As filed with the Securities and Exchange Commission on June 13, 2002
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
REGISTRATION STATEMENT
ON
FORM S-3
UNDER THE SECURITIES ACT OF 1933
--------------------
ODETICS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 95-2588496
(State or other jurisdiction of (I.R.S. Employer
incorporation) Identification Number)
1515 South Manchester Avenue
Anaheim, California 92802
(714) 774-5000
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
--------------------
GREGORY A. MINER
Chief Executive Officer and Chief Financial Officer
Odetics, Inc.
1515 South Manchester Avenue
Anaheim, California 92802
(714) 774-5000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
--------------------
Copy to:
Ellen S. Bancroft, Esq.
Patty H. Le, Esq.
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
(949) 790-6300
--------------------
Approximate date of commencement of proposed sale to the public:
from time to 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. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------------------------------
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Shares to be Offering Price Aggregate Registration
to be Registered Registered per Share(1) Offering Price(1) Fee
------------------------------------------- ------------------ ----------------------- ---------------------- -----------------
Class A common stock, 67,419 shares $1.39 $93,713 $8.63
$0.10 par value per share (including
associated preferred stock purchase
rights)
===============================================================================================================================
(1) Estimate based upon the average of the high and low sales prices of the
Registrant's Class A common stock on June 11, 2002, as reported by the
Nasdaq SmallCap Market, pursuant to Rule 457(c) promulgated under the
Securities Act of 1933, as amended.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
67,419 Shares
ODETICS, INC.
Class A Common Stock
This prospectus relates to the public offering, which is not being
underwritten, of a total of 67,419 shares of the Class A Common Stock of
Odetics, Inc. by Leitch Technology International, Inc. The price at which the
selling stockholder may sell the shares will be determined by the prevailing
market price for the shares or in negotiated transactions. We will not receive
any of the proceeds from the sale of these shares.
We have two classes of common stock outstanding -- the Class A common stock
and the Class B common stock. The rights, preferences and privileges of each
class of common stock are identical in all respects except for voting rights. As
of the date of this prospectus, the holders of the Class A common stock are
entitled to elect 25% of the Board of Directors rounded up to the nearest whole
number, or two directors, and the holders of the Class A common stock and the
Class B common stock, voting together as a single class, are entitled to elect
the balance of the Board, or six directors. On all other matters to be addressed
by a stockholder vote, the holders of Class A common stock have one-tenth of one
vote per share held and the holders of Class B common stock have one vote per
share held.
Our Class A common stock and our Class B common stock are quoted on the
Nasdaq SmallCap Market under the symbol "ODETA" and "ODETB," respectively. On
June 11, 2002, the last reported sale price for the Class A common stock was
$1.39 per share and the last reported sale price for the Class B common stock
was $1.89 per share.
----------------------------
You should carefully consider the risk factors beginning on page 2 of this
prospectus before purchasing any of the Class A common stock offered by this
prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is June 13, 2002.
ODETICS
Odetics, Inc. provides products and systems that employ information
technology to control the use of public roadways, secure ingress and egress of
public and private facilities, and secure the delivery of digital
communications. We have three separate business segments, which we define as (1)
intelligent transportation systems ("ITS"), (2) video products, which include
products for the television broadcast and video security markets, and (3)
telecommunications products. Each of these business segments is operated by one
or more separate subsidiaries.
The ITS segment consists of our majority-owned subsidiary, Iteris, Inc. The
video products segment includes our wholly-owned subsidiaries, Broadcast, Inc.
and MAXxess Systems, Inc. (previously known as Gyyr Incorporated). The
telecommunications products segment consists of Zyfer, Inc., our wholly-owned
subsidiary (formerly known as our Communications division) and prior to
September 2001, also included Mariner Networks, Inc., another of our
wholly-owned subsidiaries. In connection with continued cost control efforts and
the slowdown in the telecommunications industry, our Board of Directors approved
the immediate discontinuation of Mariner Networks, Inc. in September 2001.
In April 2001, Gyyr separated its operations into two divisions, the Gyyr
CCTV Products division, which manufactures analog and digital storage solutions,
and the Gyyr Electronic Access Control division, which manufactures enterprise
security management systems. In September 2001, we sold substantially all of the
assets and certain of the liabilities of the Gyyr CCTV Products division. In
connection with the sale, we changed the name of Gyyr to MAXxess Systems, Inc.
to reflect the focus of the business on Electronic Access Control systems. Also
in September 2001, as a result of the sale of the Gyyr CCTV Products division
and the discontinuation of Mariner Networks, Inc., we discontinued the
operations of some of our European subsidiaries, namely Odetics Europe Ltd.,
MAXxess Europe Ltd., Mariner France and Mariner Europe Ltd., and we are in the
process of transitioning our Broadcast and MAXxess international operations to
branch office operations.
Our principal executive offices are located at 1515 South Manchester
Avenue, Anaheim, California 92802, and our telephone number is (714) 774-5000.
RISK FACTORS
Our business is subject to a number of risks, some of which are discussed
below. Other risks are presented elsewhere in this prospectus and in the
information incorporated by reference into the prospectus. You should consider
the following risks carefully in addition to the other information contained in
this prospectus (including the information incorporated by reference) before
purchasing the shares of our common stock. The risks and uncertainties described
below are not the only ones facing our company. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may
also affect our business operations. If any of these risks actually occur, our
business, financial condition or results of operations could be seriously
harmed. In that event, the market price for our common stock could decline and
you may lose all or part of your investment.
2
Before deciding to invest in our company or to maintain or increase your
investment, you should carefully consider the risks described below, in addition
to the other information contained in this Prospectus and in our other filings
with the SEC, including our Annual Report on Form 10-K/A for the year ended
March 31, 2001, as well as our subsequent reports on Forms 10-Q and 8-K.
