Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Technical Consumer Products, Inc. Amd #2 S-1/A 100 506K
2: EX-4.1 EX-4.1 Specimen Certificate of Common Shares 2 10K
3: EX-10.1 EX-10.1 Manufacturing and Supply Agreement 21 92K
4: EX-10.2 EX-10.2 Technology License Agreement 18 69K
7: EX-10.20 EX-10.20 Credit and Security Agreement (Amd #4) 9 29K
5: EX-10.4 EX-10.4 Non-Qualified Stock Option Agreement 8 33K
6: EX-10.6 EX-10.6 Tax Indemnification Agreement 9 40K
8: EX-16.1 EX-16.1 Letter of Grant Thorton 2 13K
9: EX-23.1 EX-23.1 Auditor's Consent - Pricewaterhouse 1 6K
10: EX-24.2 EX-24.2 Power of Attorney 2 10K
S-1/A — Technical Consumer Products, Inc. Amd #2 S-1/A
Document Table of Contents
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 25, 2002
REGISTRATION NO. 333-71726
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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TECHNICAL CONSUMER PRODUCTS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 3641 34-1729259
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification Number)
------------------------
300 LENA DRIVE
AURORA, OHIO 44202
TELEPHONE: (330) 995-6111
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
------------------------
MATTHEW G. LYON
VICE PRESIDENT -- FINANCE
AND OPERATIONS AND TREASURER
300 LENA DRIVE
AURORA, OHIO 44202
TELEPHONE: (330) 995-6111
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
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CHRISTOPHER M. KELLY, ESQ. JOHN J. JENKINS, ESQ.
JONES, DAY, REAVIS & POGUE CALFEE, HALTER & GRISWOLD LLP
NORTH POINT 1400 MCDONALD INVESTMENT CENTER
901 LAKESIDE AVENUE 800 SUPERIOR AVENUE
CLEVELAND, OHIO 44114 CLEVELAND, OHIO 44114
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
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, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT THAT IS 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.
SUBJECT TO COMPLETION, DATED JANUARY 25, 2002
3,000,000 Shares
[TPC LOGO]
Common Stock
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Technical Consumer Products, Inc. is offering 3,000,000 shares of its
common stock. Prior to this offering, there has been no public market for our
common stock. The initial public offering price of our common stock is expected
to be between $12.00 and $14.00 per share. We have applied to have our common
stock approved for quotation on The Nasdaq National Market under the symbol
"TCPS."
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE
7.
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PER SHARE TOTAL
------------------------ ------------------------
Public offering price........................... $ $
Underwriting discounts and commissions.......... $ $
Proceeds to us (before expenses)................ $ $
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Technical Consumer Products, Inc. has granted the underwriters a 30-day
option to purchase up to an additional 450,000 shares of common stock to cover
over-allotments.
We expect to deliver the shares of common stock on or about
, 2002.
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McDonald Investments Inc. First Albany Corporation
THE DATE OF THIS PROSPECTUS IS , 2002.
ARTWORK DESCRIPTIONS
INSIDE FRONT COVER
The inside front cover is entitled "Lighting the Way to Energy Efficiency"
and contains photographs of the following TCP products: a TCP SpringLamp, flood
light, GoodLamp, Circline lamp and a capsule shaped lamp superimposed over an
artist's rendition of an electronic circuit board. TCP's logo appears on the
bottom right corner of the photograph.
GATEFOLD
The inside front cover includes a gatefold with a photograph of a two piece
SpringLamp set consisting of a ballast and a lamp. Surrounding the photograph of
the SpringLamp are the following narrative descriptions: "Complete assortment of
accessories," "Instant-on ballast technology," "Innovative 2-piece modular
version," "100% tested," "Unconditional warranty" and "SpringLamp." On the
bottom left corner of the photograph is the ENERGY STAR Program logo followed by
the phrase "TCP is a partner in the ENERGY STAR Program." Visible on the ballast
is certain text printed directly on to the ballast including a stamp evidencing
that the ballast is listed by Underwriters Laboratories, the ballast's FCC
identification number and the name "TCP."
INSIDE BACK COVER
The inside back cover is divided into four equally sized quadrants centered
around TCP's logo.
The upper left quadrant is entitled "SpringLamp" and includes photographs
of a SpringLamp, a SpringLamp enclosed in a round globe cover and a capsule
shaped cover and a SpringLamp partially inserted into an aluminum reflector.
Visible on the photograph of the ballast is certain text printed directly on to
the ballast including a stamp evidencing that the ballast is listed by
Underwriters Laboratories, the ballast's FCC identification number and the name
"TCP." These photographs are superimposed over a picture of a table lamp.
The upper right quadrant is entitled "Deco Mini Series & GoodLamps" and
includes photographs of a GoodLamp adjacent to a GoodLamp enclosed in a torpedo
shaped cover from TCP's Deco Mini Series as well as a photograph of the various
shapes and sizes of TCP's Deco Mini Series lamps. These photographs are
superimposed over a picture of the brightly illuminated interior of a room and a
hallway.
The lower left quadrant is entitled "Circline Lamps" and includes
photographs of a circline lamp as well as a circline lamp attached to TCP's lamp
holder arm bracket that is bent 45 degrees from the plane of the bulb. These
photographs are superimposed over a photograph of a table lamp with a
transparent lamp shade through which the circline lamp attached to the bent arm
holder bracket is visible.
The lower right quadrant is entitled "LED Lighting" and includes a
photograph of a light emitting diode lamp superimposed over a photograph of an
exit sign.
TABLE OF CONTENTS
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PAGE
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PROSPECTUS SUMMARY...................... 3
RISK FACTORS............................ 7
FORWARD-LOOKING STATEMENTS.............. 16
USE OF PROCEEDS......................... 17
DIVIDEND POLICY......................... 17
S CORPORATION STATUS.................... 18
CAPITALIZATION.......................... 19
DILUTION................................ 20
SELECTED FINANCIAL DATA................. 21
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF
OPERATIONS............................ 22
BUSINESS................................ 30
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PAGE
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MANAGEMENT.............................. 46
RELATED PARTY TRANSACTIONS.............. 52
CHANGES IN AND DISAGREEMENTS WITH
ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.................. 58
PRINCIPAL STOCKHOLDERS.................. 59
DESCRIPTION OF CAPITAL STOCK............ 60
SHARES ELIGIBLE FOR FUTURE SALE......... 65
UNDERWRITING............................ 67
LEGAL MATTERS........................... 70
EXPERTS................................. 70
WHERE YOU CAN FIND MORE INFORMATION..... 70
INDEX TO FINANCIAL STATEMENTS........... F-1
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS OR TO
WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. WE ARE NOT, AND THE UNDERWRITERS ARE NOT, MAKING
AN OFFER TO SELL THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS
NOT PERMITTED. YOU SHOULD ASSUME THAT THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS PROSPECTUS.
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this
prospectus. Because it is a summary, it does not contain all of the information
that you should consider before investing in our common stock. You should read
the entire prospectus carefully, including the risk factors and our financial
statements and related notes to understand this offering fully.
OUR BUSINESS
We design, develop and market high-quality, energy efficient lighting
products and accessories. Our wide variety of compact fluorescent products and
accessories offer the aesthetic features and application flexibility found in
traditional incandescent lighting while providing energy cost savings and
significantly longer product life. We believe that we offer the industry's most
comprehensive selection of compact fluorescent lighting products and accessories
including SpringLamp, which we believe was the first compact fluorescent lamp
with a twisted tube design and the first fully-dimmable compact fluorescent lamp
to be commercially available for sale in the United States.
We have provided energy efficient lighting products and components to
original equipment manufacturers since our incorporation in 1993 and continue to
sell our products to original equipment manufacturers like General Electric
Corp. and the Osram Sylvania division of Siemens A.G. In 1997, we began
marketing our products under the TCP brand name to commercial and industrial
customers, with sales in this market increasing to $30.0 million in fiscal 2001
from $4.8 million in fiscal 1997 and $17.3 million in fiscal 2000. Our major
commercial and industrial customers include national and regional distributors
who sell our products to a wide range of customers including those in the
hospitality, restaurant and entertainment, property management and construction
industries. We entered the residential consumer market in June 2000 and now sell
our compact fluorescent products and accessories to consumers primarily through
The Home Depot under its "Commercial Electric" label as well as through Costco
Wholesale Corporation and other retailers under the TCP brand name. Our sales to
retailers increased to $58.1 million in fiscal 2001 from $5.0 million in fiscal
2000. Our net sales were $88.1 million in fiscal 2001 compared to $22.3 million
in fiscal 2000.
We use our technological expertise to develop and commercialize innovative
new products. We currently conduct most of our research and development using
our product development group and by working with our suppliers and customers to
develop or customize products to meet customer needs. We have built an extensive
portfolio of lighting products based on compact fluorescent technology and
anticipate that we will continue to add new products and product enhancements.
We are a partner in the United States government's ENERGY STAR Program and offer
a variety of products that are currently qualified under this program. The
ENERGY STAR Program is a voluntary partnership between the Department of Energy
and retailers, manufacturers and utilities pursuant to which the Department of
Energy establishes guidelines and specifications for energy efficient products
and works with retailers, manufacturers and utilities to organize and promote
energy efficient product programs and expand consumer awareness of energy
efficient products.
Almost all of our products are made in Shanghai, China by companies
controlled by Ellis Yan, our Chairman, Chief Executive Officer and majority
stockholder. Mr. Yan's brother manages the operations of these companies, which
operate ISO 9002 certified facilities and have developed significant expertise
in making high-quality compact fluorescent lighting products. These companies
generally are prohibited from selling competitive products to others under the
manufacturing and supply agreement that we entered into with these companies. We
believe that the unique collaboration with our suppliers made possible by Mr.
Yan's ownership and the involvement of his family enhances our ability to assure
consistent high quality products and enables us to quickly respond to customers'
specialized product needs.
OUR MARKET OPPORTUNITY
According to industry sources, United States consumers spent $226.5 billion
on electricity in 2000. The Department of Energy estimates that the annual
domestic cost of electricity for lighting is more than $37 billion and that
households could cut lighting costs by 30% to 60% by using energy efficient
lighting
3
products. According to the Environmental Protection Agency, or EPA, compact
fluorescent lamps last up to 10 times longer, use up to 75% less energy and
produce up to 90% less heat than incandescent lamps.
Energy efficient lighting has gained wide acceptance among commercial and
industrial customers. By using compact fluorescent products, these customers can
realize substantial savings in energy costs associated with lighting and air
conditioning. The substantially longer operating lives of compact fluorescent
lamps compared to incandescent lamps also contribute to lower maintenance costs.
Retail sales of all compact fluorescent lamps represented less than 1% of the
2.2 billion light bulbs sold in the United States from July 1999 through June
2000. We believe that the significantly higher prices charged for compact
fluorescent lamps compared to incandescent lamps and the lack of knowledge of
the benefits of compact fluorescent lamps have contributed to the slower
adoption in the retail market and, thus, lower sales relative to commercial and
industrial customers. However, we believe that the improved quality, increasing
variety of applications and declining prices of new compact fluorescent
products, along with recent volatility in electricity prices, growing concerns
about electricity supply and government and utility sponsored incentive programs
for energy efficient lighting are making compact fluorescent lighting products
more popular with residential consumers.
NEW PRODUCT DEVELOPMENT
We will continue to work with our customers to improve and extend existing
product lines to provide compact fluorescent alternatives for virtually all
incandescent applications. Our new product development efforts focus on three
areas:
- Commercial grade ballasts. Ballasts convert electrical current into the
form required to operate fluorescent lamps. We are developing commercial
grade electronic ballasts for linear fluorescent tubes that incorporate
more energy efficient designs at a lower cost.
- Customized light fixtures. In order to capitalize on our strong position
in compact fluorescents, we have entered the lighting fixture market,
providing a number of customized light fixtures that incorporate energy
efficient lighting.
- Light emitting diode, or LED, lighting products. Our LED product
development efforts will focus on incorporating emerging LED technology
into a full range of lighting products. Over the long term, we expect LED
lighting products to become an energy efficient lighting alternative to
compact fluorescent lamps.
OUR STRATEGY
Our strategy is to become the market leader in the development and
commercialization of energy efficient lighting technologies. There are five key
elements to our business strategy:
- develop and commercialize innovative new products and energy management
solutions;
- further penetrate the commercial and industrial market;
- expand and diversify our retail presence into mass merchants and
supermarkets;
- increase consumer acceptance of energy efficient lighting products; and
- form strategic partnerships and/or acquire complementary businesses and
technologies.
OUR HISTORY
We were incorporated in Ohio in February 1993 and reincorporated in
Delaware in October 2001. From 1986 until our incorporation in 1993, Ellis Yan
conducted the operations that we currently conduct through an unrelated
corporation that he owned. Our principal executive offices are located at 300
Lena Drive, Aurora, Ohio 44202. Our telephone number is (330) 995-6111. Our web
site is www.tcpi.com. The information on our web site is not a part of this
prospectus.
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SpringLamp(R) and Technabright(R) are registered trademarks of Technical
Consumer Products, Inc. Other trademarks used in this prospectus are the
property of their respective owners.
4
THE OFFERING
COMMON STOCK OFFERED BY TCP... 3,000,000 shares
COMMON STOCK TO BE OUTSTANDING
AFTER THIS OFFERING......... 13,640,000 shares
USE OF PROCEEDS............... We intend to use the net proceeds from the
offering to repay certain indebtedness,
complete the expansion of our warehouse
facilities, including related capital
expenditures, make distributions to our current
stockholders and a former stockholder in
connection with revocation of our S corporation
status, and fund working capital and general
corporate purposes, including research and
development and potential acquisitions of
complementary businesses and technologies. See
"Use of Proceeds."
PROPOSED NASDAQ NATIONAL
MARKET SYMBOL............... TCPS
The number of shares of our common stock to be outstanding after the
offering is based on shares outstanding as of January 25, 2002 and does not
include shares that may be issued under our Amended and Restated 2001 Equity
Plan.
Except where we state otherwise, you should assume the following when analyzing
information contained in this prospectus:
- a 56,000-for-1 stock split of our common stock will be completed prior to
the completion of this offering; and
- the underwriters will not exercise their option to purchase additional
shares in this offering.
5
SUMMARY FINANCIAL DATA
The tables below set forth summary financial data for the years ended
December 31, 1997, 1998, 1999, 2000 and 2001.
- We are an S corporation for income tax purposes, and, as a consequence,
we paid no federal income tax or certain state income taxes. The pro
forma per share amounts set forth below reflect a pro forma tax provision
per share as if we had been a C corporation during such periods.
- Adjusted pro forma net income per share data set forth below assumes that
we were a C corporation during the periods and gives effect to the
reduction in interest expense associated with the approximately $14.4
million of debt that we expect to repay with the proceeds of the
offering, net of the related tax effect. This calculation is based on the
11.06 million weighted average shares outstanding as of December 31, 2001
plus the approximately 1.1 million shares required to be sold to retire
our debt.
- The pro forma as adjusted balance sheet data set forth below gives effect
to (1) an assumed distribution of approximately $3.6 million of
undistributed S corporation earnings to our current stockholders and a
former stockholder, (2) the recognition of deferred income taxes of
$216,000 as a result of the revocation of our S corporation status and
(3) the offering and the application of the net proceeds assuming an
initial public offering price of $13.00 per share.
The data presented below should be read in conjunction with the section
entitled "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and with the financial statements and related notes
included elsewhere in this prospectus.
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FOR THE YEAR ENDED DECEMBER 31,
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1997 1998 1999 2000 2001
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(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Total net sales.......................................... $4,793 $8,900 $15,651 $22,278 $88,095
Cost of goods sold....................................... 3,921 6,694 11,551 16,968 72,015
Gross profit............................................. 872 2,206 4,100 5,310 16,080
Selling, general and administrative expenses............. 787 1,569 3,128 4,424 8,485
Income from operations................................... 85 637 972 886 7,595
Other income............................................. -- -- 58 46 56
Interest expense......................................... 241 315 232 461 603
Net income (loss)........................................ $ (156) $ 322 $ 798 $ 471 $ 7,048
Net income (loss) per share -- basic and diluted......... $(0.01) $ 0.03 $ 0.07 $ 0.04 $ 0.64
Pro forma net income (loss) per share -- basic and
diluted................................................ $(0.01) $ 0.02 $ 0.04 $ 0.02 $ 0.39
Weighted average shares outstanding -- basic and
diluted................................................ 11,200 11,200 11,200 11,200 11,060
OTHER DATA:
Adjusted pro forma net income per share -- basic and
diluted................................................ $ 0.62
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AS OF DECEMBER 31, 2001
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PRO FORMA
ACTUAL AS ADJUSTED
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(IN THOUSANDS)
BALANCE SHEET DATA:
Cash........................................................ $ 389 $21,760
Accounts receivable......................................... 10,875 10,875
Inventories................................................. 19,840 19,840
Total assets................................................ 37,980 58,531
Long-term liabilities....................................... 15,824 1,414
Total stockholders' equity.................................. 3,583 34,987
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RISK FACTORS
Investing in our common stock involves a high degree of risk. You should
carefully consider the following risk factors and all other information
contained in this prospectus before purchasing our common stock. If any of the
following risks actually occurs, we may not be able to conduct our business as
currently planned, and our financial condition and operating results could be
seriously harmed. In that case, the market price of our common stock could
decline, and you could lose all or part of your investment. See "Forward-Looking
Statements."
RISKS RELATED TO OUR BUSINESS
WE HAVE ONLY RECENTLY BECOME PROFITABLE, AND WE MAY NOT BE ABLE TO MAINTAIN
PROFITABILITY.
Although we began operations in 1993, we did not become profitable until
1998. We anticipate incurring increased operating expenses, and, as a result, we
will need to generate higher revenues to remain profitable. We may be unable to
generate higher revenues, or, even if we are able to do so, we cannot be certain
that we will be able to maintain profitability.
OUR RAPID REVENUE GROWTH HAS BEEN DUE IN PART TO OUR RECENT ENTRY INTO THE
RESIDENTIAL CONSUMER MARKET, AND, AS A RESULT, IT MAY BE DIFFICULT TO EVALUATE
OUR BUSINESS AND PROSPECTS.
In June 2000, we began selling our products in the residential consumer
market through national retailers, primarily The Home Depot, which has accounted
for much of our rapid revenue growth. Because we have a short operating history
in the residential consumer market, you may have limited information about us
with which to evaluate our business, strategies, performance and prospects or an
investment in our common stock.
WE DEPEND ON A LIMITED NUMBER OF LARGE CUSTOMERS FOR A SIGNIFICANT PORTION OF
OUR NET SALES, AND, THEREFORE, SIGNIFICANT DECLINES IN THE LEVEL OF PURCHASES
BY, OR OUR INABILITY TO COLLECT ACCOUNTS RECEIVABLE FROM, ONE OR MORE OF THESE
CUSTOMERS COULD HARM OUR BUSINESS AND RESULTS OF OPERATIONS.
We depend on a limited number of large customers for a significant portion
of our net sales. In 1998 and 1999, two customers accounted for approximately
30% and 22% of our net sales. The Home Depot accounted for approximately 22% of
our net sales for 2000 and approximately 53% of our net sales for 2001. We
typically sell on a purchase order basis, and our customers could discontinue
carrying our products at any time. The loss of any one of our large customers or
a reduction in their orders could result in lower than expected sales and cause
our stock price to decline. Additionally, although we have not to date
experienced any failure to collect accounts receivable from our large customers,
an adverse change in the financial condition of any of these customers could
make it difficult for us to collect our accounts receivable from these customers
at all or on a timely basis, which could harm our business and results of
operations.
IF OUR COMPACT FLUORESCENT LAMPS DO NOT QUALIFY FOR ENERGY STAR, SALES OF OUR
COMPACT FLUORESCENT LAMPS COULD DECLINE.
We participate in the Department of Energy's ENERGY STAR Program, a
voluntary partnership pursuant to which our products have to meet requirements
established by the Department of Energy in order to be qualified to bear the
ENERGY STAR certification mark. We believe that ENERGY STAR certification for
our residential consumer products is essential to our success in that market.
New, more demanding ENERGY STAR certification standards for compact fluorescent
lamps were adopted by the Department of Energy during the fourth quarter of
2001, and ENERGY STAR partners must comply with these new requirements by July
2002. We are in the process of having our products tested under the new
standards. While testing is not complete, based on preliminary results, we
believe that products representing the majority of our sales to the residential
consumer market will meet the new certification standards without the need for
modification. Other products will need to be modified to meet the new standards.
