<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1999
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
ZITEL CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S><C>
CALIFORNIA ____ 94-2566313
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) Number)
</TABLE>
--------------
47211 BAYSIDE PARKWAY, FREMONT, CALIFORNIA 94538-6517
(510) 440-9600
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
---------------
HENRY C. HARRIS, CHIEF FINANCIAL OFFICER
47211 BAYSIDE PARKWAY, FREMONT, CALIFORNIA 94538-6517
(510) 440-9600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
COPIES TO:
JOHN L. CARDOZA,ESQ., COOLEY GODWARD LLP
ONE MARITIME PLAZA #2000, SAN FRANCISCO, CALIFORNIA 94111
(415) 693-2000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
---------------
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/
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 filed in 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 of the same offering. | |
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. | |
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (2) 4,359,603 $2 25/32 $12,125,146 $3,371
TOTAL
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- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of computing
the amount of the registration fee based on the average of the high and low
prices of the Company's Common Stock as reported on the Nasdaq National
Market System on March 1, 1999.
(2) Issuable upon conversion of the 3% Convertible Subordinated Debentures due
February 1, 2000 of the Company (the "Debentures") and Common Stock Purchase
Warrants (the "Warrants"). For purposes of estimating the number of shares
of Common Stock to be included in the Registration Statement, the Company
used the maximum number of shares which may be issued upon conversion of the
Debentures and exercise of the Warrants under the terms of the Debentures
and Warrants. In addition to the shares set forth in the table, the amount
to be registered includes an indeterminate number of shares issuable upon
conversion of or in respect of the Debentures and exercise of the Warrants,
as such number may be adjusted as a result of stock splits, stock dividends
and antidilution provisions (including adjustments to the conversion price)
in accordance with Rule 416.
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
4,359,603 SHARES
ZITEL CORPORATION
-------------------
COMMON STOCK
-------------------
The Selling Securityholders identified in this Prospectus are selling
up to 4,359,603 shares of our Common Stock which may be acquired by them upon
conversion of all 3% Convertible Subordinated Debentures and Common Stock
Purchase Warrants. These shares may be offered from time to time by the Selling
Securityholders through public or private transactions, on or off the Nasdaq
National Market, at prevailing market prices or at privately negotiated prices.
The Selling Securityholders will receive all of the proceeds from the sale of
the shares and will pay all underwriting discounts and selling commissions, if
any, applicable to the sale of the shares. We will pay the expenses of
registration of the sale of the shares.
Our common stock is currently traded on the Nasdaq National Market
under the symbol "ZITL." On __________, 1999, the last reported sales price of a
share of Zitel common stock on the Nasdaq National Market was $_______ per
share.
-------------------
INVESTMENT IN THE COMMON STOCK OFFERED HEREBY INVOLVES A
HIGH DEGREE OF RISK. SEE "RISK FACTORS" ON PAGE
3 OF THIS PROSPECTUS.
-------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is ___________, 1999.
<PAGE>
THIS PROSPECTUS IS A PART OF A REGISTRATION STATEMENT WE FILED WITH THE
SEC. YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU
WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN
ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT OF THE DOCUMENT.
WHERE CAN YOU FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy the documents we file at
the SEC's public reference room in Washington, D.C., New York, New York and
Chicago, Illinois. You can request copies of these documents by writing to the
SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our SEC filings are also
available to the public at no cost from the SEC's Website at http://www.sec.gov.
The SEC allows us to "incorporate by reference" information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this Prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities and Exchange Act of 1934 (the "Exchange Act"):
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are by this reference incorporated in and made a
part of this Prospectus:
(1) The Annual Report on Form 10-K for the fiscal year ended September 30,
1998, including all matters incorporated by reference therein;
(2) The Current Report on Form 8-K filed October 6, 1998;
(3) The Proxy Statement filed on January 27, 1999, including all matters
incorporated by reference therein;
(4) The Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 1998, including all matters incorporated by reference
therein;
(5) The Current Report on Form 8-K filed December 31, 1998;
(6) The Current Report on Form 8-K filed February 16, 1999; and
(7) The Quarterly report on Form 10QA filed February 16, 1999.
---------------------------------------
2
<PAGE>
THE COMPANY
Zitel Corporation was incorporated in California in 1979. Our executive
offices are located at 47211 Bayside Parkway, Fremont, California 94538-6517,
and our telephone number is (510) 440-9600.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares by the
Selling Securityholders.
DIVIDEND POLICY
The Company has never paid cash dividends. The Company's Board of
Directors currently intends to retain any earnings for use in the Company's
business and does not anticipate paying any cash dividends in the foreseeable
future. The Company's 3% Convertible Subordinated Debentures prohibit the
payment of dividends.
