As filed with the Securities and Exchange Commission on December
11, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BK Technologies Corporation
(Exact name of registrant as specified in its charter)
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Nevada
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83-4064262
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. employer
identification number)
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7100 Technology Drive
West Melbourne, FL 32904
(321) 984-1414
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
offices)
William P. Kelly
Executive Vice President & Chief Financial Officer
7100 Technology Drive
West Melbourne, FL 32904
(321) 984-1414
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
The Commission is requested to send copies of all communications
to:
Alexander Pearson, Esq.
S. Chase Dowden, Esq.
Kirton McConkie PC
50 E. South Temple, Suite 400
Salt Lake City, UT 84111
(801) 328-3600 (telephone)
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 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.
[ ]
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.
[ ]
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
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Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[X]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[ ]
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered
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Amount to be Registered
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Proposed Maximum Offering Price Per Unit
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee(5)
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Common
Stock
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(1)(2)
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(1)
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(1)(2)
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Preferred
Stock
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(1)(2)(3)
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(1)
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(1)(2)(3)
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Senior
Debt Securities
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(1)(2)(3)
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(1)
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(1)(2)(3)
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Subordinated Debt
Securities
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(1)(2)(3)
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(1)
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(1)(2)(3)
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Depositary
Shares
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(1)(2)(3)
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(1)
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(1)(2)(3)
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Units(4)
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(1)(2)(3)
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(1)
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(1)(2)(3)
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Warrants
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(1)(2)(3)
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(1)
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(1)(2)(3)
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Total
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$
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50,000,000
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$
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$5,455
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(1)
Not
specified as to each class of securities to be registered pursuant
to General Instruction II.D of Form S-3 under the Securities Act of
1933, as amended (the “Securities Act”).
(2)
The
Registrant is hereby registering an indeterminate principal amount
and number of each identified class of its securities up to a
proposed maximum aggregate offering price of $50,000,000, which may
be offered from time to time in unspecified numbers at unspecified
prices. In addition, pursuant to Rule 416 under the Securities Act,
the shares being registered hereunder include such indeterminate
number of shares of common stock and preferred stock as may be
issuable with respect to the shares being registered hereunder as a
result of stock splits, stock dividends or similar transactions.
The Registrant has estimated the proposed maximum aggregate
offering price solely for the purpose of calculating the
registration fee pursuant to Rule 457(o) under the Securities Act.
Securities registered hereunder may be sold separately, together or
as units with other securities registered hereunder.
(3)
The
Registrant is hereby registering such indeterminate amount and
number of each identified class of the identified securities as may
be issued upon conversion, exchange, or exercise of any other
securities that provide for such conversion, exchange or
exercise.
(4)
Each
unit will be issued under a unit agreement and will represent an
interest in two or more other securities, which may or may not be
separable from one another.
(5)
Calculated
pursuant to Rule 457(o) under the Securities Act.
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.
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 is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 11, 2020
PROSPECTUS
$50,000,000
BK Technologies Corporation
Common Stock
Preferred Stock
Senior Debt Securities
Subordinated Debt Securities
Depositary Shares
Warrants
Units
We may
from time to time offer up to $50,000,000 of the securities listed
above in one or more offerings in amounts, at prices and on terms
determined at the time of such offering or offerings. When we use
the term “securities” in this prospectus, we mean any
of the securities we may offer with this prospectus, unless we say
otherwise.
This
prospectus provides you with a general description of the
securities and the general manner in which such securities may be
offered. The specific terms of any securities to be offered, and
the specific manner in which they may be offered, will be described
in a supplement to this prospectus or incorporated into this
prospectus by reference. You should read this prospectus and any
supplement carefully before you invest. Each prospectus supplement
will indicate if the securities offered thereby will be listed or
quoted on a securities exchange or quotation system.
We may
offer and sell the securities described in this prospectus and any
prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a
combination of these methods. If any underwriters, dealers or
agents are involved in the sale of any of the securities, their
names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth, or
will be calculable from the information set forth, in the
applicable prospectus supplement. See the sections of this
prospectus entitled “About this Prospectus” and
“Plan of Distribution” for more information. No
securities may be sold without delivery of this prospectus and the
applicable prospectus supplement describing the method and terms of
the offering of such securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS. WE STRONGLY RECOMMEND
THAT YOU READ CAREFULLY THE RISKS WE DESCRIBE IN THIS PROSPECTUS
AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT, AS WELL AS THE RISK
FACTORS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS
FROM OUR FILINGS MADE WITH THE SECURITIES AND EXCHANGE COMMISSION.
SEE “RISK FACTORS” ON PAGE 4 OF THIS
PROSPECTUS.
Our
common stock is listed on the NYSE American under the symbol
“BKTI”. On December 7, 2020, the last reported sale
price of our common stock on the NYSE American was $3.05 per
share.
As of December 7, 2020, the
aggregate market value of our outstanding common stock held by
non-affiliates was $15,323,853, based on 12,511,966 shares of
outstanding common stock, of which 7,487,752 shares were held by
affiliates, and a per share price of $3.05, based on the closing
sale price of our common stock on December 7, 2020. Pursuant to
General Instruction I.B.6 of Form S-3, in no event will we sell
securities pursuant to this registration statement in a public
primary offering with a value of more than one-third of the
aggregate market value of our common stock held by non-affiliates
in any 12-month period, so long as the aggregate market value of
our common stock held by non-affiliates is less than $75,000,000.
In the event that subsequent to the effective date of this
registration statement, the aggregate market value of our
outstanding common stock held by non-affiliates equals or exceeds
$75,000,000, then the one-third limitation on sales shall not apply
to additional sales made pursuant to this registration statement.
We have not sold any securities pursuant to General Instruction
I.B.6 of Form S-3 during the 12 calendar months prior to, and
including, the date of this registration statement.
You
should carefully read this prospectus, any applicable prospectus
supplement and the information described under the headings
“Where You Can Find More Information” and
“Incorporation by Reference” before you invest in any
of these securities. This prospectus may not be used to sell
securities in a primary offering by us unless it is accompanied by
a prospectus supplement that describes the securities being
offered.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved the securities we
may be offering or determined that this prospectus is accurate or
complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is December 11, 2020
TABLE OF CONTENTS
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Page
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ABOUT
THIS PROSPECTUS
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1
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CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS |
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2
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BK
TECHNOLOGIES CORPORATION
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3
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RISK
FACTORS
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3
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USE OF
PROCEEDS
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3
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DESCRIPTION
OF CAPITAL STOCK
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4
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DESCRIPTION
OF DEPOSITARY SHARES
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6
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DESCRIPTION
OF DEBT SECURITIES
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8
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DESCRIPTION
OF WARRANTS
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13
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DESCRIPTION
OF UNITS
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13
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PLAN OF
DISTRIBUTION
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14
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LEGAL
MATTERS
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15
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EXPERTS
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15
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WHERE
YOU CAN FIND MORE INFORMATION
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16
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INCORPORATION
BY REFERENCE
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16
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ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the U.S. Securities and Exchange Commission, or the SEC, using a
“shelf” registration process. By using a shelf
registration statement, we may sell securities from time to time
and in one or more offerings up to a total dollar amount of
$50,000,000 as described in this prospectus. Each time that we
offer and sell securities, we will provide a prospectus supplement
to this prospectus that contains specific information about the
securities being offered and sold and the specific terms of that
offering. We may also authorize one or more free writing
prospectuses to be provided to you that may contain material
information relating to these offerings. The prospectus supplement
or free writing prospectus may also add, update or change
information contained in this prospectus with respect to that
offering. If there is any inconsistency between the information in
this prospectus and the applicable prospectus supplement or free
writing prospectus, you should rely on the prospectus supplement or
free writing prospectus, as applicable. Before purchasing any
securities, you should carefully read both this prospectus and the
applicable prospectus supplement (and any applicable free writing
prospectuses), together with the additional information described
under the headings “Where You Can Find More
Information” and “Incorporation by
Reference.”
We have
not authorized any other person to provide you with any information
or to make any representations other than those contained in this
prospectus, any applicable prospectus supplement or any free
writing prospectuses prepared by or on behalf of us or to which we
have referred you. We take no responsibility for, and can provide
no assurance as to the reliability of, any other information that
others may give you. We will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this
prospectus and the applicable prospectus supplement to this
prospectus is accurate only as of the date on its respective cover,
that the information appearing in any applicable free writing
prospectus is accurate only as of the date of that free writing
prospectus, and that any information incorporated by reference is
accurate only as of the date of the document incorporated by
reference, unless we indicate otherwise. Our business, financial
condition, results of operations and prospects may have changed
since those dates. This prospectus incorporates by reference, and
any prospectus supplement or free writing prospectus may contain
and incorporate by reference, market data and industry statistics
and forecasts that are based on independent industry publications
and other publicly available information. Although we believe these
sources are reliable, we do not guarantee the accuracy or
completeness of this information and we have not independently
verified this information. In addition, the market and industry
data and forecasts that may be included or incorporated by
reference in this prospectus, any prospectus supplement or any
applicable free writing prospectus may involve estimates,
assumptions and other risks and uncertainties and are subject to
change based on various factors, including those discussed under
the heading “Risk Factors” contained in this
prospectus, the applicable prospectus supplement and any applicable
free writing prospectus, and under similar headings in other
documents that are incorporated by reference into this prospectus.