Should our residential consumer products fail to meet these new requirements,
sales of our compact fluorescent lamps could decline in this market. We cannot
assure you that our products that were previously ENERGY STAR certified will
7
continue to qualify for ENERGY STAR certification, or that any of our other
products will qualify for ENERGY STAR certification, in the future. If this
occurs, in addition to losing sales in the residential consumer market, we may
not be successful in implementing our strategy of expanding and diversifying our
retail presence into mass merchants and supermarkets.
THE FAILURE OF RESIDENTIAL CONSUMERS TO REALIZE THE BENEFITS OF COMPACT
FLUORESCENT LIGHTING MAY PREVENT US FROM INCREASING OUR SALES.
Most lamps sold in the residential consumer market are incandescent.
Although compact fluorescent lighting is more energy efficient than incandescent
lighting, the sales price of a compact fluorescent lamp is significantly higher
than a comparable incandescent lamp. If residential consumers fail to recognize
the long-term cost benefits associated with compact fluorescent lighting and
choose light bulbs solely on the basis of the sales price, we may be unable to
increase our sales. Additionally, because of the higher initial price per bulb,
economic downturns or recessions might cause consumers of compact fluorescent
lighting products to purchase incandescent lighting products.
Actual and perceived performance problems with compact fluorescent lighting
products may adversely affect consumers' acceptance of our products. For
instance, voltage fluctuations can shorten the life of a non-dimmable compact
fluorescent ballast, including the ballasts in our non-dimmable products.
Compact fluorescent lamps sold by certain other suppliers are not illuminated,
or "burned-in," prior to sale and may require a "break-in" period before they
reach their optimal light output, and some compact fluorescent lamps sold by
other suppliers may interfere with the operation of other electrical appliances
like televisions. If consumers experience any of these problems, they may
develop a negative perception of all compact fluorescent lighting products,
including our products, which may prevent us from increasing our sales.
IF ELECTRICITY PRICES DECREASE, DEMAND FOR OUR PRODUCTS MAY SUFFER.
The cost savings that result from using our products are directly related
to the retail price of electricity. In the past several years, electricity
prices have increased in many areas of the United States. Recently, prices of
electricity have stabilized and even declined in some markets. If electricity
prices decline or remain relatively low, demand for our products may suffer.
IF LARGE, DIVERSIFIED LIGHTING COMPANIES DECIDE TO INCREASE THEIR PRESENCE IN
THE COMPACT FLUORESCENT LIGHTING INDUSTRY, WE MAY BE UNABLE TO COMPETE
EFFECTIVELY.
General Electric Corp., Philips Electronics N.V. and the Osram Sylvania
division of Siemens A.G. are our principal competitors. These larger companies
have significantly greater resources then we do, and, if any one of them decides
to increase its presence in our markets, we may be unable to compete effectively
with such competitor. These companies are much larger than us and have a number
of significant advantages over us, including:
- greater financial, technical, marketing and manufacturing resources;
- preferred vendor status with our existing and potential customer base;
and
- larger customer bases.
Increased competition with these companies could prevent the institution of
price increases or could require price reductions or increased spending on
research and development and marketing and sales, which could adversely affect
our results of operations.
8
OUR ORIGINAL EQUIPMENT MANUFACTURER CUSTOMERS, WHO ARE ALSO OUR COMPETITORS,
MAY EXPAND THEIR OWN PRODUCTION CAPABILITIES OR USE OF ALTERNATIVE SOURCES OF
SUPPLY, WHICH COULD CAUSE A DECLINE IN OUR SALES AND AN INCREASE IN THE AMOUNT
OF COMPETITION THAT WE FACE.
Our competitors in the compact fluorescent lighting industry include some
customers for whom we supply products. Our original equipment manufacturer
customers may expand their own production capabilities or use of alternative
sources of supply and stop buying from us. This would not only cause our sales
to decline but would also increase the amount of competition that we face.
WE DEPEND ON ELLIS YAN, AND THE LOSS OF HIS SERVICES MAY HAVE A MATERIAL
ADVERSE EFFECT ON OUR BUSINESS AND PROSPECTS, AS WELL AS OUR RELATIONSHIP WITH
OUR PRINCIPAL SUPPLIERS.
We depend a great deal on our Chairman and Chief Executive Officer, Ellis
Yan. Mr. Yan owns a majority of our shares and is also the majority owner of
Shanghai Zhen Xin Electronic Engineering Co., Ltd. and Shanghai Jensing Electron
Electrical Equipment Co., Ltd., which manufacture almost all of our products.
These Chinese companies, which were formed by a joint venture between Mr. Yan
and an entity indirectly controlled by a local township in Shanghai, China,
share the same facilities, assets and personnel and essentially operate as the
same entity but are legally distinct and have operating lives of different
durations in order to continuously enjoy certain tax benefits in China. We
caution you not to evaluate our arrangements with our suppliers solely on the
basis of the rights that will be provided to us under our manufacturing and
supply agreement. Both of these companies operate under the direction of Mr.
Yan's brother and other members of his immediate family residing in China, and
it is those relationships that have allowed us to develop an effective
collaboration with our suppliers. We think the manufacturing capabilities and
ability to respond quickly to customer requests that our relationship with our
Chinese suppliers has provided to us is critical to our success. If Mr. Yan left
our company, our relationship with our principal suppliers would be adversely
affected. We do not have an employment agreement with Mr. Yan, and he is under
no obligation to work for us for any specified period.
OUR CHAIRMAN AND CHIEF EXECUTIVE OFFICER, WHO IS ALSO OUR MAJORITY STOCKHOLDER,
IS THE MAJORITY OWNER OF OUR PRINCIPAL SUPPLIERS, WHICH WILL SUBJECT US TO
CONFLICTS OF INTEREST.
So long as Mr. Yan continues to control us and our principal suppliers, we
will be subject to conflicts of interest when dealing with these suppliers, and
Mr. Yan may influence certain decisions on behalf of our principal suppliers
that may be disadvantageous to us.
WE RELY PRIMARILY ON TWO RELATED SUPPLIERS TO MANUFACTURE AND SUPPLY OUR
PRODUCTS, AND, AS A RESULT, ANY INTERRUPTION OR DELAY IN THAT SUPPLY COULD
IMPAIR OUR ABILITY TO MEET CUSTOMER DEMAND.
We have elected not to use other suppliers, and we rely on our Chinese
suppliers to make almost all of our products. As a result, any significant
accidents, labor disputes, fires, severe weather, floods or other difficulties
encountered by our principal suppliers could result in product defects,
production delays, cost overruns or the inability to fulfill orders on a timely
basis. Any interruption or delay in the supply of our products from our current
principal suppliers or our inability to obtain our products from alternate
sources at acceptable quality and price levels and within a reasonable amount of
time would substantially impair our ability to meet scheduled product deliveries
to our customers and could cause our customers to cancel orders, both of which
could have a material adverse effect on our business and results of operations.
IF TAX BENEFITS AVAILABLE TO OUR SUPPLIERS ARE REDUCED OR REPEALED, THE COST OF
MANUFACTURING OUR PRODUCTS COULD INCREASE.
Because Ellis Yan owns at least a majority interest in our principal
suppliers, they enjoy tax benefits in China that are generally available to
foreign investment enterprises. However, these tax benefits may be reduced or
repealed at any time. Any such reduction or repeal could cause our principal
suppliers to increase the price at which they provide products to us, which may
have a material adverse effect on our business and results of operations.
9
CHINA'S LEGAL SYSTEM AND APPLICATION OF LAWS MAY PROHIBIT THE ENFORCEABILITY OF
OUR MANUFACTURING AND SUPPLY AND TECHNOLOGY LICENSE AGREEMENTS.
China has a civil law legal system. Decided court cases do not have a
binding legal effect on future decisions. Since the late 1970's, many new laws
and regulations covering general economic matters have been promulgated in
China. Despite this activity to develop the legal system, China's system of laws
is not yet complete, and, in the event we are unable to enforce our contractual
arbitration rights, it may be difficult to enforce our other contractual rights
in China, including those set forth in the manufacturing and supply and
technology license agreements that we entered into with our suppliers. Even
where adequate law exists in China, enforcement of contracts based on existing
law may be uncertain and sporadic, and it may be difficult to obtain swift and
equitable enforcement. Additionally, there is no international treaty governing,
nor is there an acknowledgement of recognition regarding, enforcement of
judgments or jurisdiction between the United States and China. Our two principal
suppliers are joint venture companies incorporated in China with limited
liability. All of their supervisors and executive officers reside within China,
and all the assets of the suppliers and such persons are located in China.
Therefore, due to the lack of United States' jurisdiction in China, we may not
be able to bring legal actions or enforce judgments against our current
principal suppliers or any future suppliers located in China. In the event of a
dispute with our principal suppliers, we could be precluded from relief,
including damages and equitable remedies, which could have a material adverse
effect on our business and operations.
OBTAINING OUR PRODUCTS SOLELY FROM FOREIGN SUPPLIERS EXPOSES US TO INCREASED
RISKS INHERENT IN FOREIGN MANUFACTURING.
Almost all of our products are manufactured in China by two related
suppliers. Because of this, we are subject to numerous risks inherent in foreign
manufacturing that could materially impact our business and results of
operations, including the following:
- economic or political instability;
- fluctuations in currency exchange rates;
- transportation delays and interruptions;
- restrictive actions by foreign governments;
- difficulty in protecting our intellectual property;
- the laws and policies of the United States adversely affecting the
importation of goods (including duties, quotas and taxes); and
- trade and foreign tax laws.
In particular, our Chinese suppliers may be adversely affected by changes
in the laws and regulations of China, such as those relating to taxation, import
and export tariffs, environmental regulations, land use rights, property and
other matters. These changes could interrupt our suppliers' business, which
could interrupt the manufacturing of our products and delay delivery of our
product to our customers, or increase our suppliers' costs, which could cause
our suppliers to increase the price at which they provide products to us.
CHANGES IN CHINA'S ECONOMIC POLICIES COULD HARM OUR PRINCIPAL SUPPLIERS, WHICH
COULD INCREASE THE MANUFACTURING COSTS OF OUR PRODUCTS.
In the past, the economy of China has been a planned economy subject to
governmental plans and quotas. Since the late 1970's, China's government has
been reforming its economic and political systems, including encouraging private
economic activity and greater economic decentralization. Reforms of this kind
have resulted in significant growth and social change. China's policies for
economic reforms may not be consistent or effective, and our principal suppliers
may be adversely affected by changes in the political, economic or social
conditions in China. As a result of such changes, our suppliers may increase the
price at which they provide products to us.
10
POLITICAL TENSIONS BETWEEN THE UNITED STATES AND CHINA MAY POTENTIALLY AFFECT
OUR ABILITY TO PROCURE PRODUCTS FROM CHINA.
Although significant economic relations have been established during recent
years between the United States and China, there has been, from time to time,
political tensions between the two nations. Political relations between the
United States and China became strained by the mid-air collision between a
United States surveillance aircraft and a Chinese military plane in April 2001
and the United States' sale of arms to Taiwan. Future controversies may arise
that again threaten the status quo. Any such controversies could adversely
affect our ability to procure products from China, which would impair our
ability to supply products in a cost-effective manner.
IF WE FAIL TO MANAGE OUR GROWTH, OUR SALES AND EARNINGS COULD BE HURT.
Over the past few years, we have experienced rapid growth, which has
strained our physical and personnel resources. Our business strategy is to
continue to expand our operations, which will further strain our management,
operational and financial resources. If we make mistakes in deploying our
financial or operational resources or fail to hire the additional qualified
personnel necessary to support higher levels of business, our sales and earnings
could be hurt.
WE DEPEND ON RETAILERS AND DISTRIBUTORS FOR A SIGNIFICANT PORTION OF OUR SALES,
AND OUR SALES AND RESULTS OF OPERATIONS MAY BE ADVERSELY AFFECTED BY THEIR
ACTIONS.
Retailers and distributors compete in a volatile industry that is subject
to rapid change, consolidation, financial difficulty and increasing competition
from new distribution channels. Due to increased competition for limited shelf
space, retailers and distributors are increasingly in a better position to
negotiate favorable terms of sale, including price discounts and product return
policies. We may not be able to increase or sustain our amount of retail shelf
space or promotional resources or offer retailers price discounts, and, as a
result, our sales and results of operations may be adversely affected.
Additionally, economic downturns or recessions could force retailers to
negotiate better terms of sale, which we may be unable to accept. Retailers may
give higher priority to products other than ours, thus reducing their efforts to
sell our products.
INCENTIVES OFFERED BY UTILITY COMPANIES TO CONSUMERS FOR PURCHASING ENERGY
EFFICIENT LIGHTING PRODUCTS MAY BE DECREASED OR DISCONTINUED, WHICH COULD
REDUCE OUR SALES.
Some utility companies have implemented programs in which consumers are
given incentives to purchase energy efficient lighting products. These
incentives come in a variety of different forms, such as coupons that lower the
price of the product or rebates that are either sent to the purchaser or
credited toward the purchaser's utility bill. Currently, our products qualify
for a number of such programs. However, if these programs are decreased or
discontinued by these utility companies or if our products no longer qualify for
such programs, our sales could be reduced.
OUR QUARTERLY FINANCIAL RESULTS MAY FLUCTUATE SIGNIFICANTLY, MAKING FINANCIAL
FORECASTING DIFFICULT AND MAKING OUR STOCK PRICE VOLATILE.
Our quarterly results of operations are difficult to predict and may
fluctuate significantly from quarter to quarter. In some quarters, our operating
results may fall below the expectations of public market analysts and investors,
which could cause the price of our stock to decline. Our quarterly operating
results are difficult to forecast for many reasons, some of which are outside
our control, such as:
- the level of product, price and retailer competition;
- size and timing of product orders and shipments, particularly by
significant customers such as The Home Depot;
- changes in our overall product mix;
- timing of incentives offered by utility companies;
11
- our ability to develop new products and product enhancements;
- electricity prices;
- economic conditions in general;
- capacity and supply constraints or difficulties; and
- timing of marketing programs and those of our competitors.
For example, we had a significant increase in sales in the third quarter of 2001
because of a large volume of shipments to The Home Depot in connection with a
promotional campaign that The Home Depot was conducting. Accordingly, our sales
in the fourth quarter of 2001 were lower than our sales in the third quarter of
2001. You should not rely on historical results as an indication of our future
performance.
OUR FAILURE TO ACCURATELY FORECAST SALES COULD CAUSE US TO INCUR ADDITIONAL
COSTS, HAVE EXCESS INVENTORIES OR HAVE INSUFFICIENT QUANTITIES OF OUR PRODUCTS,
ANY OF WHICH COULD HARM OUR RESULTS OF OPERATIONS.
We use rolling forecasts based on anticipated product orders to determine
our product requirements from our principal suppliers. It is very important that
we accurately predict the demand for our products. If we overestimate our
product requirements, we may have excess inventory, which would increase our
costs. If we underestimate our product requirements, we may have inadequate
inventory, which could interrupt the supply of our products and delay delivery
of our products to our customers. Accordingly, if our sales do not meet our
expectations, our results of operations are likely to be negatively and
disproportionately affected, which may make our stock price fall dramatically.
Any of these occurrences could harm our results of operations.
THE COMPACT FLUORESCENT LIGHTING INDUSTRY IS RAPIDLY EVOLVING, AND, IF WE DO
NOT DEVELOP AND INTRODUCE NEW PRODUCTS IN A TIMELY MANNER, WE MAY NOT BE ABLE
TO MEET THE NEEDS OF OUR CUSTOMERS, AND OUR SALES MAY DECLINE.
Our success depends on introducing distinctive new products that anticipate
industry trends and changing consumer demands. If we do not introduce new
products, misinterpret consumer preferences or fail to respond to changes in the
consumer lighting industry, consumer demand for our products could suffer. In
addition, our competitors may introduce superior designs or products,
undermining our image and our products' desirability. Any of these events could
cause our sales to decline.
OUR MANAGEMENT HAS NO EXPERIENCE OPERATING A PUBLIC COMPANY.
No member of our current management team has ever operated a public
company. The members of our management team must develop the skills and
knowledge required to operate effectively as a public company. We cannot assure
you that they will be able to do so. If they are not successful in developing
these skills or if we do not attract and retain individuals who have significant
experience operating a public company, we may not be able to implement our
business plan, and our business could be materially and adversely affected.
THERE ARE FEW INTELLECTUAL PROPERTY BARRIERS TO ENTERING THE COMPACT
FLUORESCENT LIGHTING INDUSTRY, WHICH COULD INCREASE OUR COMPETITION.
Although we utilize patents and trade secrets to protect the confidential
and proprietary information used in the design and manufacture of our lighting
products, much of the knowledge and technology used in fluorescent lighting is
publicly available. Therefore, we could face additional competition in the
compact fluorescent lighting industry, and our results of operations may suffer.
TECHNOLOGICAL ADVANCES IN THE ENERGY EFFICIENT LIGHTING INDUSTRY COULD RENDER
OUR TECHNOLOGY OBSOLETE.
The energy efficient lighting industry recently has been subject to rapid
technological change. Currently, we focus on the production of compact
fluorescent lighting products and accessories, but our success will depend on
our ability to adapt and respond to technological change. If new technologies
and products emerge and we are unable to keep pace, our existing products could
become obsolete, and our sales may suffer.
12
WE DEPEND ON INDEPENDENT SALES AGENCIES FOR A SUBSTANTIAL PORTION OF OUR SALES,
AND ANY LOSS OF SALES AGENCIES MAY REDUCE SALES.
We sell a substantial portion of our products through independent, third
party sales agencies. These independent, third party sales agencies do not
purchase our products but identify potential customers and arrange sales of our
products to these customers. During 2001, substantially all of our products were
sold through sales agencies. We generally do not have long-term arrangements
with these sales agencies. Any sales agency may stop selling our products and
begin selling those of a competitor. The loss of one or more significant sales
agencies without successfully replacing them would reduce our sales and may
damage customer relationships.
WE MAY EXPERIENCE DIFFICULTY ASSIMILATING THE OPERATIONS OR PERSONNEL OF
COMPANIES THAT WE ACQUIRE, WHICH COULD THREATEN THE BENEFITS WE SEEK TO ACHIEVE
THROUGH ACQUISITIONS AND OUR FUTURE GROWTH.
Although acquisitions of complementary businesses and technologies are part
of our growth strategy, we have limited acquisition experience. We may not be
able to successfully complete any acquisitions. We recently acquired
substantially all of the assets of enerSave data systems, Inc. and JRS
Technology, Inc. EnerSave data systems designed and developed energy management
systems and the JRS Technology assets were used in the design and development of
commercial grade electronic ballasts. We could have difficulty assimilating or
retaining enerSave data systems', or any other acquired companies', personnel or
integrating their operations or services into our organization, which could
disrupt our ongoing business, distract our management and employees and reduce
or eliminate the financial or strategic benefits that we sought to achieve
through the acquisition and threaten our future growth. Moreover, we may need to
raise additional funds through public or private debt or equity financings to
acquire any businesses, which may result in dilution for stockholders and the
incurrence of indebtedness.
RECENT TERRORIST ATTACKS ON THE UNITED STATES MAY NEGATIVELY AFFECT OUR
BUSINESS.
The September 11, 2001 terrorist attacks have led to a decline in travel
due to, among other things, the public's fears regarding additional acts of
terrorism. This decline in travel has had a negative effect on the hospitality
industry. Accordingly, our sales to hotels have declined, and may continue to
decline, because members of the hospitality industry have reduced planned
expenditures like replacing traditional incandescent lighting with energy
efficient compact fluorescent lamps.
RISKS RELATED TO THIS OFFERING
OUR STOCK PRICE MAY BE EXTREMELY VOLATILE, AND YOU MAY NOT BE ABLE TO RESELL
YOUR SHARES AT OR ABOVE THE INITIAL PUBLIC OFFERING PRICE.
Prior to this offering, there has been no public market for shares of our
common stock. An active public trading market for our common stock may not
develop or, if it develops, may not be maintained after this offering, and the
market price could fall below the initial public offering price. As a result,
you could lose all or part of your investment. We and the representatives of the
underwriters will negotiate to determine the initial public offering price. The
initial public offering price may not be related to the price at which the
common stock will trade following this offering.
OUR DIRECTORS AND EXECUTIVE OFFICERS, WHO ARE ALSO OUR PRINCIPAL STOCKHOLDERS,
WILL HAVE SUBSTANTIAL CONTROL OVER OUR AFFAIRS AND MAY MAKE DECISIONS THAT NOT
ALL STOCKHOLDERS SUPPORT.
Following this offering, certain of our directors and executive officers,
who are also our principal stockholders, will beneficially own approximately 78%
of our outstanding common stock. These stockholders acting together will have
the ability to control most matters requiring approval by our stockholders.
