<PAGE>
As filed with the Securities and Exchange Commission on January 16, 1998.
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
AMTEC, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 52-1989122
(STATE OR OTHER JURISDICTION OF INCORPORATION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OR ORGANIZATION)
</TABLE>
599 LEXINGTON AVENUE, 44TH FLOOR NEW YORK, NEW YORK 10022 (212) 319-9160
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JOSEPH R. WRIGHT, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
AMTEC, INC.
599 LEXINGTON AVENUE
44TH FLOOR
NEW YORK, NEW YORK 10022
(212) 319-9160
(Name, address and telephone number of agent for service)
with copies to:
James C. Stokes, Esq.
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
(617) 951-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time 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, as amended (the "Securities Act"), 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 a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PRICE PER SHARE(1) PRICE(1) FEE
- --------------------------------------------- ----------------- ------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 Par Value(2)(3)........................ 12,596,428 $ 0.625 $7,872,767.50 $2,322.47
Common Stock,
$.001 Par Value(3)(4)........................ 1,535,354 $ 0.625 $ 959,596.25 $ 283.08
----------------- ----------------- ------------- ------------
Total........................................ 14,131,782 $ 0.625 $8,832,363.75 $2,605.55
----------------- ----------------- ------------- ------------
----------------- ----------------- ------------- ------------
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, and
based on the average of the high and low prices of the Registrant's Common
Stock reported in the consolidated trading system of the American Stock
Exchange on January 12, 1998.
(2) Represents the estimated number of shares of Common Stock issuable upon
conversion of the outstanding shares of the Registrant's Series E Convertible
Preferred Stock when such shares are first convertible, assuming a conversion
price of $0.625, which was the closing price of the Registrant's Common Stock
reported in the consolidated trading system of the American Stock Exchange on
January 12, 1998.
(3) In addition to the estimated number of shares set forth in the table,
the amount to be registered includes a presently indeterminate number of
shares issuable in connection with the conversion of the convertible
securities and the exercise of the warrants as described herein or otherwise
in respect of such securities as such number may be adjusted as a result of
stock splits, stock dividends and antidilution provisions (including floating
rate conversion prices) in accordance with Rule 416.
(4) Represents shares of the Registrant's Common Stock issuable upon the
exercise of certain outstanding warrants issued by the Registrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
iii
<PAGE>
PROSPECTUS
AMTEC, INC.
14,131,782 Shares of
Common Stock, $.001 Par Value
This Prospectus (the "Prospectus") relates to the offer by the
securityholders named herein ("Selling Securityholders") for sale from time
to time of up to 14,131,782 shares (the "Shares") of Common Stock, $.001 par
value (the "Common Stock"), of AmTec, Inc., a Delaware corporation (formerly
AVIC Group International, Inc., and referred to herein as the "Company"). To
the extent required by applicable law or Securities and Exchange Commission
regulations, this Prospectus shall be delivered to purchasers upon resale of
the Shares by the Selling Securityholders. The Shares consist of (i)
12,596,428 shares of Common Stock issuable in connection with the conversion
of currently outstanding shares of Series E Convertible Preferred Stock,
$.001 par value (the "Series E Preferred Shares") of the Company, and (ii)
1,535,354 shares of Common Stock issuable upon the exercise of certain
outstanding warrants (the "Warrants") issued by the Company to certain
Selling Securityholders in connection with the issuance of the Series E
Preferred Shares. The number of shares of Common Stock issuable in connection
with the conversion of the Series E Preferred Shares and the Warrants is
subject to adjustment. The Warrants are exercisable at exercise prices based
on the average trading price of the Common Stock during a period immediately
preceding exercise, except that one Warrant to purchase 326,171 shares of
Common Stock has an initial fixed exercise price of $2.4750 per share. The
Company will not receive any proceeds from the sale of the Shares offered
hereby. However, the Company may receive certain cash consideration in
connection with exercises of the Warrants. See "Use of Proceeds."
The Common Stock is listed on the American Stock Exchange under the
symbol "ATC." The closing price of the Common Stock reported on the American
Stock Exchange on January 12, 1998 was $0.625 per share.
The Selling Securityholders have advised the Company that they may sell,
directly or through one or more underwriters, brokers, dealers or agents from
time to time in one or more transactions in the market, all or a portion of
the securities offered hereby. Any of such transactions may be effected at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at varying prices determined at the time of sale or
at negotiated or fixed prices, in each case as determined by agreement
between the Selling Securityholder and underwriters, brokers, dealers or
agents, or purchasers. In transactions effected by selling Shares to or
through underwriters, brokers, dealers or agents, such underwriters, brokers,
dealers or agents may receive compensation in the form of discounts,
concessions or commissions from the Selling Securityholders or commissions
from purchasers of Shares for whom they may act as agent (which discounts,
concessions or commissions as to particular underwriters, brokers, dealers or
agents may be in excess of those customary in the types of transactions
involved). The Selling Securityholders and any brokers, dealers or agents
that participate in the distribution of the Shares may be deemed to be
underwriters, and any profit on the sale of Shares by them and any discounts,
concessions or commissions received by any such underwriters, brokers,
dealers or agents may be deemed to be underwriting discounts and commissions
under the Securities Act of 1933, as amended. The Company will pay all other
expenses of this offering. See "Plan of Distribution."
No dealer, salesman or other person has been authorized to give any
information or make any representations, other than those contained in this
Prospectus, in connection with the offering hereby, and, if given or made,
such information and representations must not be relied upon as having been
authorized by the Company or the Selling Securityholders. This Prospectus
does not constitute an offer to sell, or a solicitation of an offer to buy,
any securities to any person in any State or other jurisdiction in which such
offer or solicitation is unlawful. Neither the delivery of this Prospectus
nor any sale made hereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of the Company or
the facts herein set forth since the date hereof.
<PAGE>
----------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" ON
PAGES 6 THROUGH 11 OF THE PROSPECTUS.
----------------
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.
<TABLE>
<CAPTION>
UNDERWRITING DISCOUNTS PROCEEDS TO SELLING
PRICE TO PUBLIC AND COMMISSIONS SHAREHOLDERS
------------------- ------------------------- ---------------------
<S> <C> <C> <C>
Per Share............................................. (1) (1)(2) (1)(2)
------------- ----------------- -------------------
Total.................................................. (1) (1)(2) (1)(2)
------------- ----------------- -------------------
</TABLE>
(1) The sale or distribution of the Shares may be effected by the Selling
Securityholders, directly or through one or more underwriters, brokers,
dealers or agents, from time to time in one or more transactions in the
market. Any of such transactions may be effected at market prices
prevailing at the time of sale, at prices related to such prevailing
market prices, at varying prices determined at the time of sale or at
negotiated or fixed prices, in each case as determined by agreement
between the Selling Securityholder and underwriters, brokers, dealers or
agents, or purchasers. In transactions effected by selling Shares to or
through underwriters, brokers, dealers or agents, such underwriters,
brokers, dealers or agents may receive compensation in the form of
discounts, concessions or commissions from the Selling Securityholders or
commissions from purchasers of Shares for whom they may act as agent
(which discounts, concessions or commissions as to particular
underwriters, brokers, dealers or agents may be in excess of those
customary in the types of transactions involved). The Selling
Securityholders and any brokers, dealers or agents that participate in
the distribution of the Shares may be deemed to be underwriters, and any
profit on the sale of Shares by them and any discounts, concessions or
commissions received by any such underwriters, brokers, dealers or agents
may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended (the "Securities Act").
Under the securities laws of certain states, the Shares may not be sold
unless the Shares have been registered or qualified for sale in such
state or an exemption from registration or qualification is available
and is complied with.
The Company will pay all of the expenses incident to the registration,
offering and sale of the Shares to the public hereunder other than
commissions, fees and discounts of underwriters, brokers, dealers and
agents. The Company has agreed to indemnify the Selling Securityholders
against certain liabilities, including liabilities under the Securities
Act.
Certain of the underwriters, dealers, brokers or agents may have other
business relationships with the Company and its affiliates in the
ordinary course. See "Plan of Distribution" and "Selling
Securityholders."
(2) The Company has agreed to prepare and file this Prospectus and the
related Registration Statement and supplements and amendments thereto
required by the Securities Act with the Securities and Exchange
Commission, to register and qualify the Shares if required under
applicable Blue Sky laws, and to deliver copies of the Prospectus to the
Selling Securityholders. The expenses incurred in connection with the
same, estimated at $40,000, will be borne by the Company. The Company
will not be responsible for any discounts, concessions, commissions or
other compensation due to any broker or dealer in connection with the
sale of any of the Shares offered hereby, which expenses will be borne by
the Selling Securityholders.
The date of this Prospectus is , 1998.
(cover page continued)
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports, proxy statements
and other information concerning the Company may be inspected and copies may
be obtained (at prescribed rates) at public reference facilities maintained
by the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the regional offices of the Commission located at Seven
World Trade Center, 13th Floor, New York, New York 10048 and at Northwest
Atrium Center, 500 W. Madison Street, Suite 1400, Chicago, Illinois
60661-2511. In addition, electronically filed documents, including reports,
proxy and information statements and other information regarding the Company,
can be obtained from the commission's Web site at http://www.sec.gov. The
Common Stock of the Company is listed on the American Stock Exchange, Inc.,
and reports, proxy statements and other information concerning the Company
can also be inspected at the offices of the American Stock Exchange at 86
Trinity Place New York, New York 10006.
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act with the Commission with
respect to the Common Stock being offered pursuant to this Prospectus. As
permitted by the rules and regulations of the Commission, this Prospectus
omits certain of the information contained in the Registration Statement. For
further information with respect to the Company and the Common Stock being
offered pursuant to this Prospectus, reference is hereby made to such
Registration Statement, including the exhibits filed as part thereof.
Statements contained in this prospectus concerning the provisions of certain
documents filed with or incorporated by reference in the Registration
Statement are not necessarily complete, each such statement being qualified
in all respects by such reference. Copies of all or any part of the
Registration Statement, including the documents incorporated by the reference
therein or exhibits thereto, may be obtained upon payment of the prescribed
rates at the offices of the Commission set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission under
the Exchange Act are incorporated in this Prospectus by reference: (a) the
Company's Annual Report on Form 10-KSB for the year ended March 31, 1997,
filed with the Commission on July 15, 1997; (b) the Company's Quarterly
Reports on Form 10-Q for the quarters ended June 30, 1997 and September 30,
1997, filed with the Commission on August 19, 1997 and November 19, 1997,
respectively and any amendments thereto; (c) the description of the Common
Stock set forth in the Company's Registration Statement on Form 8-A under the
Exchange Act filed with the Commission on November 19, 1996, including any
amendment or report subsequently filed by the Company for the purpose of
updating that description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the securities offered hereby
shall be deemed to be incorporated by reference into this Prospectus and to
be a part of this Prospectus from the date of filing of such documents. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated by reference (other than
exhibits to such documents that are not specifically incorporated by
reference in such documents). Written requests for such copies should be
directed to Timothy P.F. Crowley, Corporate Secretary, AmTec, Inc., 599
Lexington Avenue, 44th Floor, New York, New York 10022. Telephone requests
may be directed to Mr. Crowley at (212) 319-9160.
2
<PAGE>
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995.
EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THE MATTERS DISCUSSED
IN THIS PROSPECTUS ARE FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF
SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED, WHICH INVOLVE RISKS
AND UNCERTAINTIES. IN ADDITION TO THE RISKS AND UNCERTAINTIES SET FORTH,
OTHER FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY INCLUDE,
BUT ARE NOT LIMITED TO, ECONOMIC, COMPETITIVE, GOVERNMENTAL, INTERNATIONAL
AND TECHNOLOGICAL FACTORS AFFECTING THE COMPANY'S REVENUES, JOINT VENTURES,
OPERATIONS, MARKETS, AND PRICES, AND OTHER FACTORS DISCUSSED FROM TIME TO
TIME IN THE COMPANY'S PERIODIC REPORTS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
3
<PAGE>
SUMMARY OF COMPANY
The Company develops and finances communications networks in the People's
Republic of China ("PRC"). The Company's interests in its Chinese
communications networks include a digital cellular telephone network and a
multimedia network, both in the northern province of Hebei, PRC. The Company
holds these interests through Sino-foreign joint ventures, which are a
legally authorized vehicle for foreign direct investment in China. Consistent
with PRC laws and regulations, the Company's Sino-foreign joint ventures have
entered into contracts with authorized network operators in the PRC to build
networks and sell the assets of such networks to the operators for a portion
of the cash-flow generated by operations of the networks.
