As filed with the Securities and Exchange Commission on June 18, 2004
Registration No. (333- )
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
TRANSACT TECHNOLOGIES INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 06-1456680
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
7 Laser Lane
Wallingford, Connecticut 06492
(203) 269-1198
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Steven A. DeMartino
Executive Vice President, Chief Financial
Officer, Secretary and Treasurer
TransAct Technologies Incorporated
7 Laser Lane
Wallingford, Connecticut 06492
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
Edward M. Kane, Esq.
Shipman & Goodwin LLP
300 Atlantic Street
Stamford, Connecticut 06901
(203) 324-8100
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
number of the earlier effective registration statement for the same offering. [
]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
TITLE OF EACH PROPOSED PROPOSED
CLASS OF MAXIMUM MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (3) REGISTRATION FEE
Common Stock, par value $0.01 per share 666,665 $ 30.645 $ 20,429,948.92 $ 2,588.47
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of Common Stock registered hereby includes an indeterminate
number of shares of Common Stock that may be issued in connection with a stock
split, stock dividend, recapitalization or similar event.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended, based
on the average of the high and low sales prices of $31.50 and $29.79 of the
Common Stock reported by The Nasdaq SmallCap Market on June 14, 2004.
(2) The proposed maximum aggregate offering price has been estimated solely to
calculate the registration fee.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
SUBJECT TO COMPLETION, DATED JUNE 18, 2004
PROSPECTUS
TRANSACT TECHNOLOGIES INCORPORATED
666,665 SHARES
COMMON STOCK
We are registering 666,665 shares of our common stock for offer and sale from
time to time by the selling stockholders named in this prospectus. We will not
receive any of the proceeds from the sale of these shares of common stock.
This prospectus should be read in conjunction with the documents incorporated by
reference herein.
Our common stock is traded on The Nasdaq SmallCap Market under the symbol
"TACT." On June 17, 2004, the last reported sale price of our common stock was
$31.79 per share.
Investing in our common stock involves risks. See "Risk Factors" beginning on
page 5, and the risk factors incorporated herein by reference, for a discussion
of the risks you should consider before investing in our common stock.
The shares covered by this prospectus may be offered for sale from time to time
on The Nasdaq SmallCap Market or otherwise, at prices then obtainable. The
selling stockholders listed in this prospectus may sell any, all or none of the
shares offered by this prospectus. See "Plan of Distribution" beginning on page
12 for a discussion of these and other distribution matters.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is June [ ], 2004.
TABLE OF CONTENTS
PAGE
Summary................................................ 3
Risk Factors........................................... 5
Note on Forward-Looking Statements..................... 7
Use of Proceeds........................................ 8
Selling Stockholders................................... 9
Description of Common Stock............................ 10
Plan of Distribution................................... 12
Legal Matters.......................................... 13
Experts................................................ 13
Where You Can Find More Information.................... 14
Incorporation by Reference............................. 14
2
SUMMARY
The following summary contains basic information about TransAct Technologies
Incorporated and this offering. Because this is a summary, it necessarily does
not contain all the information that may be important to you. For a more
complete understanding of the offering, we encourage you to read carefully this
entire prospectus, including the "Risk Factors" section, and the documents
incorporated by reference herein. When we refer to "TransAct," "the Company,"
"we," "our" and "us" in this prospectus, we mean TransAct Technologies
Incorporated and its subsidiaries unless the context indicates otherwise.
BUSINESS OF THE COMPANY
TransAct was incorporated in June 1996 and began operating as a stand-alone
business in August 1996 as a spin-off of the printer business that was formerly
conducted by certain subsidiaries of Tridex Corporation. We completed an initial
public offering on August 22, 1996.
TransAct designs, develops, manufactures and markets transaction-based printers
under the Ithaca(R) and Magnetec(R) brand names. In addition, we market related
consumables, spare parts and services. Our printers are used worldwide to
provide transaction records such as receipts, tickets, coupons, register
journals and other documents. We focus on two core markets: (1) point-of-sale
and banking ("POS"), and (2) gaming and lottery. We sell our products directly
to original equipment manufacturers ("OEMs"), value-added resellers ("VARs"),
selected distributors and directly to end-users. Our product distribution spans
across the Americas, Europe, the Middle East, Africa, the Caribbean Islands and
the South Pacific. Our executive offices are located in Wallingford, Connecticut
and we have one primary operating facility located in Ithaca, New York, five
sales offices located in the United States, and one sales office and service
depot in the United Kingdom.
RECENT DEVELOPMENTS
On June 2, 2004, we announced the signing of a letter of intent under which
TransAct would acquire the transaction printer and printhead business known as
TPG, a division of ATSI Holdings Inc. (formerly known as Axiohm Transaction
Solutions). Based on the terms described in the letter of intent, the expected
purchase price would be approximately $23 million.
