Rule 424(b)(3) Prospectus
Commission File No. 333-33968
307,500 SHARES
APA OPTICS, INC.
COMMON STOCK
This prospectus covers up to 307,500 shares of the common stock, par
value $.01 per share, of APA Optics, Inc., a Minnesota corporation, which may be
sold from time to time by certain shareholders named in this prospectus. Our
common stock is traded on the Nasdaq SmallCap Market under the symbol APAT. On
April 11, 2000, the closing sale price for the common stock as reported on the
Nasdaq SmallCap Market was $28.50 per share.
The shares of common stock offered by this prospectus may be sold by
the selling shareholders from time to time in transactions on the open market or
in negotiated transactions, in each case at prices satisfactory to them.
SEE "RISK FACTORS" BEGINNING AT PAGE 6 TO READ ABOUT FACTORS
YOU SHOULD CONSIDER BEFORE BUYING SHARES OF OUR COMMON STOCK.
----------------------------
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.
No person has been authorized by us to give any information or to make
any representations about the offering of common stock made by this prospectus
other than the information and representations contained in this prospectus.
Accordingly, you should not rely on information outside of this prospectus. This
prospectus is not an offer to sell or buy any security other than the common
stock offered by this prospectus; it is not an offer to sell or buy securities
in any jurisdiction in which such offer is not qualified; and it is not an offer
to buy or sell securities to any person to whom such offer would be unlawful.
The information in this prospectus is current as of the date of this prospectus.
Your receipt of this prospectus does not mean that there has been no change in
the affairs of APA Optics, Inc. since the date of this prospectus or that the
documents which are incorporated by reference in this prospectus are correct as
of any date after the date of such documents.
THE DATE OF THIS PROSPECTUS IS APRIL 12, 2000.
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WHERE YOU CAN FIND MORE INFORMATION
APA Optics is subject to the informational requirements of the
Securities Exchange Act of 1934, and files reports, proxy statements and other
information with the Securities and Exchange Commission. These reports, proxy
statements and other information can be inspected and copies can be made at:
* the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549
* the regional offices of the Commission located at 500 West Madison
Street, Chicago, Illinois 60601 and at 7 World Trade Center, New
York, New York 10048
* the offices of Nasdaq Operations, 1735 K Street, N.W., Washington,
D.C.
These materials may also be accessed electronically by means of the
Securities and Exchange Commission's home page on the Internet
(http://www.sec.gov).
This prospectus is a part of a registration statement on Form S-3
(Commission File No. 333-33968) that APA Optics has filed with the Securities
and Exchange Commission. You may obtain copies of the registration statement
from the Commission at the addresses in the preceding paragraph. This prospectus
does not contain all of the information set forth in the registration statement
and its exhibits. The registration statement provides further information about
us and the shares. While we believe this prospectus provides the material
information regarding the contracts and documents described in it, the
statements contained in this prospectus about the contents of any contract or
any other documents are not necessarily complete and, in each such instance, you
should inspect the copy of such contract or document filed as an exhibit to the
registration statement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by APA Optics with the Commission
pursuant to the Securities Exchange Act of 1934 (File No. 0-16106) are
incorporated by reference in this prospectus, except as otherwise superseded or
modified herein:
Our annual report on Form 10-K for the fiscal year ended March 31,
1999.
Our quarterly reports on Form 10-Q for the fiscal quarters ended June
30, 1999, September 30, 1999 and December 31, 1999.
Our registration statement on Form 8-A, dated July 28, 1987,
registering our common stock under Section 12(g) of the Securities Exchange Act
of 1934.
Our proxy statement on Schedule 14A for our annual shareholders meeting
for the fiscal year ended March 31, 1999.
All other reports and documents filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act since March 31, 1999 and prior to the
termination of the offering of the common stock, are also deemed to be
incorporated by reference into this prospectus.
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Any statement in any document incorporated or deemed to be incorporated
by reference is modified or superseded to the extent that a statement in this
prospectus or in any other subsequently filed document incorporated by reference
modifies or supersedes such statement.
We will furnish you, without charge, with a copy of any or all of the
documents referred to above (other than exhibits to such documents). Requests
for copies should be directed, orally or in writing, to:
Anil K. Jain, Chief Executive Officer
APA Optics, Inc.
2950 N.E. 84th Lane
Blaine, MN 55434
Telephone: (763) 784-4995
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TABLE OF CONTENTS
Page
----
PROSPECTUS SUMMARY.............................................................1
THE COMPANY....................................................................3
RISK FACTORS...................................................................6
FORWARD-LOOKING STATEMENTS....................................................14
USE OF PROCEEDS...............................................................15
PRICE RANGE OF COMMON STOCK...................................................15
SELLING SHAREHOLDERS..........................................................15
PLAN OF DISTRIBUTION..........................................................17
EXPERTS AND LEGAL MATTERS.....................................................18
MATERIAL CHANGES..............................................................19
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION..........................19
ANTITAKEOVER STATUTE..........................................................19
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PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY CONTAINS INFORMATION ABOUT APA OPTICS, INC.,
SOMETIMES REFERRED TO AS "APA OPTICS" OR THE "COMPANY." IT MAY NOT CONTAIN ALL
THE INFORMATION THAT MAY BE IMPORTANT TO YOU. YOU SHOULD READ THE ENTIRE
PROSPECTUS, THE DOCUMENTS WHICH ARE INCORPORATED BY REFERENCE IN THE PROSPECTUS,
INCLUDING THE FINANCIAL DATA AND RELATED NOTES, AND THE OTHER INFORMATION
CONTAINED IN THE FORM S-3 REGISTRATION STATEMENT BEFORE MAKING AN INVESTMENT
DECISION. THE REFERENCES TO "WE," "US," AND "OUR" MEAN APA OPTICS, EXCEPT WHERE
IT IS CLEAR BY THE CONTEXT THAT THE REFERENCE IS TO SOMEONE ELSE.
THE COMPANY
APA Optics is engaged in the business of designing, manufacturing, and
marketing optical components and various optoelectronic products. Currently, we
are focused on two product areas: dense wavelength division multiplexer (DWDM)
components for fiber optic communications and gallium nitride-based ultraviolet
(UV) detectors (both components and integrated detector/electronic/display
packages). We selected these areas of concentration because we believe they have
significant potential markets and because we have significant expertise and/or
patent positions relating to them.
For several years we received significant revenues from providing
research and development services in connection with projects sponsored by
various government agencies. In fiscal 1998, we determined to shift our emphasis
from research and development to product development, realizing that this shift
would significantly reduce revenues and increase losses until we realize
revenues from our products. If we are successful in manufacturing and marketing
our products, we expect to significantly increase revenues and achieve
profitability.
APA Optics was incorporated in Minnesota in March 1979 and became a
publicly owned company in 1986. Our principal offices are located at 2950 N.E.
