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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1999
REGISTRATION NO. 333-65963
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT 6 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EXPRESS CAPITAL CONCEPTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 6770 84-1107140
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
ORGANIZATION)
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EXPRESS CAPITAL CONCEPTS, INC.
26 WEST DRY CREEK CIRCLE, SUITE 600
LITTLETON, COLORADO 80120
TELEPHONE: (303) 794-9450
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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EARNEST MATHIS, JR.
PRESIDENT, CHAIRMAN OF THE BOARD AND TREASURER
EXPRESS CAPITAL CONCEPTS, INC.
26 WEST DRY CREEK CIRCLE, SUITE 600
LITTLETON, COLORADO 80120
TELEPHONE: (303) 794-9450
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
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AARON A. GRUNFELD, ESQ. H. WAYNE TAYLOR, ESQ.
RESCH POLSTER ALPERT MITCHELL SILBERBERG & KNUPP LLP
& BERGER LLP 11377 WEST OLYMPIC BOULEVARD
10390 SANTA MONICA BLVD., 4TH FLOOR LOS ANGELES, CALIFORNIA 90064
LOS ANGELES, CALIFORNIA 90025 TELEPHONE: (310) 312-3120
TELEPHONE: (310) 277-8300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As promptly as practicable after this Registration Statement becomes effective
and after the effective time of the proposed merger described in this
Registration Statement.
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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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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers, as well as other employees and
individuals, against expenses (including attorneys' fees), judgements, fines and
amounts paid in settlement in connection with specific actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than derivative actions) if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
Express Capital's amended and restated Certificate of Incorporation
provides that Express Capital is authorized to indemnify agents for breach of
duty to the corporation and its shareholders in excess of the indemnification
otherwise permitted by applicable law. Express Capital's amended Bylaws provide
that Express Capital will indemnify its directors and officers, and may
indemnify any of its employees and agents, to the fullest extent not prohibited
by applicable law. Express Capital's amended Bylaws further provide, among other
things, that Express Capital may modify the extent of such indemnification by
individual contracts with its directors and that, subject to certain exceptions.
Express Capital will not be required to indemnify any director in connection
with any proceeding (or part thereof) initiated by such director.
The Delaware General Corporation Law, permits a corporation to provide in
its certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (iv) any transaction from which the
director derived an improper personal benefit.
Express Capital's amended and restated Certificate of Incorporation
provides that the liability of directors for monetary damages is eliminated to
the fullest extent under applicable law.
In connection with the merger, GreyStone has agreed to indemnify, defend
and hold harmless, Mr. Mathis and his representatives from damages arising out
of (i) the issuance by GreyStone of any securities of GreyStone prior to the
effective date of the merger, (ii) any claims for rescission, breach of a
representation or warranty, fraud, and breach of contract in connection with the
issuance of any securities of GreyStone prior to the effective date of the
merger, and (iii) any liability imposed under federal or state securities laws
in connection with the issuance of any securities of GreyStone prior to the
effective date of the merger. GreyStone has also agreed that it will reimburse
Mr. Mathis for any damages he suffers in connection with any portion of this
Registration Statement other than the sections related entirely to Express
Capital.
At present, there is no pending litigation or proceeding involving a
director, officer or key employee of Express Capital as to which indemnification
is being sought nor is Express Capital aware of any threatened litigation that
may result in claims for indemnification by any officer or director.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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EXHIBIT
NO. DESCRIPTION OF DOCUMENT
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2.1 Agreement and Plan of Merger and Reorganization by and among
Express Capital Concepts, Inc., Express Capital Acquisition
Corp., GreyStone Technology, Incorporated and Mr. Earnest
Mathis, Jr., dated as of August 11, 1997. See Annex A
attached hereto.
2.2 Amendment to Agreement and Plan of Merger and Reorganization
dated as of October 1, 1998 by and among Registrant, Express
Capital Acquisition Corp., GreyStone Technology,
Incorporated and Mr. Earnest Mathis, Jr. See Annex A
attached hereto.
2.3 Second Amendment to Agreement and Plan of Merger and
Reorganization. See Annex A attached hereto.
*2.4 Indemnification Agreement dated as of October 19, 1998 by
and between Mr. Earnest Mathis, Jr., Express Capital
Concepts, Inc. and GreyStone Technology, Incorporated.
*3.1 Certificate of Incorporation of the Registrant.
*3.2 Bylaws of the Registrant.
3.3 Amended and Restated Certificate of Incorporation of
Registrant, to be effective after consummation of the
proposed Merger. See Annex C attached hereto.
3.4 Amended and Restated Bylaws of the Registrant, to be
effective after consummation of the proposed Merger. See
Annex D attached hereto.
*4.1 Form of Common Stock Certificate of the Registrant.
*4.2 Form of warrant to be issued to Chathams Rowe Venture
Partners.
