As filed with the Securities and Exchange Commission on October 31, 2002
Registration No. 333-97165
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VIISAGE TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3320515
--------------------------------------------------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
30 Porter Road Littleton, MA 01460
--------------------------------------------------------------------------------
(Address of Principal Executive Offices, including zip code)
Bernard Bailey
Chief Executive Officer
Viisage Technology, Inc.
30 Porter Road
Littleton, MA 01460
---------------------------------------
(Name and address of agent for service)
(978) 952-2200
---------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
Charles J. Johnson, Esq.
Hill & Barlow, a Professional Corporation
Boston, Massachusetts 02110
(617) 428-3500
Approximate date of commencement of proposed sale to public: From time
to time, after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHICH PROHIBITS THE OFFER OR SALE.
SUBJECT TO COMPLETION, DATED OCTOBER 31, 2002
PROSPECTUS
222,222 Shares
Viisage Technology, Inc.
COMMON STOCK
--------------------------------------------------------------------------------
We are registering up to 222,222 shares of our common stock for offer
or sale by the selling stockholder, Hummingbird Defense Systems, Inc.
("Hummingbird"), pursuant to the terms of a License and Distribution Agreement,
dated May 11, 2002, between the Company and Hummingbird (the "Agreement").
Hummingbird may offer or sell their shares publicly or through private
transactions at prevailing market prices or at negotiated prices.
Pursuant to the Agreement, the first $1 million of royalties earned by
Hummingbird will be paid in common stock, based on a per share price of $4.50.
The Company has agreed to register up to 222,222 shares of its common stock,
which may be issued to Hummingbird, as and when earned, under the Agreement. We
have agreed to bear all expenses (other than selling discounts, concessions or
commissions) in connection with the registration and sale of all of the shares
covered by this prospectus.
We will not receive any proceeds from the shares being registered for
offer and sale by Hummingbird.
Our common stock is listed on The Nasdaq National Market under the
symbol "VISG." The last reported sale price of our shares on October 30, 2002
was $3.72 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 2 FOR A DISCUSSION OF CERTAIN FACTORS YOU SHOULD CONSIDER
BEFORE YOU BUY SHARES OF OUR COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is October ___, 2002.
TABLE OF CONTENTS
Page
----
The Company ........................................................ 5
Risk Factors ....................................................... 6
Forward Looking Statements ......................................... 11
Use of Proceeds .................................................... 11
Selling Stockholder ................................................ 11
Plan of Distribution ............................................... 12
Interests of Named Experts and Counsel ............................. 14
Experts ............................................................ 15
Where You Can Find Additional Information .......................... 15
Incorporation of Documents by Reference ............................ 15
------------------------
You should only rely on the information contained in this document or to which
we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document.
THE COMPANY
Viisage is a leader in the field of biometrics technology and in
providing digital identification systems and solutions.
Our identification systems and solutions improve personal convenience
and security, deter fraud and reduce identification program costs. We create
complete customized solutions by combining our systems integration capabilities,
software design capabilities, proprietary software and hardware products, and
standard products in the industry. Our turnkey solutions (1) integrate image and
data capture, (2) create relational databases, (3) incorporate multiple
biometrics, and (4) improve customers' abilities to move and manage information.
Customers can apply our technology to:
o driver's licenses;
o voter registration cards;
o national identification cards;
o law enforcement and corrections applications;
o social services applications;
o facility access control and surveillance; and
o personal computer network and internet access security.
Our primary customers for these products are United States driver
licensing agencies. Since our inception in 1993, we have captured approximately
31% of the domestic driver's license market. Each year, our products facilitate
the production of more than 25 million identification documents through 1,500
systems installed at approximately 1,200 locations in 15 states and in two
foreign countries.
Our biometrics technology includes our patented facial recognition
products used for access control, PC network and internet access security and
the real-time large database identification and verification of individuals. Our
"Face-in-the-Crowd" products can recognize real-time facial images in a crowd
from video and can be used for access control and surveillance. Current systems
include installations at U.S. airports, casinos and buildings requiring enhanced
security. We also service public sector customers in Massachusetts, Florida,
Wisconsin and Illinois, where we have deployed the world's largest facial
recognition database, as well as a foreign voter registration system.
