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Delaware | 94-3021850 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) |
Solon, Ohio 44139
440.715.1300
Chief Executive Officer
Energy Focus, Inc.
32000 Aurora Road
Solon, Ohio 44139
440.715.1300
Thomas J. Talcott, Esq.
Cowden & Humphrey Co. LPA
4600 Euclid Avenue, Suite 400
Cleveland, Ohio 44103
216.241.2880
From time to time after this Registration Statement becomes effective.
Large accelerated filero | Accelerated filero | Non-accelerated filerþ | Smaller reporting companyo | |||
(Do not check if a smaller reporting company) |
Estimated | ||||||||||||||
Proposed | ||||||||||||||
Title of Each | Proposed | Maximum | ||||||||||||
Class of Securities | Maximum Offering | Aggregate | Amount of | |||||||||||
to be Registered | Amount | Price | Offering | Registration | ||||||||||
(1) | to be Registered | per Share | Price | Fee | ||||||||||
Subscription Rights to purchase Common Stock, $0.0001 par value per share | 15,100,000 | — (2) | — (2) | — (2) | ||||||||||
Shares of Common Stock underlying the Rights | 7,000,000 | $0.965 (3) | $6,755,000 (3) | $376.93 (3) | ||||||||||
(1) | This registration statement relates to (a) the Rights to purchase Common Stock and (b) the shares of Common Stock deliverable upon the exercise of the Rights. | |
(2) | The Rights are being issued without consideration. Pursuant to Rule 457(g), no separate registration fee is payable with respect to the Rights being offered hereby since the Rights are being registered in the same registration statement as the securities to be offered pursuant thereto. | |
(3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. Represents the aggregate gross proceeds from the exercise of the maximum number of rights that may be exercised. The registration fee has been paid previously. | |
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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 it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
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Q: | What is a rights offering? | |
A: | A rights offering is a distribution of subscription rights on a pro rata basis to all existing shareholders of a company. We are distributing to holders of our common stock, at no charge, as of the close of business on the record date, October 5, 2009, subscription rights to purchase shares of our common stock. Each shareholder will receive one subscription right for every share of common stock that the shareholder owns at the close of business on the record date. Shareholders presently own 15,078,979 shares of common stock. We are limiting the amount to be raised in this offering to no more than $3.5 million, however, through the issuance of no more than 4,670,000 common shares upon the exercise of rights. If shareholders subscribe for more than 4,670,000 shares, we will allocate that number pro rata among those shareholders who subscribe according to their ownership of shares on the record date. The subscription rights will be issued electronically in registered, book-entry form only on our records or on the records of our transfer agent, BNY Mellon Shareowner Services. | |
Q: | Why are you undertaking the rights offering? | |
A: | We are undertaking the rights offering to raise funds for general corporate and working capital purposes, as well as to help fund the acquisition of the Stones River Companies of Nashville, Tennessee, a leading lighting energy solutions provider, as part of our strategy to become a turnkey lighting energy solutions company. Based on approximately $3.1 million of available cash and cash equivalents as of September 30, 2009, we believe that we have sufficient capital to fund our operations into December, 2009. If we fail to raise capital by November, 2009, we may need to forego our purchase of Stones River Companies, significantly curtail operations, cease operations, or seek federal bankruptcy protection. | |
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Our board of directors has elected a rights offering over other types of financings because a rights offering provides our existing shareholders the opportunity to participate in this offering first. Our board believes this creates less percentage dilution of shareholder ownership interest in our company than if we issued shares to new investors. | ||
Q: | How much money will the company raise as a result of the rights offering? | |
A: | Assuming shareholders subscribe for and purchase 4,670,000 shares of our common stock, we estimate that the net proceeds from the rights offering will be approximately $3.1 million, after deducting expenses related to this offering payable by us estimated at approximately $370,000. We may decide to close the rights offering and accept such proceeds of the basic subscription rights and over-subscription rights as we have received as of the expiration date of the rights offering whether or not they are sufficient to meet the objectives we state in this prospectus, other corporate milestones that we may set, or to meet our cash flow needs for operating in the future. In no event, will we raise more than $3.5 million in this offering. | |
Q: | What is a right? | |
A: | Each subscription right will entitle a shareholder to purchase one share of our common stock at a subscription price of $0.75 per share, and carries with it a basic subscription right and an over-subscription right. We will not issue or pay cash in place of fractional rights. Instead, we will round up any fractional rights to the nearest whole right. We refer to this as the step-up privilege. | |
Q: | What is a basic subscription right? | |
A: | Each basic subscription right gives a shareholder the opportunity to purchase one share of our common stock. A shareholder may exercise any number of the shareholder’s basic subscription rights or may choose not to exercise any subscription rights at all. | |
For example, if you own 1,000 shares of our common stock on the record date and you are granted one right for every share of our common stock that you own at that time, then you have the right to purchase up to 1,000 shares of common stock, in each case subject to the maximum number of 4,670,000 shares to be issued in the offering and to adjustment to eliminate fractional rights. If you hold your shares in the name of a broker, dealer, custodian bank, trustee, or other nominee who uses the services of the Depository Trust Company, then the Depository Trust Company will issue one right to the nominee for every share of our common stock that you own at the record date. | ||
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Q: | What is an over-subscription right? | |
A: | If a shareholder elects to purchase all of the shares available to the shareholder pursuant to the shareholder’s basic subscription right, the shareholder may then elect to subscribe for any number of additional shares that remain unsubscribed as a result of any other shareholders not exercising their basic subscription rights, subject to a pro rata adjustment if requests exceed available shares, to the maximum number of 4,670,000 shares to be issued in this rights offering, and to reduction or addition by us in certain circumstances, as more fully described below. | |
For example, if you own 1,000 shares of our common stock on the record date, and exercise your basic subscription right to purchase all, but not less than all, 1,000 shares which are available for you to purchase, then, you may also concurrently exercise your over-subscription right to purchase additional shares of common stock that remain unsubscribed as a result of any other shareholders not exercising their basic subscription rights, subject to the pro rata and other adjustments described below. Payments for exercises of over-subscription rights are due at the time payment is made for the basic subscription right. | ||
Q: | What happens if holders exercise basic subscription rights or over-subscription rights to purchase more than 4,670,000 shares to raise more than $3.5 million in this offering? | |
A: | If the rights holders exercise their basic subscription rights to purchase more than 4,670,000 shares, we will allocate the 4,670,000 available shares pro rata among rights holders who exercise their basic subscription rights, based on the number of shares they own on the record date. If the rights holders exercise their basic subscription rights to purchase less than 4,670,000 shares, we will allocate the remaining available shares pro rata among rights holders who exercise their over-subscription rights, based on the number of shares they own on the record date. The allocation process will assure that the total number of shares available for basic subscriptions and over-subscriptions is distributed on a pro rata basis. The percentage of shares each rights holder may acquire will be rounded up to result in delivery of whole shares. | |
Payments for basic subscription and over-subscription rights will be deposited upon receipt by the subscription agent and held in a segregated account with the subscription agent pending a final determination of the number of shares to be issued pursuant to the basic and over-subscription rights. If the prorated amount of shares allocated to you in connection with your basic subscription or over-subscription right is less than your basic subscription or over-subscription request, then the excess funds held by the subscription agent on your behalf will be promptly returned to you without interest or deduction. We will issue certificates representing your shares of our common stock, or credit your account at your nominee holder with shares of our common stock, electronically in registered, book-entry form only on our records or on the records of our transfer agent, BNY Mellon Shareowner Services, that you purchased pursuant to your basic subscription and over-subscription rights as soon as practicable after the rights offering has expired and all proration calculations, reductions, and additions contemplated by the terms of the rights offering have been effected. | ||
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Q: | Am I required to exercise all of the rights that I receive in the rights offering? | |
A: | No. You may exercise any number of your subscription rights or you may choose not to exercise any subscription rights. If you choose not to exercise your basic subscription rights in full, however, the relative percentage of our shares of common stock that you own may decrease, as well as well as your voting and other rights may be diluted. In addition, if you do not exercise your basic subscription rights in full, you will not be entitled to participate in the over-subscription rights. | |
Q: | Are there any limits on the number of shares that I may purchase in the rights offering or own as a result of the rights offering? | |
A: | No. | |
Q: | Will the company’s officers, directors, and other significant shareholders be exercising their rights? | |
A: | Mr. David Gelbaum, one of our directors and together with his spouse a co-trustee of The Quercus Trust, has advised us that they and the Trust intend to exercise their basic subscription rights. The Gelbaum's and the Trust own approximately 17.9% of our shares of common stock. Some of our other officers, directors, and shareholders also have advised us that they intend to participate in this offering. None of our officers, directors, or shareholders are obligated to participate, however. | |
Q: | Will the shares of common stock that I receive upon exercise of my rights be tradable on the NASDAQ Global Market, other stock exchange or market, or on the OTC Bulletin Board? | |
A: | Our shares of common stock are listed for trading on the NASDAQ Global Market and we expect that the shares of our common stock to be issued upon the exercise of the rights also will be listed for trading on that Market. | |
Q: | How do I exercise my basic subscription rights? | |
A: | You may exercise your subscription rights by properly completing and signing your subscription rights form (“Subscription Form”). Your Subscription Form, together with full payment of the subscription price, must be received by BNY Mellon Shareowner Services, the subscription agent for this rights offering, on or prior to the expiration date of the rights offering. We sometimes refer to BNY Mellon Shareowner Services, in this prospectus as the subscription agent. BNY Mellon Shareowner Services is also the transfer agent and registrar for our common stock. | |
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If you use the mail, we recommend that you use insured, registered mail, return receipt requested. We will not be obligated to honor your exercise of subscription rights if the subscription agent receives the documents relating to your exercise after the rights offering expires, regardless of when you transmitted the documents. | ||
Q: | How do I exercise my over-subscription rights? | |
A: | In order to properly exercise your over-subscription right, you must: (i) indicate on your Subscription Form that you submit with respect to the exercise of the rights issued to you how many additional shares you are willing to acquire pursuant to your over-subscription right and (ii) concurrently deliver the subscription payment related to your over-subscription right at the time you make payment for your basic subscription rights. All funds from over-subscription rights that are not honored will be promptly returned to investors, without interest or deduction. | |
Q: | What happens if I choose not to exercise my subscription rights? | |
A: | You will retain your current number of shares of common stock even if you do not exercise your basic subscription rights. If you do not exercise your basic subscription right in full, however, the percentage of our common stock that you own will decrease, and your voting and other rights will be diluted to the extent that other shareholders exercise their subscription rights. | |
Q: | Is there more than one subscription period in the rights offering? | |
A: | Yes. There are two subscription periods. The initial subscription period runs from October 6, 2009 through October 30, 2009. The second subscription period runs from November 2, 2009 through November 13, 2009. | |
Q: | When will the rights offering expire? | |
A: | The initial subscription period of the rights offering will expire at 5:00 p.m., New York City time, on October 30, 2009, unless we decide to terminate the rights offering earlier or extend the expiration date for up to an additional thirty trading days at our sole discretion. If we extend the expiration date, you will have at least ten trading days during which to exercise your rights. Holders’ ownership interests in any rights not exercised at or before that time will return to us without any payment to the holders of those unexercised rights. The subscription agent must actually receive all required documents and payments before that time and date. | |
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Q: | What will happen in the second subscription period? | |
A: | All rights not exercised by shareholders by the expiration date of the initial subscription period will return to us. During the second subscription period running from November 2, 2009 through November 13, 2009 at 5:00 p.m., New York City time, we will have the right to issue rights to both shareholders and non-stockholders in our sole discretion to purchase any or all shares available in the offering but not purchased in the initial subscription period. From time to time in the second subscription period, we may instruct the subscription agent to issue Subscription Forms. The agent promptly will follow those instructions. The procedures and rules applicable to the first subscription period will apply to the second subscription period, except that no Notice of Guaranteed Delivery may be used in the second period. | |
Q: | May I transfer or sell my subscription rights if I do not want to purchase any or all of the shares to which I am entitled? | |
A: | Yes. You may sell, transfer, or assign your subscription rights to anyone in whole or in part. Subscription rights, however, will not be listed for trading on the NASDAQ Global Market, any other stock exchange or market, or on the OTC Bulletin Board. Any transferee of any of your subscription rights must exercise those rights in the same way and subject to the same conditions as apply to you when exercising your rights, except as noted below. | |
Practically speaking, the subscription agent must receive a proper transfer of a Subscription Form from a transferor by Monday, October 26, 2009 for the transferee to be able to properly exercise the transferee’s own re-issued Subscription Form by Friday, October 30, 2009. | ||
Subscription Forms, including those of transferees, not properly or timely exercised in the first subscription period, but properly and timely exercised within the three business-day Notice of Guarantee Period, in our sole discretion may be treated as properly and timely exercised in the initial subscription period, placed first in line in the second subscription period, or not accepted. | ||
Subscription Forms, including those of transferees, not properly or timely exercised in the first subscription period or within the three business-day Notice of Guarantee Period, in our sole discretion may be accepted or not accepted in the second subscription period. | ||
Q: | Will the company be requiring a minimum subscription to consummate the rights offering? | |
A: | No. There is no minimum subscription in the rights offering. Our board of directors reserves the right, however, to cancel the offering for any reason, including if it believes that there is insufficient participation by our shareholders. |
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Q: | Can the board of directors cancel or terminate the rights offering? | |
A: | Yes. Our board of directors may decide to cancel or terminate the rights offering at any time and for any reason before the expiration date. If our board of directors cancels or terminates the rights offering, we will issue a press release notifying shareholders of the cancellation or termination, and any money received from subscribing shareholders will be promptly returned, without interest or deduction. | |
Q: | If the rights offering is not completed, will my subscription payment be refunded to me? | |
A: | Yes. The subscription agent will hold all funds it receives in a segregated bank account until completion of the rights offering. If the offering is not completed, all subscription payments received by the subscription agent will be returned promptly, without interest or penalty. If you own shares in “street name”, it may take longer for you to receive payment because the subscription agent will return payments to the record holder of your shares. | |
Q: | What should I do if I want to participate in the rights offering but my shares are held in the name of my broker, dealer, custodian bank, trustee, or other nominee? | |
A: | Beneficial owners of our shares whose shares are held by a nominee, such as a broker, dealer, custodian bank, or trustee, must contact that nominee to exercise their rights. In that case, the nominee will complete the Subscription Form on behalf of the beneficial owner and arrange for proper payment by one of the methods described above. | |
Q: | What should I do if I want to participate in the rights offering, but I am a shareholder with a foreign address? | |
A: | Subscription Forms will not be mailed to foreign shareholders whose addresses of record are outside the United States and Canada, or are an Army Post Office (APO) address or Fleet Post Office (FPO). If you are a foreign shareholder, you will be sent written notice of this offering and a copy of this prospectus. The subscription agent will hold your rights, subject to you making satisfactory arrangements with the subscription agent for the exercise of your rights, and follow your instructions for the exercise of the rights if such instructions are received by the subscription agent at or before 11:00 a.m., New York City time, on Monday, October 26, 2009, four business days prior to the expiration date, or, if this offering is extended, on or before four business days prior to the extended expiration date. If no instructions are received by the subscription agent by that time, your rights will return to us without any payment to you of those unexercised rights. | |
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Q: | Will I be charged a sales commission or a fee if I exercise my subscription rights? | |
A: | We will not charge a brokerage commission or a fee to subscription rights holders for exercising their subscription rights. If you exercise your subscription rights and later sell any shares of our common stock through a broker, dealer, custodian bank, trustee, or other nominee, you may be responsible for any fees charged by your broker, dealer, custodian bank, trustee, or other nominee. | |
Q: | What is the recommendation of the board of directors regarding the rights offering? | |
A: | Neither are we, our board of directors, the information agent, nor the subscription agent are making any recommendation as to whether or not you should exercise your subscription rights. You are urged to make your decision in consultation with your own advisors as to whether or not you should participate in the rights offering or otherwise invest in our securities and only after considering all of the information included in this prospectus, including the “Risk Factors” section that follows. | |
Q: | How was the $0.75 per share subscription price established? | |
A: | The subscription price per share for the rights offering was set by our board of directors. In determining the subscription price, our board of directors considered, among other things, our history, the historical and current market price of our common stock, the fact that holders of rights will have an over-subscription right component, the terms and expenses of this offering relative to other alternatives for raising capital, the size of this offering, and the general condition of the securities market. Based upon the factors described above, our board of directors determined that the subscription price per share represented an appropriate subscription price. | |
Q. | If I also own warrants to purchase shares of common stock of the company will I receive rights on those shares? | |
A: | No, unless you exercise one or more warrants to purchase shares of our common stock before October 5, 2009, the record date for this rights offering. | |
Q: | Is exercising my subscription rights risky? | |
A: | The exercise of your subscription rights and over-subscription rights, and the resulting ownership of our securities, involves a high degree of risk. Exercising your subscription rights means buying additional shares of our common stock and should be considered as carefully as you would consider any other equity investment. You should carefully consider the information under the heading “Risk Factors” and all other information included in this prospectus before deciding to exercise your subscription rights. |
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Q: | After I exercise my subscription rights, can I change my mind and cancel my purchase? | |
A: | No. Once you send in your Subscription Form and payment, you cannot revoke the exercise of either your basic subscription or over-subscription rights, even if the market price of our common stock is below the $0.75 per share subscription price. You should not exercise your subscription rights unless you are certain that you wish to purchase additional shares of our common stock at the proposed subscription price. Any rights not exercised at or before that time will expire worthless without any payment to the holders of those unexercised rights. | |
Q: | What are the United States federal income tax consequences of receiving or exercising my subscription rights? | |
A: | A shareholder should not recognize income or loss for United States federal income tax purposes in connection with the receipt or exercise of subscription rights in the rights offering. You should consult your own tax advisor as to the particular consequences to you of the rights offering. | |
Q: | How many shares of our common stock will be outstanding after the rights offering? | |
A: | The number of shares of our common stock that will be outstanding immediately after the completion of the rights offering will be 19,748,979 shares, assuming 4,670,000 shares are issued in the rights offering. | |
Q: | If I exercise my subscription rights, when will I receive shares of common stock purchased in the rights offering? | |
A: | As soon as practicable after the rights offering has expired and all calculations, reductions, and additions contemplated by the terms of the rights offering have been effected, we will issue certificates representing your shares of our common stock, or credit your account at your nominee holder with shares of our common stock, electronically in registered, book-entry form on our records or on the records of our transfer agent, BNY Mellon Shareowner Services, that you purchase pursuant to your basic subscription and over-subscription rights. | |
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Q: | Who is the subscription agent for the rights offering? | |
A: | The subscription agent is BNY Mellon Shareowner Services. BNY Mellon Shareowner Services is also the transfer agent and registrar for our common stock. The address and facsimile numbers of the subscription agent are as follows: | |
By Mail: | By Hand: | |
Energy Focus, Inc. | Energy Focus, Inc. | |
c/o BNY Mellon Shareowner Services | c/o BNY Mellon Shareowner Services | |
Attn: Corporate Action Dept. | Attn: Corporate Action Dept. | |
P.O. Box 3301 | 480 Washington Blvd., 27th Floor | |
South Hackensack, NJ 07606 | Jersey City, NJ 07310 |
c/o BNY Mellon Shareowner Services
Attn: Corporate Action Dept.