*4.3 Form of Common Stock Certificate of the Registrant, to be
used after amendment restatement of Registrants Certificate
of Incorporation.
*5.1 Legal Opinion of Mitchell Silberberg & Knupp LLP.
*8.1 Tax Opinion of J.H. Cohn LLP.
23.1 Consent of Angell & Deering.
23.2 Consent of J.H. Cohn LLP.
*23.3 Consent of Mitchell Silberberg & Knupp LLP (included in
Exhibit 5.1).
27.1 Financial Data Schedule of Registrant.
27.2 Financial Data Schedule of GreyStone.
*99.1 GreyStone form of proxy card.
*99.2 Exchange Documentation with Chathams Rowe Venture Partners.
</TABLE>
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* Previously filed.
ITEM 22. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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The undersigned Registrant hereby undertakes:
(1) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding
to the request;
(2) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective;
(3) The undersigned registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration statement,
by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
(4) The registrant undertakes that every prospectus (i) that is filed
pursuant to paragraph (3) immediately preceding, or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Act and is used in
connection with an offering of securities subject to Rule 415, will be
filed as a part of an amendment to the registration statement and will not
be used until such amendment is effective, and that, for purposes of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if. in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Littleton, State of
Colorado, on November 12, 1999.
EXPRESS CAPITAL CONCEPTS, INC.
By: /s/ EARNEST MATHIS
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President and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ EARNEST MATHIS President, Secretary, November 12, 1999
- ----------------------------------------------------- Treasurer and Director
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II-4
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION OF DOCUMENT
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*2.1 Agreement and Plan of Merger and Reorganization by and among
Express Capital Concepts, Inc., Express Capital Acquisition
Corp., GreyStone Technology, Incorporated and Mr. Earnest
Mathis, Jr., dated as of August 11, 1997. See Annex A
attached hereto.
*2.2 Amendment to Agreement and Plan of Merger and Reorganization
dated as of October 1, 1998 by and among Registrant, Express
Capital Acquisition Corp., GreyStone Technology,
Incorporated and Mr. Earnest Mathis, Jr. See Annex A
attached hereto.
*2.3 Second Amendment to Agreement and Plan of Merger and
Reorganization. See Annex A attached hereto.
*2.4 Indemnification Agreement dated as of October 19, 1998 by
and between Mr. Earnest Mathis, Jr., Express Capital
Concepts, Inc. and GreyStone Technology, Incorporated.
*3.1 Certificate of Incorporation of the Registrant.
*3.2 Bylaws of the Registrant.
*3.3 Amended and Restated Certificate of Incorporation of
Registrant, to be effective after consummation of the
proposed Merger. See Annex C attached hereto.
*3.4 Amended and Restated Bylaws of the Registrant, to be
effective after consummation of the proposed Merger. See
Annex D attached hereto.
*4.1 Form of Common Stock Certificate of the Registrant.
*4.2 Form of warrant to be issued to Chathams Rowe Venture
Partners.
*4.3 Form of Common Stock Certificate of the Registrant, to be
used after amendment restatement of Registrants Certificate
of Incorporation.
*5.1 Legal Opinion of Mitchell Silberberg & Knupp LLP.
*8.1 Tax Opinion of J.H. Cohn LLP.
23.1 Consent of Angell & Deering
23.2 Consent of J.H. Cohn LLP.
*23.3 Consent of Mitchell Silberberg & Knupp LLP (included in
Exhibit 5.1).
*27.1 Financial data schedule of Registrant.
*27.2 Financial data schedule of GreyStone.
*99.1 GreyStone form of proxy card.
*99.2 Exchange documentation with Chathams Rowe Venture Partners.
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* Previously filed.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use, in Amendment No. 5 in this Registration Statement
on Form S-4, of our report dated February 22, 1999, except for the second
paragraph of Note 10 as to which the date is July 22, 1999, relating to the
consolidated financial statements of Express Capital Concepts, Inc. and
Subsidiary for the years ended December 31, 1998, 1997 and 1996 and the
reference to our firm under the caption "Selected Historical Financial
Information" and "Experts" in the Prospectus contained in said Registration
Statement.
/s/ ANGELL & DEERING
Angell & Deering
Certified Public Accountants
Denver, Colorado
November 11, 1999
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Exhibit No. 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the inclusion in the Prospectus of this Registration
Statement on amendment 5 to Form S-4, of our report dated May 16 1999, except
for Note 16 as to which the date is July 22, 1999, relating to the financial
statements of GreyStone Technology, Incorporated ("GreyStone") as of March 31,
1999 and 1998 and for each of the three years in the period ended March 31,
1999. We also consent to the reference to our firm under the captions, "Selected
Historical Financial Information" and "Experts", in the Prospectus of the
Registration Statement.
/s/ J.H. COHN LLP
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J.H. Cohn LLP
San Diego, California
November 11, 1999
