell
Shares. The Company has agreed that it shall maintain a current Registration
Statement for nine months following the date of this Prospectus to enable the
Selling Shareholders to sell their Shares. Any securities sold in brokerage
transactions will likely involve customary broker's commissions which are
payable by the Selling Shareholders. The Company will not receive any proceeds
from the sale of Shares by the Selling Shareholders.
DESCRIPTION OF CAPITAL STOCK
Common Stock
The Company's Amended Articles of Incorporation authorize the issuance of
11,000,000 shares of Common Stock with no par value. Each record holder of
Common Stock is entitled to one vote for each share held on all matters properly
submitted to the stockholders for their vote. Cumulative voting for the election
of directors is not permitted by the Articles of Incorporation.
- 9 -
<PAGE>
At October 31, 1997, the Company had 7,832,507 shares of Common Stock
issued and outstanding, including 1,129,110 shares which were acquired by Mr.
Geimer upon exercise of his warrants and options on October 14, 1997 and
simultaneously contributed to a Rabbi Trust. Holders of outstanding shares of
Common Stock are entitled to those dividends declared by the Board of Directors
out of legally available funds; and, in the event of liquidation, dissolution or
winding up of the affairs of the Company, holders are entitled to receive,
ratably, the net assets of the Company available to stockholders after
distribution is made to the preferred stockholders, if any, who are given
preferred rights upon liquidation. Holders of outstanding shares of Common Stock
have no preemptive, conversion or redemptive rights. All of the issued and
outstanding shares of Common Stock are, and all unissued shares when offered and
sold will be, duly authorized, validly issued, fully paid and nonassessable. To
the extent that additional shares of the Company's Common Stock are issued, the
relative interests of then existing stockholders may be diluted.
Outstanding Warrants and Registration Rights
As of July 31, 1997, 34,500 Representative's Warrants were outstanding to
purchase an aggregate of 34,500 shares of Common Stock at $8.40 per share. The
Representative's Warrants are exercisable through December 2001. The Shares
underlying the Representative's Warrants are being registered on the
Registration Statement of which this Prospectus forms a part. All fees, costs
and expenses of such registration, with the exception of underwriting discounts
and commissions, will be borne by the Company.
Transfer Agent
American Securities Transfer, Inc., 938 Quail Street, Suite 101, Lakewood,
Colorado 80215, serves as the transfer agent and registrar for the Company's
Common Stock.
LEGAL MATTERS
The Company has been represented, and the legality of the securities being
offered hereby has been passed upon, by Schlueter & Associates, P.C., 1050 17th
Street, Suite 1700, Denver, Colorado 80265.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
the Company's Annual Report on Form 10-KSB for the year ended July 31, 1997,
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report incorporated herein by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
- 10 -
<PAGE>
[Back Cover Page of Prospectus]
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS, AND
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDERS. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER
TO BUY, ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE SUCH DATE.
---------------------------------------------
TABLE OF CONTENTS
PAGE
----
Available Information ..........................................
Incorporation of Certain Documents by Reference ................
Prospectus Summary .............................................
Risk Factors ...................................................
Use of Proceeds ................................................
Price Range of Common Stock ....................................
Dividend Policy ................................................
Selling Shareholders ...........................................
Plan of Distribution ...........................................
Description of Capital Stock ...................................
Legal Matters ..................................................
Experts ........................................................
34,500 SHARES
ACCELR8 TECHNOLOGY CORPORATION
COMMON STOCK
-------------------------------------
PROSPECTUS
- 11 -
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Other expenses in connection with this offering which will be paid by
Accelr8 Technology Corporation (hereinafter in this Part II, the "Company") are
estimated to be substantially as follows:
AMOUNT PAYABLE
BY THE
ITEM COMPANY
S.E.C. Registration Fees $ -0- (1)
Legal Fees 6,000.00*
Accounting Fees and Expenses 3,000.00*
Miscellaneous Expenses 2,000.00*
------------
Total $ 11,000.00*
============
- ---------------------------------
(1) The Registration Fee was previously paid in connection with the Registration
Statement on Form SB-2 filed with the Commission (SEC File No. 333-12393).