Each of the Company's joint ventures, Hebei United Communications
Equipment Company Limited ("Hebei Equipment") and Hebei United
Telecommunications Engineering Company Limited ("Hebei Engineering"), is
organized under the laws of the PRC as a Sino-foreign equity joint venture
enterprise, a distinct legal entity with limited liability. Such entities are
governed by the Law of the People's Republic of China on Joint Ventures Using
Chinese and Foreign Investments, and implementing regulations related
thereto. The parties to the joint ventures have contractual rights to the
financial returns of the joint venture in proportion to the joint venture
interests that they hold. The transfer or increase of an interest in a
Sino-foreign equity joint venture enterprise requires agreement among the
parties to the venture and is effective upon approval of relevant government
agencies. For a discussion of the risks associated with PRC laws, regulations
and policies, see "Risk Factors--Risks Relating to Doing Business in the
PRC--PRC Laws; Evolving Regulations and Policies."
In March 1996, the Company formed a joint venture with a 60.8% equity
interest in Hebei Equipment. As a result, Hebei Equipment was converted from
a PRC enterprise into a Sino-foreign joint venture company. On April 15,
1997, all PRC governmental approvals were finalized for the conversion of
Hebei Equipment to a Sino-foreign joint venture company. At the time of the
Company's acquisition of the majority stake in Hebei Equipment, Hebei United
Telecommunications Development Co. ("Hebei Development") held a 30% ownership
interest in Hebei Equipment and Beijing CATCH held subscription rights to a
9.2% ownership interest in Hebei Equipment. On April 22, 1997, the Board of
Directors of Hebei Equipment resolved to terminate Beijing CATCH's ownership
participation in Hebei Equipment. Further, on October 9, 1997, the Company
and Hebei Development agreed to transfer the 9.2% ownership interest in Hebei
Equipment to the Company. Of an additional $1 million committed by the
Company to its consolidated subsidiary, Hebei Equipment, $276,000 will be
allocated as a capital contribution to acquire the additional 9.2% ownership
interest in Hebei Equipment, with the balance being allocated as an
intercompany loan. PRC governmental approvals for the transfer were pending
as of January 2, 1998.
The Company, through Hebei Equipment, is currently involved in the
development of two communications networks in Hebei Province: a digital
cellular telephone network (the "GSM Network") and a province-wide multimedia
network (the "Hebei Multimedia Network"). The GSM Network is being
constructed by Hebei Engineering, which is a 51%-owned subsidiary of Hebei
Equipment and is 49%-owned by Nippon Telegraph and Telephone International
("NTTI"), a subsidiary of Nippon Telegraph & Telephone Corporation. The Hebei
Multimedia Network will link existing cable television systems in Hebei
Province and is under construction.
Hebei Engineering is constructing the GSM Network pursuant to a 15-year
agreement (the "UNICOM Agreement"), dated February 9, 1996, with China United
Communications Co. ("UNICOM"). UNICOM holds one of two licenses to operate
cellular telephone networks in the PRC. Under the terms of the UNICOM
Agreement, Hebei Engineering will build the GSM Network and sell ownership of
the GSM Network over the life of the agreement to UNICOM in exchange for a
majority share of cash flow generated by UNICOM from UNICOM's operation of
the GSM Network. Hebei Engineering will also provide consulting assistance to
UNICOM in the operation of the GSM Network. Hebei Engineering will receive
78% of up front connection fees paid by new subscribers to connect to the GSM
Network, 78% of depreciation of fixed assets and 78% of net income generated
by UNICOM from operation of the GSM Network until February 9, 2011. Through
the Company's 60.8% interest in Hebei Equipment and Hebei Equipment's 51%
interest in Hebei Engineering, the Company holds an indirect 31% interest in
Hebei Engineering.
Under the UNICOM Agreement, the GSM Network will provide cellular
telephone service, using the Global Service for Mobile ("GSM")
telecommunications technology, in the ten major cities of Hebei Province,
which have a total population, including surrounding metropolitan areas, of
approximately 50 million, or approximately 78% of Hebei Province's total
4
<PAGE>
population of approximately 64 million. In the first phase of construction,
the GSM Network will be built in 7 major cities, and have a subscriber
capacity of 40,000. In the second phase of construction, the GSM Network will
be built in the remaining three major cities of Hebei Province, thereby
expanding the total network capacity to 70,000. Based on market demand,
management believes the capacity of the GSM Network may be expanded in the
future beyond 70,000 subscribers. In February 1997, the GSM Network commenced
commercial operations in Shijiazhuang, the capital of Hebei Province.
Construction in the remaining nine major cities of Hebei Province is
anticipated to commence during the first half of 1998. See "Risk
Factors--Risks Relating to the Company's Joint Venture Operations."
Construction of the first phase of the GSM Network had been financed with
a $3 million equity investment from Hebei Equipment and NTTI, and vendor
financing guaranteed by NTTI and a $20 million Term Loan facility from Bank
of Tokyo Mitsubishi guaranteed by NTTI. Of these amounts, the Company had
provided $1.17 million of equity funding to Hebei Engineering through the
Company's investment in Hebei Equipment. At present, all funding commitments
required for completion of the first phase of construction has been obtained
by Hebei Engineering.
On April 8, 1997, Hebei Equipment entered into a 20-year agreement (the
"Hebei Multimedia Agreement") with Hebei Cable Television Station, the
monopoly provider of cable television service in Hebei Province, pursuant to
which Hebei Equipment will (i) finance construction of a fiber-optic and
microwave network to connect the existing cable television systems in the
eleven major cities in Hebei Province and (ii) hold the option to upgrade and
expand the network. Under the Hebei Multimedia Agreement, Hebei Equipment
will sell ownership of the Hebei Multimedia Network to Hebei Cable Television
Station in exchange for a share of cash flow generated by Hebei Cable
Television Station from operation of the Hebei Multimedia Network. Hebei
Equipment will also provide operating personnel and assistance to Hebei Cable
Television Station in the operation of the Hebei Multimedia Network. Until
Hebei Equipment has recovered its investment, Hebei Equipment will receive
cash payments equivalent to 80% of depreciation of fixed assets and 80% of
net income generated by Hebei Cable Television Station from operation of the
Hebei Multimedia Network. Thereafter, for the balance of 20 years from the
commencement date of formal commercial operations, Hebei Equipment will
receive 30% of depreciation of fixed assets and 30% of net income generated
by Hebei Cable Television Station from operation of the Hebei Multimedia
Network. Hebei Cable Television Station is a subsidiary enterprise of the
Hebei Radio and Television Department, under the jurisdiction of the Ministry
of Radio, Film and Television in the PRC.
The current funding requirement for the Hebei Multimedia Network is
estimated at approximately $12 million to link cable systems in the eleven
largest cities in Hebei Province. As of January 2, 1998, the Company had
invested approximately $3.7 million in Hebei Equipment for purposes of
investment in the Hebei Multimedia Network. The Company anticipates that the
balance of required funding will be provided in the form of equity and debt
investments in Hebei Equipment and additional joint venture entities that may
be established with strategic partners. See "Risk Factors--Risks Relating to
the Company's Joint Venture Operations."
The Company was originally founded as a Colorado corporation on May 10,
1982, and was reincorporated under the laws of the State of Delaware on July
10, 1996. Since April 1995, the Company has been engaged in the business of
developing telecommunications networks in the PRC. In January 1996, the
Company sold substantially all of the assets of ITV Communications, Inc., the
former primary operating subsidiary of the Company. On July 8, 1997, the
Company changed its name to "AmTec, Inc." from "AVIC Group International,
Inc." The Company's principal executive office is located at 599 Lexington
Avenue, 44th Floor, New York, New York 10022. Its telephone number is (212)
319-9160.
5
<PAGE>
RISK FACTORS
THE SECURITIES OFFERED HEREBY ARE SPECULATIVE IN NATURE, INVOLVE A HIGH
DEGREE OF RISK, AND SHOULD NOT BE PURCHASED BY ANY INVESTOR WHO CANNOT AFFORD
THE LOSS OF HIS ENTIRE INVESTMENT. PRIOR TO MAKING AN INVESTMENT DECISION
WITH RESPECT TO THE SECURITIES OFFERED HEREBY, PROSPECTIVE INVESTORS SHOULD
CAREFULLY CONSIDER, ALONG WITH THE OTHER MATTERS DISCUSSED IN THIS
PROSPECTUS, THE FOLLOWING RISK FACTORS:
COMPANY AND FINANCIAL RISKS
PRIOR AND ANTICIPATED LOSSES. To date, the Company's current operations
have not generated revenue and the Company has experienced net losses of
$4,064,885 and $5,281,730 during the fiscal years ended March 31, 1997 and
1996, respectively. The Company does not expect to achieve profitability
during the current fiscal year. The ability of the Company to achieve
profitability is dependent upon numerous factors, including the operations of
the Company's joint venture projects and its ability to finance, develop and
implement its PRC telecommunications projects. There can be no assurance that
the Company will achieve profitability in any future period.
HOLDING COMPANY. The Company is a holding company. The Company's
operating assets and only source of income and operational cash flow are its
interests in its existing joint venture subsidiaries. The ability of the
Company to pay any dividends on its capital stock is entirely dependent on
the Company's ability to receive distributions from its subsidiaries. See
"Risk Factors--Risks Relating to the Company's Joint Venture Operations" and
"--Risks Relating to Doing Business in the PRC."
EARLY STAGE PROJECTS. The telecommunications projects which constitute
the Company's entire business are in the early stages, and are subject to all
of the risks inherent in the establishment of new telecommunications
projects. The likelihood of the success of the Company's PRC
telecommunications operations must be considered in light of the problems,
expenses, difficulties, complications and delays frequently encountered in
connection with the construction and operation of a new telecommunications
network. There can be no assurance that the Company's existing or future PRC
telecommunications operations will be successfully implemented or that any of
them will generate any revenue for the Company. See "Risk Factors--Risks
Relating to the Company's Joint Venture Operations."
EXPLANATORY PARAGRAPH IN AUDITORS' REPORT. Both of the Company's
independent auditors have included an explanatory paragraph in their
Independent Auditors' Reports in the Annual Report on Form 10-KSB for the
fiscal years ended March 31, 1997 and 1996 and the Transition Report on Form
10-KSB for the fiscal year ended March 31, 1995 to the effect that the
Company's substantial capital requirements and the Company's operating losses
since inception raise substantial doubt about the Company's ability to
continue as a going concern. Realization of the Company's assets is dependent
upon the Company's ability to raise capital to meet its financing and
operating requirements and the success of its majority owned subsidiary in
the PRC to complete its projects and to obtain profitable operations. There
can be no assurance that the Company can meet its capital requirements on
terms favorable to the Company or at all, or that the business of the
Company's subsidiary will ever achieve profitable operations.
NEED FOR ADDITIONAL CAPITAL. The Company's future capital requirements
will depend on many factors, including, but not limited to, the financial
success of the Company's PRC telecommunications operations, future capital
requirements of the Company's operations and capital requirements arising out
of participation in other telecommunications networks in the future. At
present, the Company's only contractual obligation is for the Hebei
Multimedia Network. The Company expects that it will need to raise additional
capital through public or private financing. If additional funds are raised
through the issuance of equity securities, the percentage ownership of
existing shareholders of the Company will be reduced, and such equity
securities may have rights, preferences, or privileges senior to those of the
holders of the existing securities. No assurance can be given that additional
financing will be available or that, if available, it can be obtained on
terms favorable to the Company and its shareholders. If adequate funds are
not available, the Company may default on commitments for existing projects,
which may have a material adverse effect on the business and financial
condition as well as cash flow of the Company.
6
<PAGE>
COMPETITION. The opportunity to profit from growth in the PRC's
telecommunications sector has attracted participants from around the world.