We Have Experienced Substantial Losses and Expect Future Losses. We
experienced net losses of $25.3 million for the nine months ended December 31,
2001, $49.8 million for the year ended March 31, 2001, $38.7 million for the
year ended March 31, 2000 and $2.2 million for the quarter ended March 31, 2002.
In January 2001, we announced the reorganization of our business in order to
reduce our operating expenses and negative cash flow, which included the
downsizing of our operations in Gyyr and Broadcast, and a 25% reduction in our
total work force. In the second fiscal quarter of 2001, we experienced further
downsizing in connection with our sale of the Gyyr CCTV Products division and
the discontinuation of the business of our Mariner Networks subsidiary. We
cannot assure you that our efforts to downsize our operations will improve our
financial performance, or that we will be able to achieve profitability on a
quarterly or annual basis in the future. Most of our expenses are fixed in
advance, and we generally are unable to reduce our expenses significantly in the
short-term to compensate for any unexpected delay or decrease in anticipated
revenues. As a result, we may continue to experience losses, which would make it
difficult to fund our operations and achieve our business plan, and could cause
the market price of our common stock to decline.
We Will Need to Raise Additional Capital in the Future and May Not Be Able
to Secure Adequate Funds on Terms Acceptable to Us, or at All. We have generated
significant net losses in recent periods, and have experienced negative cash
flows from operations in the amount of $16.8 million for the nine months ended
December 31, 2001, and $20.1 million for the year ended March 31, 2001. Although
we completed the sale of our Anaheim, California property in May 2002, the
majority of the proceeds of such sale was used to repay outstanding short-term
indebtedness. We anticipate that we will need to raise additional capital in the
future. Our Iteris subsidiary currently maintains a $5.0 million line of credit,
which expires in August 2004. Substantially all of the assets of Iteris have
been pledged to the lender to secure the outstanding indebtedness under this
facility (although there were no amounts outstanding under the line of credit at
June 12, 2002). Even though we retired our bank line of credit in the quarter
ended December 31, 2001, we also incurred cash obligations in the amount of $3.0
million payable over the next seven months related to our discontinuation of
Mariner Networks and the reorganization of our European operations. We plan to
raise additional capital in the near future, either through bank borrowings,
other debt or equity financings, or the divestiture of business units or select
assets. We cannot assure you that any additional capital will be available on a
timely basis, on acceptable terms, or at all. These conditions, together with
our recurring losses and cash requirements, raise substantial doubt about our
ability to continue as a going concern.
Our capital requirements will depend on many factors, including:
. our ability to control costs;
. market acceptance of our products and the overall level of sales of our
products;
3
. our ability to generate operating income;
. increased research and development funding, and required investments in
our business units;
. increased sales and marketing expenses;
. technological advancements and our competitors' response to our
products;
. capital improvements to new and existing facilities;
. potential acquisitions of businesses and product lines;
. our relationships with customers and suppliers; and
. general economic conditions including the effects of the current
economic slowdown and international conflicts.
If our capital requirements are materially different from those currently
planned, we may need additional capital sooner than anticipated. If additional
funds are raised through the issuance of equity or convertible debt securities,
the percentage ownership of our stockholders will be reduced and such securities
may have rights, preferences and privileges senior to our common stock.
Additional financing may not be available on favorable terms or at all. If
adequate funds are not available or are not available on acceptable terms, we
may be unable to continue our operations as planned, or at all, develop or
enhance our products, expand our sales and marketing programs, take advantage of
future opportunities or respond to competitive pressures.
The Trading Price of Our Common Stock Is Volatile. The trading price of our
common stock has been subject to wide fluctuations in the past. Since January
2000, our Class A common stock has traded at prices as low as $1.05 per share
and as high as $29.44 per share. In April 2002, because we failed to meet the
minimum stockholder's equity requirement for continued listing on the Nasdaq
National Market, our common stock was delisted from the Nasdaq National Market
and subsequently approved for listing on the Nasdaq SmallCap Market. If our
stock price continues to decline or declines below $1.00 per share for a period
of time, our common stock could be subject to delisting from the Nasdaq SmallCap
Market and there may not be a market for our stock. We may not be able to
increase or sustain the current market price of our common stock in the future.
As such, you may not be able to resell your shares of common stock at or above
the price you paid for them. The market price of our common stock could continue
to fluctuate in the future in response to various factors, including, but not
limited to:
. quarterly variations in operating results;
. our ability to control costs and improve cash flow;
. shortages announced by suppliers;
4
. announcements of technological innovations or new products by our
competitors, customers or us;
. acquisitions or businesses, products or technologies;
. changes in pending litigation or new litigation;
. changes in investor perceptions;
. our ability to spin-off any business unit;
. applications or product enhancements by us or by our competitors; and
. changes in earnings estimates or investment recommendations by
securities analysts.
The stock market in general has recently experienced volatility, which has
particularly affected the market prices of equity securities of many high
technology companies. This volatility has often been unrelated to the operating
performance of these companies. These broad market fluctuations may adversely
affect the market price of our common stock. In the past, companies that have
experienced volatility in the market price of their securities have been the
subject of securities class action litigation. If we were to become the subject
of a class action lawsuit, it could result in substantial losses and divert
management's attention and resources from other matters.
We Depend on Government Contracts and Subcontracts and Face Additional
Risks Related to Fixed Price Contracts. A significant portion of the sales by
Iteris and a portion of our sales by Zyfer were derived from contracts with
governmental agencies, either as a general contractor, subcontractor or
supplier. Government contracts represented approximately 25%, 26% and 38% of our
total net sales and contract revenues for the years ended March 31, 2000, 2001
and 2002, respectively, and 36% for the nine months ended December 31, 2001. We
anticipate that revenue from government contracts will continue to increase in
the near future. Government business is, in general, subject to special risks
and challenges, including:
. long purchase cycles or approval processes;
. competitive bidding and qualification requirements;
. performance bond requirements;
. changes in government policies and political agendas;
. delays in funding, budgetary constraints and cut-backs; and
. milestone requirements and liquidated damage provisions for failure to
meet contract milestones.