These matters include the election and removal of directors, controlling the
management and affairs of the company and the approval of any merger,
consolidation or sale of all or substantially all of our assets. In addition,
they may dictate the management of our business and affairs. This concentration
of ownership could have the
13
effect of delaying, deferring or preventing a change in control or impeding a
merger or consolidation, takeover or other business combination of which you
might otherwise approve.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS AND DELAWARE LAW MAY MAKE IT
DIFFICULT FOR OUR STOCKHOLDERS TO REPLACE OR REMOVE CURRENT MANAGEMENT AND
COULD DETER OR DELAY THIRD PARTIES FROM ACQUIRING US, WHICH MAY ADVERSELY
AFFECT THE MARKETABILITY AND MARKET PRICE OF OUR COMMON STOCK.
Provisions in our certificate of incorporation and bylaws and in the
Delaware corporate law may make it difficult for stockholders to change the
composition of the board of directors in any one year and thus may make it
difficult to change the composition of management. In addition, the same
provisions may make it difficult and expensive for a third party to pursue a
tender offer, change in control or takeover attempt that is opposed by our
management and board of directors. Public stockholders who might desire to
participate in such a transaction may not have an opportunity to do so. These
anti-takeover provisions could substantially impede the ability of public
stockholders to benefit from a change in control or change our management and
board of directors and may adversely affect the marketability and market price
of our common stock.
WE WILL HAVE BROAD DISCRETION AS TO THE USE OF PROCEEDS OF THIS OFFERING, WHICH
WE MAY NOT USE EFFECTIVELY.
We expect to use approximately $14.4 million of the net proceeds of this
offering to repay indebtedness and approximately $1.0 million of the net
proceeds to complete the expansion of our warehouse facilities, including
related capital expenditures. We also intend to use a portion of the proceeds to
make distributions of substantially all of our undistributed S corporation
earnings to our current stockholders and a former stockholder in connection with
revocation of our S corporation status. As of December 31, 2001, we had
approximately $3.6 million in undistributed S corporation earnings. In January
2002, we distributed approximately $581,000 of this amount to our current
stockholders and a former stockholder. The actual amount of the distribution
will depend on the amount of our income prior to completion of the offering. Our
management has broad discretion over the allocation of the balance of the net
proceeds and may use the proceeds in ways with which you and other stockholders
may disagree. In addition, our management may not be able to invest the balance
of the net proceeds effectively until they are put to use.
YOU WILL SUFFER SUBSTANTIAL DILUTION OF $10.62 PER SHARE IN THE NET TANGIBLE
BOOK VALUE OF THE COMMON STOCK YOU PURCHASE.
The initial public offering price of our common stock will be substantially
higher than the book value per share of our common stock. Based on an assumed
initial public offering price of $13.00 per share, if you purchase shares of
common stock in this offering, you will suffer immediate and substantial
dilution of $10.62 per share in the net tangible book value of the common stock.
IF OUR STOCKHOLDERS SELL SUBSTANTIAL AMOUNTS OF OUR COMMON STOCK FOLLOWING THIS
OFFERING, THE MARKET PRICE OF OUR COMMON STOCK MAY DECLINE.
Sales of shares of our common stock in the public market following this
offering or the perception that these sales may occur could cause the market
price of our common stock to decline. After this offering, we will have
13,640,000 shares of common stock outstanding. The number of shares of common
stock available for sale in the public market is limited by restrictions under
federal securities law and under lock-up agreements that all of our directors,
executive officers and stockholders have entered into with the underwriters and
with us. Those lock-up agreements restrict these people from selling, pledging
or otherwise disposing of their shares for a period of 180 days after the date
of this prospectus without the prior written consent of McDonald Investments
Inc. However, McDonald Investments Inc. may, in its sole discretion, release all
or any portion of the common stock from the restrictions of the lock-up
agreements. These sales might make it difficult or impossible for us to sell
additional securities when we need to raise capital. All of the shares sold in
this offering will be freely tradeable without restrictions or further
registration under the Securities Act, except for any shares purchased by our
affiliates as defined in Rule 144 of the Securities Act.
14
The remaining 10,640,000 shares outstanding after this offering will be
available for sale into the public market at various times after the expiration
of the initial 180-day lock-up period.
In addition, under a registration rights agreement, beginning 180 days
following the effective date of the registration statement of which this
prospectus is a part, all of our current stockholders will have "piggyback"
registration rights in connection with future offerings of our common stock.
"Piggyback" registration rights require us to provide notice to the relevant
holders of our stock if we propose to register any of our securities under the
Securities Act and grant such holders the right to include their shares in our
registration statement.
15
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. We have attempted to
identify forward-looking statements by using such words as "anticipates,"
"believes," "can," "continue," "could," "estimates," "expects," "intends,"
"may," "plans," "potential," "should" or "will" or other similar expressions.
These forward-looking statements, which are subject to risks and uncertainties,
and assumptions about us, may include, among other things, projections of our
future financial performance, our anticipated growth strategies and anticipated
trends in our business. These statements are only predictions based on our
current expectations and projections about future events. Because these
forward-looking statements involve risks and uncertainties, you should be aware
that there are important factors that could cause our actual results, level of
activity, performance or achievements to differ materially from the results,
level of activity, performance or achievements expressed or implied by these
forward-looking statements, including those factors outlined under "Risk
Factors" and elsewhere in this prospectus.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee our future results, level of
activity, performance or achievement. We disclaim any obligation to update any
of the forward-looking statements after the date of this prospectus or to
conform these statements to actual results. You should not place undue reliance
on forward-looking statements contained in this prospectus.
16
USE OF PROCEEDS
We estimate that our net proceeds from our sale of the 3,000,000 shares of
common stock we are offering will be approximately $34.8 million, or
approximately $40.2 million if the underwriters' over-allotment option is
exercised in full, assuming an initial public offering price of $13.00 per share
and after deducting estimated underwriting discounts and commissions and the
estimated offering expenses payable by us. Estimated offering expenses of
approximately $1.5 million include approximately $1.0 million in expenses that
have been previously paid and capitalized as an asset at December 31, 2001,
which amount will be offset against equity upon the successful completion of
this offering.
We presently intend to use a portion of the proceeds of this offering for
the following purposes:
- approximately $14.4 million to repay indebtedness, including
approximately $13.0 million outstanding as of December 31, 2001 under our
credit facility, approximately $931,000 owed as of December 31, 2001 to
our principal suppliers, and approximately $475,000 outstanding as of
December 31, 2001 under our State of Ohio 166 Program loan; and
- approximately $1.0 million to complete the expansion of our warehouse
facilities, including related capital expenditures.
We will also use a portion of the net proceeds for distributions to our
current stockholders and a former stockholder of substantially all of our
undistributed S corporation earnings for tax purposes through the date of
revocation of our S corporation status. As of December 31, 2001, the amount of
these undistributed S corporation earnings was $3.6 million. In January 2002, we
distributed approximately $581,000 of this amount to our current stockholders
and a former stockholder. The actual amount of the distribution will depend on
the amount of our income prior to completion of the offering.
We borrowed the money that we will repay with a portion of the net proceeds
from this offering under a revolving credit facility that we initially obtained
on August 10, 2001. Under our credit facility, we may choose an interest rate of
either the prime rate as announced by the lender or 3% above the prevailing
London Interbank Offer Rate (LIBOR). The credit facility terminates on July 31,
2003. As of December 31, 2001, we had $13.0 million of prime rate borrowings
bearing interest at 4.75%. We borrowed approximately $12.3 million under our
credit facility primarily to provide working capital to support our operations
as well as to begin the expansion of our warehouse facilities, refinance our
prior line of credit and repay a mortgage note. We borrowed approximately
$750,000 under our credit facility to fund our recent acquisitions of
substantially all of the assets of enerSave data systems, Inc. and JRS
Technology, Inc., each for a purchase price of $500,000. We are obligated to pay
$250,000 of the purchase price for the enerSave data systems acquisition
quarterly in four equal payments of $62,500 without interest thereon, and we
made our first payment on January 21, 2002. EnerSave data systems designed and
developed energy management systems and the JRS Technology assets were used in
the design and development of commercial grade electronic ballasts.
Borrowings under our State of Ohio 166 Program loan bear interest at 5.25%
and are due in December 2015. Amounts owed to our principal suppliers bear
interest at 6.0% and are due in January 2009.
We intend to use the remainder of the net proceeds of this offering for
working capital and general corporate purposes. Accordingly, we will retain
broad discretion in the allocation of the net proceeds of this offering.
Additionally, we may use a portion of the net proceeds to pursue other possible
acquisitions of businesses, technologies or products complementary to our
business. We currently have no commitments or agreements to make any
acquisitions, and we cannot assure you that we will make any acquisitions in the
future. Pending our use of the net proceeds, we intend to invest the net
proceeds in short-term, interest-bearing investment-grade or government
securities.
DIVIDEND POLICY
We currently intend to retain any future earnings to support the
development and expansion of our business and do not anticipate paying cash
dividends in the foreseeable future other than the dividends we
17
intend to pay as discussed below under "S Corporation Status." Our payment of
any future dividends will be at the discretion of our board of directors after
taking into account various factors, including our financial condition,
operating results, cash needs, growth plans and the terms of any credit
agreements that we may be a party to at the time. Under our existing credit
facility, we may not declare or pay any dividends or make any distributions
other than distributions payable solely in our capital stock if, at the time of
such dividend or distribution, there exists a possible default or default under
the credit facility. In addition, the terms of any future credit agreement may
prevent us from paying any dividends or making any distributions or payments
with respect to our capital stock.
S CORPORATION STATUS
Since our incorporation in 1993, we have been treated for federal and state
income tax purposes as an S corporation under Subchapter S of the Internal
Revenue Code and comparable state laws. As a result, our earnings have been
taxed for federal and state income tax purposes directly to our stockholders
rather than to us. In connection with this offering, we will convert from an S
corporation to be taxed as a C corporation. As a result of the revocation of our
S corporation status, we will record a net deferred tax asset and corresponding
income tax benefit effective upon the revocation date. The amount of the
deferred tax asset would have been approximately $216,000 if the revocation date
had been December 31, 2001. The actual amount will be determined after giving
effect to our operating results through the revocation date.
We expect to distribute a portion of the net proceeds of this offering to
our current S corporation stockholders and a former stockholder, representing
substantially all of our undistributed S corporation earnings for tax purposes
through the date of revocation of S corporation status. As of December 31, 2001,
the amount of these undistributed S corporation earnings was $3.6 million. In
January 2002, we distributed approximately $581,000 of this amount to our
current stockholders and a former stockholder. The actual amount of the
distribution of S corporation earnings will depend on the amount of our income
prior to completion of the offering.
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CAPITALIZATION
The following table sets forth our capitalization as of December 31, 2001:
- on an actual basis; and
- on a pro forma as adjusted basis to reflect our sale of 3,000,000 shares
of common stock at an assumed initial public offering price of $13.00 per
share, after deducting underwriting discounts and commissions and the
estimated offering expenses payable by us, the payment of approximately
$3.6 million of previously undistributed S corporation earnings and the
repayment of approximately $13.5 million of long-term debt and $931,000
of notes payable affiliates.
You should read this table together with "Selected Financial Data,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and our financial statements and related notes included elsewhere in
this prospectus.
[Enlarge/Download Table]
DECEMBER 31, 2001
----------------------------------
PRO FORMA
ACTUAL AS ADJUSTED
----------- ---------------
(IN THOUSANDS, EXCEPT SHARE DATA)
Long-term debt.............................................. $13,479 $ --
Notes payable affiliates.................................... 931 --
Liability under license agreement........................... 1,414 1,414
Stockholders' equity:
Preferred stock, $0.001 par value; no shares authorized,
issued and outstanding, actual; and 5,000,000 shares
authorized, no shares issued and outstanding, as
adjusted............................................... -- --
Common stock, $0.001 par value; 28,000,000 shares
authorized, and 10,640,000 shares issued and
outstanding, actual; and 30,000,000 shares authorized,
13,640,000 shares issued and outstanding, as
adjusted............................................... -- 3
Additional paid-in capital................................ 1 34,984
Retained earnings......................................... 3,582 --
------- --------
Total stockholders' equity............................. 3,583 34,987
------- --------
Total capitalization................................... $19,407 $ 36,401
======= ========
The information regarding the number of shares of common stock to be
outstanding after this offering is based on the number of shares outstanding as
of December 31, 2001 and does not include 2,016,000 shares that may be issued
under our Amended and Restated 2001 Equity Plan.
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DILUTION
Our net tangible book value as of December 31, 2001 was approximately $1.1
million, or $0.10 per share of common stock. Net tangible book value per share
is determined by dividing the amount of our total tangible assets less our total
liabilities by the number of shares of common stock outstanding.
After giving effect to (1) our sale of 3,000,000 shares of common stock at
an assumed initial public offering price of $13.00 per share after deducting
underwriting discounts and commissions and estimated offering expenses payable
by us, (2) an assumed dividend to our current stockholders and a former
stockholder of undistributed S corporation earnings of approximately $3.6
million and (3) the recognition of deferred income taxes of $216,000 as a result
of the revocation of our S corporation status, our adjusted net tangible book
value as of December 31, 2001 would have been $32.5 million, or $2.38 per share.
This amount represents an immediate increase in net tangible book value to our
existing stockholders of $2.28 per share and an immediate dilution to new
investors of $10.62 per share. The following table illustrates this per share
dilution:
[Download Table]
Assumed initial public offering price per share............. $13.00
Net tangible book value per share at December 31, 2001.... $0.10
Increase per share attributable to new investors.......... $2.28
As adjusted net tangible book value per share after this
offering.................................................. $ 2.38
Dilution per share to new investors......................... $10.62
======
If the underwriters' over-allotment option is exercised in full, our as
adjusted net tangible book value at December 31, 2001 would have been
approximately $2.69 per share, representing an immediate increase in net
tangible book value of $2.59 per share to existing stockholders and an immediate
dilution in net tangible book value of $10.31 per share to new investors.
The following table summarizes, on a pro forma basis, as of December 31,
2001 the number of shares of common stock purchased from us, the total
consideration paid to us and the average price per share paid by our existing
stockholders and by new investors. The table assumes that the initial public
offering price will be $13.00 per share.
[Enlarge/Download Table]
AVERAGE
PRICE PER
SHARES PURCHASED TOTAL CONSIDERATION SHARE
-------------------- --------------------- ---------
NUMBER PERCENT AMOUNT PERCENT
---------- ------- ----------- -------
Existing stockholders.................... 10,640,000 78% $ 190 0.0005% $.00002
New investors............................ 3,000,000 22 39,000,000 99.9995 13.00
---------- --- ----------- ------- -------
Total.................................. 13,640,000 100% $39,000,190 100% $ 2.86
========== === =========== ======= =======
20
SELECTED FINANCIAL DATA
The following table presents our selected financial data. The selected
statement of operations data, except for the pro forma information, for each of
the three years in the period ended December 31, 2001 and the balance sheet data
for the years ended December 31, 2000 and 2001 are derived from the audited
financial statements and related notes that appear elsewhere in this document.
The selected statement of operations data, except for the pro forma information
for the year ended December 31, 1998, and the balance sheet data as of December
31, 1998 and 1999 have been derived from audited financial statements and notes
that are not included in this document. The selected financial data presented
below for the year ended December 31, 1997 are derived from our unaudited
financial information, which includes, in the opinion of management, all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of such information for the periods and dates presented.
- We are an S corporation for income tax purposes, and, as a consequence,
we paid no federal income tax or certain state income taxes. The pro
forma per share amounts set forth below reflect a pro forma tax provision
per share as if we had been a C corporation during such periods.
- Adjusted pro forma net income per share data set forth below assumes that
we were a C corporation during the periods and gives effect to the
reduction in interest expense associated with the approximately $14.4
million of debt that we expect to repay with the proceeds of the
offering, net of the related tax effect. This calculation is based on the
11.06 million weighted average shares outstanding as of December 31, 2001
plus the approximately 1.1 million shares required to be sold to retire
our debt.
The data presented below should be read in conjunction with the section
entitled "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and with the financial statements and related notes
included elsewhere in this prospectus.
[Enlarge/Download Table]
FOR THE YEAR ENDED DECEMBER 31,
-----------------------------------------------
1997 1998 1999 2000 2001
------- ------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Total net sales........................................ $ 4,793 $ 8,900 $15,651 $22,278 $88,095
Cost of goods sold..................................... 3,921 6,694 11,551 16,968 72,015
Gross profit........................................... 872 2,206 4,100 5,310 16,080
Selling, general and administrative expenses........... 787 1,569 3,128 4,424 8,485
------- ------- ------- ------- -------
Income from operations................................. 85 637 972 886 7,595
Other income........................................... -- -- 58 46 56
Interest expense....................................... 241 315 232 461 603
------- ------- ------- ------- -------
Net income (loss)...................................... $ (156) $ 322 $ 798 $ 471 $ 7,048
Net income (loss) per share -- basic and diluted....... $ (0.01) $ 0.03 $ 0.07 $ 0.04 $ 0.64
Pro forma net income (loss) per share -- basic and
diluted.............................................. $ (0.01) $ 0.02 $ 0.04 $ 0.02 $ 0.39
Weighted average shares outstanding -- basic and
diluted.............................................. 11,200 11,200 11,200 11,200 11,060
OTHER DATA:
Adjusted pro forma net income per share -- basic and
diluted.............................................. $ 0.62
[Enlarge/Download Table]
AS OF DECEMBER 31,
-----------------------------------------------
1997 1998 1999 2000 2001
------- ------- ------- ------- -------
(IN THOUSANDS)
BALANCE SHEET DATA:
Cash................................................... $ 17 $ 161 $ 91 $ 30 $ 389
Accounts receivable.................................... 504 1,425 2,880 3,421 10,875
Inventories............................................ 352 820 2,761 3,594 19,840
Total assets........................................... 916 2,681 6,052 9,066 37,980
Total current liabilities.............................. 2012 2,524 3,166 3,501 18,573
Long-term liabilities.................................. -- 931 2,967 5,612 15,824
Total stockholders' (deficit) equity................... (1,096) (774) (81) (47) 3,583
21
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
"Selected Financial Data" and our financial statements and related notes
included elsewhere in this prospectus. This discussion contains forward-looking
statements that involve risks and uncertainties, such as statements of our
plans, objectives, expectations and intentions. The cautionary statements made
in this prospectus should be read as applying to all related forward-looking
statements wherever they appear in this prospectus. Our actual results could
differ materially from those anticipated in the forward-looking statements.
Factors that could cause or contribute to these differences include those
discussed in "Risk Factors," as well as those discussed elsewhere. See "Risk
Factors" and "Forward-Looking Statements."
OVERVIEW
We design, develop and market high-quality, energy efficient lighting
products. Since our incorporation in 1993, we have provided energy efficient
lighting products and components to original equipment manufacturers. In 1997,
we began marketing our products under our own name to hotels and other customers
in the commercial and industrial market, and, in June 2000, we entered the
residential consumer market. Since entering the residential consumer market, our
sales to this market have increased to $58.1 million for 2001, representing
65.9% of our net sales. Our net sales have grown to $88.1 million for 2001 from
$3.7 million in 1996.
We purchase almost all of our products from our suppliers in Shanghai,
China. Our cost of sales include the actual cost charged by our Chinese
suppliers plus inbound freight, duty, warehouse labor and overhead charges,
product testing, packaging material and outbound freight.
At the end of the fourth quarter of fiscal 2001, our Chinese suppliers, who
are also our affiliates, agreed upon a retroactive price adjustment of
approximately $1.7 million for certain products that we purchased and sold in
that quarter. This retroactive adjustment decreased our cost of sales by
approximately $760,000 for fiscal 2001, decreased our inventory by approximately
$967,000 at December 31, 2001 and decreased our accounts payable to our Chinese
suppliers by approximately $1.7 million at December 31, 2001. The purpose of
this adjustment was to recognize price adjustments for production efficiencies
in the facilities of our Chinese suppliers that resulted from increased
production volume throughout fiscal 2001. We were able to negotiate this
retroactive price adjustment because of our relationship with our Chinese
affiliates. In the future, our product pricing will be governed under the terms
of our manufacturing and supply agreement.
Since entering the residential consumer market in June 2000, most of our
sales to retailers have been made through a direct import program. Under this
program, the customer accepts delivery of our products at our suppliers'
manufacturing facilities in China, and we have the right to draw upon a letter
of credit provided by the customer at that time. Purchasing on a direct basis
allows the customer to pay a lower unit price, which reduces our gross profit.