Our acquisition of the TPG business is subject to several contingencies,
including the completion of our due diligence investigation and the negotiation
of definitive agreements. We cannot give any assurance that definitive
agreements will be successfully negotiated or, even if they are, that they will
contain terms that are identical to those contained in the letter of intent or
that the transaction will be successfully completed.
SELECTED CONSOLIDATED FINANCIAL DATA (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The selected financial data set forth below as of December 31, 2003 and 2002,
and for the three years ended December 31, 2003, are derived from our financial
statements, except for the impact of the stock split described in the following
paragraph, which are incorporated herein by reference and which have been
audited by PricewaterhouseCoopers LLP, our independent registered public
accounting firm. The selected financial data set forth below as of December 31,
2001, 2000 and 1999 and for the two years ended December 31, 2000 are derived
from our audited financial statements, except for the impact of the stock split
described in the following paragraph, which are not included in this prospectus.
On April 2, 2004, we effected a 3-for-2 stock split of our common stock in the
form of a 50% stock dividend. We began trading on a split basis on April 5,
2004. All amounts presented in our 2003 Annual Report on Form 10-K incorporated
herein by reference do not reflect the stock split. Amounts presented in this
prospectus, including the Selected Consolidated Financial Data below, have been
adjusted to reflect the stock split.
3
The data set forth below should be read in conjunction with "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
our financial statements, including the notes thereto, which are incorporated
herein by reference.
Year Ended December 31,
-------------------------------------------
2003 2002 2001 2000 1999
------- ------- ------- ------- -------
Statement of Operations Data:
Net sales $52,098 $39,461 $43,974 $53,720 $44,889
Gross profit 15,543 10,216 9,774 14,142 11,754
Operating expenses 12,855 11,200 17,060 14,296 11,719
Operating income (loss) 2,688 (984) (7,286) (154) 35
Net income (loss) 1,528 (692) (4,922) (344) 324
Net income (loss) available to common
shareholders 1,170 (1,050) (5,280) (664) 324
Net income (loss) per share:
Basic 0.13 (0.12) (0.63) (0.08) 0.04
Diluted 0.13 (0.12) (0.63) (0.08) 0.04
December 31,
-------------------------------------------
2003 2002 2001 2000 1999
------- ------- ------- ------- -------
Balance Sheet Data:
Total assets $26,361 $22,030 $25,791 $27,619 $25,684
Working capital 11,787 8,798 8,366 13,631 11,094
Long-term debt, excluding current portion 330 2,791 5,344 5,944 7,100
Redeemable convertible preferred stock 3,902 3,824 3,746 3,668 -
Shareholders' equity 10,347 6,545 7,315 12,191 12,207
THE OFFERING
Securities Offered.... 666,665 shares of common stock of TransAct.
Use of Proceeds....... The Company will not receive any proceeds from the sale of common
stock by the selling stockholders.
Capital Stock......... Our common stock is listed on The Nasdaq SmallCap Market under the
symbol "TACT."
OUR ADDRESS
Our executive offices are located at 7 Laser Lane, Wallingford, Connecticut
06492 and our telephone number is (203) 269-1198. Our website is located at
www.transact-tech.com. The information on our website is not part of this
prospectus.
4
RISK FACTORS
You should carefully consider the following risk factors and all of the
information set forth in this prospectus, as well as the risk factors and
information incorporated by reference in this prospectus, before deciding to
invest in the common stock. The risks described below and incorporated by
reference are not the only ones facing our Company. Additional risks not now
known to us or that we currently deem immaterial may also impair our business
operations.
OUR STOCK PRICE MAY FLUCTUATE SIGNIFICANTLY.
The market price of our common stock could fluctuate significantly in response
to variations in quarterly operating results and other factors, such as:
- changes in our business, operations or prospects;
- developments in our relationships with our customers;
- announcements of new products or services by us or by our
competitors;
- announcement or completion of acquisitions by us or by our
competitors;
- changes in existing or adoption of additional government
regulations;
- unfavorable or reduced analyst coverage; and
- prevailing domestic and international market and economic
conditions.
In addition, the stock market has experienced significant price fluctuations in
recent years. Many companies experienced material fluctuations in their stock
price that were unrelated to their operating performance. Broad market
fluctuations, general economic conditions and specific conditions in the
industry in which we operate may adversely affect the market price of our common
stock.
LIMITED TRADING VOLUME OF OUR CAPITAL STOCK MAY CONTRIBUTE TO ITS PRICE
VOLATILITY.
Our common stock is traded on The Nasdaq SmallCap Market. During the five months
ended May 31, 2004, the average daily trading volume for our common stock as
reported by The Nasdaq SmallCap Market was approximately 130,500 shares. We are
uncertain whether a more active trading market in our common stock will develop.
In addition, many investment banks no longer find it profitable to provide
securities research on micro-cap and small-cap companies. If analysts were to
discontinue coverage of our common stock, our trading volume may be further
reduced. As a result, relatively small trades may have a significant impact on
the market price of our common stock, which could increase the volatility and
depress the price of our common stock.
