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As filed with the Securities and Exchange Commission on April 20, 2010
Registration No. 333-______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ENERGY FOCUS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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94-3021850 |
(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.) |
32000 Aurora Road
Solon, Ohio 44139
440.715.1300
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
Joseph G. Kaveski
Chief Executive Officer
Energy Focus, Inc.
32000 Aurora Road
Solon, Ohio 44139
440.715.1300
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Gerald W. Cowden, Esq.
Thomas J. Talcott, Esq.
Cowden & Humphrey Co. LPA
4600 Euclid Avenue, Suite 400
Cleveland, Ohio 44103-3785
216.241.2880
Approximate date of proposed sale to the public: From time to time or at one time after the
effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
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 (Securities Act), other than
securities offered only in connection with dividend or reinvestment plans, check the following box.
þ
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. o
If this form is a post-effective amendment filed pursuant to 462(c) under the Securities Act, check
the following box and list the Securities Act registration number of the earlier effective
registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer or a smaller reporting company. See definition of large accelerated filer,
accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer þ
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Smaller Reporting Company o |
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(Do
not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Each Class of Securities to be |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Amount of |
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Registered |
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Registered(1) |
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Share(2) |
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Price |
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Registration Fee |
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Common Stock,
$0.0001 par value
per share |
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4,470,000 |
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$ |
1.19 |
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5,319,300.00 |
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379.27 |
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(1) |
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The shares being registered include 4,470,000 shares issuable to
Lincoln Park Capital Fund, LLC (LPC) and such indeterminate
number of additional shares of common stock issuable for no
additional consideration by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected
without the receipt of consideration, which results in an
increase in the number of outstanding shares of our common stock.
In the event of a stock split, stock dividend or similar
transaction involving our common stock, in order to prevent
dilution, the number of shares registered shall be automatically
increased to cover the additional shares in accordance with Rule
416(a) under the Securities Act of 1933. |
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(2) |
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Estimated solely for the purpose of computing the registration fee in
accordance with Rules 457(c) of the Securities Act based on the
closing price of the shares of common stock of the Registrant reported
on the NASDAQ Global Market on April 16, 2010. |
The Registrant hereby amends this registration statement on the 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, as amended, or until the registration statement shall
become effective on a date as the Securities and Exchange Commission, acting pursuant to Section
8(a), may determine.
SUBJECT TO COMPLETION, DATED APRIL __, 2010
The information in this prospectus is not complete and may be changed. We may not sell these
securities until the registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and we are not soliciting
offers to buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS
ENERGY FOCUS, INC.
4,470,000 Shares of Common Stock
This prospectus relates to the sale of up to 4,470,000 shares of our common stock by Lincoln
Park Capital Fund, LLC (LPC), Chicago, Illinois. LPC is sometimes referred to in this prospectus
as the selling shareholder. The prices at which LPC may sell the shares will be determined by the
prevailing market price for the shares or in negotiated transactions. We will not receive proceeds
from the sale of our shares by LPC.
Our common stock is registered under Section 12(g) of the Securities Exchange Act of 1934 and
quoted on the NASDAQ Global Market under the symbol EFOI. On April 16, 2010, the last reported
sale price for our common stock as reported on the NASDAQ Global Market was $1.19 per share. We
have applied to have the shares of common stock offered pursuant to this prospectus approved for
listing on the NASDAQ Global Market.
Investing in our common stock involves certain risks. See Risk Factors beginning on page 3
for a discussion of these risks.
The selling shareholder is an underwriter within the meaning of the Securities Act of 1933,
as amended.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined that this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is April [__], 2010.
PROSPECTUS SUMMARY
This prospectus provides you with a general description of the common stock being offered. You
should read this prospectus, including all documents incorporated herein by reference, together
with additional information described under the heading Where You Can Find More Information.
The registration statement that contains this prospectus, including the exhibits to the
registration statement, contains additional information about us and the securities being offered
under this prospectus. You should read the registration statement and the accompanying exhibits for
further information. The registration statement and exhibits can be read and are available to the
public over the Internet at the SECs website at http://www.sec.gov as described under the
heading Where You Can Find More Information.
Business
We are a Delaware corporation. Our principal executive offices are located at 32000 Aurora
Road, Solon, Ohio 44139. Our telephone number is 440.715.1300. The address of our website is
www.efoi.com. Information on our website is not part of this prospectus.
We design, develop, manufacture, and market energy-efficient lighting products, and we are a
leading provider of turnkey energy-efficient lighting solutions in the governmental and public
sector market, general commercial market, and the pool market. Our lighting technology offers
significant energy savings, heat dissipation and maintenance cost benefits over conventional
lighting for multiple applications.
During 2009 and early 2010, we completed the initial phase of our new business strategy to
provide turnkey solutions, which use, but are not limited to, our patented and proprietary
technology. Our solutions include light-emitting diode, ceramic metal halide, fiber optic,
high-intensity discharge, and other high energy-efficient lighting technologies. Typical savings
related to our technology approximates 80% in electricity costs, while providing full-spectrum
light closely simulating daylight colors. Our strategy also incorporates continued investment into
the research of new and emerging energy sources including, but not limited to, solar energy.
Our long-term strategy is to penetrate the $100 billion existing building lighting market by
providing turnkey lighting solutions. We will continue to focus on markets where the benefits of
our lighting solutions offerings, combined with our technology, are most compelling. These markets
include: schools, universities, hospitals, office buildings, parking garages, supermarkets,
museums, cold storage facilities, and manufacturing environments.
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LPC Transaction and the Offering
On March 17, 2010, we executed a Purchase Agreement (the Purchase Agreement) and a
registration rights agreement with Lincoln Park Capital Fund, LLC (LPC), Chicago, Illinois,
pursuant to which LPC has agreed to purchase 350,000 shares of our common stock, together with
warrants (Warrants) to purchase 350,000 shares at an exercise price of $1.20 per share, for total
consideration of $375,000. The Warrants have a term of five (5) years and are not exercisable
until six (6) months after they are issued. LPC has also agreed to purchase up to an additional
3,650,000 shares of our common stock at our option as described below. We issued 120,000 shares of
our stock to LPC as consideration for entering into the Purchase Agreement, which shares are not
included in this offering.
Pursuant to the registration rights agreement, we have filed a registration statement that
includes this prospectus with the Securities and Exchange Commission (the SEC). The prospectus
covers the 4,000,000 shares that may be sold to LPC under the Purchase Agreement, an additional
120,000 shares that we will issue pro rata as LPC purchases up to the 4,000,000 shares, as directed
by us, and 350,000 shares that may be issued upon exercise of the Warrants, which Warrants are not
exercisable until six (6) months from the date of issuance. We do not have the right to commence
any sales of our shares to LPC until the SEC has declared effective the registration statement of
which this prospectus is a part.
Immediately after the SEC has declared effective the registration statement, LPC will purchase
and we will issue 350,000 shares of common stock (together with 10,500 pro rata commitment shares
in connection with such purchase) and the Warrants to purchase 350,000 shares of common stock, for
total consideration of $375,000.
Thereafter, over approximately 25 months, we have the right to direct LPC to purchase up to
20,000 shares of our common stock as often as every five (5) business days. We can suspend
purchases or accelerate the number of shares to be purchased at any time. No sales of shares may
occur below $1.00 per share. The purchase prices of the shares will be based on the market prices
of our shares at the time of sale as computed under the Purchase Agreement without any fixed
discount. We may at any time in our sole discretion terminate the Purchase Agreement without fee,
penalty, or cost upon five (5) business days notice.
As
of March 31, 2010, there were 21,370,304 shares outstanding,
including 16,056,274 shares
held by non-affiliates, but excluding the 4,470,000 shares offered by LPC pursuant to this
prospectus, which we have not issued. We are offering 4,470,000 shares hereby, consisting of
4,000,000 shares that we may sell to LPC pursuant to the Purchase Agreement, 120,000 shares
issuable pro rata as the 4,000,000 shares are purchased by LPC, and 350,000 shares issuable to LPC
upon its exercise of the Warrants which Warrants are not exercisable until six (6) months from the
date of issuance. If all of the 4,470,000 shares offered by LPC hereby were issued and outstanding
as of the date hereof,
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such
shares would represent 17.30% of the total common stock outstanding
or 21.78% of the non-affiliates shares outstanding, as adjusted, as of the date hereof. The number
of shares ultimately offered for sale by LPC is dependent upon the number of shares that we sell
and issue to LPC under the Purchase Agreement, including shares that we issue upon exercise of the
Warrants.