Accordingly, investors should not place undue reliance on this
information.
Unless
we state otherwise or the context otherwise requires, references in
this prospectus to “we,” “our,”
“us,” or “the Company” are to BK
Technologies Corporation, a Nevada corporation, together with our
consolidated subsidiaries.
1
This
prospectus and the documents incorporated by reference into it
contain forward-looking statements regarding the Company and
represent our expectations and beliefs concerning future events
that are, or may be considered to be, “forward-looking
statements” within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as amended, or
the Exchange Act. These forward-looking statements are intended to
be covered by the safe harbor for forward-looking statements
provided by the Private Securities Litigation Reform Act of 1995.
The forward-looking statements included herein or incorporated
herein by reference include or may include, but are not limited to,
statements that are predictive in nature, depend upon or refer to
future events or conditions, or use or contain words, terms,
phrases, or expressions such as “achieve,”
“forecast,” “plan,” “propose,”
“strategy,” “envision,” “hope,”
“will,” “continue,”
“potential,” “expect,”
“believe,” “anticipate,”
“project,” “estimate,”
“predict,” “intend,” “should,”
“could,” “would,” “may,”
“might,” “seek,” “are
encouraged,” or other similar words, terms, phrases, or
expressions or the negative of any of these terms. Any statements
in this prospectus or incorporated herein by reference that are not
based upon historical fact are forward-looking statements and
represent our best judgment as to what may occur in the future.
Forward-looking statements involve a number of known and unknown
risks and uncertainties, including but not limited to those
discussed in the “Risk Factors” section contained in
Item 1A in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2019 and Item 1A in our Quarterly Report on Form 10-Q
for the quarters ended March 31, 2020, June 30, 2020 and September
30, 2020 and the following risks and uncertainties: changes or advances in technology; the success of
our land mobile radio (“LMR”) product line; successful
introduction of new products and technologies, including our
ability to successfully develop and sell our anticipated new
multiband product and other related products in the planned new BKR
Series product line; competition in the land mobile radio industry;
general economic and business conditions, including federal, state
and local government budget deficits and spending limitations, any
impact from a prolonged shutdown of the U.S. Government, and the
ongoing effects of the COVID-19 pandemic; the availability, terms
and deployment of capital; reliance on contract manufacturers and
suppliers; risks associated with fixed-price contracts; heavy
reliance on sales to agencies of the U.S. Government and our
ability to comply with the requirements of contracts, laws and
regulations related to such sales; allocations by government
agencies among multiple approved suppliers under existing
agreements; our ability to comply with U.S. tax laws and utilize
deferred tax assets; our ability to attract and retain executive
officers, skilled workers and key personnel; our ability to manage
our growth; our ability to identify potential candidates for, and
consummate, acquisition, disposition or investment transactions,
and risks incumbent to being a noncontrolling interest stockholder
in a corporation; the impact of the COVID-19 pandemic on the
companies in which we hold investments; impact of our capital
allocation strategy; risks related to maintaining our brand and
reputation; impact of government regulation; rising health care
costs; our business with manufacturers located in other countries,
including changes in the U.S. Government and foreign
governments’ trade and tariff policies, as well as any
further impact resulting from the COVID-19 pandemic; our inventory
and debt levels; protection of our intellectual property rights;
fluctuation in our operating results and stock price; acts of war
or terrorism, natural disasters and other catastrophic events, such
as the COVID-19 pandemic; any infringement claims; data security
breaches, cyber-attacks and other factors impacting our technology
systems; availability of adequate insurance coverage; maintenance
of our NYSE American listing; risks related to being a holding
company; and the effect on our stock price and ability to raise
equity capital of future sales of shares of our Common Stock (as
defined below). Some of these factors and risks have been, and may
further be, exacerbated by the COVID-19 pandemic. We assume no
obligation to publicly update or revise any forward-looking
statements made in this prospectus, whether as a result of new
information, future events, changes in assumptions or otherwise,
after the date of this prospectus. Readers are cautioned not to
place undue reliance on these forward-looking
statements.
Although
we believe the expectations reflected in our forward-looking
statements are reasonable, in reading this prospectus and the
documents incorporated into this prospectus by reference, you
should consider the factors discussed under the heading “Risk
Factors” contained in this prospectus in evaluating any
forward-looking statements and you are cautioned not to place undue
reliance on any forward-looking statements. Each forward-looking
statement is made and applies only as of the date of the particular
statement, and we are not obligated to update, withdraw, or revise
any forward-looking statements, whether as a result of new
information, future events or otherwise. You should consider these
risks when reading any forward-looking statements. All
forward-looking statements attributed or attributable to us or to
persons acting on our behalf are expressly qualified in their
entirety by this section entitled “Cautionary Statement
Regarding Forward-Looking Statements.”
2
We are
a holding company that, through BK Technologies, Inc., our
operating subsidiary, provides two-way radio communications
equipment of high quality and reliability. In business for over 70
years, we design, manufacture and market wireless communications
products consisting of two-way LMRs, repeaters, base stations and
related components and subsystems. Two-way LMRs can be units that
are hand-held (portable) or installed in vehicles (mobile).
Repeaters expand the range of two-way LMRs, enabling them to
operate over a wider area. Base station components and subsystems
are installed at radio transmitter sites to improve performance by
enhancing the signal and reducing or eliminating signal
interference and enabling the use of one antenna for both
transmission and reception. We employ both analog and digital
technologies in our products.
Our
digital technology is compliant with the Project 25 standard
(“P-25”) for digital LMR equipment. The P-25 has been
adopted by representatives from the Association of Public-Safety
Communications Officials-International, the National Association of
State Technology Directors, the United States Federal Government
and other public safety user organizations. Our P-25 digital
products and our analog products function in the very high
frequency (136MHz – 174MHz), ultra-high frequency (380MHz
– 470MHz, 450MHz – 520MHz), and 700-800 MHz bands. Our
P-25 KNG and KNG2 Series mobile and portable digital radios have
been validated under the P-25 Compliance Assessment Program
(“CAP”) as being P-25 compliant and interoperable with
the communications network infrastructure of six of our
competitors. Since we do not provide our own communications network
infrastructure, we believe CAP validation provides confidence for
federal, state and local emergency response agencies that our
products are a viable and attractive alternative for use on the
infrastructure of our competitors.
We
offer products under the brand names BK Radio and RELM. Generally,
BK Technologies and BK Radio-branded products serve the government
and public safety market, while RELM-branded products serve the
business and industrial market. We believe that we provide superior
value to a wide array of customers with demanding requirements,
including, for example, emergency response, public safety, homeland
security and military customers of federal and state government
agencies, as well as various commercial enterprises. Our two-way
radio products excel in applications with harsh and hazardous
conditions. They provide high-specification performance, durability
and reliability at a lower cost relative to comparable
offerings.
We were
incorporated under the laws of the State of Nevada on October 24,
1997. We are the resulting corporation from the reincorporation
merger of our predecessor, Adage, Inc., a Pennsylvania corporation,
which reincorporated from Pennsylvania to Nevada effective as of
January 30, 1998. Effective on June 4, 2018, we changed our
corporate name from “RELM Wireless Corporation” to
“BK Technologies, Inc.” On March 28, 2019, we
implemented a holding company reorganization. The reorganization
created a new holding company, BK Technologies Corporation, which
became the new parent company of BK Technologies, Inc. BK
Technologies Corporation’s only significant assets are the
outstanding equity interests in BK Technologies, Inc. and any other
future subsidiaries of BK Technologies Corporation. The holding
company reorganization was intended to create a more efficient
corporate structure and increase operational
flexibility.
Our
principal executive offices are located at 7100 Technology Drive,
West Melbourne, Florida 32904 and our telephone number is (321)
984-1414. Our website is www.bktechnologies.com. Information
contained on, or that may be accessible through, our website is not
a part of, and is not incorporated into, this
prospectus.
An
investment in our securities involves various risks. Before making
an investment in our securities, you should carefully consider the
risks discussed under the heading “Risk Factors” in our
most recent Annual Report on Form 10-K, our most recent Quarterly
Report on Form 10-Q and any subsequently filed Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K (other than, in each
case, information furnished rather than filed), which are
incorporated herein by reference, as well as the information
contained in this prospectus and in any prospectus supplements
relating to particular offers of securities. Any of those risk
factors could significantly and adversely affect our business,
prospects, financial condition and results of operations, and the
trading price of our securities. Although we describe, and will
describe, what we believe to be the principal risks related to our
Company and the securities we offer, we can also be affected by
risks we do not anticipate or do not think will have a material
effect upon us.