FUTURE SALES OF OUR COMMON STOCK MAY CAUSE OUR STOCK PRICE TO DECLINE.
In the future, we may sell additional shares of our common stock in public or
private offerings, and we may also issue additional shares of our common stock
to finance future acquisitions. Shares of our common stock are also available
for future sale pursuant to stock options that we have granted to our employees,
and in the future
5
we may grant additional stock options and other forms of equity compensation to
our employees. Sales of our common stock, or the perception that such sales
could occur, may adversely affect prevailing market prices for shares of our
common stock and could impair our ability to raise capital through future
offerings.
WE DEPEND ON KEY PERSONNEL.
Our future success will depend in significant part upon the continued service of
certain key management and other personnel and our continuing ability to attract
and retain highly qualified managerial, technical and sales and marketing
personnel. There can be no assurance that we will be able to recruit and retain
such personnel. The loss of Bart C. Shuldman, the Company's Chairman of the
Board, President and Chief Executive Officer, or the loss of certain groups of
key employees, could have a material adverse affect on our results of
operations.
OUR BUSINESS COULD BE ADVERSELY AFFECTED BY ACTUAL OR THREATENED TERRORIST
ATTACKS OR THE RELATED HEIGHTENED SECURITY MEASURES, MILITARY ACTIONS AND OTHER
EFFORTS TO COMBAT TERRORISM.
Our business could be adversely affected by actual or threatened terrorist
attacks or the related heightened security measures, military actions and other
efforts to combat terrorism. It is possible that terrorist attacks could be
directed at important locations for the gaming industry. Heightened security
measures and other efforts to combat terrorism may also have an adverse effect
on the gaming industry by reducing tourism. Any of these developments could
also negatively affect the general economy and consumer confidence. Any
downturn in the economy, or in the gaming industry in particular, could reduce
demand for our products and adversely affect our business and results of
operations.
OUR PROPOSED ACQUISITION OF THE TPG BUSINESS IS SUBJECT TO CERTAIN
CONTINGENCIES.
Our proposed acquisition of the TPG business is subject to the completion of our
due diligence investigation and the negotiation of definitive agreements. We can
give no assurance that definitive agreements will be successfully negotiated or,
even if they are, that they will contain terms that are identical to those
contained in the letter of intent we have signed or that the transaction will be
successfully completed.
WE FACE BURDENS RELATING TO THE RECENT TREND TOWARD STRICTER CORPORATE
GOVERNANCE AND FINANCIAL REPORTING STANDARDS.
Recently adopted or new legislation or regulations that follow the trend of
imposing stricter corporate governance and financial reporting standards,
including compliance with Section 404 of the Sarbanes-Oxley Act of 2002, may
lead to an increase in our costs of compliance. A failure to comply with these
new laws and regulations may impact market perception of our financial condition
and could materially harm our business. Additionally, if the acquisition of the
TPG business is successful, our ability to comply with such legislation and
regulations may be adversely affected.
OUR SUCCESS WILL DEPEND ON OUR ABILITY TO SUSTAIN AND MANAGE GROWTH.
As part of our business strategy, we intend to pursue an aggressive growth
strategy. Assuming this growth occurs, it will require the expansion of
distribution relationships in international markets, the successful development
and marketing of new products, expanded customer service and support, an
increased number of personnel throughout the Company and the continued
implementation and improvement of our operational, financial and management
information systems.
To the extent that we seek growth through acquisitions, such as the potential
acquisition of the TPG business for which we recently signed a letter of intent,
our ability to manage our growth will also depend on our ability to integrate
businesses that have previously operated independently. We may not be able to
achieve this integration without encountering difficulties or experiencing the
loss of key employees, customers or suppliers. It may be difficult to design and
implement effective financial controls for combined operations and differences
in existing controls for each business may result in weaknesses that require
remediation when the financial controls and reporting functions are combined.
There can be no assurance that we will be able to implement successfully our
growth strategy, or that we can successfully manage expanded operations. As the
Company expands, we may from time to time experience constraints that will
adversely affect our ability to satisfy customer demand in a timely fashion.
Failure to manage growth effectively could adversely affect the Company's
results of operations and financial condition.
6
WE FACE RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS.
Our international sales, which includes sales by our United Kingdom subsidiary
and export sales from our domestic operations, totaled approximately $4,731,000
(approximately 9.1% of net revenues) in fiscal 2003. Most of these sales were in
Europe and Latin America. As part of our business strategy, we intend to
increase international sales as a percentage of our revenues. International
sales are subject to inherent risks, including fluctuations in local economies,
fluctuating exchange rates, increased difficulty of inventory management,
greater difficulty in accounts receivable collection, costs and risks associated
with localizing products for foreign countries, unexpected changes in regulatory
requirements, tariffs and other trade barriers and burdens of complying with a
variety of foreign laws. There can be no assurance that these factors will not
have a material adverse impact on our ability to increase or maintain our
international sales or on our results of operations.