RISK FACTORS
AN INVESTMENT IN THE COMPANY INVOLVES A HIGH DEGREE OF RISK. THE RISK
FACTORS SET FORTH IN THE COMPANY'S REPORTS UNDER THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED, SHOULD BE CONSIDERED CAREFULLY BEFORE PURCHASING THE COMMON
STOCK OFFERED HEREBY.
THE DEBENTURES AND WARRANTS
On February 3, 1999 we sold to the Selling Securityholders $5,000,000
of 3% Convertible Subordinated Debentures due February 1, 2000 and Common Stock
Purchase Warrants to acquire 75,000 shares of our Common Stock. The initial
conversion price of the Debentures is $2.593125. We will adjust the
conversion price in the event that the conditions in both a. and b. are met:
a. the lesser of (1) the average of the closing bid prices of the Common
Stock for the twenty consecutive trading days prior to but excluding the
forty-five calendar day anniversary of the effective date of the Registration
Statement of which this Prospectus is a part (such forty-five calendar days
to be extended one day for each day, if any, during that period on which there
is not effective registration), and (2) the average of the closing bid prices
of the Common Stock for the twenty consecutive trading days prior to but
excluding April 4, 1999, is less than $2.88125; and
b. 90% of the lesser of a(1) and a(2) above is lower than the conversion
price
In such event, the adjusted conversion price would be 90% of the lesser of
(1) and (2) above.
The exercise price of the Warrants is 130% of the conversion price, as it may
be adjusted. It will initially be $3.3710625.
3
<PAGE>
THE COMPANY
BUSINESS
We develop, market and support data management solutions in the form of
software products for performance monitoring, analysis and modeling of computer
systems. We provide solution services for the year 2000 century date conversion
opportunity through product and service offerings including MatriDigm
Corporation's MAP2000 factory conversion service. We have two business units:
Our software products business unit is the combination of the
Datametrics Systems Corporation and Palmer & Webb Systems companies, acquired in
1997, with the Company's performance & modeling software products. This business
unit's product line is composed of a suite of software with data management,
monitoring, analysis, modeling and control capabilities for mainframe computers,
open systems servers and distributed network systems.
Our solution services business unit provides Year 2000 conversion
services, including project management, planning, analysis, code conversion, and
testing. Our primary code conversion methodology is based on the MatriDigm
MAP2000 process for Cobol. In addition, as a solution provider, we utilize other
tools and processes to meet customer needs in different environments. We serve
our Year 2000 customers both directly, with its own consulting staff, and
through a teaming program where we may be the subcontractor or partner to other
solution providers worldwide.
We have made investments in MatriDigm Corporation, a private company
formed to provide COBOL maintenance and re-engineering services. The Company's
percentage ownership is now approximately 31%. Our investments in and loans to
MatriDigm have been written off or fully reserved for financial reporting
purposes.
4
<PAGE>
SELLING SECURITYHOLDERS
The following table sets forth the names of the Selling
Securityholders, the number of shares of Common Stock owned by each Selling
Securityholder prior to this offering, the number of shares of Common Stock
being offered for the account of each Selling Securityholder and the number of
shares of Common Stock to be owned by each Selling Securityholder after
completion of this offering. This information is based upon information provided
by the Selling Securityholders. Because the Selling Securityholders may offer
all, some or none of their Common Stock, no definitive estimate as to the number
of Shares thereof that will be held by the Selling Securityholders after such
offering can be provided.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BEING SHARES BENEFICIALLY
SELLING SECURITYHOLDER(1) OWNED PRIOR TO OFFERING (1) OFFERED OWNED AFTER OFFERING (3)
---------------------- ------------------------ -------- ---------------------
<S> <C> <C> <C>
Halifax Fund, L.P. 1,089,902 (2) 1,089,902 (2) 0
Palladin Overseas Fund Limited 523,152 (2) 523,152 (2) 0
Palladin Partners I, L.P. 523,152 (2) 523,152 (2) 0
The Gleneagles Fund Company 653,941 (2) 653,941 (2) 0
Palladin Securities, LLC 523,152 (2) 523,152 (2) 0
Colonial Penn Life Insurance Company 523,152 (2) 523,152 (2) 0
Lancer Securities Limited 523,152 (2) 523,152 (2) 0
</TABLE>
(1) None of the Selling Securityholders has, or within the past three years
has had, any position, office, or other material relationship with the
Company or any of its predecessors and affiliates.