In addition, a large number of our government contracts are fixed price
contracts. As a result, we may not be able to recover for any cost overruns.
These fixed price contracts require
5
us to estimate the total project cost based on preliminary projections of the
project's requirements. The financial viability of any given project depends in
large part on our ability to estimate these costs accurately and complete the
project on a timely basis. In the event our costs on these projects exceed the
fixed contractual amount, we will be required to bear the excess costs. These
additional costs adversely affect our financial condition and results of
operations. Moreover, certain of our government contracts are subject to
termination or renegotiation at the convenience of the government, which could
result in a large decline in our net sales in any given quarter. Our inability
to address any of the foregoing concerns or the loss or renegotiation of any
material government contract could seriously harm our business, financial
condition and results of operations.
We are Exposed to the Risks Associated with the Recent Worldwide Economic
Slowdown and Related Uncertainties. Concerns about inflation, decreased consumer
confidence, reduced corporate profits and capital spending, and recent
international conflicts and terrorist and military actions have resulted in a
downturn in worldwide economic conditions, particularly in the United States. As
a result of these unfavorable economic conditions, we have experienced a
slowdown in customer orders, cancellations and rescheduling of backlog and
higher overhead costs. In addition, recent political and social turmoil related
to international conflicts and terrorist acts can be expected to put further
pressure on economic conditions in the U.S. and worldwide. These political,
social and economic conditions make it extremely difficult for our customers,
our suppliers and us to accurately forecast and plan future business activities.
If such conditions continue or worsen, our business, financial condition and
results of operations will likely be materially and adversely affected.
Our Quarterly Operating Results Fluctuate as a Result of Many Factors. Our
quarterly revenues and operating results have fluctuated and are likely to
continue to vary from quarter to quarter due to a number of factors, many of
which are not within our control. Factors that could affect our revenues
include, among others, the following:
. our ability to raise additional capital;
. our significant investment in research and development for our
subsidiaries and business units;
. our ability to control costs;
. international conflicts and acts of terrorism;
. our ability to develop, introduce, market and gain market acceptance of
new products applications and product enhancements in a timely manner;
. the size, timing, rescheduling or cancellation of significant customer
orders;
. the introduction of new products by competitors;
. the availability of components used in the manufacture of our products;
6
. changes in our pricing policies and the pricing policies by our
suppliers and competitors, pricing concessions on volume sales, as well
as increased price competition in general;
. the long lead times associated with government contracts or required by
vehicle manufacturers;
. our success in expanding and implementing our sales and marketing
programs;
. the effects of technological changes in our target markets;
. our relatively small level of backlog at any given time;
. the mix of sales among our business units;
. deferrals of customer orders in anticipation of new products,
applications or product enhancements;
. the risks inherent in our acquisitions of technologies and businesses;
. risks and uncertainties associated with our international business;
. currency fluctuations and our ability to get currency out of certain
foreign countries; and
. general economic and political conditions.
In addition, our sales in any quarter may consist of a relatively small
number of large customer orders. As a result, the timing of a small number of
orders may impact our quarter to quarter results. The loss of or a substantial
reduction in orders from any significant customer could seriously harm our
business, financial condition and results of operations.
Due to all of the factors listed above and other risks discussed in this
report, our future operating results could be below the expectations of
securities analysts or investors. If that happens, the trading price of our
common stock could decline. As a result of these quarterly variations, you
should not rely on quarter-to-quarter comparisons of our operating results as an
indication of our future performance.
Our Operating Strategy for Developing Companies is Expensive and May Not Be
Successful. Our business strategy historically has required us to make
significant investments in our business units. These investments are expensive
and require the commitment of significant time and resources. We expect to
continue to invest in the development of certain of our business units with the
goal of achieving profitability in each of our business units, and to a lesser
extent, to monetize those business units for the benefit of our stockholders
through an initial public offering, spin-off or sale to a strategic buyer. We
may not recognize the benefits of this investment for a significant period of
time, if at all. Our ability to achieve profitability in any business unit, to
complete any private or public offerings of securities by any of our business
7
units, and/or to spin-off our interest in the business unit to our stockholders
will depend upon many factors, including:
. the overall performance and results of operations of the particular
business unit;
. the potential market for our business unit;
. our ability to assemble and retain a qualified management team for the
business unit;
. our financial position and cash requirements;
. the business unit's customer base and product line;
. the current tax treatment of spin-off and sale transactions, and our
ability to obtain favorable determination letters from the Internal
Revenue Service; and
. general economic and market conditions, including the receptiveness of
the stock markets to initial public offerings and private placements.
We may not be able to achieve profitability in our business units, to
complete a successful private or public offering or to spin-off of any of our
business units in the near future, or at all. During fiscal 2001, we attempted
to complete the initial public offering of Iteris, but withdrew the offering due
to adverse market conditions. Even if we are able to achieve profitability and
the market is receptive to public offerings, we may decide not to complete any
further offerings, spin-off a particular business unit, or delay the spin-off
until a later date.
We Must Keep Pace with Rapid Technological Change to Remain Competitive.
Our target markets are in general characterized by the following factors:
. rapid technological advances;
. downward price pressure in the marketplace as technologies mature;
. changes in customer requirements;
. frequent new product introductions and enhancements; and
. evolving industry standards and changes in the regulatory environment.