Many such competitors have greater marketing resources and technological
capability as well as greater financial resources than the Company. To date,
the Company has not experienced difficulty in securing development rights in
the PRC due to competition, but there can be no assurance that the Company
will be successful in securing roles in additional PRC telecommunications
networks or, if able to do so, will be able to negotiate favorable terms.
POTENTIAL ANTI-TAKEOVER EFFECT OF CERTAIN CHARTER PROVISIONS. The
Company's Certificate of Incorporation includes certain provisions which are
intended to protect the Company's stockholders by rendering it more difficult
for a person or persons to obtain control of the Company without cooperation
of the Company's management. These provisions include certain super-majority
requirements for the amendment of the Company's Certificate of Incorporation
and Bylaws. Such provisions are often referred to as "anti-takeover"
provisions. The inclusion of such provisions in the Certificate of
Incorporation may delay, deter or prevent a takeover of the Company which the
stockholders may consider to be in their best interests, thereby possibly
depriving holders of the Company's securities of certain opportunities to
sell or otherwise dispose of their securities at above-market prices, or
limit the ability of stockholders to remove incumbent directors as readily as
the stockholders may consider to be in their best interests.
CANCELLATION OF CERTAIN SECURITIES. On December 8, 1997, the Company
canceled 12,727,909 shares of Common Stock of the Company and options to
purchase 318,182 shares of the Company's Common Stock which were issued to
Tweedia International, Ltd. ("Tweedia") pursuant to a Stock Purchase
Agreement between Tweedia and the Company's predecessor, ITV Communications,
Inc. ("ITV"), a private California corporation. Upon the Company's recent
review of the facts and circumstances surrounding the purchase of such shares
and options by Tweedia, it was determined that the full purchase price was
never received with respect thereto. On December 8, 1997, the Company served
notice to Tweedia that such shares and options were canceled on the books and
records of the Company as of December 8, 1997, and that Tweedia had no
further rights or privileges as a holder of said shares and options apart
from a right to return of the cash portion of the consideration originally
paid ($2,600,000), subject to such claims and offsets to which the Company
may be entitled upon the return by Tweedia to the Company of the certificate
evidencing those shares and presentation of legal documentation sufficient to
establish its authority to enter into such transactions. The 12,727,909
shares of Common Stock canceled on the books and records of the Company
represented approximately thirty-eight percent of the total number of shares
of Common Stock of the Company issued and outstanding prior to the
cancellation of such shares. Although the Company believes that its
cancellation of the shares of Common Stock and options held by Tweedia was
justified and appropriate, there can be no assurances that Tweedia will not
object to such cancellation and that Tweedia will not institute action to
attempt to reverse such cancellation.
EFFECT OF TECHNOLOGICAL CHANGE ON OPERATIONS. While the Company has
focused in investments in the PRC on well-established technological standards
that have been widely accept in the PRC and throughout the world, the market
in the telecommunications industry is characterized by rapidly changing
technology. There can be no assurance that technologies developed by others
will not render obsolete or otherwise significantly diminish the value of the
business operations of the joint ventures in which the Company participates.
SECURITIES RISKS
VOLATILE MARKET FOR COMMON STOCK. There is no assurance that a regular
trading market for the Company's Common Stock will be sustained. The market
price for the Company's Common Stock may be significantly affected by such
factors as the Company's financial performance, the market price of its
competitors' stock, or market conditions in general. The Company's Common
Stock price has been particularly volatile. During the past 12 months, the
Company's Common Stock has traded in a range between $0.50 per share and
$6.25 per share. As of January 12, 1998, the closing price of the Common
Stock on the American Stock Exchange was $0.625. Additionally, in recent
years, the stock market has experienced a high level of price and volume
volatility for many companies, particularly small and emerging growth
companies, and these wide price fluctuations are not necessarily related to
the operating performance of these companies. Accordingly, there may continue
to be significant volatility in the market for the Company's Common Stock.
The Common Stock offered hereby may be offered and sold from time to time
throughout an indefinite and extended period of time. Such sales may have an
adverse effect on the prevailing market price for the Common Stock. The
extent of such
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adverse effect, if any, cannot be predicted, but based on the volume of
trading in the market and on the number of shares that could be sold
hereunder, such adverse effect may be material.
POSSIBLE DILUTIVE EFFECT OF OUTSTANDING OPTIONS, WARRANTS, PREFERRED
STOCK AND INVESTMENT AGREEMENT. As of January 2, 1998, there were 13,161,837
shares of Common Stock reserved for issuance upon exercise of stock options
and warrants that have been granted or issued. 8,955,102 of the outstanding
options and 4,206,735 of the outstanding warrants are currently exercisable
at exercise prices ranging from $0.35 to $9.27 per share. Additional shares
of Common Stock are reserved for issuance upon the exercise of options
available for future grant under the Company's stock option plans and upon
the conversion of certain outstanding shares of preferred stock. Because the
Company anticipates that the trading price of Common Stock at the time of
exercise of any such options or warrants would exceed the exercise price,
such exercise would have a dilutive effect on the Company's stockholders. As
the number of shares of Common Stock issuable upon the conversion of shares
of the Company's Series C Convertible Preferred Stock and the Series E
Preferred Shares is based on the lowest trading price during a period
immediately preceding the conversion, such conversion may have a dilutive
effect on the Company's stockholders. In addition, on March 31, 1997, the
Company entered into a Common Stock Investment Agreement with Promethean
Investment Group, L.L.C. ("Promethean") pursuant to which Promethean may
provide up to $25 million in equity funding to the Company. The Company has
agreed, under certain circumstances, which include a minimum market price of
the Company's Common Stock of $3.00 per share, to issue a minimum of
$4,000,000 in Common Stock, at a 10% discount to market price, to Promethean.
If the Company does not issue this minimum amount of Common Stock to
Promethean on or before March 31, 1999, the Company has agreed to issue $4
million of securities convertible into the Company's Common Stock at the
lowest trading price of the Company's Common Stock during the thirty business
days immediately preceding the date that Promethean elects to convert such
securities into the Company's Common Stock. The issuance of such shares of
Common Stock to Promethean (a portion of which have already been issued into
escrow) may have a dilutive effect on the Company's stockholders.
LACK OF DIVIDENDS ON COMMON STOCK. The Company has paid no dividends on
its Common Stock to date and there are no plans for paying dividends on the
Common Stock in the foreseeable future. The Company has certain obligations
to pay dividends, which can be paid in common stock to holders of the Series
E Preferred Shares. Except for dividends which may be payable on the shares
of issued and outstanding preferred stock and other preferred stock that may
be issued from time to time in the future that require such dividends, the
Company intends to retain earnings, if any, to provide funds for the
expansion of the Company's business.
ISSUANCE OF ADDITIONAL SHARES; SHARES ELIGIBLE FOR FUTURE SALE. Future
sales of shares of Common Stock by the Company and its stockholders could
adversely affect the prevailing market price of the Common Stock. Pursuant to
its Certificate of Incorporation, the Company has the authority to issue
78,081,724 additional shares of Common Stock and 8,475,248 additional shares
of preferred stock. The issuance of such shares could result in the dilution
of the voting power and other rights of the currently issued and outstanding
shares of Common Stock. As of January 2, 1998, certain investors who have
held an aggregate of approximately 6.4 million shares of restricted Common
Stock may sell such shares without restriction. Such sales may have a
materially adverse effect on the prevailing market price of the Common Stock.
The extent of such adverse effect, if any, cannot be predicted, but based on
the volume of trading in the market and on the number of shares that could be
sold thereunder, such adverse effect may be material.
FUTURE ISSUANCES OF PREFERRED STOCK. The Company's Certificate of
Incorporation authorizes the issuance of up to 10,000,000 shares of preferred
stock with such designation, powers, rights and preferences as may be
determined from time to time by the Board of Directors, without stockholder
approval. Of such shares, 8,475,248 remain available for designation and
issuance by the Board of Directors. In the event of the issuance of
additional series of preferred stock, such preferred stock could have voting,
liquidation, dividend and other rights superior to the rights of the
outstanding stock of the Company and, in addition, could be utilized, under
certain circumstances, as a method of discouraging, delaying or preventing a
change in control of the Company.
RISKS RELATING TO THE COMPANY'S JOINT VENTURE OPERATIONS
CONSTRUCTION AND OPERATION OF PROPOSED TELECOMMUNICATIONS NETWORKS. The
telecommunications networks in the PRC which the Company's joint ventures are
currently engaged in developing may
8
<PAGE>
experience difficulties and delays relating to the construction and operation
of such networks. While the Company's joint ventures have undertaken to
obtain the technical capability, personnel and resources to build, service
and maintain a telecommunications network in the PRC, the performance of all
or any of the Company's joint venture obligations under its agreements
relating to PRC telecommunications networks may require the cooperation and
participation of third parties. Such third parties may be parties to or
independent contractors with the Company's Sino-foreign joint ventures, for
the purpose of building, servicing or maintaining any such telecommunications
network. There can be no assurance that the Company's joint ventures will be
able to obtain such cooperation, if required, with respect to its PRC
telecommunications networks. Moreover, there can be no assurance that such
networks will be completed in a timely manner, if at all, or that any
financing which may be completed with respect to any such network will be
sufficient to complete or to operate any proposed project. The failure by the
joint ventures to achieve these goals, or any difficulties or delays, may
have a material adverse effect on the Company's business, financial
condition, cash flow and results of operations.
SIGNIFICANT ADDITIONAL FUNDING OF JOINT VENTURE PROJECTS REQUIRED. The
aggregate funding required from joint venture partners for the first phase of
construction for the Hebei Multimedia Network is approximately $12 million of
which, as of January 2, 1998, approximately $3.7 million has been invested by
the Company into Hebei Equipment for funding of the construction of the Hebei
Multimedia Network. At present there can be no assurance that the Company
will meet its funding requirement for the Hebei Multimedia Network. It is
anticipated that debt or equity contributions made by the Company and its
partners to the joint ventures, as well as additional loans made by third
parties, will be used to develop the GSM Network and the Hebei Multimedia
Network. However, there can be no assurance that the equity contributions and
loans made, or to be made, to the joint ventures by their respective partners
will be sufficient to meet the capital needs of either the GSM Network or the
Hebei Multimedia Network, or to successfully complete or support the
competitive position of either project. The Company may elect to make
additional equity contributions or loans to either joint venture to fund such
additional capital needs, thus creating an additional demand on the Company's
capital, or may elect not to make such payments, which may negatively affect
the successful implementation of the networks. Securing alternative sources
of funds may dilute the Company's ownership.
ROLE IN FUTURE EXPANSION OF THE HEBEI GSM NETWORK. Further expansion of
the GSM Network is anticipated beyond Phase II of the Hebei GSM Network, but
the joint venture partners, timing and amount of investment have not been
finally determined. In the event of such expansion, UNICOM is to give
preferential consideration, in securing new investment, to investments from
the Company and its joint venture partners on the same terms as their prior
investments. However, at present there can be no assurance that further
expansion of the GSM Network will occur, or that the Company will be able to
participate in later stages of the Hebei GSM project.
COMPETITION WITH THE MINISTRY OF POSTS AND TELECOMMUNICATIONS AND OTHERS.
The two primary providers of telecommunications services in China, the
Ministry of Posts and Telecommunications (the "MPT") (through its operating
subsidiary China Telecom) and UNICOM, compete intensely. UNICOM has entered
into a contract with a subsidiary of the Company with respect to the GSM
Network, and, therefore, the Company indirectly competes with the MPT in
certain of its activities. The MPT has a dominant market share in all sectors
of telecommunications in China, and already has established a fixed-wire
network in the country. Moreover the MPT regulates and licenses all public
telephone service projects in China, including network access, and maintains
the ability to make important regulatory decisions with respect to its
competitors, including the Hebei GSM project. The Company's joint venture may
also have to compete with other telecommunications services providers, some
of which may have greater marketing and development budgets and greater
capital resources than the Company's joint ventures. Accordingly, there can
be no assurance that the Company will be able to achieve and maintain a
competitive position in the PRC telecommunications industry. In addition, new
competitors may be entering the market, including the People's Liberation
Army through it's Great Wall Communications Group.