(2) Assumes that all of the shares registered were allocated pro rata among
the Selling Securityholders. Assuming no adjustments were made to the
initial conversion price, 1,928,175 shares of Common Stock would be
issuable upon exercise of the Warrants and conversion of the principal
of (but not the accrued 3% interest on) the Debentures. Pursuant to the
terms of the Debentures and the Warrants, the Debentures are
convertible and the Warrants are exercisable by any holder only to the
extent that the number of shares of Common Stock thereby issuable,
together with the number of shares of Common Stock owned by such holder
and its affiliates (but not including shares of Common Stock underlying
unconverted Debentures or unexercised Warrants) would not exceed 4.9%
of the then outstanding Common Stock as determined in accordance with
Section 13(d) of the Exchange Act. Accordingly the number of shares of
Common Stock set forth in the table for the Selling Securityholders
exceeds the number of shares of Common Stock that the Selling
Securityholders could own beneficially at any given time through its
ownership of the Debentures and Warrants. In that regard, beneficial
ownership of the Selling Securityholders set forth in the table is not
determined in accordance with Rule 13d-3 under the Exchange Act.
(3) Assumes the sale of all Shares offered hereby. The Company has agreed
to pay all reasonable fees and expenses incident to the filing of this
offering.
(4) The shares set forth in the table are managed directly or indirectly by
The Palladin Group, L.P. ("Palladin") or an affiliate of Palladin.
Palladin may be deemed to be the beneficial owner of these shares
pursuant to Section 13(d) of the Exchange Act. Palladin disclaims any
beneficial interest in these securities. None of the Selling
Securityholders set forth in the table has any beneficial interest in
the shares held by any other Selling Securityholder in such table.
5
<PAGE>
PLAN OF DISTRIBUTION
The shares may be sold from time to time by the Selling
Securityholders in one or more long or short transactions at fixed prices, at
market prices at the time of sale, at varying prices determined at the time
of sale or at negotiated prices. The Selling Securityholders may offer their
shares in one or more of the following transactions:
- - On any national securities exchange or quotation service on which the Zitel
common stock may be listed or quoted at the time of sale, including the
Nasdaq National Market;
- - In the over-the-counter market;
- - In private transactions;
- - Through options;
- - By pledge to secure debts or other obligations; or
- - A combination of any of the above transactions.
The Selling Securityholders may effect such transactions by selling to
or through one or more broker-dealers, and such broker-dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Securityholders. The Selling Securityholders and any
broker-dealers that participate in the distribution may, under certain
circumstances, be deemed to be "underwriters" within the meaning of the
Securities Act, and any commissions received by such broker-dealers and any
profits realized on any resale of the shares by them might be deemed to
be underwriting discounts and commissions under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the shares may not simultaneously
engage in market making activities with respect to Zitel Corporation's common
stock for a period of two business days prior to the commencement of such
distribution. In addition and without limiting the foregoing, the Selling
Securityholders and any other person participating in a distribution will be
subject to application provisions of the Securities Exchange Act and the rules
and regulations thereunder, including without limitation, Regulation M under the
Exchange Act, which may limit the timing of purchases and sales of shares of
Zitel common stock by the Selling Securityholders or any such other person.
We will make copies of this Prospectus available to the Selling
Securityholders and have informed the Selling Securityholders of the need for
delivery of a copy of this Prospectus to each purchaser or the shares
prior to or at the time of any sale of the shares.
The Selling Securityholders will pay all underwriting discounts,
commissions, transfer taxes and other expenses associated with the sale of the
shares by them. We will pay all costs and expenses associated with the
registration of the shares. We estimate that our expenses in connection
with this offering will be approximately $22,000.00.
6
<PAGE>
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Cooley Godward LLP, San Francisco, California.
EXPERTS
The consolidated balance sheets as of September 30, 1998 and 1997
and the consolidated statements of operations, of shareholders' equity and of
cash flows for each of the three years in the period ended September 30, 1998
incorporated by reference in this prospectus, have been incorporated herein
in reliance on the report by PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts on accounting and
auditing.
7
<PAGE>
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- ------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS 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. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION
WHERE SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Where You Can Find More Information..........................2
Incorporation of Certain Documents by Reference..............2
The Company..................................................3
Use of Proceeds..............................................3
Dividend Policy..............................................3
Risk Factors.................................................3
The Debentures and Warrants..................................3
The Company..................................................4
Selling Securityholders......................................5
Plan of Distribution.........................................6
Legal Matters................................................7
Experts......................................................7
</TABLE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
4,359,603 SHARES
ZITEL CORPORATION
COMMON STOCK
--------
PROSPECTUS
--------
MARCH __, 1999
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- ------------------------------------------------------------------------------
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses payable by the Company in
connection with the sale, issuance and distribution of the securities being
registered, other than underwriting discounts and commissions. All amounts are
estimates except the SEC registration fee. None of these expenses will be paid
by the Selling Securityholders.