Securities Offered
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Common stock to be offered
by the selling shareholder
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4,470,000 shares consisting of: |
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4,120,000 shares issuable to LPC under Purchase Agreement; and |
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350,000 shares issuable to LPC under the Warrants. |
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Common stock outstanding
prior to this offering
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21,370,304 shares |
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Use of Proceeds
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We will receive no proceeds from the
sale of shares of common stock in
this offering. If we sell 4,000,000
shares of our common stock to LPC
under the Purchase Agreement and LPC
exercises its warrant to purchase
350,000 shares in full, however, we
will receive at least $4,445,000 in
proceeds from those sales. Any
proceeds that we receive from sales
to LPC under the Purchase Agreement
will be used to fund our working
capital needs and our new business
strategy. See Use of Proceeds. |
NASDAQ
Global Market symbol EFOI
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RISK FACTORS
You should carefully consider the risks described below before purchasing our common stock.
Our most significant risks and uncertainties are described below. They are not the only risks that
we face, however. If any of the following risks actually occur, our business, financial condition,
or results or operations could be materially, adversely affected, the price of our common stock
could decline, and you may lose all or part of your investment therein. You should acquire shares
of our common stock only if you can afford to lose your entire investment.
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Risks Associated with Our Business.
We have a history of operating losses and may incur losses in the future.
We have experienced net losses of $11,015,000 and $14,448,000 for the years ended December 31,
2009 and 2008, respectively. As of December 31, 2009, we had an accumulated deficit of $60,343,000.
Although management believes that we have addressed many of the legacy issues that have
historically burdened our financial performance, we still face challenges in order to reach
profitability. In order for us to attain profitability and growth, we will need to successfully
address these challenges, including the continuation of cost reductions throughout our
organization, execution of our marketing and sales plans for our new turnkey energy-efficient
lighting solutions business, continued evaluation and divestiture of non-core business product
lines, and continued improvements in our supply chain performance. Although we are optimistic
about reaching profitability, there is a risk that our business may not be as successful as we
envision or that we will never be profitable.
Our independent public accounting firm has added an explanatory paragraph to their audit
opinion issued in connection with the financial statements in our 2009 Annual Report on Form 10-K
raising substantial doubt as to our ability to continue as a going concern. This opinion stems
from our historically poor operating performance, the on-going global economic crisis, and our
historical inability to generate sufficient cash flow to meet obligations and sustain operations
without obtaining additional external financing. Although we are optimistic about obtaining the
funding necessary for us to continue as a going concern, by generating sufficient cash flow
internally and/or by obtaining additional external financing, there can be no assurances that this
objective will be successful. Our financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
We will require additional financing to sustain our operations currently and in the near future,
and also may require it for the foreseeable future. Without it, we may not be able to continue
operations.
As indicated in the previous risk factor, we have a history of operating losses and a large
accumulated deficit. We currently do not have sufficient internal financial resources to fund our
operations. We therefore need additional funds from external sources to continue our operations.
We are currently aggressively pursuing the following external funding sources:
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obtain financing and/or grants available through federal, state, and/or local
governmental agencies, |
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obtain financing from various financial institutions, |
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obtain financing from non-traditional investment capital organizations, |
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potential sale or divestiture of one or more operating units, and |
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obtain funding from the sale of our common stock or other equity instruments. |
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Obtaining financing through the above-mentioned mechanisms contains risks, including:
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government stimulus and/or grant money is not allocated to us despite our focus on the
design, development, and manufacturing of energy-efficient lighting systems, |
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loans or other debt instruments may have terms and/or conditions, such as interest
rates, restrictive covenants, and control or revocation provisions, which are not
acceptable to management or our Board of Directors, |
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the current global economic crisis combined with our current financial condition may
prevent us from being able to obtain any debt financing, |
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financing may not be available for parties interested in pursuing the acquisition of
one or more of our operating units, and |
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additional equity financing may not be available to us in the current economic
environment and could lead to further dilution of shareholder value for current
shareholders of record. |
Under our Purchase Agreement with LPC, we may direct LPC to purchase up to 4,000,000 shares of
our common stock over a 25-month period. However, LPC shall not have the right nor the obligation
to purchase any shares of our common stock on any business day that the market price of our common
stock is less than $1.00. Assuming a purchase price of $1.19 per share, which was the closing sale
price of our common stock on April 16, 2010, the purchase by LPC of the full 4,000,000 shares under
the Purchase Agreement, and the exercise by LPC of its warrant to purchase 350,000 shares in full
at $1.20 per share, proceeds to us would be $4,760,500.
The extent to which we rely on LPC as a source of funding will depend on a number of factors,
including the prevailing market price of our common stock and the extent to which we are able to
secure working capital from other external sources, such as through the sale of our products.
Specifically, LPC shall not have the right nor the obligation to purchase any shares of our common
stock on any business days on which the market price of our common stock is less than $1.00. If
obtaining sufficient funding from LPC were to prove unavailable or prohibitively dilutive and if we
are unable to sell enough of our products, we will need to secure another source of funding in
order to satisfy our working capital needs. Even if we sell all 4,000,000 shares under the
Purchase Agreement to LPC, we may still need additional capital to fully implement our business,
operating and development plans. Should the financing we require to sustain our working capital
needs be unavailable or prohibitively expensive when we require it, the consequences could be a
material adverse effect on our business, operating results, financial condition and prospects.
Downturns in general economic conditions and construction trends could continue to materially and
adversely affect our business.
Downturns in general economic and market conditions, both nationally and internationally,
could have a material adverse effect on our business. In most areas, sales of new and existing
homes have slowed and there has been a continued downturn in the housing market, as well as adverse
changes in employment levels, job growth, consumer confidence and interest rates, in addition to an
oversupply of commercial and
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residential
buildings for sale. In our legacy businesses, sales of our lighting products depend significantly
upon the level of new building construction, which are affected by housing market trends, interest
rates and the weather. Sales of our pool and spa lighting products depend substantially upon the
level of new pool construction, which is also affected by housing market and construction trends.
In addition, due to the seasonality of construction, sales of swimming pool and lighting products,
and thus our revenue and income, have tended to be significantly lower in the first quarter of each
year. Our future results of operations may experience substantial fluctuations from period to
period as a consequence of these factors, and such conditions and other factors affecting capital
spending may affect the timing of orders. An economic downturn coupled with a decline in our net
sales could adversely affect our ability to meet our working capital requirements, support our
capital requirements and growth objectives, or could otherwise adversely affect our business
financial condition, and results of operations. As a result, any general or market-specific
economic downturns, particularly those affecting new building construction and renovation, or that
cause end-users to reduce or delay their purchases of lighting products, services, or retrofit
activities, would have a material adverse effect on our business, cash flows, financial condition,
and results of operations.
We have significant international sales and are subject to risks associated with operating in
international markets.
For the years ending December 31, 2009 and 2008, net sales of our products outside of the
United States represented approximately 36.5% and 35.6%, respectively, of our total net sales from
continuing operations. We generally provide technical expertise and limited marketing support,
while our independent international distributors generally provide sales staff, local marketing,
and product services. We believe our international distributors are better able to service
international markets due to their understanding of local market conditions and best business
practices. International business operations are subject to inherent risks, including, among
others:
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unexpected changes in regulatory requirements, tariffs and other trade barriers or
restrictions, |
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longer accounts receivable payment cycles and the difficulty of enforcing contracts and
collecting receivables through certain foreign legal systems, |
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difficulties in managing and staffing international operations, |
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potentially adverse tax consequences, |
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the burdens of compliance with a wide variety of foreign laws, |
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import and export license requirements and restrictions of the United States and each
other country in which we operate, |
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exposure to different legal standards and reduced protection for intellectual property
rights in some countries, |
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currency fluctuations and restrictions, |
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political, social and economic instability, including war and the threat of war, acts
of terrorism, pandemics, boycotts, curtailment of trade or other business restrictions, |
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periodic foreign economic downturns, and |
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sales variability as a result of transacting our foreign sales in United States
dollars. |
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If we are unable to respond effectively as new lighting technologies and market trends emerge, our
competitive position and our ability to generate revenue and profits may be harmed.
To be successful, we will need to keep pace with rapid changes in light-emitting diode (LED)
and fiber optics lighting technology, changing customer requirements, new product introductions by
competitors and evolving industry standards, any of which could render our existing products
obsolete if we fail to respond in a timely manner. Development of new products incorporating
advanced technology is a complex process subject to numerous uncertainties. We have previously
experienced, and could in the future, experience delays in introduction of new products. If
effective new sources of light other than LED and fiber optics are discovered, our current products
and technologies could become less competitive or obsolete. If others develop innovative
proprietary lighting technology that is superior to ours, or if we fail to accurately anticipate
technology and market trends, respond on a timely basis with our own development of new products
and enhancements to existing products, and achieve broad market acceptance of these products and
enhancements, our competitive position may be harmed and we may not achieve sufficient growth in
our net sales to attain or sustain profitability.
If we are not able to compete effectively against companies with greater resources, our prospects
for future success will be jeopardized.