We will
retain broad discretion over the use of the net proceeds from the
sale of our securities offered by this prospectus. Unless otherwise
indicated in a prospectus supplement relating to a specific
offering, we intend to use the net proceeds from the sale of
securities by us under this prospectus for general corporate
purposes, which may include working capital, capital expenditures,
operational purposes and potential acquisitions. We have not
allocated any portion of the net proceeds for any particular use at
this time. The net proceeds may be invested temporarily until they
are used for their stated purpose.
The
intended application of proceeds from the sale of any particular
offering of securities using this prospectus will be described in
the accompanying prospectus supplement or free writing prospectus
relating to such offering. The precise amount and timing of the
application of these proceeds will depend on our funding
requirements and the availability and costs of other
funds.
3
The following summarizes the terms and provisions of our authorized
capital stock. The following summary does not purport to be
complete and is qualified in its entirety by reference to the
Company’s articles of incorporation (“Articles of
Incorporation”) and bylaws (“Bylaws”), which the
Company has previously filed with the SEC, and applicable Nevada
law.
Authorized Capital Stock
The Company’s authorized capital stock consists of 20,000,000
common shares, par value $0.60 per share (the “Common
Stock”), and 1,000,000 shares of preferred stock, par value
$1.00 per share (the “Preferred Stock”).
Under Nevada law, stockholders generally are not personally liable
for a corporation’s debts or liabilities.
Common Stock
Exchange and Trading Symbol
The Common Stock is listed for trading on the NYSE American under
the trading symbol “BKTI.”
Rights, Preferences and Privileges
All outstanding shares of Common Stock are duly authorized, fully
paid and nonassessable. Holders of Common Stock have no
preemptive, conversion, redemption, subscription or similar rights,
and there are no sinking fund provisions applicable to the Common
Stock. The rights, preferences and privileges of the holders of
Common Stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of Preferred Stock
that the Company may designate and issue in the
future.
Voting Rights
Holders of Common Stock are entitled to one vote for each share
held of record on all matters properly submitted to a vote of the
Company’s stockholders, including the election of directors,
and do not have any cumulative voting rights. Directors are elected
by a plurality of the votes cast by the holders of Common Stock.
Except as otherwise required by law, all other matters brought to a
vote of the holders of Common Stock are determined by a majority of
the votes cast and, except as may be provided with respect to any
other outstanding class or series of the Company’s stock, the
holders of shares of Common Stock possess the exclusive voting
power.
Dividends
Subject to preferences that may be applicable to any then
outstanding Preferred Stock, holders of Common Stock are entitled
to receive dividends, if any, as may be declared from time to time
by the Company’s Board of Directors out of legally available
funds.
Liquidation
In the event of the Company’s liquidation, dissolution or
winding up, holders of Common Stock are entitled to share ratably
in the net assets legally available for distribution to the
Company’s stockholders, if any, remaining after the payment
or provision for the payment of all debts and other liabilities of
the Company, subject to the satisfaction of any liquidation
preference granted to the holders of any then outstanding shares of
Preferred Stock.
Preferred Stock
The Company’s Articles of Incorporation authorize the
Company’s Board of Directors, subject to certain limitations
prescribed by law and without further stockholder approval, to
issue from time to time up to an aggregate of 1,000,000 shares of
Preferred Stock, par value $1.00 per share. The Preferred Stock may
be issued in one or more series. Each series of Preferred Stock may
have different designations, rights and preferences and
qualifications, limitations and restrictions that may be
established by the Board of Directors without approval from the
Company’s stockholders, including, without limitation, the
number of shares to be issued in a series, dividend rights and
rates, conversion rights, voting rights, liquidation preferences
and redemption terms.
Anti-Takeover Provisions
Nevada Law
Nevada Business Combination Statute. The “business combination”
provisions of Sections 78.411 to 78.444, inclusive, of the Nevada
Revised Statutes generally prohibit a Nevada corporation with at
least 200 stockholders of record from engaging in various
“business combination” transactions with any interested
stockholder for a period of two years after the date that the
person first become an interested stockholder, unless the business
combination or the transaction by which the person first became an
interested stockholder is approved by the corporation’s board
of directors before the person first became an interested
stockholder, or the business combination is approved by the board
of directors and thereafter is approved at a meeting of the
corporation’s stockholders by the affirmative vote of at
least 60% of the outstanding voting power of the corporation held
by disinterested stockholders.
4
Following the expiration of the two-year period, the corporation is
prohibited from engaging in a “business combination”
transaction with the interested stockholder, unless:
●
the
business combination or the transaction by which the person first
became an interested stockholder is approved by the
corporation’s board of directors before the person first
became an interested stockholder;
●
the
business combination is approved by a majority of the outstanding
voting power of the corporation held by disinterested stockholders;
or
●
the
aggregate amount of the consideration to be received in the
business combination by all of the holders of outstanding common
shares of the corporation not beneficially owned by the interested
stockholder is at least equal to the higher of: (a) the highest
price per share paid by the interested stockholder for any common
shares acquired by the interested stockholder within two years
immediately before the date of the announcement of the business
combination or within two years immediately before, or in, the
transaction in which the person became an interested stockholder,
whichever is higher, and (b) the market value per common share on
the date of the announcement of the business combination or on the
date that the person first became an interested stockholder,
whichever is higher.
In general, an “interested stockholder” is any person
who is (i) the direct or indirect beneficial owner of 10% or more
of the voting power of the outstanding voting shares of the
corporation, or (ii) an affiliate or associate of the corporation
and at any time within two years immediately before the date in
question was the direct or indirect beneficial owner of 10% or more
of the voting power of the then outstanding shares of the
corporation.
A “combination” is generally defined to include mergers
or consolidations; any sale, lease exchange, mortgage, pledge,
transfer, or other disposition, in one transaction or a series of
transactions: (a) having an aggregate market value equal to more
than five percent of the aggregate market value of the consolidated
assets of the corporation, (b) having an aggregate market value
equal to more than five percent of the aggregate market value of
all outstanding shares of the corporation, (c) representing more
than ten percent of the consolidated earning power or net income of
the corporation; and certain other transactions, with an interested
stockholder or an affiliate or associate of an interested
stockholder.
The business combination statute could prohibit or delay mergers or
other takeover or change in control attempts and, accordingly, may
discourage attempts to acquire the Company even though such a
transaction may offer the Company’s stockholders the
opportunity to sell their stock at a price above the prevailing
market price.
Nevada Control Share Acquisition Statute. Sections 78.378 to 78.3793, inclusive, of the
Nevada Revised Statutes limit the voting rights of certain acquired
shares in a corporation. This “control share” statute
applies to any acquisition of outstanding voting securities of a
Nevada corporation that has 200 or more stockholders of record (at
least 100 of which are Nevada residents) and conducts business in
Nevada resulting in ownership of the corporation’s then
outstanding voting securities in excess of one of the following
thresholds: (i) one-fifth or more but less than one-third, (ii)
one-third or more but less than a majority, and (iii) a majority or
more. Once an acquirer crosses one of these thresholds by acquiring
a controlling interest in the corporation, the shares which the
acquirer acquired in the transaction taking it over the threshold
and within the 90 days immediately preceding the date when the
acquiring person acquired or offered to acquire a controlling
interest in the corporation become “control shares.”
The acquirer is denied voting rights with respect to the control
shares, unless stockholders representing a majority of the voting
power of the corporation approve the granting of full voting rights
to the control shares.
As permitted under Nevada law, the Company has elected to
“opt out” of the control share statute pursuant to a
provision in its Bylaws.
Articles of Incorporation and Bylaws
The Company’s Articles of Incorporation and Bylaws include
anti-takeover provisions that:
●
authorize
the Board of Directors, without further action by stockholders, to
issue shares of Preferred Stock in one or more series, and with
respect to each series, to fix the number of shares constituting
that series and establish the rights and terms of that
series;
●
require
at least one-fifth of the outstanding shares of the Company’s
stock to call special meetings;
●
establish
advance notice procedures for stockholders to submit nominations of
candidates for election to the Board of Directors to be brought
before a stockholder meeting;
●
allow
the Company’s directors to establish the size of the Board of
Directors and fill vacancies on the Board created by an increase in
the number of directors; and
●
provide
that the Bylaws may be amended by the Board of Directors without
stockholder approval.
5
Provisions of the Articles of Incorporation and Bylaws may delay or
discourage transactions involving an actual or potential change in
control of the Company or change in the Company’s Board of
Directors or management, including transactions in which
stockholders might otherwise receive a premium for their shares or
transactions that stockholders might otherwise deem to be in their
best interests.
Authorized and Unissued Shares
The Company’s authorized and unissued shares of Common Stock
will be available for future issuance without stockholder approval.
The Company may use additional shares for a variety of purposes,
including future offerings to raise capital, to fund acquisitions
and as employee, director and consultant compensation. The
existence of authorized but unissued Common Stock could render more
difficult, or discourage, an attempt to obtain control of the
Company by means of a proxy contest, tender offer, merger or
otherwise.