We have experienced declining gross margins since we entered the residential
consumer market, both as a result of our participation in the direct import
program and as a result of the lower margin generally associated with sales to
retailers. To date, we have been able to offset these lower gross margins in
part by reducing our selling, general and administrative expenses as a
percentage of net sales. We cannot assure you that we will be able to continue
to control these costs to such an extent. Because retailers often face
significant pricing pressures, we anticipate that the expansion of our business
with retailers will result in pricing pressures and lower gross margins. In
addition to expanding our retail presence, we also intend to focus on further
penetrating the commercial and industrial market, where historically our gross
margins have been higher. Our gross profit in future periods will depend on the
overall mix of our business and will also be affected by the volume of sales
made through direct import programs.
Selling through a direct import program allows us to avoid costs associated
with importing and holding inventory and has resulted in lower levels of
selling, general and administrative expenses than we would incur if all of our
products were sold through warehouse sales. In addition, the use of letters of
credit to support
22
customer purchases enhances our liquidity, since we are able to obtain payment
for our products immediately upon delivery.
Historically, we have not incurred significant research and development
expense because we have been able to conduct most of our research and
development by working with the licensor of certain technology that we use, and
by working with our suppliers and customers to develop or customize products to
meet customer needs. In addition to licensing certain technology to us, from
time to time, this licensor assisted us with the design of new products and/or
product improvements. This licensor no longer provides these research and
development services, and we currently do not conduct any of our research and
development with this licensor. In fiscal 2001, our Chinese suppliers agreed to
share the research and development expense incurred by us for the development of
a commercial grade ballast, and, accordingly, we charged our Chinese suppliers
$196,000 for their share of research and development expense for fiscal 2001. We
anticipate continuing to conduct research and development by working with our
customers and suppliers, but, as we continue to rely more significantly on our
product development group, we expect that our research and development expense
will increase to enable us to continue to design and develop new products. Our
selling, general and administrative expenses include salaries, commissions,
advertising and promotional expenses and travel and entertainment expenses. An
important part of our business strategy is to increase customer acceptance of
energy efficient lighting products, expand and diversify our retail presence and
further penetrate the commercial and industrial market. As a result, we
anticipate incurring additional selling, general and administration expenses to
execute our business strategy. We also anticipate selling, general and
administrative expenses to increase as a result of becoming a public reporting
company. Although we believe that our sales will increase if we successfully
execute our business strategy, our sales may not increase at all or increase
sufficiently to offset these additional expenses.
Our net sales are primarily generated from our sales of energy efficient
lighting products and accessories. From time to time we have also been paid
commissions as a sales agent for certain product sales made by our Chinese
suppliers at our direction that were shipped directly to customers in Asia.
Additionally, we have generated other income primarily in connection with
certain advisory services that we have provided our Chinese suppliers. We sell
our products on a purchase order basis. We usually ship products within two to
seven days of receipt of the purchase order, although, for certain larger
customers, we occasionally receive purchase orders one to two months in advance
of when the products need to be delivered. Our revenue recognition policy is to
recognize revenues when products are shipped or when products are received by
the customer's shipping agent, at which time title transfers to the customer.
Our return policy is to replace, repair or issue credit for products under
warranty. We warrant our products for a minimum of one year. Returns received
during the current period are expensed as received, and a provision is recorded
for future returns based on current shipments.
RESULTS OF OPERATIONS
The following table sets forth our income statement data expressed as a
percentage of total net sales for the periods indicated:
[Enlarge/Download Table]
YEAR ENDED DECEMBER 31,
------------------------
1999 2000 2001
------ ------ ------
Total net sales............................................. 100.0% 100.0% 100.0%
Cost of goods sold.......................................... 73.8 76.2 81.7
----- ----- -----
Gross profit................................................ 26.2 23.8 18.3
Selling, general and administrative expenses................ 20.0 19.8 9.6
Income from operations...................................... 6.2 4.0 8.7
Other income................................................ 0.4 0.2 0.1
Interest expense............................................ (1.5) (2.1) (0.8)
----- ----- -----
Net income.................................................. 5.1% 2.1% 8.0%
===== ===== =====
23
Fiscal Year Ended December 31, 2001 compared to Fiscal Year Ended December 31,
2000
NET SALES. Net sales increased $65.8 million, or 295.1%, to $88.1 million
for fiscal 2001 from $22.3 million for fiscal 2000. Net sales increased
significantly in both the commercial and industrial and the residential consumer
markets as a result of higher demand for our products. Fiscal 2001 included
sales of $46.4 million, or 52.6% of our total sales, to The Home Depot, our
largest customer, compared to sales of $5.0 million, or 22.4% of our total
sales, for fiscal 2000. This increase was primarily due to the fact that we
began selling to this customer in June 2000 and sold approximately $12.8 million
of one of our products to this customer in the third quarter of 2001 in
connection with a promotional campaign that it was conducting. Sales to our
residential consumer market customers, excluding The Home Depot, were $11.7
million for fiscal 2001. We did not begin selling our products to residential
consumer customers other than The Home Depot until February 2001. Sales to our
commercial and industrial customers increased $12.7 million, or 73.4%, to $30.0
million for fiscal 2001 from $17.3 million for fiscal 2000.
GROSS PROFIT. Gross profit increased $10.8 million, or 203.8%, to $16.1
million for fiscal 2001 from $5.3 million for fiscal 2000. Gross margin
decreased to 18.3% for fiscal 2001 from 23.8% for fiscal 2000. This decrease was
primarily due to the increase in sales in the residential consumer market in
fiscal 2001, where we typically realize a lower gross margin on sales than in
the commercial and industrial market.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses increased by $4.1 million, or 91.8%, to $8.5 million for
fiscal 2001 from $4.4 million for fiscal 2000. As a percentage of net sales,
selling, general and administrative expenses decreased to 9.6% for fiscal 2001
from 19.8% for fiscal 2000. The dollar increase was due primarily to an increase
in wages associated with additional employees hired and an increase in sales
commissions as a result of the significant increase in sales. The percentage
decrease was due primarily to the beneficial impact of our increase in overall
sales, as well as an increase in our direct import sales. Royalty expense and
amortization of a license agreement decreased by $47,000, or 11.0%, to $379,000
for fiscal 2001 from $426,000 for fiscal 2000. This decrease resulted from us
entering into a fixed payment agreement with our licensor.
INTEREST EXPENSE. Interest expense increased $142,000, or 30.8%, to
$603,000 for fiscal 2001 from $461,000 for fiscal 2000. The increase was due to
higher borrowing levels for fiscal 2001 compared to fiscal 2000.
NET INCOME. Net income for fiscal 2001 increased $6.5 million to $7.0
million from $471,000 for fiscal 2000. The increase was due primarily to the
significant increase in our sales, a higher portion of which were direct import
program sales, which resulted in lower levels of selling, general and
administrative expenses than we would have recognized if all of our products
were sold through warehouse sales.
PRO FORMA INCOME TAX EXPENSE. We have operated as an S corporation and
have not been subject to federal or state corporate-level income tax in any of
the periods presented. On a pro forma basis, giving effect to the revocation of
our S corporation status, our income tax expense for fiscal 2001 would have been
$2.8 million, which represents an effective tax rate of 39.2%. Our pro forma
income tax expense for fiscal 2000 would have been $194,000, which represents an
effective tax rate of 41.1%. Differences between the statutory rate and our
effective tax rate resulted from the non-deductibility of certain expenses for
income tax purposes.
Fiscal Year Ended December 31, 2000 compared to Fiscal Year Ended December 31,
1999
NET SALES. Net sales increased $6.6 million, or 42.0%, to $22.3 million
for fiscal 2000 from $15.7 million for fiscal 1999. Net sales increased
significantly in both the commercial and industrial and the residential markets
as a result of higher demand for our products. In the second quarter of fiscal
2000, we began to sell our products to The Home Depot, which became our largest
customer and accounted for sales of $5.0 million, or 22.4% of our total sales,
for fiscal 2000. Sales to our commercial and industrial customers increased $1.6
million, or 10.2%, to $17.3 million for fiscal 2000 from $15.7 million for
fiscal 1999.
GROSS PROFIT. Gross profit increased $1.2 million, or 29.3%, to $5.3
million for fiscal 2000 from $4.1 million for fiscal 1999. Gross margin
decreased to 23.8% for fiscal 2000 from 26.2% for fiscal 1999.
24
This decrease was primarily due to the fact that we began selling in the
residential consumer market, where we typically realize a lower gross margin
than in the commercial and industrial market.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses increased by $1.3 million, or 41.9%, to $4.4 million for
fiscal 2000 from $3.1 million for fiscal 1999. As a percentage of net sales,
selling, general and administrative expenses decreased to 19.8% for fiscal 2000
compared to 20.0% for fiscal 1999. The dollar increase was due primarily to
increased wages associated with new employees and increased advertising, travel
and legal expenses we incurred in connection with our initiatives to expand our
sales and increase our customer base and market presence. Royalty expense
increased by $93,000, or 27.9%, to $426,000 for fiscal 2000 from $333,000 for
fiscal 1999 as a result of an increase in the sales of products on which we were
required to pay royalties.
INTEREST EXPENSE. Interest expense increased $229,000, or 98.7%, to
$461,000 for fiscal 2000 from $232,000 for fiscal 1999. The increase in interest
expense was due largely to higher borrowing levels in fiscal 2000 under an
increased line of credit. In fiscal 2000, we increased our line of credit 200%
over the fiscal 1999 lending levels to enable us to continue to fund our growth.
NET INCOME. Net income for fiscal 2000 decreased $327,000, or 41%, to
$471,000 from $798,000 for fiscal 1999. The decrease was due primarily to our
increased interest expense.
PRO FORMA INCOME TAX EXPENSE. On a pro forma basis, giving effect to the
revocation of our S corporation status, our income tax expense for fiscal 2000
would have been $194,000, which represents an effective tax rate of 41.1%. Our
pro forma income tax expense for fiscal 1999 would have been $324,000, which
represents an effective tax rate of 40.6%. Differences between the statutory
rate and our effective tax rate resulted from the non-deductibility of certain
expenses for income tax purposes.
LIQUIDITY AND CAPITAL RESOURCES
During the periods presented, we financed our operations primarily through
available cash and from borrowings. Prior to our obtaining a $2.0 million
revolving line of credit in January 1999, we financed our operations primarily
through borrowings from a related party because we were unable to obtain
conventional bank financing at the time. See "Related Party
Transactions -- Factoring Arrangement" and "-- Letter of Credit."
We had working capital of $12.8 million at December 31, 2001 compared with
$3.6 million at December 31, 2000. Cash used in operating activities was $1.4
million for fiscal 2001, $831,000 for fiscal 2000 and $1.2 million for fiscal
1999. The cash used in operating activities reflects the increase in operating
income offset by changes in working capital items. The most significant working
capital changes are attributable to increases in accounts receivable, inventory
and accounts payable. Accounts receivable increased to $10.9 million at December
31, 2001 from $3.4 million at December 31, 2000, inventory increased to $19.8
million at December 31, 2001 from $3.6 million at December 31, 2000, and
accounts payable increased to $17.0 million at December 31, 2001 from $2.9
million at December 31, 2000. Each of these working capital items increased as
the result of our growth for all periods presented. In addition, accounts
receivable increased in part because, from time to time, we have extended the
payment terms for certain of our retail customers from 30 days to 60 days. If we
continue to grow our business, we anticipate that our working capital
requirements will increase to, among other things, maintain sufficient inventory
to meet anticipated demand.
Historically, our payment terms have required our customers to pay within
30 days. However, since entering into the residential consumer market, we have
extended the payment terms to 60 days for certain of our retail customers from
time to time. These extended payment terms reduce the rate of our receivable
turnover and our cash flow. As of December 31, 2001, $6.4 million of our
receivables were on 60-day payment terms. To date, the impact of these extended
payment terms on our working capital requirements has been offset, in part, by
our direct import sales where our customers pay us upon delivering our product
to the retailer's shipping agent.
Cash provided by financing activities was $3.2 million for fiscal 2001,
$1.2 million for fiscal 2000 and $1.4 million for fiscal 1999. This financing
was obtained through conventional bank financing.
25
In August 2001, we obtained a $15.0 million revolving credit facility under
which we can borrow amounts based on up to 85% of our eligible accounts
receivables and 55% of our eligible inventory. In December 2001, we amended our
credit facility to increase the facility to $20.0 million. We borrowed under our
credit facility primarily to provide working capital to support our operations
as well as to refinance our prior line of credit and repay a mortgage note. We
may choose an interest rate of either the prime rate as announced by the lender
or 3% above the prevailing London Interbank Offer Rate (LIBOR). We are required
to pay a quarterly commitment fee of .125% for the unused portion of this
facility. We are also able to issue up to $500,000 in letters of credit under
this credit facility, which reduces the availability under the revolving credit
facility. The credit facility terminates on July 31, 2003. Borrowings under our
credit facility are secured by substantially all of our assets and a $1.0
million personal guarantee by Ellis Yan, our Chairman and Chief Executive
Officer. As of December 31, 2001, $13.0 million was outstanding under this
facility. We intend to use a portion of the net proceeds from this offering to
repay the borrowings under this facility. Following repayment, we intend to
terminate this credit facility and will seek to obtain a new credit facility. We
cannot assure you that we will be able to obtain a new credit facility on terms
that are acceptable to us.
Our credit facility contains customary affirmative and negative covenants
for such financings, including financial covenants regarding cash flow to debt
service ratios, tangible net worth to debt ratios, and tangible net worth. As a
result of these covenants, we may be unable to engage in a variety of
transactions, including incurring additional unsubordinated indebtedness, making
acquisitions and making capital expenditures in excess of $100,000 in any given
year, excluding expansion of our facilities. In 2001, we obtained waivers for
certain financial covenant violations related to the tangible net worth to debt
ratios, tangible net worth requirements and limits on capital expenditures. In
2001, we also obtained waivers for certain non-financial covenant violations
related to distributions that we made to our stockholders of undistributed
retained earnings and certain transactions with our current or former affiliates
related to (1) payments to a former director for services the director provided
us, (2) payments to a former stockholder who was licensing certain technology to
us and (3) purchases of products, and loans, from our principal suppliers. The
financial covenant violations resulted from the determination that it was
necessary to capitalize our license agreement with the licensor of certain of
the technology that we use, which decreased our tangible net worth and increased
our indebtedness, from our significant amounts of inventory-in-transit at
December 31, 2001, which increased our indebtedness, and from increased capital
expenditures. Because we anticipate having significant amounts of
inventory-in-transit in the future, we are in negotiations with our lender to
eliminate the covenant regarding tangible net worth to debt ratios. The
non-financial covenant violations resulted from administrative oversight. The
covenant waivers were permanent waivers for violations for the designated
period. However, we are still required to comply with the covenants for future
periods, except with respect to certain of the non-financial covenant waivers,
which amended the terms of the agreement governing the credit facility. We have
amended our revolving credit facility to, among other things, revise certain
financial covenants and increase the borrowing capacity. Additionally, the terms
of our amended credit facility prohibit us from reducing the balance of our
accounts payable to our Chinese suppliers to an amount less than $3.0 million
and from making early principal payments on our promissory notes payable to our
Chinese suppliers. As mentioned above, we intend to terminate and replace this
credit facility upon completion of this offering and further intend to repay our
accounts payable and promissory notes payable to our Chinese suppliers with a
portion of the proceeds of this offering.
In October 2001, we acquired substantially all of the assets of enerSave
data systems, Inc. and JRS Technology, Inc., each for a purchase price of
$500,000. EnerSave data systems designed and developed energy management systems
and the JRS Technology assets were used in the design and development of
commercial grade electronic ballasts. We funded the JRS Technology acquisition
and $250,000 of the enerSave data system acquisition with borrowings under our
credit facility. We are obligated to pay the remaining $250,000 of the purchase
price for the enerSave data systems acquisition quarterly in four equal payments
of $62,500, without interest thereon, and we made our first payment on January
21, 2002.
We have made distributions to our stockholders in order to allow them to
pay taxes on our income and to provide a return on their investment. We
distributed $105,000 in fiscal 1999, $437,000 in fiscal 2000, and $3.4 million
in fiscal 2001 to our stockholders. We will revoke our S corporation status in
connection with
26
this offering. We intend to distribute substantially all of our undistributed S
corporation earnings for tax purposes through the date of revocation of S
corporation status to our current stockholders and a former stockholder. As of
December 31, 2001, the amount of these undistributed S corporation earnings was
approximately $3.6 million. In January 2002, we distributed approximately
$581,000 of this amount to our current stockholders and a former stockholder.
The actual amount of the distribution of S corporation earnings to our current
stockholders will depend on the amount of our income prior to completion of the
offering. We anticipate paying this distribution with a portion of the proceeds
of this offering.
Our capital expenditures have historically related primarily to our
facilities. During fiscal 2000, we financed the purchase of our current office
and warehouse facilities located in Aurora, Ohio with a 10-year $900,000
commercial mortgage from a bank and a $500,000 loan through the State of Ohio
166 Program. In August 2001, we paid off the entire balance of the bank mortgage
with proceeds from our $15.0 million credit facility. The State of Ohio 166
Program loan is a 15-year loan that bears interest at 5.25% and is secured by
our facilities. It is guaranteed by Ellis Yan and contains customary affirmative
and negative covenants for such financings, including financial covenants
regarding our interest coverage ratio, debt to equity ratio and net worth. As a
result of these covenants, we may be unable to engage in a variety of
transactions including incurring additional secured indebtedness or otherwise
entering into transactions that encumber our assets. In 2000, we obtained
waivers for certain financial covenant violations caused by our failure to
maintain the required debt to equity ratio and the minimum required net worth.
In 2001, we also obtained waivers for certain non-financial covenant violations
caused by our repurchase of shares of our common stock from a stockholder and
the encumbrance of our assets under our revolving credit facility. The financial
covenant violations resulted from certain unanticipated operating expenses that
we incurred during the period, including increased advertising, travel and legal
expenses incurred in connection with our initiatives to expand our sales and
increase our customer base and market presence. The non-financial covenant
violations resulted from administrative oversight. The non-financial covenant
waivers were permanent waivers, and the financial covenant waivers were
permanent waivers for violations for the designated period. However, we are
still required to comply with the covenants for future periods. As of December
31, 2001, approximately $475,000 was outstanding under our State of Ohio 166
Program loan. We intend to use a portion of the net proceeds from this offering
to repay the borrowings under this loan.
Through the end of 2002, we expect to spend approximately $2.0 million on
capital expenditures, primarily to fund the expansion of our warehouse
facilities.
Based on current and anticipated levels of operations, our management
believes that cash on hand and cash flow from operations and proceeds from this
offering will be sufficient to continue to meet our current and anticipated cash
operating requirements, including working capital needs, capital expenditures
and scheduled interest and principal payments for the next 24 months. Our
ability to meet our current and anticipated operating requirements will depend
upon our future performance, which, in turn, will be subject to general economic
conditions and financial, business and other factors, including factors beyond
our control.
EFFECTS OF INFLATION
We do not believe that inflation has had a material impact on our results
of operations in recent years. However, we cannot predict what effect inflation
may have on our results of operations in the future.
BACKLOG
We ship products to customers only after receipt of a specific purchase
order. Although for certain customers we occasionally receive purchase orders up
to two months in advance of when the products need to be delivered, we typically
ship orders within two to seven days of receipt of the purchase order.
Accordingly, we do not believe that our backlog at any particular date is a
meaningful indicator of our future performance. We have not experienced
significant order cancellations or delivery rescheduling.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards, or SFAS, No. 133, "Accounting for Derivative
Financial Instruments and for Hedging Activities,"
27
which is required to be adopted in fiscal year 2001. Because we do not use
derivatives, the adoption of this statement did not have a significant effect on
our earnings or financial position.
In December 1999, the Securities and Exchange Commission released Staff
Accounting Bulletin No. 101, Revenue Recognition in Financial Statements, which
provides guidance on revenue recognition. We have adopted this guidance in our
financial statements.
In June 2001, the Financial Accounting Standards Board issued SFAS No. 141,
"Business Combinations," to improve the transparency of the accounting and
reporting for business combinations by requiring that all business combinations
be accounted for under a single method, the purchase method. Use of the
pooling-of-interests method is no longer permitted. SFAS 141 also establishes
criteria for separate recognition of intangible assets acquired in a purchase
business combination. SFAS 141 is effective for all business combinations
initiated after June 30, 2001. We considered this standard in accounting for our
acquisitions of substantially all of the assets of enerSave data systems, Inc.
and JRS Technology, Inc.