84th Lane, Blaine, Minnesota 55434, and our telephone number is (763) 784-4995.
RISK FACTORS
An investment in our common stock involves a high degree of risk and is
not appropriate for persons who cannot afford to lose their entire investment.
See "Risk Factors."
THE OFFERING
The shares of common stock which are offered by this prospectus are
shares which will be issued to the selling shareholders named in this prospectus
if they choose to convert their 2% Series A Convertible Preferred Stock and/or
exercise related warrants for purchase of common stock. They acquired the
Preferred Stock and warrants in March 2000 for a total purchase price of $5
million. If all shares of the Preferred Stock were converted and all warrants
were exercised at the conversion price and warrant exercise prices in effect as
of the date of this prospectus (which prices are subject to adjustment), 200,357
shares of common stock would be added to the Company's issued and outstanding
common stock (assuming that all Preferred Stock dividends are paid in cash
rather than accreted to the stated value of the Preferred Stock). Certain
information about the Company's common stock and this offering is summarized
below.
Concurrently with this offering we have filed a registration statement
for sale of common stock for gross proceeds of $100 million. As of the date of
this prospectus, we do not know whether any shares will be sold or the price at
which sales may be made.
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Common stock to be issued upon conversion of
Preferred Stock(1)............................ 142,857 shares
Common stock to be issued upon exercise of
warrants...................................... 57,500 shares
Common stock to be outstanding after
conversion of Preferred Stock and exercise
of warrants (1)(2)............................ 9,198,349
Use of proceeds............................... APA will not receive any
proceeds from the
conversion of the
Preferred Stock or the
sale of common stock by
the selling
shareholders. We will
receive $1,750,000 if
the warrants are
exercised in full.
These funds will be
used for general
corporate purposes.
Nasdaq symbol................................. APAT
Transfer Agent and Registrar.................. Norwest Shareowner
Services, South
St. Paul, Minnesota
(1) Assumes that (a) dividends are paid in cash rather than accreted to
stated value and (b) a conversion price of $35.00 per share. If
dividends are accreted to stated value, or if the conversion price
is adjusted to a lower price pursuant to the terms of the Preferred
Stock, the number of shares of common stock issuable upon
conversion will increase. Under the terms of our agreement with the
selling shareholders, we are required to register (and this
prospectus offers) a total of 307,500 shares (which includes 57,500
shares issuable upon exercise of warrants) to provide for possible
adjustments in conversion price and accretion of dividends to
stated value.
(2) Assumes no issuance of common stock other than in connection with
this offering and no exercise of any warrants or options for common
stock or conversion of any securities convertible to common stock.
As of April 12, 2000 we had reserved for issuance:
(a) 151,358 shares for various warrants, not including additional
warrants in an amount not currently calculable which may be
issued in connection with certain bond financing; and
(b) 1,246,338 shares under employee benefit plans, a directors
option plan, and other options.
SUMMARY FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Nine Months Ended December 31 Year Ended March 31
----------------------------- -------------------
(unaudited)
Statement of operations data: 1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenues $ 239,142 $ 629,122 $ 722,030 $ 2,190,637
Net income (loss) (2,860,842) (1,755,353) (2,513,798) (967,767)
Net income (loss) per share (basic) (.33) (.21) (.30) (.12)
Net income (loss) per share (diluted) (.33) (.21) (.30) (.12)
</TABLE>
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<TABLE>
<CAPTION>
December 31, 1999 March 31
----------------- --------
(unaudited)
Balance sheet data: 1999 1998
---- ----
<S> <C> <C> <C>
Working capital $ 1,860,158 $ 2,864,549 $ 5,345,480
Total assets 5,741,421 6,804,976 9,629,912
Shareholders' equity 2,408,527 3,389,295 5,859,863
</TABLE>
THE COMPANY
Since the founding of APA Optics in 1979, we have focused on leading
edge research in sophisticated optoelectronic and optical system areas with the
primary goal of developing advanced products for subsequent marketing and
fabrication. We currently manufacture DWDM optical components, offer a range of
gallium nitride (GaN) based devices and services, and market custom optics
products.
For the last several years our goal has been to manufacture and market
products and components based on our technology developments. We have selected
two product areas based on significant potential markets and our expertise
and/or patent positions: dense wavelength division multiplexer (DWDM) components
for fiber optic communications and gallium nitride-based ultraviolet (UV)
detectors (both components and integrated detector/electronic/display packages).
If we are successful in manufacturing and marketing these products, we expect to
significantly increase revenues and achieve profitability.
PRODUCTS
Our current products are as follows:
* Optical Lens Systems. We design and build multi-element lens
systems and components, including mounting structures, for
precision quality optical needs in many applications, including
laser-based systems, imaging systems, inspection systems, display
systems, display optics, focusing optics for ultraviolet fire
alarms, alignment verification optics for dual magnetic recording
heads, and multi-magnification optics systems for optical
comparators.
* Optical Thin Film Coatings. We custom design, develop, and
fabricate optical thin film coatings for optical components of
lasers, laser systems, optical instruments, and optical devices. We
use optical thin film coating services in two major ways: to apply
antireflective coatings onto Company-fabricated lens components,
and to design, develop and fabricate coatings for lens components
supplied by customers.
* Optoelectronics Devices. We are focusing research and development
efforts on several optoelectronic devices. Optoelectronic devices
are vital components of communication systems and optical
instruments.
Currently, we are developing the following products:
* Dense Wavelength Division Multiplexer (DWDM). Recently, we
demonstrated the feasibility of a DWDM capable of transmitting
several channels of different optical wavelengths through a single
optical fiber for
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communication applications. The DWDM represents a decade of
research and development at APA Optics to establish the design and
fabrication capabilities for high performance optical and electro-
optical devices. In 1993 and 1994, we developed a DWDM optical
modulator which incorporated high speed electro-optic modulators
and an optical wavelength division multiplexer based on high
frequency holographic gratings. APA's current DWDM represents our
development efforts to enhance and refine the holographic grating
based optical wavelength division multiplexer to meet the
performance specifications of sophisticated fiber optic
communication systems. By enabling the multiplexing of several
optical wavelength channels onto a single optical fiber (a simple
analogy is the expansion of a single lane highway to multi-lane
throughway), our DWDM provides increased data handling capabilities
required by fiber optic communication systems. We are currently
optimizing the packaging of our DWDM to comply with the
environmental exposure requirements placed on telecommunication
optical components. We filed the first patent related to the DWDM
optical modulator in June 1994, and the patent was awarded on May
8, 1995. Since then, we have filed for six additional patents
related to Dense Wavelength Division Multiplexer/Demultiplexer
devices. We were awarded two of these patents in March 1997 and
February 1998. The other four applications are still pending.