Our principal executive offices are located at 30 Porter Road,
Littleton, Massachusetts 01460, our telephone number is (978) 952-2200 and our
internet website address on the world wide web is www.viisage.com. The contents
of our website are not part of this prospectus. In this prospectus, we refer to
Viisage Technology, Inc., a Delaware corporation, as "Viisage", the "Company",
"we", "us" and "our."
5
RISK FACTORS
Any investment in our common stock involves a high degree of risk. You
should carefully consider the following information about these risks, together
with the other information contained in this prospectus, before you decide
whether to buy our common stock. If any of the following risks actually occur,
our business, results of operations and financial condition would likely suffer.
In any such case, the market price of our common stock could decline, and you
may lose all or part of the money you paid to buy our common stock.
The risks and uncertainties described below are not the only ones we
face. Additional risks and uncertainties, including those not presently known to
us or that we currently deem immaterial, may also impair our business.
OUR BUSINESS DEPENDS ON LARGE PUBLIC SECTOR CONTRACTS, WHICH CAN INVOLVE DELAYS.
Our business depends on a limited number of large public sector contracts. These
contracts result from purchasing decisions made by public sector agencies that
are often subject to political influence, onerous procurement procedures, budget
changes and award protests. These factors can cause delays, which make our
quarterly results difficult to predict. This can also make our ability to meet
analysts' expectations equally uncertain and adversely affect the price of our
common stock.
OUR QUARTERLY RESULTS COULD BE VOLATILE AND MAY CAUSE OUR STOCK PRICE TO
FLUCTUATE.
We have experienced fluctuations in our quarterly operating results and expect
those fluctuations to continue. Our quarterly results are affected by, among
other things, factors such as:
o The size and timing of contract awards;
o The timing of our contract performance;
o Variations in the mix of our products and services; and
o Contract losses and changes in management estimates inherent to
accounting for contracts.
THE LOSS OF ANY SIGNIFICANT CUSTOMER COULD CAUSE OUR REVENUE TO DECLINE.
For the year ended December 31, 2001, four customers each accounted for over 10%
of Company revenues and an aggregate of approximately 49% of revenues. For 2000,
four customers each accounted for over 10% of our revenues and a total of
approximately 58% of our revenues for the year. For 1999, four customers each
accounted for over 10% of our revenues and a total of approximately 52% of our
revenues for the year. The loss of any significant customer could cause our
revenue to decline and thus have an adverse material effect on our business and
financial condition.
6
WE HAVE HAD A HISTORY OF OPERATING LOSSES.
Our business operations began in 1993 and, except for fiscal years 1996 and
2000, have resulted in net losses in each fiscal year. At June 30, 2002, we
had an accumulated deficit of approximately $18.5 million. We intend to
continue to invest in the development of our biometrics technologies and thus
we cannot predict when or if we will ever achieve overall profitability.
THE MARKET FOR OUR COMMON STOCK HAS BEEN VOLATILE.
The market for stock of many security-related businesses, including Viisage, has
been highly volatile, especially since the terrorist attacks of September 11,
2001. It is likely that the market price of our common stock will fluctuate
widely in the future. Factors affecting the trading price of our common stock
are likely to include:
o Responses to quarter-to-quarter variations in our results of
operations;
o The announcement of new contracts, products or product enhancements by
us or our competitors;
o Technological innovation by our competitors or us;
o The adoption of face recognition and other biometric technologies by
large-scale users;
o General market conditions or market conditions specific to particular
industries; and
o Changes in earnings estimates by analysts.
OUR LEVERAGE CREATES FINANCIAL AND OPERATING RISK THAT COULD LIMIT THE GROWTH OF
OUR BUSINESS.
We have a significant amount of indebtedness. As of June 30, 2002, we had
approximately $12.5 million in short and long-term debt and lease financing. Our
leverage could have important consequences to us. Our ability to make principal
and interest payments under long-term indebtedness and bank loans will be
dependent upon our future performance, which is subject to financial, economic
and other factors affecting us, some of which are beyond our control.
WE MAY BE UNABLE TO OBTAIN ADDITIONAL CAPITAL REQUIRED TO FUND OUR OPERATIONS
AND FINANCE OUR GROWTH.