The lighting industry is highly competitive. In the high performance lighting markets in
which we sell our advanced lighting systems, our products compete with lighting products utilizing
traditional lighting technology provided by many vendors. Additionally, in the advanced lighting
markets in which we have primarily competed to date, competition has largely been fragmented among
a number of small manufacturers. However, some of our competitors, particularly those that offer
traditional lighting products, are larger companies with greater resources to devote to research
and development, manufacturing and marketing.
Moreover, in the general lighting market, we expect to encounter competition from an even
greater number of companies. Our competitors are expected to include the large, established
companies in the general lighting industry, such as General Electric, Osram Sylvania and Royal
Philips Electronics. Each of these competitors has undertaken initiatives to develop LED
technology. These companies have global marketing capabilities and substantially greater resources
to devote to research and development and other aspects of the development, manufacture and
marketing of LED lighting products than we possess. We may also face competition from traditional
lighting fixture companies, such as Acuity Brands Lighting, Cooper Lighting, Hubbell Lighting,
Lithonia Lighting, and Royal Philips Electronics. The relatively low barriers to entry into the
lighting industry and the limited proprietary nature of many lighting products also permit new
competitors to enter the industry easily.
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In each of our markets, we also anticipate the possibility that LED manufacturers, including
those that currently supply us with LEDs, may seek to compete with us. Our competitors lighting
technologies and products may be more readily accepted by customers than our products.
Additionally, to the extent that competition in our markets intensifies, we may be required to
reduce our prices in order to remain competitive. If we do not compete effectively, or if we
reduce our prices without making commensurate reductions in our costs, our net sales and
profitability, and our future prospects for success, may be harmed.
We have made strategic acquisitions in the past and intend to do so in the future, which may
adversely affect our operating results, financial condition, and existing business.
We seek to grow through strategic acquisitions in order to transition our company into a
nationwide, turnkey, energy-efficient lighting systems solutions company. On December 31, 2009, we
acquired Stones River Companies, LLC (SRC), and we anticipate making additional acquisitions in
the future. The success of our acquisition strategy will depend on, among other things:
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the availability of suitable candidates, |
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competition from other companies for the purchase of available candidates, |
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our ability to value those candidates accurately and negotiate favorable terms for
those acquisitions, |
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the availability of funds to finance acquisitions, |
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the ability to establish new informational, operational and financial systems to meet
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the ability to achieve anticipated synergies, including with respect to complementary
products or services, and |
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the availability of management resources to oversee the integration and operation of
the acquired businesses. |
If we are not successful in integrating acquired businesses and completing acquisitions in the
future, we may be required to reevaluate our acquisition strategy. We also may incur substantial
expenses and devote significant management time and resources to completing these acquisitions.
Furthermore, acquired businesses may fail to meet our performance expectations. If we do not
achieve the anticipated benefits of an acquisition as rapidly as expected, or at all, investors or
analysts may not perceive the same benefits of the acquisition as we do. If these risks
materialize, our performance and stock price could be materially affected.
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Our inability to successfully integrate businesses we acquire could have adverse consequences on our business.
Acquisitions may result in greater administrative burdens and operating costs and, to the
extent financed with debt, additional interest costs. We cannot assure you that we will be able to
manage or integrate acquired companies or businesses successfully. The process of integrating
acquired businesses, including the recent acquisition of SRC, may be disruptive to our business and
may cause an interruption of or a loss of momentum in, our business as a result of the following
factors, among others:
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loss of key employees or customers, |
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possible inconsistencies in standards, controls, procedures and policies among the
combined companies and the need to implement company-wide financial, accounting,
information and other systems, |
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failure to maintain the quality of services that the companies have historically
provided, |
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coordinating sales, distribution, and marketing functions, |
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the need to coordinate geographically diverse organizations, and |
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the diversion of managements attention from our day-to-day business as a result of the
need to deal with any disruptions and difficulties and the need to add management
resources to do so. |
These disruptions and difficulties, if they occur, may cause us to fail to realize the cost
savings, revenue enhancements and other benefits that we may expect from such acquisitions and may
cause material adverse short- and long-term effects on our operating results and financial
condition.
If we are unable to obtain and adequately protect our intellectual property rights, our ability to
commercialize our products could be substantially limited.
We consider our technology and processes proprietary. If we are not able to adequately
protect or enforce the proprietary aspects of our technology, competitors may utilize our
proprietary technology and our business, financial condition and results of operations could be
adversely affected. We protect our technology through a combination of patent, copyright,
trademark and trade secret laws, employee and third-party nondisclosure agreements and similar
means. Despite our efforts, other parties may attempt to disclose, obtain or use our technologies.
Our competitors may also be able to independently develop products that are substantially
equivalent or superior to our products or slightly modify our patents. In addition, the laws of
some foreign countries do not protect our proprietary rights as fully as do the laws of the United
States. As a result, we may not be able to protect our proprietary rights adequately in the United
States or abroad.
As of December 31, 2009 and March 8, 2010, our intellectual property portfolio consisted of 68
and 69, respectively, issued United States and foreign patents, various pending United States
patent applications, and various pending Patent Cooperation Treaty patent applications filed with
the World Intellectual Property Organization that serves as the basis of national patent filings in
countries of interest. A
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total of 15 applications are pending. Because our patent position
involves complex legal, scientific, and factual questions, the issuance, scope, validity and enforceability of our patents cannot be
predicted with certainty. Our issued patents may be invalidated or their enforceability
challenged, and they may not provide us with competitive advantages against others with similar
products and technology. Furthermore, others may independently develop similar products or
technology or duplicate or design around any technologies that we have developed.
We may receive notices that claim we have infringed upon the intellectual property of others.
Even if these claims are not valid, they could subject us to significant costs. We have engaged in
litigation and litigation may be necessary in the future to enforce our intellectual property
rights or to determine the validity and scope of the proprietary rights of others. Litigation may
also be necessary to defend against claims of infringement or invalidity by others. An adverse
outcome in litigation or any similar proceedings could subject us to significant liabilities to
third parties, require us to license disputed rights from others or require us to cease marketing
or using certain products or technologies. We may not be able to obtain any licenses on acceptable
terms, if at all. We also may have to indemnify certain customers if it is determined that we have
infringed upon or misappropriated another partys intellectual property.
Any of these results could adversely affect our business, financial condition and results of
operations. In addition, the cost of addressing any intellectual property litigation claim, both
in legal fees and expenses, and the diversion of management resources, regardless of whether the
claim is valid, could be significant and could materially harm our business, financial condition
and results of operations.
If critical components that we currently purchase from a small number of third-party suppliers
become unavailable or third-party manufacturers otherwise experience delays, we may incur delays in
shipment, which would damage our business.
We depend on others to manufacture a significant portion of the component parts incorporated
into our products. We purchase our component parts from third-party manufacturers that serve the
advanced lighting systems market and believe that alternative sources of supply are readily
available for most component parts. However, consolidation in the lighting industry could result
in one or more current suppliers being acquired by a competitor, rendering us unable to continue
purchasing necessary amounts of key components at competitive prices.
In an effort to reduce manufacturing costs, we have outsourced the production of certain parts
and components as well as finished goods in our product lines to a number of overseas suppliers.
We expect to outsource all of the production for selected products. While we believe alternative
sources for the production of these products are available, we have selected these particular
manufacturers based on their ability to consistently produce these products per our specifications
ensuring the best quality product at the most cost effective price. We depend on our suppliers to
satisfy performance and quality specifications and to dedicate sufficient production capacity
within scheduled delivery times.
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Although we maintain contracts with selected suppliers, we may be
vulnerable to unanticipated price increases and product shortages. Accordingly, the loss of all or one of these
suppliers or delays in obtaining shipments could have a material adverse effect on our operations
until such time as an alternative supplier could be found. We may be subject to various import
duties applicable to materials manufactured in foreign countries and, in addition, may be affected
by various other import and export restrictions, as well as other considerations or developments
impacting upon international trade, including economic or political instability, shipping delays,
and product quotas. These international trade factors will, under certain circumstances, have an
impact both on the cost of components, which will, in turn, have an impact on the cost to us of the
manufactured product, and the wholesale and retail prices of its products.
If the companies to which we outsource the manufacture of our products fail to meet our
requirements for quality, quantity and timeliness, our revenue and reputation in the marketplace
could be harmed.
We outsource a significant portion of the manufacture and assembly of our products and we
expect to outsource all of the production of many of our products. We currently depend on a small
number of contract manufacturers to manufacture our products at plants in various locations
throughout the world, primarily in the United States, Mexico, China, and Taiwan. These
manufacturers supply most of the necessary raw materials and provide all necessary facilities and
labor to manufacture our products. We currently do not have long-term contracts with some of these
manufacturers. If these companies were to terminate their arrangements with us without adequate
notice, or fail to provide the required capacity and quality on a timely basis, we would be unable
to manufacture and ship our lighting products until replacement manufacturing services could be
obtained. To qualify a new contract manufacturer, familiarize it with our products, quality
standards and other requirements, and commence volume production is a costly and time-consuming
process. If it became necessary to do so, we may not be able to establish alternative
manufacturing relationships on acceptable terms.