GOVERNMENT APPROVAL FOR JOINT VENTURE PROJECTS. Future joint venture
contracts of the Company will require approval at some level of the
provincial or related government in China. There can be no assurance that in
the future all necessary governmental approvals will be obtained for joint
venture projects that the Company may enter in the future, and the failure to
obtain any such approval could have a material adverse impact on the
Company's business, financial condition, cash flow and results of operations.
9
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RISKS RELATING TO DOING BUSINESS IN THE PRC
INTERNAL POLITICAL RISKS. The Company's business operations may be
adversely affected by the political environment in the PRC. The PRC has been
a socialist state since 1949 and is controlled by the Communist Party of
China. Changes in the political leadership of the PRC may have a significant
effect on laws and policies related to the current economic reforms program,
other policies affecting business and the general political, economic and
social environment in the PRC, including the introduction of measures to
control inflation, changes in the rate or method of taxation and imposition
of additional restrictions on currency conversion and remittances abroad and
foreign investment. These effects could substantially impair the Company's
business, profits or prospects in China. Moreover, economic reforms and
growth in the PRC have been more successful in certain provinces than in
others, and the continuation or increases of such disparities could affect
the political or social stability of the PRC.
GOVERNMENT CONTROL OVER ECONOMY. The PRC only recently has permitted
greater provincial and local economic autonomy and private economic
activities. The government of the PRC has exercised and continues to exercise
substantial control over virtually every sector of the Chinese economy
through regulation and state ownership. Accordingly, government actions in
the future, including any decision not to continue to support recent economic
reforms and to return to a more centrally planned economy or regional or
local variations in the implementation of economic policies, could have a
significant effect on economic conditions in the PRC or particular regions
thereof, and could require the Company to divest the interests it then holds
in Chinese properties or joint ventures. Any such developments could have a
material adverse effect on the business prospects of the Company.
INFLATION AND ANTI-INFLATION POLICIES. In recent years, the Chinese
economy has experienced periods of rapid expansion and high rates of
inflation, which have led to the adoption by the PRC government, from time to
time, of various corrective measures designed to restrict the availability of
credit or regulate growth and contain inflation. While inflation has
moderated since 1995, high inflation may in the future cause the PRC
government to impose controls on credit and/or prices, or to take other
action which could inhibit economic activity in China, and, thereby,
adversely affect the Company's intended business operations in the PRC. There
can be no assurance that potential high rates of inflation and any PRC
anti-inflation policies adopted in the future will not have a material
adverse effect on the Company's liquidity and business operations.
RESTRICTIONS ON FOREIGN CURRENCY EXCHANGE. The Renminbi is not a freely
convertible currency at present. The Company's joint ventures will receive
nearly all of their revenue in Renminbi, which will need to be converted to
other currencies, primarily U.S. dollars, and remitted outside of the PRC.
Effective July 1, 1996, foreign currency "current account" transactions by
foreign investment enterprises, including Sino-foreign joint ventures, are no
longer subject to the approval of State Administration of Foreign Exchange
("SAFE", formerly, "State Administration of Exchange Control"), but need only
a ministerial review, according to the ADMINISTRATION OF THE SETTLEMENT, SALE
AND PAYMENT OF FOREIGN EXCHANGE PROVISIONS promulgated in 1996 (the "FX
regulations"). "Current account" items include international commercial
transactions which occur on a regular basis, such as those relating to trade
and provision of services. Distributions to joint venture parties also are
considered a "current account transaction." Other non-current account items,
known as "capital account" items, remain subject to SAFE approval.
EXCHANGE RATES LOSSES. Until 1994, the Renminbi had experienced a
gradual but significant devaluation against most major currencies, including
U.S. dollars, and there was a significant devaluation of the Renminbi on
January 1, 1994 in connection with the replacement of the dual exchange rate
system with a unified managed floating rate foreign exchange system. Since
1994, the value of the Renminbi relative to the U.S. dollar has remained
stable. However, if devaluation of the Renminbi were to occur in the future,
the Company's returns on its operations in China, which are expected to be in
the form of Renminbi, will be negatively affected upon conversion to U.S.
dollars.
PRC LAWS; EVOLVING REGULATIONS AND POLICIES. The PRC's legal system is a
civil law system based on written statutes in which decided legal cases have
little value as precedents, unlike the common law system prevalent in the
United States. The PRC does not have a well-developed, consolidated body of
laws governing foreign investment enterprises. As a result, the
administration of laws and regulations by government agencies may be subject
to considerable discretion and variation, and may be subject to influence by
external forces unrelated to the legal merits of a particular matter. China's
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regulations and policies with respect to foreign investments are evolving.
Definitive regulations and polices with respect to such matters as the
permissible percentage of foreign investment and permissible rates of equity
returns have not yet been published, statements regarding these evolving
policies have been conflicting and any such policies, as administered, are
likely to be subject to broad interpretation and discretion and to be
modified, perhaps on a case-by-case basis. The uncertainties regarding such
regulations and policies present risks that the Company will not be able to
achieve its investment objectives. There can be no assurance that the Company
will be able to enforce any legal rights it may have under its joint venture
contracts or otherwise.
EXPROPRIATION. The PRC government has, in the past, renounced various
debt obligations incurred by predecessor governments, which obligations
remain in default, and expropriated assets without compensation. There can be
no assurance that the PRC government will not in the future expropriate or
nationalize assets which may relate to any current or prospective business
operations of the Company.
RELIANCE ON STATISTICS. Statistics relating to economic, demographic,
and general business data are not widely disseminated within or outside of
the PRC. Further, certain PRC statistics may not be compiled in accordance
with, or may not be subject to, Western standards of accuracy. The resultant
imperfect information naturally hinders the performance of the Company's
business planning or investment analysis and introduces risks in conducting
business in the PRC.
USE OF PROCEEDS
The Company may receive cash consideration in connection with exercises
of the Warrants. The Company intends to use any cash proceeds that it may
receive in connection with such exercises for financing telecommunications
networks in the PRC and for working capital purposes. The Company will not
otherwise receive any proceeds from the sale by the Selling Securityholders
of any of the Shares offered hereby. The Company will pay all of the costs of
this offering.
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SELLING SECURITYHOLDERS
The Series E Preferred Shares and the Warrants originally were issued and
sold by the Company to the Selling Securityholders in a transaction exempt
from the registration requirements of the Securities Act pursuant to
Regulation D of the Securities Act. The Selling Securityholders (which term
includes their transferees, pledgees, donees or their successors) may from
time to time offer and sell pursuant to this Prospectus any or all of the
Shares.
The following table sets forth information with respect to the Selling
Securityholders and the respective shares of Common Stock (issuable upon
conversion of the Series E Preferred Shares and the exercise of the Warrants)
beneficially owned by each Selling Securityholder. Except as otherwise
disclosed herein, 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 or affiliates. Because the Selling
Securityholders may offer all or some portion of the Shares pursuant to this
Prospectus, no estimate can be given as to the number of shares that will be
held by the Selling Securityholders upon termination of any such sales. In
addition, the Selling Securityholders identified below may have sold,
transferred or otherwise disposed of all or a portion of their Shares, since
the date on which they provided the information regarding their Shares, in
transactions exempt from the registration requirements of the Securities Act.
With respect to the shares of Common Stock issuable upon conversion of the
Series E Preferred Shares, the number of shares included in the registration
statement of which this Prospectus is a part is subject to adjustment and
could be materially less or more than the estimated amounts listed below
depending on factors which cannot be predicted by the Company at this time,
including, among others, the future market price of the Common Stock.
<TABLE>
<CAPTION>
PERCENTAGE OF
NUMBER OF NUMBER OF NUMBER OF SHARES SHARES
SHARES SHARES BENEFICIALLY BENEFICIALLY
BENEFICIALLY OFFERED OWNED AFTER OWNED AFTER
SELLING SECURITYHOLDERS OWNED (1),(2) HEREBY (2) OFFERING (1),(3) OFFERING (1), (3)
- ----------------------- ------------- ---------- ----------------- -------------------
<S> <C> <C> <C> <C>
The High Risk Opportunity
Hub Fund, Ltd. (4)............................... 2,909,098 2,909,098 0 0
Ramius Fund, Ltd. (5)............................ 2,128,825 242,425 1,886,400 7.6%
Medici Partners, L.P. (6)........................ 2,128,825 242,425 1,886,400 7.6%
KB Ventures Limited (7).......................... 727,274 727,274 0 0
Ross, Courtney Sale (8).......................... 727,274 727,274 0 0
Regal International
Capital, Inc. (9)................................ 317,340 298,990 18,350 *
Kossar, Bernard (10)............................. 169,698 169,698 0 0
Kossar, Carol (11)............................... 169,698 169,698 0 0
Krusen, Charles B. (12).......................... 68,485 48,485 20,000 *
</TABLE>
- ------------------------
* Less than 1%
(1) Except as otherwise noted, beneficial ownership is determined in
accordance with Rule 13d-3(d) promulgated by the Commission under the
Securities and Exchange Act of 1934, as amended. Shares of Common Stock
issuable pursuant to options, warrants and convertible securities, to the
extent such securities are currently exercisable or convertible within 60
days of January 1, 1998, are treated as outstanding for computing the
percentage of the person holding such securities but are not treated as
outstanding for computing the percentage of any other person. Unless
otherwise noted, each person or group identified possesses sole voting and
investment power with respect to shares, subject to community property laws
where applicable. Shares not outstanding but deemed beneficially owned by
virtue of the right of a person or group to acquire them within 60 days are
treated as outstanding only for the purposes of determining the number and
percent owned by such person or group.
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(2) Represents shares of Common Stock issuable upon conversion of such
Selling Securityholder's Series E Preferred Shares based on a fixed
conversion price of $2.0625 and upon exercise of Warrants held by such
Selling Stockholder. The conversion price of the Series E Preferred Shares
may be lower than the fixed conversion price based on the trading price
during a period immediately preceding conversion. Accordingly, the number of
shares of Common Stock issuable upon conversion of the Series E Preferred
Shares is subject to adjustment and could be materially less or more than the
estimated amounts listed above.
(3) Assuming the sale of all Shares offered hereby but no other securities
held by the Selling Securityholder
(4) Includes 2,181,825 shares of Common Stock issuable upon the conversion of
45 Series E Preferred Share. Also includes 727,273 shares of Common Stock
issuable upon the exercise of a Warrant held by The High Risk Opportunity Hub
Fund, Ltd., which Warrant is not exercisable prior to April 19, 1998 and does
not become fully exercisable until July 18, 1998.
(5) Includes 193,940 shares of Common Stock issuable upon the conversion of 4
Series E Preferred Shares held by Ramius Fund, Ltd. Also includes an
aggregate of 1,934,885 shares of Common Stock held by the following persons
related to Ramius Fund, Ltd. upon the conversion of Series E Preferred Shares
or shares of the Company's Series C Convertible Preferred Stock held by such
persons: Medici Partners, L.P. (48,485 shares), Angelo Gordon & Co., Inc.
(314,400 shares), GAM Arbitrage Investments, Inc. (209,600 shares), AG Super
Fund International Partners, L.P. (209,600 shares), AG Long Term Super Fund,
L.P. (209,600 shares), Michael Angelo, L.P. (314,400 shares), Raphael, L.P.
(419,200 shares) and AG Super Fund, L.P. (209,600 shares). The address of
Ramius Fund, Ltd. is c/o Angelo Gordon & Co., L.P., 245 Park Avenue, 26th
Floor, New York, New York 10167.
(6) Includes 48,485 shares of Common Stock issuable upon the conversion of 1
Series E Preferred Share held by Medici Partners, L.P. Also includes an
aggregate of 2,080,340 shares of Common Stock held by the following persons
related to Medici Partners, L.P. upon the conversion of Series E Preferred
Shares or shares of the Company's Series C Convertible Preferred Stock held
by such persons: Ramius Fund, Ltd. (193,940 shares), Angelo Gordon & Co.,
Inc. (314,400 shares), GAM Arbitrage Investments, Inc. (209,600 shares), AG
Super Fund International Partners, L.P. (209,600 shares), AG Long Term Super
Fund, L.P. (209,600 shares), Michael Angelo, L.P. (314,400 shares), Raphael,
L.P. (419,200 shares) and AG Super Fund, L.P. (209,600 shares). The address
of Medici Partners, L.P. is c/o Angelo Gordon & Co., L.P., 245 Park Avenue,
26th Floor, New York, New York 10167.