* UV Detector. The UV Detector is a high response solid state
detector based on single-crystal gallium nitride (GaN). The GaN
detector is expected to have applications in spectrometry, solar
radiation measurement, excimer-laser measurement and calibration,
biomedical instrumentation, and flame detection and monitoring. The
detector is visible blind, which allows detection of UV radiation
in the presence of room lights without a filter. We believe the GaN
detector has advantages over photomultiplier tubes because of its
ruggedness and chemical inertness, which suit it for application in
high-vibration and harsh environments as well as high-temperature
operation. We have been awarded at least four patents in nitride
related technologies.
* Other Products. We are in the process of introducing several other
products by packaging our UV detectors with electronics and
displays for many applications. Among these are a solar sensing
watch to detect potential cancer causing UV radiation for consumer
applications, UV radiation based flame sensors for industrial
applications, and UV radiation meters for laboratory and industrial
applications. All of these products have significant similarities
and, therefore, do not require significant financial resources for
development.
MARKETING AND DISTRIBUTION
We delivered a limited number of alpha units of our DWDM to customers
during fiscal 1999 and 2000. We have sold several UV detectors to more than 30
customers, as well as a few detector/electronics packages. During this time, we
have been aggressively marketing both products by advertising in relevant
professional magazines, showcasing our products in trade shows, direct mailing,
personal visits, and distributors in various countries, including Japan,
Germany, Italy and France. We also maintain product information on our Web page.
Our DWDM product manager focuses on sales of DWDM and two persons work on
marketing and sales of gallium nitride-based products.
SOURCES OF RAW MATERIALS
Two of the principal materials used in our business are optical glass
and optical chips. Optical glass is commercially available through several
distributors. We currently use at least two vendors for optical chips and
continuously look for additional vendors for these parts. Certain chemicals and
other materials necessary for our products are routinely available from several
sources.
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ENVIRONMENTAL COMPLIANCE
Because we handle a number of chemicals in our operations, we must
comply with federal, state and local laws and regulations regarding the handling
and disposal of such chemicals. The cost of such compliance is not material.
MAJOR CUSTOMERS
In prior years, we provided research and development services under
contracts with various governmental agencies. Currently, we have no material
contracts with any of such agencies.
Revenues from the following unrelated customers constituted more than
ten percent of our total operating revenues in the last three fiscal years:
Year Ended March 31
Name 1999 1998 1997
- ------------------------------------ ------------- ------------- ------------
Air Force 23% 20% 42%
Army 0% 25% 22%
Navy 18% 38% 36%
ARPA 59% 17% -0%
---- ---- ----
Total 100% 100% 100%
==== ==== ====
COMPETITION
Competition in the optoelectronics and optics fabrication businesses is
significant. Many of the companies engaged in these businesses are well-financed
and have significantly greater research, development, production, and marketing
resources than we do. However, we believe that we have a competitive advantage
due to our patents and the uniqueness of our devices. In particular, we believe
that our DWDM is the most efficient (lowest insertion loss) and compact device
currently available.
RESEARCH AND DEVELOPMENT
During the fiscal years ended March 31, 1999, 1998, and 1997 we spent
approximately $382,000, $339,000, and $375,000, respectively, on research and
development sponsored by the Company, all of which was related to the DWDM, UV
detector and related products. In addition, in each of those years, we spent
approximately $837,000, $1,431,000, and $1,610,000, respectively, on research
activities sponsored by customers. During the 11 months ended February 29, 2000,
we spent approximately $299,000, on research and development sponsored by the
Company, all of which was related to the DWDM, UV detector and related products
and approximately $181,000, on research activities sponsored by customers.
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EMPLOYEES
As of April 12, 2000, we employed 36 full-time employees (including
executive officers).
RISK FACTORS
BEFORE YOU INVEST IN THE COMMON STOCK YOU SHOULD CONSIDER THAT THE
VALUE OF THE SHARES IN THE SECONDARY MARKET IS SUBJECT TO VARIOUS RISKS,
INCLUDING THOSE DESCRIBED BELOW. IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR,
OUR BUSINESS, RESULTS OF OPERATIONS OR CASH FLOWS COULD BE ADVERSELY AFFECTED.
IN THOSE CASES, THE TRADING PRICE OF OUR COMMON STOCK COULD DECLINE, AND YOU MAY
LOSE ALL OR PART OF YOUR INVESTMENT. THESE RISKS SHOULD BE EVALUATED TOGETHER
WITH ALL OF THE OTHER INFORMATION IN THIS PROSPECTUS BEFORE YOU DECIDE TO
PURCHASE ANY OF THE SHARES WHICH ARE OFFERED. SPECIFIC RISK FACTORS WHICH YOU
SHOULD CONSIDER INCLUDE THE FOLLOWING:
WE HAVE LIMITED EXPERIENCE IN MANUFACTURING. Although we have been
involved in the manufacturing of optical components for several years, and have
manufactured limited quantities of UV detectors and alpha DWDMs, we have not
engaged in high volume manufacturing of these products. We may be unable to
manufacture products that satisfy the volume and quality requirements of our
customers, and, as a result, we may not achieve significant revenues or
profitability.
WE MAY NOT BE ABLE TO REDUCE OUR MANUFACTURING COSTS SUFFICIENTLY OR
PLAN OUR MANUFACTURING EXPANSION accurately. We expect the price of our existing
products to decline due to various factors, such as increased competition,
including from companies with lower labor and production costs; a limited number
of potential customers with significant bargaining leverage; introduction of new
products by competitors; and greater economies of scale for higher volume
manufacturers. To increase our revenues, we must increase our unit volumes and
our manufacturing capacity. Adding capacity increases our fixed costs and the
levels of unit shipments we must produce to achieve positive gross margins. As a
result, if we are unable to increase our revenues or continuously reduce our
manufacturing costs, our gross margins will not improve and we will continue to
incur losses.
We are increasing our manufacturing capacity at our existing facilities
in Aberdeen, South Dakota. Developing manufacturing capabilities involves
significant risks which could materially adversely affect our gross margins and
revenues, including:
* Our inability to qualify a new manufacturing line for all of our
customers;
* unanticipated cost increases;
* unavailability or late delivery of equipment;
* unforeseen environmental or engineering problems; and
* personnel recruitment delays.
Expanding our manufacturing capacity requires substantial time to build
out and equip facilities and train personnel. If we receive orders substantially
in excess of our planned capacity, we might not be able to fulfill them quickly
enough to meet customer requirements. Our inability to deliver products timely
could enable competitors to win business from our customers.
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WE MAY NOT BE ABLE TO EFFECTIVELY INCREASE PRODUCTION AND MAINTAIN
ACCEPTABLE MANUFACTURING YIELDS, RESULTING IN DELAY OF PRODUCT SHIPMENTS AND
IMPAIRMENT OF OUR GROSS MARGINS. Manufacturing our products is highly complex
and labor intensive. As we rapidly increase production and hire more people, our
manufacturing yield, which is the percentage of our products which meet customer
specifications, could decline, resulting in product shipment delays, possible
lost revenue opportunities, higher customer returns, and impaired gross margins.