Our reliance on contract manufacturers involves certain additional risks, including the
following:
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lack of direct control over quality assurance, manufacturing yields and production
costs, |
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risk of loss of inventory while in transit from China, Mexico, India, Japan, and
Taiwan, and |
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risks associated with international commerce, particularly with China, Mexico, India,
Japan, and Taiwan, including unexpected changes in legal and regulatory requirements,
changes in tariffs and trade policies, risks associated with the protection of
intellectual property and political and economic instability. |
Any interruption in our ability to manufacture and distribute products could result in delays
in shipment, lost sales, reductions in revenue and damage to our reputation in the market, all of
which would adversely affect our business.
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We depend on independent distributors and sales representatives for a substantial portion of our
net sales, and the failure to manage successfully our relationships with these third parties, or
the termination of these relationships, could cause our net sales to decline and harm our business.
We rely significantly on indirect sales channels to market and sell our products. Most of our
products are sold through third-party independent distributors and sales representatives. In
addition, these parties provide technical sales support to end-users. Our current agreements
within these sales channels are non-exclusive with regard to lighting products in general, but
exclusive with respect to LED lighting and fiber optic products. We anticipate that any such
agreements we enter into in the future will be on similar terms. Furthermore, our agreements are
generally short-term, and can be cancelled by these sales channels without significant financial
consequence. We cannot control how these sales channels perform and cannot be certain that we or
end-users will be satisfied by their performance. If these distributors and sales representatives
significantly change their terms with us, or change their historical pattern of ordering products
from us, there could be a significant impact on our net sales and profits.
Our products could contain defects or they may be installed or operated incorrectly, which could
reduce sales of those products or result in claims against us.
Despite product testing, defects have been found and may be found in our existing or future
products. This could result in, among other things, a delay in the recognition or loss of net
sales, loss of market share or failure to achieve market acceptance. These defects could cause us
to incur significant warranty, support and repair costs, divert the attention of our engineering
personnel from our product development efforts and harm our relationship with our customers. The
occurrence of these problems could result in the delay or loss of market acceptance of our lighting
products and would likely harm our business. Some of our products use line voltages (such as 120 or
240 AC), or are designed for installation in environments such as swimming pools and spas, which
involve enhanced risk of electrical shock, injury or death in the event of a short circuit or other
malfunction. Defects, integration issues or other performance problems in our lighting products
could result in personal injury or financial or other damages to end-users or could damage market
acceptance of our products. Our customers and end-users could also seek damages from us for their
losses. A product liability claim brought against us, even if unsuccessful, would likely be time
consuming and costly to defend.
If we are unable to attract or retain qualified personnel, our business and product development
efforts could be harmed.
To a large extent, our future success will depend on the continued contributions of certain
employees, such as our current Chief Executive Officer, Chief Financial Officer, Chief Operating
Officer, President, and Chief Technical Officer. These and other key employees would be difficult
to replace. Our future success will also depend on our ability to attract and retain qualified
technical, sales, marketing and
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management personnel, for whom competition is very intense. The loss of, or failure to attract, hire, and
retain, any such persons could delay product development cycles, disrupt our operations, or
otherwise harm our business or results of operations. We have been successful in hiring
experienced energy solutions salespeople from leading firms in the industry but if these
individuals are not successful in achieving our expectations, and then planned sales may not occur
and the anticipated net sales may not be realized.
A significant portion of our business is dependent upon the existence of government funding, which
may not be available in the future and could result in a significant reduction in sales and could
cause significant harm to our business.
Over the last three years, approximately 40.7% of our research and development efforts have
been supported directly by government funding. In 2009, approximately 70.5% of our research and
development funding came from government sources and was contracted for short periods, usually one
to two years. Further, a significant portion of net sales generated by SRC are derived from state
government funding and supported by federal government funding. If government funding is reduced
or eliminated, there is no guarantee that we would be able to continue to fund our activities in
these areas at their current levels, if at all. If we are unable to maintain our access to
government funding in these areas, there could be a significant impact on our net sales and
profits.
We believe that certification and compliance issues are critical to adoption of our lighting
systems, and failure to obtain such certification or compliance would harm our business.
We are required to comply with certain legal requirements governing the materials in our
products. Although we are not aware of any efforts to amend any existing legal requirements or
implement new legal requirements in a manner with which we cannot comply, our net sales might be
adversely affected if such an amendment or implementation were to occur.
Moreover, although not legally required to do so, we strive to obtain certification for
substantially all our products. In the United States, we seek, and to date have obtained,
certification on substantially all of our products from Underwriters Laboratories or Intertek.
Where appropriate in jurisdictions outside the United States and Europe, we seek to obtain other
similar national or regional certifications for our products. Although we believe that our broad
knowledge and experience with electrical codes and safety standards have facilitated certification
approvals, we cannot ensure that we will be able to obtain any such certifications for our new
products or that, if certification standards are amended, that we will be able to maintain such
certifications for our existing products. Moreover, although we are not aware of any effort to
amend any existing certification standard or implement a new certification standard in a manner
that would render us unable to maintain certification for our existing products or obtain
ratification for new products, our net sales might be adversely affected if such an amendment or
implementation were to occur.
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We must comply with regulatory requirements regarding internal control over financial reporting,
corporate governance and public disclosure, which will cause us to incur significant costs and our
failure to comply with these requirements could cause our stock price to decline.
Section 404 of the Sarbanes-Oxley Act of 2002 requires that we annually evaluate and report on
our systems of internal controls. These rules and regulations have increased our legal and
compliance costs and made certain activities more time-consuming and costly. In the future, there
may be material weaknesses in our internal controls that would be required to be reported in future
Annual Reports on Form 10-K and/or Quarterly Reports on Form 10-Q. A negative reaction by the
equity markets to the reporting of a material weakness could cause our stock price to decline. In
addition, if we acquire a company with weak internal controls, it will take time to improve the
internal controls of the acquired company to a satisfactory level of operating effectiveness. Any
failure to improve an acquired companys financial systems could result in delays or inaccuracies
in reporting financial information.
We may be subject to legal claims against us or claims by us which could have a significant impact
on our resulting financial performance.
At any given time, we may be subject to litigation, the disposition of which may have an
adverse affect upon our business, financial condition, or results of operation.
Risks Associated with an Investment in our Common Stock.
The market price of our common stock may be adversely affected by market volatility.
The market price of our common stock has been and is expected to continue to be highly
volatile. A number of factors may have significant impact on the market price of our stock,
including announcements of technological innovations by us or other companies, regulatory matters,
new or existing products or procedures, concerns about our financial position, operating results,
litigation, government regulation, developments or disputes relating to agreements, patents or
proprietary rights. In addition, potential dilutive effects of future sales of shares of common
stock by shareholders and by the Company, including LPC pursuant to this prospectus, and subsequent
sales of common stock by the holders of warrants and options, could have an adverse effect on the
market price of our shares.
The sale or our common stock to LPC may cause dilution and the sale of the shares of common stock
acquired by LPC could cause the price of our common stock to decline.
In connection with entering into the LPC Purchase Agreement, we authorized the sale to LPC of
up to 4,350,000 shares of our common stock and the issuance to LPC of an additional 240,000 shares.
The number of shares ultimately offered for sale by LPC under this prospectus is dependent upon
the number of shares purchased or acquired by LPC under the Agreement. The purchase price for the
common stock to be
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sold
and/or issued to LPC pursuant to the Agreement will fluctuate based on the price of our common stock. All
4,470,000 shares registered in this offering are expected to be freely tradable. The 120,000
shares issued to LPC upon the signing of the Agreement are not part of this offering and will not
be registered. It is anticipated that 4,120,000 shares registered in this offering will be sold to
LPC over a period of up to 25 months from the date of this prospectus. The Warrant for 350,000
shares issued to LPC has an exercise term of five years, but is not exercisable for six (6) months
from the date of issuance. Depending upon market liquidity at the time, a sale of shares under
this offering at any given time could cause the trading price of our common stock to decline. We
can elect to direct purchases in our sole discretion but no sales may occur if the price of our
common stock is below $1.00. Therefore, LPC may ultimately purchase all, some or none of the
4,470,000 shares of common stock not yet issued but registered in this offering, other than the
350,000 shares it shall purchase for $375,000. After it has acquired such shares, it may sell all,
some or none of such shares. Therefore, sales to LPC by us under the Agreement may result in
substantial dilution to the interests of other holders of our common stock. The sale of a
substantial number of shares of our common stock under this offering, or anticipation of such
sales, could make it more difficult for us to sell equity or equity-related securities in the
future at a time and at a price that we might otherwise wish to effect sales. However, we have the
right to suspend and therefore control the timing and amount of any sales of our shares to LPC and
the Agreement may be terminated by us at any time at our discretion without any cost to us.