(7) Includes 484,850 shares of Common Stock issuable upon the conversion of
10 Series E Preferred Shares. Also includes 242,424 shares of Common Stock
issuable upon the exercise of a Warrant held by KB Ventures Limited, which
Warrant is not exercisable prior to October 21, 1998.
(8) Includes 484,850 shares of Common Stock issuable upon the conversion of
10 Series E Preferred Shares. Also includes 242,424 shares of Common Stock
issuable upon the exercise of a Warrant held by Courtney Sale Ross, which
Warrant is not exercisable prior to October 21, 1998.
(9) Includes of 298,990 shares of Common Stock issuable upon the exercise of
a Warrant held by Regal International Capital, Inc., which Warrant is not
exercisable prior to October 21, 1998. Also includes of 18,350 shares of
Common Stock issuable upon the exercise of a presently exercisable warrant
held by Regal International Capital, Inc.
(10) Includes 96,970 shares of Common Stock issuable upon the conversion of 2
Series E Preferred Shares held by Mr. Kossar and 48,485 shares of Common
Stock issuable upon the conversion of 1 Series E Preferred Share held by
Carol Kossar, Mr. Kossar's wife. Also includes 16,162 shares of Common
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Stock issuable upon the exercise of a Warrant held by Mr. Kossar and 8,081
shares of Common Stock issuable upon the exercise of a Warrant held by Ms.
Kossar, which Warrants are not exercisable prior to October 21, 1998.
(11) Includes 48,485 shares of Common Stock issuable upon the conversion of 1
Series E Preferred Share held by Ms. Kossar and 96,970 shares of Common Stock
issuable upon the conversion of 2 Series E Preferred Shares held by Bernard
Kossar, Ms. Kossar's husband. Also includes 8,081 shares of Common Stock
issuable upon the exercise of a Warrant held by Ms. Kossar and 16,162 shares
of Common Stock issuable upon the exercise of a Warrant held by Mr. Kossar,
which Warrants are not exercisable prior to October 21, 1998.
(12) Includes 48,485 shares of Common Stock issuable upon the conversion of 1
Series E Preferred Share held by Mr. Krusen. Also includes 20,000 shares of
Common Stock issuable upon the exercise of a presently exercisable warrant
held by Mr. Krusen.
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<PAGE>
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Securityholders that the
Shares offered hereby may be sold from time to time to purchasers directly by
the Selling Securityholders. Alternatively, Selling Securityholders may from
time to time offer the Shares to or through underwriters, brokers/dealers or
agents, who may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Securityholders or the purchasers
of Shares for whom they may act as agents. The Selling Securityholders and
any underwriters, brokers/dealers or agents that participate in the
distribution of the Shares may be deemed to be "underwriters" within the
meaning of the Securities Act and any profit realized by them on the sale of
such Shares and any discounts, commissions, concessions or other compensation
received by any such underwriter, broker/dealer or agent may be deemed to be
underwriting discounts and commissions under the Securities Act.
The Company has been advised by the Selling Securityholders that the
Shares may be sold from time to time in one or more transactions at fixed
prices, at market prices prevailing at the time of sale, at varying prices
determined at the time of sale or at negotiated prices. The sale of Shares
may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation service on
which the Shares may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or in the over-the-counter market or (iv) through the writing of
options. At the time a particular offering of Shares is made, a supplement to
this prospectus, if required, will be distributed which will set forth the
aggregate amount and type of Shares being offered and the terms of such
offering, including the name or names of any underwriters, brokers/dealers
or agents, any discounts, commissions and other terms constituting
compensation from the Selling Securityholders and any discounts, commissions
or concessions allowed or reallowed to be paid to broker/dealers.
To comply with the securities laws of certain jurisdictions, if
applicable, the Shares will be offered or sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
jurisdictions the Shares may not be offered or sold unless they have been
registered or qualified for sale in such jurisdictions or an exemption from
registration or qualification is available and complied with.
Under Regulation M of the Exchange Act, any person engaged in a
distribution of the Shares may be prohibited, with certain exceptions, from
bidding for or purchasing any security which is the subject of such
distribution until its participation in that distribution is completed. In
addition, Regulation M prohibits any stabilizing bid or stabilizing purchase
for the purpose of pegging fixing or stabilizing the price of Common Stock in
connection with the offering of the Shares pursuant to this Prospectus.
Pursuant to the Registration Rights Agreement, all expenses of the
registration of the Shares will be paid by the Company, including, without
limitation, Commission filing fees and expenses of compliance with state
securities or "blue sky" laws; provided, however, that the Selling
Securityholders will pay all underwriting discounts and selling commissions,
if any. The Selling Securityholders will be indemnified by the Company
against certain civil liabilities, including certain liabilities under the
Securities Act, or will be entitled to contribution in connection therewith.
LEGAL MATTERS
The validity of the securities offered hereby has been passed upon by
James F. O'Brien, Esq.
EXPERTS
The consolidated financial statements as of March 31, 1997 and for the
year then ended incorporated in this prospectus by reference from the
Company's Annual Report on Form 10-KSB for the year ended March 31, 1997,
have been audited by Deloitte & Touche LLP, independent auditors, as stated
in their report (which report expresses an unqualified opinion and includes
an explanatory paragraph relating to the Company's ability to continue as a
going concern), which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm, given upon their
authority as experts in auditing and accounting.
15
<PAGE>
The audited consolidated financial statements as of March 31, 1996 and
for the two years then ended contained in the Annual Report on Form 10-KSB of
the Company for the year ended March 31, 1997, and incorporated in this
Prospectus by reference, have been so incorporated in reliance on the reports
of Singer Lewak Greenbaum & Goldstein LLP, independent public accountants,
given on the authority of said firm as experts in auditing and accounting.
16
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT
RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
Available Information......................... 2
Incorporation of Certain Documents by
Reference..................................... 2
Summary of Company............................ 4
Risk Factors.................................. 6
Use of Proceeds............................... 11
Selling Securityholders....................... 12
Plan of Distribution.......................... 15
Legal Matters................................. 15
Experts....................................... 15
</TABLE>
14,131,782 SHARES
AMTEC, INC.
COMMON STOCK
PROSPECTUS
---------------------
, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
II-1
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The Company estimates that expenses in connection with the distribution
described in this Registration Statement will be as follows. All expenses
incurred with respect to the distribution will be paid by the Company, and
such amounts, with the exception of the Securities and Exchange Commission
registration fees, are estimates.
<TABLE>
<S> <C>
SEC registration fee............................................................. $2,605.55
American Stock Exchange listing fees............................................. 17,500
Accounting fees and expenses..................................................... 3,000
Blue Sky fees and expenses....................................................... 500
Legal fees and expenses.......................................................... 10,000
Printing and engraving expenses.................................................. 3,000
Miscellaneous.................................................................... 3,394.45
Total............................................................................ $ 40,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 102(b)(7) of the General Corporation Law of the State
of Delaware (the "GCL"), the Certificate of Incorporation of the Company
eliminates the liability of the Company's directors to the Company or its
stockholders, except for liabilities related to breach of duty of loyalty,
actions not in good faith, and certain other liabilities.
The Certificate of Incorporation, and the Bylaws of the Company provide
for the indemnification of directors and officers to the fullest extent
permitted by the GCL.
Section 145 of the GCL authorizes indemnification when a person is made a
party to any proceeding by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation or was serving as a
director, officer, employee or agent of another enterprise, at the request of
the corporation, and if such person acted in good faith and in a manner
reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. With respect to any criminal proceeding, such
person must have had no reasonable cause to believe that his or her conduct
was unlawful. If it is determined that the conduct of such person meets these
standards, he or she may be indemnified for expenses incurred and amounts
paid in such proceeding if actually and reasonably incurred by him or her in
connection therewith.
If such a proceeding is brought by or on behalf of the corporation (i.e.,
a derivative suit), such person may be indemnified against expenses actually
and reasonably incurred if he or she acted in good faith and in a manner
reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. There can be no indemnification with respect to
any matter as to which such person is adjudged to be liable to the
corporation; however, a court may, even in such case, allow such
indemnification to such person for such expenses as the court deems proper.
Where such person is successful in any such proceeding, he or she is entitled
to be indemnified against expenses actually and reasonably incurred by him or
her. In all other cases, indemnification is made by the corporation upon
determination by it that indemnification of such person is proper because
such person has met the applicable standard of conduct.
In addition, the Company has adopted a form of indemnification agreement
(the "Indemnification Agreement") which provides the indemnitee with the
maximum indemnification allowed under applicable law. As of January 5, 1998,
the Company has not entered into Indemnification Agreements with any of its
directors, officers, employees or consultants. Since the Delaware statute is
non-exclusive, it is possible that certain claims beyond the scope of the
statute may be indemnifiable. The Indemnification Agreements provide a scheme
of indemnification which may be broader than that specifically provided by
Delaware law. It has not yet been determined, however, to what extent
the indemnification expressly permitted by Delaware law may be expanded, and
therefore the scope of indemnification provided by the Indemnification
Agreements may be subject to future judicial interpretation.
II-3
<PAGE>
The Indemnification Agreement provides, in pertinent part, that the
Company shall indemnify an indemnitee who is or was a party or is threatened,
pending or completed action or proceeding whether civil, criminal,
administrative or investigative by reason of the fact that the indemnitee is
or was a director, officer, key employee or agent of the Company or any
subsidiary of the Company. The Company shall advance all expenses, judgments,
fines, penalties and amounts paid in settlement (including taxes imposed on
indemnitee on account of receipt of such payouts) incurred by the indemnitee
in connection with the investigation, defense, settlement or appeal of any
civil or criminal action or proceeding as described above. The indemnitee
shall repay such amounts advanced only if it shall be ultimately determined
that he or she is not entitled to be indemnified by the Company. The advances
paid to the indemnitee by the Company shall be delivered within 20 days
following a written request by the indemnitee. Any award of indemnification
to an indemnitee, if not covered by insurance, would come directly from
assets of the Company, thereby affecting a stockholder's investment.
The Company has obtained directors' and officers' liability insurance
with an aggregate liability for the policy year, inclusive of costs of
defense, in the amount of $3,000,000.
The registration rights agreements between the Company and certain
Selling Securityholders provide that the Company shall indemnify such Selling
Securityholder, and such Selling Securityholder shall indemnify the Company
and the officers and directors of the Company, for certain liabilities,
including certain liabilities under the Securities Act.
ITEM 16. EXHIBITS
The following exhibits, which are furnished with this Registration
Statement or incorporated by reference, are filed as part of this
Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<C> <S>
3.1(1) Restated Certificate of Incorporation of the Registrant
3.2 Amended and Restated Bylaws of the Registrant
4.1(2) Form of Common Stock certificate
5.1 Opinion of James F. O'Brien, Esq.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.3 Consent of James O'Brien, Esq. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained in Part II)
</TABLE>
- ------------------------
(1) Previously filed as an exhibit to the Company's Current Report on Form
8-K dated March 6, 1997, which exhibit is incorporated herein by reference.
(2) Previously filed as an exhibit to the Company's Annual Report on Form
10-KSB for the fiscal year ended March 31, 1997, which exhibit is
incorporated herein by reference.
ITEM 17. UNDERTAKINGS
(a) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") 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 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.
(b) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where
II-4
<PAGE>
applicable, each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Exchange Act) 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.
(c) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registration Statement.
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that (i) and (ii) do not apply if the
Registration Statement is on Form S-3, and the information required to
be included in a post-effective amendment is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference 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.
(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.
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 on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on January 16, 1998.
AMTEC, INC.
By /s/ JOSEPH R. WRIGHT, JR.
--------------------------
Joseph R. Wright, Jr.
Chairman of the Board
Chief Executive Officer and President
II-5
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY APPOINTS JOSEPH R.
Wright, Jr. his true and lawful attorney-in-fact with the authority to
execute in the name of each such person, and to file with the Securities and
Exchange Commission, together with any exhibits thereto and other documents
therewith, any and all amendments (including without limitation
post-effective amendments) to this registration statement necessary or
advisable to enable the registrant to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make such other
changes in the registration statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ JOSEPH R. WRIGHT, JR. Chairman of the Board, Chief Executive January 16, 1998
- ------------------------ Officer and President (Principal Executive Officer)
Joseph R. Wright, Jr.