<TABLE>
<S> <C>
SEC Registration Fee.............................. $3,371
Printing and Engraving Expenses................... 5,000
Legal Fees and Expenses........................... 10,000
Accounting Fees and Expenses...................... 3,500
Blue Sky Fees and Expenses........................ 1,129
Total............................................. $22,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Articles of Incorporation and
Bylaws include provisions to (i) eliminate the personal liability of its
directors for monetary damages resulting from breaches of their fiduciary duty
to the extent permitted by California law and (ii) require the Registrant to
indemnify its directors and officers to the fullest extent permitted by
California law, including circumstances in which indemnification is otherwise
discretionary. Pursuant to California law, a corporation generally has the power
to indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are,
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of a corporation, and,
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate liability for breach of the director's duty of
loyalty to the Registrant or its stockholders, for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for any
transaction from which the director derived an improper personal benefit or for
any willful or negligent payment of any unlawful dividend or any unlawful stock
purchase agreement or redemption.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to 5.1.
24.1 Power of Attorney (included on signature page II-3).
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement 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, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and
II-1
<PAGE>
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering. The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 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. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to provisions described in Item 15,
or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Fremont, State of California, on March 5, 1999.
ZITEL CORPORATION
By s/Jack H. King
--------------------------------------------
Jack H. King
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jack H. King and Henry C. Harris, or either of them,
his attorneys-in-fact, and agents each with the power of substitution, for him
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement (or any other
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite or necessary to be done in and about the
premises, as full to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them or their or his substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
s/ Jack H. King President, Chief Executive March 5, 1999
- --------------------------- Officer and Director
Jack H. King (PRINCIPAL EXECUTIVE OFFICER)
s/ Henry C. Harris Senior Vice President and Chief Financial March 5, 1999
- --------------------------- Officer
Henry C. Harris (PRINCIPAL FINANCIAL OFFICER)
s/ Anna M. McCann Vice President, Finance and Administration, March 5, 1999
- --------------------------- Secretary and Chief Accounting Officer
Anna M. McCann (PRINCIPAL ACCOUNTING OFFICER)
Chairman of the Board of Directors March , 1999
- ---------------------------
William R. Lonergan
s/ Catherine P. Lego Director March 5, 1999
- ---------------------------
Catherine P. Lego
s/ William M. Regitz Director March 5, 1999
- ---------------------------
William M. Regitz
II-3
<PAGE>
s/ Robert H. Welch Director March 5, 1999
- ---------------------------
Robert H. Welch
s/ Asa W. Lanum Director March 5, 1999
- ---------------------------
Asa W. Lanum
Director March __, 1999
- ---------------------------
Philip J. Koen
</TABLE>
II-4
<PAGE>
EXHIBIT 5.1
[LETTERHEAD]
March 5, 1999
Zitel Corporation
47211 Bayside Parkway
Fremont, CA 94538-6517
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by Zitel Corporation (the "Company") of a
Registration Statement on Form S-3 (the "Registration Statement") with
the Securities and Exchange Commission covering the offering of
4,359,603 shares of the Company's Common Stock, without par value, of
which 75,000 shares (the "Warrant Shares") are issuable upon exercise
of Common Stock Purchase Warrants (the "Warrants"), and of which
4,284,603 shares (the "Conversion Shares") are issuable upon the
conversion of the Company's outstanding 3% Convertible Subordinated
Debentures (the "Debentures").
In connection with this opinion, we have examined the Registration
Statement, the Company's Amended and Restated Certificate of
Incorporation and Bylaws, and such other documents, records,
certificates, memoranda and other instruments as we deem necessary as a
basis for this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies
thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the Common Shares are validly issued, fully paid and
nonassessable, and that the Warrant Shares, when issued and paid for
upon exercise of the Warrants and the Conversion Shares, when issued
upon conversion of the Debentures in accordance with the terms thereof,
will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the
caption "Legal Matters" in the Prospectus included in the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
John L. Cardoza
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-3 (File No.
33_____) of our reports dated December 16, 1998 on our audits of the
consolidated financial statements and financial statement schedule of Zitel
Corporation. We also consent to the reference to our firm under the caption
"Experts."
PricewaterhouseCoopers LLP
San Jose, California
March 4, 1999