In June 2001, the Financial Accounting Standards Board issued SFAS No. 142,
"Goodwill and Other Intangible Assets." SFAS No. 142 addresses financial
accounting and reporting for acquired goodwill and other intangible assets and
supersedes Account Principles Board Opinion No. 17, "Intangible Assets". SFAS
No. 142 addresses how intangible assets that are acquired individually or with a
group of other assets (but not those acquired in a business combination) should
be accounted for in financial statements upon their acquisition. SFAS No. 142
also addresses how goodwill and other intangible assets should be accounted for
after they have been initially recognized in the financial statements. The
provisions of SFAS No. 142 are required to be applied starting with fiscal years
beginning after December 15, 2001. We considered this standard in accounting for
our recent acquisitions of substantially all of the assets of enerSave data
systems and JRS Technology.
In June 2001, the Financial Accounting Standards Board issued SFAS No. 143,
"Accounting for Asset Retirement Obligations." SFAS No. 143 addresses financial
accounting and reporting for obligations associated with the retirement of
tangible long-lived assets and the associated asset retirement costs. It applies
to legal obligations associated with the retirement of long-lived assets that
result from the acquisition, construction, development and/or the normal
operation of a long-lived asset, except for certain obligations of lessees. SFAS
143 is effective for financial statements issued for fiscal years beginning
after June 15, 2002. Currently, this standard has no effect on us.
In August 2001, the Financial Accounting Standards Board issued SFAS No.
144, "Accounting for the Impairment or Disposal of Long-Lived Assets." SFAS No.
144 addresses financial accounting and reporting for the impairment or disposal
of long-lived assets. SFAS No. 144 supersedes the Financial Accounting Standards
Board SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of," and the accounting and reporting
provisions of Accounting Principles Board Opinion No. 30, "Reporting the Results
of Operations." SFAS No. 144 also amends Accounting Research Bulletin No. 51,
"Consolidated Financial Statements," to eliminate the exception to consolidation
for a subsidiary for which control is likely to be temporary. SFAS 144 is
effective for financial statements issued for fiscal years beginning after
December 15, 2001, and interim periods within those fiscal years. We will
consider this standard going forward.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Our exposure to interest rate risk is related to our investment portfolio
and our borrowings. Fixed rate investments and borrowings may have their fair
market value adversely impacted from changes in interest rates. Floating rate
borrowings will lead to additional interest expense if interest rates increase.
As of December 31, 2001, we had approximately $475,000 outstanding under our
State of Ohio 166 Program loan, which bears interest at a fixed rate of 5.25%.
As of December 31, 2001, we also had approximately $13.0 million outstanding
under our credit facility bearing interest tied to the prime rate. Therefore, we
are subject to exposure to interest rate risk for borrowings under our credit
facility based on fluctuations in the prime rate. If interest rates were to
increase 50 basis points (0.5%) from the December 31, 2001 rates and
28
assuming no changes in outstanding debt levels from the December 31, 2001
levels, we would realize an increase in our annual interest expense of
approximately $67,000.
Due in part to these factors, our future investment income may fall short
of expectations, and our interest expense may be above our expectations due to
changes in interest rates. Further, we may suffer losses in investment principal
if we are forced to sell securities that have declined in market value due to
changes in interest rates. We have no derivative financial interests or
derivative commodity instruments in our cash or cash equivalents. We invest our
excess cash in debt instruments of the United States government and its
agencies.
We pay for products purchased from our Chinese suppliers in United States
currency. Because China does not have a floating currency with a value that
fluctuates based on market forces, we do not experience foreign currency
exchange risk. However, because China's currency does not float like other
foreign currencies, in periods when foreign currency values are generally
declining, we do not benefit from a strong dollar.
29
BUSINESS
OVERVIEW
We design, develop and market high-quality, energy efficient lighting
products and accessories. Our wide variety of compact fluorescent products and
accessories offer the aesthetic features and application flexibility found in
traditional incandescent lighting while providing energy cost savings and
significantly longer product life. We believe that we offer the industry's most
comprehensive selection of compact fluorescent lighting products and accessories
including SpringLamp, which we believe was the first compact fluorescent lamp
with a twisted tube design and the first fully-dimmable compact fluorescent lamp
to be commercially available for sale in the United States.
We have provided energy efficient lighting products and components to
original equipment manufacturers since our incorporation in 1993 and continue to
sell our products to original equipment manufacturers like General Electric
Corp. and the Osram Sylvania division of Siemens A.G. In 1997, we began
marketing our products under the TCP brand name to commercial and industrial
customers, with sales in this market increasing to $30.0 million in fiscal 2001
from $4.8 million in fiscal 1997 and $17.3 million in fiscal 2000. Our major
commercial and industrial customers include national and regional distributors
who sell our products to a wide range of customers including those in the
hospitality, restaurant and entertainment, property management and construction
industries. We entered the residential consumer market in June 2000 and now sell
our compact fluorescent products and accessories to consumers primarily through
The Home Depot under its "Commercial Electric" label as well as through Costco
Wholesale Corporation and other retailers under the TCP brand name. Our sales to
retailers increased to $58.1 million in fiscal 2001 from $5.0 million in fiscal
2000. Our total net sales were $88.1 million in fiscal 2001 compared to $22.3
million in fiscal 2000.
We use our technological expertise to develop and commercialize innovative
new products. We currently conduct most of our research and development using
our product development group and by working with our suppliers and our
customers to develop or customize products to meet customer needs. We have built
an extensive portfolio of lighting products based on compact fluorescent
technology and anticipate that we will continue to add new products and product
enhancements. We are a partner in the United States government's ENERGY STAR
Program and offer a variety of products that are currently qualified under this
program. The ENERGY STAR Program is a voluntary partnership between the
Department of Energy and retailers, manufacturers and utilities pursuant to
which the Department of Energy establishes guidelines and specifications for
energy efficient products and works with retailers, manufacturers and utilities
to organize and promote energy efficient product programs and expand consumer
awareness of energy efficient products.
INDUSTRY BACKGROUND
The Electric Power Industry
According to industry sources, United States consumers spent $226.5 billion
on electricity in 2000. The Department of Energy estimates that the annual
domestic cost of electricity for lighting is more than $37 billion and that
households could cut lighting costs by 30% to 60% by using energy efficient
lighting products.
To reduce energy consumption and costs, many governmental authorities have
established economic incentives to reward enterprises and individuals who lower
their energy use. Several state public utilities commissions require utilities
to implement programs that will promote energy conservation. For example,
certain utility companies in the northeastern United States have formed the
Northeast Energy Efficiency Partnership, offering rebates for each compact
fluorescent lamp purchased. Additionally, the Bonneville Power Administration, a
federal utility wholesaler, provides customers through their local utilities
approximately 12 million $6.00 coupons redeemable at more than 1,300
participating retailers for compact fluorescent lamps with the ENERGY STAR
label. California has also enacted legislation that appropriates funds to
implement programs to reduce energy consumption and costs, including allocating
funds to encourage replacement of low-efficiency lighting. Federal and state
governments have also become more active in promoting energy
30
conservation. For instance, the United States Department of Energy and the EPA
established the ENERGY STAR Program to reduce the national rate of greenhouse
gas emissions and consumer energy consumption and costs. Also, the state of
Minnesota has exempted ENERGY STAR rated lighting products from its current 6.5%
sales tax.
While electricity demand continues to grow, the rate of new electricity
supply additions has slowed. Due to the uncertainty surrounding the deregulation
of the energy industry, many power companies delayed plans for new generating
plants. Additionally, increasing environmental concerns have resulted in
restrictions on the use of current plants and impacted the construction of new
generating facilities. Also, the United States' current electricity transmission
grid has remained largely unchanged since its inception and has become
increasingly inefficient. We believe that because of the disparity between the
supply and demand of electricity and the recent volatility in electricity
prices, together with the existing inefficiency of the electricity distribution
system, the demand for energy efficient products, including lighting products,
has and will continue to increase.
Lighting Industry
The lighting industry has two major consumer markets, the commercial and
industrial market and the residential market. The global lighting industry
consists of many firms, ranging from large, multinational, multi-product, public
companies to small, single-product, private firms. The industry includes three
dominant firms, General Electric Corp., Philips Electronics N.V. and the Osram
Sylvania division of Siemens A.G. While these three companies are active in all
of the major sections of the lighting industry, concentration levels vary by
sector and region. The lamp market is highly concentrated whereas the fixture
market is highly fragmented. The ballast market is concentrated and consists of
several large companies. In addition, smaller companies have created niches in
certain product markets like the compact fluorescent lighting market, which
require unique competencies, technologies and market products.
The domestic lighting market recorded retail lamp sales of approximately
$1.8 billion in 2000. Overall lamp sales are affected by a variety of factors,
including general economic conditions, energy costs and availability,
governmental programs and regulations, new construction and renovation activity
and infrastructure expenditures. Of the approximately 2.2 billion light bulbs
sold at retail from July 1999 through June 2000, less than 1% are compact
fluorescent. Due to the growing demand for energy efficient lighting systems,
certain lamp product markets, like the compact fluorescent lamp market, are
experiencing rapid growth. The domestic lighting market recorded fixture sales
of approximately $9.2 billion in 2000. Overall fixture sales are affected by
such factors as energy costs and availability and general economic conditions,
especially commercial and industrial construction. The domestic ballast market
recorded manufacturer's sales of approximately $1.0 billion in 2000. Ballast
sales are impacted by the growing demand for energy efficient lighting systems
together with requirements for improved light output, increased lamp life and
consistent light color output.
Lighting Markets
Energy efficient lighting has gained wide acceptance among commercial and
industrial customers. In addition to direct savings in energy costs, customers
with significant lighting needs can also reduce air conditioning expenses by
replacing hotter incandescent lamps with cooler compact fluorescents. The
substantially longer operating life of a compact fluorescent lamp compared to an
incandescent lamp also allows commercial and industrial customers to reduce
maintenance costs associated with replacing lamps. Commercial and industrial
customers of our lighting products include customers in the following markets:
- Hospitality. By providing a broad range of lighting products from floor
and table lamp retrofits, ceiling fixtures, lighting options for wall
sconces, hallway lighting, lobby and common area lighting, and ballroom
and conference room lighting using our energy saving compact fluorescent
lighting, as well as exit sign fixtures, we are able to service
substantially all of the lighting needs of hotels. As a result, we are a
corporate approved supplier of several national hotel chains to whom we
sell our lighting products through national and regional distributors.
31
- Restaurant and entertainment. The restaurant and entertainment industry
historically has not used compact fluorescent lighting in their
facilities due to the unavailability of dimming features and the lack of
lighting color options. We first offered our compact fluorescent products
with a dimming feature in 1997 and introduced color options in 1998. Our
compact fluorescent products' dimming feature and wide array of color
options enables restaurant and entertainment industry users to create a
variety of moods and atmospheres. In addition, our SpringLamp and various
reflector options fit into most recess lighting cans, and our small Deco
Mini Series products offer lighting in small table lamps, sconces and
other types of floor and wall lighting. Our shatter resistant compact
fluorescent lighting products can be used where food is prepared or
served, and our outdoor compact fluorescent lighting products can be used
in outdoor patio, walkway and parking lot lighting for these
establishments.
- Property management (commercial buildings). Certain office buildings,
factories, hospitals, airports, retail stores and government buildings
have a variety of lighting needs that we are able to service. For
example, in the second quarter of 2001, we developed a compact
fluorescent track lighting system that is designed for use in retail
stores for product displays and general lighting needs.
- Construction. Building codes often require increased use of energy
efficient lighting with longer life, better light output and less heat
output than traditional incandescent lighting. We offer a wide variety of
compact fluorescent lighting products and accessories that comply with
these building codes and can be utilized in a variety of the construction
industry's lighting application needs.
- Agriculture. In addition to the traditional lighting needs in the
agriculture industry, certain segments of the agriculture industry have
specialized lighting needs that we can satisfy with our comprehensive
selection of compact fluorescent products and accessories and our ability
to customize our products to a customer's unique requirements.
Retail sales of all compact fluorescent lamps represented less than 1% of
the 2.2 billion light bulbs sold in the United States from July 1999 through
June 2000. We believe that the significantly higher prices charged for compact
fluorescent lamps compared to incandescent lamps and the lack of knowledge of
the benefits of compact fluorescent lamps have contributed to the slower
adoption in the retail market and, thus, lower sales relative to commercial and
industrial customers. However, we believe compact fluorescent lighting products
are becoming more popular with residential consumers for the following reasons:
- recent volatility of electricity prices;
- consumer awareness of the need to conserve electricity, fueled in part by
news reports of energy shortages and rolling black-outs;
- improved compact fluorescent lamp performance comparable to incandescent
lamps;
- a growing number of applications for compact fluorescent lamps, which can
now be used in many of the same sockets as an incandescent lamp;
- more competitive compact fluorescent product prices; and
- government and utility sponsored programs offering rebates and other
incentives to encourage retail residential consumers to convert to
compact fluorescent lighting.
Lighting Technology
Various lighting technologies are currently used in the commercial and
industrial market and the residential consumer market. Common types of lighting
technology used today are incandescent, fluorescent and light emitting diode, or
LED.
Incandescent. Incandescent lighting is the oldest electric lighting
technology and remains the most widely used. Incandescent light is produced when
a wire or filament is heated by the flow of electric current through the wire or
filament. Incandescent lamps offer the advantage of a low sales price, good
color rendition (the qualitative measure of how accurately a light source allows
an object's actual color to be viewed), versatility and the ability to deliver
substantial amounts of light to a focused area. However,
32
incandescent lamps have the shortest life, averaging 750 to 2,000 hours, and are
the least energy efficient, averaging 15 to 30 lumens (the measure of the
quantity of light emitted from a light source) per watt, of any lighting
technology. In addition, up to 90% of the energy emitted by an incandescent lamp
is heat.
Fluorescent. Fluorescent lamps were first introduced in 1938 and have
become the standard interior light source for office buildings, retail stores
and certain industrial applications. Fluorescent lamps produce visible light
when the discharge from an electrically excited low pressure mercury vapor
interacts with a phosphorous powder coating on the inside surface of the lamp.
Current fluorescent lamp technology offers instant light, illuminating as
quickly as incandescent lamps, good color rendition, improved life and
efficiency as compared to incandescent lamps, averaging 10,000 to 20,000 hours
of life with 80 to 90 lumens per watt, and moderate initial cost. Unlike
incandescent lamps, fluorescent lamps require a ballast to convert electrical
current to the optimal voltage, current and waveform to start and operate the
lamp. Ballasts generally come in two forms, magnetic and electronic ballasts,
with magnetic ballasts for use in the commercial and industrial new construction
and renovation market to be prohibited by the federal government in 2005. There
are two common types of fluorescent lamps in use today, tube fluorescents and
compact fluorescents.
Tube Fluorescent. Tube fluorescent lamps are much larger than
incandescent lamps, making it difficult to deliver substantial amounts of light
to a focused area. Tube fluorescent lamps are available in a variety of lengths,
the most common of which are four-foot lamps and eight-foot lamps. Tube
fluorescent lamps are often used for ambient lighting in large areas because
they create less direct glare than incandescent lamps.
Compact Fluorescent. Compact fluorescent lamps combine the efficiency
of fluorescent lighting with the convenience and light quality of incandescent
lamps. When introduced approximately 20 years ago, compact fluorescent lamps
were bulky, heavy and too big for many incandescent fixtures. However, newer
models have a significantly smaller bulb than when first introduced and can be
used in many of the same socket applications as incandescent lamps. In addition,
although compact fluorescent lamps have light outputs equivalent to incandescent
lamps ranging from 15 to 125 watts, according to the EPA, compact fluorescent
lamps last up to 10 times longer, use approximately 75% less energy and produce
up to 90% less heat than incandescent lamps. Even though the sales price of
compact fluorescent lamps is higher than standard incandescent lamps, with
incandescent lamps costing an industry average of $0.44 per bulb and compact
fluorescent lamps costing an industry average of $11.32 per bulb, this initial
cost is more than offset by energy savings and longer life. For example, using
the average electricity rate of 10 cents per kilowatt-hour that the EPA employs
when comparing the costs of compact fluorescent lamps and incandescent lamps,
the following table illustrates the electricity cost saving associated with
using one of our 10,000-hour compact fluorescent lamps compared to an
incandescent lamp. During 2001, approximately $52.0 million, or 59%, of our net
sales were generated from the sale of compact fluorescent lamps with 10,000 or
more hours of life.
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TCP COMPACT
INCANDESCENT LAMP FLUORESCENT LAMP
----------------- ----------------
Initial cost of bulb...................................... $0.44 $8.99
Light output.............................................. 1190-1220 lumens 1200 lumens
Watts used................................................ 75 watts 20 watts
Life of bulb(1)........................................... 750 hours 10,000 hours
Cost of electricity(2).................................... $75.00 $20.00
Total cost................................................ $80.72(3) $28.99
Total savings(4)........................................ $51.73
========
---------------
(1) Because repeatedly switching a light on and off reduces the life of the
bulb, this example assumes that the lights are left on for several hours per
day.
(2) Represents the amount of electricity used over a period of 10,000 hours.
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(3) Includes $5.28 that a consumer will eventually pay for the approximately 12
additional incandescent bulbs needed for 10,000 hours of life. The
calculations do not include the maintenance cost of replacing an
incandescent lamp bulb 12 times in order to obtain 10,000 hours of operating
life.
(4) The amount of total savings may fluctuate. For example, assuming all other
factors remain unchanged, if the average electricity rate decreases to 8
cents per kilowatt-hour, total savings would decrease to $40.73, and if the
average electricity rate increases to 12 cents per kilowatt-hour, total
savings would increase to $62.73.
In addition to direct savings in energy costs, customers with significant
lighting needs can also reduce air conditioning expenses by replacing hotter
incandescent lamps with cooler compact fluorescents. The substantially longer
operating life of a compact fluorescent lamp compared to an incandescent lamp
also allows commercial and industrial customers to reduce maintenance costs
associated with replacing lamps.
Light Emitting Diodes. Light emitting diodes, or LEDs, are special diodes
that emit light when connected in a circuit. Because LEDs currently emit low
light levels and use very little energy, LED products are ideal when
illumination must be continuously maintained, such as in emergency exit signs,
outdoor billboards and signs and traffic lights. LEDs last 80,000 to 100,000
hours, while incandescent lamps have a useful life of 750 to 2,000 hours.
Replacing exit light bulbs is a labor-intensive job, particularly in large
buildings. Therefore, the longer a lamp lasts, the greater the savings in
maintenance costs. Low wattage combined with long life and lower maintenance
costs offer substantial cost savings.
OUR COMPETITIVE STRENGTHS
Diversity of products. We believe that we offer the industry's most
comprehensive selection of compact fluorescent lighting products and
accessories, with over 1,000 different energy efficient lighting products and
accessories ranging from our SpringLamp compact fluorescent lamps to our energy
efficient ballasts. With our extensive compact fluorescent product line, we
believe that we are able to source most of a customer's lighting needs with
energy efficient lighting. Because our compact fluorescent lamps last up to 10
times longer on average than traditional incandescent lamps, using approximately
75% less energy to produce the same illumination as incandescent lamps and
emitting up to 90% less heat than incandescent lamps, our compact fluorescent
lamps provide an affordable energy savings solution.
Operational flexibility and product customization. We offer our customers
the ability to design and create a lighting product that meets their unique
requirements. We believe that the unique nature of our supplier relationship
provides us with the flexibility to quickly design products and alter production
schedules that enable us to efficiently respond to the specialized product and
production needs of our customers. For example, an entertainment industry
customer wanted to create a particular atmosphere using a light color that, at
that time, the industry did not offer. We designed a lamp to meet the customer's
need and then worked with our principal suppliers to implement the engineering
and production changes necessary to manufacture the lamp. Within 30 days of the
customer's request, we delivered the desired lighting product.
Ability to develop new and innovative products. Our product development
group works together with other engineers that we engage to develop new
technologies, enabling us to quickly and efficiently design and develop new and
innovative lighting products that meet changing market needs. In developing new
energy efficient product designs, we focus on improving existing products with
more innovative engineering, better designs, smaller sizes and improved light
and color output. For example, we consider such elements of a lamp's performance
as light color temperature, color rendering index (which indicates what
percentage of the white light spectrum is being generated), the size of a bulb
to ensure proper fit into the lighting fixture and appearance to ensure, when
necessary, that the compact fluorescent lamp bulb looks similar to the
incandescent lamp bulb being replaced. As a result of our design and development
efforts, our product line has grown from only approximately 20 energy efficient
lighting products and accessories in 1997 to over 1,000 energy efficient
lighting products and accessories today.