The Company’s Articles of Incorporation authorize the
issuance of 1,000,000 shares of “blank check” Preferred
Stock with such designations, rights and preferences as may be
determined from time to time by the Company’s Board of
Directors. Accordingly, the Board of Directors is empowered,
without stockholder approval, to issue shares of Preferred Stock
with dividend, liquidation, conversion, voting or other rights that
could adversely affect the value, voting power or other rights of
holders of Common Stock. In addition, the Board of Directors may,
under certain circumstances, issue Preferred Stock in order to
delay, defer, prevent or make more difficult a change of control
transaction such as a merger, tender offer, business combination or
proxy contest, assumption of control by a holder of a large block
of the Company’s securities or the removal of incumbent
management of the Company, even if those events were favorable to
the interests of the Company’s stockholders. The Company
currently has no outstanding shares of Preferred
Stock.
Transfer Agent and Registrar
The
transfer agent for the shares of the Company’s Common Stock
is American Stock Transfer & Trust Company,
LLC.
We may
issue depositary receipts representing interests, which are called
depositary shares, in shares of our Common Stock or of particular
series of Preferred Stock. If we did that, we would deposit the
Common Stock or Preferred Stock which is the subject of depositary
shares with a depositary, which would hold that Common Stock or
Preferred Stock for the benefit of the holders of the depositary
shares, in accordance with a deposit agreement between the
depositary and us. The holders of depositary shares would be
entitled to all the rights and preferences of the Common Stock or
Preferred Stock to which the depositary shares relate, including
dividend, voting, conversion, redemption and liquidation rights, to
the extent of their interests in that Common Stock or Preferred
Stock.
While
the deposit agreement relating to Common Stock or a particular
series of Preferred Stock may have provisions applicable solely to
Common Stock or that series of Preferred Stock, all deposit
agreements relating to Common Stock or Preferred Stock we issue
would include the following provisions:
Dividends and Other Distributions. Each time we pay a cash
dividend or make any other type of cash distribution with regard to
the Common Stock or to the Preferred Stock of a series, the
depositary will receive, and will distribute to the holder of
record of each depositary share relating to that Common Stock or to
that series of Preferred Stock, an amount equal to the dividend or
other distribution per depositary share. If there is a distribution
of property other than cash, the depositary either will distribute
the property to the holders of depositary shares in proportion to
the depositary shares held by each of them, or the depositary will,
if we approve, sell the property and distribute the net proceeds to
the holders of the depositary shares in proportion to the
depositary shares held by them.
Withdrawal of Common Stock or Preferred Stock. A holder of
depositary shares will be entitled to receive, upon surrender of
depositary receipts representing depositary shares, the number of
shares of the applicable Common Stock or series of Preferred Stock,
and any money or other property, to which the depositary shares
relate.
Redemption of Depositary Shares. Whenever we redeem shares
of a series of Preferred Stock held by a depositary, the depositary
will be required to redeem, on the same redemption date, depositary
shares relating, in total, to the number of shares of that series
held by the depositary which we redeem, subject to the
depositary’s receiving the redemption price of those shares.
If fewer than all the depositary shares relating to a series are to
be redeemed, the depositary shares to be redeemed will be selected
by lot or by another method we determine to be
equitable.
Voting. Any time we send a notice of meeting or other
materials relating to a meeting to the holders of Common Stock or a
series of Preferred Stock to which depositary shares relate, we
will provide the depositary with sufficient copies of those
materials so they can be sent to all holders of record of the
applicable depositary shares, and the depositary will send those
materials to the holders of record of the depositary shares on the
record date for the meeting. The depositary will solicit voting
instructions from holders of depositary shares and will vote or not
vote the Common Stock or Preferred Stock to which the depositary
shares relate in accordance with those instructions.
6
Liquidating Distributions. Upon our liquidation, dissolution
or winding up, the holder of each depositary share will be entitled
to what the holder of the depositary share would have received if
the holder had owned the number of shares of Common Stock or of the
series of Preferred Stock which is represented by the depositary
share.
Conversion. If shares of a series of Preferred Stock are
convertible into Common Stock or other of our securities or
property, holders of depositary shares relating to that series of
Preferred Stock will, if they surrender depositary receipts
representing depositary shares with appropriate instructions to
convert them, receive the shares of Common Stock or other
securities or property into which the number of shares of the
series of Preferred Stock to which the depositary shares relate
could at the time be converted.
Amendment and Termination of a Deposit Agreement. We and the
depositary may amend a deposit agreement, except that an amendment
which materially and adversely affects the rights of holders of
depositary shares, or would be materially and adversely
inconsistent with the rights granted to the holders of Common Stock
or the series of Preferred Stock to which they relate, will have to
be approved by holders of a designated percentage of the depositary
shares then outstanding. No amendment will impair the right of a
holder of depositary shares to surrender the depositary receipts
evidencing those depositary shares and receive the Common Stock or
Preferred Stock to which they relate, except as required to comply
with law. We may terminate a deposit agreement with the consent of
holders of a majority of the depositary shares to which it relates.
Upon termination of a deposit agreement, the depositary will make
the shares of Common Stock or Preferred Stock to which the
depositary shares issued under the deposit agreement relate
available to the holders of those depositary shares. A deposit
agreement will automatically terminate if:
●
all
outstanding depositary shares to which it relates have been
withdrawn, redeemed or converted, or
●
the
depositary has made a final distribution to the holders of the
depositary shares issued under the deposit agreement upon our
liquidation, dissolution or winding up.
Miscellaneous. There will be provisions (i) requiring the
depositary to forward to holders of record of depositary shares any
reports or communications from us which the depositary receives
with respect to the Common Stock or Preferred Stock to which the
depositary shares relate, (ii) regarding compensation of the
depositary, (iii) regarding resignation of the depositary, (iv)
limiting our liability and the liability of the depositary under
the deposit agreement (usually to failure to act in good faith,
gross negligence or willful misconduct) and (v) indemnifying the
depositary against certain possible liabilities.
7
General
We will
issue the debt securities offered by this prospectus and any
accompanying prospectus supplement under an indenture to be entered
into between us and the trustee identified in the applicable
prospectus supplement. The terms of the debt securities will
include those stated in the indenture and those made part of the
indenture by reference to the Trust Indenture Act of 1939, as in
effect on the date of the indenture. We have filed a copy of the
form of indenture as an exhibit to the registration statement in
which this prospectus is included. The indenture will be subject to
and governed by the terms of the Trust Indenture Act of
1939.
We may
offer under this prospectus up to an aggregate principal amount of
$50,000,000 in debt securities, or if debt securities are issued at
a discount, or in a foreign currency, foreign currency units or
composite currency, the principal amount as may be sold for an
aggregate public offering price of up to $50,000,000. Unless
otherwise specified in the applicable prospectus supplement, the
debt securities will represent our direct, unsecured obligations
and will rank equally with all of our other unsecured
indebtedness.
The
debt securities, if and when issued, will be direct, unsecured
obligations of our Company and may be either senior debt securities
or subordinated debt securities. We may issue debt securities in
one or more issuances or series. An indenture, or a supplemental
indenture, will set forth specific terms of each issue or series of
debt securities. There will be prospectus supplements relating to
particular issues or series of debt securities. Each prospectus
supplement will describe:
●
the
title of the debt securities and whether the debt securities are
senior or subordinated debt securities;
●
the
total principal amount of the debt securities we are offering by
that prospectus supplement;
●
the
date or dates on which principal of the debt securities will be
payable and the amount of principal which will be
payable;
●
the
rate or rates (which may be fixed or variable) at which the debt
securities will bear interest, if any, or contingent interest, if
any, as well as the dates from which interest will accrue, the
dates on which interest will be payable, the persons to whom
interest will be payable, if other than the registered holders on
the record date, and the record date for the interest payable on
any payment date;
●
the
currency in which principal and interest, and any premium, will be
payable;
●
the
place or places where principal, premium, if any, and interest, if
any, on the debt securities will be payable and where debt
securities which are in registered form can be presented for
registration of transfer or exchange;
●
any
provisions regarding our right to prepay debt securities or the
right of holders to require us to prepay debt
securities;
●
the
right, if any, of holders of the debt securities to convert them
into Common Stock or other securities, including any contingent
conversion provisions;
●
any
provisions requiring or permitting us to make payments to a sinking
fund which will be used to redeem debt securities or a purchase
fund which will be used to purchase debt securities;
●
the
percentage of the principal amount of the debt securities which is
payable if maturity of the debt securities is accelerated because
of a default;
●
any
special or modified events of default or covenants with respect to
the debt securities; and
●
any
other material terms of the debt securities.
We may
issue discount debt securities that provide for an amount less than
the stated principal amount to be due and payable upon acceleration
of the maturity of such debt securities in accordance with the
terms of the indenture. We may also issue debt securities in bearer
form, with or without coupons. If we issue discount debt securities
or debt securities in bearer form, we will describe material U.S.
federal income tax considerations and other material special
considerations which apply to these debt securities in the
applicable prospectus supplement.