WE FACE EVOLVING TECHNOLOGY AND CHANGING MARKET REQUIREMENTS.
The transaction based printer industry is characterized by evolving technology
and changing market requirements. Our future success will depend on our ability
to continue to design, develop and manufacture new products and to enhance
existing products, reflecting technological evolution and changing market
requirements. We anticipate ongoing investment in engineering and product
development.
WE DO NOT INTEND TO PAY CASH DIVIDENDS.
We intend to retain any future earnings for our business and do not anticipate
paying any cash dividends in the foreseeable future
OUR PREFERRED STOCK RIGHTS PLAN, CERTIFICATE OF INCORPORATION, BY-LAWS AND
DELAWARE LAW CONTAIN PROVISIONS MAY HAVE ANTI-TAKEOVER EFFECTS.
On December 2, 1997, our Board of Directors declared a distribution of certain
rights to purchase shares of our Series A Preferred Stock to the holders of our
outstanding common stock. The purpose of this rights plan is to assure fair
value in the event of a future unsolicited business combination or similar
transaction involving TransAct. If a person or group accumulates or solicits a
tender or exchange offer for 15% of our common stock, the rights become
exercisable for additional shares of our Series A Preferred Stock. The intent of
these rights is to encourage a potential acquirer to negotiate with our Board of
Directors to increase the consideration paid for our stock. We are also
authorized to issue 5,000,000 shares of undesignated preferred stock, which we
may issue without stockholder approval upon such terms as our Board of Directors
may determine.
We are also subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, which prohibits us from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
In addition, our certificate of incorporation and by-laws contain other
provisions that might enable our management to resist a takeover. Our rights
plan, Section 203 of the Delaware General Corporation Law and any of these
provisions of our certificate of incorporation and by-laws might discourage,
delay or prevent a change in control of TransAct or a change in our management.
The existence of these provisions could also adversely affect the price that
investors might be willing to pay in the future for our common stock.
NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning of the
federal securities laws. These forward-looking statements generally can be
identified by use of statements that include words such as "anticipate,"
"estimate," "expect," "project," "intend," "plan," "believe" and other words and
terms of similar meaning, although not all forward-looking statements contain
such words. Statements that describe our
7
objectives, plans or goals are also forward-looking statements. These
forward-looking statements are subject to risks and uncertainties that could
cause actual results to differ materially from those currently anticipated.
Factors that could materially affect these forward-looking statements can be
found in our periodic reports filed with the Securities and Exchange Commission
(the "SEC") and in this prospectus under the heading "Risk Factors." Potential
investors are urged to consider these factors carefully in evaluating the
forward-looking statements and are cautioned not to place undue reliance on
these forward-looking statements. The forward-looking statements included in
this prospectus are made only as of the date of this prospectus, and we
undertake no obligation to publicly update these forward-looking statements to
reflect new information, future events or otherwise. In light of these risks,
uncertainties and assumptions, the forward-looking events might or might not
occur. We cannot assure you that projected results or events will be achieved.
USE OF PROCEEDS
The Company will not receive any proceeds from sales of common stock by the
selling stockholders.
8
SELLING STOCKHOLDERS
On April 7, 2000, we sold an aggregate of 4,000 shares of our Series B Preferred
Stock, which were convertible into shares of our common stock. On March 9, 2004,
the holders of Series B Preferred Stock converted all of the outstanding Series
B Preferred Stock into the shares of common stock covered by this prospectus.
The registration of these shares is required under the terms of a registration
rights agreement that we entered into at the time of the sale of the Series B
Preferred Stock.
We prepared the following table based on the information supplied to us by the
selling stockholders named in the table. The selling stockholders may, however,
have sold, transferred or otherwise disposed of all or a portion of their shares
of common stock since the date on which they provided such information. None of
the selling stockholders has held any position with, or has otherwise had a
material relationship with, us within the past three years.
We do not know when a selling stockholder may offer shares of common stock for
sale or in what amounts. The selling stockholders may choose not to sell any of
the shares offered by this prospectus. Because the selling stockholders may
offer all, some or none of their shares of common stock pursuant to this
offering, we cannot estimate the number of shares of common stock that the
selling stockholders will hold after completion of the offering. For purposes of
the following table, we have assumed that the selling stockholders will sell all
of the shares of common stock covered by this prospectus. Except as otherwise
set forth below, each selling stockholder has sole voting power over the shares
of common stock shown as beneficially owned.