The installation of our digital identification systems requires significant
capital expenditures. In addition, the further development of our biometric and
other advanced technologies is expected to require additional capital. Although
we have been successful in the past in obtaining capital from the equity markets
and project financing, we will have ongoing capital needs as we operate and
expand our business. If we are unable to obtain additional funds in a timely
manner or on acceptable terms, we may not be able to fund our operations or
expand our business to meet our plans. If we are unable to obtain capital when
we need it, we may have to restructure our business or delay or abandon our
development and expansion plans. That could have a material adverse effect on
our business and financial condition.
7
OUR RELIANCE ON SOLE AND SINGLE-SOURCE SUPPLIERS COULD CAUSE DELAYS OR INCREASES
IN PROJECT COSTS.
We rely on outside vendors to manufacture or develop components, software and
consumables, which are used for our systems and services. Some of these items
are obtained from a single supplier or a limited group of suppliers. Our
inability to obtain adequate deliveries or alternative sources of supply could
cause delays or increases in project costs.
IF WE DO NOT CONTINUE TO SUCCESSFULLY EXPAND OUR DIRECT SALES AND SERVICES
ORGANIZATIONS, WE MAY NOT BE ABLE TO INCREASE OUR SALES OR SUPPORT OUR
CUSTOMERS.
In the fiscal years ended December 31, 2000 and 2001, we licensed substantially
all of our products through our direct sales organization. Our future success
depends on substantially increasing the size and scope of our direct sales
force, both domestically and internationally. There is intense competition for
personnel, and we cannot guarantee that we will be able to attract, assimilate
or retain additional qualified sales personnel on a timely basis. Moreover, we
believe that as our sales increase, and given the large-scale deployment
required by our customers, we will need to hire and retain a number of highly
trained customer service and support personnel. We cannot guarantee that we will
be able to increase the size of our customer service and support organization on
a timely basis to provide the high quality of support required by our customers.
Failure to add additional sales and customer service representatives would have
a material adverse effect on our business, operating results and financial
condition.
IF WE LOSE ANY KEY PERSONNEL, OR FAIL TO ATTRACT AND RETAIN ADDITIONAL
PERSONNEL, WE MAY BE UNABLE TO CONTINUE EXPANDING OUR BUSINESS AND PRODUCT LINE.
The loss of the services of one or more of our key personnel could have a
material adverse effect on our business, operating results and financial
condition. We cannot guarantee that we will be able to retain our key personnel.
Our future success also depends on our continuing ability to attract, assimilate
and retain highly qualified sales, engineering, technical and managerial
personnel. Competition for these individuals is intense, and there can be no
assurance that we can attract, assimilate or retain necessary personnel in the
future.
IF OUR TARGET CUSTOMERS DO NOT ACCEPT OUR BIOMETRIC TECHNOLOGIES, OUR GROWTH MAY
BE RESTRICTED.
Our growth plan assumes, in part, that biometric technologies will gain
widespread market acceptance. Although we have had success with a number of
biometric projects, the widespread market acceptance of biometric technologies
remains uncertain.
8
IF WE FAIL TO KEEP PACE WITH CHANGING TECHNOLOGIES, WE MAY NOT WIN NEW
CUSTOMERS.
Rapidly changing customer requirements and evolving industry standards
characterize our market. If we cannot keep pace with these changes, our business
could suffer. To achieve our goals, we need to develop cost-effective business
solutions and methodologies to keep pace with continuing changes in industry
standards and customer preferences.
SYSTEM FAILURES COULD SERIOUSLY DAMAGE OUR BUSINESS.
We depend on our ability to provide customers with complex systems, which can
operate on an "as needed" basis. Although we deploy back up systems, system
failures could result in increased costs, lower margins, liquidated damage
payment obligations and harm to our reputation. This could result in contract
terminations and have a material adverse effect on our business and financial
results.
WE ARE CONTROLLED BY A SINGLE STOCKHOLDER, WHICH COULD RESULT IN IT TAKING
ACTIONS, WHICH OTHER STOCKHOLDERS DO NOT APPROVE.
Lau Technologies ("Lau") beneficially owns approximately 32% of our outstanding
common stock. As a result, Lau has a strong influence on matters requiring
approval by our stockholders, including the election of all of the directors and
most corporate actions.