/s/ RICHARD T. MCNAMAR Vice Chairman of the Board January 14, 1998
- ------------------------
Richard T. McNamar
/s/ JAMES. R. LILLEY Director January 9, 1998
- ------------------------
James R. Lilley
/s/ MICHAEL H. WILSON Director January 16, 1998
- ------------------------
Michael H. Wilson
/s/ DREW LEWIS
- ------------------------ Director January 14, 1998
Drew Lewis
/s/ LIANG JIANGLI Director January 9,1998
- ------------------------
Liang Jiangli
/s/ RICHARD S. BRADDOCK Director January 16, 1998
- ------------------------
Richard S. Braddock
/s/ ALBERT G. PASTINO Senior Vice President, Chief Financial January 16, 1998
- ------------------------ Officer and Treasurer
Albert G. Pastino (Principal Financial and Accounting Officer)
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS
- -----------
<C> <S>
3.1 (1) Restated Certificate of Incorporation of the Registrant
3.2 Amended and Restated Bylaws of the Registrant
4.1 (2) Form of Common Stock certificate
5.1 Opinion of James F. O'Brien, Esq.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.3 Consent of James O'Brien, Esq. (contained in Exhibit 5.1)
24.1 Power of Attorney (contained in Part II)
</TABLE>
(1) Previously filed as an exhibit to the Company's Current Report on Form
8-K dated March 6, 1997, which exhibit is incorporated herein by reference.
(2) Previously filed as an exhibit to the Company's Annual Report on Form
10-KSB for the fiscal year ended March 31, 1997, which exhibit is
incorporated herein by reference.
<PAGE>
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS OF
AMTEC, INC.
(a Delaware corporation)
Following are the By-Laws of AMTEC, INC., a Delaware corporation (the
"Corporation"), effective as of December 8, 1997 after approval by the
Corporation's Board of Directors except with respect to those provisions
which will require a stockholder approved amendment to the Certificate of
Incorporation to become effective, and which, in the time preceding such
amendment, will be construed in accordance with Article VII hereto:
ARTICLE I
Offices
Section 1.01. PRINCIPAL EXECUTIVE OFFICE. The principal executive
office of the Corporation shall be located at 599 Lexington Avenue, 44th
Floor, New York, New York 10022. The Board of Directors of the Corporation
(the "Board of Directors") may change the location of said principal
executive office.
Section 1.02. OTHER OFFICES. The Corporation may also have an office or
offices at such other place or places, either within or without the State of
Delaware, as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 2.01. ANNUAL MEETINGS. The annual meeting of stockholders of
the Corporation shall be held at a date and at such time as the Board of
Directors shall determine. At each annual meeting of stockholders, directors
shall be elected in accordance with the provisions of Section 3.03 hereof and
any other proper business may be transacted.
Section 2.02. SPECIAL MEETINGS. Special meetings of stockholders for
any purpose or purposes may be called at any time by a majority of the Board
of Directors, by the Chairman of the Board or, by the President. Special
meetings may not be called by any other person or persons. Each special
meeting shall be
<PAGE>
-2-
held at such date and time as is requested by the person or persons calling
the meeting, within the limits fixed by law.
Section 2.03. PLACE OF MEETINGS. Each annual or special meeting of
stockholders shall be held at such location as may be determined by the Board
of Directors or, if no such determination is made, at such place as may be
determined by the Chairman of the Board. If no location is so determined,
any annual or special meeting shall be held at the principal executive office
of the Corporation.
Section 2.04. NOTICE OF STOCKHOLDER MEETINGS. Written notice of each
annual or special meeting of stockholders stating the date and time when, and
the place where, it is to be held shall be delivered either personally or by
mail to stockholders entitled to vote at such meeting not less than ten (10)
nor more than sixty (60) days before the date of the meeting. The purpose or
purposes for which the meeting is called may, in the case of an annual
meeting, and shall, in the case of a special meeting, also be stated. If
mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it shall appear on the
stock books of the Corporation, unless he shall have filed with the Secretary
of the Corporation a written request that notices intended for him be mailed
to some other address, in which case such notice shall be mailed to the
address designated in such request.
Section 2.05. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) Nomination of Directors. Only persons who are nominated in accordance
with the procedures set forth in these By-Laws shall be eligible to serve as
directors. Nominations of persons for election to the Board of Directors of
the Corporation may be made at a meeting of stockholders (a) by or at the
direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
for the election of directors at the meeting and who complies with the notice
procedures set forth in this Section 2.5(a). Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
5 days prior to that date which shall be set by the Board of Directors as the
date by which information is required to be received for inclusion in the
proxy statement; provided, however, that in the event that less than 55 days'
notice or prior public disclosure of the date of the meeting or, of the date
the proxy materials are due, is given or made to stockholders, notice
<PAGE>
-3-
by the stockholder to be timely must be so received not later than the close
of business on the seventh day following the day on which such notice of the
date of the meeting or such public disclosure was made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director, all information relating
to such person that is required to be disclosed in solicitations of proxies
for election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected), and (b) as
to the stockholder giving the notice (i) the name and address, as they appear
on the Corporation's books, of such stockholder and (ii) the class and number
of shares of the Corporation which are beneficially owned by such
stockholder. At the request of the Board of Directors, any person nominated
by the Board of Directors for election as a director shall furnish to the
Secretary of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible to serve as a director of the Corporation unless nominated
in accordance with the procedures set forth in this Section 2.5(a). The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the By-Laws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 2.5(a), a
stockholder shall also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.5(a).
(b) Notice of Business. At any meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of the
notice provided for in this Section 2.5(b), who shall be entitled to vote at
such meeting and who complies with the notice procedures set forth in this
Section 2.5(b). For business to be properly brought before a stockholder
meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 5 days prior to
that date which shall be set by the Board of Directors as the date by which
information is required to be received for inclusion in the proxy statement;
provided, however, that in the event that less than 55 days' notice or prior
public disclosure of the date of the meeting or, of the date the proxy
materials are due, is given or made to stockholders, notice
<PAGE>
-4-
by the stockholder to be timely must be received no later than the close of
business on the seventh day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the meeting (a) a brief description of
the business desired to be brought before the meeting and the reasons for
conducting such business at the meeting; (b) the name and address, as they
appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material interest of the
stockholder in such business. Notwithstanding anything in the By-Laws to the
contrary, no business shall be conducted at a stockholder meeting except (i)
in accordance with the procedures set forth in this Section 2.5(b) or (ii)
with respect to nominations of persons for election as directors of the
Corporation, in accordance with the provisions of Section 2.5(a) hereof. The
Chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that business was not properly brought before the meeting and in
accordance with the provisions of the By-Laws, and if he should so determine,
he shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted. Notwithstanding the foregoing
provisions of this Section 2.5(b), a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the matters set
forth in this Section.
Section 2.06. CONDUCT OF MEETINGS. All actual and special meetings of
stockholders shall be conducted in accordance with such rules and procedures
as the Board of Directors may determine subject to the requirements of
applicable law and, as to matters not governed by such rules and procedures,
as the chairman of such meeting shall determine. The chairman of any annual
or special meeting of stockholders shall be the Chairman of the Board. The
Secretary, or in the absence of the Secretary, a person designated by the
Chairman of the Board, shall act as secretary of the meeting.
Section 2.07. QUORUM. At any meeting of stockholders of the
Corporation, the presence, in person or by proxy, of the holders of record of
a majority of the shares then issued and outstanding and entitled to vote at
the meeting shall constitute a quorum for the transaction of business;
provided, however, that this Section 2.07 shall not affect any different
requirement which may exist under statute, pursuant to the rights of any
authorized class or series of stock, or under the Certificate of
Incorporation of the Corporation, as amended or restated from time to time
(the "Certificate"), for the vote necessary for the adoption of any measure
governed thereby. The stockholders present at
<PAGE>
-5-
a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
In the absence of a quorum, the stockholders present in person or by
proxy, by majority vote and without further notice, may adjourn the meeting
from time to time until a quorum is attained, but in the absence of a quorum,
no other business may be transacted at that meeting, except as provided in
this section. At any reconvened meeting following such adjournment at which a
quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 2.08. VOTES REQUIRED. The affirmative vote of a majority of the
shares present in person or represented by proxy at a duly called meeting of
stockholders of the Corporation, at which a quorum is present and entitled to
vote on the subject matter, shall be sufficient to take or authorize action
upon any matter which may properly come before the meeting, except that the
election of directors shall be by plurality vote, unless the vote of a
greater or different number thereof is required by statute, by the rights of
any authorized class of stock or by the Certificate.
Unless the Certificate or a resolution of the Board of Directors adopted
in connection with the issuance of shares of any class or series of stock
provides for a greater or lesser number of votes per share, or limits or
denies voting rights, each outstanding share of stock, regardless of class or
series, shall be entitled to one (1) vote on each matter submitted to a vote
at a meeting of stockholders.
Section 2.09. PROXIES. Every person entitled to vote for directors or
on any other matter shall have the right to do so either in person or by one
or more agents authorized by a written proxy signed by the person and filed
with the Secretary of the corporation. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the stockholder or
the stockholder's attorney in fact. A validly executed proxy which does not
state that it is irrevocable shall continue in full force and effect unless
(i) revoked by the person executing it, before the vote pursuant to that
proxy, by a writing delivered to the corporation stating that the proxy is
revoked, or by a subsequent proxy executed by, or as to any meeting by
attendance at such meeting and voting in person by, the person executing the
proxy; or (ii) written notice of the death or incapacity of the maker of that
proxy is received by the corporation before the vote pursuant
<PAGE>
-6-
to that proxy is counted; provided, however, that no proxy shall be valid
after the expiration of three (3) years from the date of the proxy, unless
otherwise provided in the proxy.
A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally.
Section 2.10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT. Unless
otherwise provided in the Certificate of Incorporation, and subject to the
rights, if any, of the holders, if any, of Preferred Stock to take action by
written consent, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special
meeting of stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders.
Section 2.11. RECORD DATE FOR STOCKHOLDER NOTICE AND VOTING. For
purposes of determining the stockholders entitled to notice of any meeting or
to vote or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor fewer than ten (10) days
before the date of any such meeting nor more than sixty (60) days before any
such other action, and in this event only stockholders at the close of
business on the record date are entitled to notice or to vote, as the case
may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the
General Corporation Law of the State of Delaware.
If the board of directors does not so fix a record date:
(a) The record date for determining the stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the business day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held.
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(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
Section 2.12. LIST OF STOCKHOLDERS. The Secretary of the Corporation
shall prepare and make (or cause to be prepared and made), at least ten (10)
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order
and showing the address of, and the number of shares registered in the name
of, each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the duration thereof, and may be
inspected by any stockholder who is present.
Section 2.13. VOTING. The stockholders entitled to vote at any meeting
of stockholders shall be determined in accordance with the provisions of
Section 2.12. The stockholders' vote may be by voice vote or by ballot. Any
stockholder may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal, but, if
the stockholder fails to specify the number of shares which the stockholder
is voting affirmatively, it will be conclusively presumed that the
stockholder's approving vote is with respect to all shares that the
stockholder is entitled to vote.
Section 2.14. WAIVER OF NOTICE OR CONSENT BY ABSENT STOCKHOLDERS. The
transactions of any meeting of stockholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as though
had at a meeting duly held after regular call and notice, if a quorum be
present either in person or by proxy, and if, either before or after the
meeting, each person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to a holding of the
meeting, or an approval of the minutes. The waiver of notice, consent or
approval need not specify either the business to be transacted or the purpose
of any annual or special meeting of stockholders. All such waivers, consents
or approvals shall be
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filed with the corporate records or made a part of the minutes of the
meeting. Attendance by a person at a meeting shall also constitute a waiver
of notice of that meeting, except when the person attends the meeting for the
express purpose of objecting and objects, at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or
convened, and except that attendance at a meeting is not a waiver of any
right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included if that objection
is expressly made at the meeting.