NUMBER OF SHARES OF PERCENTAGE OF
COMMON STOCK NUMBER OF SHARES OF BENEFICIAL OWNERSHIP
NAME OF SELLING BENEFICIALLY OWNED COMMON STOCK BEING AFTER COMPLETION OF
STOCKHOLDER BEFORE OFFERING OFFERED OFFERING
----------------------------------------------------- ------------------- ------------------- --------------------
Janus Investment Fund on
behalf of its series Janus Venture
Fund 544,567 333,333 2.13%
Swiftcurrent Partners, LP 90,000 90,000 *
Swiftcurrent Offshore, Ltd. 76,666 76,666 *
SLS Investors, LP 44,500 44,500 *
SLS Offshore Fund, Ltd. 122,166 122,166 *
* Less than one percent
9
DESCRIPTION OF COMMON STOCK
The following description of our common stock includes a summary of some of the
detailed provisions of our certificate of incorporation, as amended, and
by-laws, as amended. These statements do not purport to be complete or to give
full effect to the provisions of statutory or common law, and are subject to,
and are qualified in their entirety by reference to, the terms of our
certificate of incorporation and by-laws. We encourage you to read our
certificate of incorporation and by-laws, which have been filed with the SEC and
are incorporated by reference in this prospectus, for a more complete
description.
GENERAL
Our authorized capital stock consists of 20,000,000 shares of common stock, par
value $0.01 per share, and 5,000,000 shares of preferred stock, $0.01 per share.
As of June 17, 2004, we had 9,893,914 shares of common stock outstanding. In
addition, as of June 17, 2004, an aggregate of 963,096 shares of our common
stock were issuable upon the exercise of outstanding options and 401,412 shares
were reserved for issuance under our stock incentive plans. As of June 17, 2004,
no shares of our preferred stock were outstanding or reserved for issuance.
RIGHTS OF HOLDERS OF OUR COMMON STOCK
Stockholders are entitled to one vote for each share of our common stock held of
record on all matters on which stockholders are entitled or permitted to vote.
Our common stock does not have cumulative voting rights in the election of
directors. As a result, holders of a majority of the shares of our common stock
voting for the election of directors can elect all the directors standing for
election. Subject to preferences that may be applicable to any outstanding
shares of our preferred stock designated by the Company's Board of Directors
from time to time, holders of our common stock are entitled to receive dividends
out of legally available funds when and if declared from time to time by our
Board of Directors. In the event of our liquidation, dissolution or winding up,
the holders of our common stock will be entitled to share ratably in all assets
remaining after payment of liabilities, subject to preferences applicable to
shares of our preferred stock, if any, then outstanding. Our common stock has no
preemptive, subscription or conversion rights, and there are no redemption or
sinking fund provisions in our certificate of incorporation. The outstanding
shares of our common stock are fully paid and nonassessable.
CLASSIFIED BOARD OF DIRECTORS
Our certificate of incorporation provides for our Board of Directors to be
divided into three classes, with each class serving a staggered three year term.
We believe that a classified board helps to ensure the continuity and stability
of the Board of Directors and the Company's business strategies and policies.
The classified board structure could have the effect of making the removal of
incumbent directors more time consuming and difficult, and, therefore of
discouraging a third party from making a tender offer or otherwise attempting to
obtain control of the Company, even though such an attempt might be beneficial
to the Company and its stockholders.
CORPORATE GOVERNANCE PROVISIONS OF OUR BY-LAWS
Our by-laws provide that special meetings of stockholders may be called at any
time by the Chairman of the Board or President of the Company and shall be
called upon the written request of the Board of Directors or of the holders of
record shares having a majority of the voting power of the capital stock of the
Company. Our by-laws provide that the number of directors will be fixed from
time to time by resolution of the Board of Directors. Our Board of Directors
currently consists of four (4) directors.
10
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW.
We are a Delaware corporation that is subject to Section 203 of the Delaware
General Corporation Law. Section 203 provides in general that a stockholder
acquiring more than 15% of the outstanding voting stock of a corporation subject
to Section 203 but less than 85% of such stock may not engage in a Business
Combination, as defined in Section 203, with the corporation for a period of
three years from the date on which that stockholder became an Interested
Stockholder, as defined in Section 203, unless (1) prior to such date the
corporation's board of directors approved either the Business Combination or the
transaction in which the stockholder became an Interested Stockholder or (2) the
Business Combination is approved by the corporation's board of directors and
authorized by the holders of at least 66% of the outstanding voting stock of the
corporation not owned by the Interested Stockholder. A "Business Combination"
includes a merger, asset sale or other transaction resulting in a financial
benefit to a stockholder. A Delaware corporation may "opt out" of Section 203
with an express provision in its original certificate of incorporation or an
express provision in its certificate of incorporation or by-laws resulting from
amendments approved by holders of at least a majority of a corporation's
outstanding voting shares. We have not "opted out" of the provisions of Section
203.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
Our certificate of incorporation provides that no director will be liable to us
or our stockholders for monetary damages for breach of fiduciary duty as a
director. Under the Delaware General Corporation Law, liability of a director
may not be limited:
- for any breach of the director's duty of loyalty to us or our
stockholders,
- for acts or omissions not in good faith or that involve intentional
misconduct or knowing violation of law,
- in respect of certain unlawful dividend payments or stock redemptions or
repurchases, and
- for any transaction from which the director derives an improper personal
benefit.