We have not been in compliance with the continued listing requirements of the NASDAQ Global Market.
From time to time during the last several months, we have not met the NASDAQ Global Market
(NASDAQ) continued listing requirements that call for the maintenance of a minimum bid price of
our common stock of $1.00 per share or a minimum shareholder equity of $10 million. We have
received formal notices of non-compliance from NASDAQ. Although we have regained compliance with
these NASDAQ continued listing requirements, there is a risk that we could again become
non-compliant with these listing requirements. If our common stock bid price does not meet
NASDAQs minimum requirement to remain on the Global Market, we will be required to either revalue
existing shares of common stock or perform other necessary remedial actions. If our shareholder
equity does not meet the minimum requirement, we must raise additional equity, such as through the
transaction with LPC covered by this prospectus, or take other actions. If we are unable to
maintain the minimum requirements for trading on the NASDAQ Global Market, trading in our common
stock, if any, could then be conducted on the NASDAQ Capital Market, in the over-the-counter market
or on the OTC Bulletin Board system. Movement to these markets could result in a reduction of
trading liquidity.
We could issue additional common stock apart from the LPC transaction, which might dilute the book
value of our common stock.
Our Board of Directors has the authority, without action or vote of our shareholders, to issue
all or a part of our authorized but unissued shares. Such stock issuances could be made at a price
that reflects a discount or a premium from the then-current trading price of our common
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stock. In
addition, in order to raise capital or acquire businesses in the future, including future lighting retrofit businesses, we may need
to issue securities or promissory notes that are convertible or exchangeable for shares of our
common stock. These issuances would dilute shareholders percentage ownership interest, which
would have the effect of reducing influence on matters on which our shareholders vote, and might
dilute the book value of our common stock. Shareholders may incur additional dilution if holders
of stock options, whether currently outstanding or subsequently granted, exercise those options, or
if warrant holders exercise warrants purchasing shares of our common stock. If an insufficient
amount of authorized, but unissued, shares of common stock exists to issue in connection with a
subsequent equity financing or acquisition transactions, we may be required to call a special
meeting of our shareholders to authorize additional shares before undertaking, or as a condition to
completing a financing or acquisition transaction.
We may need to request our shareholders to authorize additional shares of common stock in
connection with subsequent equity finance or acquisition transactions.
We are authorized to issue 30,000,000 shares of common stock, of which approximately
21,370,304 shares are issued and outstanding as of March 31, 2010. An additional 7,310,000 shares
have been reserved for issuance upon exercise of stock options and warrants outstanding and under
our Purchase Agreement with LPC. If we require additional shares of common stock in connection
with a subsequent equity financing or acquisition transaction, we may be required to call a special
meeting of our shareholders to authorize additional shares before undertaking or as a condition to
completing an offering or transaction. We cannot be assured that our shareholders would authorize
an increase in the number of shares of our common stock.
Shares eligible for future sale may adversely affect the market for our common stock.
As of December 31, 2009, we had a significant number of convertible or derivative securities
outstanding, including: (i) 1,721,000 shares of common stock issuable upon exercise of outstanding
stock options at a weighted average exercise price of $3.63 per share, and (ii) 4,438,000 shares of
common stock issuable upon exercise of our outstanding warrants at a weighted average exercise
price of $2.84 per share. If or when these securities are exercised into shares of our common
stock, the number of our shares of common stock outstanding will increase. Increases in our
outstanding shares, and any sales of shares, could have an adverse affect on the trading activity
and market price of our common stock.
In addition, from time to time, certain of our shareholders may be eligible to sell all, or a
portion of, their shares of common stock by means of ordinary brokerage transactions in the open
market pursuant to Rule 144, promulgated under the Securities Act of 1933, or under effective
resale prospectuses. Any substantial sale of our common stock pursuant to Rule 144 or any resale
prospectus may have an adverse affect on the market price of our securities.
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As a thinly-traded stock, large sales can place negative pressure on our common stock price.
Our common stock, despite certain increases of trading volume from time to time, experiences
periods when it could be considered thinly-traded. Financing or acquisition transactions
resulting in a large number of newly issued shares that become immediately tradable, or other
events that cause current shareholders to sell shares, could place negative pressure on the trading
price of our stock. In addition, the lack of a robust secondary market may require a shareholder
who desires to sell a large number of shares to sell those shares in increments over time in order
to mitigate any adverse impact of the sales on the market price of our common stock.
Our executive officers, directors, and affiliates maintain the ability to substantially influence
all matters submitted to shareholders for approval.
As March 31, 2010, our executive officers, directors, and affiliates owned shares representing
approximately 32.17% or our outstanding common stock. Our current executive officers, directors,
and affiliates therefore have and will continue to have substantial influence over the outcome of
corporate actions requiring shareholder approval, including the election of directors, a merger,
consolidation, or sale of all or substantially all of our assets, or any other significant
corporate transactions, as well as over our management and affairs. This concentration of
ownership may delay or prevent a change of control of us at a premium price if these shareholders
oppose it, even if it would benefit our other shareholders.
Provisions in our charter documents and our Rights Agreement may prevent or frustrate attempts by
our shareholders to change our management and hinder efforts to acquire a controlling interest in
us.
Provisions of our corporate charter and bylaws, and of our Rights Agreement dated as of
October 25, 2006 with Mellon Shareowner Services, as amended, may discourage, delay, or prevent a
merger, acquisition, or other change in control that shareholders may consider favorable, including
transactions in which you might otherwise receive premium for your shares. These provisions may
also prevent or frustrate attempts by our shareholders to replace or remove our management. These
provisions include:
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limitation on the removal of directors; |
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advanced notice requirements for shareholder proposals and nominations; |
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the inability of shareholders to act by written consent or to call a special meeting; |
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the ability of our board of directors to designate the terms of and issue new series
of preferred stock without shareholder approval; and |
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the poison pill contained in our Rights Agreement. |
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Because the risk factors referred to above, as well as other risks not mentioned above, could
cause actual results or outcomes to differ materially from those expressed in any forward-looking
statements made by us, you should not place undue reliance on any such forward-looking statements.
Further, any forward-looking statement speaks only as of the date on which it is made. We undertake
no obligation to update any forward-looking statement to reflect events or circumstances after the
date on which such statement is made or reflect the occurrence of unanticipated events. New factors
emerge from time to time, and it is not possible for us to predict which ones will arise. In
addition, we cannot assess the impact of each factor on our business or the extent to which any
factor, or combination of factors, may cause actual results to differ materially from those
contained in any forward-looking statements.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended. Such forward-looking statements include statements regarding, among other things, (a) our
projected sales and profitability, (b) our growth strategies, (c) anticipated trends in our
industry, (d) our future financing plans, and (e) our anticipated needs for working capital.
Forward-looking statements, which involve assumptions and describe our future plans, strategies,
and expectations, are generally identifiable by use of the words may, will, should, expect,
anticipate, estimate, believe, intend, or project or the negative of these words or other
variations on these words or comparable terminology. This information may involve known and
unknown risks, uncertainties, and other factors that may cause our actual results, performance, or
achievements to be materially different from the future results, performance, or achievements
expressed or implied by any forward-looking statements. These statements may be found under
Managements Discussion and Analysis of Financial Condition and Results of Operations and
Business in our 2009 Annual Report on Form 10-K, as well as in this prospectus generally. Actual
events or results may differ materially from those discussed in forward-looking statements as a
result of various factors, including, without limitation, the risks outlined under Risk Factors
and matters described in this prospectus generally. In light of these risks and uncertainties,
there can be no assurance that the forward-looking statements contained in this prospectus will in
fact occur. In addition to the information expressly required to be included in this prospectus,
we provide such further material information, if any, as may be necessary to make the required
statements, in light of the circumstances under which they are made, not misleading.
USE OF PROCEEDS
This prospectus relates to shares of our common stock that may be offered and sold from time
to time by the selling shareholder. We will receive no proceeds from the sale of shares of common
stock in this offering. However, we may receive proceeds from
the sale of up to 4,350,000 shares to LPC under the Purchase Agreement, including 350,000 shares
covered by the Warrant issuable to LPC under the Agreement. Any proceeds from LPC that we receive
under the Agreement will be used for working capital and general corporate purposes, including the
implementation of our new business strategy.
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THE TRANSACTION
On March 17, 2010, we executed a Purchase Agreement and a registration rights agreement with
LPC, pursuant to which LPC has agreed to purchase 350,000 shares of our common stock, together with
warrants (Warrant) to purchase 350,000 shares at an exercise price of $1.20 per share, for total
consideration of $375,000. The Warrants have a term of five (5) years and are not exercisable
until six (6) months after they are issued. LPC has also agreed to purchase up to an additional
3,650,000 shares of our common stock at our option as described below. We issued 120,000 shares of
our stock to LPC as consideration for entering into the Agreement, which shares are not included in
this offering.