Section 2.15. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board of Directors shall appoint Inspectors of Election to
act at such meeting or at any adjournment or adjournments thereof. If such
Inspectors are not so appointed or fail or refuse to act, the chairman of any
such meeting may (and, upon the demand of any stockholder or stockholder's
proxy, shall) make such an appointment.
The number of Inspectors of Election shall be one (1) or three (3). If
there are three (3) Inspectors of Election, the decision, act or certificate
of a majority shall be effective and shall represent the decision, act or
certificate of all. No such Inspector need be a stockholder of the
Corporation.
Subject to any provisions of the Certificate of Incorporation, the
Inspectors of Election shall determine the number of shares outstanding, the
voting power of each, the shares represented at the meeting, the existence of
a quorum and the authenticity, validity and effect of proxies; they shall
receive votes, ballots or consents, hear and determine all challenges and
questions in any way arising in connection with the right to vote, count and
tabulate all votes or consents, determine when the polls shall close and
determine the result; and finally, they shall do such acts as may be proper
to conduct the election or vote with fairness to all stockholders. On
request, the Inspectors shall make a report in writing to the secretary of
the meeting concerning any challenge, question or other matter as may have
been determined by them and shall execute and deliver to such secretary a
certificate of any fact found by them.
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ARTICLE III
Directors
Section 3.01. POWERS. The business and affairs of the Corporation shall
be managed by and be under the direction of the Board of Directors. The
Board of Directors shall exercise all the powers of the Corporation, except
those that are conferred upon or reserved to the stockholders by statute, the
Certificate or these Bylaws.
Section 3.02. NUMBER. The number of directors shall be fixed from time
to time by resolution of the Board of Directors but shall not be less than
three (3) nor more than nine (9).
Section 3.03. ELECTION AND TERM OF OFFICE. Effective as of the date of the
amendment to the Certificate of Incorporation which amendment shall reflect
an article consistent with the terms of this Section 3.03 (the "Effective
Date"), the Board of Directors shall consist of three classes of directors,
such classes to be as nearly equal in number of directors as possible, having
staggered three-year terms of office, the term of office of the directors of
the first such class to expire at the first annual meeting of the
Corporation's stockholders following the Effective Date, those of the second
class to expire at the second annual meeting of the Corporation's
stockholders following the Effective Date, and those of the third class at
the third annual meeting of the Corporation's stockholders following the
Effective Date, such that at each such annual meeting of stockholders,
nominees will stand for election for three-year terms to succeed those
directors whose terms are to expire at such meeting. Likewise, at each other
annual meeting of stockholders held from and after the Effective Date, those
nominees elected at such meeting to succeed those directors whose terms
expire at such meeting, shall serve for a term expiring at the third annual
meeting of stockholders following their election. Members of the Board of
Directors shall hold office until the annual meeting of stockholders for the
year in which their term is scheduled to expire as set forth above in this
Section 3.03 and their respective successors are duly elected and qualified
or until their earlier death, incapacity, resignation, or removal. No
decrease in the authorized number of directors shall shorten the term of any
incumbent director, and additional directors elected in connection with
rights to elect such additional directors under specified circumstances which
may be granted to the holders of any series of Preferred Stock shall not be
included in any class, but shall serve for such term or terms and pursuant to
such other provisions as are specified in the resolution of the Board of
Directors establishing such series.
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Section 3.04. ELECTION OF CHAIRMAN OF THE BOARD. At the organizational
meeting immediately following the annual meeting of stockholders, the
directors shall elect a Chairman of the Board from among the directors who
shall hold office until the corresponding meeting of the Board of Directors
in the next year and until his successor shall have been elected or until his
earlier resignation or removal. Any vacancy in such office may be filled for
the unexpired portion of the term in the same manner by the Board of
Directors at any regular or special meeting.
Section 3.05. REMOVAL. Any director may be removed from office only
as provided in the Certificate of Incorporation.
Section 3.06. VACANCIES AND ADDITIONAL DIRECTORSHIPS. Except as the
Delaware General Corporate Laws may otherwise require, and subject to the
rights of the holders of any series of Preferred Stock with respect to the
filling of vacancies or new directorships in the Board of Directors, newly
created directorships resulting from death, resignation, disqualification,
removal or other cause shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term
of the class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been elected
and qualified. No decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director.
Section 3.07. REGULAR AND SPECIAL MEETINGS. Regular meetings of the
Board of Directors shall be held immediately following the annual meeting of
the stockholders; without call at such time as shall from time to time be
fixed by the Board of Directors; and as called by the Chairman of the Board
in accordance with applicable law. Special meetings of the Board of Directors
shall be held upon call by or at the direction of the Chairman of the Board,
the President or any two (2) directors, except that when the Board of
Directors consists of one (1) director, then the one director may call a
special meeting. Except as otherwise required by law, notice of each special
meeting shall be mailed to each director, addressed to him at his residence
or usual place of business, at least three days before the day on which the
meeting is to be held, or shall be sent to him at such place by telex,
telegram, cable, facsimile transmission or telephoned or delivered to him
personally, not later than the day before the day on which the meeting is to
be held. Such notice shall state the time and place of such meeting, but
need not
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state the purpose or purposes thereof, unless otherwise required by law, the
Certificate of Incorporation or these Bylaws ("Bylaws").
Notice of any meeting need not be given to any director who shall attend
such meeting in person (except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened) or who
shall waive notice thereof, before or after such meeting, in a signed writing.
Section 3. 08. QUORUM. At all meetings of the Board of Directors, a
majority of the fixed number of directors shall constitute a quorum for the
transaction of business, except that when the Board of Directors consists of
one (1) director, then the one director shall constitute a quorum. In the
absence of a quorum, the directors present, by majority vote and without
notice other than by announcement, may adjourn the meeting from time to time
until a quorum shall be present. At any reconvened meeting following such an
adjournment at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 3.09. VOTES REQUIRED. Except as otherwise provided by
applicable law or by the Certificate of Incorporation, the vote of a majority
of the directors present at a meeting duly held at which a quorum is present
shall be sufficient to pass any measure.
Section 3.10. PLACE AND CONDUCT OF MEETINGS. Each regular meeting and
special meeting of the Board of Directors shall be held at a location
determined as follows: The Board of Directors may designate any place, within
or without the State of Delaware, for the holding of any meeting. If no such
designation is made: (a) any meeting called by a majority of the directors
shall be held at such location, within the county of the Corporation's
principal executive office, as the directors calling the meeting shall
designate; and (b) any other meeting shall be held at such location, within
the county of the Corporation's principal executive office, as the Chairman
of the Board may designate or, in the absence of such designation, at the
Corporation's principal executive office. Subject to the requirements of
applicable law, all regular and special meetings of the Board of Directors
shall be conducted in accordance with such rules and procedures as the Board
of Directors may approve and, as to matters not governed by such rules and
procedures, as the chairman of such meeting shall determine. The chairman of
any regular or special meeting shall be the Chairman of the Board, or, in his
absence, a person
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designated by the Board of Directors. The Secretary, or, in the absence of
the Secretary, a person designated by the chairman of the meeting shall act
as secretary of the meeting. Any meeting, regular or special, may be held by
conference telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another, and all such
directors shall be deemed to be present in person at the meeting.
Section 3.11. FEES AND COMPENSATION. Directors shall be paid such
compensation as may be fixed from time to time by resolution of the Board of
Directors: (a) for their usual and contemplated services as directors; (b)
for their services as members of committees appointed by the Board of
Directors, including attendance at committee meetings as well as services
which may be required when committee members must consult with management
staff; and (c) for extraordinary services as directors or as members of
committees appointed by the Board of Directors, over and above those services
for which compensation is fixed pursuant to items (a) and (b) in this Section
3.11. Compensation may be in the form of an annual retainer fee or a fee for
attendance at meetings, or both, or in such other form or on such basis as
the resolutions of the Board of Directors shall fix. Directors shall be
reimbursed for all reasonable expenses incurred by them in attending meetings
of the Board of Directors and committees appointed by the Board of Directors
and in performing compensable extraordinary services. Nothing contained
herein shall be construed to preclude any director from serving the
Corporation in any other capacity, such as an officer, agent, employee,
consultant or otherwise, and receiving compensation therefor.
Section 3.12. COMMITTEES OF THE BOARD OF DIRECTORS. To the full extent
permitted by applicable law, the Board of Directors may from time to time
establish committees, including, but not limited to, standing or special
committees and an executive committee with authority and responsibility for
bookkeeping, with authority to act as signatories on Corporation bank or
similar accounts and with authority to choose attorneys for the Corporation
and direct litigation strategy, which shall have such duties and powers as
are authorized by these Bylaws or by the Board of Directors. Committee
members, and the chairman of each committee, shall be appointed by the Board
of Directors. The Chairman of the Board, in conjunction with the several
committee chairmen, shall make recommendations to the Board of Directors for
its final action concerning members to be appointed to the several committees
of the Board of Directors. Any member of any committee may be removed at any
time with or without cause by the Board of Directors. Vacancies which occur
on any committee shall be filled by a resolution of the Board of the
Directors. If any vacancy shall occur in any committee by reason of death,
resignation, disqualification, removal or otherwise, the remaining members of
such
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committee, so long as a quorum is present, may continue to act until such
vacancy is filled by the Board of Directors. The Board of Directors may, by
resolution, at any time deemed desirable, discontinue any standing or special
committee. Members of standing committees, and their chairmen, shall be
elected yearly at the regular meeting of the Board of Directors which is held
immediately following the annual meeting of stockholders. The provisions of
Sections 3.07, 3.08, 3.09 and 3.10 of these Bylaws shall apply, mutatis
mutandis, to any such Committee of the Board of Directors.
Section 3.13. WAIVER OF NOTICE. The transactions of any meeting of the
board of directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding
the meeting or an approval of the minutes. The waiver of notice or consent
need not specify the purpose of the meeting. All such waivers, consents, and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Notice of a meeting shall also be deemed given to
any director who attends the meeting without protesting, before or at its
commencement, the lack of notice to that director.
Section 3.14. ADJOURNMENT. A majority of the directors present,
whether or not constituting a quorum, may adjourn any meeting to another time
and place.
Section 3.15. NOTICE OF ADJOURNMENT. Notice of the time and place of
holding an adjourned meeting need not be given to absent directors if the
time and place are fixed at the meeting adjourned.
Section 3.16. ACTION WITHOUT MEETING. Any action required or permitted
to be taken by the board of directors or any committee thereof may be taken
without a meeting, if all members of the board shall individually or
collectively consent in writing to that action. Such action by written
consent shall have the same force and effect as a unanimous vote of the board
of directors. Such written consent or consents shall be filed with the
minutes of the proceedings of the board.
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ARTICLE IV
Officers
Section 4.01. DESIGNATION, ELECTION AND TERM OF OFFICE. The Corporation
shall have a Chairman of the Board, a President, a Treasurer, such senior
vice presidents and vice presidents as the Board of Directors deems
appropriate, a Secretary and such other officers as the Board of Directors
may deem appropriate. These officers shall be elected annually by the Board
of Directors at the organizational meeting immediately following the annual
meeting of stockholders, and each such officer shall hold office until the
corresponding meeting of the Board of Directors in the next year and until
his successor shall have been elected and qualified or until his earlier
resignation, death or removal. Any vacancy in any of the above offices may
be filled for the unexpired portion of the term by the Board of Directors at
any regular or special meeting. Any number of offices may be held by the
same person in accordance with section 4.08 herein.
Section 4.02. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall preside at all meetings of the directors and shall have such
other powers and duties as may from time to time be assigned to him by the
Board of Directors.
Section 4.03. PRESIDENT. The President shall be the chief executive
officer of the Corporation and shall, subject to the power of the Board of
Directors, have general supervision, direction and control of the business
and affairs of the Corporation. He shall preside at all meetings of the
stockholders and, in the absence of the Chairman of the Board, at all
meetings of the directors. He shall have the general powers and duties of
management usually vested in the office of president of a corporation, and
shall have such other duties as may be assigned to him from time to time by
the Board of Directors.
Section 4.04. TREASURER. The Treasurer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and records of
account of the properties and business transactions of the Corporation,
including accounts of its assets, liabilities, receipts, disbursements,
gains, losses, capital, retained earnings and shares. The books of account
shall at all reasonable times be open to inspection by the directors.