The effect of this provision of our certificate of incorporation is to eliminate
our rights and the rights of our stockholders to recover monetary damages
against a director for breach of the fiduciary duty of care as a director,
including breaches resulting from negligent or grossly negligent behavior,
except in the situations described above. This provision does not limit or
eliminate our rights or the rights of any stockholder to seek non-monetary
relief such as an injunction or rescission in the event of a breach of a
director's duty of care. In addition, our certificate of incorporation provides
that we will indemnify our directors, officers, employees and agents to the
fullest extent permitted by law. We may purchase and maintain insurance or
furnish similar protection on behalf of any officer or director against any
liability asserted against the officer or director and incurred by the officer
or director in such capacity, or arising out of the status, as an officer or
director.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is American Stock Transfer
& Trust Co.
11
PLAN OF DISTRIBUTION
The selling stockholders, or their pledgees, donees, transferees, or any of
their successors in interest selling shares received from a named selling
stockholder as a gift, partnership distribution or other non-sale-related
transfer after the date of this prospectus (all of whom may be selling
stockholders), may sell the shares of common stock from time to time after the
date of this prospectus on any stock exchange or automated interdealer quotation
system on which our common stock is listed, in the over-the-counter market, in
privately negotiated transactions or otherwise, at fixed prices that may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at prices otherwise negotiated. The selling
stockholders may sell the shares of common stock by one or more of the following
methods:
(a) ordinary brokerage transactions (including block trades) and
transactions in which the broker solicits purchases;
(b) private sales or private transactions;
(c) one or more underwritten offerings on a firm commitment or best
efforts basis; and
(d) a combination of any of these methods of sale or any other legally
available means, whether or not described in this prospectus.
At the time a particular offering of shares is made hereunder, to the extent
required by Rule 424 under the Securities Act of 1933, we will file a prospectus
supplement setting forth:
(a) the number of shares involved;
(b) the names of any underwriters, dealers or agents;
(c) the price at which the shares are being offered or purchased;
(d) any commissions or discounts or concessions allowed to broker-dealers;
(e) any discounts, commissions or other items constituting compensation
from the selling shareholder; and
(f) any other facts material to the transaction.
In connection with sales of the shares of common stock, the selling stockholders
may enter into hedging transactions with broker-dealers only to the extent
permitted by the Securities Act and any applicable securities laws of any state
of the United States. These broker-dealers may in turn engage in short sales of
the shares of common stock and deliver shares of common stock to close out such
short positions, or loan or pledge shares of common stock to broker-dealers that
may in turn sell such securities. Any selling stockholder may pledge or grant a
security interest in some or all of the shares of common stock that it owns and,
if it defaults in the performance of its secured obligations, the pledgees or
secured parties may offer and sell the shares of common stock from time to time
pursuant to this prospectus. The selling stockholders may also transfer and
donate shares of common stock in other circumstances, in which case the
transferees, donees, pledgees or other successors in interest will be selling
stockholders for the purposes of this prospectus.
To our knowledge, there are currently no plans, arrangements or understanding
between any selling stockholders and any underwriters, broker-dealer or agent
regarding the sale of the shares of common stock by the selling stockholders.
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On April 7, 2000, we sold an aggregate of 4,000 shares of our Series B Preferred
Stock, which were convertible into shares of our common stock. In April, 2004,
the holders of Series B Preferred Stock converted all of the outstanding Series
B Preferred Stock into the shares of common stock covered by this prospectus.
The registration of these shares is required under the terms of a registration
rights agreement that we entered into at the time of the sale of the Series B
Preferred Stock.
Pursuant to the registration rights agreement, we have agreed to indemnify in
certain circumstances the selling stockholders and their affiliates against
certain liabilities, including liabilities under the Securities Act. The selling
stockholders have agreed to indemnify us in certain circumstances against
certain liabilities, including liabilities under the Securities Act. We have
also agreed to pay certain expenses in connection with this offering, including,
in certain circumstances, the fees and expenses of counsel to the selling
stockholders, but not including underwriting discounts, concessions, commissions
or fees of the selling stockholders.
The selling stockholders and any other person participating in such distribution
will be subject to the Exchange Act rules, including, without limitation,
Regulation M, which may limit the timing of purchases and sales of any of the
shares of common stock by the selling stockholders and any such other person. In
addition, Regulation M of the Exchange Act may restrict the ability of any
person engaged in the distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common stock being
distributed for a period of up to five business days prior to the commencement
of distribution. This may affect the marketability of the shares of common stock
and the ability of any person or entity to engage in market-making activities
with respect to the shares of common stock.
We may suspend the use of this prospectus by the selling stockholder under
certain circumstances.
Any common stock sold by a selling stockholder pursuant to a prospectus
supplement will be listed on The Nasdaq SmallCap Market, subject to official
notice of issuance.