Pursuant to the registration rights agreement, we have filed a registration statement that
includes this prospectus with the Securities and Exchange Commission (the SEC). The prospectus
covers the 4,000,000 shares that may be sold to LPC under the Purchase Agreement, an additional
120,000 shares that we will issue pro rata as LPC purchases up to the 4,000,000 shares, as directed
by us, and 350,000 shares that may be issued upon exercise of the Warrants, which Warrants are not
exercisable for six (6) months from the date of issuance, for a total of 4,470,000 shares. We do
not have the right to commence any sales of our shares to LPC until the SEC has declared effective
the registration statement of which this prospectus is a part.
Immediately after the SEC has declared effective the registration statement, LPC will purchase
and we will issue to LPC 350,000 shares of common stock (together with 10,500 pro rata commitment
shares in connection with such purchase) and the Warrants to purchase 350,000 shares of common
stock, for total consideration of $375,000.
Thereafter, over approximately 25 months, we have the right to direct LPC to purchase up to
20,000 shares of our common stock as often as every five (5) business days. We can suspend
purchases or accelerate the number of shares to be purchased at any time. No sales of shares may
occur below $1.00 per share. The purchase prices of the shares will be based on the market prices
of our shares at the time of sale as computed under the Purchase Agreement without any fixed
discount. We may at any time in our sole discretion terminate the Purchase Agreement without fee,
penalty, or cost upon five (5) business days notice. Upon entering into the Purchase Agreement
with LPC, we issued 120,000 shares as a commitment fee, which shares are not part of this offering
and which shares we have no obligation to register. We may issue up to an additional 120,000
shares pro rata as LPC purchases the 4,000,000 shares, as directed by us.
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As
of March 31, 2010, there were 21,370,304 shares outstanding,
including 16,056,274 shares
held by non-affiliates, but excluding the 4,470,000 shares offered by LPC pursuant to this
prospectus, which we have not issued. We are offering 4,470,000 shares hereby, consisting of
4,000,000 shares that we may sell to LPC pursuant to the Purchase Agreement, 120,000 shares
issuable pro rata as the 4,000,000 shares are purchased by LPC, and 350,000 shares issuable to LPC
upon its exercise of the Warrants. If all of the 4,470,000 shares offered by LPC hereby were
issued and outstanding as of the date hereof, such shares would represent 17.30% of the total
common stock outstanding, or 21.78% of the non-affiliates shares outstanding, as adjusted, as of
the date hereof. The number of shares ultimately offered for sale by LPC is dependent upon the
number of shares that we sell and issue to LPC under the Purchase Agreement, including shares that
we issue upon exercise of the Warrants.
Purchase of Shares Under the Purchase Agreement
After the registration statement of which this prospectus is a part is declared effective, LPC
shall purchase 350,000 shares of our common stock, together with Warrants to purchase 350,000
shares, for total consideration of $375,000. Thereafter, we have the right to direct LPC to
purchase up to 3,650,000 shares of our common stock, which shares will be purchased in increments
of 5,000 to up to 20,000 shares as determined by us, as often as every five business (5) days, as
directed by us during the 25-month term of the Purchase Agreement. Any such purchases shall be
completed within five (5) business days of our direction to LPC.
We have the right to terminate the Agreement with LPC at any time, as described below. We
have the right at our discretion to suspend purchases at any time and to direct LPC to again make
purchases at our discretion.
In addition to regular purchases of 5,000 to 20,000 shares as often as every five (5) business
days, purchases may be accelerated by us by directing LPC to purchase up to an additional 10,000
shares of our common stock (an Accelerated Purchase.). We can direct LPC to make multiple
Accelerated Purchases from time to time and at our sole discretion, so long as at least two (2)
business days have passed since the most recent Accelerated Purchase was completed. Any such
Accelerated Purchases must be completed within five (5) business days of our direction to LPC. LPC
shall also purchase up to an equivalent number of shares under any regular purchase or Accelerated
Purchase within five (5) business days of any such purchase. LPC may therefore be purchasing
approximately 80,000 shares every five (5) business days, depending on the number of shares we
direct LPC to purchase.
Purchase Price
The purchase price per share is equal to the lesser of:
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the lowest sale price of our common stock on the purchase date; or |
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the average of the three (3) lowest closing sale prices of our common
stock during the ten (10) consecutive business days prior to the date of a
purchase by LPC. |
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The purchase price will be equitably adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, or other similar transaction occurring during the business days used to
compute the purchase price.
Minimum Purchase Price
Under the Purchase Agreement, we have set a minimum purchase price (floor price) of $1.00.
LPC shall not have the right nor the obligation to purchase any shares of our common stock in the
event that the purchase price would be less the floor price. Specifically, LPC shall not have the
right or the obligation to purchase shares of our common stock on any business day that the market
price of our common stock is below the floor price.
Events of Default
Generally, LPC may terminate the Purchase Agreement without any liability or payment to the
Company upon the occurrence of any of the following events of default:
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the effectiveness of the registration statement of which this prospectus is a part
lapses for any reason, including without limitation the issuance of a stop order, or is
unavailable to LPC for sale of our common stock offered hereby, and such lapse or
unavailability continues for a period of ten (10) consecutive business days or for more
than an aggregate of thirty (30) business days in any 365-day period; |
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the suspension by our principal market of our common stock from trading for a period of
three (3) consecutive business days; |
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the de-listing of our common stock from our principal market, provided our common stock
is not immediately thereafter trading on the NASDAQ OTC Bulletin Board Market, the NASDAQ
Capital Market, the New York Stock Exchange or the NYSE AMEX; |
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the transfer agents failure for five (5) business days to issue to LPC shares of our
common stock which LPC is entitled to under the Purchase Agreement; |
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any material breach of the representations or warranties or covenants contained in the
Purchase Agreement or any related agreements which has or which could have a material
adverse effect on us, subject to a cure period of five (5) business days; |
|
|
|
|
any participation or threatened participation in insolvency or bankruptcy proceedings
by or against us; or |
|
|
|
|
a material adverse change in our business. |
21
Our Termination Rights
We have the unconditional right at any time for any reason to give notice to LPC terminating
the Purchase Agreement without any cost to us.
No Short-Selling or Hedging by LPC
LPC has agreed that neither it nor any of its affiliates shall engage in any direct or
indirect short-selling or hedging of our common stock during any time prior to the termination of
the Purchase Agreement.
Effect of Performance of the Purchase Agreement on Our Shareholders
All 4,470,000 shares registered in this offering are expected to be freely tradable. It is
anticipated that shares registered in this offering will be sold over a period of up to 25 months
from the date of this prospectus, except perhaps for the 350,000 shares covered by the Warrants.
The sale by LPC of a significant amount of shares registered in this offering at any given time
could cause the market price of our common stock to decline and to be highly volatile. LPC may
ultimately purchase all, some or none of the 4,470,000 shares of common stock not yet issued but
registered in this offering. After it has acquired such shares, it may sell all, some or none of
such shares. Therefore, sales to LPC by us under the Purchase Agreement may result in substantial
dilution to the interests of other holders of our common stock. However, we have the right to
control the timing and amount of any sales of our shares to LPC and the Agreement may be terminated
by us at any time at our discretion without any cost to us.
In connection with entering into the Purchase Agreement, we authorized the sale to LPC of up
to 4,000,000 shares of our common stock, exclusive of the 350,000 Warrant shares that are not
exercisable for six (6) months from the date of issuance and the 240,000 commitment shares of which
up to 120,000 are part of this offering. We will sell no more than 4,000,000 shares to LPC under
the Purchase Agreement, exclusive of the up to 240,000 shares issuable to LPC as the commitment fee
and of the 350,000 shares covered by the Warrants, all of which are included in this offering. We
have the right to terminate the Agreement without any payment or liability to LPC at any time,
including in the event that all 4,000,000 shares are sold to LPC under the Purchase Agreement.