We may
issue debt securities denominated in or payable in a foreign
currency or currencies or a foreign currency unit or units. If we
do, we will describe the restrictions, elections, and general tax
considerations relating to the debt securities and the foreign
currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Registrar and Paying Agent
The
debt securities may be presented for registration of transfer or
for exchange at the corporate trust office of the security
registrar or at any other office or agency that we maintain for
those purposes. In addition, the debt securities may be presented
for payment of principal, interest and any premium at the office of
the paying agent or at any office or agency that we maintain for
those purposes.
8
Conversion or Exchange Rights
Debt
securities may be convertible into or exchangeable for shares of
our Common Stock or other securities. The terms and conditions of
conversion or exchange will be stated in the applicable prospectus
supplement. The terms will include, among others, the
following:
●
the
conversion or exchange price;
●
the
conversion or exchange period;
●
provisions
regarding the convertibility or exchangeability of the debt
securities, including who may convert or exchange;
●
events
requiring adjustment to the conversion or exchange
price;
●
provisions
affecting conversion or exchange in the event of our redemption of
the debt securities; and
●
any
anti-dilution provisions, if applicable.
Registered Global Securities
If we
decide to issue debt securities in the form of one or more global
securities, then we will register the global securities in the name
of the depositary for the global securities or the nominee of the
depositary, and the global securities will be delivered by the
trustee to the depositary for credit to the accounts of the holders
of beneficial interests in the debt securities.
The
prospectus supplement will describe the specific terms of the
depositary arrangement for debt securities of a series that are
issued in global form. None of us, the trustee, any payment agent
or the security registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a global debt security
or for maintaining, supervising or reviewing any records relating
to these beneficial ownership interests.
No Protection in the Event of a Change of Control
The
indenture does not have any covenants or other provisions providing
for a put or increased interest or otherwise that would afford
holders of our debt securities additional protection in the event
of a recapitalization transaction, a change of control or a highly
leveraged transaction. If we offer any covenants or provisions of
this type with respect to any debt securities covered by this
prospectus, we will describe them in the applicable prospectus
supplement.
Covenants
Unless
otherwise indicated in this prospectus or the applicable prospectus
supplement, our debt securities will not have the benefit of any
covenants that limit or restrict our business or operations, the
pledging of our assets or the incurrence by us of indebtedness. We
will describe in the applicable prospectus supplement any material
covenants in respect of a series of debt securities.
Merger, Consolidation or Sale of Asset
The
form of indenture provides that we will not consolidate with or
merge into any other person or convey, transfer, sell, lease or
otherwise dispose of our properties and assets substantially as an
entirety to any person, unless:
●
we are
the surviving person of such merger or consolidation, or if we are
not the surviving person, the person formed by the consolidation or
into or with which we are merged or the person to which our
properties and assets are conveyed, transferred, sold or leased, is
a corporation organized and existing under the laws of the U.S.,
any state or the District of Columbia or a corporation or
comparable legal entity organized under the laws of a foreign
jurisdiction and has expressly assumed all of our obligations,
including the payment of the principal of, and premium and
interest, if any, on, the debt securities and the performance of
the other covenants under the indenture; and
●
immediately
before and immediately after giving effect to the transaction on a
pro forma basis, no event of default, and no event which, after
notice or lapse of time or both, would become an event of default,
has occurred and is continuing under the indenture.
9
Events of Default and Remedies
Unless
otherwise specified in the applicable prospectus supplement, the
following events will be events of default under the indenture with
respect to debt securities of any series:
●
we fail
to pay any principal or premium, if any, when it becomes
due;
●
we fail
to pay any interest within 30 days after it becomes
due;
●
we fail
to observe or perform any other covenant in the debt securities or
the indenture for 60 days after written notice specifying the
failure from the trustee or the holders of not less than 25% in
aggregate principal amount of the outstanding debt securities of
that series; and
●
certain
events involving bankruptcy, insolvency or reorganization of us or
any of our significant subsidiaries.
The
trustee may withhold notice to the holders of the debt securities
of any series of any default, except in payment of principal of, or
premium or interest, if any, on, the debt securities of a series,
if the trustee considers it to be in the best interest of the
holders of the debt securities of that series to do
so.
If an
event of default (other than an event of default resulting from
certain events of bankruptcy, insolvency or reorganization) occurs,
and is continuing, then the trustee or the holders of not less than
25% in aggregate principal amount of the outstanding debt
securities of any series may accelerate the maturity of the debt
securities. If this happens, the entire principal amount, plus the
premium, if any, of all the outstanding debt securities of the
affected series plus accrued interest to the date of acceleration
will be immediately due and payable. At any time after the
acceleration, but before a judgment or decree based on such
acceleration is obtained by the trustee, the holders of a majority
in aggregate principal amount of outstanding debt securities of
such series may rescind and annul such acceleration
if:
●
all
events of default (other than nonpayment of accelerated principal,
premium or interest) have been cured or waived;
●
all
lawful interest on overdue interest and overdue principal has been
paid; and
●
the
rescission would not conflict with any judgment or
decree.
In
addition, if the acceleration occurs at any time when we have
outstanding indebtedness that is senior to the debt securities, the
payment of the principal amount of outstanding debt securities may
be subordinated in right of payment to the prior payment of any
amounts due under the senior indebtedness, in which case the
holders of debt securities will be entitled to payment under the
terms prescribed in the instruments evidencing the senior
indebtedness and the indenture.
If an
event of default resulting from certain events of bankruptcy,
insolvency or reorganization occurs, the principal, premium and
interest amount with respect to all of the debt securities of any
series will be due and payable immediately without any declaration
or other act on the part of the trustee or the holders of the debt
securities of that series.
The
holders of a majority in principal amount of the outstanding debt
securities of a series will have the right to waive any existing
default or compliance with any provision of the indenture or the
debt securities of that series and to direct the time, method and
place of conducting any proceeding for any remedy available to the
trustee, subject to certain limitations specified in the
indenture.
No
holder of any debt security of a series will have any right to
institute any proceeding with respect to the indenture or for any
remedy under the indenture, unless:
●
the
holder gives to the trustee written notice of a continuing event of
default;
●
the
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the affected series make a written
request and offer reasonable indemnity to the trustee to institute
a proceeding as trustee;
●
the
trustee fails to institute a proceeding within 60 days after such
request; and
●
the
holders of a majority in aggregate principal amount of the
outstanding debt securities of the affected series do not give the
trustee a direction inconsistent with such request during such
60-day period.
These
limitations do not, however, apply to a suit instituted for payment
on debt securities of any series on or after the due dates
expressed in the debt securities.
We will
periodically deliver certificates to the trustee regarding our
compliance with our obligations under the indenture.
10
Modification of an Indenture
From
time to time, we and the trustee may, without the consent of
holders of the debt securities of one or more series, amend the
indenture or the debt securities of one or more series, or
supplement the indenture, for certain specified purposes,
including:
●
to
provide that the surviving entity following a change of control
permitted under the indenture will assume all of our obligations
under the indenture and debt securities;
●
to
provide for certificated debt securities in addition to
uncertificated debt securities;
●
to
comply with any requirements of the SEC under the Trust Indenture
Act of 1939;
●
to
provide for the issuance of and establish the form and terms and
conditions of debt securities of any series as permitted by the
indenture;
●
to cure
any ambiguity, defect or inconsistency, or make any other change
that does not materially and adversely affect the rights of any
holder; and
●
to
appoint a successor trustee under the indenture with respect to one
or more series.
From
time to time we and the trustee may, with the consent of holders of
at least a majority in principal amount of an outstanding series of
debt securities, amend or supplement the indenture or the debt
securities series, or waive compliance in a particular instance by
us with any provision of the indenture or the debt securities. We
may not, however, without the consent of each holder affected by
such action, modify or supplement the indenture or the debt
securities or waive compliance with any provision of the indenture
or the debt securities in order to:
●
reduce
the amount of debt securities whose holders must consent to an
amendment, supplement, or waiver to the indenture or such debt
security;
●
reduce
the rate of or change the time for payment of interest or reduce
the amount of or postpone the date for payment of sinking fund or
analogous obligations;
●
reduce
the principal of or change the stated maturity of the debt
securities;
●
make
any debt security payable in money other than that stated in the
debt security;
●
change
the amount or time of any payment required or reduce the premium
payable upon any redemption, or change the time before which no
such redemption may be made;
●
waive a
default in the payment of the principal of, or premium or interest,
if any, on, the debt securities or a redemption
payment;
●
waive a
redemption payment with respect to any debt securities or change
any provision with respect to redemption of debt securities;
or
●
take
any other action otherwise prohibited by the indenture to be taken
without the consent of each holder affected by the
action.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
The
indenture permits us, at any time, to elect to discharge our
obligations with respect to one or more series of debt securities
by following certain procedures described in the indenture. These
procedures will allow us either:
●
to
defease and be discharged from any and all of our obligations with
respect to any debt securities except for the following obligations
(which discharge is referred to as “legal
defeasance”):
●
to register the
transfer or exchange of such debt securities;
●
to replace
temporary or mutilated, destroyed, lost or stolen debt
securities;
●
to compensate and
indemnify the trustee;
●
to maintain an
office or agency in respect of the debt securities and to hold
monies for payment in trust; or
●
to be
released from our obligations with respect to the debt securities
under certain covenants contained in the indenture, as well as any
additional covenants which may be contained in the applicable
supplemental indenture (which release is referred to as
“covenant defeasance”).