LEGAL MATTERS
The validity of the shares of common stock will be passed upon for us by
Shipman & Goodwin LLP.
EXPERTS
The financial statements incorporated in this prospectus by reference to the
Annual Report on Form 10-K for the year ended December 31, 2003 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP, our
independent registered public accounting firm, given on the authority of said
firm as experts in auditing and accounting.
13
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 with respect to
the common stock offered in this prospectus. This prospectus does not contain
all of the information set forth in the registration statement and the exhibits
to that registration statement. For further information with respect to us and
the common stock, we refer you to the registration statement and its exhibits.
We also file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
Public Reference Room of the SEC, 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room. Our SEC filings are also available to the public from the
SEC's website at http://www.sec.gov and on our website at
http://www.transact-tech.com. With the exception of the documents we file with
the SEC, the information contained on our website is not incorporated by
reference in this prospectus and you should not consider it a part of this
prospectus.
INCORPORATION BY REFERENCE
We are incorporating by reference the information that we file with the SEC,
which means that we are disclosing important information to you in those
documents. The information incorporated by reference is an important part of
this prospectus, and the information that we subsequently file with the SEC will
automatically update and supercede information in this prospectus and in our
other filings with the SEC. We incorporate by reference the documents listed
below, which we have already filed with the SEC, and any future filings we make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934. We are not, however, incorporating by reference any documents or
portions thereof, whether specifically listed below or filed in the future, that
are not deemed "filed" with the SEC, including any information furnished
pursuant to Items 9 or 12 of any Current Report on Form 8-K.
- Annual Report on Form 10-K for the year ended December 31, 2003, filed on
March 30, 2004;
- Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2004, filed on May 12, 2004; and
- Current Report on Form 8-K, filed on May 3, 2004.
You may request a copy of any of our filings with the SEC, or any of the
agreements or other documents that constitute exhibits to those filings, at no
cost, by writing or telephoning us at the following address or phone number:
TransAct Technologies Incorporated
c/o Investor Relations
7 Laser Lane
Wallingford, Connecticut 06492
Telephone: (203) 269-1198
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH
ADDITIONAL OR DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE INFORMATION
IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT
COVER OF THIS PROSPECTUS.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following statement sets forth the estimated amounts of expenses, other than
underwriting discounts, to be borne by the registrant in connection with the
distribution of the offered securities.
SEC registration fee................................. $ 2,588.47
Accounting fees and expenses......................... 25,000.00
Legal fees and expenses.............................. 50,000.00
Miscellaneous expenses............................... 12,000.00
-----------
Total expenses....................................... $ 89,588.47
===========
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law provides, in general,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
because the person is or was a director or officer of the corporation. Such
indemnity may be against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation and if, with respect to any criminal
action or proceeding, the person did not have reasonable cause to believe the
person's conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in general,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor because the person is or was a director or officer of the
corporation, against any expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145(g) of the Delaware General Corporation Law provides, in general,
that a corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation
against any liability asserted against the person in any such capacity, or
arising out of the person's status as such, whether or not the corporation would
have the power to indemnify the person against such liability under the
provisions of the law.
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The certificate of incorporation, as amended, of the registrant provides that
(a) the registrant shall indemnify to the full extent permitted by law any
person made, or threatened to be made, a party to any claim, action, suit or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that he is or was a director, officer or employee of the registrant
serving at the registrant's request as a director or officer of another
corporation or of a partnership, joint venture, trust or other enterprise and
(b) the registrant shall pay the expenses, including attorney's fees, incurred
by a director or officer in defending or investigating a threatened or pending
claim, action, suit or proceeding, in advance of the final disposition of such
claim, action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount by the registrant. The
certificate of incorporation also provides that, to the extent permitted by law,
the directors of the registrant shall have no liability to the registrant or its
stockholder for monetary damages for breach of fiduciary duty as a director.
The registrant maintains policies of insurance under which the registrant's
directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, and certain liabilities which might be
imposed as a result of such actions, suits or proceedings, to which they are
parties by reason of being or having been such directors or officers.
The foregoing statements are subject to the detailed provisions of Section 145
of the Delaware General Corporation Law and the certificate of incorporation and
by-laws of TransAct Technologies Incorporated.