480 Washington Blvd., 27th Floor
Jersey City, NJ 07310
Facsimile Transmission: | To confirm receipts of | |
(Eligible Institutions Only) | facsimiles only: | |
(201) 680-4626 | (201) 680-4860 |
Your delivery to an address other than the address set forth above, or transmission to a facsimile number other than the number set forth above, will not constitute valid delivery and, accordingly, may be rejected by us. | ||
Q: | What should I do if I have other questions? | |
A: | If you have any questions or need further information about this rights offering, please call BNY Mellon Shareowner Services, our information agent for the rights offering, at (201) 680-6579 (call collect) or (866) 282-4940 (toll-free). | |
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• | $2 billion in loans for renewable energy projects, | ||
• | $4.5 billion toward smart-grid applications, | ||
• | $6.3 billion in state energy-efficient and clean-energy grants, and | ||
• | $4.5 billion to make federal buildings more energy efficient. |
• | Metal Halide and LED Fiber optic lighting systems (e.g. EFO-Ice®), , E-Luminator™ | ||
• | LED and Metal Halide lightings systems (e.g. EFO Docklight, Cold Storage). |
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• | Many of our products meet the lighting efficiency standards mandated for the year 2020. | ||
• | Our products qualify for federal and state tax incentives for commercial and residential consumers in certain states. | ||
• | Our products make use of proprietary optical systems that enable high efficiencies. | ||
• | Certain utility companies continue to embrace our technology as an energy-efficient alternative and are promoting our products to their customers. | ||
• | The heat source of the fiber optic lighting fixtures usually is physically separated from the lamps, providing a “cool” light. This unique feature has special application in grocery stores, where reduction of food spoilage and melting due to heat is an important goal. | ||
Key benefits of our technology include: | |||
• | Energy efficiency.Our products can provide our customers with significant energy savings compared to other lighting systems commonly used in similar applications and also satisfy government and other regulatory regulations for energy-efficient lighting. | ||
• | Better light.Our products can eliminate glare, provide aesthetically pleasing light, and are available in a number of colors. | ||
• | Elimination of virtually all heat radiation.Our fiber optic and LED systems are designed to prevent the infrared and ultra violet radiation omitted by the lamp from being funneled through the fiber. As a result, the light output omits virtually no infrared or ultra violet light, which produce heat when absorbed by the target. | ||
• | Cost savings.Our products are able to significantly reduce maintenance and replacement costs that normally are attributed to traditional lighting systems. |
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• | Capitalize on the growing need for high return on investment in energy-efficient lighting systems.We intend to continue to devote significant resources to our product development efforts to maximize the energy efficiency and quality of our lighting systems while reducing costs and enabling our customers to meet more stringent government regulations. Further, we plan to continue to develop new proprietary technologies and integrate new and potentially more efficient lighting sources into our lighting systems such as LED. | ||
• | Focus on increased market penetration where the benefits of our technology are most compelling.We intend to broaden the penetration of our products within commercial, retail, and supermarket channels, which all share urgent needs for highly efficient, flexible, and financially economical lighting solutions. Further, we continue to aggressively penetrate the government and military lighting markets. To reach our target markets, we are significantly increasing both the number and experience level of our direct sales employees. Additionally, we are actively restructuring our independent sales representative network to increase sales volume and accountability of results. | ||
• | Develop and expand strategic relationships.To expedite the awareness of our technologies, we continue to actively pursue strategic relationships with distributors, energy service companies (“ESCO’s”), lighting designers, and contractors who distribute, recommend, and/or install lighting systems. We continue to cultivate relationships with fixture manufacturers and other participants in the general lighting market. | ||
• | Develop a commercially-viable, cost-effective solar technology.Through our on-going leadership role in the United States government’s VHESC Consortium sponsored by DARPA, we expect to be able to commercialize a solar cell technology that will significantly surpass current solar efficiencies ranging from 6% - 20%. Our proven optics technology has already shown the ability to achieve approximately 40% efficiency in a laboratory environment and we believe that this efficiency, or greater, can be achieved on a cost-effective, commercially-viable scale. |
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• | We have fundamental intellectual property and trade secrets in non-imaging optics and coatings. | ||
• | We have an ability to efficiently create, transport, and display light. | ||
• | We have a broad and intimate understanding of lighting technologies. | ||
• | We have a superior understanding of the existing building market and its desire and need for lighting products and systems. | ||
• | We have a core competence in solutions sales, including deal structuring and financing. | ||
• | We have a strong relationship with the federal government for conducting research projects. |
1. | Intensify our focus on the existing building market through national accounts, lighting system solutions, and the strategic acquisition of one or more lighting retrofit business. On September 29, 2009, we announced that we intend to acquire the Stones River Companies of Nashville, Tennessee, a leading lighting energy solutions provider, as part of our strategy to become a turnkey lighting energy solutions company. | ||
2. | Develop mainstream lighting technologies, including in the near future Track LED Lighting and a Generation 1 LED Light Tube. | ||
3. | Raise additional working capital by doing a rights offering to existing shareholders, with part of the proceeds of that offering to be used for the cash portion of the purchase price of a lighting retrofit company. | ||
4. | Explore the divestiture of the following lines of our business: Fiberstars Pools and United States commercial businesses, and our British and German subsidiaries. | ||
5. | Reduce our monthly expenses by reducing executive management salaries and eliminating other positions. |
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• | The potential divestiture of business units and the raising of additional capital through a rights offering will provide necessary operating funds for 2009 and after. | ||
• | We will have formed a streamlined organization that is focused on creating economic value through turnkey lighting energy solutions and systems for existing business owners. | ||
• | We will develop mainstream lighting products for the existing building market that are not currently available and that are differentiated by their performance, energy consumption, longevity, and control ability. This product line up will begin with LED track lighting and LED tube lighting products. | ||
• | We will grow with the acquisition of one or more lighting retrofit businesses. This will allow us to take advantage of the opportunity created by the federal government stimulus package in public sector markets. This will replace the top-line sales of our divested businesses. | ||
• | All of these steps will accelerate our transformation into a turnkey, fully-integrated, lighting, energy systems and solutions provider. |
The Rights Offering | ||
Securities Offered | We are distributing at no charge to the holders of our common stock on October 5, 2009, which we refer to as the record date, subscription rights to purchase shares of our common stock. We are distributing one right to the holder of record for every share of common stock that is held by the holder on the record date. Shareholders presently hold 15,078,979 shares of common stock. We are limiting the amount to be raised in this offering to no more than $3.5 million, however, through the issuance of no more than 4,670,000 common shares upon the exercise of rights. If shareholders subscribe for more than 4,670,000 shares, we will allocate that number among those shareholders who subscribe pro rata according to their ownership of shares on the record date. We expect the total purchase price for the securities offered in this rights offering to be $3.5 million, assuming full participation in the offering. | |
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Basic Subscription Right | Each right entitles the holder to purchase one share of common stock at the subscription price of $0.75 per share, which we refer to as the basic subscription right. | |
Over-Subscription Right | Holders who fully exercise their basic subscription rights will be entitled to subscribe for additional shares that remain unsubscribed as a result of any unexercised basic subscription rights, which we refer to as the over-subscription right. The over-subscription right allows a holder to subscribe for an additional amount of shares above that which the holder would otherwise be entitled to subscribe. We will not issue or pay cash in place of fractional rights. Instead, we will round up any fractional rights to the nearest whole right. We refer to this as the step-up privilege. Rights may only be exercised for whole numbers of shares. No fractional shares of common stock will be issued in this offering. | |
Record Date | Close of business on October 5, 2009. | |
Commencement Date Initial Subscription Period | October 6, 2009. | |
Expiration Date of Initial Subscription Period | 5:00 p.m., New York City time, on October 30, 2009, unless extended by us as described in this summary below under the caption entitled “Extension, Termination, and Cancellation.” Any rights not exercised at or before that time will have no value to the holders and the holders’ ownership interests in them will return to us without any payment to the holders of those unexercised rights. | |
Second Subscription Period | All rights not exercised by shareholders by the expiration date of the initial subscription period will return to us. During the second subscription period running from November 2, 2009 through November 13, 2009 at 5:00 p.m., New York City time, we will have the right to issue rights to both shareholders and non-shareholders in our sole discretion to purchase any or all shares available in the offering but not purchased in the initial subscription period. | |
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From time to time in the second subscription period, we may instruct the subscription agent to issue Subscription Forms. The agent promptly will follow those instructions. The procedures and rules applicable to the first subscription period will apply to the second subscription period, except that no Notice of Guaranteed Delivery may be used in the second period. | ||
Subscription Price | $0.75 per share, payable in immediately available funds. | |
Use of Proceeds | The proceeds from the rights offering, less fees and expenses incurred in connection with the rights offering, will be used primarily for general corporate and working capital purposes, as well as to help fund the acquisition of the Stones River Companies of Nashville, Tennessee, a leading lighting energy solutions provider, as part of our strategy to become a turnkey lighting energy solutions company. | |
Transferability | You may sell, transfer, or assign your subscription rights to anyone. Subscription rights, however, will not be listed for trading on the NASDAQ Global Market, any other stock exchange or market, or on the OTC Bulletin Board. Any transferee of any of your subscription rights must exercise those rights in the same way and subject to the same conditions as apply to you when exercising your rights, except as noted below. | |
Practically speaking, the subscription agent must receive a proper transfer of a Subscription Form from a transferor by Monday, October 26, 2009 for the transferee to be able to properly exercise the transferee’s own re-issued Subscription Form by Friday, October 30, 2009. | ||
Subscription Forms, including those of transferees, not properly or timely exercised in the first subscription period, but properly and timely exercised within the three business-day Notice of Guarantee Period, in our sole discretion may be treated as properly and timely exercised in the initial subscription period, placed first in line in the second subscription period, or not accepted. | ||
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Subscription Forms, including those of transferees, not properly or timely exercised in the first subscription period or within the three business-day Notice of Guarantee Period, in our sole discretion may be accepted or not accepted in the second subscription period. | ||
No Recommendation | Neither we nor our board of directors makes any recommendation to you about whether you should exercise any rights. You are urged to consult your own financial advisors in order to make an independent investment decision about whether to exercise your rights. Please see the section of this prospectus entitled “Risk Factors” for a discussion of some of the risks involved in investing in our securities. | |
Minimum Condition | There is no minimum subscription in the rights offering. Our board of directors reserves the right, however, to cancel the offering for any reason, including if it believes that there is insufficient participation by our shareholders. | |
Maximum Offering Size | In no event, will we raise more than $3.5 million in this offering. | |
No Revocation | If you exercise any of your basic subscription or over-subscription rights, you will not be permitted to revoke or change the exercise or request a refund of monies paid. | |
United States Federal Income Tax Considerations | A shareholder should not recognize income, gain, or loss for United States federal income tax purposes in connection with the receipt or exercise of subscription rights in the rights offering. You should consult your own tax advisor as to the particular consequences to you of the rights offering. For a detailed discussion, see “Material United States Federal Income Tax Considerations.” | |
Extension, Termination, and Cancellation | Extension. Our board of directors may extend the expiration date for exercising your subscription rights for up to an additional thirty trading days in their sole discretion. If we extend the expiration date, you will have at least ten trading days during which to exercise your rights. Any extension of this offering will be followed as promptly as practicable by an announcement, and in no event later than 9:00 a.m., New York City time, on the next business day following the previously scheduled expiration date. |
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Termination; Cancellation.We may cancel or terminate the rights offering at any time and for any reason prior to the expiration date. Any termination or cancellation of this offering will be followed as promptly as practicable by announcement thereof, and in no event later than 9:00 a.m., New York City time, on the next business day following the termination or cancellation. | ||
Procedure for Exercising Rights | If you are the record holder of shares of our common stock, to exercise your rights you must complete the Subscription Form and deliver it to the subscription agent, BNY Mellon Shareowner Services, together with full payment for all the subscription rights, pursuant to both the basic subscription right and the over-subscription right, you elect to exercise. The subscription agent must receive the proper forms and payments on or before the expiration date. You may deliver the documents and payments by mail or commercial courier. If regular mail is used for this purpose, we recommend using registered mail, properly insured, with return receipt requested. If you are a beneficial owner of shares of our common stock, you should instruct your broker, dealer, custodian bank, trustee, or other nominee in accordance with the procedures described in the section of this prospectus entitled “The Rights Offering—Record Date Shareholders Whose Shares are Held by a Nominee.” | |
Subscription Agent | BNY Mellon Shareowner Services. | |
Information Agent | BNY Mellon Shareowner Services. | |
Questions | If you have any questions or need further information about this rights offering, please call BNY Mellon Shareowner Services at (201) 680-6579 (collect) or at (866) 282-4940 (toll-free). | |
Shares Outstanding on the Date Hereof | 15,078,979. | |
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Shares Outstanding after Completion of the Rights Offering | 19,748,979 shares of our common stock will be outstanding, assuming 4,670,000 shares are issued in the rights offering. | |
Issuance of our Common Stock | As soon as practicable after the rights offering has expired and all proration calculations, reductions, and additions contemplated by the terms of the rights offering have been effected, we will issue certificates representing your shares of our common stock, or credit your account at your nominee holder with shares of our common stock, electronically in registered, book-entry form only on our records or on the records of our transfer agent, BNY Mellon Shareowner Services, that you purchase pursuant to your basic and over-subscription rights. | |
Risk Factors | Investing in our securities involves a high degree of risk. Shareholders considering making an investment in our securities should consider the risk factors described in the section of this prospectus entitled “Risk Factors.” | |
Fees and Expenses | We will bear the fees and expenses relating to the rights offering. | |
Trading Symbol | Our common stock is presently traded on the NASDAQ Global Market under the symbol “EFOI”, and the shares to be issued in connection with the rights offering are expected to be eligible and listed for trading there. |
Key Dates | Record Date: | October 5, 2009. | ||
Distribution Date: | October 6, 2009. | |||
Initial Subscription Period: | October 6, 2009 through October 30, 2009. | |||
Initial Period Expiration Date: | October 30, 2009, unless extended by us. | |||
Second Subscription Period: | November 2, 2009 through November 13, 2009. | |||
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• | price and volume fluctuations in the overall stock market from time to time, including increased volatility due to the worldwide credit and economic crisis; | ||
• | significant volatility in the market price and trading volume of our securities, including increased volatility due to the worldwide credit and economic crisis; | ||
• | actual or anticipated changes or fluctuations in our operating results; | ||
• | material announcements by us regarding business performance, financings, mergers and acquisitions, or other transactions; | ||
• | general economic conditions and trends; | ||
• | competitive factors; or | ||
• | departures of key personnel. |
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• | MR-16 halogen replacement bulbs, | ||
• | LED Cold Storage Globe lamps, | ||
• | LED Lamps and Fixtures (“PAL”), | ||
• | LED Light Rails, | ||
• | LED Docklights, | ||
• | HID High Bay Fixtures, | ||
• | Fluorescent Fixtures, and | ||
• | Compact Fluorescent Light Bulbs. |
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• | obtain loans and/or grants available through federal, state, and/or local governmental agencies, | ||