Some of our manufacturing lines have experienced lower than expected yields,
which could continue in the future. Rapid increases in production levels to meet
demand may also result in higher overtime costs and other expenses.
WE HAVE HAD LIMITED SALES AND EXPECT LOSSES. To date, we have had only
limited sales of UV detectors and DWDMs. As of December 31, 1999, we had an
accumulated deficit of $9,256,929. We expect operating losses to continue until
sales of these products reach a level sufficient to cover operating costs. We
may never generate sales at the required levels or become profitable. Our
auditors' opinion concerning our financial statements for the fiscal year ended
March 31, 1999 states that our accumulated deficit and recurring losses from
operations raise substantial doubt about our ability to continue as a going
concern.
Our ability to achieve profitability will depend on our ability to
develop and bring new proprietary products to market. Our ability to become
profitable will also depend upon a variety of other factors, including the
following:
* The price, volume and timing of sales of products;
* Variations in gross margins of our products, which may be affected
by sales mix and competitive pricing pressures;
* Changes in the level of our research and development; and
* Acquisitions of products, technology or companies.
Our long-term success will also be affected by expenses, difficulties
and delays frequently encountered in developing and commercializing new
products, competition, and the regulatory environment in which we operate. We
cannot be certain that we will ever achieve significant revenues or profitable
operations.
WE MUST CONTINUE TO FUND PRODUCT DEVELOPMENT. The continued existence
and the growth and profitability of the Company depend upon the success of our
product manufacturing and marketing efforts. In order for new products to be
successfully marketed, they must satisfy the needs of potential customers by
performing under the conditions in which such customers intend to use the
products. We must continue development of these products and their packaging to
ensure that these products will meet such requirements. However, our products
may not perform as anticipated or as needed by customers.
OUR BUSINESS WILL SUFFER IF WE FAIL TO OBTAIN ADEQUATE FUNDING IN A
TIMELY MANNER. We expect that we will need substantial additional funding. Our
business, results of operations and cash flows will be adversely affected if we
fail to obtain adequate funding in a timely manner. Our funding requirements
will depend on many factors, including:
* The progress of our research and development programs;
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* Revenue growth, if any;
* The amount of cash generated, if any, by our operations;
* The costs involved in preparing, filing, prosecuting, maintaining,
enforcing and defending patent claims and other intellectual
property rights;
* Competing technological and market developments; and
* The need for additional manufacturing facilities to accommodate
growth.
We anticipate that our existing capital resources as of the date of
this prospectus will be adequate to fund operations and capital expenditures at
least through March 31, 2001. However, if we experience unanticipated cash
requirements during this period, we could require additional funds much sooner.
We may receive funds from the sale of equity securities, or the exercise of
outstanding warrants and options to acquire common stock. However, we cannot
assure you that any of those fundings will occur, or if they occur, that they
will be on terms favorable to us. Also, the dilutive effect of those fundings
could adversely affect our results per share.
ASSERTING AND DEFENDING INTELLECTUAL PROPERTY RIGHTS WILL HARM OUR
RESULTS OF OPERATIONS REGARDLESS OF SUCCESS. Our business will be harmed if
competitors develop substantially equivalent proprietary information and
techniques or otherwise gain access to our trade secrets, if our trade secrets
are disclosed or if we cannot effectively protect our rights to unpatented trade
secrets.
We actively seek patent protection for our proprietary products and
technologies. We have a number of United States patents. However, litigation
may be necessary to protect our patent position, and we cannot be certain that
we will have the required resources to pursue the necessary litigation or
otherwise to protect our patent rights. Our efforts to protect our patents may
fail. In addition to pursuing patent protection in appropriate cases, we also
rely on trade secret protection for unpatented proprietary technology. However,
trade secrets are difficult to protect.
Claims may be brought against us in the future based on patents held by
others. These persons could bring legal actions against us claiming damages and
seeking to enjoin manufacturing and marketing of the affected product. If any of
these actions are successful, in addition to any potential liability for
damages, we could be required to obtain a license in order to continue to
manufacture or market the affected product. We cannot assure you whether we
would prevail in any of these actions or that we could obtain any licenses
required under any of these patents on acceptable terms, if at all.
We know of no pending patent infringement suits or threats of patent
infringement litigation either related to:
* patents held by us; or
* our products or proposed products.
There could be significant litigation in our industry regarding patent
and other intellectual property rights. If we become involved in any litigation,
it could consume a substantial portion of our resources, regardless of the
outcome of the litigation.
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WE EXPERIENCE STRONG COMPETITION AND CHANGES IN TECHNOLOGY COULD RESULT
IN MORE COMPETITION. The business in which we engage is highly competitive. Many
of our competitors include large, well-financed and established companies who
have far greater marketing, product development, and financial resources than we
do.
We may not be able to successfully anticipate changes in technology,
industry standards, customer requirements and product offerings, yet our ability
to develop and introduce new and enhanced products will impact our position as a
leader in the deployment of high-capacity solutions. The accelerating pace of
deregulation in the telecommunications industry will likely intensify the
competition for improved technology. There has been an increase in the funding
of new companies intending to develop new products for the rapidly evolving
telecom industry. These companies have time-to-market advantages due to the
narrow and exclusive focus of their efforts. New companies may provide
additional competition for our existing product lines as well as potential
future products. The introduction of new products embodying new technologies or
the emergence of new industry standards could render our existing products
uncompetitive from a pricing standpoint, obsolete or unmarketable. Any of these
outcomes would have a material adverse effect on our business, financial
condition and results of operations.
Because many of our competitors have greater financial and other
resources than we do, they may be able to more quickly:
* respond to new technologies or technical standards;
* react to changing customer requirements and expectations;
* manufacture, market and sell current products;
* develop new products or technologies; and
* deliver competitive products at lower prices.
As a result of these factors, our customers could decide to purchase
products from our competitors and reduce their purchases from us.
In addition, our competitors or customers may acquire our suppliers and
potential suppliers. Our customers may also develop their own internal sources
of supply in competition with us. For example, Corning has announced an
expansion of its ability to produce thin film optical filters by a factor of ten
as well as the acquisition of Oak Industries, a maker of components used in WDM
systems. Lucent Technologies, has announced an investment in privately-held
Horizon Photonics, Inc., a provider of automated manufacturing of passive
optical components. Lucent has also commented publicly that it sells a large
portion of its components on the merchant market in addition to supplying its
own needs. Cisco Systems, an emerging player in WDM systems, has announced the
acquisition of Pirelli Optical Systems and a strategic investment of $100
million in Pirelli's optical components and submarine optical transmission
system businesses. In addition, Nortel Networks has announced a $400 million
investment in its optical networking and components business, including a new
facility for the fabrication of optical components.