COMPETITION FROM NEW ENTRANTS AND BIGGER, MORE ESTABLISHED COMPETITORS WITH
GREATER FINANCIAL RESOURCES COULD DIMINISH OUR BUSINESS OPPORTUNITIES AND LIMIT
OUR GROWTH.
The business areas in which we compete are intensely competitive and subject to
rapid technological change. We expect competition to continue. In particular,
the events of September 11, 2001 have heightened interest in the use of
biometric technologies and competition in this field is expected to intensify.
There is no assurance that companies with greater financial resources and name
recognition will not enter our business sectors. Our competitors may be able to
respond more quickly to technological developments and changes in customers'
needs.
MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY COULD HARM OUR REPUTATION, AFFECT
OUR COMPETITIVE POSITION AND COST US MONEY.
We believe our intellectual property, including our proprietary methodologies,
is important to our success and competitive position. If we are unable to
protect our intellectual property against others' unauthorized use, our
reputation among existing and potential customers could be damaged and our
competitive position adversely affected.
9
OUR STRATEGIES TO DETER MISAPPROPRIATION COULD BE UNDERMINED IN LIGHT OF THE
FOLLOWING RISKS:
o Non-recognition of the proprietary nature of or inadequate protection
of our methodologies in the United States or foreign countries;
o Undetected misappropriation of our proprietary methodologies; and
o Development of similar software or applications by our competitors.
The materialization of any of these risks could require us to spend significant
amounts to defend our rights and could divert our managerial resources. In
addition, our proprietary methodologies may decline in value or our rights to
them may be unenforceable.
OTHERS COULD CLAIM THAT WE INFRINGE ON THEIR INTELLECTUAL PROPERTY RIGHTS, WHICH
MAY RESULT IN SUBSTANTIAL COSTS, DIVERSION OF RESOURCES AND MANAGEMENT
ATTENTION, AND HARM TO OUR REPUTATION.
Although we believe that our products and services do not infringe the
intellectual property rights of others, we cannot give any assurances that we
can successfully defend an infringement claim. A successful infringement claim
against us could materially and adversely affect us in the following ways:
o We may be liable for damages and litigation costs, including
attorneys' fees;
o We may be enjoined from further use of the intellectual property;
o We may have to license the intellectual property, incurring licensing
fees;
o We may have to develop a non-infringing alternative, which could be
costly and delay projects; and
o We may have to indemnify clients with respect to losses incurred as a
result of our infringement of the intellectual property.
Regardless of the outcome, an infringement claim could result in
substantial costs, diversion of resources and management attention, termination
of customer contracts and harm to our reputation.
YOU MAY BE SUBJECT TO DILUTION.
We have outstanding stock purchase warrants and stock options that could result
in dilution for our common stockholders, depending upon the market price of the
Company's common stock from time to time.
YOU SHOULD NOT EXPECT DIVIDENDS FROM US.
We do not expect to declare or pay any cash dividends in the near future.
-------------------
10
FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. The words "anticipate,"
"believe," "estimate," "will," "may," "future," "plan," "intend" and "expect"
and similar expressions generally identify forward-looking statements. Although
we believe that our plans, intentions and expectations reflected in the
forward-looking statements are reasonable, we cannot be sure that they will be
achieved. Actual results may differ materially due to a number of factors.
Actual results may differ materially from the forward-looking statements
contained in this prospectus or that may be set forth in other documents that we
subsequently incorporate by reference into this prospectus. These factors are
not intended to represent a complete list of the general or specific factors
that may affect us. It should be recognized that other factors, including
general economic factors and business strategies, may be significant, presently
or in the future. Except as required by law, we undertake no obligation to
update any forward-looking statement, whether as a result of new information,
future events or otherwise.
USE OF PROCEEDS
The shares are being registered hereunder for resale by Hummingbird.
Accordingly, we will not receive any proceeds from the registration of those
shares.
SELLING STOCKHOLDER
The selling stockholder is Hummingbird. Voting and investment control
of the shares owned by Hummingbird is exercised by J. Fife Symington, IV, Chief
Operating Officer and Chief Financial Officer of Hummingbird.