• | obtain loans and/or grants from various financial institutions, | ||
• | obtain loans from non-traditional investment capital organizations, | ||
• | sale and/or disposition of one or more operating units, and | ||
• | obtain funding from the sale of our common stock or other equity instruments. |
• | government stimulus and/or grant money is not allocated to us despite our focus on the design, development, and manufacturing of energy efficient lighting systems, | ||
• | loans or other debt instruments may have terms and/or conditions, such as interest rate, restrictive covenants, and control or revocation provisions, which are not acceptable to management or our Board of Directors, | ||
• | the current global economic crisis combined with our current financial condition may prevent us from being able to obtain any debt financing, | ||
• | financing may not be available for parties interested in pursuing the acquisition of one or more of our operating units, and | ||
• | additional equity financing may not be available to us in the current economic environment and could lead to further dilution of shareholder value for current shareholders of record. |
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• | multiple, conflicting, and changing laws and regulations, export and import restrictions, employment laws, regulatory requirements, and other government approvals, permits, and licenses; | ||
• | difficulties and costs in staffing and managing foreign operations such as our offices in Germany and the United Kingdom; | ||
• | difficulties and costs in recruiting and retaining individuals skilled in international business operations; | ||
• | increased costs associated with maintaining international marketing efforts; | ||
• | potentially adverse tax consequences; | ||
• | political and economic instability, including wars, acts of terrorism, political unrest, boycotts, curtailments of trade, and other business restrictions; and | ||
• | currency fluctuations. |
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• | limitation on the removal of directors; | ||
• | advanced notice requirements for shareholder proposals and nominations; | ||
• | the inability of shareholders to act by written consent or to call a special meeting; | ||
• | the ability of our board of directors to designate the terms of and issue new series of preferred stock without shareholder approval; and | ||
• | the poison pill contained in our Rights Agreement. |
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• | We have incurred significant operating losses and cannot assure you that we will generate profit. | ||
• | Our previous auditors have indicated there is uncertainty about our ability to continue as a “going concern.” | ||
• | If we fail to raise capital and implement our business plan, we may need to forego the acquisition of a lighting retrofit business, significantly curtail operations, cease operations, or seek federal bankruptcy protection. | ||
• | We are subject to significant competition. |
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• | on an actual basis as of June 30, 2009; and | ||
• | on a pro forma as adjusted basis to give effect to the sale of 4,670,000 shares of our common stock to raise a maximum of $3.5 million in this rights offering, assuming a subscription price of $0.75 per share and our receipt of the net proceeds from that sale. | ||
At June 30, 2009 | ||||||||
Pro Forma | ||||||||
Actual | As Adjusted | |||||||
(dollars in thousands) | ||||||||
Cash and cash equivalents | $ | 5,613 | $ | 8,743 | ||||
Total liabilities excluding debt | $ | 2,691 | $ | 2,691 | ||||
Total debt | $ | 1,847 | 1,847 | |||||
Common stock, $0.0001 par value (30,000,000 shares authorized; 15,078,979 issued and outstanding at June 30, 2009) | 1 | 1 | ||||||
Accumulated other comprehensive income | 369 | 369 | ||||||
Additional paid-in capital | 66,238 | 69,368 | ||||||
Accumulated deficit | (54,718 | ) | (54,718 | ) | ||||
Total shareholders’ equity | $ | 11,890 | $ | 15,020 | ||||
Total liabilities and shareholders’ equity | $ | 16,428 | $ | 19,558 | ||||
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Subscription price | $ | 0.75 | ||
Net tangible book value per share prior to the rights offering | 0.79 | |||
Pro forma net tangible book value per share after the rights offering | 0.76 | |||
Dilution in net tangible book value per share to existing shareholders | 0.03 | |||
Increase per share attributable to purchasers in the rights offering | $ | 0.01 | ||
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SIX MONTHS | ||||||||||||||||||||||||||||
FISCAL YEAR ENDED DECEMBER 31, | ENDED JUNE 30, | |||||||||||||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | 2009 | 2008 | ||||||||||||||||||||||
OPERATING SUMMARY | ||||||||||||||||||||||||||||
Net sales | $ | 22,950 | $ | 22,898 | $ | 27,036 | $ | 28,337 | $ | 29,731 | $ | 6,620 | $ | 12,453 | ||||||||||||||
Gross profit | 5,503 | 6,282 | 7,785 | 10,626 | 11,511 | 1,117 | 3,687 | |||||||||||||||||||||
As a percentage of net sales | 24 | % | 27.4 | % | 28.8 | % | 37.5 | % | 38.7 | % | 16.9 | % | 29.6 | % | ||||||||||||||
Net research and development expenses | 2,188 | 2,907 | 2,341 | 2,190 | 1,188 | 483 | 593 | |||||||||||||||||||||
As a percentage of net sales | 9.5 | % | 12.7 | % | 8.7 | % | 7.7 | % | 4 | % | 7.3 | % | 4.8 | % | ||||||||||||||
Sales and marketing expenses | 8,551 | 9,789 | 9,774 | 9,595 | 8,595 | 3,530 | 5,590 | |||||||||||||||||||||
As a percentage of net sales | 37.3 | % | 42.8 | % | 36.2 | % | 33.9 | % | 28.9 | % | 53.3 | % | 44.9 | % | ||||||||||||||
General and administrative expenses | 5,080 | 4,651 | 4,956 | 3,135 | 2,459 | 2,426 | 2,552 | |||||||||||||||||||||
As a percentage of net sales | 22.1 | % | 20.3 | % | 18.3 | % | 11.1 | % | 8.3 | % | 36.7 | % | 20.5 | % | ||||||||||||||
Loss on impairment | 4,305 | — | — | — | — | 165 | — | |||||||||||||||||||||
As a percentage of net sales | 18.8 | % | — | % | — | % | — | % | — | % | 2.5 | % | — | % | ||||||||||||||
Restructure expenses | — | 456 | 734 | 3,120 | — | — | — | |||||||||||||||||||||
As a percentage of net sales | — | % | 2 | % | 2.7 | % | 11 | % | — | % | — | % | — | % | ||||||||||||||
Loss before tax | (14,698 | ) | (11,127 | ) | (9,537 | ) | (7,314 | ) | (762 | ) | (5,390 | ) | (5,008 | ) | ||||||||||||||
As a percentage of net sales | (64.0 | )% | (48.6 | )% | (35.3 | )% | (25.8 | )% | (2.6 | )% | (81.4 | )% | (40.2 | )% | ||||||||||||||
Net loss | (14,448 | ) | (11,317 | ) | (9,650 | ) | (7,423 | ) | (704 | ) | (5,390 | ) | (5,088 | ) | ||||||||||||||
As a percentage of net sales | (63.0 | )% | (49.4 | )% | (35.7 | )% | (26.2 | )% | (2.4 | )% | (81.4 | )% | (40.9 | )% | ||||||||||||||
Net loss per share | ||||||||||||||||||||||||||||
Basic | $ | (1.02 | ) | $ | (0.98 | ) | $ | (0.85 | ) | $ | (0.90 | ) | $ | (0.10 | ) | $ | (0.36 | ) | $ | (0.38 | ) | |||||||
Diluted | $ | (1.02 | ) | $ | (0.98 | ) | $ | (0.85 | ) | $ | (0.90 | ) | $ | (0.10 | ) | $ | (0.36 | ) | $ | (0.38 | ) | |||||||
Shares used in per share calculation: | ||||||||||||||||||||||||||||
Basic | 14,182 | 11,500 | 11,385 | 8,223 | 7,269 | 14,877 | 13,521 | |||||||||||||||||||||
Diluted | 14,182 | 11,500 | 11,385 | 8,223 | 7,269 | 14,877 | 13,521 | |||||||||||||||||||||
FINANCIAL POSITION SUMMARY | ||||||||||||||||||||||||||||
Total assets | $ | 23,652 | $ | 29,125 | $ | 40,592 | $ | 46,209 | $ | 27,018 | $ | 16,428 | $ | 33,353 | ||||||||||||||
Cash and cash equivalents | 10,568 | 8,412 | 15,968 | 23,578 | 3,609 | 5,613 | 12,249 | |||||||||||||||||||||
Working capital | 12,514 | 12,512 | 22,410 | 31,530 | 14,541 | 12,028 | 12,512 | |||||||||||||||||||||
Credit line borrowings | 1,904 | 1,159 | 1,124 | 47 | — | 1,776 | 328 | |||||||||||||||||||||
Current portion of long-term borrowings | 54 | 1,726 | 778 | 342 | 38 | — | 1,374 | |||||||||||||||||||||
Long-term borrowings | 245 | 314 | 1,862 | 1,089 | 484 | 71 | 308 | |||||||||||||||||||||
Shareholders’ equity | 16,789 | 21,618 | 30,880 | 38,184 | 21,202 | 11,890 | 26,594 | |||||||||||||||||||||
Common shares outstanding | 14,835 | 11,623 | 11,394 | 11,270 | 7,351 | 15,079 | 14,832 |
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CONDITIONS AND RESULTS OF OPERATIONS
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Three months ended | Six months ended | |||||||||||||||
June 30, | June 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Gross expenses for research and development | $ | 390 | $ | 489 | $ | 794 | $ | 993 | ||||||||
Deduct: credits from DARPA contracts | (137 | ) | (297 | ) | (311 | ) | (400 | ) | ||||||||
$ | 253 | $ | 192 | $ | 483 | $ | 593 | |||||||||
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Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
EFO | $ | 10,888 | $ | 7,011 | $ | 5,316 | ||||||
Traditional Pool | 5,034 | 9,002 | 11,958 | |||||||||
Traditional Commercial Lighting | 7,028 | 6,885 | 9,762 | |||||||||
$ | 22,950 | $ | 22,898 | $ | 27,036 | |||||||
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Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
United States Domestic | $ | 12,902 | $ | 14,949 | $ | 18,776 | ||||||
Germany | 2,918 | 3,136 | 2,998 | |||||||||
United Kingdom | 6,764 | 4,265 | 4,817 | |||||||||
Others | 366 | 548 | 445 | |||||||||
$ | 22,950 | $ | 22,898 | $ | 27,036 | |||||||
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Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Gross Research and Development Expense and Government Reimbursement: | ||||||||||||
Gross expenses for research and development | $ | 3,083 | $ | 3,424 | $ | 3,556 | ||||||
Deduct: incurred and accrued credits from Government contracts | (895 | ) | (517 | ) | (1,215 | ) | ||||||
Net research and development expense | $ | 2,188 | $ | 2,907 | $ | 2,341 | ||||||
Total Credits Received and Revenue Recognized on Government Projects: | ||||||||||||
Incurred and accrued credits from Government contracts | $ | 895 | $ | 517 | $ | 1,215 | ||||||
Revenue recognized for completed deliveries | 1,670 | 542 | 1,979 | |||||||||
Net credits received and revenue recognized | $ | 2,565 | $ | 1,059 | $ | 3,194 | ||||||
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• | obtain loans from various financial institutions, | ||
• | obtain loans from one or more non-traditional investment capital organizations, | ||
• | sale and/or disposition of one or more operating units, and | ||
• | obtain funding from the sale of our common stock or other equity instruments. |
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• | loans or other debt instruments may have terms and/or conditions, such as interest rate, restrictive covenants, and control or revocation provisions, which are not acceptable to management or our Board of Directors, | ||
• | the current global economic crisis combined with our current financial condition may prevent us from being able to obtain any debt financing, | ||
• | financing may not be available for parties interested in pursuing the acquisition of one or more of our operating units, and | ||
• | additional equity financing may not be available to us in the current economic environment and could lead to further dilution of shareholder value for current shareholders of record. |
Cash and Cash Equivalents
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• | Revenue recognition; | ||
• | Allowances for doubtful accounts, returns and discounts; | ||
• | Long-lived assets; | ||
• | Valuation of inventories; | ||
• | Accounting for income taxes; and | ||
• | Share-Based compensation. |
• | persuasive evidence or an arrangement exists, e.g., a sales order, a purchase order, or a sales agreement, | ||
• | shipment has occurred (the standard shipping term is F.O.B. ship point) or services provided on a proportional performance basis or installation have been completed, | ||
• | price to the buyer is fixed or determinable, and | ||
• | collectability is reasonably assured. |
• | all sales made by the company to its customer base are non-contingent, meaning that they are not tied to that customer’s resale of products, | ||
• | standard terms of sale contain shipping terms of F.O.B. ship point, meaning that title is transferred when shipping occurs, and | ||
• | there are no automatic return provisions that allow the customer to return the product in the event that the product does not sell within a defined timeframe. |
• | proportional performance method using the ratio of labor cost incurred to the total final estimated labor cost. Under this method, revenue recognized reflects the portion of anticipated revenue that has been earned. |
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• | product sale at completion of installation and | ||
• | installation service at completion of installation. |
• | Allowance for doubtful accounts for accounts receivable, and | ||
• | Allowance for sales returns. |
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• | $2 billion in loans for renewable energy projects, | ||
• | $4.5 billion toward smart-grid applications, | ||
• | $6.3 billion in state energy-efficient and clean-energy grants, and | ||
• | $4.5 billion to make federal buildings more energy efficient. |
• | Metal Halide and LED Fiber optic lighting systems (e.g. EFO-Ice®), E-Luminator™ | ||
• | LED and Metal Halide lightings systems (e.g. EFO Docklight, Cold Storage). |
• | Many of our products meet the lighting efficiency standards mandated for the year 2020. | ||
• | Our products qualify for federal and state tax incentives for commercial and residential consumers in certain states. | ||
• | Our products make use of proprietary optical systems that enable high efficiencies. | ||
• | Certain utility companies continue to embrace our technology as an energy-efficient alternative and are promoting our products to their customers. In 2007, Southern California Edison confirmed that our patented product “EFO-Ice™” used only 25% of the energy of comparable fluorescent lighting systems and 33% of the energy of comparable LED systems. |
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• | The heat source of the fiber optic lighting fixtures usually is physically separated from the lamps, providing a “cool” light. This unique feature has special application in grocery stores, where reduction of food spoilage and melting due to heat is an important goal. |
• | Capitalize on the growing need for high return on investment energy-efficient lighting systems.We intend to continue to devote significant resources to our product development efforts to maximize the energy efficiency and quality of our lighting systems while reducing costs and enabling our customers to meet more stringent government regulations. Further, we plan to continue to develop new proprietary technologies and integrate new and potentially more efficient lighting sources into our lighting systems such as LED. | ||
• | Focus on increased market penetration where the benefits of our technology are most compelling.We intend to broaden the penetration of our products within commercial, retail, and supermarket channels, which all share urgent needs for highly efficient, flexible, and financially economical lighting solutions. Further, we continue to aggressively penetrate the government and military lighting markets. To reach our target markets, we are significantly increasing both the number and experience level of our direct sales employees. Additionally, we are actively restructuring our independent sales representative network to increase sales volume and accountability of results. | ||
• | Develop and expand strategic relationships.To expedite the awareness of our technologies, we continue to actively pursue strategic relationships with distributors, energy service companies (“ESCO’s”), lighting designers, and contractors who distribute, recommend, and/or install lighting systems. We continue to cultivate relationships with fixture manufacturers and other participants in the general lighting market. | ||
• | Develop a commercially-viable, cost-effective solar technology. Through our on-going leadership role in the United States government’s VHESC Consortium sponsored by DARPA, we expect to be able to commercialize a solar cell technology that will significantly surpass current solar efficiencies ranging from 6% - 20%. Our proven optics technology has already shown the ability to achieve approximately 40% efficiency in a laboratory environment and we believe that this efficiency, or greater, can be achieved on a cost-effective, commercially-viable scale. |
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• | We have fundamental intellectual property and trade secrets in non-imaging optics and codings. | ||
• | We have an ability to efficiently create, transport, and display light. | ||
• | We have a broad and intimate understanding of lighting technologies. | ||
• | We have a superior understanding of the existing building market and its desire and need for lighting products and systems. | ||
• | We are developing a core competence in solutions sales, including deal structuring and financing. | ||
• | We have a strong relationship with the federal government for research. |
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1. | Intensify our focus on the existing building market through national accounts, lighting system solutions, and the strategic acquisition of one or more lighting retrofit company. On September 29, 2009, we announced that we intend to acquire the Stones River Companies of Nashville, Tennessee, a leading lighting energy solutions provider, as part of our strategy to become a turnkey lighting energy solutions company. | ||
2. | Develop mainstream lighting technologies, including in the near future Track LED Lighting and a Generation 1 LED Light Tube. | ||
3. | Raise additional working capital by doing a rights offering to existing shareholders, with part of the proceeds of that offering to be used for the cash portion of the purchase price of a lighting retrofit company. | ||
4. | Explore the divestiture of the following lines of our business: Fiberstars Pools and United States commercial businesses, and our British and German subsidiaries. | ||
5. | Reduce our monthly expenses including reducing executive management salaries and eliminating other positions. |
• | The sale of business units and raising of additional capital in a rights offering will provide necessary operating funds for 2009 and after. | ||
• | We will have formed a streamlined organization that is very focused on creating economic value through term key lighting energy solutions and systems for existing business owners. | ||
• | We will have developed mainstream lighting products for the existing building market that are not currently available and that are differentiated by their performance, energy consumption, longevity, and control ability. This product line up will begin with LED track lighting and LED tube lighting products. | ||
• | We will grow with the acquisition of one or more lighting retrofit businesses. This will allow us to take advantage of the opportunity created by the federal government stimulus package in public sector markets. This will replace the top-line sales of our divested businesses. | ||
• | All of these steps will accelerate our transformation into a fully-integrated, lighting, energy systems and solutions provider. |
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• | LED Cold Storage Globe lamps, | ||
• | LED Lamps and Fixtures (“PAL”), | ||
• | LED Light Rails, | ||
• | LED Docklights, | ||
• | HID High Bay Fixtures, | ||
• | Fluorescent fixtures, and | ||
• | Compact Fluorescent Light Bulbs. |
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Director or Officer | ||||||||||
Name | Age | Since | Background | |||||||