In
order to exercise either defeasance option, we must irrevocably
deposit with the trustee or other qualifying trustee, in trust for
that purpose:
●
money;
●
U.S.
Government Obligations (as described below) or Foreign Government
Obligations (as described below) that through the scheduled payment
of principal and interest in accordance with their terms will
provide money; or
●
a
combination of money and/or U.S. Government Obligations and/or
Foreign Government Obligations sufficient in the written opinion of
a nationally-recognized firm of independent accountants to provide
money;
that,
in each case specified above, provides a sufficient amount to pay
the principal of, premium, if any, and interest, if any, on the
debt securities of the series, on the scheduled due dates or on a
selected date of redemption in accordance with the terms of the
indenture.
In
addition, defeasance may be effected only if, among other
things:
●
in the
case of either legal or covenant defeasance, we deliver to the
trustee an opinion of counsel, as specified in the indenture,
stating that as a result of the defeasance neither the trust nor
the trustee will be required to register as an investment company
under the Investment Company Act of 1940;
11
●
in the
case of legal defeasance, we deliver to the trustee an opinion of
counsel stating that we have received from, or there has been
published by, the Internal Revenue Service a ruling to the effect
that, or there has been a change in any applicable federal income
tax law with the effect that (and the opinion shall confirm that),
the holders of outstanding debt securities will not recognize
income, gain or loss for U.S. federal income tax purposes solely as
a result of such legal defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would
have been the case if legal defeasance had not
occurred;
●
in the
case of covenant defeasance, we deliver to the trustee an opinion
of counsel to the effect that the holders of the outstanding debt
securities will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
covenant defeasance had not occurred; and
●
certain
other conditions described in the indenture are
satisfied.
If we
fail to comply with our remaining obligations under the indenture
and applicable supplemental indenture after a covenant defeasance
of the indenture and applicable supplemental indenture, and the
debt securities are declared due and payable because of the
occurrence of any undefeased event of default, the amount of money
or U.S. Government Obligations or Foreign Government Obligations on
deposit with the trustee could be insufficient to pay amounts due
under the debt securities of the affected series at the time of
acceleration. We will, however, remain liable in respect of these
payments.
The
term “U.S. Government Obligations” as used in the above
discussion means securities that are direct non-callable
obligations of, or non-callable obligations guaranteed by, the
United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of America
is pledged.
The
term “Foreign Government Obligations” as used in the
above discussion means, with respect to debt securities of any
series that are denominated in a currency other than U.S. dollars,
(1) direct obligations of the government that issued or caused to
be issued such currency for the payment of which obligations its
full faith and credit is pledged or (2) obligations of a person
controlled or supervised by or acting as an agent or
instrumentality of such government, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
that government, which in either case under clauses (1) or (2), are
not callable or redeemable at the option of the
issuer.
Regarding the Trustee
We will
identify the trustee with respect to any series of debt securities
in the prospectus supplement relating to the applicable debt
securities. You should note that if the trustee becomes a creditor
of ours, the indenture and the Trust Indenture Act of 1939 limit
the rights of the trustee to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any
such claim, as security or otherwise. The trustee and its
affiliates may engage in, and will be permitted to continue to
engage in, other transactions with us and our affiliates. If,
however, the trustee acquires any “conflicting
interest” within the meaning of the Trust Indenture Act of
1939, it must eliminate such conflict or resign.
The
holders of a majority in principal amount of the then outstanding
debt securities of any series may direct the time, method and place
of conducting any proceeding for exercising any remedy available to
the trustee. If an event of default occurs and is continuing, the
trustee, in the exercise of its rights and powers, must use the
degree of care and skill of a prudent person in the conduct of his
or her own affairs. Subject to that provision, the trustee will be
under no obligation to exercise any of its rights or powers under
the indenture at the request of any of the holders of the debt
securities, unless they have offered to the trustee reasonable
indemnity or security.
No Individual Liability of Incorporators, Stockholders, Officers or
Directors
Each
indenture provides that no incorporator and no past, present or
future stockholder, officer or director of our Company or any
successor corporation in those capacities will have any individual
liability for any of our obligations, covenants or agreements under
the debt securities or such indenture.
Governing Law
The
indentures and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New
York.
12
DESCRIPTION OF WARRANTS
We may
issue warrants to purchase Common Stock, Preferred Stock,
depositary shares, debt securities or units. Each issue of warrants
will be the subject of a warrant agreement which will contain the
terms of the warrants. In the event that we issue warrants, we will
distribute a prospectus supplement with regard to each issue of
warrants. The following description, and any description of the
warrants included in a prospectus supplement, may not be complete
and is subject to and qualified in its entirety by reference to the
terms and provisions of the applicable warrant agreement, which we
will file with the SEC in connection with any offering of warrants.
Each prospectus supplement will describe, as to the warrants to
which it relates:
●
the
securities which may be purchased by exercising the warrants (which
may be Common Stock, Preferred Stock, depositary shares, debt
securities or units consisting of two or more of those types of
securities);
●
the
exercise price of the warrants (which may be wholly or partly
payable in cash or wholly or partly payable with other types of
consideration);
●
the
period during which the warrants may be exercised;
●
any
provision adjusting the securities which may be purchased on
exercise of the warrants and the exercise price of the warrants in
order to prevent dilution or otherwise;
●
the
place or places where warrants can be presented for exercise or for
registration of transfer or exchange; and
●
any
other material terms of the warrants.
Exercise of Warrants
Each
warrant will entitle the holder of the warrant to purchase for cash
the amount of Common Stock, Preferred Stock, depositary shares,
debt securities or units at the exercise price stated or
determinable in the applicable prospectus supplement for the
warrants. Warrants may be exercised at any time up to the close of
business on the expiration date shown in the applicable prospectus
supplement, unless otherwise specified in such prospectus
supplement. After the close of business on the expiration date,
unexercised warrants will become void. Warrants may be exercised as
described in the applicable prospectus supplement.
Until a
holder exercises the warrants to purchase any securities underlying
the warrants, the holder will not have any rights as a holder of
the underlying securities by virtue of ownership of
warrants.
We may
issue securities in units, each consisting of two or more types of
securities. For example, we might issue units consisting of a
combination of debt securities and warrants to purchase Common
Stock. If we issue units, the prospectus supplement relating to the
units will contain the information described above with regard to
each of the securities that is a component of the units. In
addition, each prospectus supplement relating to units
will:
●
state
how long, if at all, the securities that are components of the
units must be traded in units, and when they can be traded
separately;
●
state
whether we will apply to have the units traded on a securities
exchange or securities quotation system; and
●
describe
how, for U.S. federal income tax purposes, the purchase price paid
for the units is to be allocated among the component
securities.
13
We may
sell the securities offered through this prospectus and applicable
prospectus supplements in one or more of the following ways from
time to time: (i) to or through underwriters or dealers, (ii)
directly to one or more purchasers, including our affiliates, (iii)
through agents, (iv) through a combination of any these methods, or
(v) through any other method permitted by applicable
law.
In
addition, the manner in which we may sell some or all of the
securities covered by this prospectus, includes, without
limitation, through:
●
an
“at the market” offering, within the meaning of Rule
415(a)(4) of the Securities Act, to or through a market maker or
into an existing trading market on an exchange or
otherwise;
●
a block
trade in which a broker-dealer will attempt to sell as agent, but
may position or resell a portion of the block, as principal, in
order to facilitate the transaction;
●
purchases
by a broker-dealer, as principal, and resale by the broker-dealer
for its account;
●
ordinary
brokerage transactions and transactions in which a broker solicits
purchasers; or
●
privately
negotiated transactions.
The
securities may be distributed at a fixed price or prices, which may
be changed, based on market prices prevailing at the time of sale,
prices related to the prevailing market prices, or negotiated
prices. The prospectus supplement relating to an offering of
securities will set forth the terms of such offering,
including:
●
the
name or names of any underwriters or agents;
●
the
name or names of any managing underwriter or
underwriters;
●
the
name or names of any broker-dealers or placement
agents;
●
the
purchase price of the securities;
●
any
over-allotment options under which underwriters may purchase
additional securities;
●
the net
proceeds from the sale of the securities;
●
any
delayed delivery arrangements;
●
any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
●
any
initial public offering price;
●
any
discounts or concessions allowed or reallowed or paid to
dealers;
●
any
commissions paid to agents; and
●
any
securities exchange or market on which the securities may be
listed.