WE CURRENTLY HAVE LIMITED MARKETING EXPERTISE AND PERSONNEL AND EXPECT
TO INCUR SUBSTANTIAL MARKETING COSTS. Our growth is dependent upon our ability
to implement an aggressive, strong, and consistent marketing program for the
Company's new products. During fiscal 1999, we hired two
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individuals to serve as marketing and sales managers. In addition, we currently
market our products through independent distributors in several foreign
countries. We believe that it is necessary to significantly expand our marketing
efforts to market our new products successfully. Accordingly, we expect to incur
substantial costs in connection with marketing and sales efforts. However, we
cannot be sure that our efforts will result in significantly greater product
recognition or market penetration, or significantly increased levels of
revenues.
ACCEPTANCE OF OUR NEW PRODUCTS IS UNCERTAIN. Although we have received
several indications of interest from potential customers, we have not received
any significant production orders. Because our products are relatively new in
the market and are still being evaluated by potential customers, we cannot
predict accurately the volume or timing of any orders.
WE MAY NOT BE ABLE TO SUCCESSFULLY COMPLETE DEVELOPMENT AND ACHIEVE
COMMERCIAL ACCEPTANCE OF OUR NEW PRODUCTS. Although we have delivered evaluation
units of our DWDM and UV detector products, we do not yet have products that can
be manufactured or distributed on a commercial basis. The maturing process from
laboratory prototype to commercial acceptance involves a number of steps,
including:
* successful completion of product development;
* validation of manufacturing methods;
* extensive quality assurance and reliability testing; and
* identification and qualification of component suppliers.
Each of these steps in turn presents serious risks of failure, rework
or delay, any one of which could materially and adversely affect the speed and
scope of product introduction and marketplace acceptance of the products. In
addition, unexpected intellectual property disputes, failure of critical design
elements, and a host of other execution risks may delay or even prevent the
introduction of these products. We have not yet demonstrated commercial
acceptance of these products and commercialization may require substantial sales
and marketing efforts over lengthy sales cycles. Our best efforts may not be
successful in attaining significant commercial acceptance and purchase of our
products.
In addition, certain major telecommunications equipment manufacturers
who are our potential customers require testing and approval of all their DWDM
suppliers' products by Telcordia (formerly Bellcore) Laboratories (or
equivalent). Although we plan to submit our DWDM products to Telcordia (or
equivalent laboratories) and believe that we meet all applicable standards, we
have not yet submitted the DWDMs for such evaluations. Also, even if we submit
our DWDMs for such evaluations, we cannot be certain that we will receive
approval. Until we receive such approval, we will be unable to sell to a number
of potentially significant customers.
PRODUCT PERFORMANCE PROBLEMS COULD LIMIT OUR SALES PROSPECTS. The
production of new fiberoptic systems with high technology content involves
occasional problems as the technology and manufacturing methods mature. If
significant reliability, quality or monitoring problems develop, a number of
material adverse effects could result, including:
* manufacturing rework costs;
* high service and warranty expense;
* high levels of product returns;
* delays in collecting accounts receivable;
* reduced orders from existing customers; and
* declining interest from potential customers.
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Although we maintain accruals for product warranties, actual costs
could exceed these amounts.
IF OUR NEW PRODUCT INTRODUCTIONS ARE DELAYED, OR IF OUR NEW PRODUCTS
HAVE DEFECTS, OUR REVENUES WOULD BE HARMED AND OUR COSTS COULD INCREASE. If we
do not introduce new products in a timely manner, we will not obtain incremental
revenues from these products or be able to replace more mature products with
declining revenues or gross margins. Customers could decide to purchase
components from our competitors, resulting in lost revenue over a longer term.
We could also incur unanticipated costs if new product introductions are delayed
or we need to fix defective new products.
WE MAY NOT BE ABLE TO SUCCESSFULLY MANAGE RAPID GROWTH. If we are
successful in marketing our products, and if we receive orders for volume
manufacturing, we will need to develop an infrastructure able to support growth,
including comprehensive and reliable management information systems and
additional manufacturing and other personnel. We may be unable to develop such
systems or locate, hire, train and retain necessary personnel.
WE ARE DEPENDENT ON KEY PERSONNEL. Although we have hired a business
manager for fiber optic products, as well as marketing and sales managers, we
are still dependent upon the continued services of Dr. Anil K. Jain. The loss of
his services could have a significant adverse impact upon the Company's
operations and development. We do not have an employment agreement or a
noncompete agreement with Dr. Jain, although we maintain $1,000,000 in key man
life insurance on him.
WE MAY NOT BE ABLE TO RECRUIT AND RETAIN THE PERSONNEL WE NEED TO
SUCCEED. If we cannot hire and retain technical personnel with advanced skills
and experience in the specialized field of fiber optics, our product development
programs may be delayed and our customer support efforts may be less effective.
If we are unable to hire the necessary managerial, sales and marketing
personnel, we may not be able to increase our revenues.
WE ARE DEPENDENT ON SUPPLIERS. We rely on outside vendors to supply
certain of the raw materials and other components of our products. For certain
components, we may rely on single sources of supply, which could result in the
unavailability of or interruptions in delivery of such components, manufacturing
delays caused by such unavailability or interruptions, and fluctuations in the
quality and price of such components. Delivery delays, quality problems and
price increases could hurt our ability to supply our customers with products in
a timely manner, which can cause our shipments and revenues to decline.
IF WE ARE UNABLE TO COMPLY WITH ENVIRONMENTAL LAWS AND REGULATIONS, OUR
BUSINESS MAY BE HARMED. We are subject to federal, state and local laws and
regulations governing the use, manufacture, storage, handling and disposal of
hazardous materials and waste products. We currently maintain a supply of
several hazardous materials at our facilities. We might be required to incur
significant cost to comply with environmental laws and regulations. In the event
of an accident, we could be held liable for any damages that result, and the
liability could exceed our resources.
BECAUSE CURRENT OFFICERS AND DIRECTORS OWN A LARGE PERCENTAGE OF OUR
STOCK, THESE SHAREHOLDERS MAY BE ABLE TO CONTROL APA OPTICS AND ALSO PREVENT
POTENTIALLY BENEFICIAL ACQUISITIONS OF APA OPTICS. As of April 12, 2000 our
officers and directors beneficially owned approximately 30% of the outstanding
shares of our common stock. Beneficial ownership includes shares of our common
stock subject to options exercisable within 60 days of April 12, 2000.
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<PAGE>
These shareholders, if acting together, may be able to elect all of our
directors, and otherwise significantly influence matters requiring approval by
our shareholders. This concentration of ownership and the lack of cumulative
voting may also delay or prevent a third party from acquiring us.