Low cost, high quality manufacturing operations. Almost all of our
lighting products are manufactured in Shanghai, China by two companies that
combined have over 15 years of experience in manufacturing
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compact fluorescent lighting products and accessories. These companies are
controlled by Ellis Yan, our Chairman, Chief Executive Officer and majority
stockholder. Additionally, Mr. Yan's brother manages the operations of both of
these companies as their president. Unlike many of our competitors that import
lighting products from unaffiliated suppliers, we believe that the unique
collaboration with our suppliers made possible by Mr. Yan's ownership and the
involvement of his family enhances our ability to assure consistent product
quality while maintaining low production costs and enables us to quickly respond
to customers' specialized product needs. Manufacturing our products in ISO 9002
certified facilities using stringent quality controls, our suppliers have
invested in sophisticated manufacturing equipment in order to automate the
manufacturing process to produce consistently high quality products. Many of our
products are produced using manual labor, which requires our suppliers to pay
close attention to the manufacturing process in order to assure product quality.
We work collaboratively with our suppliers to refine their manufacturing
processes and develop the quality controls necessary to make our products
efficiently and with consistently high quality. In addition, we sell to some of
the world's largest companies, all of which have demanding quality standards.
These customers inspect our suppliers' operations on a regular basis to assure
proper production and quality procedures.
Ability to capitalize on our established industry position. We believe that
we are able to effectively commercialize new lighting products by:
- building on our strong relationships with electrical, commercial and
retail distributors;
- using the industry knowledge and marketing expertise of our staff;
- capitalizing on the brand recognition and reputation of our existing
products; and
- promoting new products through our catalogs, informational seminars and
trade shows.
OUR STRATEGY
Our strategy is to become the market leader in the development and
commercialization of energy efficient lighting technologies. There are five key
elements to our business strategy:
Develop and commercialize innovative new products and energy management
solutions. We will continue to work with our customers to improve and extend
existing product lines to provide compact fluorescent alternatives for virtually
all incandescent applications. We will also continue to develop and
commercialize new products that can satisfy all of our customers' lighting
needs, focusing our research and development on three areas:
- developing commercial grade electronic ballasts for linear fluorescent
tubes that incorporate more energy efficient designs at a lower cost;
- developing customized light fixtures that incorporate energy efficient
lighting; and
- incorporating emerging LED technology into a full range of lighting
products, which, over the long term, we expect to become an energy
efficient lighting alternative to compact fluorescent lamps.
We also have established relationships with energy savings companies, or
ESCOs, that work with property owners to implement strategies to reduce energy
consumption and utility costs. We believe that these relationships, together
with our experience in developing and marketing energy efficient lighting
products, provide us with an opportunity to expand our product offerings to
include energy management solutions. We intend to develop software, sensors and
other products that will allow customers to monitor and adjust a building's
lighting to allow for more efficient management of energy use. To this end, in
October 2001, we acquired substantially all of the assets of enerSave data
systems, Inc. and JRS Technology, Inc. EnerSave data systems designed and
developed energy management software and hardware that enables customers to
monitor and adjust a building's lighting and HVAC systems. The JRS Technology
assets were used in the design and development of traditional commercial grade
electronic ballasts as well as electronic ballasts that are designed to be
monitored and controlled by energy management technology like that developed by
enerSave data systems.
35
Further penetrate the commercial and industrial market. We believe that
significant opportunity remains to increase sales of our compact fluorescent
lighting products and accessories by expanding our sales through distribution
channels where our products have an established history. We also believe that we
can further penetrate the commercial and industrial market by distributing our
products through a more diverse group of distributors that sell lighting
products to a broader spectrum of businesses in the commercial and industrial
market, like customers in the agriculture and construction markets. In addition,
we will continue to develop such new products as customized lighting fixtures
and more energy efficient commercial grade ballasts to distribute to the
commercial and industrial market.
Expand and diversify our retail presence into mass merchants and
supermarkets. We believe that significant opportunity exists to increase sales
of our compact fluorescent lighting products and accessories by adding new
products, expanding the presence of compact fluorescents at our existing retail
distribution channels and distributing our products through a more diverse group
of retailers. For example, according to industry sources, during the 12 months
ending April 1999 compact fluorescent lamp bulbs occupied only 4% to 7% of
retail light bulb shelf space. In addition, although it is estimated that during
this same period supermarket chains accounted for 31% and such mass merchants as
Wal-Mart accounted for 30% of incandescent lamp retail sales, supermarket chains
accounted for only 0.9%, and mass merchants accounted for only 11.7%, of compact
fluorescent lamp bulb sales. Accordingly, we will continue to try to expand the
shelf space dedicated to our products in our existing retail distribution
channels while seeking to expand our presence in mass merchant stores and
supermarkets where retail lamp sales have historically been the highest.
Increase consumer acceptance of energy efficient lighting products. There
are significant long-term cost benefits associated with using compact
fluorescent lamps in lieu of incandescent lamps, including:
- less energy consumption -- compact fluorescent lamps use approximately
75% less energy necessary to operate an incandescent lamp with comparable
light output;
- comparable lighting quality -- due to advances in technology, compact
fluorescent lamps can often be used in the same lighting fixtures as
traditional incandescent lamps while providing comparable light output,
color and color rendition;
- longer operating lives -- compact fluorescent lamps last up to 10 times
longer than incandescent lamps, reducing maintenance costs incurred to
replace light bulbs; and
- lower heat output -- compact fluorescent lamps generate up to 90% less
heat than incandescent lamps, reducing associated energy costs like air
conditioning.
By educating customers of these benefits through training seminars,
literature, informative product packaging and participation in the ENERGY STAR
Program and utility company sponsored energy saving and education programs, we
believe that we can shift customer preferences from initial price to product
value, thereby increasing the demand for our energy efficient lighting products.
Form strategic partnerships and/or acquire complementary businesses and
technologies. We will focus on forming strategic partnerships and/or acquiring
businesses and technologies that can enhance our product development
capabilities. We intend to form strategic partnerships and/or make acquisitions
that will enable us to expand our product lines and provide more comprehensive
energy efficient lighting solutions. For example, to expand our offerings of
ballasts and energy management solutions, in October 2001, we acquired
substantially all of the assets of enerSave data systems, Inc. and JRS
Technology, Inc.
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OUR PRODUCT OFFERINGS
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RESIDENTIAL
COMMERCIAL AND INDUSTRIAL MARKET MARKET
COMPACT FLUORESCENT LIGHT EMITTING CFLS AND
LIGHTING (CFL) FIXTURES/ACCESSORIES DIODE (LED) FIXTURES/ACCESSORIES
PRODUCT - SpringLamps - Ceiling fixtures - Exit signs - SpringLamps
- Circlines - Table lamps/torchieres - Exit sign retrofit kits - Circlines
- GoodLamps - Outdoor fixtures - Indicator lighting - GoodLamps
- Deco Mini Series - Globes/covers - Sign lighting - Deco Mini Series
- Replaceable ballasts - Weatherproof coating - Flood lights
- Replacement lamps - Recessed can fixtures - Replacement lamps
- Unifloods - Reflectors - Ceiling fixtures
- Locking devices - Table lamps/torchieres
- Socket extensions - Outdoor fixtures
- Shatter resistant coating
SALES - Commercial and industrial distributors - Home centers
CHANNEL - Electrical distributors - Mass merchants
- Lighting distributors - Supermarkets
- Maintenance supply distributors - Drug stores
- Catalog distributors - Consumer catalogs
- Government procurement agencies - Hardware stores
- Club stores
By offering over 1,000 different energy efficient products and accessories,
we are able to source most of a customer's lighting needs with energy efficient
lighting. We design, develop and market high-quality, energy efficient lighting
products using compact fluorescent lamps and light emitting diodes. We
distribute a broad range of compact fluorescent lamps, the electronic and
magnetic ballasts needed to illuminate linear and compact fluorescent lamps and
compact fluorescent lamp lighting fixtures, as well as many component parts and
accessories. We also sell LED fixtures and retrofit lamps using LED technology.
Compact Fluorescent Lighting Products
SpringLamp. Our SpringLamp is compact and lightweight and is available
with and without dimming capabilities. When introduced in 1997, the SpringLamp's
twisted tube design made it compatible with a variety of incandescent fixtures
while also providing maximum light output and light distribution closest to
incandescent lamps. Because it simply screws into an existing light socket, the
SpringLamp does not require retrofit rewiring or new or unique fixture
configurations. As a percentage of our total net sales, sales of our SpringLamp
products accounted for approximately 40% in 1999, 57% in 2000 and 69% in 2001.
We believe that the SpringLamp was the first commercially available compact
fluorescent lamp to be dimmable using a standard incandescent dimmer. The
dimming capability of a SpringLamp is a particularly important feature in areas
that experience frequent voltage fluctuations, which can shorten the lives of
non-dimmable ballasts. Dimmable compact fluorescent lamps are able to respond to
voltage fluctuations as if the dimmer is being adjusted, unlike conventional
compact fluorescent lamps that do not. We believe that the United States State
Department purchasing agents approved the SpringLamp for use in embassies around
the world partly because of this important feature.
The SpringLamp is available in 7 watts to 32 watts, which are equivalent to
incandescent lamps ranging from 25 watts to 125 watts. Originally, the
SpringLamp and its ballast were combined to form a one-piece integral unit. To
enable customers to realize the savings resulting from a ballast's longer
operating life, we now offer the SpringLamp in two piece sets consisting of a
ballast and a lamp, each of which can be separately replaced. We also offer
replacement lamps for our SpringLamps and our other compact fluorescent lamp
products. Several new and innovative products and accessories based on
SpringLamp technology are now available, including our Mini Springs, which are
miniature versions of our SpringLamp that fit in smaller
37
lighting fixtures, like wall sconces and accent lights. The SpringLamp line is
available in a wide assortment of colors and includes a number of accessories,
including the following:
- a Uniflood lamp, offering a SpringLamp enclosed in a flood light
reflector;
- various shapes and sizes of globes and other covers;
- a weatherproof, shatter resistant coating;
- a recessed can retrofit kit that allows easy conversion from an
incandescent downlight;
- polished aluminum reflectors;
- anti-theft locking devices;
- permanent discs to prevent incandescent lamps from being put back into
the sockets; and
- multiple socket extensions and options.
Circline family. Traditional circline technology has been around for many
years and is used extensively in the hospitality industry, commercial buildings,
residential apartment buildings and retail outlets. We offer Circline ballasts
with traditional wide diameter lamp tubes with 20, 22 and 30 watt outputs, as
well as new, smaller diameter tubes that come in 18, 27, 32, 40, 55 and 65 watt
outputs, providing more light from a smaller lamp. We offer these products with
a patented lamp holder arm bracket that is bent 45 degrees from the plane of the
bulb. This bent arm bracket improves light presentation and eliminates hot spots
on lampshades. As a percentage of our net sales, Circline products accounted for
approximately 17% in each of 1999 and 2000 and approximately 7% in 2001.
GoodLamp. Our GoodLamp, with its three U-shaped compact fluorescent lamp
tubes, is our version of the industry's traditional compact fluorescent lamp
product. The GoodLamp is available in 3 watts to 44 watts, which are equivalent
to incandescent lamps ranging from 15 watts to 200 watts. The GoodLamp is
available with three-way lighting features and, together with its ballast, can
either be purchased as a one-piece integral unit or as a two-piece set
consisting of a ballast and a lamp, each of which can be separately replaced.
Deco Mini Series. Our Deco Mini Series compact fluorescent lighting
products convert many of the incandescent lamp shapes that residential consumers
are accustomed to into energy efficient compact fluorescent lighting products.
We offer these compact fluorescents in a variety of shapes, colors and light
outputs, including A-bulbs, torpedoes, globes and flood lights.
Compact fluorescent lamp torchieres. The bulbs in halogen torchieres (a
type of floor lamp lighting fixture) generate bright light and burn at
temperatures of up to 1000 degrees Fahrenheit. We are one of the first companies
to develop compact fluorescent lamp torchiere technology, for which we have a
patent pending. Burning at only about 110 degrees Fahrenheit, our torchieres use
approximately 80% less electricity than halogen torchieres. We believe that this
compact fluorescent lighting technology will eventually replace halogen
torchieres.
Lighting fixtures. We offer a family of compact fluorescent ceiling
fixtures for use in hospitality, residential and light commercial applications
in a variety of designs, shapes and sizes with multiple light output and power
factors. For outdoor use, we offer a number of lighting fixtures for
illuminating outdoor living areas that are suitable for operation in wet
locations. We also offer traditional table and floor lamp fixtures that
incorporate our replaceable ballasts and that operate with either a replaceable
Circline or SpringLamp compact fluorescent lamp.
Ballasts. We offer traditional electronic and magnetic ballasts primarily
to original equipment manufacturers. We also offer ballasts that are designed to
operate each line of our compact fluorescent lamps as well as ballasts designed
with our customers for their specific uses, including manufacturers of lamps,
office furniture and agriculture industry light fixtures. Ballasts for compact
fluorescent lamps last far longer than the lamps themselves. Fluorescent lamps
last 20,000 hours or less while the ballasts driving the lamps last between
30,000 to 50,000 hours. When combined in a single unit, both have to be replaced
even though
38
the lamp is the first to fail. To address this problem, we introduced a ballast
system that accepts replacement lamps, providing additional cost savings to the
consumer. We have also developed a replaceable ballast, which allows a customer
to replace ballasts without having to turn off the power or do any rewiring or
fixture maintenance.
LED Products
The primary non-compact fluorescent product category that we currently sell
is our LED exit sign group. LEDs are special diodes that emit light when
connected in a circuit. Because LEDs currently emit low light levels and use
very little energy, LED products are ideal when low light level illumination
must be continuously maintained, like in emergency exit signs, outdoor
billboards and signs and traffic lights. We offer several exit sign fixtures as
well as LED retrofit lamps for existing exit signs.
OUR PRODUCT DEVELOPMENT
We believe that we offer the industry's most comprehensive selection of
compact fluorescent lighting products and accessories, with a catalog offering
over 1,000 energy efficient products and accessories. We will continue to work
with our customers to improve and extend existing product lines to provide
compact fluorescent alternatives for virtually all incandescent applications. We
will also continue to develop and commercialize new products that incorporate
industry trends and satisfy changing consumer requirements. We are currently
focusing our research and development on the following three areas:
- Commercial grade ballasts. We are currently developing commercial grade
electronic ballasts for linear fluorescent tubes that incorporate new
energy efficient designs. We anticipate that these new ballasts will be
significantly less expensive than, and able to replace certain of, our
competitors' ballasts. We believe the demand for these energy efficient
electronic ballasts will increase as commercial and industrial customers
continue to look for ways to cut energy costs and because magnetic
ballasts for use in the commercial and industrial new construction and
renovation market will be prohibited by the federal government in 2005.
Our initial commercial grade ballast product is in a prototype stage, and
we anticipate introducing certain of our new commercial grade electronic
ballasts to the commercial and industrial market early next year.
- Fixtures. Our compact fluorescent lamps are designed to operate in
traditional incandescent lamp fixtures. In order to capitalize on our
strong position in compact fluorescent lamps, we have entered the
lighting fixture market, providing a number of customized light fixtures
that incorporate energy efficient lighting including table lamps,
torchieres, ceiling fixtures and recessed can fixtures.
- LED lighting. LED lighting is currently expensive and has a limited
number of practical lighting applications. However, because LED lighting
uses about 95% less energy than an incandescent lamp, and lasts much
longer and has many fewer component parts than compact fluorescent lamps,
as LEDs are developed to emit more light, we expect LED lighting products
to become an energy efficient lighting alternative to compact fluorescent
lamps. Our LED product development efforts will focus on incorporating
this emerging LED technology into a full range of lighting products. We
are in the early development stages of LED lighting products, like
indicator and sign lights, and we have a limited number of
customer-specific LED light bulb products that are currently being tested
at factories and subway systems and in billboard signs at various
locations in the United States.
We currently conduct most of our research and development activities using
our product development group and by working with our suppliers and customers to
develop or customize products to meet customer needs. Our product development
group consists of engineers, technical support personnel and product marketing
managers that continue to effectively develop and commercialize innovative new
products. We recently retained additional qualified engineers and other
personnel for our product development group in connection with our enerSave data
systems, Inc. and JRS Technology, Inc. acquisitions.
39
OUR MANUFACTURING OPERATIONS
Generally. Almost all of our products are manufactured in Shanghai, China
by Shanghai Zhen Xin Electronic Engineering Co., Ltd. and Shanghai Jensing
Electron Electrical Equipment Co., Ltd., both of which are Chinese companies
formed by a joint venture between Ellis Yan, our Chairman, Chief Executive
Officer and majority stockholder, and an entity indirectly controlled by a local
township in Shanghai, China. Mr. Yan owns 95% of Shanghai Zhen Xin and 70% of
Shanghai Jensing, which share the same facilities, assets and personnel and
essentially operate as the same entity but are legally distinct and have
operating lives of different durations in order to continuously enjoy certain
tax benefits in China. Additionally, as president, Mr. Yan's brother manages the
operations of both of these companies. Under the direct supervision of Mr. Yan's
brother, these companies operate ISO 9002 certified facilities that have
invested in sophisticated machinery and have developed significant expertise in
making high-quality compact fluorescent lighting products. Unlike many of our
competitors that import lighting products from unaffiliated suppliers, we
believe that the unique collaboration with our suppliers made possible by Mr.
Yan's ownership and the involvement of his family enhances our ability to assure
consistent product quality and enables us to quickly respond to customers'
specialized product needs.
Manufacturing and supply agreement. We have entered into a manufacturing
and supply agreement with these suppliers pursuant to which these suppliers have
agreed to exclusively provide us with products. We are subject to conflicts of
interests when dealing with our suppliers that arise out of Mr. Yan's majority
ownership of us and our suppliers. As a result, the independent members of our
board must approve all amendments to our manufacturing and supply agreement. Our
manufacturing and supply agreement requires our suppliers to manufacture
products to our specification at a price agreed upon from time to time. However,
the terms of this agreement provide that the aggregate price that we pay for all
of our products that we purchase from these suppliers during any year may not
exceed the total costs incurred by these suppliers to manufacture these products
plus an agreed-upon profit margin. Under this agreement, we will provide our
suppliers with product specifications and will obtain Underwriters Laboratories
and any comparable testing or governmental approvals and certifications required
by the country in which the product will be sold. Our suppliers agreed to
maintain ISO 9002 certified facilities and trained personnel to supply our
products and also agreed not to sell competitive products to others. Although we
have no obligation to purchase our products exclusively from our principal
suppliers, under the terms of the agreement, the suppliers' exclusivity
obligations will terminate and our suppliers will be permitted to sell
competitive products if (1) during the prior six months (to be measured on June
30 and December 31 of each calendar year), we purchased from other suppliers, or
manufactured internally, more than 30% of the aggregate cost of our lighting
products and accessories during such period or (2) during any calendar year, the
aggregate dollar amount of products purchased from our principal suppliers is
less than 75% of the aggregate amount of products purchased from our principal
suppliers in the prior calendar year. We are generally responsible for warranty
or claims by our customers, but, if returns or warranty problems in any shipment
exceed 5% of that shipment, we can return the defective products in that
shipment for a full refund.
Our manufacturing and supply agreement has a ten-year term that
automatically renews for five-year terms thereafter unless terminated by a party
upon prior written notice of 90 days before the expiration of the initial term
or any renewal term. Additionally, the manufacturing agreement may terminate
earlier under the following circumstances:
- automatically, in the event of certain bankruptcy or insolvency events
affecting a party;
- by any party as a result of certain final governmental actions that
significantly impair the effectiveness of the agreement;
- by us as a result of any uncured material breach of the agreement or the
technology license agreement by either supplier;
- by either supplier as a result of any uncured material breach of the
agreement or the technology license agreement by us; or
- upon the mutual agreement of us and the suppliers.
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Technology license agreement. We have also entered into a technology
license agreement with our suppliers under which we license to them our
intellectual property and other technology to enable them to manufacture
products under the manufacturing and supply agreement. Under the terms of this
agreement, our suppliers are not permitted to disclose, and must protect, any
proprietary or other confidential information that we provide them. In addition,
this agreement provides that any technology that is developed under the
manufacturing and supply agreement will be jointly owned by us and our
suppliers. Under the laws of China, the Chinese government must approve any
license agreement involving the licensing of intellectual property or other
technology within China. As a result, we have submitted the technology license
agreement with our suppliers to the Chinese government for its approval, which
approval we anticipate receiving prior to completion of this offering.
Our technology license agreement has a ten-year term that can be extended
by mutual agreement with the approval of the Chinese government. Additionally,
the technology license agreement may terminate earlier under the following
circumstances:
- automatically, in the event of certain bankruptcy or insolvency events
affecting a party;
- by any party as a result of certain final governmental actions that
significantly impair the effectiveness of the agreement;
- by us as a result of any uncured material breach of the agreement by
either supplier;
- by either supplier as a result of any uncured material breach of the
agreement by us; or
- upon the mutual agreement of us and the suppliers.