Sale Through Underwriters or Dealers
Only
underwriters named in a prospectus supplement are underwriters of
the securities offered by such prospectus supplement.
If
underwriters are used in the sale, the underwriters will acquire
the securities for their own account, including through
underwriting, purchase, security lending or repurchase agreements
with us. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated
transactions. Underwriters may sell the securities in order to
facilitate transactions in any of our other securities (described
in this prospectus or otherwise), including other public or private
transactions and short sales. Underwriters may offer securities to
the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more firms
acting as underwriters without a syndicate. Unless otherwise
indicated in a prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to certain
conditions, and the underwriters will be obligated to purchase all
the offered securities if they purchase any of them. The
underwriters may change from time to time any public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers.
If
dealers are used in the sale of securities offered through this
prospectus, we will sell the securities to them as principals. The
dealers may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. The
prospectus supplement will include the names of the dealers and the
terms of the transaction.
In
compliance with guidelines of the Financial Industry Regulatory
Authority, or FINRA, and unless otherwise modified by FINRA,
the maximum consideration or discount to be received by any FINRA
member or independent broker-dealer may not exceed 8% of the
aggregate amount of the securities offered pursuant to this
prospectus and any applicable prospectus supplement.
14
Direct Sales and Sales Through Agents
We may
sell the securities offered through this prospectus directly. In
this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to
time. Any applicable prospectus supplement will name any agent
involved in the offer or sale of the offered securities and will
describe any commissions payable to the agent. Unless otherwise
indicated in the prospectus supplement, any agent will agree to use
its reasonable best efforts to solicit purchases for the period of
its appointment.
We may
sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. The
terms of any such sales will be described in a prospectus
supplement.
Delayed Delivery Contracts
If an
applicable prospectus supplement indicates, we may authorize
agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities at the public offering
price under delayed delivery contracts. These contracts would
provide for payment and delivery on a specified date in the future.
The contracts would be subject only to those conditions described
in the prospectus supplement. The applicable prospectus supplement
will describe the commission payable for solicitation of those
contracts.
Market Making, Stabilization and Other Transactions
We may
elect to list offered securities on an exchange or in the
over-the-counter market. Any underwriters that we use in the sale
of offered securities may make a market in such securities, but may
discontinue such market making at any time without notice.
Therefore, we cannot assure you that the securities will have a
liquid trading market.
Certain
persons participating in an offering may engage in overallotment,
stabilizing transactions, syndicate covering transactions and
penalty bids in accordance with rules and regulations under the
Exchange Act. Overallotment involves sales in excess of the
offering size, which create a short position. Stabilizing
transactions involve bids to purchase the underlying security in
the open market for the purpose of pegging, fixing or maintaining
the price of the securities. Syndicate covering transactions
involve purchases of the securities in the open market after the
distribution has been completed in order to cover syndicate short
positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the
price of the securities to be higher than it would be in the
absence of the transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
General Information
Agents,
underwriters, and dealers may be entitled, under agreements entered
into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Our agents,
underwriters, and dealers, or their affiliates, may be customers
of, engage in transactions with or perform services for us in the
ordinary course of business.
LEGAL MATTERS
Kirton McConkie PC, Salt Lake City, Utah, will pass upon the
validity of any securities that we offer from time to time pursuant
to this prospectus and any related prospectus supplement. If the
securities are being distributed in an underwritten offering,
certain legal matters will be passed upon for the underwriters by
counsel identified in the applicable prospectus
supplement.
The
consolidated financial statements of the Company as of December 31,
2019 and December 31, 2018 and for the years ended December 31,
2019 and December 31, 2018, incorporated in this prospectus by
reference to the Company’s Annual Report on Form 10-K for the
year ended December 31, 2019, have been so incorporated in reliance
on the report of MSL, P.A., an independent registered public
accounting firm, incorporated herein by reference, given on the
authority of said firm as experts in accounting and
auditing.
15
We are
subject to the information reporting requirements of the Exchange
Act and, in accordance with these requirements, we file annual,
quarterly and current reports, proxy statements, information
statements, and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC’s
website at www.sec.gov. In addition, we provide free access to
these materials through our website, www.bktechnologies.com, as
soon as reasonably practicable after they are filed with or
furnished to the SEC. Information contained on, or that may be
accessible through, our website is not a part of, and is not
incorporated into, this prospectus.
We have
filed with the SEC a registration statement on Form S-3 relating to
the securities covered by this prospectus and any prospectus
supplement. This prospectus is a part of the registration statement
and does not contain all the information in the registration
statement. Whenever a reference is made in this prospectus or any
prospectus supplement to a contract or other document, the
reference is only a summary and you should refer to the exhibits
that are a part of the registration statement for a copy of the
contract or other document. You may review a copy of the
registration statement through the SEC’s
website.
The SEC
allows us to incorporate by reference information in this document.
This means that we can disclose important information to you by
referring you to documents that we have previously filed with the
SEC or documents that we will file with the SEC in the future. The
information incorporated by reference is considered to be an
important part of this prospectus, except for any information that
is superseded by information that is included directly in this
document.
We are
incorporating by reference in this prospectus the following
documents which we have previously filed with the SEC (other than
any portions of the Current Reports on Form 8-K that were furnished
pursuant to Item 2.02 or 7.01 of Form 8-K or other applicable SEC
rules):
(1)
Annual Report on Form 10-K for the year ended December 31, 2019,
filed on March 4, 2020 (File No. 001-32644);
(2)
Quarterly
Reports on Form 10-Q for the quarters ended
March 31, 2020, filed on May 13, 2020 , and
June 30, 2020, filed on August 5, 2020 and
September 30, 2020, filed on November 12, 2020;
(3)
Definitive Proxy Statement on Schedule 14A, filed on April 28,
2020 (File No. 001-32644);
(4)
Current
Reports on Form 8-K filed on
January 30, 2020,
March 2, 2020,
March 4, 2020 (other than the portions of such document not
deemed to be filed),
March 5, 2020 (other than the portions of such document not
deemed to be filed),
March 16, 2020,
March 25, 2020,
April 16, 2020,
April 24, 2020,
May 5, 2020,
May 13, 2020 (other than the portions of such document not
deemed to be filed),
May 15, 2020 (other than the portions of such document not
deemed to be filed),
June 10, 2020,
June 24, 2020,
July 23, 2020,
August 5, 2020 (other than the portions of such document not
deemed to be filed),
August 7, 2020 (other than the portions of such document not
deemed to be filed),
September 3, 2020 (other than the portions of such document not
deemed to be filed),
September 17, 2020,
November 12, 2020 (other than the portions of such document not
deemed to be filed); and
November 13, 2020 (other than the portions of such document not
deemed to be filed).
(5)
The
description of our shares of Common Stock contained in our
Registration Statement on Form 8-A, filed on October 13, 2005,
as amended by the
Current Report on Form 8-K12B, filed on March 28, 2019, and
Exhibit 4.1 filed with the Form 10-K for the year ended December
31, 2019, filed on March 4, 2020 (File No. 001-32644), and any
further amendment or report filed for the purpose of updating such
description.
Whenever
after the date of filing the registration statement of which this
prospectus is a part, and until all of the securities to which this
prospectus relates have been sold or the offering is otherwise
terminated, we file reports or documents under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, those reports and documents
will be deemed to be part of, and incorporated by reference into,
this prospectus from the time they are filed. Any statements made
in this prospectus or in a document incorporated or deemed to be
incorporated by reference in this prospectus will be deemed to be
modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus or in any
subsequently filed document that is also incorporated or deemed to
be incorporated by reference in this prospectus modifies or
supersedes the statement. Nothing in this prospectus will be deemed
to incorporate information furnished by us on Form 8-K that under
the rules of the SEC, is not deemed “filed” for
purposes of the Exchange Act.
You may
request, without charge, a copy of any incorporated document
(excluding exhibits, unless we have specifically incorporated an
exhibit in an incorporated document) by writing or telephoning us
at our principal executive offices at the following
address:
BK
Technologies Corporation
Attention:
Investor Relations
7100
Technology Drive
West
Melbourne, FL 32904
(321)
984-1414
16
$50,000,000
BK Technologies Corporation
Common Stock
Preferred Stock
Senior Debt Securities
Subordinated Debt Securities
Depositary Shares
Warrants
Units
PROSPECTUS
,
2020
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 in connection with the sale and distribution of the
securities being registered, other than underwriting discounts and
commissions. All amounts shown are estimates except for the
registration fee required by the Securities and Exchange Commission
(“SEC”).
|
SEC registration
fee
|
$5,455
|
|
Accounting fees and
expenses
|
(1)
|
|
FINRA filing
fees
|
(1)
|
|
Legal fees and
expenses
|
(1)
|
|
Fees and expenses
of the trustee
|
(1)
|
|
Transfer agent fees
and expenses
|
(1)
|
|
Depositary fees and
expenses
|
(1)
|
|
Warrant agent fees
and expenses
|
(1)
|
|
Printing
expenses
|
(1)
|
|
Miscellaneous
|
(1)
|
|
Total
|
(1)
|
(1)
These
fees are calculated based on the securities offered and the number
of issuances and accordingly cannot be estimated at this
time.