On May 11, 2002, the Company and Hummingbird entered into a License and
Distribution Agreement (the "Agreement") involving a cross license of the
Company's facial recognition software and Hummingbird's command and control
software. Pursuant to the Agreement, each party is entitled to incorporate the
other's licensed technology in its product offerings for distribution and
sub-license to end users. Royalties are payable in cash at each party's standard
rate for distributors at such time except that the first $1,000,000 of royalties
payable by the Company to Hummingbird are to be paid in Company common stock at
a fixed price per share of $4.50. As of the date of this prospectus, Hummingbird
has granted the license to the Company and delivered the associated training
manuals. Pursuant to the Agreement, the technology is delivered
11
without a warranty, the Company is solely responsible for customer support and
there are mutual covenants regarding cooperation and limited engineering
assistance. The Agreement has a three-year term and is automatically renewed for
three additional one-year terms unless a party elects to opt out. A copy of the
Agreement is attached as an exhibit to this registration statement. The selling
stockholder does not currently have, nor has it within the past three years had,
any positions, offices or other material relationships with the Company or any
of its predecessors or affiliates.
The following table sets forth certain information regarding the
ownership of common stock of the Company by the selling stockholder as of the
date of this prospectus, and the number of shares of common stock covered by
this prospectus:
Ownership
Ownership of common shares
of common shares prior to the after the offering (assuming all
offering shares offered are sold) (1)
Number
Name of Number of Shares Number of Percent
Selling Shareholders of Shares Offered Shares of Class
-------------------- --------- ------- ------ --------
Hummingbird Defense Systems, 222,222(3) 222,222(3) 0 0%
Inc.
(1) For the purposes of this filing, we have assumed that all of the shares
included in this registration statement will be sold; however, there is no
contractual or other arrangement requiring any of the shares to be sold.
(2) The management of Hummingbird has voting and investment control over the
common shares.
(3) All such shares are issuable pursuant to the terms of the Agreement from
time to time as the Company sells products incorporating the licensed
technology of Hummingbird.
PLAN OF DISTRIBUTION
This prospectus covers 222,222 shares of our common stock being
registered for resale by Hummingbird. The shares will be issued to Hummingbird
in installments as and when the first $1 million of royalties are earned under
the Agreement. Neither the Company nor Hummingbird has any agreements or
understandings, directly or indirectly, with any person to distribute its
shares.
After the shares are acquired, they may be sold or distributed from
time to time by Hummingbird, or by pledgees, donees or transferees of, or other
successors in interest to, Hummingbird, directly to one or more purchasers
(including pledgees) or through
12
brokers, dealers or underwriters who may act solely as agents or may acquire
shares as principals, at the market prices prevailing at the time of sale, at
prices related to the prevailing market prices, at negotiated prices or at fixed
prices, which may be changed. Hummingbird also may resell all or a portion of
the shares in open market transactions in reliance upon Rule 144 under the
Securities Act, provided it meets the criteria and conforms to the requirements
of such Rule. The shares may be sold in one or more of the following methods:
-- ordinary brokers' transactions, which may include long sales or short
sales effected after the effective date of the registration statement of which
this prospectus is a part;
-- transactions involving cross or block trades or otherwise on The
Nasdaq National Market, any other exchange upon which our shares may be traded
in the future, in the over-the-counter market or otherwise;
-- purchases by brokers, dealers or underwriters as principal and resale by
the purchasers for their own accounts pursuant to this prospectus;
-- "at the market" to or through market makers or into an existing market
for the shares;
-- in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales effected through agents;
-- through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise); or
-- any combination of the foregoing, or by any other legally available
means.
Hummingbird, or its successors in interest, may also enter into option
or other transactions with broker-dealers that require the delivery by these
broker-dealers of the shares, which shares may be resold thereafter pursuant to
this prospectus as amended or supplemented to reflect such transactions. In
addition, from time to time, Hummingbird may pledge its shares to broker-dealers
or other financial institutions. Upon a default by Hummingbird, the
broker-dealer or financial institution may offer and sell the pledged shares
from time to time.
Brokers, dealers, underwriters or agents participating in the
distribution of the shares as agents may receive compensation in the form of
discounts, commissions or concessions from Hummingbird and/or purchasers of the
shares for whom they may act as agent, or to whom they may sell as principal, or
both. Hummingbird and any broker-dealers who act in connection with the sale of
shares of our common stock offered by this prospectus may be deemed to be
"underwriters" within the meaning of the Securities Act, and any discounts,
commissions or concessions they receive and proceeds of any sale of shares may
be deemed to be underwriting discounts and commissions under the Securities Act.