John M. Davenport | 64 | 2005 | Director and President. Mr. Davenport joined the Company in November 1999 as Vice President and Chief Technology Officer and was appointed Chief Operating Officer in July 2003 and President in July 2005. He also served as Chief Executive Officer from July 2005 until May 2008. Prior to joining Energy Focus, Mr. Davenport served as President of Unison Fiber Optic Lighting Systems, LLC, from 1998 to 1999. Mr. Davenport began his career at GE Lighting in 1972 as a research physicist and thereafter served 25 years in various capacities including GE Lighting’s research and development manager and as development manager for high performance LED projects. He is a recognized expert in light sources, lighting systems and lighting applications, with special emphasis in low wattage discharge lamps, electronic ballast technology and distributed lighting systems using fiber optics. | |||||||
J. James Finnerty | 57 | 2008 | Director. Mr. Finnerty is currently a Managing Director of Terra Nova Capital, a New York City-based boutique investment bank, where he focuses on raising capital for emerging growth companies in the energy, technology, life sciences, and specialty consumer sectors. Mr. Finnerty’s career has spanned more than 30 years in the institutional money management community having worked for Kidder Peabody, Hambrecht and Quist, Deutsche Bank and Merriman, Curhan, and Ford. Mr. Finnerty has focused his efforts in the Boston institutional financial marketplace where he successfully covered all the major accounts including Fidelity, Putnam, Wellington, etc. He has been involved in countless financings including Adobe, Pixar, Genzyme, Amazon, Starbucks, and The North Face to name a few. Mr. Finnerty has a Master’s in Business Administration from Cornell University and a Bachelor of Arts in Economics from Boston College. Mr. Finnerty is NASD Series 7 and 63 licensed. | |||||||
David Gelbaum | 60 | 2009 | Director. Mr. Gelbaum has been a private investor since 2002. From 1972 until 2002, he developed quantitative models for stock price returns and derivative securities for TGS Management, and from 1972 until 1989 he worked at Oakley & |
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Director or Officer | ||||||||||
Name | Age | Since | Background | |||||||
Sutton in a similar capacity. Mr. Gelbaum has been a strong supporter of the environment and outdoor education and in 2006 was named the 9th Most Influential Person in Southern California by the Los Angeles Times Magazine for his work in protecting the environment in Southern California. Now, with his wife, Monica, Mr. Gelbaum is a trustee in the Quercus Trust. Almost all of the Quercus Trust’s investments are in the Cleantech space. In addition to holding approximately 20% of Energy Focus’ common stock, the Trust includes in its holdings other alternate energy names such as Applied Solar Modules, Axion Power, EntechSolar, and ThermoEnergy. In addition to these public holdings, the fund has interests in a number of privately held companies in the Cleantech space. Currently, Mr. Gelbaum serves as Chairman of the Board of Directors for EntechSolar. | ||||||||||
Laurence V. Goddard | 56 | 2008 | Director. Mr. Goddard is a director and the President of the Parkland Group, Inc. which he founded in 1989 to provide specialized turnaround and business improvement services. Mr. Goddard’s experience includes business performance and profitability improvement, turnarounds, workouts and management support. Mr. Goddard has extensive experience in manufacturing businesses of all types, as well as distribution, retail, service and construction businesses. From 1982 to 1990, Mr. Goddard was the President and CEO of WACO International, a national manufacturer and distributor of construction equipment and supplies located in Cleveland, Ohio. At WACO, Mr. Goddard led the acquisition of eight companies which resulted in the growth of revenues from $8 million to over $100 million. Mr. Goddard has also held roles at Price Waterhouse in Canada. He is a Canadian Chartered Accountant (inactive), a Chartered Business Valuator (inactive) a Certified Turnaround Professional, and was a director/chairman of the Nominating and Governance Committee and member of the Audit Committee of Oglebay Norton from 2004 to February 2008. | |||||||
Michael A. Kasper | 59 | 2004 | Director. Mr. Kasper is a former executive with Procter & Gamble and Optical Coating Laboratory (now JDS Uniphase) spanning 29 years in industry. His primary background was in Operations Management as a Manufacturing Plant Manager and Director of Operations with P&G. He was Vice President and General Manager of the Applied Photonics Division at OCLI and served as Senior Vice President of Human Resources following the merger with JDSU. He was also President & CEO for United |
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Director or Officer | ||||||||||
Name | Age | Since | Background | |||||||
Way of Sonoma-Mendocino Lake for three years and currently is Principal of Complete Executives, consulting on executive development. Mr. Kasper is an honors graduate of Lafayette College with a Bachelor’s of Science in Mechanical Engineering. | ||||||||||
Joseph G. Kaveski | 48 | 2008 | Director and Chief executive Officer. Mr. Kaveski joined the Company in April 2008 as Vice President for Business Development and Global Marketing. On May 6, 2008 the Company’s Board of Directors appointed him as Chief Executive Officer. Prior to joining Energy Focus, Mr. Kaveski led his own strategic engineering consulting business, TGL Company, Leawood, Kansas. As a consultant, he worked with Energy Focus on strategic planning initiatives from September 2007 to April 2008. From November 2004 through February 2006, Mr. Kaveski was Vice President of Energy Management Services and Strategic Projects and a member of the senior management team at Johnson Controls, Inc., Milwaukee, Wisconsin, a global leader in automotive experience, building efficiency and power solutions. | |||||||
Paul von Paumgartten | 61 | 2008 | Director. Mr. von Paumgartten joined the Board in October 2004, and was appointed Lead Director in October 2008. From 1982 up to the present he has held various positions at Johnson Controls, Inc., most recently serving as Director, Energy & Environment since October 1999. Prior to that, he was Director of Performance Contracts at Johnson Controls, Inc. Mr. von Paumgartten also was instrumental in the formation of LEEDTM (Leadership in Energy and Environmental Design), the energy efficiency qualification program of the United States Green Building Council. This is a qualification program for sustainable design developed by an industry coalition representing many segments of the building industry. Mr. von Paumgartten serves as treasurer for LEEDTM. | |||||||
David N. Ruckert | 71 | 1987 | Director. Mr. Ruckert joined the Company in November 1987 as President, Chief Operating Officer, and a director. He served as Chief Executive Officer of the Company from October 1988 to July 2006 and served as Secretary of the Company from February 1990 to February 1994. He retired as CEO in June 2005 and as President in September, 2005. From June 1985 to October 1987, he was Executive Vice President of Greybridge, a toy company which he co-founded that was later acquired by Worlds of Wonder in 1987. Prior to that time, he was Executive Vice President of Atari from October 1982 to June 1984 and was a Manager/Vice President of Bristol-Myers Company in New York from October 1966 to October 1982. |
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Director or Officer | ||||||||||
Name | Age | Since | Background | |||||||
Philip E. Wolfson | 64 | 1986 | Director. Since 1998, Dr. Wolfson has served as Chief Executive Officer of Phytos, Inc., an herbal medicine development company. He has been Assistant Clinical Professor at the University of California School of Medicine in San Francisco since 1986 and has maintained a private practice in psychiatric medicine since 1982. Dr. Wolfson also served as a director and a consultant to NTI from 1989 to 1992. | |||||||
Nicholas G. Berchtold, Jr. | 42 | 2007 | Vice President of Finance, Chief Financial Officer, and Secretary.Mr. Berchtold was the division controller at Wellman Products Group, a division of Hawk Corporation, from 2000 to 2007, where he was responsible for global financial reporting and analysis. Additionally, he served as the corporate assistant controller at Olympic Steel, Inc. from 1997 to 2000. | |||||||
Roger R. Buelow | 36 | 2005 | Chief Technology Officer. Vice President of Engineering from February 2003 to July 2005. Prior to joining the Company in 2003, Mr. Buelow was the director of engineering at Unison Fiber Optic Lighting Systems, LLC from 1998 to 1999. | |||||||
Eric W. Hilliard | 41 | 2006 | Vice President and Chief Operating Officer.Mr. Hilliard served as a Business Manager at Saint Gobain — Flight Structures Business from 2002 to 2006. Additionally, he served at Goodrich Aerospace Company and HJ Heinz Company for 7 years from 1994 to 2002. |
David Gelbaum
Laurence V. Goddard
Michael A. Kasper
Paul von Paumgartten
David N. Ruckert
Philip E. Wolfson
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Change in | ||||||||||||||||||||||||||||||||
Pension | ||||||||||||||||||||||||||||||||
Value and | ||||||||||||||||||||||||||||||||
Non- | ||||||||||||||||||||||||||||||||
Non-Equity | Qualified | |||||||||||||||||||||||||||||||
Incentive | Deferred | All | ||||||||||||||||||||||||||||||
Option | Plan | Compensation | Other | |||||||||||||||||||||||||||||
Name and Principal | Salary | Bonus | Awards | Compensation | Earnings | Compensation | Total | |||||||||||||||||||||||||
Position | Year | ($) | ($) (1) | ($) (2) | ($) (3) | ($) | ($) (4) | ($) | ||||||||||||||||||||||||
Joseph G. Kaveski | 2008 | 176,919 | — | 20,134 | — | — | 44,585 | 241,638 | ||||||||||||||||||||||||
Chief Executive Officer (April 7, 2008 to present) | ||||||||||||||||||||||||||||||||
John M. Davenport | 2008 | 250,000 | — | 211,908 | — | — | 540 | 462,448 | ||||||||||||||||||||||||
President | 2007 | 250,000 | — | 277,928 | — | — | 880 | 528,808 | ||||||||||||||||||||||||
2006 | 250,000 | — | 294,039 | — | — | 773 | 544,812 | |||||||||||||||||||||||||
Nicholas G. Berchtold | 2008 | 175,000 | — | 35,860 | — | — | 540 | 211,400 | ||||||||||||||||||||||||
Chief Financial | 2007 | 68,317 | — | 8,912 | 77,229 | |||||||||||||||||||||||||||
Officer and Vice President of Finance | ||||||||||||||||||||||||||||||||
Eric W. Hilliard | 2008 | 190,000 | — | 104,227 | — | — | 540 | 294,767 | ||||||||||||||||||||||||
Chief Operating | 2007 | 180,000 | — | 90,517 | — | — | 612 | 271,129 | ||||||||||||||||||||||||
Officer | 2006 | 28,846 | — | — | — | — | — | 28,846 | ||||||||||||||||||||||||
Roger R. Buelow | 2008 | 175,000 | — | 47,713 | — | — | 6,720 | 229,433 | ||||||||||||||||||||||||
Chief Technology | 2007 | 183,229 | 10,000 | 33,052 | — | — | 365 | 226,646 | ||||||||||||||||||||||||
Officer | 2006 | 140,000 | — | 38,603 | — | — | 258 | 178,861 |
(1) | Reflects discretionary bonus for Mr. Buelow. | |
(2) | Information about stock options granted to our Named Executive Officers during 2008 is set forth in the 2008 Grants of Plan-BasedPlan-Based Awards Table. That Table also sets forth the aggregate grant date fair value of the stock options granted during 2008 computed in accordance with FAS 123(R). | |
(3) | The amounts set forth in this column reflect stock options granted to our Named Executive Officers. The amounts listed are equalto the compensation cost recognized by the Company during the year indicated for financial statement purposes in accordancewith FAS 123®. This valuations method values stock options granted during the indicated year and previous years. A discussion of the assumptions used in calculating the compensation cost is set forth in Note 9 of the Notes to Consolidated Financial Statements in our 2008 Annual Report on Form 10-K. | |
(4) | The amounts set forth in this column for 2008 include: |
• | Company contributions for life insurance policies and automobile allowances; | ||
• | For Mr. Kaveski, consulting fees; |
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All Other | ||||||||||||||||||||||||||||||||||||||||
Option | Grant | |||||||||||||||||||||||||||||||||||||||
Awards | Exercise | Date Fair | ||||||||||||||||||||||||||||||||||||||
Estimated Possible Payouts | Estimated Future Payouts | Number of | or Base | Value of | ||||||||||||||||||||||||||||||||||||
Under Non-Equity Incentive | Under Equity Incentive | Securities | Price of | Stock and | ||||||||||||||||||||||||||||||||||||
Plan Awards | Plan Awards | Underlying | Option | Option | ||||||||||||||||||||||||||||||||||||
Grant | Threshold | Target | Maximum | Threshold | Target | Maximum | Options | Awards | Awards | |||||||||||||||||||||||||||||||
Name | Date | ($) | ($) | ($) | (#) | (#) | (#) | (#) | ($/Sh) | (1) | ||||||||||||||||||||||||||||||
Joseph G. Kaveski | 05/06/08 | — | — | — | — | — | — | 100,000 | 2.00 | 106,000.00 | ||||||||||||||||||||||||||||||
11/24/08 | — | — | — | — | — | — | 100,000 | 1.37 | 81,000.00 | |||||||||||||||||||||||||||||||
Nicholas G. Berchtold | 12/17/08 | — | — | — | — | — | — | 25,000 | 1.40 | 20,750.00 | ||||||||||||||||||||||||||||||
John M. Davenport | 05/06/08 | — | — | — | — | — | — | 100,000 | 2.00 | 106,000.00 | ||||||||||||||||||||||||||||||
Eric W. Hilliard | 10/23/08 | — | — | — | — | — | — | 25,000 | 1.37 | 20,000.00 |
(1) | The dollar values of stock options disclosed in this column are equal to the aggregate grant date fair value computed in accordance with SFAS 123(R). A discussion of the assumptions used in calculating the grant date fair value is set forth in Note 9 of the Notes to the Consolidated Financial Statements in our 2008 Annual Report on Form 10-K. | |
Stock Options.The stock options that we granted to our Named Executive Officers in 2008 were granted under our 2004 Incentive Stock Plan and 2008 Incentive Stock Plan. In accordance with the terms of those Plans, each option exercise price is equal to the market value of our common stock on the date the option is granted. The market value is equal to the closing price of our common stock on the date of grant on the NASDAQ Stock Market. The options vest over four years at the rate of 25% of the shares covered by the option on each anniversary of the grant date. Stock options are not transferable other than by will or the laws of descent and distribution. |
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Option Awards | ||||||||||||||||||||
Equity | ||||||||||||||||||||
Incentive | ||||||||||||||||||||
Plan | ||||||||||||||||||||
Awards: | ||||||||||||||||||||
Number of | Number of | Number of | ||||||||||||||||||
Securities | Securities | Securities | ||||||||||||||||||
Underlying | Underlying | Underlying | ||||||||||||||||||
Unexercised | Unexercised | Unexercised | Option | |||||||||||||||||
Options | Options | Unearned | Exercise | Option | ||||||||||||||||
Exercisable | Un-exercisable | Options | Price | Expiration | ||||||||||||||||
Name | (#) | (#) | ( #) | ($) | Date | |||||||||||||||
Joseph G. Kaveski | 16,667 | 83,333 | (1) | — | 2.00 | 05/06/18 | ||||||||||||||
3,125 | 96,875 | (2) | — | 1.37 | 11/24/18 | |||||||||||||||
Nicholas G. Berchtold | 8,854 | 16,146 | (3) | — | 6.05 | 08/10/17 | ||||||||||||||
6,771 | 18,229 | (4) | — | 6.06 | 12/06/17 | |||||||||||||||
260 | 24,740 | (5) | — | 1.40 | 12/17/18 | |||||||||||||||
John M. Daveport | — | 10,000 | (6) | — | 4.50 | 02/28/12 | ||||||||||||||
100,000 | — | — | 3.96 | 07/01/12 | ||||||||||||||||
20,000 | — | — | 7.23 | 12/04/13 | ||||||||||||||||
20,000 | — | — | 8.60 | 05/19/14 | ||||||||||||||||
59,000 | — | (7) | — | 9.60 | 06/28/15 | |||||||||||||||
20,833 | 29,167 | (8) | — | 6.53 | 04/19/17 | |||||||||||||||
16,667 | 83,333 | (1) | — | 2.00 | 05/06/18 | |||||||||||||||
Eric W. Hilliard | 40,625 | 34,375 | (9) | — | 7.19 | 11/13/16 | ||||||||||||||
20,833 | 29,167 | (10 | — | 6.36 | 04/26/17 | |||||||||||||||
1,302 | 23,698 | (11) | — | 1.37 | 10/23/18 | |||||||||||||||
Roger R. Buelow | 18,750 | — | 3.35 | 02/19/13 | ||||||||||||||||
21,875 | 3,125 | (12) | — | 10.64 | 07/01/15 | |||||||||||||||
6,771 | 18,229 | (4) | — | 6.06 | 12/06/17 |
(1) | Options will vest on May 6, 2012. | |
(2) | Options will vest on November 24, 2012. | |
(3) | Options will vest on August 10, 2011. | |
(4) | Options will vest on December 6, 2011. | |
(5) | Options will vest on December 17, 2012. | |
(6) | Options will vest on February 28, 2009. | |
(7) | 141,000 options of the 200,000 granted on June 28, 2005 were forfeited on May 6, 2008 in conjunction with a grant of 100,000 options. | |
(8) | Options will vest on April 19, 2011. | |
(9) | Options will vest on November 13, 2010. | |
(10) | Options will vest on April 26, 2011. | |
(11) | Options will vest on October 23, 2012. | |
(12) | Options will vest on July 1, 2009. |
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Number of Shares | ||||||||||||
to be Issued | ||||||||||||
Upon Exercise of | Weighted Average | Number of Shares | ||||||||||
Outstanding | Exercise Price of | Remaining | ||||||||||
Options, Warrants, | Outstanding | Available for | ||||||||||
and Rights | Options, Warrants, | Future Issuance | ||||||||||
Plan Category | (1) | and Rights | (2) | |||||||||
Equity compensation plans approved by security holders | 1,491,178 | $ | 5.29 | 828,498 | ||||||||
Equity compensation plans not approved by security holders | — | — | — | |||||||||
Total | 1,491,178 | $ | 5.29 | 828,498 |
(1) | This column represents the number of shares of common stock that may be issued in connection with the exercise of outstanding stock options granted under our 1994 Stock Opion Plan, 1994 Directors Stock Options Plan, 2004 Incentive Stock Plan, and 2008 Incentive Stock Plan. | |
(2) | This column represents the number of shared of common stock remaining available for future awards under our 2008 Incentive Stock Plan at December 31, 2008. |
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Annual Retainer | $ | 20,000 | ||
Additional Annual Retainers: | ||||
Lead Director | $ | 10,000 | ||
Compensation Committee Chairman | 3,000 | |||
Audit and Finance Committee Chairman | 3,000 | |||
Nominating and Corporate Governance Committee Chairman | 3,000 |
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Change in | ||||||||||||||||||||||||||||
Pension Value | ||||||||||||||||||||||||||||
and | ||||||||||||||||||||||||||||
Fees | Nonqualified | |||||||||||||||||||||||||||
Earned | Non-Equity | Deferred | ||||||||||||||||||||||||||
or Paid | Stock | Option | Incentive Plan | Compensation | All Other | |||||||||||||||||||||||
in Cash | Awards | Awards | Compensation | Earnings | Compensation | Total | ||||||||||||||||||||||
Name | ($) | ($) | ($) (1) | ($) | ($) | ($) | ($) | |||||||||||||||||||||
John B. Stuppin | 30,000 | — | 14,268 | — | — | — | 44,268 | |||||||||||||||||||||
Michael A. Kasper | 25,750 | — | 17,178 | — | — | — | 42,928 | |||||||||||||||||||||
Paul von Paumgartten | 18,500 | — | 12,898 | �� | — | — | — | 31,398 | ||||||||||||||||||||
Philip E. Wolfson | 17,000 | — | 12,898 | — | — | — | 29,898 | |||||||||||||||||||||
Ronald A. Casentini | 10,000 | — | 14,268 | — | — | 7,500 | 31,768 | |||||||||||||||||||||
David N. Ruckert | 14,750 | — | 1,377 | — | — | 29,864 | 45,991 | |||||||||||||||||||||
Laurence V. Goddard | 8,000 | — | 4,771 | — | — | — | 12,771 | |||||||||||||||||||||
J. James Finnerty | 5,000 | — | 2,910 | — | — | — | 7,910 |
(1) | Reflects the dollar amount recognized for financial reporting purposes for 2008 in accordance with FAS 123(R) and equates to the fair value of the immediately vested option awards on the date of grant. The method and assumptions used to determine the amount of expense recognized for options is set forth in Note 9 to the Consolidated Finacial Statements in the Company’s 2008 Annual Report on Form 10-K. In 2008, each non-employee director received the following number of shares under our 2004 Incentive Stock Plan and 2008 Incentive Stock Plan: Mr. Kasper, 10,000, Mr. von Paumgartten, 10,000, Mr. Wolfson, 10,000, Mr. Goddard, 10,000, Mr. Ruckert, 7,000, and Mr. Finnerty, 10,000. | |
(2) | The amounts set forth in this column for 2008 include: |
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Attention: Corporate Action Dept.