Item 15. Indemnification of
Directors and Officers
The
Company is incorporated under the laws of the State of Nevada.
Section 78.138 of the Nevada Revised Statutes (“NRS”)
provides that, subject to certain exceptions under Nevada law, or
unless the Articles of Incorporation or an amendment thereto
provide for greater individual liability, a director or officer is
not individually liable to the Company or its stockholders or
creditors for any damages as a result of any act or failure to act
in his or her capacity as a director or officer unless it is proven
that (i) the director’s or officer’s act or failure to
act constituted a breach of his or her fiduciary duties as a
director or officer and (ii) the breach of those duties involved
intentional misconduct, fraud or a knowing violation of law. The
Company’s Bylaws further provide that a director shall not be
personally liable for monetary damages for any action taken, or
failure to take any action, unless (i) the director breached or
failed to perform the duties of his or her office as provided in
the NRS; and (ii) the breach or failure to perform constituted
self-dealing, willful misconduct or recklessness. In addition, the
Company’s Articles of Incorporation provide that the personal
liability of the directors of the Company is eliminated to the
fullest extent permitted by the NRS.
Under
Section 78.7502 of the NRS, the Company may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an
action by or in the right of the Company, by reason of the fact
that the person is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company 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 reasonably incurred by the
person in connection with the action, suit or proceeding, if such
person: (i) is not liable pursuant to Section 78.138 of the NRS; or
(ii) acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the conduct was unlawful.
Further, the Company may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to
procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses, including amounts paid in settlement and attorneys’
fees actually and reasonably incurred by the person in connection
with the defense or settlement of the action or suit, if such
person: (i) is not liable pursuant to NRS Section 78.138; or (ii)
acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Company. However, indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction to be liable to the Company or for
amounts paid in settlement to the Company, unless and only to the
extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as
the court deems proper. Under Section 78.751 of the NRS, to the
extent that a director, officer, employee or agent of the Company
has been successful on the merits or otherwise in defense of any
action, suit or proceeding subject to the Nevada indemnification
laws, or otherwise in defense of any such claim, issue or matter,
the Company is required to indemnify him or her against expenses,
including attorneys’ fees, actually and reasonably incurred
by him or her in connection with the defense. The Company’s
Articles of Incorporation and Bylaws comply with the Nevada law as
set forth above.
As
permitted by Nevada law, the Company’s Bylaws authorize the
Company to advance expenses (including attorneys’ fees)
incurred by a director or officer in defending any civil or
criminal action or proceeding in advance of the final disposition
of the action or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is
ultimately determined that the director or officer is not entitled
to be indemnified by the Company.
II-1
Indemnification,
unless ordered by a court pursuant to Section 78.7502 of the NRS or
for the advancement of expenses as described above, may not be made
to or on behalf of any director or officer if a final adjudication
establishes that the director’s or officer’s acts or
omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of
action.
The
Company is authorized under Nevada law to purchase and maintain
insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, for any
liability asserted against him or her and liability and expenses
incurred by him or her in his or her capacity as a director,
officer, employee or agent, or arising out of his or her status as
such, whether or not the Company has the authority to indemnify him
or her against such liability and expenses.
Under
the terms of the Company’s directors’ and
officers’ liability and company reimbursement insurance
policies, directors and officers of the Company are insured against
certain liabilities, including liabilities arising under the
Securities Act. We may in the future enter into agreements with our
directors and officers to provide contractual indemnification in
addition to the indemnification provided in our
Bylaws.
Fundamental
Global Investors, LLC (“Fundamental Global”), together
with its affiliates, is the largest stockholder of the Company. D.
Kyle Cerminara, a member of our Board of Directors, is Chief
Executive Officer, Co-Founder and Partner of Fundamental Global,
and Lewis M. Johnson, a member of our Board of Directors, is
President, Co-Founder and Partner of Fundamental Global. In
addition, John W. Struble, Chairman of the Board of Directors,
serves as a consultant to Fundamental Global Management, LLC, an
affiliate of Fundamental Global. The funds managed by Fundamental
Global, including the funds that directly own shares of our Common
Stock, have agreed to indemnify Fundamental Global and its
principals, including Messrs. Cerminara and Johnson, or any other
person designated by Fundamental Global, for claims arising from
Messrs. Cerminara’s and Johnson’s service on our Board
of Directors, provided that a fund’s indemnity obligations
are secondary to any obligations we may have with respect to
Messrs. Cerminara’s and Johnson’s service on our board
of directors.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have 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.
Item 16. Exhibits
|
Exhibit Number
|
|
Description
|
|
1.1*
|
|
Form of
Underwriting Agreement.
|
|
|
|
|
|
|
Articles
of Merger, filed with the Nevada Secretary of State on March 28,
2019 (incorporated by reference from Exhibit 2.1 to the
Company’s Current Report on Form 8-K12B filed March 28,
2019).
|
|
|
|
|
|
|
|
Articles
of Incorporation (incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K12B filed March 28,
2019).
|
|
|
|
|
|
|
|
Bylaws
(incorporated by reference from Exhibit 3.2 to the Company’s
Current Report on Form 8-K12B filed March 28, 2019).
|
|
|
|
|
|
|
|
Description
of the Company’s Registered Securities (incorporated by
reference from Exhibit 4.1 to the Company’s Annual Report on
Form 10-K for the year ended December 31, 2019 filed March 4,
2020).
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4.2*
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Form of
Certificate of Designations of Preferred Stock.
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Form
of Indenture.
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4.4*
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Form of
Debt Security.
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4.5*
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Form
of Warrant Agreement (including form of warrant
certificate).
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4.6*
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Form
of Deposit Agreement (including form of depositary share
certificate).
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4.7*
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Form
of Unit Purchase Contract Agreement (including form of unit
certificate).
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Opinion
of Kirton McConkie PC.
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Consent
of MSL, P.A. (independent registered public accounting
firm).
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Consent
of Kirton McConkie PC (included in Exhibit 5.1 to the Registration
Statement).
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Power
of Attorney (included on the signature page to the Registration
Statement).
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25.1**
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Statement of
Eligibility and Qualification on Form T-1 of the Trustee under the
Indenture pursuant to the Trust Indenture Act of 1939, as
amended.
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*
To be
filed by amendment or as an exhibit to a document incorporated by
reference into this registration statement at a later date in
connection with a specific offering.
**
To be
filed separately pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939, as amended, if applicable.
II-2
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 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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement;
iii.
To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that 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 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 SEC 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.
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
ii.
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 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.
II-3
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;
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.
b.
The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s 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 plan’s
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 SEC 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.
d.
If and
when applicable, the undersigned registrant hereby undertakes 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 regulations
prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of West
Melbourne, State of Florida, on December 11, 2020.
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BK Technologies Corporation
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By:
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/s/ William P. Kelly
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William
P. Kelly
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Executive
Vice President & Chief Financial Officer
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POWER OF ATTORNEY
Each of
the undersigned, whose signature appears below, hereby constitutes
and appoints Timothy A. Vitou and William P. Kelly and each of
them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, to do any and all acts
and things and execute, in the name of the undersigned, any and all
instruments which said attorney-in-fact and agent may deem
necessary or advisable in order to enable the Company to comply
with the Securities Act and any requirements of the SEC in respect
thereof, in connection with the filing with the SEC of this
Registration Statement on Form S-3 under the Securities Act,
including specifically but without limitation, power and authority
to sign the name of the undersigned to such Registration Statement,
and any amendments to such Registration Statement (including
post-effective amendments), and to file the same with all exhibits
thereto and other documents in connection therewith, with the SEC,
to sign any and all applications, registration statements, notices
or other documents necessary or advisable to comply with applicable
state securities laws, and to file the same, together with other
documents in connection therewith, with the appropriate state
securities authorities, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his
substitute, 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 by the following persons in
the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Timothy A. Vitou
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President
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December
11, 2020
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Timothy
A. Vitou
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(Principal
Executive Officer)
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/s/ William P. Kelly
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Executive
Vice President & Chief Financial Officer
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December
11, 2020
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William
P. Kelly
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(Principal
Financial Officer and Principal Accounting Officer)
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/s/ John W. Struble
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Director,
Chairman of the Board of Directors
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December
11, 2020
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John W.
Struble
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/s/ D. Kyle Cerminara
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Director
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December
11, 2020
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D. Kyle
Cerminara
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/s/ Michal R. Dill
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Director
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December
11, 2020
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Michael
R. Dill
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Lewis M. Johnson
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Director
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December
11, 2020
|
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Lewis
M. Johnson
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Charles T. Lanktree
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Director
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December
11, 2020
|
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Charles
T. Lanktree
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E. Gray Payne
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Director
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E. Gray
Payne
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December
11, 2020
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II-5