Neither we nor Hummingbird can presently estimate the amount of this
compensation. We know of no existing arrangements between Hummingbird, any other
stockholder, broker, dealer, underwriter or agent relating to the sale or
distribution of the shares. Moreover, Hummingbird may agree to indemnify any
agent, dealer or broker-dealer that participates in transactions involving sales
of the shares against some liabilities, including liabilities arising under the
Securities Act.
13
Furthermore, in the event of a "distribution" of shares by Hummingbird,
it or any selling broker or dealer and any "affiliated purchasers" may be
subject to Regulation M under the Securities Exchange Act which would generally
prohibit these persons from bidding for or purchasing any security that is the
subject of the distribution until his or her participation in that distribution
is completed. In addition, Regulation M generally prohibits any "stabilizing
bid" or "stabilizing purchase" for the purpose of pegging, fixing or stabilizing
the price of common stock in connection with this offering.
We will pay substantially all of the expenses incident to the
registration, offering and sale of the shares to the public other than the
commissions or discounts of brokers, dealers, underwriters or agents. We have
also agreed to indemnify Hummingbird and related persons against liabilities
under the Securities Act.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in certain jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by us and Hummingbird.
Hummingbird is not restricted as to the price or prices at which it may
sell its shares. Sales of these shares may have an adverse effect on the market
price of the common stock. Moreover, Hummingbird is not restricted as to the
number of shares that may be sold at any time and it is possible that a
significant number of shares could be sold at the same time which may also have
an adverse effect on the market price of the common stock.
There is no assurance that Hummingbird will sell all or any portion of
the shares of common stock offered hereby. Hummingbird will be subject to the
prospectus delivery requirement of the Securities Act.
Upon the Company being notified by Hummingbird that any material
arrangement has been entered into with a broker-dealer for the sale of Shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act of 1933, disclosing (i) Hummingbird's name and the name of the
participating broker-dealer(s); (ii) the number of shares involved; (iii) the
price at which such shares were sold; (iv) the commissions paid or discounts or
concessions allowed to such broker-dealer(s) where applicable; (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this prospectus; and (vi) other facts
material to the transaction. In addition, upon the Company being notified by
Hummingbird that a donee or pledgee intends to sell more than 500 shares, a
supplement to this prospectus will be filed.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the common stock being offered by this registration
statement will be passed upon by Hill & Barlow, a Professional Corporation, One
International Place, Boston, Massachusetts, 02110. Charles J. Johnson, a member
of Hill & Barlow, is the Secretary and a former director of the Company.
14
EXPERTS
Our financial statements as of December 31, 2001 and for each of the
three years in the period ended December 31, 2001, which are incorporated by
reference in this prospectus, have been audited by BDO Seidman, LLP, independent
certified public accountants as indicated in their reports with respect thereto,
and are included herein in reliance upon the authority of said firm as experts
in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Securities Exchange Act of
1934") and file reports, proxy statements and other information with the
Commission. These reports, proxy statements and other information can be
inspected and copied at the Public Reference Room of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a website that contains reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission. The address of this website is
"http://www.sec.gov." In addition, you may obtain information from the Public
Reference Room by calling the Commission at 1-800-SEC-0330. In addition, our
common stock is quoted on the Nasdaq National Market System. Reports, proxy
statements, informational statements and other information concerning the
Company can be inspected at the offices of the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
The Company intends to furnish its stockholders with annual reports
containing additional financial statements and a report by independent certified
public accountants.
You should only rely on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The common stock is not being
offered in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of this prospectus.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" information into
this prospectus, which means that we may disclose important information to you
by referring you to another document filed separately with the Commission. The
information incorporated by reference is deemed to be part of this prospectus,
except for any information superseded by information in this prospectus.