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Collect: (201) 680-6579
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Attention: Corporate Action Dept. | ||
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• | provide your payment in full of the subscription price for each share of common stock being subscribed for pursuant to the basic subscription right and the oversubscription right to the subscription agent before the expiration date; | ||
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• | deliver the properly completed Subscription Form relating to the rights being exercised, with any required signatures guaranteed, to the subscription agent within three business days following the date the notice of guaranteed delivery was received by the subscription agent and no later than three business days following the expiration date. |
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Fiscal Year Ended December 31, 2006 | ||||||||
First Quarter | $ | 9.33 | $ | 7.61 | ||||
Second Quarter | 9.09 | 6.91 | ||||||
Third Quarter | 8.85 | 6.75 | ||||||
Fourth Quarter | 7.95 | 5.42 | ||||||
Fiscal Year Ended December 31, 2007 | ||||||||
First Quarter | $ | 8.75 | $ | 5.20 | ||||
Second Quarter | 7.52 | 5.60 | ||||||
Third Quarter | 7.85 | 4.60 | ||||||
Fourth Quarter | 9.95 | 4.80 | ||||||
Fiscal Year Ended December 31, 2008 | ||||||||
First Quarter | $ | 7.31 | $ | 2.31 | ||||
Second Quarter | 2.94 | 1.78 | ||||||
Third Quarter | 2.75 | 1.45 | ||||||
Fourth Quarter | 2.57 | 1.00 | ||||||
Fiscal Year Ended December 31, 2009 | ||||||||
First Quarter | $ | 1.73 | $ | 0.63 | ||||
Second Quarter | 1.07 | 0.58 | ||||||
Third Quarter | 1.39 | 0.55 |
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MANAGEMENT
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Shares Beneficially Owned (1) | ||||||||
Percent of | ||||||||
Outstanding | ||||||||
Common | ||||||||
Name and Address | Number | Stock (2) | ||||||
5% Shareholders | ||||||||
The Quercus Trust | 4,245,541 | (3) | 19.99 | % | ||||
2309 Santiago Drive Newport Beach, California 92660 | ||||||||
Stiassni Capital Partners, L.P. | 1,262,702 | (4) | 8.37 | % | ||||
2400 Palos Verdes Drive West Rancho Palos Verdes, California 90275 | ||||||||
Midsummer Investment, Ltd. | 1,048,536 | (5) | 6.95 | % | ||||
295 Madison Avenue New York, New York 10017 | ||||||||
Diker GP, LLC | 996,166 | (6) | 6.61 | % | ||||
745 Fifth Avenue New York, New York 10151 | ||||||||
Directors and Named Executive Officers | ||||||||
Nicholas G. Berchtold | 48,349 | * | ||||||
Roger R. Buelow | 69,310 | * | ||||||
John M. Davenport | 558,105 | 3.70 | % | |||||
J. James Finnerty | 60,052 | * | ||||||
David Gelbaum (3) | 24,913 | * | ||||||
Laurence V. Goddard | 12,361 | * | ||||||
Eric W. Hilliard | 109,146 | * | ||||||
Michal A. Kasper | 48,667 | * | ||||||
Joseph G. Kaveski | 76,804 | * | ||||||
Paul von Paumgartten | 42,667 | * | ||||||
David N. Ruckert | 314,531 | 2.09 | % | |||||
Phillip E. Wolfson | 108,800 | * | ||||||
All directors and executive officers as a group | 1,473,705 | 9.77 | % |
* | Less than one percent | |
(1) | Unless otherwise indicated, each person has sole investment and voting power, or shares such power with his or her spouse, with respect to the shares set forth in the above table. | |
(2) | Based on 15,078,979 shares outstanding as of June 30, 2009. In addition, shares issuable pursuant to options and warrants which may be exercised through 60 days after June 30, 2009, or August 29, 2009, are deemed to be issued and outstanding and have been treated as outstanding in calculating the percentage ownership of those individuals possessing such interest, but not for any other individual. Thus, the number of shares to be outstanding for the purposes for this table may vary depending on the individuals’ particular circumstances. |
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Includes the following number of shares of our common stock issuable upon exercise of outstanding stock options that were exercisable within 60 days after June 30, 2009, or August 29, 2009: |
Options Exercisable | ||||
Directors and Named Executive Officers | as of August 29, 2009 | |||
Nicholas G. Berchtold | 31,771 | |||
Roger R. Buelow | 63,073 | |||
John M. Davenport | 415,885 | |||
J. James Finnerty | 12,292 | |||
David Gelbaum | 8,125 | |||
Laurence V. Goddard | 12,986 | |||
Eric W. Hilliard | 91,146 | |||
Michal A. Kasper | 39,292 | |||
Joseph G. Kaveski | 53,125 | |||
Paul von Paumgartten | 36,292 | |||
David N. Ruckert | 59,583 | |||
Phillip E. Wolfson | 68,292 | |||
All directors and executive officers as a group | 891,862 | |||
(3) | The co-trustees of The Quercus Trust are David Gelbaum and Monica Chavez Gelbaum. As noted above, Mr. Gelbaum is a member of our board of directors. The Quercus Trust has filed with the Securities and Exchange Commission a Schedule 13D/A dated March 3, 2009 which reports the beneficial ownership in the aggregate of 4,245,541 shares, consisting of 2,685,479 shares owned and 1,560,062 shares covered by warrants. As reported in that Schedule, The Quercus Trust and its co-trustees entities have shared voting power for 4,245,451 shares and shared dispositive power for 4,245,541 shares. The 4,245,541 shares shown in the table as beneficially owned by The Quercus Trust do not include the 10,333 shares held under option by and the 17,413 restricted shares granted to David Gelbaum as a member of the Board of Directors under our 2008 Stock Incentive Plan. | |
The Quercus Trust is one of the 19 investors that participated in our March 14, 2008 private placement of shares of common stock and common share warrants. The terms of the warrant issued to each investor in that private placement, including The Quercus Trust, provide that the number of shares that may be acquired by any investor upon exercise of a warrant is limited to the extent necessary to ensure that, following the exercise, the total number of shares of common stock owned by the investor and persons who are beneficial owners through |
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the investor does not exceed 19.99% of the total number of the Company’s outstanding shares. Because of the 19.99% limit in The Trust’s warrant, the table lists that percentage ownership for The Trust. Prior to that private placement, the Company amended its Rights Agreement dated October 25, 2006, with Mellon Shareowner Services, as Rights Agent, to permit The Quercus Trust, and persons who are beneficial owners through The Trust, to own up to 20% of our common stock without triggering the rights under the Rights Agreement. The general limit in the Agreement is 15%. | ||
(4) | Stiassni Capital Partners, L.P. has filed with the Securities and Exchange Commission a Schedule 13G dated December 31, 2008, which reports beneficial ownership in the aggregate of 1,262,702 shares. As reported in that Schedule, Stiassni Capital Partners, L.P. and its affiliated entities have shared voting power for 1,262,702 shares and shared dispositive power for 1,262,702 shares. | |
(5) | Midsummer Investment, Ltd. has filed with the Securities and Exchange Commission a Schedule 13G dated May 5, 2009, which reports beneficial ownership in the aggregate of 1,048,536 shares. As reported in that Schedule, Midsummer Investment, Ltd. and its affiliated entities have shared voting power for 1,048,536 shares and shared dispositive power for 1,048,536 shares. | |
(6) | Diker GP, LLC has filed with the Securities and Exchange Commission a Schedule 13G dated February 17, 2009, which reports beneficial ownership in the aggregate of 996,166 shares. As reported in that Schedule, Diker Group, LLC and its affiliated entities have shared voting power for 996,166 shares and shared dispositive power for 996,166 shares. |
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• | a citizen or resident of the United States; | ||
• | a corporation or other entity taxable as a corporation that is organized in or under the laws of the United States., any state thereof or the District of Columbia; | ||
• | an estate, the income of which is subject to United States federal income taxation, regardless of its source; or | ||
• | a trust, if a United States court is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust (or the trust was in existence on August 20, 1996, and validly elected to continue to be treated as a United States trust). | ||
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ON ACCOUNTING AND FINANCIAL DISCLOSURE
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Page | ||||
Audited Consolidated Financial Statements: | ||||
F-2 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
F-7 | ||||
F-8 | ||||
Unaudited Consolidated Financial Statements: | ||||
F-29 | ||||
F-30 | ||||
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F-1
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Energy Focus, Inc.
March 30, 2009
F-2
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2008 | 2007 | |||||||
ASSETS | ||||||||
Current assets: | ||||||||
Cash and cash equivalents | $ | 10,568 | $ | 8,412 | ||||
Accounts receivable trade, net of allowances for doubtful accounts of $356 in 2008 and $698 in 2007 | 2,668 | 3,698 | ||||||
Inventories, net | 5,539 | 6,888 | ||||||
Prepaids and other current assets | 276 | 393 | ||||||
Total current assets | 19,051 | 19,391 | ||||||
Fixed assets, net | 4,459 | 5,336 | ||||||
Goodwill, net | — | 4,359 | ||||||
Other assets | 142 | 39 | ||||||
Total assets | $ | 23,652 | $ | 29,125 | ||||
LIABILITIES | ||||||||
Current liabilities: | ||||||||
Accounts payable | $ | 2,767 | $ | 2,277 | ||||
Accruals and other current liabilities | 1,621 | 1,473 | ||||||
Deferred revenue | 191 | 244 | ||||||
Credit line borrowings | 1,904 | 1,159 | ||||||
Current portion of long-term bank borrowings | 54 | 1,726 | ||||||
Total current liabilities | 6,537 | 6,879 | ||||||
Other deferred liabilities | 81 | 62 | ||||||
Deferred tax liabilities | — | 252 | ||||||
Long-term bank borrowings | 245 | 314 | ||||||
Total liabilities | 6,863 | 7,507 | ||||||
SHAREHOLDERS’ EQUITY | ||||||||
Preferred stock, par value $0.0001 per share: | ||||||||
Authorized: 2,000,000 shares in 2008 and 2007 | ||||||||
Issued and outstanding: no shares in 2008 and 2007 | ||||||||
Common stock, par value $0.0001 per share: | ||||||||
Authorized: 30,000,000 shares in 2008 and 2007 | ||||||||
Issued and outstanding: 14,835,000 shares in 2008 and 11,623,000 shares in 2007 | 1 | 1 | ||||||
Additional paid-in capital | 65,865 | 55,682 | ||||||
Accumulated other comprehensive income | 251 | 815 | ||||||
Accumulated deficit | (49,328 | ) | (34,880 | ) | ||||
Total shareholders’ equity | 16,789 | 21,618 | ||||||
Total liabilities and shareholders’ equity | $ | 23,652 | $ | 29,125 | ||||
F-3
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2008 | 2007 | 2006 | ||||||||||
Net sales | $ | 22,950 | $ | 22,898 | $ | 27,036 | ||||||
Cost of sales | 17,447 | 16,616 | 19,251 | |||||||||
Gross profit | 5,503 | 6,282 | 7,785 | |||||||||
Operating expenses: | ||||||||||||
Gross research and development | 3,083 | 3,424 | 3,556 | |||||||||
Deduct credits from government contracts | (895 | ) | (517 | ) | (1,215 | ) | ||||||
Net research and development expense | 2,188 | 2,907 | 2,341 | |||||||||
Sales and marketing | 8,551 | 9,789 | 9,774 | |||||||||
General and administrative | 5,080 | 4,651 | 4,956 | |||||||||
Loss on impairment | 4,305 | — | — | |||||||||
Restructuring expenses | — | 456 | 734 | |||||||||
Total operating expenses | 20,124 | 17,803 | 17,805 | |||||||||
Loss from operations | (14,621 | ) | (11,521 | ) | (10,020 | ) | ||||||
Other income (expense): | ||||||||||||
Other income (expense) | (87 | ) | 110 | — | ||||||||
Interest income | 10 | 284 | 483 | |||||||||
Net loss before income taxes | (14,698 | ) | (11,127 | ) | (9,537 | ) | ||||||
Benefit from (provision for) income taxes | 250 | (190 | ) | (113 | ) | |||||||
Net loss | $ | (14,448 | ) | $ | (11,317 | ) | $ | (9,650 | ) | |||
Net loss per share—basic and diluted | $ | (1.02 | ) | $ | (0.98 | ) | $ | (0.85 | ) | |||
Shares used in per share calculation—basic and diluted | 14,182 | 11,500 | 11,385 | |||||||||
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2008 | 2007 | 2006 | ||||||||||
Net loss | $ | (14,448 | ) | $ | (11,317 | ) | $ | (9,650 | ) | |||
Other comprehensive income: | ||||||||||||
Foreign currency translation adjustments | (564 | ) | 283 | 507 | ||||||||
Net unrealized (loss) gain on securities | — | (69 | ) | 53 | ||||||||
Comprehensive loss | $ | (15,012 | ) | $ | (11,103 | ) | $ | (9,090 | ) | |||
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Notes | Accumulated | Retained | ||||||||||||||||||||||||||||||
Additional | Unearned | Receivable | Other | Earnings | ||||||||||||||||||||||||||||
Common Stock | Paid-in | Stock-Based | from | Comprehensive | (Accumulated | |||||||||||||||||||||||||||
Shares | Amount | Capital | Compensation | Shareholder | Income | Deficit) | Total | |||||||||||||||||||||||||
Balances, December 31, 2005 | 11,270 | $ | 1 | $ | 52,514 | $ | (397 | ) | $ | (62 | ) | $ | 41 | $ | (13,913 | ) | $ | 38,184 | ||||||||||||||
Reclassification of unearned stock-based compensation upon FAS-123r adoption | (397 | ) | 397 | — | ||||||||||||||||||||||||||||
Additional costs from 2005 S-3 filing | (45 | ) | (45 | ) | ||||||||||||||||||||||||||||
Exercise of common stock warrants | 14 | 62 | 62 | |||||||||||||||||||||||||||||
Exercise of common stock options | 106 | 563 | 563 | |||||||||||||||||||||||||||||
Issuance of common stock under employee stock option purchase plan | 4 | 26 | 26 | |||||||||||||||||||||||||||||
Note receivable from shareholder | 62 | 62 | ||||||||||||||||||||||||||||||
Stock-based compensation | 1,118 | 1,118 | ||||||||||||||||||||||||||||||
Net unrealized gain on securities | 53 | 53 | ||||||||||||||||||||||||||||||
Foreign currency translation adjustment | 507 | 507 | ||||||||||||||||||||||||||||||
Net loss | (9,650 | ) | (9,650 | ) | ||||||||||||||||||||||||||||
Balances, December 31, 2006 | 11,394 | $ | 1 | $ | 53,841 | $ | — | $ | — | $ | 601 | $ | (23,563 | ) | $ | 30,880 | ||||||||||||||||
Exercise of common stock warrants | 86 | 295 | 295 | |||||||||||||||||||||||||||||
Exercise of common stock options | 140 | 651 | 651 | |||||||||||||||||||||||||||||
Issuance of common stock under employee stock option purchase plan | 3 | 18 | 18 | |||||||||||||||||||||||||||||
Stock-based compensation | 877 | 877 | ||||||||||||||||||||||||||||||
Net unrealized gain on securities | (69 | ) | (69 | ) | ||||||||||||||||||||||||||||
Foreign currency translation adjustment | 283 | 283 | ||||||||||||||||||||||||||||||
Net loss | (11,317 | ) | (11,317 | ) | ||||||||||||||||||||||||||||
Balances, December 31, 2007 | 11,623 | $ | 1 | $ | 55,682 | $ | — | $ | — | $ | 815 | $ | (34,880 | ) | $ | 21,618 | ||||||||||||||||
Private investment public equity, net of expenses of $255 | 3,184 | 9,335 | 9,335 | |||||||||||||||||||||||||||||
Exercise of common stock options | 23 | 126 | 126 | |||||||||||||||||||||||||||||
Issuance of common stock under employee stock option purchase plan | 5 | 7 | 7 | |||||||||||||||||||||||||||||
Stock-based compensation | 715 | 715 | ||||||||||||||||||||||||||||||
Foreign currency translation adjustment | (564 | ) | (564 | ) | ||||||||||||||||||||||||||||
Net loss | (14,448 | ) | (14,448 | ) | ||||||||||||||||||||||||||||
Balances, December 31, 2008 | 14,835 | $ | 1 | $ | 65,865 | $ | — | $ | — | $ | 251 | $ | (49,328 | ) | $ | 16,789 | ||||||||||||||||
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2008 | 2007 | 2006 | ||||||||||
Cash flows from operating activities: | ||||||||||||
Net loss | $ | (14,448 | ) | $ | (11,317 | ) | $ | (9,650 | ) | |||
Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||||||
Loss on impairment of goodwill | 4,305 | — | — | |||||||||
Depreciation | 1,233 | 1,236 | 1,197 | |||||||||
Stock-based compensation | 715 | 877 | 1,118 | |||||||||
Unrealized loss (gain) from marketable securities | — | 69 | (53 | ) | ||||||||
Gain (loss) on sale of fixed asset | 1 | (1 | ) | — | ||||||||
Deferred taxes | (255 | ) | 177 | 63 | ||||||||
Deferred revenue | (53 | ) | 244 | — | ||||||||
Changes in assets and liabilities: | ||||||||||||
Accounts receivable, trade | 825 | 2,554 | 278 | |||||||||
Inventories | 1,037 | 947 | 351 | |||||||||
Prepaid and other current assets | 108 | (54 | ) | 558 | ||||||||
Other assets | (112 | ) | 131 | (99 | ) | |||||||
Accounts payable | 553 | (1,942 | ) | 1,510 | ||||||||
Accruals and other current liabilities | 261 | (423 | ) | (2,457 | ) | |||||||
Total | 8,618 | 3,815 | 2,466 | |||||||||
Net cash used in operating activities | (5,830 | ) | (7,502 | ) | (7,184 | ) | ||||||
Cash flows from investing activities: | ||||||||||||
Sale of short-term investments | — | 49,441 | 114,595 | |||||||||
Purchase of short-term investments | — | (37,090 | ) | (108,834 | ) | |||||||