Our future success will depend upon our ability to anticipate and adapt to
changes in technology and industry standards, and to effectively develop,
introduce, market and gain broad acceptance of new products and product
enhancements incorporating the latest technological advancements.
We believe that we must continue to make substantial investments to support
ongoing research and development in order to remain competitive. We need to
continue to develop and introduce new products that incorporate the latest
technological advancements in hardware, storage media, operating system software
and applications software in response to evolving
8
customer requirements. Our business and results of operations could be adversely
affected if we do not anticipate or respond adequately to technological
developments or changing customer requirements. We cannot assure you that any
such investments in research and development will lead to any corresponding
increase in revenue.
Our Future Success Depends on the Successful Development and Market
Acceptance of New Products. We believe our revenue growth and future operating
results will depend on our ability to complete development of new products and
enhancements, introduce these products in a timely, cost-effective manner,
achieve broad market acceptance of these products and enhancements, and reduce
our product costs. We may not be able to introduce any new products or any
enhancements to our existing products on a timely basis, or at all. In addition,
the introduction of any new products could adversely affect the sales of our
certain of our existing products.
Our future success will also depend in part on the success of several
recently introduced products including CommSync II, a Zyfer solution for secure,
high speed, point-to-point communications; AutoVue, our lane departure warning
system; and Airo 9.0, our broadcast automation solution. Market acceptance of
our new products depends upon many factors, including our ability to accurately
predict market requirements and evolving industry standards, our ability to
resolve technical challenges in a timely and cost-effective manner and achieve
manufacturing efficiencies, the perceived advantages of our new products over
traditional products and the marketing capabilities of our independent
distributors and strategic partners. Our business and results of operations
could be seriously harmed by any significant delays in our new product
development. Certain of our new products could contain undetected design faults
and software errors or "bugs" when first released by us, despite our testing. We
may not discover these faults or errors until after a product has been installed
and used by our customers. Any faults or errors in our existing products or in
any new products may cause delays in product introduction and shipments, require
design modifications or harm customer relationships, any of which could
adversely affect our business and competitive position.
We currently outsource the manufacture of our AutoVue product line to a
single manufacturer. This manufacturer may not be able to produce sufficient
quantities of this product in a timely manner or at a reasonable cost, which
could materially and adversely affect our ability to launch or gain market
acceptance of AutoVue.
We Have Significant International Sales and Are Subject to Risks Associated
with Operating in International Markets. International sales represented 10% of
our net sales and contract revenues for the nine months ended December 31, 2001,
20% for the fiscal year ended March 31, 2001, and 19% for the fiscal year ended
March 31, 2000. During the three months ended December 31, 2001, we reorganized
our European operations, which included the discontinuation of our Odetics
Europe Ltd., MAXxess Europe Ltd., Mariner France and Mariner Europe Ltd.
operations, and the transition of our Broadcast and MAXxess international
operations to branch office operations with the intent of lowering our
international costs. This reorganization may result in significantly lower
international sales in future periods, unanticipated liabilities related to the
closures, and may not achieve the anticipated cost savings. We may also face
challenges in managing and transitioning our international operations as we have
not traditionally operated through branch offices. In addition, the recent
terrorist attacks in
9
the United States and heightened security may adversely impact our international
sales and could make our international operations more expensive.
International business operations are also subject to other inherent risks,
including, among others:
. unexpected changes in regulatory requirements, tariffs and other trade
barriers or restrictions;
. longer accounts receivable payment cycles;
. difficulties in managing and staffing international operations;
. potentially adverse tax consequences;
. the burdens of compliance with a wide variety of foreign laws;
. import and export license requirements and restrictions of the United
States and each other country in which we operate;
. exposure to different legal standards and reduced protection for
intellectual property rights in some countries;
. currency fluctuations and restrictions; and
. political, social and economic instability.
We believe that international sales will continue to represent a
significant portion of our revenues, and that continued growth and profitability
may require further expansion of our international operations. Nearly all of our
international sales from this point on are denominated in U.S. dollars. As a
result, an increase in the relative value of the dollar could make our products
more expensive and potentially less price competitive in international markets.
We do not engage in any transactions as a hedge against risks of loss due to
foreign currency fluctuations.
Any of these factors may adversely effect our future international sales
and, consequently, effect our business, financial condition and operating
results. Furthermore, as we increase our international sales, our total revenues
may also be affected to a greater extent by seasonal fluctuations resulting from
lower sales that typically occur during the summer months in Europe and other
parts of the world.
We Need to Manage Operations and the Integration of Our Acquisitions. Over
the past few years, we have expanded our operations and made several substantial
acquisitions of diverse businesses, including Intelligent Controls, Inc.,
International Media Integration Services, Ltd., Meyer Mohaddes Associates, Inc.,
Viggen Corporation, and certain assets of the Transportation Systems business of
Rockwell International. We may engage in acquisitions of complementary
businesses, products and technologies. Acquisitions may require significant
capital infusions and, in general, acquisitions also involve a number of special
risks, including:
10
. potential disruption of our ongoing business and the diversion of our
resources and management's attention;
. the failure to retain or integrate key acquired personnel;
. the challenge of assimilating diverse business cultures, and the
difficulties in integrating the operations, technologies and information
system of the acquired companies;
. increased costs to improve managerial, operational, financial and
administrative systems and to eliminate duplicative services;
. the incurrence of unforeseen obligations or liabilities;
. potential impairment of relationships with employees or customers as a
result of changes in management; and
. increased interest expense and amortization of acquired intangible
assets.
Acquisitions may also materially and adversely affect our operating results
due to large write-offs, contingent liabilities, substantial depreciation,
deferred compensation charges or goodwill amortization, or other adverse tax or
audit consequences.