The number of shares ultimately offered for sale by LPC under this prospectus is dependent upon the
number of shares purchased by LPC under the Agreement. The following table sets forth the amount
of proceeds we would receive from LPC from the sale of shares at varying purchase prices:
22
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of |
|
|
|
|
|
|
|
|
Outstanding Shares |
|
Proceeds from the |
|
|
Number of Shares to |
|
After Giving Effect |
|
Sale of Shares |
Assumed Average |
|
be Issued if Full |
|
to the Issuance to |
|
to LPC Under the |
Purchase Price |
|
Purchase |
|
LPC(1) |
|
Purchase Agreement |
$1.00(2) |
|
|
4,000,000 |
|
|
|
15.77 |
% |
|
$ |
4,000,000 |
|
$1.19(3) |
|
|
4,000,000 |
|
|
|
15.77 |
% |
|
$ |
4,760,000 |
|
$1.25 |
|
|
4,000,000 |
|
|
|
15.77 |
% |
|
$ |
5,000,000 |
|
$1.50 |
|
|
4,000,000 |
|
|
|
15.77 |
% |
|
$ |
6,000,000 |
|
$1.75 |
|
|
4,000,000 |
|
|
|
15.77 |
% |
|
$ |
7,000,000 |
|
$2.00 |
|
|
4,000,000 |
|
|
|
15.77 |
% |
|
$ |
8,000,000 |
|
$2.25 |
|
|
4,000,000 |
|
|
|
15.77 |
% |
|
$ |
9,000,000 |
|
|
|
|
(1) |
|
The denominator is equal to the sum of (a) 21,370,304 shares, which is the
number of shares outstanding as of April 16, 2010 and which includes the 120,000
shares previously issued to LPC, which shares are not a part of this offering, and (b)
the number of shares set forth in the adjacent column to the left. The numerator is
the number of shares issuable under the Purchase Agreement at the corresponding
assumed purchase price set forth in the adjacent column to the left. |
|
(2) |
|
Under the Purchase Agreement, the company may not sell and LPC cannot
purchase any shares in the event the price of our stock is below $1.00 |
|
(3) |
|
Closing sale price of our shares on April 16, 2010. |
23
THE SELLING SHAREHOLDER
The following table presents information about the selling shareholder. Neither the selling
shareholder nor any of its affiliates has held a position or office, or had any other material
relationship, with us.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares to be Sold in |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
the Offering |
|
|
|
|
|
|
|
|
|
|
Percentage of |
|
|
Assuming the |
|
|
Percentage of |
|
|
|
Shares |
|
|
Outstanding |
|
|
Company Issues the |
|
|
Outstanding |
|
|
|
Beneficially |
|
|
Shares |
|
|
Maximum Number |
|
|
Shares |
|
|
|
Owned |
|
|
Beneficially |
|
|
of Shares Under the |
|
|
Beneficially |
|
Selling |
|
Before |
|
|
Owned Before |
|
|
Purchase |
|
|
Owned After |
|
Shareholder |
|
Offering |
|
|
Offering |
|
|
Agreement |
|
|
Offering |
|
Lincoln Park
Capital Fund, LLC
(1) |
|
|
120,000 |
(2) |
|
|
0.56 |
%(1) |
|
|
4,470,000 |
|
|
|
0.47 |
%(1) |
|
|
|
(1) |
|
Josh Scheinfeld and Jonathan Cope, the principals of LPC, are deemed to be beneficial
owners of all of the shares of common stock owned by LPC. Messrs. Scheinfeld and Cope have
shared voting and disposition power over the shares being offered under this prospectus. |
|
(2) |
|
120,000 shares of our common stock have been previously acquired by LPC under the
Purchase Agreement, consisting of shares we issued to LPC as a commitment fee, which shares
are not part of this offering. |
PLAN OF DISTRIBUTION
The common stock offered by this prospectus is being offered by Lincoln Park Capital Fund,
LLC, the selling shareholder. The common stock may be sold or distributed from time to time by the
selling stockholder directly to one or more purchasers or through brokers, dealers, or underwriters
who may act solely as agents at market prices prevailing at the time of sale, at prices related to
the prevailing market prices, at negotiated prices, or at fixed prices, which may be changed. The
sale of the common stock offered by this prospectus may be effected in one or more of the following
methods:
|
|
|
ordinary brokers transactions; |
|
|
|
|
transactions involving cross or block trades; |
|
|
|
|
through brokers, dealers, or underwriters who may act solely as agents; |
|
|
|
|
at the market into an existing market for the common stock; |
|
|
|
|
in other ways not involving market makers or established business markets, including
direct sales to purchasers or sales effected through agents; |
|
|
|
|
in privately negotiated transactions; or |
|
|
|
|
any combination of the foregoing. |
24
In order to comply with the securities laws of certain states, if applicable, the shares may
be sold only through registered or licensed brokers or dealers. In addition, in certain states,
the shares may not be sold unless they have been registered or qualified for sale in the state or
an exemption from the registration or qualification requirement is available and complied with.
Brokers, dealers, underwriters, or agents participating in the distribution of the shares as
agents may receive compensation in the form of commissions, discounts, or concessions from the
selling shareholder and/or purchasers of the common stock for whom the broker-dealers may act as
agent. The compensation paid to a particular broker-dealer may be less than or in excess of
customary commissions.
LPC is an underwriter within the meaning of the Securities Act.
Neither we nor LPC can presently estimate the amount of compensation that any agent will
receive. We know of no existing arrangements between LPC, any other shareholder, broker, dealer,
underwriter, or agent relating to the sale or distribution of the shares offered by this
prospectus. At the time a particular offer of shares is made, a prospectus supplement, if
required, will be distributed that will set forth the names of any agents, underwriters, or dealers
and any compensation from the selling shareholder, and any other required information.
We will pay all of the expenses incident to the registration, offering, and sale of the shares
to the public other than commissions or discounts of underwriters, broker-dealers, or agents. We
have also agreed to indemnify LPC and related persons against specified liabilities, including
liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers, and controlling persons, we have been advised that in the opinion of
the SEC this indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable.
LPC and its affiliates have agreed not to engage in any direct or indirect short selling or
hedging of our common stock during the term of the Purchase Agreement.
We have advised LPC that while it is engaged in a distribution of the shares included in this
prospectus, it is required to comply with Regulation M promulgated under the Securities Exchange
Act of 1934, as amended. With certain exceptions, Regulation M precludes the selling shareholder,
any affiliated purchasers, and any broker-dealer or other person who participates in the
distribution from bidding for or purchasing, or attempting to induce any person to bid for or
purchase, any security which is the subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made
in order to stabilize the price of a security in connection with the distribution of that
security.All of the foregoing may affect the marketability of the shares offered hereby this prospectus.
25
This offering will terminate on the date that all shares offered by this prospectus have been
sold by LPC.
LEGAL MATTERS
The validity of the common stock offered in this prospectus has been passed upon for us by
Cowden & Humphrey Co. LPA, 4600 Euclid Avenue, Suite 400, Cleveland, Ohio 44103-3748.
EXPERTS
The financial statements, as of and for the years ended December 31, 2009 incorporated by
reference in this prospectus and Registration Statement have been audited by Plante & Moran, PLLC,
an independent registered public accounting firm, as stated in their report incorporated herein by
reference, and are incorporated in reliance upon such report and upon the authority of such firm as
experts in accounting and auditing.
The financial statements and schedule as of December 31, 2008 and for the years ended December
31, 2008 and 2007, before the effects of the retrospective adjustments for the discontinued
operations discussed in Note 4 and the retrospective adjustments for the change in the composition
of reportable segments discussed in Note 13 (not separately incorporated by reference in this
Prospectus and elsewhere in the registration statement), have been audited by Grant Thornton LLP,
independent registered public accountants, as indicated in their report with respect thereto and
are included herein in reliance upon the authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC.
This prospectus does not contain all of the information included in the registration statement. For
further information about us and our securities, you should refer to the registration statement and
the exhibits filed with the registration statement.
We are subject to the information requirements of the Securities Exchange Act of 1934 and file
annual, quarterly and current reports, proxy statements and other information with the SEC. You can
read our SEC filings, including the registration statement, over the internet at the SECs website
at www.sec.gov or through our website at www.efoi.com. Information contained on our
website is not considered to be a part of, nor incorporated by reference in, this prospectus. You
may also read and copy any document we file with the SEC at its Public Reference Room at 100 F Street, NE, Washington,
D.C. 20549.
26
You may also obtain copies of the documents at prescribed rates by writing to the Public
Reference Room of the SEC at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the Public Reference Room.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information that we file with them, which
means that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be an important part of this prospectus.
Later information that we file with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below, any filings that we make with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Security Exchange Act of 1934 after the
date of the initial registration statement and prior to the effectiveness of the registration
statement, and any future filing we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934 prior to the termination of the offering. The documents that we
incorporate by reference are:
(a) |
|
Our annual report on Form 10-K for our fiscal year ended December 31,
2009, SEC File No. 000-24230. |
|
(b) |
|
Our current reports on Form 8-K, SEC File No. 000-24230, filed with
the SEC on January 5, 2010, January 7, 2010, January 28, 2012, March
3, 2010, March 19, 2010, and April 7, 2010. |
|
(c) |
|
A description of our Common Stock, Preferred Stock, and Series A
Participating Preferred Stock Purchase Rights contained in our current
report on Form 8-K, SEC File No. 000-24230, and any amendment or
report filed for the purpose of updating that description filed
subsequent to the date of this prospectus and prior to the termination
of this offering. |
You may request a copy of these filings, at no cost, by writing or telephoning us at the
following address: Energy Focus, Inc., 32000 Aurora Road, Solon, Ohio 44139; telephone number
440.715.1300.
You should rely only on the information incorporated by reference or provided in this
prospectus or any supplement. We have not authorized anyone else to provide you with different
information. We will not make offers to sell these shares in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any supplement is
accurate as of any date other that the date on the front of those documents.