These shareholders may have interests that differ from other
shareholders of APA Optics, particularly in the context of potentially
beneficial acquisitions of APA Optics. For example, to the extent that these
shareholders are employees of APA Optics, they may be less inclined to vote for
acquisitions of APA Optics involving the termination of their employment or
diminution of their responsibilities or compensation.
WE DO NOT INTEND TO PAY DIVIDENDS. We intend to use any cash flows from
operations to finance further growth of the Company's business. Accordingly,
investors should not purchase the shares with a view towards receipt of
dividends.
OUR STOCK PRICE MAY EXHIBIT VOLATILITY AND THE TRADING PRICE OF OUR
STOCK MAY DECREASE DUE TO FACTORS BEYOND OUR CONTROL. Our common stock price has
experienced substantial volatility in the past and is likely to remain volatile
in the future. Volatility can arise as a result of the activities of short
sellers and risk arbitrageurs and may have little relationship to our financial
results or prospects. The trading prices of our common stock is also affected by
the following factors, among others:
* Variations in anticipated or actual results of operations;
* Announcements of new products or technological innovations by
competitors; and
* Changes in earnings estimates of operational results by analysts.
Volatility can also result from divergence between our actual or
anticipated financial results and/or status of product development or
commercialization, and published expectations of analysts and announcements we
may make. We attempt to address possible divergence through our public
announcements and reports; however, the degree of specificity we can offer in
such announcements, and the likelihood that any forward-looking statements we
make will prove correct in actual results, can and will vary.
Our revenues and operating results have fluctuated significantly from
quarter-to-quarter in the past and may fluctuate significantly in the future as
a result of several factors, some of which are outside of our control. These
factors include:
* the size and timing of customer orders;
* our ability to manufacture and ship our products on a timely basis;
* our ability to obtain sufficient supplies to meet our product
manufacturing needs;
* our ability to meet customer product specifications and
qualifications;
* long and unpredictable sales cycles of up to a year or more;
* our ability to sustain high levels of quality across all product
lines; changes in our product mix;
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* customer cancellations or delivery deferrals;
* seasonality of customer demand; and
* difficulties in collecting accounts receivable.
Due to these factors, results are difficult to predict and you should
not rely on quarter-to-quarter comparisons of our results of operations as an
indication of our future performance. It is possible that, in future periods,
our results of operations may be below the expectations of public market
analysts and investors.
Moreover, the stock market from time to time has experienced extreme
price and volume fluctuations, which have particularly affected the market
prices for emerging growth companies and which have often been unrelated to the
operating performance of these companies. These broad market fluctuations may
adversely affect the market price of our common stock.
During the past three years from the date of this prospectus, the
market price per share of our common stock has fluctuated between approximately
$3.50 and $64.
OUR BUSINESS MAY BE HARMED IF WE BECOME SUBJECT TO SECURITIES CLASS
ACTION LITIGATION. In the past, following periods of volatility in the market
price of a company's common stock, securities class action litigation has been
brought against the issuing company. This type of litigation could be brought
against us in the future. The litigation could be expensive and divert
management's attention and resources, which could adversely affect our business
and results of operations whether or not our defense is successful. If the
litigation is determined against us, we could also be subject to significant
liabilities.
THE MARKET PRICE OF OUR STOCK MAY FALL IF OTHER SHAREHOLDERS SELL THEIR
STOCK. If our shareholders sell substantial amounts of our common stock in the
public market following this offering, the market price of our common stock
could fall. These sales also might make it more difficult for us to sell equity
or equity-related securities in the future at a price we deem appropriate.
As of April 12, 2000 we had 8,997,992 shares of our common stock
outstanding. Substantially all of these shares are eligible for sale in the
public market. In addition, we are currently registering for public sale 307,500
shares of common stock which may be offered upon conversion of our outstanding
2% Series A Convertible Preferred Stock and related warrants, and an
indeterminate number of shares of common stock (but not in excess of $100
million) offered directly by the Company.
THE VALUE OF YOUR STOCK MAY DECREASE IF OTHER SECURITY HOLDERS EXERCISE
THEIR OPTIONS OR WARRANTS OR CONVERT CONVERTIBLE SECURITIES. As of April 12,
2000 we had reserved 1,705,196 shares of our common stock for future issuance
upon exercise of outstanding options, warrants and convertible securities. If
these securities are exercised or converted, you may experience dilution in the
book value and earnings per share of your common stock. This may cause the
market price of our common stock to fall.
WE MAY ISSUE ADDITIONAL STOCK WITHOUT YOUR CONSENT. The Company has
authorized 15 million shares of common stock, of which 8,997,992 shares are
issued and outstanding as of April 12, 2000. We may seek shareholder
authorization to increase that amount at our next annual shareholders meeting.
The Board of Directors has authority, without action or vote of the
shareholders, to issue all or part of the authorized but unissued shares.
Additional shares may be issued in connection with future financings,
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acquisitions, employee plans, or otherwise. Any such issuance will dilute the
percentage ownership interest of existing shareholders, and may dilute the book
value of the common stock. We currently intend to sell up to $100 million in
common stock from time to time at prices related to current market prices
(subject to discount in some circumstances) in a registered public offering to
institutional investors. We do not know the number or price of shares to be
sold, or whether any shares will be sold. In addition, the Company is authorized
to issue up to 5 million undesignated shares, of which 1,500 shares have been
designated as 2% Series A Convertible Preferred Stock. As of April 12, 2000, 500
shares of 2% Series A Convertible Preferred Stock had been issued and were
outstanding. The Board of Directors can issue additional preferred stock in one
or more series and fix the terms of such stock without approval by shareholders.
Preferred stock may include the right to vote as a series on particular matters,
preferences as to dividends and liquidation, conversion and redemption rights
and sinking fund provisions. The issuance of preferred stock could affect the
rights of the holders of common stock adversely and reduce the value of the
common stock. In addition, specific rights granted to holders of preferred stock
could be used to restrict the Company's ability to merge with or sell its assets
to a third party.
OUR DIRECTORS' LIABILITY IS LIMITED UNDER MINNESOTA LAW. Our Articles
of Incorporation, as amended and restated, state that our directors are not
liable for monetary damages for breach of fiduciary duty, except for a breach of
the duty of loyalty, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, for dividend payments or
stock repurchases illegal under Minnesota law, and for any transaction in which
the director derived an improper personal benefit. In addition, our bylaws
provide that we shall indemnify our officers and directors to the fullest extent
permitted by Minnesota law for all expenses incurred in the settlement of any
actions against them in connection with their service as officers or directors
of the Company.
ANTI-TAKEOVER PROVISIONS. Minnesota law provides Minnesota corporations
with anti-takeover protections. These protective provisions could delay or
prevent a change in control of the Company by requiring shareholder approval of
significant acquisitions of voting stock of the Company. These provisions
operate even when many shareholders may think a takeover would be in their best
interests.