Item 16. Exhibits
3.1(a) -- Certificate of Incorporation of the Company, filed with the Delaware
Secretary of State on June 17, 1996 (2)
3.1(b) -- Certificate of Amendment of Certificate of Incorporation of the Company, filed
with the Delaware Secretary of State on June 4, 1997 (3)
3.1(c) -- Certificate of Designation, Series A Preferred Stock, filed with the Delaware
Secretary of State on December 2, 1997 (4)
3.2 -- Amended and Restated By-laws of the Company (6)
4.1 -- Specimen Common Stock Certificate (2)
4.2 -- Amended and Restated Rights Agreement between TransAct and American
Stock Transfer & Trust Company, dated February 16, 1998 (5)
5.1 -- Opinion of Shipman & Goodwin LLP (1)
23.1 -- Consent of PricewaterhouseCoopers LLP (1)
23.2 -- Consent of Shipman & Goodwin LLP (included in Exhibit 5.1)
24.1 -- Power of Attorney of Charles A. Dill (1)
24.2 -- Power of Attorney of Thomas R. Schwarz (1)
24.3 -- Power of Attorney of Graham Y. Tanaka (1)
24.4 -- Power of Attorney of Bart C. Shuldman (1)
24.5 -- Power of Attorney of Steven A. DeMartino (1)
-------------
(1) These exhibits are filed herewith.
(2) These exhibits, which were previously filed with the Company's
Registration Statement on Form S-1 (No. 333-06895), are incorporated by
reference.
(3) These exhibits, which were previously filed with the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 (Commission File
No. 000-21121), are incorporated by reference.
(4) This exhibit, which was previously filed with the Company's Current Report
on Form 8-K, filed December 2, 1997 (Commission File No. 000-21121), is
incorporated by reference.
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(5) This exhibit, which was previously filed with the Company's Current Report
on Form 8-K, filed February 18, 1999 (Commission File No. 000-21121), is
incorporated by reference.
(6) This exhibits, which was previously filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1998 (Commission File No.
000-21121), is incorporated by reference.
Item 17. Undertakings
A. Undertaking Regarding Rule 415 Offering
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information in the registration
statement. To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
B. Undertaking Regarding Filings Incorporating Subsequent Exchange Act Documents
by Reference
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the
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Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Undertaking in Respect of Indemnification
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 15 above, or otherwise, the
registrant has been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such officer, director or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Wallingford, State of Connecticut, on June 18, 2004.
TRANSACT TECHNOLOGIES INCORPORATED
By: /s/ Bart C. Shuldman
--------------------------------------
Name: Bart C. Shuldman
Title: Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed on June 18, 2004 by the following persons
in the capacities indicated.
Signatures Title
---------- -----
/s/ Bart C. Shuldman Chairman of the Board, President,
-------------------------- Chief Executive Officer and Director
Bart C. Shuldman (Principal Executive Officer)
/s/ Steven A. DeMartino Executive Vice President, Chief Financial Officer
-------------------------- Officer, Treasurer and Secretary
Steven A. DeMartino (Principal Financial Officer and Principal Accounting Officer)
/s/ Charles A. Dill*
-------------------------- Director
Charles A. Dill
/s/ Thomas R. Schwarz*
-------------------------- Director
Thomas R. Schwartz
/s/ Graham Y. Tanaka*
-------------------------- Director
Graham Y. Tanaka
*By: /s/ Steven A. DeMartino
-----------------------------
(Steven A. DeMartino
Attorney-in-Fact)
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EXHIBITS
3.1(a) -- Certificate of Incorporation of the Company, filed with the Delaware
Secretary of State on June 17, 1996 (2)
3.1(b) -- Certificate of Amendment of Certificate of Incorporation of the Company, filed
with the Delaware Secretary of State on June 4, 1997 (3)
3.1(c) -- Certificate of Designation, Series A Preferred Stock, filed with the Delaware
Secretary of State on December 2, 1997 (4)
3.2 -- Amended and Restated By-laws of the Company (6)
4.1 -- Specimen Common Stock Certificate (2)
4.2 -- Amended and Restated Rights Agreement between TransAct and American
Stock Transfer & Trust Company, dated February 16, 1998 (5)
5.1 -- Opinion of Shipman & Goodwin LLP (1)
23.1 -- Consent of PricewaterhouseCoopers LLP (1)
23.2 -- Consent of Shipman & Goodwin LLP (included in Exhibit 5.1)
24.1 -- Power of Attorney of Charles A. Dill (1)
24.2 -- Power of Attorney of Thomas R. Schwarz (1)
24.3 -- Power of Attorney of Graham Y. Tanaka (1)
24.4 -- Power of Attorney of Bart C. Shuldman (1)
24.5 -- Power of Attorney of Steven A. DeMartino (1)
------------------
(1) These exhibits are filed herewith.
(2) These exhibits, which were previously filed with the Company's
Registration Statement on Form S-1 (No. 333-06895), are incorporated by
reference.
(3) These exhibits, which were previously filed with the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 (Commission File
No. 000-21121), are incorporated by reference.
(4) This exhibit, which was previously filed with the Company's Current Report
on Form 8-K, filed December 2, 1997 (Commission File No. 000-21121), is
incorporated by reference.
(5) This exhibit, which was previously filed with the Company's Current Report
on Form 8-K, filed February 18, 1999 (Commission File No. 000-21121), is
incorporated by reference.
(6) This exhibit, which was previously filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1998 (Commission File No.
000-21121), is incorporated by reference.
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