Proceeds from sale of fixed assets | — | 33 | — | |||||||||
Acquisition of fixed assets | (395 | ) | (542 | ) | (3,703 | ) | ||||||
Net cash (used in) provided by investing activities | (395 | ) | 11,842 | 2,058 | ||||||||
Cash flows from financing activities: | ||||||||||||
Proceeds from issuances of common stock | 9,335 | — | — | |||||||||
Proceeds from exercise of stock options | 133 | 964 | 651 | |||||||||
Repayment of loan made to shareholder | — | — | 62 | |||||||||
Proceeds from credit line borrowings | 5,633 | 129 | 1,077 | |||||||||
Proceeds from long-term borrowings | — | 160 | 1,609 | |||||||||
Payments of credit line borrowings | (4,882 | ) | (107 | ) | — | |||||||
Payments of long-term borrowings | (1,726 | ) | (801 | ) | (491 | ) | ||||||
Other liabilities | — | 62 | — | |||||||||
Net cash provided by financing activities | 8,493 | 407 | 2,908 | |||||||||
Effect of exchange rate changes on cash | (112 | ) | (40 | ) | 369 | |||||||
Net increase (decrease) in cash and cash equivalents | 2,156 | 4,707 | (1,849 | ) | ||||||||
Cash and cash equivalents, beginning of year | 8,412 | 3,705 | 5,554 | |||||||||
Cash and cash equivalents, end of year | $ | 10,568 | $ | 8,412 | $ | 3,705 | ||||||
Supplemental Information | ||||||||||||
Interest Paid | $ | 198 | $ | 334 | $ | 248 | ||||||
Non-cash investing activities: | ||||||||||||
Fully depreciated assets disposed of | $ | 35 | $ | 205 | $ | 79 |
F-7
Table of Contents
1. | Nature of Operations |
2. | Summary of Significant Accounting Policies |
Use of Estimates |
Reclassifications |
Basis of Presentation |
Going Concern |
F-8
Table of Contents
• | MR-16 halogen replacement bulbs, | ||
• | LED Cold Storage Globe lamps, | ||
• | LED Lamps and Fixtures (“PAL”), | ||
• | LED Light Rails, | ||
• | LED Docklights, | ||
• | HID High Bay Fixtures, | ||
• | Fluorescent fixtures, and | ||
• | Compact Fluorescent Light Bulbs |
F-9
Table of Contents
• | obtain loans and/or grants available through federal, state, and/or local governmental agencies, | ||
• | obtain loans and/or grants from various financial institutions, | ||
• | obtain loans from non-traditional investment capital organizations, | ||
• | sale and/or disposition of one or more operating units, and | ||
• | obtain funding from the sale of our common stock or other equity instruments. |
• | government stimulus and/or grant money is not allocated to us despite our focus on the design, development, and manufacturing of energy efficient lighting systems, | ||
• | loans or other debt instruments may have terms and/or conditions, such as interest rate, restrictive covenants, and control or revocation provisions, which are not acceptable to management or our Board of Directors, | ||
• | the current global economic crisis combined with our current financial condition may prevent us from being able to obtain any debt financing, | ||
• | financing may not be available for parties interested in pursuing the acquisition of one or more of our operating units, and | ||
• | additional equity financing may not be available to us in the current economic environment and could lead to further dilution of shareholder value for current shareholders of record. |
Revenue Recognition |
• | persuasive evidence or an arrangement exists, e.g., a sales order, a purchase order, or a sales agreement | ||
• | shipment has occurred (the standard shipping term is F.O.B. ship point) or services provided on a proportional performance basis or installation has been completed, | ||
• | price to the buyer is fixed or determinable, and | ||
• | collectability is reasonably assured. |
• | all sales made by the company to its customer base are non-contingent, meaning that they are not tied to that customer’s resale of products, | ||
• | standard terms of sale contain shipping terms of F.O.B. ship point, meaning that the title is transferred when shipping occurs and | ||
• | there is no automatic return provision that allows the customer to return the product in the event the product does not sell within a defined timeframe. |
• | proportional performance method using the ratio of labor cost incurred to the total final estimated labor cost. Under this method, revenue recognized reflects the portion of anticipated revenue that has been earned. |
F-10
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• | product sale at completion of installation and | ||
• | installation service at completion of installation |
Cash Equivalents |
Short-Term Investments |
Inventories |
Accounts Receivable |
F-11
Table of Contents
Income Taxes |
Long-Lived Assets |
Fair Value of Financial Instruments |
F-12
Table of Contents
Certain Risks and Concentrations |
Research and Development |
F-13
Table of Contents
Earnings (Loss) Per Share |
Years Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Numerator—Basic and Diluted loss per share | ||||||||||||
Net loss | $ | (14,448 | ) | $ | (11,317 | ) | $ | (9,650 | ) | |||
Denominator—Basic and Diluted loss per share | ||||||||||||
Weighted average shares outstanding | 14,182 | 11,500 | 11,385 | |||||||||
Basic and diluted loss per share | $ | (1.02 | ) | $ | (0.98 | ) | $ | (0.85 | ) | |||
Stock-Based Compensation |
F-14
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2008 | 2007 | 2006 | ||||||||||
Fair value of options issued | $ | 1.04 | $ | 3.01 | $ | 3.50 | ||||||
Exercise price | $ | 1.91 | $ | 6.30 | $ | 7.09 | ||||||
Expected life of option | 4.0 years | 4.0 years | 4.0 years | |||||||||
Risk-free interest rate | 2.36 | % | 4.35 | % | 4.86 | % | ||||||
Expected volatility | 72.53. | % | 56.29 | % | 58.53 | % | ||||||
Dividend yield | 0 | % | 0 | % | 0 | % |
Foreign Currency Translation |
Advertising Expenses |
F-15
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Product Warranties |
Year Ended | ||||||||
December 31, | ||||||||
2008 | 2007 | |||||||
Balance at the beginning of the year | $ | 212 | $ | 230 | ||||
Accruals for warranties issued | 342 | 381 | ||||||
Settlements made during the year (in cash or in kind) | (262 | ) | (399 | ) | ||||
Balance at the end of the year | $ | 292 | $ | 212 | ||||
Accounting Pronouncements Pending Adoption at December 31, 2008 |
F-16
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Accounting Pronouncements Adopted in 2008 |
3. | Inventories(in thousands): |
December 31, | ||||||||
2008 | 2007 | |||||||
Raw materials | $ | 4,738 | $ | 5,965 | ||||
Inventory reserve | (1,795 | ) | (713 | ) | ||||
Finished goods | 2,596 | 1,636 | ||||||
$ | 5,539 | $ | 6,888 | |||||
4. | Fixed Assets(in thousands): |
December 31, | ||||||||
2008 | 2007 | |||||||
Equipment (useful life 3 - 15 years) | $ | 8,632 | $ | 8,654 | ||||
Tooling (useful life 2 - 5 years) | 2,752 | 2,751 | ||||||
Furniture and fixtures (useful life 5 years) | 200 | 225 | ||||||
Computer software (useful life 3 years) | 483 | 417 | ||||||
Leasehold improvements (the shorter of useful life or lease life) | 1,639 | 1,576 | ||||||
Construction in progress | 60 | 20 | ||||||
13,766 | 13,643 | |||||||
Less accumulated depreciation and amortization | (9,307 | ) | (8,307 | ) | ||||
$ | 4,459 | $ | 5,336 | |||||
5. | Goodwill |
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Goodwill | ||||
Net | ||||
Carrying | ||||
Amount | ||||
Balance as of December 31, 2006 | $ | 4,247 | ||
Foreign currency translation | 112 | |||
Balance as of December 31, 2007 | $ | 4,359 | ||
Impairment | (4,305 | ) | ||
Foreign currency translation | (54 | ) | ||
Balance as of December 31, 2008 | $ | — | ||
6. | Accruals and Other Current Liabilities(in thousands): |
December 31, | ||||||||
2008 | 2007 | |||||||
Accrued sales commissions and incentives | $ | 325 | $ | 445 | ||||
Accrued warranty expense | 292 | 212 | ||||||
Accrued professional fees | 218 | 302 | ||||||
Accrued employee benefits | 387 | 260 | ||||||
Accrued rent | 26 | 19 | ||||||
Accrued taxes | 201 | 116 | ||||||
Accrued other expenses | 172 | 119 | ||||||
$ | 1,621 | $ | 1,473 | |||||
7. | Bank Borrowings |
• | up to a 75% advance rate against eligible accounts receivable, as defined by the agreement, | ||
• | up to 50% of our cash balance in deposit at SVB, capped at $1,500,000, and | ||
• | up to a 75% advance rate against eligible Early Buy accounts receivable, as defined by the agreement, capped at $500,000. |
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F-19
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United | ||||||||||||
Year Ending December 31, | States | Germany | Total | |||||||||
2009 | $ | 1,776 | $ | 182 | $ | 1,958 | ||||||
2010 | — | 57 | 57 | |||||||||
2011 | — | 61 | 61 | |||||||||
2012 | — | 64 | 64 | |||||||||
2013 | — | 63 | 63 | |||||||||
Total Commitment | $ | 1,776 | $ | 427 | $ | 2,203 | ||||||
8. | Commitments and Contingencies |
Gross Lease | Sublease | Minimum Lease | ||||||||||
Ending December 31, | Commitments | Payments | Commitments | |||||||||
2009 | $ | 838 | $ | (71 | ) | $ | 767 | |||||
2010 | 795 | (36 | ) | 759 | ||||||||
2011 | 272 | — | 272 | |||||||||
2012 | 49 | — | 49 | |||||||||
2013 — 2017 | 190 | — | 190 | |||||||||
Total minimum lease payments | $ | 2,144 | $ | (107 | ) | $ | 2,037 | |||||
9. | Shareholders’ Equity |
Warrants |
F-20
Table of Contents
Warrants | Warrants | |||||||||||||||
Outstanding | Outstanding | Warrants | �� | |||||||||||||
Shares | Exercise Price | Exercisable | Amount | |||||||||||||
(in thousands) | ||||||||||||||||
Balance, December 31, 2005 | 410,751 | $ | 4.30 – 4.50 | 410,751 | $ | 1,837 | ||||||||||
Warrants exercised | (13,800 | ) | $ | 4.50 | (13,800 | ) | (62 | ) | ||||||||
Balance, December 31, 2006 | 396,951 | $ | 4.30 – 4.50 | 396,951 | $ | 1,775 | ||||||||||
Warrants exercised | (85,478 | ) | $ | 0.01 – 5.563 | (85,478 | ) | (295 | ) | ||||||||
Warrants cancelled | (40,274 | ) | $ | 0.01 – 5.563 | (40,274 | ) | (260 | ) | ||||||||
Balance, December 31, 2007 | 271,199 | $ | 4.30 – 4.50 | 271,199 | $ | 1,220 | ||||||||||
Warrants issued | 3,566,440 | $ | 3.08 | 3,566,440 | 10,985 | |||||||||||
Balance, December 31, 2008 | 3,837,639 | $ | 3.08 – 4.50 | 3,837,639 | $ | 12,205 | ||||||||||
F-21
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Options | Number of | Weighted | ||||||||||
Available | Shares | Average Exercise | ||||||||||
for Grant | Outstanding | Price Per Share | ||||||||||
Balance, December 31, 2005 | 14 | 1,075 | $ | 6.48 | ||||||||
Granted | (330 | ) | 330 | $ | 7.12 | |||||||
Cancelled | 6 | (6 | ) | $ | 5.52 | |||||||
Exercised | — | (106 | ) | $ | 5.36 | |||||||
Additional shares reserved | 500 | — | $ | — | ||||||||
Balance, December 31, 2006 | 190 | 1,293 | $ | 7.00 | ||||||||
Granted | (259 | ) | 259 | $ | 6.30 | |||||||
Cancelled | 136 | (136 | ) | $ | 6.96 | |||||||
Exercised | — | (140 | ) | $ | 4.66 | |||||||
Balance, December 31, 2007 | 67 | 1,276 | $ | 7.07 | ||||||||
Granted | (477 | ) | 477 | $ | 1.91 | |||||||
Cancelled | 238 | (238 | ) | $ | 8.22 | |||||||
Exercised | — | (23 | ) | $ | 3.27 | |||||||
Additional shares reserved | 1,000 | — | — | |||||||||
Balance, December 31, 2008 | 828 | 1,492 | $ | 5.29 | ||||||||
F-22
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OPTIONS CURRENTLY | ||||||||||||||||||||||||
OPTIONS OUTSTANDING | EXERCISABLE | |||||||||||||||||||||||
Weighted- | Weighted- | |||||||||||||||||||||||
Average | Average | Weighted- | ||||||||||||||||||||||
Number | Remaining | Weighted | Remaining | Average | ||||||||||||||||||||
Range of | of Shares | Contractual | Average | Number | Contractual | Exercise | ||||||||||||||||||
Exercise Prices | Outstanding | Life | Exercise Price | Exercisable | Life | Price | ||||||||||||||||||
(in thousands) | (in years) | (in thousands) | (in years) | |||||||||||||||||||||
$1.37 – $4.80 | 666 | 7.9 | $ | 2.45 | 191 | 3.8 | $ | 3.74 | ||||||||||||||||
$5.38 – $7.19 | 464 | 7.7 | $ | 6.57 | 258 | 7.1 | $ | 6.72 | ||||||||||||||||
$7.23 – $9.50 | 227 | 6.6 | $ | 7.87 | 198 | 6.4 | $ | 7.94 | ||||||||||||||||
$9.60 – 12.00 | 135 | 7.7 | $ | 10.60 | 124 | 7.8 | $ | 10.65 | ||||||||||||||||
1,492 | 771 | |||||||||||||||||||||||
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Years Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Current | ||||||||||||
Federal | $ | — | $ | — | $ | — | ||||||
Foreign | — | (13 | ) | (50 | ) | |||||||
State | (6 | ) | — | — | ||||||||
(6 | ) | (13 | ) | (50 | ) | |||||||
Deferred Federal | 238 | (162 | ) | (74 | ) | |||||||
Foreign | 4 | — | 12 | |||||||||
State | 14 | (15 | ) | (1 | ) | |||||||
256 | (177 | ) | (63 | ) | ||||||||
Benefit from (provision for) income taxes | $ | 250 | $ | (190 | ) | $ | (113 | ) | ||||
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December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
United States | $ | (12,907 | ) | $ | (10,593 | ) | $ | (9,510 | ) | |||
Foreign subsidiaries | (1,791 | ) | (534 | ) | (27 | ) | ||||||
$ | (14,698 | ) | $ | (11,127 | ) | $ | (9,537 | ) | ||||
December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
United States statutory rate | 34.0 | % | 34.0 | % | 34.0 | % | ||||||
State Taxes (net of federal tax benefit) | — | % | 1.9 | % | 2.0 | % | ||||||
Valuation allowance | (31.1 | )% | (38.2 | )% | (39.0 | )% | ||||||
Other | (1.2 | )% | 0.6 | % | 1.8 | % | ||||||
1.7 | % | (1.7 | )% | (1.2 | )% | |||||||
December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Allowance for doubtful accounts | $ | 92 | $ | 218 | $ | 113 | ||||||
Accrued expenses and other reserves | 1,905 | 1,233 | 1,097 | |||||||||
Tax credits, Deferred R&D, and other | 833 | 202 | 154 | |||||||||
Net operating loss | 15,807 | 12,413 | 8,328 | |||||||||
Valuation allowance | (18,622 | ) | (14,054 | ) | (9,680 | ) | ||||||
Total deferred tax asset | 15 | 12 | 12 | |||||||||
Deferred tax liabilities associated with indefinite-lived intangibles | — | (252 | ) | (75 | ) | |||||||
Net total deferred taxes | $ | 15 | $ | (240 | ) | $ | (63 | ) | ||||
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Years Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
United States Domestic | $ | 12,902 | $ | 14,949 | $ | 18,776 | ||||||
Other Countries | 10,048 | 7,949 | 8,260 | |||||||||
$ | 22,950 | $ | 22,898 | $ | 27,036 | |||||||
Years Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Pool Lighting | $ | 7,204 | $ | 11,002 | $ | 13,364 | ||||||
Commercial Lighting | 15,746 | 11,896 | 13,672 | |||||||||
$ | 22,950 | $ | 22,898 | $ | 27,036 | |||||||
December 31, | ||||||||
2008 | 2007 | |||||||
United States Domestic | $ | 3,726 | $ | 7,791 | ||||
Germany | 540 | 1,773 | ||||||
Other Countries | 193 | 111 | ||||||
$ | 4,459 | $ | 9,675 | |||||
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(IN THOUSANDS, EXCEPT PER SHARE DATA)
2008 QUARTERS ENDED | DEC. 31 | SEP. 30 | JUN. 30 | MAR. 31 | ||||||||||||
Net sales | $ | 4,140 | $ | 6,357 | $ | 7,616 | $ | 4,837 | ||||||||
Gross profit | (494 | ) | 2,310 | 2,443 | 1,244 | |||||||||||
As a percent of net sales | (11.9 | )% | 36.3 | % | 32.1 | % | 25.7 | % | ||||||||
Net loss | (7,776 | ) | (1,584 | ) | (1,639 | ) | (3,449 | ) | ||||||||
As a percent of net sales | (187.8 | )% | (24.9 | )% | (21.5 | )% | (71.3 | )% | ||||||||
Net loss per share: | ||||||||||||||||
Basic | $ | (0.52 | ) | $ | (0.11 | ) | $ | (0.11 | ) | $ | (0.28 | ) | ||||
Diluted | $ | (0.52 | ) | $ | (0.11 | ) | $ | (0.11 | ) | $ | (0.28 | ) |
2007 QUARTERS ENDED | DEC. 31 | SEP. 30 | JUN. 30 | MAR. 31 | ||||||||||||
Net sales | $ | 5,440 | $ | 5,745 | $ | 6,704 | $ | 5,009 | ||||||||
Gross profit | 544 | 1,988 | 2,280 | 1,470 | ||||||||||||
As a percent of net sales | 10.0 | % | 34.6 | % | 34.0 | % | 29.4 | % | ||||||||
Net loss | (3,666 | ) | (3,175 | ) | (1,870 | ) | (2,606 | ) | ||||||||
As a percent of net sales | (67.4 | )% | (55.3 | )% | (27.9 | )% | (52.0 | )% | ||||||||
Net loss per share: | ||||||||||||||||
Basic | $ | (0.31 | ) | $ | (0.28 | ) | $ | (0.16 | ) | $ | (0.23 | ) | ||||
Diluted | $ | (0.31 | ) | $ | (0.28 | ) | $ | (0.16 | ) | $ | (0.23 | ) |
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CONDENSED
June 30, | December 31, | |||||||
2009 | 2008 | |||||||
(unaudited) | ||||||||
ASSETS | ||||||||
Current assets: | ||||||||
Cash and cash equivalents | $ | 5,613 | $ | 10,568 | ||||
Accounts receivable trade, net | 1,903 | 2,668 | ||||||
Inventories, net | 4,928 | 5,539 | ||||||
Prepaid and other current assets | 300 | 276 | ||||||
Total current assets | 12,744 | 19,051 | ||||||
Fixed assets net | 3,582 | 4,459 | ||||||
Other assets | 102 | 142 | ||||||
Total assets | $ | 16,428 | $ | 23,652 | ||||
LIABILITIES | ||||||||
Current liabilities: | ||||||||
Accounts payable | $ | 1,222 | $ | 2,767 | ||||
Accrued liabilities | 1,186 | 1,621 | ||||||
Deferred revenue | 216 | 191 | ||||||
Credit line borrowings | 1,776 | 1,904 | ||||||
Current portion of long-term bank borrowings | — | 54 | ||||||
Total current liabilities | 4,400 | 6,537 | ||||||
Other deferred liabilities | 67 | 81 | ||||||
Long-term bank borrowings | 71 | 245 | ||||||