The documents listed below are incorporated by reference herein:
15
o our Annual Report on Form 10-K for the year ended December 31, 2001;
o our Quarterly Report on Form 10-Q for the fiscal quarters ended March
31, 2002 and June 30, 2002;
o the description of our common stock contained in our Registration
Statement No. 000-21559 on Form 8-A filed with the Commission pursuant
to Section 12 of the Securities and Exchange Act of 1934 on October
15, 1996;
o our Form 8-K filed on January 25, 2002 announcing the acquisition of a
division of Lau Technologies;
o all filings pursuant to the Securities and Exchange Act of 1934 made
after the initial date of filing this Registration Statement but
before the effective date of this registration statement.
All reports and other documents filed by the Company after October 31,
2002 pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities and
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold, or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this prospectus and to be a part of this prospectus
from the date of the filing of the report or document.
We will provide you a copy of any or all of the information that has
been incorporated by reference herein but not delivered with this prospectus,
upon your written or oral request at no cost. Please contact, Milton A. Alpern,
Chief Financial Officer, at our principal executive offices located at 30 Porter
Road, Littleton, Massachusetts 01460. Our telephone number is (978) 952-2200,
and our internet website address on the worldwide web is www.viisage.com.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with
the securities being registered. All amounts shown are estimates, except the
Securities and Exchange Commission registration fee.
Item Amount
---- -----------
SEC Registration Fee ............................ $ 61.95
Accounting Fees and Expense ..................... $ 7,500
Legal Fees and Expenses ......................... $ 15,000
Miscellaneous ................................... $ 8,000
-----------
Total .................................. $30,561.95
16
Viisage will bear all expenses shown above, and Hummingbird will not bear any
portion of these expenses.
Item 15. Indemnification of Directors and Officers
As permitted by the Delaware General Corporation law, as amended (the
"DGCL"), the Company's Restated Certificate of Incorporation, as amended,
provides that the Company's directors shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted by the DGCL as it now exists or as it may be
amended. As of the date of this prospectus, the DGCL permits limitations on
liability for a director's breach of fiduciary duty other than liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
or (iv) for any transaction from which the director derived an improper personal
benefit. In addition, the Company's bylaws provide that the Company shall
indemnify all directors, officers, employees and agents of the Company for acts
performed on behalf of the Company in such capacity to the fullest extent
permitted by law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Item 16. Exhibits.
Exhibit
No. Description
------- -----------
4.1* Restated Certificate of Incorporation of the Registrant
4.3* By-laws of the Registrant
4.4* Specimen certificates for shares of the Registrant's Common Stock
5** Opinion of Hill & Barlow as to the legality of the shares being
registered
10 License and Distribution Agreement dated May 10, 2002 between Viisage
Technology, Inc. and Hummingbird Defense Systems, Inc.
23 Consent of BDO Seidman, LLP
24 Power of Attorney
----------------
* Filed as an exhibit to Amendment No. 2 to Registrant's Form S-1
Registration Statement dated November 4, 1996 (File No. 333-10649)
** Filed as an exhibit to Registrant's Form S-3 Registration Statement dated
July 26, 2002 (File No. 333-97165)
17
Item 17. Undertakings.
(a) The Company hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment of 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; (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) and (a)(1)(ii) of this section do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement;
(2) 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; and
(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.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 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 the 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 Company pursuant to the foregoing provisions, or otherwise, the
company has been advised that in the opinion of the commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be
18
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3, and has duly caused this
Amendment No. 2 to the Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, hereunto duly authorized in Littleton in the
Commonwealth of Massachusetts on October 31, 2002.
VIISAGE TECHNOLOGY, INC.
By: /s/ BERNARD BAILEY
--------------------------------
Chief Executive Officer
19
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 2 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE
--------- -----
/s/ BERNARD BAILEY Chief Executive Officer
------------------------------ (Principal Executive Officer)
Bernard Bailey
/s/ MILTON ALPERN Chief Financial Officer and Treasurer
------------------------------ (Principal Financial and Accounting Officer)
Milton Alpern
/s/ DENIS K. BERUBE Director
------------------------------
Denis K. Berube
/s/ HARRIET MOUCHLY-WEISS Director
------------------------------
Harriet Mouchly-Weiss
/s/ PAUL T. PRINCIPATO Director
------------------------------
Paul T. Principato
Director
------------------------------
Charles E. Levine
/s/ PETER NESSEN Director
------------------------------
Peter Nessen
/s/ THOMAS J. REILLY Director
------------------------------
Thomas J. Reilly
20