Quality control. To maintain the consistently high quality of our lighting
products, our principal suppliers employ sophisticated equipment and endeavor to
use the highest quality component parts available in their manufacturing
operations. Manufacturing our products using stringent quality controls, our
suppliers have invested in sophisticated production equipment in order to
automate the manufacturing process to produce consistently high-quality
products. Many of our products are produced using manual labor, which requires
our suppliers to pay close attention to the manufacturing process in order to
assure product quality. We work collaboratively with our suppliers to refine
their manufacturing processes and develop the quality controls necessary to make
our products efficiently and with consistently high quality. For example, we
approve all of the component material sources used in the manufacturing process.
All of the incoming component materials are then inspected and sample tested
prior to being used in production. In addition, throughout the manufacturing
process, our products are subjected to a number of stringent quality tests,
including extensive testing and "burning-in" each compact fluorescent lamp for
two hours to ensure proper functioning.
LIGHTING CUSTOMERS AND OUR PRODUCT DISTRIBUTION CHANNELS
Commercial and industrial customers. During 2000, approximately 78% of our
net sales, and during 2001, approximately 34% of our net sales, were generated
through sales to the commercial and industrial market. Commercial and industrial
businesses typically have large numbers of lights on for extended periods of
time and are therefore particularly conscious of energy costs and the cost
savings associated with energy efficient lighting products. These savings are
not limited to the significantly lower energy requirements of compact
fluorescent lamps as compared to incandescent lamps. In addition to direct
savings in energy costs, customers with significant lighting needs can also
reduce air conditioning expenses by replacing hotter incandescent lamps with
cooler compact fluorescents. The substantially longer operating life of a
compact fluorescent lamp compared to an incandescent lamp also allows commercial
and industrial customers to reduce maintenance costs associated with replacing
lamps.
Residential consumers. During 2000, approximately 22% of our net sales,
and, during 2001, approximately 66% of our net sales, were generated from the
sale of lighting products to retailers, where residential consumers typically
buy their lighting products. Retail sales of all compact fluorescent lamps
represented less than 1% of the 2.2 billion light bulbs sold in the United
States from July 1999 through June
41
2000. We believe that the significantly higher prices charged for compact
fluorescent lamps compared to incandescent lamps and the lack of knowledge of
the benefits of compact fluorescent lamps have contributed to the slower
adoption in the retail market and, thus, lower sales relative to commercial and
industrial customers. However, we believe that the improved quality, increasing
variety of applications and declining prices of new compact fluorescent
products, along with recent volatility in electricity prices, growing concerns
about electricity supply and government and utility sponsored incentive programs
for energy efficient lighting, are making compact fluorescent lighting products
more popular with residential customers.
Distribution. We market and distribute our lighting products throughout
North America, with limited sales in various other parts of the world. We
typically sell our lighting products through distribution channels like
electrical and industrial distributors, home centers, mass merchants,
supermarkets, drug stores, retailers and original equipment manufacturers.
During 2000, approximately 22% of our net sales, and, during 2001, approximately
53% of our net sales, were generated from sales to The Home Depot.
We sell our lighting products to the commercial and industrial market
primarily through electrical and industrial distributors. We also sell our
lighting products to the commercial and industrial market through our
relationships with certain of the energy savings companies that work with
commercial and industrial customers to help them develop strategies to reduce
energy costs associated with electrical, gas, water and other energy uses. We
sell our products to the federal government primarily through the Federal
Defense and Supply Center based in Philadelphia, which acts as our distributor
to all federal government customers. We sell our products to state and local
governments through the appropriate commercial distributor or other government
procurement agency. We also sell our lighting products to the commercial and
industrial market through lighting distributors, maintenance supply distributors
and catalog distributors.
We entered the residential consumer market in June 2000 and currently sell
our compact fluorescent lighting products and accessories to residential
consumers primarily through The Home Depot under its private label "Commercial
Electric." We also sell our compact fluorescent lighting products and
accessories under the TCP name to residential consumers through other retail
distribution channels, including mass merchants like Costco Wholesale
Corporation, supermarkets and drug stores like Albertson's and Rite Aid, direct
mail order catalogs and a variety of other regional distributors.
We also distribute our products through sales to General Electric Corp. and
the Osram Sylvania division of Siemens A.G., two of the three largest lighting
manufacturers. Because these manufacturers have historically not concentrated on
the compact fluorescent lighting market, they typically do not manufacture the
ballasts necessary to operate the lamps. As a result, we sell ballasts and
certain compact fluorescent lamps to these lighting manufacturers. We also have
recently begun to sell our lighting products to companies that manufacture
lighting fixtures like table lamps, floor lamps, and ceiling and wall lamps.
SALES AND MARKETING
We sell our products through a sales and marketing organization consisting
of nine full-time employees, including three regional sales managers, and over
40 independent sales agencies. Our independent sales agencies are divided by
concentration, focusing on either the commercial and industrial market or the
residential consumer market. Our independent sales agencies are paid on a
commission basis tied to the growth of our customer base and increases in
purchases made by our existing customers.
We use a variety of strategies in marketing our lighting products. For
example, we:
- use promotional pricing, particularly when introducing new lighting
products;
- support our distributors' advertisements and promotional campaigns
through cooperative funding arrangements;
- conduct training and educational classes for our distributors and
consumers, educating them on the breadth of our product offerings, the
operation of our products and the benefits of using energy efficient
lighting products;
- promote media coverage and articles on the benefits of compact
fluorescent lighting;
42
- participate in national and regional trade associations and trade shows;
- advertise in selected industry journals;
- distribute new product introductions, promotional programs and
engineering developments directly to over 12,000 of our existing and
potential customers;
- hold sales meetings and training programs for our sales and marketing
associates;
- provide our distributors and customers with an extensive product catalog;
and
- publish marketing literature targeted at specific customer groups, like
the hospitality market and retail customers, that advertise our product
offerings and the benefits of using compact fluorescent lighting.
We also participate in programs offered by a number of utility companies
throughout the United States designed to reduce energy consumption and costs.
For example, certain utility companies offer rebates to those customers who
purchase our energy efficient lighting products, distribute product catalogs
that include our energy efficient lighting products and hold torchiere turn-in
events, where customers receive at a reduced cost one of our energy efficient,
safer torchieres. With more than 300 fixtures and 70 compact fluorescent lamps
currently qualified under the ENERGY STAR Program, we also direct our marketing
efforts at promoting our ENERGY STAR rating and are able to participate in a
number of programs offered by utility programs that require ENERGY STAR
specifications for eligibility. We believe that ENERGY STAR certification for
our residential consumer products is essential to our success in that market.
New, more demanding ENERGY STAR certification standards for compact fluorescent
lamps were adopted by the Department of Energy during the fourth quarter of
2001, and ENERGY STAR partners must comply with these new standards by July
2002. We are in the process of having our products tested under the new
standards. While testing is not complete, based on preliminary results, we
believe that products representing the majority of our sales to the residential
consumer market will meet the new certification standards without the need for
modification. Other products will need to be modified to meet the new standards.
Additionally, ENERGY STAR certification is an expensive process, and we have
typically sought certification only for those products that we anticipate
selling in the residential consumer market. To date, ENERGY STAR certification
has been less important in the commercial and industrial market than the
residential consumer market where we believe there is a greater expectation of
ENERGY STAR certification.
COMPETITION
Our compact fluorescent lighting products compete with other types of
lighting technology and with compact fluorescent lighting products produced by
other manufacturers. Our compact fluorescent lighting products compete on
elements such as price, the quality and color of light output, energy
efficiency, life and functionality, especially the ability of a lamp's bulb to
fit into a particular fixture. Although market awareness and use of compact
fluorescent lighting technology continues to grow, older technologies,
principally incandescent applications, dominate the lighting market. Although
our compact fluorescent lamps have significantly higher sales prices than
traditional incandescent lamps and, unlike incandescent lamps, have ballasts
that, if not dimmable, can be damaged by voltage fluctuations, our compact
fluorescent lamps last up to 10 times longer on average than traditional
incandescent lamps, use approximately 75% less energy to produce the same
illumination as incandescent lamps and emit up to 90% less heat than
incandescent lamps. In addition, our compact fluorescent lamps can often be used
in the same lighting fixtures as traditional incandescent lamps while providing
comparable light output, color and color rendition. Although some incandescent
lamps have been developed that last longer than traditional incandescent
lighting, such as new "long-life" bulbs with thicker filaments and halogen
lights, "long-life" bulbs are less energy efficient than traditional
incandescent lamps as well as compact fluorescent lamps, and halogen lamps burn
at extremely high temperatures and require more electricity than our compact
fluorescent lamps. For example, bulbs in halogen torchieres burn at temperatures
of up to 1000 degrees Fahrenheit while our compact fluorescent torchiere lamps
burn at only about 110 degrees Fahrenheit and use approximately 80% less
electricity than halogen torchieres. Our ability to compete effectively will
depend in part on our ability to:
- continue to develop innovative new products that meet changing customer
demands and enable us to source all of a customer's lighting needs;
43
- maintain and continue to improve our stringent product quality and
manufacturing standards;
- maintain our operational flexibility to quickly and efficiently respond
to changing customer demands; and
- increase consumer acceptance of energy efficient lighting products.
Further, we expect that competition will increase as other established and
emerging companies enter our market and as new products and technologies are
introduced. Increased competition may result in price reductions, lower gross
margins and loss of market share. This could materially and adversely affect our
business, financial condition and results of operations.
General Electric Corp., Philips Electronics N.V. and the Osram Sylvania
division of Siemens A.G. are our principal competitors in the compact
fluorescent lighting market. These companies are also the major producers of
traditional lighting products. We also compete with a number of smaller
companies in the compact fluorescent lighting market. We believe our technical
and engineering expertise in the production of compact fluorescents, together
with our more extensive product lines and our product quality, give us a
competitive advantage. Unlike many of our competitors that import lighting
products from unaffiliated suppliers, we believe that the unique collaboration
with our suppliers made possible by Mr. Yan's ownership and the involvement of
his family enhances our ability to assure consistent product quality and enables
us to quickly respond to customers' specialized product needs. However, certain
of these competitors are significantly larger than us and may have a number of
significant advantages over us, including:
- greater financial, technical, marketing and manufacturing resources;
- preferred vendor status with our existing and potential customer base;
and
- larger customer bases.
INTELLECTUAL PROPERTY
Although we believe that much of the knowledge and technology used in
fluorescent lighting is in the public domain, to the extent available, we rely
on a combination of patent, trade secret, copyright and trademark laws and
confidentiality and non-disclosure agreements with employees and third parties
to establish and protect certain aspects of our products, including our
proprietary manufacturing processes. For example, we have 15 patents and eight
patent applications pending with the United States Patent and Trademark Office.
Our patents generally relate to ballasts, electronic circuitry and compact
fluorescent and other energy efficient discharge lamps and, except for one
patent that will expire in 2013, have remaining durations ranging from 15 years
to 21 years. We also have United States trademark registration on the marks
SpringLamp and Technabright. These measures may not be sufficient to protect our
proprietary rights, and we cannot be certain that third parties will not
misappropriate our technology and use it for their own benefit. Our competitors
could adopt marks similar to ours, or try to prevent us from using our marks,
consequently impeding our ability to build brand identity and possibly leading
to customer confusion. Misappropriation of our trade secrets or other
intellectual property rights could require us to increase significantly the
resources that we devote to our efforts to protect our proprietary rights. In
addition, an adverse determination in litigation could subject us to the loss of
our rights to a particular trade secret, trademark or patent, require us to
grant licenses to third parties on terms that may not be favorable to us or
prevent us from manufacturing, selling or using certain aspects of our products.
Also, most of these protections do not preclude our competitors from
independently developing products with functionality or features substantially
equivalent or superior to our products.
We are also a party to a license agreement under which we have been granted
a perpetual, non-exclusive license to use certain electronic ballast technology.
For a description of this license agreement, see "Related Party
Transactions -- License Agreements."
44
REGULATION
Our products are listed with or certified by Underwriters Laboratories when
safety or performance specifications exist. Underwriters Laboratories is an
independent, not-for-profit corporation engaged in the testing of products for
compliance with certain public safety standards. Certain of our products sold in
the United States are also subject to the Fair Packaging and Labeling Act and
certain other applicable rules and regulations of the Federal Trade Commission
with respect to the content of advertising and trade practices. All of our
products are subject to United States country of origin laws under which we are
required to place on each of the products that we sell the name of the country
where the product was manufactured. Additionally, because the ballasts that we
sell emit low level radio frequencies, the Federal Communications Commission, or
FCC, must determine that any new ballast designs comply with certain radio
frequency emission standards.
LITIGATION
We are not a party to any material legal proceedings.
EMPLOYEES
As of December 31, 2001, we had approximately 70 full-time employees. None
of our employees are parties to a collective bargaining agreement, and we
believe our relationships with our employees are good.
FACILITIES
We currently own a 40,000 square foot facility located in Aurora, Ohio,
which is subject to a mortgage of approximately $475,000 as of December 31,
2001. This facility houses our corporate offices, as well as warehouse and
assembly and distribution space. To facilitate our anticipated future growth, we
are in the process of expanding our Aurora facility by 60,000 square feet to
100,000 square feet, which expansion we anticipate will be completed during the
first half of 2002. From time to time we also utilize public warehousing space
in Aurora, Ohio, Seattle, Washington, Chicago, Illinois and Los Angeles,
California primarily as distribution facilities.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
Our executive officers and directors and their ages and positions as of
December 31, 2001 are as follows:
[Download Table]
NAME AGE POSITION
---- --- --------
Ellis Yan 47 President, Chief Executive Officer and
Chairman of the Board of Directors
Matthew G. Lyon 41 Vice President -- Finance and Operations,
Treasurer and Director
James R. Coleman 38 Chief Operating Officer and Vice
President -- Sales and Marketing and
Director
Benjamin G. Ammons(1)(2) 66 Director
Jack Kahl(1) 61 Director
R. Louis Schneeberger(1)(2) 47 Director
Boake A. Sells(2) 64 Director
---------------
(1) Member of the compensation committee.
(2) Member of the audit review committee.
Ellis Yan has acted as our Chairman of the board of directors and as our
President and Chief Executive Officer since we were incorporated in February
1993. Mr. Yan serves as a member of the board of directors of one of our primary
suppliers, Shanghai Jensing Electron Electrical Equipment Co., Ltd.
Matthew G. Lyon has been a director since January 2000 and has served as
our Vice President -- Finance and Operations and Treasurer since our
incorporation in February 1993. Until August 2001, while employed by us, Mr.
Lyon also operated a tax and accounting practice on a part-time basis. Prior to
joining us in 1993, Mr. Lyon consulted on an independent basis for Mr. Yan. Mr.
Lyon is a certified public accountant and worked for KPMG Peat Marwick from
September 1990 to September 1991 and Grant Thornton LLP from May 1982 to
September 1990.
James R. Coleman has been a director since January 2000, has served as our
Vice President--Sales and Marketing since January 1997 and has served as our
Chief Operating Officer since November 2001. From January 1995 until January
1997, Mr. Coleman served as the Vice President -- Marketing of Custer Products
Limited, an automotive/auxiliary lighting company. Before joining Custer
Products, in 1993 Mr. Coleman founded Lite-it, Inc., a lighting company, where
he served as its President and Chief Executive Officer until Lite-it was
acquired by Custer Products in 1995. From December 1984 to April 1993, Mr.
Coleman served in various capacities with Waxman Industries, Inc., a supplier of
hardware products, including most recently as Production Manager.
Benjamin G. Ammons has been a director since February 2001. Mr. Ammons is
currently retired. Prior to his retirement, Mr. Ammons served in various
capacities with Firestone Tire & Rubber Company from April 1982 to July 1992,
including most recently Corporate Senior Vice President from June 1985 to July
1992, President of the Diversified Products Group from June 1985 to June 1991,
and Executive Vice President of World Tire Marketing and Sales from April 1982
to June 1985. Before joining Firestone, Mr. Ammons was the Executive Vice
President of Carlisle Tire & Rubber from December 1976 to April 1982 and held
several positions with B.F. Goodrich from September 1961 to December 1976,
including Corporate Director of Business Planing and Development. Mr. Ammons
chairs the board of directors or advisory boards of a number of private
companies.
Jack Kahl has been a director since October 2001. Mr. Kahl is currently the
President and Chief Executive Officer of Jack Kahl & Associates, LLC, a
consulting firm, and the President and Chief Executive Officer of Duck
Investments, LLC, an asset management company. Before founding Duck Investments
and Jack Kahl & Associates in December 2000, Mr. Kahl served as President and
Chief Executive Officer of
46
Manco, Inc., a marketer and distributor of innovative consumer products that Mr.
Kahl founded in 1971, until October 2000. In addition to a number of other board
memberships for privately held companies, Mr. Kahl is currently a member of the
board of directors of American Greetings Corporation, Royal Appliance Mfg. Co.
and Acorn Products, Inc., all of which are public companies.
R. Louis Schneeberger has been a director since October 2001. Mr.
Schneeberger has been the Executive Vice President and Chief Financial Officer
for Cardinal Commerce Corporation, an early-stage development company involved
in the authentication of internet-based transactions, since December 2000. From
March 2000 until December 2000, Mr. Schneeberger served as Chief Financial
Officer of Complient Corporation, a developer of internet-based regulatory and
other compliance software. Prior to March 2000, Mr. Schneeberger served for 13
years as Chief Financial Officer and as a Director of Olympic Steel, Inc., a
steel service center. Mr. Schneeberger is Chairman of the Board of Directors of
Royal Appliance Mfg. Co. Mr. Schneeberger also serves as a Trustee of the
Achievement Centers for Children and serves on the Business Advisory Council for
Kent State University and Enterprise Development Inc., an affiliate of Case
Western Reserve University.
Boake A. Sells has been a director since October 2001. Mr. Sells is
currently retired. Prior to his retirement, Mr. Sells served as the Chairman and
Chief Executive Officer for Revco D.S., Inc., a retail drugstore company, from
September 1987 until June 1992. Prior to joining Revco, from June 1983 to
September 1987, Mr. Sells served in a number of capacities at Dayton Hudson
Corporation, a diversified national retailer. From 1969 to 1983, Mr. Sells held
various positions at Cole National Corporation, a provider of vision care
products and services, managed vision care programs and personalized gifts,
where he rose to the position of President and Chief Operating Officer. Mr.
Sells is a director of Harrah's Entertainment, Inc. and NCS Healthcare, Inc.,
both of which are public companies.
COMPOSITION OF THE BOARD OF DIRECTORS
Following this offering, our board of directors will be divided into three
staggered classes, each of whose members will serve a three-year term as
follows:
Class I directors will be R. Louis Schneeberger and James R. Coleman;
Class II directors will be Benjamin G. Ammons, Matthew G. Lyon and Boake A.
Sells; and
Class III directors will be Ellis Yan and Jack Kahl.
At each annual meeting of stockholders, a class of directors will be
elected for a three-year term to succeed the directors of the same class whose
terms are then expiring. The terms of the directors will expire upon the
election and qualification of successor directors at the Annual Meeting of
Stockholders to be held during calendar years 2003 for Class I directors, 2004
for Class II directors and 2005 for Class III directors.
Each officer serves at the discretion of the board of directors and holds
office until his successor is elected and qualified or until his earlier
resignation or removal. There are no family relationships among any of our
directors or executive officers.
COMMITTEES OF THE BOARD OF DIRECTORS
Our board of directors has standing audit review and compensation
committees. The audit review committee consists of Messrs. Ammons, Schneeberger
and Sells and will meet at least four times a year. The audit review committee
oversees the engagement of our independent public accountants, reviews the
annual financial statements and the scope of the annual audits, and considers
matters relating to accounting policy and internal controls. The National
Association of Securities Dealers, Inc. recently adopted new Nasdaq Stock Market
Marketplace Rules with respect to audit committee charter, structure and
membership requirements. We intend to comply with these rules prior to our
listing on The Nasdaq National Market. The compensation committee consists of
Messrs. Ammons, Kahl and Schneeberger. The compensation committee reviews,
approves and makes recommendations to our board of directors concerning our
compensation practices, policies and procedures for our executive officers,
including the Chief Executive Officer. The compensation committee's duties
include the administration of our Amended and Restated 2001 Equity Plan.
47
DIRECTOR COMPENSATION
Each current non-employee director will receive an option to purchase
10,000 shares of our common stock after completion of this offering, and any
additional non-employee director will receive an option to purchase 10,000
shares of common stock when such director becomes a member of our board. These
options will have an exercise price equal to the fair market value on the date
of grant, and we anticipate that they will vest and become exercisable in equal
increments over a period of three years beginning on the first anniversary of
the date of grant. In lieu of an option to purchase 10,000 shares of our common
stock and as consideration for the significant assistance that he has provided
us as a director to date, immediately upon completion of this offering we intend
to grant Mr. Ammons an option under our Amended and Restated 2001 Equity Plan to
purchase 294,000 shares of our common stock with an exercise price equal to the
initial public offering price of our common stock. This option will be
exercisable in full beginning six months following the date of grant.