The Treasurer shall deposit all moneys and other valuables in the name
and to the credit of the Corporation with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as
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may be ordered by the Board of Directors, shall render to the President and
directors, whenever they request it, an account of all of his transactions as
the Treasurer and of the financial condition of the Corporation, and shall
have such other powers and perform such other duties as may be prescribed by
the Board of Directors or the Bylaws.
Section 4.05. SECRETARY. The Secretary shall keep the minutes of the
meetings of the stockholders, the Board of Directors and all committees. He
shall be the custodian of the corporate seal and shall affix it to all
documents which he is authorized by law or the Board of Directors to sign and
seal. He also shall perform such other duties as may be assigned to him from
time to time by the Board of Directors or the Chairman of the Board or
President.
Section 4.06. ASSISTANT OFFICERS. The President may appoint one or more
assistant secretaries and such other assistant officers as the business of
the Corporation may require, each of whom shall hold office for such period,
have such authority and perform such duties as may be specified from time to
time by the President.
Section 4.07. WHEN DUTIES OF AN OFFICER MAY BE DELEGATED. In the case
of absence or disability of an officer of the Corporation or for any other
reason that may seem sufficient to the Board of Directors, the Board of
Directors or any officer designated by it, or the President, may, for the
time of the absence or disability, delegate such officer's duties and powers
to any other officer of the Corporation.
Section 4.08. OFFICERS HOLDING TWO OR MORE OFFICES. The same person may
hold any two (2) or more of the above-mentioned offices.
Section 4.09. COMPENSATION. The Board of Directors shall have the power
to fix the compensation of all officers and employees of the Corporation.
Section 4.10. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors, to the President, or to the
Secretary of the Corporation. Any such resignation shall take effect at the
time specified therein unless otherwise determined by the Board of Directors.
The acceptance of a resignation by the Corporation shall not be necessary to
make it effective.
Section 4.11. REMOVAL. Any officer of the Corporation may be removed,
with or without cause, by the affirmative vote of a majority of the entire
Board
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of Directors. Any assistant officer of the Corporation may be removed, with
or without cause, by the President or by the Board of Directors.
ARTICLE V
Indemnification of Directors, Officers
Employees and other Corporate Agents
Section 5.01. ACTION, ETC., OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, trustee or agent of another
corporation, partnership, joint venture, trust or other enterprise (all such
persons being referred to hereinafter as an "Agent"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that he
had reasonable cause to believe that his conduct was unlawful.
Section 5.02. ACTION, ETC., BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was an Agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, unless and only to
the extent that the
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court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which such court shall deem proper.
Section 5.03. DETERMINATION OF RIGHT OF INDEMNIFICATION. Any
indemnification under Sections 5.01 or 5.02 (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Agent is proper in the
circumstances because the Agent has met the applicable standard of conduct
set forth in Sections 5.01 and 5.02 hereof, which determination is made (a)
by the Board of Directors, by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (b) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders.
Section 5.04. INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article V, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal
of an action without prejudice or the settlement of an action without
admission of liability, in defense of any action, suit or proceeding referred
to in Sections 5.01 or 5.02 hereof, or in defense of any claim, issue or
matter therein, such Agent shall be indemnified against expenses, including
attorneys' fees actually and reasonably incurred by such Agent in connection
therewith.
Section 5.05. ADVANCES OF EXPENSES. Except as limited by Section 5.06
of this Article V, expenses incurred by an Agent in defending any civil or
criminal action, suit, or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding, if the
Agent shall undertake to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified as authorized
in this Article V. Notwithstanding the foregoing, no advance shall be made by
the Corporation if a determination is reasonably and promptly made by the
Board of Directors by a majority vote of a quorum of disinterested directors,
or (if such a quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs) by independent legal counsel in a written
opinion, that, based upon the facts known to the Board of Directors or
counsel at the time such determination is made, such person acted in bad
faith and in a manner that such person did not believe to be in or not
opposed to the best interest of the Corporation, or, with
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respect to any criminal proceeding, that such person believed or had
reasonable cause to believe his conduct was unlawful.
Section 5.06. RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Any indemnification or advance under this
Article V shall be made promptly, and in any event within ninety days, upon
the written request of the Agent, unless a determination shall be made in the
manner set forth in the second sentence of Subsection 5.05 hereof that such
Agent acted in a manner set forth therein so as to justify the Corporation's
not indemnifying or making an advance to the Agent. The right to
indemnification or advances as granted by this Article V shall be enforceable
by the Agent in any court of competent jurisdiction, if the Board of
Directors or independent legal counsel denies the claim, in whole or in part,
or if no disposition of such claim is made within ninety (90) days. The
Agent's expenses incurred in connection with successfully establishing his
right to indemnification, in whole or in part, in any such proceeding shall
also be indemnified by the Corporation.
Section 5.07. OTHER RIGHTS AND REMEDIES. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article V
shall not be deemed exclusive of any other rights to which an Agent seeking
indemnification or advancement of expenses may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding such office, and shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an Agent
and shall inure to the benefit of the heirs, executors and administrators of
such a person. All rights to indemnification under this Article V shall be
deemed to be provided by a contract between the Corporation and the Agent who
serves in such capacity at any time while these Bylaws and other relevant
provisions of the Delaware General Corporation Law and other applicable law,
if any, are in effect. Any repeal or modification thereof shall not affect
any rights or obligations then existing.
Section 5.08. INSURANCE. Upon resolution passed by the Board of
Directors, the Corporation may purchase and maintain insurance on behalf of
any person who is or was an Agent against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article V.
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Section 5.09. CONSTITUENT CORPORATIONS. For the purposes of this
Article V, references to "the Corporation" shall include, in addition to the
resulting corporation, all constituent corporations (including all
constituents of constituents) absorbed in a consolidation or merger as well
as the resulting or surviving corporation, which, if the separate existence
of such constituent corporation had continued, would have had power and
authority to indemnify its Agents, so that any Agent of such constituent
corporation shall stand in the same position under the provisions of the
Article V with respect to the resulting or surviving corporation as that
Agent would have with respect to such constituent corporation if its separate
existence had continued.
Section 5.10. OTHER ENTERPRISES, FINES, AND SERVING AT CORPORATION'S
REQUEST. For purposes of this Article V, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to any employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to
in this Article V.
Section 5.11. SAVINGS CLAUSE. If this Article V or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each Agent as to expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or. investigative, and whether internal or external, including
a grand jury proceeding and an action or suit brought by or in the right of
the Corporation, to the full extent permitted by any applicable portion of
this Article V that shall not have been invalidated, or by any other
applicable law.
ARTICLE VI
Stock
Section 6.01. CERTIFICATES. Except as otherwise provided by law, each
stockholder shall be entitled to a certificate or certificates which shall
represent and certify the number and class (and series, if appropriate) of
shares of stock owned by him in the Corporation. Each certificate shall be
signed in the name
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of the Corporation by the Chairman of the Board or a Vice-Chairman of the
Board or the President or a Vice President, together with the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary. Any or all
of the signatures on any certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person were
such officer, transfer agent or registrar at the date of issue.
Section 6.02. TRANSFER OF SHARES. Shares of stock shall be transferable
on the books of the Corporation only by the holder thereof, in person or by
his duly authorized attorney, upon the surrender of the certificate
representing the shares to be transferred, properly endorsed, to the
Corporation's transfer agent, if the Corporation has a transfer agent, or to
the Corporation's registrar, if the Corporation has a registrar, or to the
Secretary, if the Corporation has neither a transfer agent nor a registrar.
The Board of Directors shall have power and authority to make such other
rules and regulations concerning the issue, transfer and registration of
certificates of the Corporation's stock as it may deem expedient.
Section 6.03. TRANSFER AGENTS AND REGISTRARS. The Corporation may have
one or more transfer agents and one or more registrars of its stock whose
respective duties the Board of Directors or the Secretary may, from time to
time, define. No certificate of stock shall be valid until countersigned by
a transfer agent, if the Corporation has a transfer agent, or until
registered by a registrar, if the Corporation has a registrar. The duties of
transfer agent and registrar may be combined.
Section 6.04. STOCK LEDGERS. Original or duplicate stock ledgers,
containing the names and addresses of the stockholders of the Corporation and
the number of shares of each class of stock held by them, shall be kept at
the principal executive office of the Corporation or at the office of its
transfer agent or registrar.
ARTICLE VII
Miscellaneous
Section 7.01. RELATIONSHIP BETWEEN BYLAWS, CERTIFICATE OF INCORPORATION,
AND DELAWARE GENERAL CORPORATE LAW. To the extent that the Certificate of
Incorporation or the Delaware General Corporate
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Laws grant to any Person any rights which are restricted under these Bylaws
and which are not permitted to be so restricted by the Certificate of
Incorporation or the Delaware General Corporate Laws, than the extent of such
right shall be as stated in the Certificate of Incorporation or the Delaware
General Corporate Laws, as the case may be, and these Bylaws shall be so
interpreted.
<PAGE>
Exhibit 5.1
January 16, 1998
AmTec, Inc.
599 Lexington Avenue, 44th Floor
New York, NY 10022-6030
Gentlemen:
I have acted as counsel for AmTec, Inc., a Delaware corporation (the
"Company"), in connection with the Company's Registration Statement on Form
S-3 proposed to be filed with the Securities and Exchange Commission on or
about January 16, 1998 (the "Registration Statement").
The Registration Statement covers the registration of up to 14,158,963
shares of common stock, $0.001 par value per share ("Common Stock"), of the
Company (the "Shares"), issuable by the Company upon the conversion of shares
of the Company's Series E Convertible Preferred Stock, par value $.001 per
share (the "Series E Shares") and upon exercise of certain outstanding
warrants to purchase shares of Common Stock (the "Warrants").
I have reviewed the corporate proceedings of the Company with respect to
the issuance of the Series E Shares and the Warrants and the issuance of the
Shares upon the conversion and exercise thereof. I have also examined and
relied upon originals or copies, certified or otherwise identified or
authenticated to my satisfaction, of such agreements, instruments, corporate
records, certificates, and other documents as I have deemed necessary or
appropriate as a basis for the opinions hereinafter expressed. In my
examination, I have assumed the genuineness of all signatures, the conformity
to the originals of all documents reviewed by us as copies, the authenticity
and completeness of all original documents reviewed by me in original or copy
form, and the legal competence of each individual executing any document.
I further assume that all Shares issued upon the conversion of Series E
Shares and the exercise of Warrants will be issued in accordance with the
terms of such Series E Shares and Warrants.
Subject to the limitations set forth below, I have made such examination
of law as I have deemed necessary for the purposes of this opinion. This
opinion
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is limited solely to the General Corporation Law of the State of Delaware as
applied by courts located in Delaware.
Based upon and subject to the foregoing, I am of the opinion that the
Shares, when issued and delivered upon the conversion of Series E Shares and
the exercise of Warrants, in all cases against the payment of the exercise
price therefor (if applicable), will be validly issued, fully paid, and
non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ James F. O'Brien
James F. O'Brien
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
To the Stockholders and Board of Directors of AmTec, Inc.
We consent to the incorporation by reference in this Registration Statement
of AmTec, Inc. on Form S-3 of our report dated June 20, 1997 and July 8, 1997
with respect to Note 16 (which report expresses an unqualified opinion and
includes an explanatory paragraph relating to the Company's ability to
continue as a going concern) appearing in the Annual Report on Form 10-KSB of
AmTec, Inc. for the year ended March 31, 1997 and to the reference to us
under the heading "Experts" in the Prospectus, which is a part of this
Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
January 15, 1998
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated June 18, 1996, accompanying the consolidated
financial statements included in the Annual Report of AmTec, Inc. (formerly
AVIC Group International, Inc.) on Form 10-KSB for the year ended March 31,
1997. We hereby consent to the incorporation by reference of said report in
the Registration Statement of AmTec, Inc. (formerly AVIC Group International,
Inc.) on Form S-3 and to the use of our name as it appears under the caption
"Experts."
/s/ Singer Lewak Greenbaum & Goldstein LLP
SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
January 16, 1998