FORWARD-LOOKING STATEMENTS
This prospectus and the information which is incorporated by reference
in this prospectus include "forward-looking statements" within the meaning of
the securities laws. Statements about us and our expected financial position,
business and financing plans are forward-looking statements. Forward-looking
statements can be identified by, among other things, the use of forward-looking
terminology such as "believes," "expects," "may," "will," "should," "seeks,"
"pro forma," "anticipates," "intends," or other variations or comparable
terminology, or by discussions of strategy or intentions. Although we believe
that the expectations reflected in our forward-looking statements are
reasonable, we cannot assure you that our expectations will prove to be correct.
Forward-looking statements are necessarily dependent upon assumptions, estimates
and data that may be incorrect or imprecise and involve known and unknown risks,
uncertainties and other factors. Accordingly, you should not consider our
forward-looking statements as predictions of future events or circumstances. A
number of factors could cause our actual results, performance, achievements or
industry results to be materially different from any future results, performance
or achievements expressed or implied by our forward-looking statements. These
factors include, but are not limited to: the competitive environment in our
industry; changes in economic conditions in general and in our business; changes
in prevailing interest rates and the availability of and terms of financing to
fund our business; our ability to attract and retain qualified personnel;
changes in our acquisition and capital expenditure plans; and other factors
discussed in this prospectus including, without limitation, those in our filings
with the Securities and Exchange Commission. Given these uncertainties,
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you should not rely on our forward-looking statements in making an investment
decision. We disclaim any obligation to update you on any factors that may
affect the likelihood of realization of our expectations and we do not intend to
announce publicly the results of any revisions to any of our forward-looking
statements to reflect future events or developments. All written and oral
forward-looking statements attributable to us (including statements before and
after the date of this prospectus) are expressly qualified by these cautionary
statements.
USE OF PROCEEDS
We will not receive any proceeds from the conversion of the Preferred
Stock or the sale of common stock by the selling shareholders. We will receive
$2,121,025 in payment of the exercise price if the warrants are exercised in
full. Warrant exercise proceeds, if any, will be used for general corporate
purposes.
PRICE RANGE OF COMMON STOCK
Our common stock is listed and traded under the symbol "APAT" on the
Nasdaq SmallCap Market. The following table shows the high and low closing sale
prices as reported by the Nasdaq SmallCap Market during the last three fiscal
years ended March 31, 1998, 1999, and 2000.
- --------------------------------------------------------------------------------
FISCAL YEAR 1998 1998 1999 1999 2000 2000
SALE PRICE LOW HIGH LOW HIGH LOW HIGH
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
First Quarter $5.25 $6.50 $5.62 $6.75 $5.25 $8.50
- --------------------------------------------------------------------------------
Second Quarter 5.37 6.62 4.25 6.00 3.50 7.93
- --------------------------------------------------------------------------------
Third Quarter 6.12 9.25 4.00 5.00 3.88 19.50
- --------------------------------------------------------------------------------
Fourth Quarter 5.50 8.00 4.75 10.00 11.31 64.00
- --------------------------------------------------------------------------------
We have never declared or paid a dividend on our common stock and the
Board of Directors currently intends to retain all earnings, if any, for use in
the business for the foreseeable future. Any future determination as to
declaration and payment of dividends will be made at the discretion of the Board
of Directors, subject to covenants in any loan documents restricting the payment
of dividends. Our current loan agreements restrict our ability to pay dividends.
SELLING SHAREHOLDERS
On March 15, 2000, Strong River Investments, Inc., Bay Harbor
Investments, Inc. and Ampal American-Israel Corporation purchased an aggregate
of $5,000,000 of 2% Series A Convertible Preferred Stock and warrants from APA
Optics in a private placement transaction. Strong River, Bay Harbor and Ampal
received 300, 100 and 100 shares, respectively, of Preferred Stock which may be
converted into our common stock. In addition, Strong River received warrants to
acquire 30,000 shares of our common stock, Bay Harbor received warrants to
acquire 10,000 shares of our common stock and Ampal received warrants to acquire
10,000 shares of our common stock.
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The warrants issued to Strong River, Bay Harbor and Ampal are
exercisable at $35.00 and expire on March 15, 2005. The Preferred Stock carries
a 2% cumulative dividend payable upon conversion in cash or common stock. As of
the date of this prospectus, the Preferred Stock is convertible into shares of
our common stock at $35.00 per share. Beginning September 14, 2000, and each
monthly period thereafter while shares of the Preferred Stock are outstanding,
the conversion price will reset in accordance with the formula set forth in the
Certificate of Designations, Rights, Preferences and Limitations of Series A 2%
Convertible Preferred Stock of APA. The conversion price is also subject to
adjustment pursuant to the anti-dilution provisions set forth in such
certificate.
Any shares of Preferred Stock outstanding three years after the funding
date automatically convert into shares of our common stock at the then
applicable conversion price. The Preferred Stock is redeemable under certain
circumstances as stated in the certificate.
A holder of the Preferred Stock may not convert into shares of common
stock if after the conversion, the holder, together with its affiliates, would
beneficially own over 9.999% of the outstanding shares of our common stock. This
restriction may be waived by a holder on not less than 61 days' notice to us.
In addition, as long as our common stock is listed for trading on
Nasdaq, we may not issue common stock on conversion of the Preferred Stock in an
amount which exceeds 19.999% of the outstanding common stock immediately prior
to the sale of the Preferred Stock without obtaining prior shareholder approval.
Since the number of shares of our common stock issuable upon conversion
of the Preferred Stock will change based upon fluctuations of the market price
of our common stock prior to a conversion, the actual number of shares of our
common stock that will be issued under the Preferred Stock, and consequently the
number of shares of our common stock that will be beneficially owned by Strong
River, Bay Harbor or Ampal cannot be determined at this time. Because of this
fluctuating characteristic, we agreed to register a number of shares of our
common stock that exceeds the number of our shares of common stock currently
beneficially owned by them. The number of shares of our common stock listed in
the table below as being beneficially owned by Strong River, Bay Harbor or Ampal
includes the shares of our common stock that are issuable to each of them,
subject to the 9.999% limitation, upon conversion of their Preferred Stock and
exercise of their warrants. However, the 9.999% limitation would not prevent
Strong River, Bay Harbor or Ampal from acquiring and selling in excess of 9.999%
of our common stock through a series of conversions and sales under the
Preferred Stock and acquisitions and sales under the warrants.
In connection with the March 2000 financing, Wharton Capital Partners,
Ltd., received warrants to purchase 7,500 shares of our common stock at $49.47
per share for its role as placement agent. The 7,500 shares are also being
offered to the public by means of this prospectus.