* Estimated for the purpose of this filing.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Articles of Incorporation and the Bylaws of the
Company, respectively filed as Exhibits (3.1) and (3.2), provide that the
Company will indemnify its officers and directors for costs and expenses
incurred in connection with the defense of actions, suits or proceedings where
the officer or director acted in good faith and in a manner he reasonably
believed to be in the Company's best interest and is a party by reason of his
status as an officer or director, absent a finding of negligence or misconduct
in the performance of duty.
II-1
<PAGE>
ITEM 16. EXHIBITS.
The following is a complete list of Exhibits filed as part of this
Registration Statement and which are incorporated herein.
Exhibit
No. Document
- ------- --------
3.1 Amended Articles of Incorporation of the Company(1)
3.2 Bylaws of the Company(1)
4.1 Specimen Stock Certificate(1)
4.2 Form of Representative's Warrant(1)
5.1 Opinion of Schlueter & Associates, P.C. as to legality of Common Stock
(2)
10.1 Warrant of the Company to Thomas V. Geimer for the purchase of shares
of common stock of the Company(1)
10.2 Warrant of the Company to Thomas V. Geimer for the purchase of shares
of common stock of the Company(1)
10.3 Option Agreement between Thomas V. Geimer and the Company(1)
10.4 Option Agreement between Franz Huber and the Company dated December 19,
1989(1)
10.5 Option Agreement between Timothy M. Fitzpatrick and the Company dated
April 27, 1992(1)
10.6 Option Agreement between James Reiss and the Company dated January 6,
1994(1)
10.7 Option Agreement between Norman Rullo and the Company dated
December 27, 1989(1)
10.8 Option Agreement between Joseph Steger and the Company dated
October 25, 1995(1)
10.9 Lease with 1700 Grant Associates, Ltd., dated March 31, 1992(1)
10.10 Deferred Compensation Agreement entered into by Registrant and
Thomas V. Geimer, dated March 4, 1996(1)
10.11 Deferred Compensation Plan Trust Agreement entered into by Registrant
and Kenneth R. Bennington, Trustee, dated March 1, 1996(1)
10.12 Form of Lock-up Agreement(1)
10.13 Form of Trade Secret Non-Disclosure Agreement(1)
23.1 Consent of Deloitte & Touche LLP.
II-2
<PAGE>
23.2 Consent of Schlueter & Associates (included with Exhibit 5.1)(2)
24.1 Powers of Attorney(2)
- ------------------------------------
(1) Incorporated by reference from the Company's Registration Statement on
Form SB-2 (SEC File No. 333-12393).
(2) Filed herewith
ITEM 17. UNDERTAKINGS.
(a) Rule 415.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Act, and is
therefore unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
(i) Rule 430A.
The undersigned Registrant hereby undertakes that:
(1) For determining any liability under the Securities Act of 1933, treat
the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the Registrant under Rule 424(b)(1) or (4) or 497(h) under
the Securities Act as part of this Registration Statement as of the time the
Commission declared it effective.
(2) For determining any liability under the Securities Act of 1933, treat
each post-effective amendment that contains a form of Prospectus as a new
registration statement, and that offering of the securities at that time as the
initial bona fide offering of those securities.
II-4
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Denver, State of Colorado, on December 19, 1997.
ACCELR8 TECHNOLOGY CORPORATION
By: /s/ Thomas V. Geimer
-----------------------------------------
Thomas V. Geimer, Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Harry J. Fleury President December 19, 1997
- --------------------
Harry J. Fleury
/s/ Thomas V. Geimer Director, Principal December 19, 1997
- -------------------- Executive Officer,
Thomas V. Geimer Principal Financial
Officer, and
Principal Accounting
Officer
/s/ David C. Wilhelm Director December 19, 1997
- --------------------
David C. Wilhelm
/s/ A. Alexander Arnold III Director December 19, 1997
- ---------------------------
A. Alexander Arnold III
II-5
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 to Registration Statement No. 333-12393 of Accelr8 Technology Corporation
on Form S-3 of our report dated October 24, 1997, appearing in the Annual Report
on Form 10-KSB of Accelr8 Technology Corporation for the year ended July 31,
1997, and to the reference to us under the heading "Experts" in the Prospectus,
which is part of such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
- --------------------------------
DELOITTE & TOUCHE LLP
Denver, Colorado
December 18, 1997
SCHLUETER & ASSOCIATES, P.C.