Our competitors are also soliciting potential acquisition candidates, which
could both increase the price of any acquisition targets and decrease the number
of attractive companies available for acquisition. We cannot assure you that we
will be able to consummate any additional acquisitions, successfully integrate
any acquisitions or realize the benefits anticipated from any acquisition.
To the extent we complete any additional acquisitions, such acquisitions
are expected to place a significant strain on our resources. If we engage in
further acquisitions, we may be required to implement a variety of new and
upgraded operational and financial systems, procedures and controls, including
the improvement of our accounting and other internal management systems. All of
these updates will require substantial additional expense as well as management
effort. Our failure to manage growth and integrate our acquisitions successfully
could adversely affect our business, financial condition and results of
operations.
The Markets in Which We Operate Are Highly Competitive and Have Many More
Established Competitors. We compete with numerous other companies in our target
markets and we expect such competition to increase due to technological
advancements, industry consolidations and reduced barriers to entry. Increased
competition is likely to result in price reductions, reduced gross margins and
loss of market share, any of which could seriously harm our business, financial
condition and results of operations. Many of our competitors have far greater
name recognition and greater financial, technological, marketing and customer
service resources than we do. This may allow them to respond more quickly to new
or emerging technologies and changes in customer requirements. It may also allow
them to devote greater resources to the development, promotion, sale and support
of their products than we can. Recent
11
consolidations of end users, distributors and manufacturers in our target
markets have exacerbated this problem. As a result of the foregoing factors, we
may not be able to compete effectively in our target markets and competitive
pressures could adversely affect our business, financial condition and results
of operations.
We Cannot Be Certain of Our Ability to Attract and Retain Key Personnel and
We Do Not Have Employment Agreements with Any Key Personnel. Due to the
specialized nature of our business, we are highly dependent on the continued
service of our executive officers and other key management, engineering and
technical personnel, particularly Joel Slutzky, our Chairman of the Board, who
recently retired as our Chief Executive Officer, and Gregory A. Miner, our Chief
Executive Officer and Chief Financial Officer. The leadership transition between
Mr. Slutzky and Mr. Miner could adversely affect our business. We do not have
any employment contracts with any of our officers or key employees.
Our success will also depend in large part upon our ability to continue to
attract, retain and motivate qualified engineering and other highly skilled
technical personnel. Competition for employees, particularly development
engineers, is intense. We may not be able to continue to attract and retain
sufficient numbers of such highly skilled employees. Our inability to attract
and retain additional key employees or the loss of one or more of our current
key employees could adversely affect upon our business, financial condition and
results of operations.
We May Not be Able to Adequately Protect or Enforce Our Intellectual
Property Rights. If we are not able to adequately protect or enforce the
proprietary aspects of our technology, competitors could be able to access our
proprietary technology and our business, financial condition and results of
operations will likely be seriously harmed. We currently attempt to 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 or solutions. Our competitors may also be able to independently
develop products that are substantially equivalent or superior to our products
or design around 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.
From time to time, we have received 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 in the
past, 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 terms acceptable to us, or at all. We also may have to
indemnify certain customers or strategic partners if it is determined that we
have infringed upon or misappropriated another party's intellectual property.
Any of these results could adversely affect on our business, financial condition
and results of operations. In addition, the cost of addressing any intellectual
property litigation claim, both in legal fees and
12
expenses, and the diversion of management resources, regardless of whether the
claim is valid, could be significant and could seriously harm our business,
financial condition and results of operations.
We Are Controlled by Certain of Our Officers and Directors. As of April 30,
2002, our officers and directors beneficially owned approximately 24% of the
total combined voting power of the outstanding shares of our Class A common
stock and Class B common stock. As a result of their stock ownership, our
management will be able to significantly influence the election of our directors
and the outcome of corporate actions requiring stockholder approval, such as
mergers and acquisitions, regardless of how our other stockholders may vote.
This concentration of voting control may have a significant effect in delaying,
deferring or preventing a change in our management or change in control and may
adversely affect the voting or other rights of other holders of common stock.
Our Stock Structure and Certain Anti-Takeover Provisions May Affect the
Price of Our Common Stock. Certain provisions of our certificate of
incorporation and our stockholder rights plan could make it difficult for a
third party to acquire us, even though an acquisition might be beneficial to our
stockholders. These provisions could limit the price that investors might be
willing to pay in the future for shares of our common stock. Our Class A common
stock entitles the holder to one-tenth of one vote per share and our Class B
common stock entitles the holder to one vote per share. The disparity in the
voting rights between our common stock, as well as our insiders' significant
ownership of the Class B common stock, could discourage a proxy contest or make
it more difficult for a third party to effect a change in our management and
control. In addition, our Board of Directors is authorized to issue, without
stockholder approval, up to 2,000,000 shares of preferred stock with voting,
conversion and other rights and preferences superior to those of our common
stock, as well as additional shares of Class B common stock. Our future issuance
of preferred stock or Class B common stock could be used to discourage an
unsolicited acquisition proposal.
In March 1998, we adopted a stockholder rights plan and declared a dividend
of preferred stock purchase rights to our stockholders. In the event a third
party acquires more than 15% of the outstanding voting control of our company or
15% of our outstanding common stock, the holders of these rights will be able to
purchase the junior participating preferred stock at a substantial discount off
of the then current market price. The exercise of these rights and purchase of a
significant amount of stock at below market prices could cause substantial
dilution to a particular acquiror and discourage the acquiror from pursuing our
company. The mere existence of a stockholder rights plan often delays or makes a
merger, tender offer or proxy contest more difficult.
We Do Not Pay Cash Dividends. We have never paid cash dividends on our
common stock and do not anticipate paying any cash dividends on either class of
our common stock in the foreseeable future.
We May Be Subject to Additional Risks. The risks and uncertainties
described above are not the only ones facing our company. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may
also adversely affect our business operations.