The following table sets forth the name of each person who is offering
shares of common stock by this prospectus, the number of shares of common stock
owned by each person now, the number of shares of common stock that may be sold
in this offering, and the number of shares of common stock each person will own
after the offering, assuming they sell all of the shares offered.
16
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<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
BENEFICIAL OWNERSHIP PRIOR SHARES TO BE SOLD IN BENEFICIAL OWNERSHIP
NAME TO OFFERING OFFERING AFTER OFFERING
- ------------------------------------------------------------------------------------------------------------
SHARES PERCENTAGE SHARES PERCENTAGE
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Strong River Investments, Inc. 115,715(1) 1.3% 180,000(2) 0 0
- ------------------------------------------------------------------------------------------------------------
Bay Harbor Investments, Inc. 38,571(3) * 60,000(2) 0 0
- ------------------------------------------------------------------------------------------------------------
Ampal American-Israel Corporation 38,571(4) * 60,000(2) 0 0
- ------------------------------------------------------------------------------------------------------------
Wharton Capital Partners, Inc. 7,500(5) * 7,500(5) 0 0
- ------------------------------------------------------------------------------------------------------------
</TABLE>
* Less than 1%.
(1) Consists of the shares of our common stock issuable to Strong River,
subject to the 9.999% limitation, upon conversion of its Preferred
Stock and exercise of its warrants.
(2) Pursuant to the agreement with Strong River, Bay Harbor and Ampal, we
are required to register such number of shares of common stock equal to
the sum of (i) 175% of the number of shares of common stock issuable
upon conversion in full of their Preferred Stock, assuming for such
purposes that their Preferred Stock is outstanding for three years and
that such conversion occurred on April 3, 2000, and (ii) the number of
shares of common stock issuable upon exercise in full of the warrants
held by Strong River, Bay Harbor and Ampal.
(3) Consists of the shares of our common stock issuable to Bay Harbor,
subject to the 9.999% limitation, upon conversion of its Preferred
Stock and exercise of its warrants.
(4) Consists of the shares of our common stock issuable to Ampal, subject
to the 9.999% limitation, upon conversion of its Preferred Stock and
exercise of its warrants.
(5) Consists of the shares of our common stock issuable to Wharton Capital
Partners, Inc. if it exercises the warrant it received for placing the
Preferred Stock.
PLAN OF DISTRIBUTION
The selling shareholders have advised us that there are presently no
underwriting arrangements with respect to the sale of the shares; however, such
arrangements may exist in the future.
The selling shareholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling shareholders may use any one or more of the
following methods when selling shares:
* ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
* block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
* purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
* an exchange distribution in accordance with the rules of the
applicable exchange;
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* privately negotiated transactions;
* short sales;
* broker-dealers may agree with the selling shareholders to sell a
specified number of such shares at a stipulated price per share;
* a combination of any such methods of sale; and
* any other method permitted pursuant to applicable law.
The selling shareholders may also engage in short sales against the
box, puts and calls and other transactions in securities of the Company or
derivatives of Company securities and may sell or deliver shares in connection
with these trades. The selling shareholders may pledge their shares to their
brokers under the margin provisions of customer agreements. If a selling
shareholder defaults on a margin loan, the broker may, from time to time, offer
and sell the pledged shares.
Broker-dealers engaged by the selling shareholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling shareholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling shareholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling shareholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
The selling shareholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
We are required to pay all fees and expenses incident to the
registration of the shares, including up to $5,000 of the fees and disbursements
of counsel to the selling shareholders. We have agreed to indemnify the selling
shareholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
EXPERTS AND LEGAL MATTERS
The financial statements of APA Optics, Inc. as of March 31, 1999 and
1998, and for each of the three years in the period ended March 31, 1999,
incorporated by reference in this prospectus and in the registration statement
of which this prospectus is a part have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon (which contains an
explanatory paragraph describing conditions that raise substantial doubt about
the ability of APA Optics to continue as a going concern, as described in Note 2
to the financial statements) also incorporated by reference herein. Such
financial statements have been incorporated by reference in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
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The validity of the shares of common stock offered by this prospectus
has been passed upon for the Company by Moss & Barnett, A Professional
Association, Minneapolis, Minnesota.
MATERIAL CHANGES
There have been no material changes in the financial condition or
business of the Company since its Report on Form 10-Q for the quarter ended
December 31, 1999 except for our placement of $5 million in 2% Series A
convertible preferred stock and related warrants for purchase of 50,000 shares
of common stock in March 2000.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
Our Articles of Incorporation limit personal liability for breach of
the fiduciary duty of our directors, to the fullest extent provided by the
Minnesota Business Corporation Act. The Articles eliminate the personal
liability of directors for damages occasioned by breach of fiduciary duty,
except for liability based on the director's duty of loyalty to APA Optics,
liability for acts or omissions not made in good faith, liability for acts or
omissions involving intentional misconduct, liability based on payments of
improper dividends, liability based on violations of state securities laws, and
liability occurring prior to the date such provision was added. Any amendment to
or repeal of these provisions will not be applied retroactively to adversely
affect any right or protection of a director with respect to any acts or
omissions occurring prior to the amendment or repeal. In addition, the Minnesota
Business Corporation Act and our Bylaws provide that our officers and directors
have the right to indemnification from the Company for liability arising out of
certain actions to the fullest extent permissible by law.
This indemnification may be available for liabilities arising in
connection with this offering. However, in the opinion of the Securities and
Exchange Commission, indemnification for liabilities arising under the
Securities Act of 1933 is against public policy as expressed in the Act and is
therefore unenforceable.
ANTITAKEOVER STATUTE
Section 302A.671 of the Minnesota Business Corporation Act (the
"Minnesota Act") applies, with certain exceptions, to any acquisition of voting
stock of APA Optics, including the receipt of a proxy, from a person other than
APA Optics, and other than in connection with certain mergers and exchanges to
which APA Optics is a party, that results in the beneficial ownership by the
acquiring party of 20% or more of the Company's voting stock then outstanding.
Under Section 302A.671 any such acquisition must be approved by a majority vote
of our shareholders. In general, in the absence of such approval, shares
exceeding the threshold are denied voting rights and may be redeemed by us at
the then fair market value within 30 days after the acquiring person fails to
give a timely information statement to the Company or after the date that
shareholders vote not to grant voting rights to the acquiring person's shares.
Section 302A.673 of the Minnesota Act generally prohibits any business
combination by a Minnesota company with any shareholder that purchases 10% or
more of the company's voting shares (an "interested shareholder") within four
years following the interested shareholder's share acquisition date, unless the
business combination is approved by a committee of all of the disinterested
members of the Board of Directors of the company before the share acquisition.
These statutory provisions could delay or prevent a change in control
of APA Optics.
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307,500 SHARES
APA OPTICS, INC.
COMMON STOCK
----------------------
PROSPECTUS
----------------------
APRIL 12, 2000