1050 Seventeenth Street, Suite 1700
Denver, Colorado 80265
(303) 292-3883
Facsimile (303) 296-8880
December 19, 1997
Board of Directors
Accelr8 Technology Corporation
303 East Seventeenth Avenue, Suite 108
Denver, Colorado 80203
Gentlemen:
We have served as your counsel in connection with the registration of the
securities described below with the United States Securities and Exchange
Commission on Post Effective Amendment No. 1 to Form SB-2 on Form S-3, SEC File
No. 333-12393. The Registration Statement covers warrants to purchase 34,500
shares of the no par value common stock of Accelr8 Technology Corporation (the
"Company") granted to Janco Partners, Inc. (the "Representative's Warrants) and
the common stock underlying those Warrants. The Representative's Warrants were
purchased, issued, and delivered in connection with the underwritten public
offering that was conducted in November 1996, and are exerciseable at $8.40 per
share. You have asked this law firm to render an opinion as to certain matters
listed below.
In connection with this opinion, we have made such investigations and
examined such records, including the Company's Articles of Incorporation and
Bylaws, as amended, and corporate minutes, as we deemed necessary to the
performance of our services and to give this opinion. We have also examined and
are familiar with the originals or copies, certified or otherwise identified to
our satisfaction, of such other documents, corporate records and other
instruments as we have deemed necessary for the preparation of this opinion. In
expressing this opinion we have relied, as to any questions of fact upon which
our opinion is predicated, upon representations and certificates of the officers
of the Company. We are not qualified to practice law in any jurisdiction other
than the State of Colorado.
In giving this opinion we have assumed:
(a) the genuineness of all signatures and the authenticity and
completeness of all documents submitted to us as originals;
(b) the conformity to originals and the authenticity of all documents
supplied to us as certified, photocopied, conformed or facsimile
copies and the authenticity and completeness of the originals of any
such documents;
(c) the proper, genuine and due execution and delivery of all documents by
all parties to them and that there has been no breach of the terms
thereof; and
(d) that the performance of any obligation under any documents in any
jurisdiction outside the United States will not be illegal or
ineffective under the laws of that jurisdiction.
<PAGE>
Board of Directors
Accelr8 Technology Corporation
December 19, 1997
Page 2
The opinions expressed are qualified in their entirety as follows:
(a) such opinions and the agreements referenced herein are subject to the
application of bankruptcy, insolvency, reorganization, state
fraudulent conveyance acts and other similar laws affecting the
enforcement of rights and all laws and legal precedents concerning the
obligations of creditors and other parties to act reasonably, in good
faith and with fairness in exercising their rights to enforce certain
remedies;
(b) the enforceability of the obligations under the agreements referenced
herein are subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law); and
(c) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which any proceedings are brought
and may not be available with respect to the enforcement of the terms
and provisions of the agreements referenced herein.
Based upon the foregoing and subject to the qualifications set forth above,
we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Colorado, and has
the corporate power and authority to own and operate its properties and to carry
on its business as it is now being conducted.
2. The Company's authorized capital consists of 11,000,000 shares of no par
value Common Stock . As of the date of this opinion, the Company has issued and
outstanding 7,832,507 shares of Common Stock. All of the issued and outstanding
shares of Common Stock are validly issued, fully paid and non-assessable.
3. All necessary corporate proceedings of the Company have been duly taken
to authorize the filing of the above-referenced Registration Statement and the
proposed public offering of the securities noted above in accordance with the
terms of that Registration Statement.
4. The Representative's Warrants which were sold to the Representative in
connection with the underwritten public offering completed in November 1996, are
validly authorized, legally issued, fully paid and non-assessable, and the
34,500 shares of Common Stock which may be issued upon the exercise of the
Representative's Warrants will, upon the purchase, receipt of full payment,
issuance and delivery thereof in accordance with their terms and the terms of
the offering described in the Registration Statement, be duly and validly
authorized, legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Prospectus included as
part of the Registration Statement in connection with the matters referred to
under the caption "Legal Matters."
Sincerely,
SCHLUETER & ASSOCIATES, P.C.