13
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file with the SEC at the SEC's Public Reference Room at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov.
This prospectus is part of a registration statement on Form S-3 that we
filed with the SEC. Pursuant to the SEC rules, this prospectus, which forms a
part of the registration statement, does not contain all of the information in
such registration statement. You may read or obtain a copy of the registration
statement from the SEC in the manner described above.
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. The documents we
incorporate by reference are:
1. Our Annual Report on Form 10-K/A for the fiscal year ended March 31, 2001
filed with the SEC on July 30, 2001;
2. Our Quarterly Report on Form 10-Q for the quarter ended December 31, 2001
filed with the SEC on February 14, 2002;
3. Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2001
filed with the SEC on November 14, 2001;
4. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2001 filed
with the SEC on August 14, 2001;
5. Our definitive Proxy Statement filed with the SEC on August 13, 2001 in
connection with our 2001 Annual Meeting of Stockholders held on September
14, 2001;
6. Our Current Report on Form 8-K filed with the SEC on June 12, 2002;
7. Our Current Report on Form 8-K filed with the SEC on March 28, 2002;
8. Our Current Report on Form 8-K filed with the SEC on February 26, 2002;
9. Our Current Report on Form 8-K filed with the SEC on October 3, 2001;
10. Our Current Report on Form 8-K filed with the SEC on June 1, 2001;
14
11. The description of our Class A common stock contained in our registration
statement on Form 8-A filed with the SEC on October 14, 1987, including any
amendment or report filed for the purpose of updating such description; and
12. The description of our preferred stock purchase rights contained in our
registration statement on Form 8-A filed with the SEC on May 1, 1998,
including any amendment or report filed for the purpose of updating such
description.
In addition, we incorporate by reference all reports and other documents
that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the date
of this prospectus and prior to the termination of this offering and all such
reports and documents will be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such reports and documents. Any
statement incorporated herein shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
We will provide without charge to each person to whom this prospectus is
delivered, upon written or oral request of such person, a copy of any or all of
the foregoing documents incorporated herein by reference. Requests for documents
should be submitted in writing to the Secretary, at Odetics, Inc., 1515 South
Manchester Avenue, Anaheim, California 92802, or by telephone at (714) 774-5000.
FORWARD-LOOKING STATEMENTS
All statements included or incorporated by reference in this prospectus,
other than statements or characterizations of historical fact, are
forward-looking statements. Examples of forward-looking statements include, but
are not limited to, statements concerning projected expenses, growth in revenue
from government contracts, our ability to control costs, our accounting
estimates, assumptions and judgments, the investment in research and development
for our subsidiaries and business units, the market acceptance and performance
of our products, the competitive nature of our markets, our ability to achieve
product integration, the status of, and our ability to keep pace with, evolving
technologies, the development and market acceptance of new product
introductions, the adoption of future industry standards, our production
capacity, our ability to consummate acquisitions and integrate their operations
successfully, the need for additional capital, our ability to raise capital, and
our ability to achieve profitability, monetize and spin-off any of our business
units. These forward-looking statements are based on our current expectations,
estimates and projections about our industry, management's beliefs, and certain
assumptions made by us. Forward-looking statements can often be identified by
words such as "anticipates," "expects," "intends," "plans," "predicts,"
"believes," "seeks," "estimates," "may," "will," "should," "would," "potential,"
"continue," similar expressions and variations or negatives of these words. In
addition, any statements that refer to expectations, projections or other
characterizations of future events or circumstances, including any underlying
assumptions, are forward-looking statements. These forward-looking statements
speak only as of the date of
15
this prospectus and are based upon the information available to us at this time.
Such information is subject to change, and we will not necessarily inform you of
such changes. These statements are not guarantees of future performance and are
subject to risks, uncertainties and assumptions that are difficult to predict.
Therefore, our actual results could differ materially and adversely from those
expressed in any forward-looking statements as a result of various factors, some
of which are listed under the section "Risk Factors" beginning on page 2 of this
prospectus. We undertake no obligation to revise or update publicly any
forward-looking statements for any reason.
USE OF PROCEEDS
The shares of Class A common stock offered by this prospectus will be sold
by the selling stockholder, and the selling stockholder will receive all of the
proceeds from sales of such shares. We will not receive any proceeds from sales
of the shares offered by this prospectus.
SELLING STOCKHOLDER
The following table sets forth the number of shares of our Class A common
stock beneficially owned by the selling stockholder as of May 31, 2002, based on
the selling stockholder's representations regarding its ownership. We cannot
estimate the number of shares that will be held by the selling stockholder after
completion of this offering because the selling stockholder may sell all or some
of the shares and because there currently are no agreements, arrangements or
understandings with respect to the sale of any of the shares. Except as
indicated in this section, we are not aware of any material relationship between
us and the selling stockholder within the past three years other than as a
result of the selling stockholder's beneficial ownership of our common stock. On
May 31, 2002, 11,580,821 shares of our Class A common stock were outstanding.
Number of
Shares
Being
Beneficially Owned Prior Offered in Beneficially Owned After
to Offering Offering Offering(2)
------------------------------ -------------- ----------------------------
Number of Number of
Selling Stockholder Shares Percent Shares Percent(1)
---------------------------------------- -------------- -------------- --------------- -------------- -----------
Leitch Technology International, Inc. 67,419 * 67,419 -- --
* Represents beneficial ownership of less than 1% of the outstanding shares
of Class A common stock.
(1) Based on 11,580,821 shares of Class A common stock outstanding on May 31,
2002.
(2) This table assumes that all shares owned by the selling stockholder which
are offered by this prospectus are being sold. The selling stockholder
reserves the right to accept or reject, in whole or in part, any proposed
sale of shares. The selling stockholder also may offer and sell less than
the number of shares indicated. The selling stockholder is not making any
representation that any shares covered by this prospectus will or will not
be offered for sale.