Total liabilities | 4,538 | 6,863 | ||||||
SHAREHOLDERS’ EQUITY | ||||||||
Preferred stock, par value $0.0001 per share: | ||||||||
Authorized: 2,000,000 shares in 2009 and 2008 | ||||||||
Issued and outstanding: no shares in 2009 and 2008 | — | — | ||||||
Common stock, par value $0.0001 per share: | ||||||||
Authorized: 30,000,000 shares in 2009 and 2008 | ||||||||
Issued and outstanding: 15,079,000 in 2009 and 14,835,000 in 2008 | 1 | 1 | ||||||
Additional paid-in capital | 66,238 | 65,865 | ||||||
Accumulated other comprehensive income | 369 | 251 | ||||||
Accumulated deficit | (54,718 | ) | (49,328 | ) | ||||
Total shareholders’ equity | 11,890 | 16,789 | ||||||
Total liabilities and shareholders’ equity | $ | 16,428 | $ | 23,652 | ||||
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Three months ended | Six months ended | |||||||||||||||
June 30, | June 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Net sales | $ | 3,815 | $ | 7,616 | $ | 6,620 | $ | 12,453 | ||||||||
Cost of sales | 3,016 | 5,173 | 5,503 | 8,766 | ||||||||||||
Gross profit | 799 | 2,443 | 1,117 | 3,687 | ||||||||||||
Operating expenses: | ||||||||||||||||
Research and development | 253 | 192 | 483 | 593 | ||||||||||||
Sales and marketing | 1,650 | 2,712 | 3,530 | 5,590 | ||||||||||||
General and administrative | 1,202 | 1,182 | 2,426 | 2,552 | ||||||||||||
Loss on impairment of assets | 165 | — | 165 | — | ||||||||||||
Total operating expenses | 3,270 | 4,086 | 6,604 | 8,735 | ||||||||||||
Loss from operations | (2,471 | ) | (1,643 | ) | (5,487 | ) | (5,048 | ) | ||||||||
Other income (expense): | ||||||||||||||||
Other income | 146 | 30 | 147 | 32 | ||||||||||||
Interest expense | (24 | ) | 14 | (50 | ) | 8 | ||||||||||
Loss before income taxes | (2,349 | ) | (1,599 | ) | (5,390 | ) | (5,008 | ) | ||||||||
Provision for income taxes | — | (40 | ) | — | (80 | ) | ||||||||||
Net loss | $ | (2,349 | ) | $ | (1,639 | ) | $ | (5,390 | ) | $ | (5,088 | ) | ||||
Net loss per share — basic and diluted | $ | (0.16 | ) | $ | (0.11 | ) | $ | (0.36 | ) | $ | (0.38 | ) | ||||
Shares used in computing net loss per share — basic and diluted | 14,915 | 14,830 | 14,877 | 13,521 | ||||||||||||
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CONDENSED
Three months ended | Six months ended | |||||||||||||||
June 30, | June 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Net loss | $ | (2,349 | ) | $ | (1,639 | ) | $ | (5,390 | ) | $ | (5,088 | ) | ||||
Other comprehensive income (loss): | ||||||||||||||||
Foreign currency translation adjustments | 162 | 7 | 118 | 166 | ||||||||||||
Comprehensive loss | $ | (2,187 | ) | $ | (1,632 | ) | $ | (5,272 | ) | $ | (4,922 | ) | ||||
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CONDENSED
Six months ended | ||||||||
June 30, | ||||||||
2009 | 2008 | |||||||
Cash flows from operating activities: | ||||||||
Net loss | $ | (5,390 | ) | $ | (5,088 | ) | ||
Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
Loss on impairment of assets | 165 | — | ||||||
Depreciation | 540 | 621 | ||||||
Stock-based compensation | 364 | 433 | ||||||
Provision for doubtful accounts receivable | (98 | ) | (266 | ) | ||||
Deferred taxes | — | 80 | ||||||
Deferred revenue | 25 | (41 | ) | |||||
Loss on disposal of fixed assets | 14 | 1 | ||||||
Changes in assets and liabilities: | ||||||||
Accounts receivable | 931 | (583 | ) | |||||
Inventories | 755 | 466 | ||||||
Prepaid and other current assets | (19 | ) | (13 | ) | ||||
Other assets | 39 | (58 | ) | |||||
Accounts payable | (1,563 | ) | 177 | |||||
Accrued liabilities | (465 | ) | 213 | |||||
Total adjustments | 688 | 1,030 | ||||||
Net cash used in operating activities | (4,702 | ) | (4,058 | ) | ||||
Cash flows from investing activities: | ||||||||
Proceeds from disposal of fixed assets | 346 | — | ||||||
Acquisition of fixed assets | (177 | ) | (298 | ) | ||||
Net cash provided by (used in) investing activities | 169 | (298 | ) | |||||
Cash flows from financing activities: | ||||||||
Cash proceeds from issuances of common stock, net | 10 | 9,335 | ||||||
Cash proceeds from exercise of stock options | — | 130 | ||||||
Proceeds from credit line borrowings | 1,904 | 1,968 | ||||||
Payments of credit line borrowings | (2,027 | ) | (2,813 | ) | ||||
Proceeds from long-term bank borrowings | 70 | — | ||||||
Payments of short and long-term bank borrowings | (288 | ) | (358 | ) | ||||
Net cash (used in) provided by financing activities | (331 | ) | 8,262 | |||||
Effect of exchange rate changes on cash | (91 | ) | (69 | ) | ||||
Net (decrease) increase in cash and cash equivalents | (4,955 | ) | 3,837 | |||||
Cash and cash equivalents, beginning of period | 10,568 | 8,412 | ||||||
Cash and cash equivalents, end of period | $ | 5,613 | $ | 12,249 | ||||
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• | obtain loans from various financial institutions, | ||
• | obtain loans from one or more non-traditional investment capital organizations, | ||
• | sale and/or disposition of one or more operating units, and | ||
• | obtain funding from the sale of the company’s common stock or other equity instruments. |
• | loans or other debt instruments may have terms and/or conditions, such as interest rate, restrictive covenants, and control or revocation provisions, which are not acceptable to management or our Board of Directors, | ||
• | the current global economic crisis combined with our current financial condition may prevent us from being able to obtain any debt financing, | ||
• | financing may not be available for parties interested in pursuing the acquisition of one or more of our operating units, and | ||
• | additional equity financing may not be available to us in the current economic environment and could lead to further dilution of shareholder value for current shareholders of record. |
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Three months ended | Six months ended | |||||||||||||||
June 30, | June 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Numerator — basic and diluted loss per share | ||||||||||||||||
Net loss | $ | (2,349 | ) | $ | (1,639 | ) | $ | (5,390 | ) | $ | (5,088 | ) | ||||
Denominator — basic and diluted loss per share | ||||||||||||||||
Weighted average shares outstanding | 14,915 | 14,830 | 14,877 | 13,521 | ||||||||||||
Basic and diluted net loss per share | $ | (0.16 | ) | $ | (0.11 | ) | $ | (0.36 | ) | $ | (0.38 | ) | ||||
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Six months ended | ||||||||
June 30, | ||||||||
2009 | 2008 | |||||||
Fair value of options issued | $ | 0.48 | $ | 1.20 | ||||
Exercise price | $ | 0.79 | $ | 2.32 | ||||
Expected life of option | 4.0 years | 4.0 years | ||||||
Risk-free interest rate | 1.70 | % | 2.83 | % | ||||
Expected volatility | 84.05 | % | 66.40 | % | ||||
Dividend yield | 0 | % | 0 | % |
Three months ended | Six months ended | |||||||||||||||
June 30, | June 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Balance at the beginning of the period | $ | 289 | $ | 190 | $ | 292 | $ | 212 | ||||||||
Accruals for warranties issued | 34 | 85 | 58 | 138 | ||||||||||||
Settlements made during the period (in cash or in kind) | (192 | ) | (85 | ) | (219 | ) | (160 | ) | ||||||||
Balance at the end of the period | $ | 131 | $ | 190 | $ | 131 | $ | 190 | ||||||||
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Table of Contents
June 30, | December 31, | |||||||
2009 | 2008 | |||||||
Raw materials | $ | 3,410 | $ | 4,738 | ||||
Inventory reserve | (1,527 | ) | (1,795 | ) | ||||
Finished goods | 3,045 | 2,596 | ||||||
$ | 4,928 | $ | 5,539 | |||||
June 30, | December 31, | |||||||
2009 | 2008 | |||||||
Equipment (useful life 3 - 15 years) | $ | 8,544 | $ | 8,632 | ||||
Tooling (useful life 2 - 5 years) | 2,630 | 2,752 | ||||||
Furniture and fixtures (useful life 5 years) | 230 | 200 | ||||||
Computer software (useful life 3 years) | 470 | 483 | ||||||
Leasehold improvements (the shorter of useful life or lease life) | 885 | 1,639 | ||||||
Construction in progress | 2 | 60 | ||||||
12,761 | 13,766 | |||||||
Less: accumulated depreciation | (9,179 | ) | (9,307 | ) | ||||
$ | 3,582 | $ | 4,096 | |||||
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United States | United States | |||||||||||
Credit Line | Long-Term | |||||||||||
Year ending June 30, | Borrowings | Borrowings | Total | |||||||||
2010 | $ | 1,776 | $ | — | $ | 1,776 | ||||||
2011 | — | — | — | |||||||||
2012 | — | — | — | |||||||||
2013 | — | — | — | |||||||||
2014 | — | — | — | |||||||||
2015 and thereafter | — | 71 | 71 | |||||||||
Total commitment | $ | 1,776 | $ | 71 | $ | 1,847 | ||||||
Three months ended | Six months ended | |||||||||||||||
June 30, | June 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
United States Domestic | $ | 2,495 | $ | 4,447 | $ | 4,089 | $ | 7,027 | ||||||||
Other Countries | 1,320 | 3,169 | 2,531 | 5,426 | ||||||||||||
$ | 3,815 | $ | 7,616 | $ | 6,620 | $ | 12,453 | |||||||||
Three months ended | Six months ended | |||||||||||||||
June 30, | June 30, | |||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Pool Lighting | $ | 1,375 | $ | 2,740 | $ | 2,046 | $ | 4,347 | ||||||||
Commercial Lighting | 2,440 | 4,876 | 4,574 | 8,106 | ||||||||||||
$ | 3,815 | $ | 7,616 | $ | 6,620 | $ | 12,453 | |||||||||
F-39
Table of Contents
June 30, | December 31, | |||||||
2009 | 2008 | |||||||
United States Domestic | $ | 3,364 | $ | 3,726 | ||||
Germany | 38 | 540 | ||||||
Other Countries | 180 | 193 | ||||||
$ | 3,582 | $ | 4,459 | |||||
F-40
Table of Contents
Table of Contents
SEC filing fee | $ | 376.93 | ||
Accounting fees and expenses | $ | 59,000.00 | ||
Legal fees and expenses | $ | 245,000.00 | ||
Printing expenses | $ | 15,000.00 | ||
Other | $ | 50,000.00 | ||
Total | $ | 369,376.93 | ||
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II-2
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II-3
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II-4
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Exhibit | ||
Number | Description of Documents | |
2.1 | Agreement and Plan of Merger between Fiberstars, Inc., a California corporation, and Fiberstars, Inc., a Delaware corporation (incorporated by reference to Appendix C to the Registrant’s Definitive Proxy Statement filed on May 1, 2006). | |
3.1 | Certificate of Incorporation of the Registrant (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement filed on May 1, 2006). | |
3.2 | Certificate of Designation of Series A Participating Preferred Stock of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on November 27, 2006). | |
3.3 | Bylaws of the Registrant (incorporated by reference to Appendix C to the Registrant’s Current Report on Form 8-K filed on November 27, 2006). | |
3.4 | Certificate of Ownership and Merger, Merging Energy Focus, Inc., a Delaware corporation, into Fiberstars, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 10, 2007). | |
4.1 | Form of Warrant for the purchase of shares of common stock (incorporated by reference to Exhibit 99.3 to the Registrant’s Current Report on Form 8-K filed on June 19, 2003). | |
4.2 | Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on November 27, 2006) | |
4.3 | Rights Agreement dated as of October 25, 2006 between the Registrant and Mellon Investor Services, LLC, as rights agent (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on November 27, 2006). | |
4.4 | Form of Warrant for the purchase of shares of common stock (incorporated by reference to Exhibit 1.2 to the Registrant’s Current Report on Form 8-K filed on March 19, 2008). | |
4.5 | Amendment No. 1 to Rights Agreement between the Registrant and Mellon Investment Services, LLC, as rights agent, dated as of March 12, 2008 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on March 19, 2009). | |
4.6 | Form of Subscription Rights Certificate to Purchase Shares of Common Stock of Registrant (incorporated by referenced to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-1, Registration No.333-161768, filed September 4, 2009). | |
4.7 | Form of Subscription Rights Certificate to Exercise Subscription Rights to Purchase Shares of Common Stock of Registrant. | |
II-5
Table of Contents
Exhibit | ||
Number | Description of Documents | |
4.8 | Form of Instructions for Use of Subscription Rights Certificate. | |
5.1 | Form of Opinion of Cowden & Humphrey Co. LPA, including the consent of that firm, regarding the legality of the securities being offered. | |
10.1‡ | 1994 Employee Stock Purchase Plan, amended as of December 7, 2000 (incorporated by reference to Exhibit 99.3 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-52042) filed on December 18, 2000). | |
10.2 | Form of Agreement between the Registrant and independent sales representatives (incorporated by reference to Exhibit 10.20 to the Registrant’s Registration Statement on Form SB-2 (Commission File No. 33-79116-LA)). | |
10.3* | Distribution Agreement dated March 21, 1995 between the Registrant and Mitsubishi International Corporation (incorporated by reference to Exhibit 10.18 to the Registrant’s Annual Report on Form 10-KSB for the year ended December 31, 1994). | |
10.4* | Three –Year Supply Agreement dated November 30, 2000 between the Registrant and Mitsubishi International Corporation (incorporated by reference to Exhibit 10.30 to the Registrant’s Annual Report on Form 10-K405 filed on April 2, 2001). | |
10.5 | Securities Purchase Agreement dated June 17, 2003 among the Registrant and the investors named therein (incorporated by reference to Exhibit 99.2 to the Registrant’s Current Report on Form 8-K filed on June 19, 2003). | |
10.6‡ | Form of Indemnification Agreement for officers of the Registrant (incorporated by reference to Exhibit 10.42 to the Registrant’s Annual Report on Form 10-K filed on March 30, 2004). | |
10.7 | Form of Indemnification Agreement for directors of the Registrant (incorporated by reference to Exhibit 10.44 to the Registrant’s Annual Report on Form 10-K filed on March 30, 2004). | |
10.8 | Production Share Agreement dated October 9, 2003 among the Registrant, North American Production Sharing, Inc., and Industrias Unidas de B.C., S.A. de C.V. (incorporated by reference to Exhibit 10.45 to the Registrant’s Annual Report on Form 10-Kfiled on March 30, 2004). | |
10.9‡ | Consulting Agreement effective as of December 15, 2004 between the Registrant and Gensler Architecture, Design, and Planning, P.C. (incorporated by reference to Exhibit 10.28 to the Registrant’s Annual Report on Form 10-K filed on March 31, 2006). | |
10.10‡ | Consulting Agreement effective as of December 15, 2004 between the Registrant and Jeffrey H. Brite (incorporated by reference to Exhibit 10.29 to the Registrant’s Annual Report on Form 10-K filed on March 31, 2006). |
II-6
Table of Contents
Exhibit | ||
Number | Description of Documents | |
10.11 | Loan and Security Agreement between Silicon Valley Bank and the Registrant dated August 15, 2005 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on August 18, 2005). | |
10.12‡ | Employment Agreement between the Registrant and John M. Davenport dated July 1, 2005 (incorporated by reference from Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.13‡ | Severance Agreement between the Registrant and David N. Ruckert dated September 16, 2005 (incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.14* | Fiberstars Development Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.15* | ADLT Development Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.16* | Equipment Purchase and Supply Agreement between the Registrant and Deposition Sciences, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.17 | Cross-License Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.7 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.18 | Master Services Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.8 to the Registrant’s Quarterly Report on Form 10-Qfiled on November 14, 2005). | |
10.19 | First Amendment to Production Share Agreement, effective as of August 17, 2005, among the Registrant, North American Production Sharing, Inc., and Industrias Unidas de B.C., S.A. de C.V. (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on October 25, 2005). | |
10.20 | Sublease between Venture Lighting International, Inc. and the Registrant dated as of November 11, 2005 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on November 17, 2005). |
II-7
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Exhibit | ||
Number | Description of Documents | |
10.21 | Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated December 30, 2005 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on January 6, 2006). | |
10.22‡ | Consulting Agreement between the Registrant and David N. Ruckert dated as of February 3, 2006 (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 15, 2006). | |