27
ENERGY FOCUS, INC.
4,470,000 Shares of Common Stock
PROSPECTUS
April [___], 2010
28
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses payable by us in connection with the
preparation and filing of this registration statement. All amounts are estimates subject to future
contingencies except the SEC registration statement filing fee.
|
|
|
|
|
SEC Filing Fee |
|
$ |
379.27 |
|
|
|
|
|
|
Accounting Fees and Expenses |
|
$ |
10,000.00 |
|
Legal Fees and Expenses |
|
$ |
25,000.00 |
|
Printing and Engraving Expenses |
|
$ |
1,000.00 |
|
Transfer Agent and Registrar Fees |
|
$ |
1,000.00 |
|
Miscellaneous |
|
$ |
1,000.00 |
|
|
|
|
|
|
|
|
|
|
Total Expenses |
|
$ |
38,379.27 |
|
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
General Corporation Law
We are incorporated under the laws of the State of Delaware. Section 145 (Section 145) of
the General Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended (the General Corporation Law), among other things, provides that a Delaware corporation
may indemnify any persons who were, are or are threatened to be made, parties 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 such corporation), by reason of the fact
that such person is or was an officer, director, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporations best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct
was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to
be made, a party to any threatened, pending or completed action or suit by or in the right of the
corporation by reasons of the fact that such person was a director, officer, employee or agent of
such corporation or enterprise. The indemnity may include expenses (including attorneys fees)
actually and reasonably incurred by such person in connection with the defense or settlement of
such action or suit, provided such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporations best interests,
II-1
provided that no indemnification is permitted without judicial approval if the officer, director,
employee or agent is adjudged to be liable to the corporation. Where an officer, director,
employee or agent is successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such officer or director has
actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of
any person who 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 or agent of another
corporation or enterprise, against any liability asserted against him and incurred by him in any
such capacity, arising out of his status as such, whether or not the corporation would otherwise
have the power to indemnify him under Section 145.
Section 102 of the General Corporation Law permits a corporation to eliminate the personal
liability of directors of a corporation to the corporation or its stockholders for monetary damages
for a breach of fiduciary duty as a director, except where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a
law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit.
Certificate of Incorporation and Bylaws
Article XI and Article XII of our certificate of incorporation (the Certificate) provides
that the liability of our officers and directors shall be eliminated or limited to the fullest
extent authorized or permitted by the General Corporation law. Under the General Corporation Law,
the directors have a fiduciary duty to us which is not eliminated by these provisions of the
Certificate and, in appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available to us. These provisions also do not affect the
directors responsibilities under any other laws, such as the federal securities laws or state or
federal environmental laws.
Article VI of our bylaws provides that we 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
proceedings, whether civil, criminal, administrative or investigative (other than an action by us
or in our right), by reason of the fact that such person is or was a director or officer of us, or
is or was a director or officer of us serving at our request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonable incurred by such person in connection with such action, suit or proceeding.
Article VI of our bylaws further provides that in the event a director or officer has to bring
suit against us for indemnification and is
II-2
successful, we will pay such directors or officers
expenses of prosecuting such claim; that indemnification provided for
by the bylaws shall not be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that we may purchase and maintain insurance on behalf of a director or officer
against any liability asserted such officer or director and incurred by such officer or director in
such capacity, whether or not we would have the power to indemnify such director or office against
such expense or liability under the General Corporation Law.
At present, there is no pending litigation or proceeding involving any director, officer,
employee or agent as to which indemnification will be required or permitted under our Certificate
of bylaws. We are not aware of any threatened litigation or proceeding that may result in a claim
for indemnification.
We have entered into indemnification agreements with certain of our officers, directors and
key employees.
Liability Insurance
Our directors and officers are covered under directors and officers liability insurance
policies maintained by us, insuring such persons against various liabilities.
Undertaking
Reference is made to Undertakings below, for our undertakings in this registration statement
with respect to indemnification of liabilities arising under the Securities Act of 1933.
ITEM 16. EXHIBITS.
|
|
|
Exhibit |
|
|
Number |
|
Description of Documents |
4.1
|
|
Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Registrants Current Report on Form 8-K
filed on November 27, 2006). |
|
|
|
4.2
|
|
Rights Agreement dated as of October 25, 2006 between the
Registrant and Mellon Investor Services, LLC, as Rights Agent
(incorporated by reference to Exhibit 4.2 to the Registrants
Current Report on Form 8-K filed on November 27, 2006). |
|
|
|
4.3
|
|
Amendment No. 1 to Rights Agreement between the Registrant and
Mellon Investor Services, LLC, as Rights Agent, dated as of
March 12, 2008 (incorporated by reference to Exhibit 3.1 to
the Registrants Current Report on Form 8-K filed on March 19,
2009). |
II-3
|
|
|
Exhibit |
|
|
Number |
|
Description of Documents |
4.4
|
|
Amendment No. 2 to the Rights Agreement between the Registrant
and Mellon Investor Services, LLC, as Rights Agent, dated as
of December 31, 2009 (incorporated by reference to Exhibit 4.7
to the Registrants Current Report on Form 10-K filed on March
31, 2010). |
|
|
|
4.5
|
|
Form of Common Stock Purchase Warrant No. 2010LPCFW-01 for the
purchase of 350,000 shares of common stock (incorporated by
reference to Exhibit 10.3 to the Registrants Current Report
on Form 10-K filed on March 19, 2010). |
|
|
|
5.1
|
|
Opinion of Cowden & Humphrey Co. LPC, including the consent of
the firm, regarding the legality of the securities being
offered. |
|
|
|
10.1
|
|
Purchase Agreement between the Registrant and Lincoln Park
Capital Fund, LLC dated March 17, 2010 (incorporated by
reference to Exhibit 10.1 to the Registrants Current Report
on Form 8-K filed on March 19, 2010). |
|
|
|
10.2
|
|
Registration Rights Agreement between the Registrant and
Lincoln Park Capital Fund, LLC dated March 17, 2010
(incorporated by reference to Exhibit 10.2 to the Registrants
Current Report on Form 8-K filed on March 19, 2010). |
|
|
|
23.1
|
|
Consent of Plante & Moran, PLLC, Independent Registered Public
Accounting Firm. |
|
|
|
23.2
|
|
Consent of Grant Thornton, LLP, Independent Registered Public
Accounting Firm. |
|
|
|
23.3
|
|
Consent of Cowden & Humphrey Co. LPA (included in Exhibit 5.1). |
|
|
|
24.1
|
|
Powers of Attorney (included on signature pages to this
Registration Statement). |
ITEM 17. UNDERTAKINGS
a. The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in the
II-4
registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
Provided however, that Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do
not apply if the registration statement is on Form S-3 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
2. That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
4. That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration statement as of the
earlier of
II-5
the
date such form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to
which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was
made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date; or
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it
is first used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first use.
5. That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
II-6
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
6. To file an application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulation s prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
b. The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plans annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-7
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 caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Solon, State of Ohio, on the 20th day of April, 2010.
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ENERGY FOCUS, INC.
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By: |
/s/
Joseph G. Kaveski |
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Joseph G. Kaveski |
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Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Joseph G. Kaveski, Nicholas G. Berchtold, and John M. Davenport, and each of them, his
true and lawful attorneys-in-fact and agents, each with full power of substitution and
re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments, including post-effective amendments, to this registration statement, and to
file the same, with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date indicated:
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Name |
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Title |
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Date |
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Chief Executive Officer and
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April 20, 2010 |
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Joseph G. Kaveski
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Director
(Principal Executive Officer) |
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President and Director
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April 20, 2010 |
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John M. Davenport |
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Vice President Finance and
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April 20, 2010 |
/s/ Nicholas G. Berchtold
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Nicholas G. Berchtold
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Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer) |
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Name |
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Title |
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Date |
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Lead Director
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April 20, 2010 |
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Paul von Paumgartten |
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Director
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April 20, 2010 |
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David Anthony |
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Director
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April 20, 2010 |
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J. James Finnerty |
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Director
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April 20, 2010 |
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Michael A. Kasper |
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Director
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April 20, 2010 |
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David N. Ruckert |
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Director
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April 20, 2010 |
/s/ R. Louis Schneeberger
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R. Louis Schneeberger |
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Director
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April 20, 2010 |
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Philip E. Wolfson |
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Energy Focus, Inc.
II-9
Form S-3
Index to Exhibits
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Exhibit |
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Number |
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Description of Documents |
5.1
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Opinion of Cowden & Humphrey
Co. LPA, including the consent
of the firm, regarding the legality of the securities being
offered. |
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23.1
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Consent of Plante & Moran, PLLC, Independent Registered
Public Accounting Firm. |
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23.2
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Consent of Grant Thornton, LLP, Independent Registered
Public Accounting Firm. |
II-10