16
Leitch Technology International, Inc. ("Leitch") acquired the shares held
by it and offered by this prospectus in connection with the Stock Purchase
Agreement, dated December 21, 2001, between us and Leitch. Pursuant to this
agreement, Leitch cancelled certain indebtedness owed by us and our subsidiaries
in consideration for the issuance of shares of our Class A common stock. We
agreed to effect a shelf registration (of which this prospectus is a part) to
register all of these shares in order to permit Leitch to sell these shares from
time to time in the public market or in privately-negotiated transactions. We
have agreed to prepare and file any amendments and supplements to the
registration statement relating to these shares as may be necessary to keep the
registration statement effective until such time as all of the shares covered by
this prospectus have been sold or two years after the date of the Stock Purchase
Agreement.
This prospectus also covers any additional shares of Class A common stock
which become issuable in connection with the shares being registered 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 our outstanding shares of Class A common stock. In
addition, this prospectus covers the preferred stock purchase rights which
currently trade with the Class A common stock and entitle the holder to purchase
additional shares of Class A common stock under certain circumstances.
PLAN OF DISTRIBUTION
We are registering the shares of Class A common stock covered by this
prospectus on behalf of the selling stockholder. We will not receive any of the
proceeds from sales of the shares by the selling stockholder.
The selling stockholder named in this prospectus, or pledgees, donees,
transferees or other successors-in-interest selling shares received from the
selling stockholder as a gift, partnership distribution or other non-sale
related transfer after the date of this prospectus, may sell these shares from
time to time. The selling stockholder will act independently of Odetics in
making decisions with respect to the timing, manner and size of each sale. The
sales may be made on one or more exchanges or in the over-the-counter market or
otherwise at prices and at terms then prevailing or at prices related to the
then current market price or in negotiated transactions. The selling stockholder
may effect such transactions by selling the shares to or through broker-dealers.
The shares may be sold by one or more of, or a combination of, the following:
. a block trade in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
. purchases by a broker-dealer as principal and resale by such
broker-dealer for its account under this prospectus;
. an exchange distribution in accordance with the rules of such exchange;
17
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers; or
. in privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In effecting sales,
broker-dealers engaged by the selling stockholder may arrange for other
broker-dealers to participate in such resales.
The selling stockholder may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
such transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with the selling stockholder. The
selling stockholder also may sell shares short and redeliver the shares to close
out such short positions. The selling stockholder may enter into option or other
transactions with broker-dealers which require the delivery to the broker-dealer
of the shares. The broker-dealer may then resell or otherwise transfer such
shares under this prospectus. The selling stockholder also may loan or pledge
the shares to a broker-dealer. The broker-dealer may sell the shares so loaned,
or upon a default the broker-dealer may sell the pledged shares under this
prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from the selling stockholder.
Broker-dealers or agents may also receive compensation from the purchasers of
the shares for whom they act as agents or to whom they sell as principals, or
both. Compensation as to a particular broker-dealer might be in excess of
customary broker-dealers or the selling stockholder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act of
1933, as amended (the "Securities Act"), in connection with sales of the shares.
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. Because the
selling stockholder may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, the selling stockholder will be subject to
the prospectus delivery requirements of the Securities Act.
In addition, any securities covered by this prospectus which qualify for
sale under Rule 144 promulgated under the Securities Act may be sold under Rule
144 rather than under this prospectus. The selling stockholder has advised us
that it has not entered into any agreements, understandings or arrangements with
any underwriters or broker-dealers regarding the sale of its securities. There
is no underwriter or coordinating broker acting in connection with the proposed
sale of shares by the selling stockholder.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with
18
respect to our common stock for a period of two business days prior to the
commencement of such distribution. In addition, the selling stockholder will be
subject to applicable provisions of the Exchange Act and the associated rules
and regulations under the Exchange Act, including Regulation M, which provisions
may limit the timing of purchase and sales of shares of our common stock by the
selling stockholder. We will make copies of this prospectus available to the
selling stockholder and have informed it of the need for delivery of copies of
this prospectus to purchasers at or prior to the time of any sale of the shares.
We will file a supplement to this prospectus, if required, under Rule
424(b) under the Securities Act upon being notified by the selling stockholder
that any material arrangement has been entered into with a broker-dealer for the
sale of shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer. Such supplement will
disclose:
. the name of the selling stockholder and of the participating
broker-dealer(s),
. the number of shares involved,
. the price at which such shares were sold,
. the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable,
. that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this prospectus,
and
. other facts material to the transaction.
In addition, upon being notified by the selling stockholder that a donee or
pledgee intends to sell more than 500 shares, we will file a supplement to this
prospectus.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholder will bear all commissions
and discounts, if any, attributable to the sales of the shares. The selling
stockholder may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act.
LEGAL MATTERS
The legality of the shares offered hereby will be passed upon for Odetics
by Brobeck, Phleger & Harrison LLP, Irvine, California.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K/A
for the year ended
19
March 31, 2001, as set forth in their report (which contains an explanatory
paragraph describing conditions that raise substantial doubt about our ability
to continue as a going concern as described in Note 1 to our consolidated
financial statements), which is incorporated by reference in this prospectus and
elsewhere in the registration statement. Our consolidated financial statements
and schedule are incorporated by reference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
20
We have not authorized any person to make a statement that differs from what is
in this prospectus. If any person does make a statement that differs from what
is in this prospectus, you should not rely on it. This prospectus is not an
offer to sell, nor is it seeking an offer to buy, these securities in any state
in which the offer or sale is not permitted. The information in this prospectus
is complete and accurate as of its date, but the information may change after
that date.