10.23* | Equipment Purchase and Product Supply Agreement entered into as of May 25, 2006 between the Registrant and Deposition Sciences, Inc. (incorporated by reference to Exhibit 10.1 to Amendment No. 2 to the Registrant’s Quarterly Report on Form 10-Q filed on March 6, 2009). | |
10.24 | Modification to Sublease between the Registrant and Keystone Ruby, LLC. (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on August 11, 2006). | |
10.25 | Amendment No. 1 to Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated September 25, 2006 (incorporated by reference from Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2006). | |
10.26‡ | First Amendment to Consulting Agreement between the Registrant and David N. Ruckert dated as of February 3, 2007 (incorporated by reference to Exhibit 10.32 to the Registrant’s Annual Report on Form 10-K filed on March 16, 2007). | |
10.27‡ | Form of Indemnification Agreement for directors and officers of the Registrant (incorporated by reference to Exhibit 10.31 of the Registrant’s Annual Report on Form 10-K filed on March 16, 2007). | |
10.28 | Amendment No. 4 to Amended and Restated Loan and Security Agreement between Silicon Valley Bank and the Registrant dated as of October 1, 2007 (incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K filed on March 17, 2008). | |
10.29 | Amendment No. 5 to Amended and Restated Loan and Security Agreement between Silicon Valley Bank and Registrant dated as of January 29, 2008 (incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K filed on March 17, 2008). | |
10.30 | Management Agreement between Barry R. Greenwald and the Registrant dated as of October 19, 2007 (incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K filed on March 17, 2008). | |
10.31 | Form of Securities Purchase Agreement dated as of March 14, 2008 (incorporated by reference to Exhibit 1.1 to the Registrant’s Current Report on Form 8-K filed on March 19, 2008). |
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Exhibit | ||
Number | Description of Documents | |
10.32 | Second Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated as of October 15, 2008 (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 7, 2008). | |
10.33‡ | 1994 Stock Option Plan, amended as of May 24, 2000 (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-52042) filed on December 18, 2000). | |
10.34‡ | 1994 Director’s Stock Option Plan, amended as of May 12, 1999 (incorporated by reference to Exhibit 99.2 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-52042) filed on December 18, 2000). | |
10.35‡ | 2004 Stock Incentive Plan (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-122-686) filed on February 10, 2005). | |
10.36‡ | 2008 Incentive Stock Plan (incorporated by reference to Appendix D to the Registrant’s Definitive Proxy Statement filed on August 8, 2008). | |
10.37‡ | Form of Restricted Stock Notice of Grant and Agreement (incorporated by referenced to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on June 2, 2009). | |
16.1 | Letter from Grant Thornton, LLP to the Securities and Exchange Commission dated April 3, 2009 (incorporated by reference to Exhibit 16.1 to the Registrant’s Current report on Form 8-K filed on April 6, 2009.) | |
21.1 | Significant Subsidiaries of the Registrant (incorporated by reference to Exhibit 21.1 to the Registrant’s Annual Report on Form 10-K filed on March 31, 2009). | |
23.1 | Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm. | |
24.1 | Power of Attorney (incorporated by reference to Exhibit 24.1 to the Registrant’s Registration Statement on Form S-1, Registration No. 333-161768, filed on September 4, 2009). | |
99.1 | Form of Notice of Guaranteed Delivery. | |
99.2 | Form of Letter to Stockholders Who are Record Holders. | |
99.3 | Form of Letter to Stockholders Who are Acting as Nominees. | |
99.4 | Form of Letter to Clients of Stockholders Who are Acting as Nominees |
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Exhibit | ||
Number | Description of Documents | |
99.5 | Form of Beneficial Owner Election Form. | |
99.6 | Form of Rights Subscription Agent Agreement between the Registrant and The Bank of New York Mellon Shareowner Services, LLC. | |
99.7 | Outline of Road Show Power-Point Presentation. | |
99.8 | Form of Letter from Chief Executive Officer. |
* | Confidential treatment has been granted with respect to certain portions of this agreement. | |
‡ | Management contract or compensatory plan or arrangement. |
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ENERGY FOCUS, INC. | ||||
By: | /s/ Joseph G. Kaveski | |||
Joseph G. Kaveski | ||||
Chief Executive Officer | ||||
Signature | Capacity | Date | ||
/s/ Joseph G. Kaveski | Chief Executive Officer and Director (Principal Executive Officer) | October 1, 2009 | ||
/s/ John M. Davenport | President and Director | October 1, 2009 | ||
/s/ Nicholas G. Berchtold, Jr. | Vice President Finance and Chief Financial Officer(Principal Financial and Accounting Officer) | October 1, 2009 | ||
* | Director | October 1, 2009 | ||
* | Director | October 1, 2009 | ||
* | Director | October 1, 2009 | ||
* | Director | October 1, 2009 | ||
* | Director | October 1, 2009 | ||
* | Director | October 1, 2009 |
By | /s/ Joseph G. Kaveski | Attorney-in-Fact | October 1, 2009 | |||
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Exhibit | ||
Number | Description of Documents | |
2.1 | Agreement and Plan of Merger between Fiberstars, Inc., a California corporation, and Fiberstars, Inc., a Delaware corporation (incorporated by reference to Appendix C to the Registrant’s Definitive Proxy Statement filed on May 1, 2006). | |
3.1 | Certificate of Incorporation of the Registrant (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement filed on May 1, 2006). | |
3.2 | Certificate of Designation of Series A Participating Preferred Stock of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on November 27, 2006). | |
3.3 | Bylaws of the Registrant (incorporated by reference to Appendix C to the Registrant’s Current Report on Form 8-K filed on November 27, 2006). | |
3.4 | Certificate of Ownership and Merger, Merging Energy Focus, Inc., a Delaware corporation, into Fiberstars, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 10, 2007). | |
4.1 | Form of Warrant for the purchase of shares of common stock (incorporated by reference to Exhibit 99.3 to the Registrant’s Current Report on Form 8-K filed on June 19, 2003). |
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Exhibit | ||
Number | Description of Documents | |
4.2 | Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on November 27, 2006) | |
4.3 | Rights Agreement dated as of October 25, 2006 between the Registrant and Mellon Investor Services, LLC, as rights agent (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on November 27, 2006). | |
4.4 | Form of Warrant for the purchase of shares of common stock (incorporated by reference to Exhibit 1.2 to the Registrant’s Current Report on Form 8-K filed on March 19, 2008). | |
4.5 | Amendment No. 1 to Rights Agreement between the Registrant and Mellon Investment Services, LLC, as rights agent, dated as of March 12, 2008 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on March 19, 2009). | |
4.6 | Form of Subscription Rights Certificate to Purchase Shares of Common Stock of Registrant (incorporated by reference to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-1, Registration No. 333-161768, filed on September 4, 2009). | |
4.7 | Form of Subscription Rights Certificate to Exercise Subscription Rights to Purchase Shares of Common Stock of Registrant. | |
4.8 | Form of Instructions for Use of Subscription Rights Certificate. | |
5.1 | Form of Opinion of Cowden & Humphrey Co. LPA, including the consent of that firm, regarding the legality of the securities being offered. | |
10.1‡ | 1994 Employee Stock Purchase Plan, amended as of December 7, 2000 (incorporated by reference to Exhibit 99.3 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-52042) filed on December 18, 2000). | |
10.2 | Form of Agreement between the Registrant and independent sales representatives (incorporated by reference to Exhibit 10.20 to the Registrant’s Registration Statement on Form SB-2 (Commission File No. 33-79116-LA)). | |
10.3* | Distribution Agreement dated March 21, 1995 between the Registrant and Mitsubishi International Corporation (incorporated by reference to Exhibit 10.18 to the Registrant’s Annual Report on Form 10-KSB for the year ended December 31, 1994). | |
10.4* | Three –Year Supply Agreement dated November 30, 2000 between the Registrant and Mitsubishi International Corporation (incorporated by reference to Exhibit 10.30 to the Registrant’s Annual Report on Form 10-K405 filed on April 2, 2001). |
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Exhibit | ||
Number | Description of Documents | |
10.5 | Securities Purchase Agreement dated June 17, 2003 among the Registrant and the investors named therein (incorporated by reference to Exhibit 99.2 to the Registrant’s Current Report on Form 8-K filed on June 19, 2003). | |
10.6‡ | Form of Indemnification Agreement for officers of the Registrant (incorporated by reference to Exhibit 10.42 to the Registrant’s Annual Report on Form 10-K filed on March 30, 2004). | |
10.7 | Form of Indemnification Agreement for directors of the Registrant (incorporated by reference to Exhibit 10.44 to the Registrant’s Annual Report on Form 10-K filed on March 30, 2004). | |
10.8 | Production Share Agreement dated October 9, 2003 among the Registrant, North American Production Sharing, Inc., and Industrias Unidas de B.C., S.A. de C.V. (incorporated by reference to Exhibit 10.45 to the Registrant’s Annual Report on Form 10-K filed on March 30, 2004). | |
10.9‡ | Consulting Agreement effective as of December 15, 2004 between the Registrant and Gensler Architecture, Design, and Planning, P.C. (incorporated by reference to Exhibit 10.28 to the Registrant’s Annual Report on Form 10-K filed on March 31, 2006). | |
10.10‡ | Consulting Agreement effective as of December 15, 2004 between the Registrant and Jeffrey H. Brite (incorporated by reference to Exhibit 10.29 to the Registrant’s Annual Report on Form 10-K filed on March 31, 2006). | |
10.11 | Loan and Security Agreement between Silicon Valley Bank and the Registrant dated August 15, 2005 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on August 18, 2005). | |
10.12‡ | Employment Agreement between the Registrant and John M. Davenport dated July 1, 2005 (incorporated by reference from Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.13‡ | Severance Agreement between the Registrant and David N. Ruckert dated September 16, 2005 (incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.14* | Fiberstars Development Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.15* | ADLT Development Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). |
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Exhibit | ||
Number | Description of Documents | |
10.16* | Equipment Purchase and Supply Agreement between the Registrant and Deposition Sciences, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.17 | Cross-License Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.7 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.18 | Master Services Agreement between the Registrant and Advanced Lighting Technologies, Inc. dated September 19, 2005 (incorporated by reference to Exhibit 10.8 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2005). | |
10.19 | First Amendment to Production Share Agreement, effective as of August 17, 2005, among the Registrant, North American Production Sharing, Inc., and Industrias Unidas de B.C., S.A. de C.V. (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on October 25, 2005). | |
10.20 | Sublease between Venture Lighting International, Inc. and the Registrant dated as of November 11, 2005 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on November 17, 2005). | |
10.21 | Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated December 30, 2005 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on January 6, 2006). | |
10.22‡ | Consulting Agreement between the Registrant and David N. Ruckert dated as of February 3, 2006 (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 15, 2006). | |
10.23* | Equipment Purchase and Product Supply Agreement entered into as of May 25, 2006 between the Registrant and Deposition Sciences, Inc. (incorporated by reference to Exhibit 10.1 to Amendment No. 2 to the Registrant’s Quarterly Report on Form 10-Q filed on March 6, 2009). | |
10.24 | Modification to Sublease between the Registrant and Keystone Ruby, LLC. (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on August 11, 2006). | |
10.25 | Amendment No. 1 to Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated September 25, 2006 (incorporated by reference from Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on November 14, 2006). |
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Exhibit | ||
Number | Description of Documents | |
10.26‡ | First Amendment to Consulting Agreement between the Registrant and David N. Ruckert dated as of February 3, 2007 (incorporated by reference to Exhibit 10.32 to the Registrant’s Annual Report on Form 10-K filed on March 16, 2007). | |
10.27‡ | Form of Indemnification Agreement for directors and officers of the Registrant (incorporated by reference to Exhibit 10.31 of the Registrant’s Annual Report on Form 10-K filed on March 16, 2007). | |
10.28 | Amendment No. 4 to Amended and Restated Loan and Security Agreement between Silicon Valley Bank and the Registrant dated as of October 1, 2007 (incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K filed on March 17, 2008). | |
10.29 | Amendment No. 5 to Amended and Restated Loan and Security Agreement between Silicon Valley Bank and Registrant dated as of January 29, 2008 (incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K filed on March 17, 2008). | |
10.30 | Management Agreement between Barry R. Greenwald and the Registrant dated as of October 19, 2007 (incorporated by reference to Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K filed on March 17, 2008). | |
10.31 | Form of Securities Purchase Agreement dated as of March 14, 2008 (incorporated by reference to Exhibit 1.1 to the Registrant’s Current Report on Form 8-K filed on March 19, 2008). | |
10.32 | Second Amended and Restated Loan and Security Agreement between the Registrant and Silicon Valley Bank dated as of October 15, 2008 (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 7, 2008). | |
10.33‡ | 1994 Stock Option Plan, amended as of May 24, 2000 (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-52042) filed on December 18, 2000). | |
10.34‡ | 1994 Director’s Stock Option Plan, amended as of May 12, 1999 (incorporated by reference to Exhibit 99.2 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-52042) filed on December 18, 2000). | |
10.35‡ | 2004 Stock Incentive Plan (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8 (Commission File No. 333-122-686) filed on February 10, 2005). | |
10.36‡ | 2008 Incentive Stock Plan (incorporated by reference to Appendix D to the Registrant’s Definitive Proxy Statement filed on August 8, 2008). |
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Exhibit | ||
Number | Description of Documents | |
10.37‡ | Form of Restricted Stock Notice of Grant and Agreement (incorporated by referenced to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on June 2, 2009). | |
16.1 | Letter from Grant Thornton, LLP to the Securities and Exchange Commission dated April 3, 2009 (incorporated by reference to Exhibit 16.1 to the Registrant’s Current report on Form 8-K filed on April 6, 2009.) | |
21.1 | Significant Subsidiaries of the Registrant (incorporated by reference to Exhibit 21.1 to the Registrant’s Annual Report on Form 10-K filed on March 31, 2009). | |
23.1 | Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm. | |
24.1 | Power of Attorney (incorporated by reference to Exhibit 24.1 to the Registrant’s Registration Statement on Form S-1, Registration No. 333-161768, filed on September 4, 2009). | |
99.1 | Form of Notice of Guaranteed Delivery. | |
99.2 | Form of Letter to Stockholders Who are Record Holders. | |
99.3 | Form of Letter to Stockholders Who are Acting as Nominees. | |
99.4 | Form of Letter to Clients of Stockholders Who are Acting as Nominees | |
99.5 | Form of Beneficial Owner Election Form. | |
99.6 | Form of Rights Subscription Agent Agreement between the Registrant and The Bank of New York Mellon Shareowner Services, LLC. | |
99.7 | Outline of Road Show Power-Point Presentation. | |
99.8 | Form of Letter from Chief Executive Officer. | |
* | Confidential treatment has been granted with respect to certain portions of this agreement. | |
‡ | Management contract or compensatory plan or arrangement. |
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