---------------------
TABLE OF CONTENTS
---------------------
Page
----
RISK FACTORS.............................................................. 2
WHERE YOU CAN FIND MORE INFORMATION....................................... 14
FORWARD-LOOKING STATEMENTS................................................ 15
USE OF PROCEEDS........................................................... 16
SELLING STOCKHOLDER....................................................... 16
PLAN OF DISTRIBUTION...................................................... 17
LEGAL MATTERS............................................................. 19
EXPERTS................................................................... 19
ODETICS, INC.
67,419 Shares
of
Class A common stock
---------------
PROSPECTUS
---------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various costs and expenses to be paid by
us with respect to the sale and distribution of the securities being registered.
All of the amounts shown are estimates except for the SEC registration fee. In
addition, Odetics may be charged additional listing fees by the Nasdaq SmallCap
Market upon issuance of the shares being offered by this prospectus.
SEC Registration Fee................................ $ 9
Printing Expenses................................... 2,000
Legal Fees and Expenses............................. 5,000
Accounting Fees and Expenses........................ 5,000
Miscellaneous....................................... 2,500
----------
Total........................................... $ 14,509
==========
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholder will bear all commissions
and discounts, if any, attributable to the sales of the shares.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, Odetics can
indemnify its directors and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act. Odetics' bylaws
provide that Odetics will indemnify its directors and officers to the fullest
extent permitted by law and require Odetics to advance litigation expenses upon
receipt by Odetics of an undertaking by the director or officer to repay such
advances if it is ultimately determined that the director or officer is not
entitled to indemnification. The bylaws further provide that rights conferred
under such bylaws do not exclude any other right such persons may have or
acquire under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Odetics' certificate of incorporation provides that, under Delaware law,
its directors shall not be liable for monetary damages for breach of the
directors' fiduciary duty of care to Odetics and its stockholders. This
provision in the certificate of incorporation does not eliminate the duty of
care, and in appropriate circumstances equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach of
the director's duty of loyalty to Odetics or its stockholders, for acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
II-1
Odetics has entered into agreements to indemnify its directors, the
directors of certain of its subsidiaries and certain of its officers in addition
to the indemnification provided for in the certificate of incorporation and
bylaws. These agreements, among other things, indemnify Odetics' directors and
certain of its officers for certain expenses, attorneys' fees, judgments, fines
and settlement amounts incurred by such person in any action or proceeding,
including any action by or in the right of Odetics, on account of services as a
director or officer of Odetics, or as a director or officer of any other company
or enterprise to which the person provides services at the request of Odetics.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER
4.1 Specimen of Class A common stock and Class B common stock
certificates (incorporated by reference to Exhibit 4.3 to Amendment
No. 1 to Odetics' Registration Statement on Form S-1 (Reg. No.
033-67932) as filed with the SEC on September 30, 1993).
4.2 Form of rights certificate for Odetics' preferred stock purchase
rights (incorporated by reference to Exhibit A of Exhibit 4 to
Odetics' Current Report on Form 8-K as filed with the SEC on May 1,
1998).
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included in signature page).
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
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
II-2
high end of the estimated maximum offering price may be reflected in the
form of prospectus filed with the SEC under Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 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 this registration statement or any
material change to such information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
SEC by us pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of Odetics'
Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference into this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Odetics
pursuant to the foregoing provisions, or otherwise, Odetics has been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by Odetics of expenses incurred or paid by a director, officer or
controlling person of Odetics 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, Odetics will, unless in the
opinion of its counsel the question has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Anaheim, State of California, on the 30th day of
May 2002.
ODETICS, INC.
By: /s/ GREGORY A. MINER
---------------------------------
Gregory A. Miner,
Chief Executive Officer and Chief
Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Gregory
A. Miner and Gary Smith, jointly and severally, as attorneys-in-fact, each with
the power of substitution, for him in any and all capacities, to sign any
amendment 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 to said attorneys-in-fact, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, 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 or any of them, or their or his or her substitute or
substitutes, may lawfully 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 below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- -----
/s/ GREGORY A. MINER Chief Executive Officer and Chief May 30, 2002
-------------------------- Financial Officer (principal
Gregory A. Miner executive officer and principal
financial officer)
/s/ JOEL SLUTZKY Chairman of the Board May 30, 2002
--------------------------
Joel Slutzky
Signature Title Date
--------- ----- -----
/s/ KEVIN C. DALY Director May 30, 2002
--------------------------
Kevin C. Daly
/s/ CRANDALL GUDMUNDSON Director May 30, 2002
--------------------------
Crandall Gudmundson
/s/ JERRY F. MUENCH Director May 30, 2002
--------------------------
Jerry F. Muench
/s/ JOHN W. SEAZHOLTZ Director May 30, 2002
--------------------------
John W. Seazholtz
/s/ THOMAS L. THOMAS Director May 30, 2002
--------------------------
Thomas L. Thomas
/s/ PAUL E. WRIGHT Director May 30, 2002
--------------------------
Paul E. Wright
/s/ GARY SMITH Vice President and Controller May 30, 2002
-------------------------- (principal accounting officer)
Gary Smith
INDEX OF EXHIBITS
EXHIBIT
NUMBER
4.1 Specimen of Class A common stock and Class B common stock
certificates (incorporated by reference to Exhibit 4.3 to
Amendment No. 1 to Odetics' Registration Statement on Form S-1
(Reg. No. 033-67932) as filed with the SEC on September 30,
1993).
4.2 Form of rights certificate for Odetics' preferred stock purchase
rights (incorporated by reference to Exhibit A of Exhibit 4 to
Odetics' Current Report on Form 8-K as filed with the SEC on May
1, 1998).
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit
5.1).
24.1 Power of Attorney (included in signature page).