Additionally, each non-employee director annually will receive $24,000, payable
quarterly, as compensation for his or her services as a director, provided that
he or she attends at least four meetings of the board during the year. Each
director can elect to have his or her quarterly compensation paid in the form of
cash or stock. If the director elects to receive his or her quarterly
compensation in common stock, he or she will receive a number of shares of our
common stock equal to the value of the quarterly compensation elected to be
received in the form of common stock divided by the average trading price of one
share of our common stock over the 20 trading days prior to the end of the
quarter in which the compensation is earned. Each director can further elect to
have the receipt of his or her compensation elected to be received in the form
of common stock deferred until the termination of such director's service with
us or until such other time as the director may have elected. In addition, we
reimburse each non-employee director for travel and other related out-of-pocket
expenses incurred in attending meetings of the board of directors.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The compensation committee of the board of directors currently consists of
Messrs. Ammons, Kahl and Schneeberger. Historically, however, decisions with
respect to the compensation of our executive officers were made by Mr. Yan. See
"Related Party Transactions" for information concerning transactions between us
and Mr. Yan. No interlocking relationship presently exists between any member of
our board of directors or our compensation committee and any member of the board
of directors or compensation committee of any other company.
EXECUTIVE COMPENSATION
The following table sets forth information concerning the compensation we
paid to our chief executive officer and our other executive officers whose total
annual compensation exceeded $100,000 during the year ended December 31, 2001.
SUMMARY COMPENSATION TABLE
[Enlarge/Download Table]
ANNUAL COMPENSATION
-----------------------------------------
OTHER ANNUAL ALL OTHER
NAME AND PRINCIPAL POSITION(S) YEAR SALARY BONUS COMPENSATION COMPENSATION
------------------------------ ---- -------- -------- ------------ ------------
Ellis Yan.............................. 2001 $246,072 $ 30,000 $55,291(1) $33,180(2)
President and Chief Executive Officer
Matthew G. Lyon........................ 2001 144,000 180,000 -- 32,910(3)
Vice President -- Finance and
Operations and Treasurer
James R. Coleman....................... 2001 120,000 200,000 -- 22,550(4)
Chief Operating Officer and
Vice President -- Sales and
Marketing
---------------
(1) Includes $55,291 for personal entertainment and related expenses, including
meals, lodging and travel expenses.
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(2) Includes (a) $30,000 of premiums paid by us pursuant to a split dollar,
whole life insurance policy, and (b) $3,180 of matching contributions made
by us under our 401(k) plan.
(3) Includes (a) $30,000 of premiums paid by us pursuant to a split dollar,
whole life insurance policy, and (b) $2,910 of matching contributions made
by us under our 401(k) plan.
(4) Includes (a) $20,000 of premiums paid by us on a whole life insurance policy
in connection with a deferred compensation arrangement, and (b) $2,550 of
matching contributions made by us under our 401(k) plan.
We have not entered into employment agreements with Messrs. Yan, Lyon or
Coleman. However, on March 6, 2000, we entered into split dollar agreements with
each of Messrs. Yan and Lyon. Pursuant to the terms of these split dollar
agreements, we pay the premiums due on a whole life insurance policy with an
initial face amount of $1,281,875 on Mr. Yan and a whole life insurance policy
with an initial face amount of $1,622,234 on Mr. Lyon. The payment of these
premiums is deemed an advance to each of these executive officers under the
terms of the split dollar agreements. These executive officers have each
assigned an interest in his policy to us in an amount equal to the lesser of (1)
the aggregate amount of the premiums on the policy paid by us and (2) the cash
surrender value of the policy. Upon the death of an executive officer during the
term of a split dollar agreement, we will receive proceeds from his policy in an
amount equal to our interest in the policy, and the remaining proceeds will be
paid to the executive officer's designated beneficiary. Each split dollar
agreement may be terminated prior to the executive officer's death for a variety
of reasons, including the termination of the executive officer's employment with
us for any reason. If a split dollar agreement is terminated, we will release
our interest in the executive officer's policy only upon payment to us of an
amount equal to our interest.
On March 6, 2000, we also entered into a deferred compensation agreement
with Mr. Coleman. Pursuant to the terms of this deferred compensation agreement,
we purchased a whole life insurance policy with an initial face amount of
$1,267,344 on Mr. Coleman. Although we own and control the policy, Mr. Coleman
is entitled to designate the beneficiary of the policy. Under the terms of the
deferred compensation agreement, Mr. Coleman or his beneficiary is entitled to
receive all or a portion of the value of, or the proceeds from, the policy only
upon (1) Mr. Coleman's termination of employment with us, (2) Mr. Coleman's
death or total and permanent disability while employed by us, or (3) mutual
agreement. The amount of the value of, or the proceeds from, the policy that Mr.
Coleman or his beneficiary is entitled to receive upon the occurrence of any of
these events depends upon the years of service that Mr. Coleman provides us from
the date of the deferred compensation agreement.
OPTION GRANTS IN FISCAL YEAR 2001/2001 FISCAL YEAR-END OPTION VALUES
In October 2001, we adopted our 2001 Stock Option Plan, which was amended
and restated in December 2001 as our Amended and Restated 2001 Equity Plan. We
have never granted any options to purchase common stock.
EMPLOYEE BENEFIT PLANS
401(k) Plan
We have a tax-qualified employee savings and retirement plan, also known as
a 401(k) plan, that covers all of our eligible employees. Under the 401(k) plan,
eligible employees may elect to reduce their current compensation by up to the
lesser of 12% of their annual compensation or the statutorily prescribed annual
limit, which was $10,500 in 2001, and have the amount of the reduction
contributed to the 401(k) plan. The trustee of the 401(k) plan, at the direction
of each participant, invests the assets of the 401(k) plan in designated
investment options. We may make matching contributions to the 401(k) plan in
amounts equal to 50% of each employee's contribution, not to exceed 6% of such
employees annual compensation. We made matching contributions of approximately
$22,000 in 2000 and $23,000 in 2001. The 401(k) plan is intended to qualify
under Section 401 of the Internal Revenue Code, so that contributions to the
401(k) plan and income earned on the 401(k) plan contributions are not taxable
until withdrawn, and so that any contributions we make will be deductible when
made.
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Amended and Restated 2001 Equity Plan
In October 2001, we adopted our 2001 Stock Option Plan, which was amended
and restated in December 2001 as our Amended and Restated 2001 Equity Plan. Our
stockholders approved the Amended and Restated 2001 Equity Plan in January 2002.
The Amended and Restated 2001 Equity Plan provides for the grant of incentive
stock options and nonqualified stock options and also provides for the payment
of director compensation (for service as a director) in the form of common
stock, if so elected by any of our directors. Our directors can also elect to
defer receipt of such common stock until their service as a director terminates
or until such other date as elected by them. If a director elects to defer
receipt of the common stock payable in lieu of cash compensation, he or she must
defer the compensation for a minimum period of one year (unless he or she elects
a deferral period by reference to his or her termination of service as a
director) and may not defer the common stock for more than 10 years after the
date of his or her termination of service with us. The board may also authorize
the payment of dividend equivalents on awards granted or deferred under the
plan.
Options. Incentive stock options will have an exercise price of 100% or
more of the market value of our common stock on the date of grant. Nonqualified
stock options may have an exercise price of more or less than 100% of the market
value of our common stock on the date of grant.
Director Compensation. If a director elects to receive his or her
compensation in the form of common stock (whether or not deferred), the number
of shares that a director will be awarded under the Amended and Restated 2001
Equity Plan will equal the compensation earned by such director divided by the
market value per share of our common stock on the date the compensation is
earned or as otherwise determined by the board. We anticipate that for directors
who elect to receive in stock the $24,000 payable to non-employee directors each
year, the number of shares that will be awarded will be determined based on the
average trading price of our stock over a 20 trading day period.
Shares Reserved. We have reserved a total of 2,016,000 shares of our
common stock for issuance under the Amended and Restated 2001 Equity Plan.
Eligibility. Our officers, employees, non-employee directors, consultants
and other independent contractors may be selected by the board to receive
benefits under the plan. The board may provide for special terms for awards to
participants who are foreign nationals or who are employed by us outside the
United States as the board may deem necessary or appropriate to accommodate
differences in local law, tax policy or custom.
Adjustments. The number of shares covered by outstanding awards, certain
other provisions contained in outstanding awards, the number of shares reserved
for issuance under the plan and the other share limits contained in the plan are
subject to adjustment in certain situations as provided in the plan.
Administration and Amendments. Our board, or a committee or subcommittee
thereof, administers and interprets the plan. The plan may be amended by the
board or a committee thereof so long as any amendment that must be approved by
our stockholders in order to comply with applicable law or the rules of any
securities exchange on which shares of common stock are traded or quoted is not
effective until the approval has been obtained.
Plan Benefits. As of January 25, 2002, we had not granted any options
under the plan. Immediately upon completion of this offering, we intend to grant
Mr. Ammons an option to purchase 294,000 shares of our common stock and Mr.
Coleman an option to purchase 1,064,000 shares of our common stock with an
exercise price equal to the fair market value of our common stock on the date of
grant. Following the grant of these options, there will be 658,000 shares of our
common stock remaining that can be issued under our Amended and Restated 2001
Equity Plan.
50
LIABILITY LIMITATIONS AND INDEMNIFICATION
Our certificate of incorporation limits the liability of directors to the
maximum extent permitted by Delaware law. Delaware law expressly permits a
corporation to provide that its directors will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except
liability for:
- any breach of their duty of loyalty to the corporation or its
stockholders;
- acts or omissions that are not in good faith or that involve intentional
misconduct or a knowing violation of law;
- unlawful payments of dividends or unlawful stock repurchases or
redemptions; or
- any transaction from which the director derived an improper personal
benefit.
These express limitations do not apply to liabilities arising under the
federal securities laws and do not affect the availability of equitable
remedies, including injunctive relief or rescission.
The provisions of Delaware law that relate to indemnification expressly
state that the rights provided by the statute are not exclusive and are in
addition to any rights provided in a certificate of incorporation, bylaws,
agreement or otherwise. Our certificate of incorporation provides that we will
indemnify our directors and officers, to the maximum extent permitted by law and
that we may indemnify other employees and agents. Our certificate of
incorporation also permits us to secure insurance on behalf of any officer,
director, employee or agent for any liability arising out of actions in his or
her capacity as an officer, director, employee or agent. We have obtained an
insurance policy that insures our directors and officers against losses, above a
deductible amount, from specified types of claims. Finally, we have entered into
agreements with each of our directors and executive officers that, among other
things, require us to indemnify them and advance expenses to them relating to
indemnification suits to the fullest extent permitted by law. We believe that
these provisions, policies and agreements will help us attract and retain
qualified persons.
The limited liability and indemnification provisions in our certificate of
incorporation, bylaws and indemnification agreements may discourage stockholders
from bringing a lawsuit against our directors for breach of their fiduciary
duties and may reduce the likelihood of derivative litigation against our
directors and officers, even though a derivative action, if successful, might
otherwise benefit us and our stockholders. A stockholder's investment in us may
be adversely affected to the extent we pay the costs of settlement or damage
awards against our directors and officers under these indemnification
provisions.
At present, there is no pending litigation or proceeding involving any of
our directors, officers or employees in which indemnification is sought, nor are
we aware of any threatened litigation that may result in claims for
indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers, employees and agents under our
certificate of incorporation or indemnification agreements we have been advised
that in the opinion of the SEC this indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
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RELATED PARTY TRANSACTIONS
SALES OF COMMON STOCK
In January 2000, we sold 2.8 million shares of common stock to Ellis Yan,
our President, Chief Executive Officer and Chairman of the board of directors
for $50.00, 1.68 million shares of common stock to Matthew G. Lyon, our Vice
President -- Finance and Operations, Treasurer and a member of our board of
directors for $30.00 and 560,000 shares of common stock to James R. Coleman, our
Chief Operating Officer, Vice President -- Sales and Marketing and a member of
our board of directors for $10.00. At the time of these sales, Mr. Yan was our
sole stockholder.
In January 2000, we issued 560,000 shares of common stock to Andrzej Bobel
as consideration for Mr. Bobel's agreement to convert a non-exclusive patent
license under the initial license agreement entered into with Mr. Bobel's
company in June 1996 into an exclusive patent license. This agreement was
memorialized in a license agreement entered into with him and his company in
March 2000. For a discussion of this license agreement, see "-- License
Agreements" below.
STOCK REPURCHASE FROM FORMER STOCKHOLDER
In April 2001, we entered into a stock buy back agreement with Andrzej
Bobel pursuant to which we agreed to repurchase all 560,000 shares of our common
stock owned by Mr. Bobel for $500.00 and the conversion of exclusive licenses
that we were granted by Mr. Bobel and his company into non-exclusive licenses.
Under the terms of this stock buy back agreement, the repurchase of Mr. Bobel's
stock was to occur on September 30, 2001. However, in furtherance of this stock
buy back agreement, in May 2001, we entered into the license agreement that
converted our exclusive licenses into non-exclusive licenses. Effective
September 30, 2001, we amended and restated this stock buy back agreement and
repurchased all 560,000 shares of our common stock held by Andrzej Bobel. We
amended and restated the stock buy back agreement (1) to clarify that Mr. Bobel
will be entitled to a payment equal to a portion of certain S corporation
distributions that we make following our repurchase of his shares, (2) to
clarify that a portion of the consideration for our repurchase of his shares
relates to our previous conversion of our exclusive licenses into non-exclusive
licenses, (3) to obtain a mutual general release of any obligation that we or
Mr. Bobel have as it relates to our repurchase of his shares and (4) to require
Mr. Bobel to enter into a tax indemnification agreement with us. For a
discussion of this tax indemnification agreement, see "-- Tax Indemnification
Agreement" below. Under the terms of the amended and restated stock buy back
agreement, we repurchased Mr. Bobel's shares in exchange for $500.00 and the
previous conversion of our exclusive licenses into non-exclusive licenses under
the terms of the May 2001 license agreement. For a discussion of this license
agreement, see "-- License Agreements" below.
DISTRIBUTIONS TO STOCKHOLDERS
Since our incorporation in 1993, we have been treated for federal and state
income tax purposes as an S corporation under Subchapter S of the Internal
Revenue Code of 1986 and comparable state tax laws. As a result, our earnings
are taxed and will be taxed until the revocation of our S corporation status,
with certain exceptions, directly to our existing stockholders rather than to
us, leaving these stockholders responsible for paying income taxes on these
earnings. We have historically paid distributions to our existing stockholders
to enable them to pay their income tax liabilities as a result of our status as
an S corporation and, from time to time, to distribute previously undistributed
S corporation earnings and profits. We made S corporation distributions to our
stockholders of approximately $105,000 during 1999, $437,000 during 2000 and
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$3.4 million during 2001. The portion of such distributions to each of our
stockholders in the applicable period is set forth in the table below.
[Download Table]
PERIOD
----------------------------------
NAME OF STOCKHOLDER 1999 2000 2001
------------------- -------- -------- ----------
Ellis Yan.................................. $105,000 $327,851 $2,521,010
Matthew G. Lyon............................ -- 65,570 504,155
James R. Coleman........................... -- 21,857 168,052
Andrzej Bobel(1)........................... -- 21,857 168,052
---------------
(1) Mr. Bobel was no longer a stockholder as of September 30, 2001.
We will revoke our S corporation status in connection with this offering.
We intend to distribute substantially all of our S corporation earnings for tax
purposes through the date of revocation of S corporation status to our current
stockholders and a former stockholder. As of December 31, 2001, the amount of
these undistributed S corporation earnings was $3.6 million. The actual amount
of the distribution of S corporation earnings to our current stockholders will
depend on the amount of our income prior to completion of the offering. We
anticipate paying this distribution with a portion of the proceeds of this
offering. Based on the $3.6 million of undistributed S corporation earnings as
of December 31, 2001, we have already distributed $447,485 to Mr. Yan, $89,473
to Mr. Lyon, $29,824 to Mr. Coleman and $14,155 to Mr. Bobel, and we anticipate
distributing $2,261,826 to Mr. Yan, $452,389 to Mr. Lyon, $150,797 to Mr.
Coleman and $134,988 to Mr. Bobel.
TAX INDEMNIFICATION AGREEMENT
In connection with this offering and the revocation of our S corporation
tax status, we entered into a tax indemnification agreement with our existing
stockholders and a former stockholder. Although we believe that we have met the
requirements for an S corporation, the agreement provides for, among other
things, the existing stockholders and the former stockholder to indemnify us for
any federal and state income taxes, including interest and penalties, incurred
by us if for any reason we are deemed to be a C corporation during any period in
which we reported our taxable income as an S corporation. The tax
indemnification obligation of each of our existing stockholders and the former
stockholder is limited to the aggregate amount of all distributions made to such
stockholder by us to pay taxes since the first day of our first tax year in
which we are deemed to have been a C corporation.
The agreement also provides for payment by our existing stockholders and
the former stockholder to us and by us to our existing stockholders and the
former stockholder to adjust for any increases or decreases in tax liability
arising from a tax audit that affects our tax liability and results in a
corresponding adjustment to the tax liability of our existing stockholders. The
amount of such payment cannot exceed that amount of refund received by us or our
existing stockholders attributable to the adjustment in tax liability.
GUARANTEES
During 2000, to finance the price we paid to purchase our Aurora, Ohio
facility, we obtained a commercial mortgage from a bank in the amount of
$900,000 and a $500,000 loan through the State of Ohio Program, both of which
were guaranteed by Mr. Yan. In addition, in January 1999 we entered into a Loan
and Security Agreement under which we were extended a $2.0 million line of
credit that was subsequently increased to $3.0 million and was guaranteed by Mr.
Yan. In February 2000, this line of credit was refinanced with a $3.5 million
line of credit that was subsequently increased to $4.0 million in November 2000
and to $5.0 million in February 2001, which was also guaranteed by Mr. Yan. In
August 2001, our line of credit was refinanced with a $15.0 million line of
credit, $1.0 million of which is guaranteed by Mr. Yan. In December 2001, we
increased our line of credit to $20.0 million, $1.0 million of which is
guaranteed by Mr. Yan.
ACCOUNTING, TAX AND FINANCIAL CONSULTING SERVICES
From time to time, Mr. Lyon, through his independent tax and accounting
practice, has provided certain accounting, tax and financial consulting services
to us. These services included preparing our tax returns and the tax returns of
some of our employees, corporate tax planning, assisting us with employee
immigration matters, assisting us with financial management issues relating to
our principal suppliers, training employees
53
and overseeing our legal matters. As consideration for these services, we paid
Mr. Lyon an additional aggregate amount of approximately $30,000 in 1999,
$49,000 in 2000 and $30,000 in 2001. In the future, we do not intend to retain
Mr. Lyon to perform these services outside of his capacity as one of our
employees.
FACTORING ARRANGEMENT
Prior to our obtaining a $2.0 million revolving line of credit in January
1999, we financed our operations primarily through a factoring arrangement with
Mr. Lyon because we were unable to obtain conventional bank financing at the
time. Pursuant to this factoring arrangement, Mr. Lyon purchased our accounts
receivable at a 3% to 5% discount, which discount varied depending on the risks
involved in collecting the accounts receivable. When our customers paid us
amounts owed pursuant to accounts receivable sold to Mr. Lyon, we would forward
such amounts to Mr. Lyon. We incurred financing costs under this arrangement of
approximately $36,000 in 1999. We repaid Mr. Lyon in full in January 1999.
LETTER OF CREDIT
At times during 1999 and 2000 when we did not have further borrowing
capacity under our line of credit, we acquired approximately $697,000 and
$277,000 of inventory through a letter of credit arrangement funded by Mr. Lyon.
Pursuant to this letter of credit arrangement, Mr. Lyon used his personal assets
as collateral to obtain letters of credit. Mr. Lyon would then provide our
vendors with these letters of credit, which our vendors would cash upon the
shipment of goods to us. The amounts advanced by Mr. Lyon through the letters of
credit were due within 30 to 60 days of receipt of the goods by us. In addition
to the amounts advanced, we also paid Mr. Lyon fees equal to approximately 10.5%
of the amounts advanced. We paid Mr. Lyon approximately $73,000 in 1999 and
$29,000 in 2000 in fees under this letter of credit arrangement, and all amounts
owed to Mr. Lyon pursuant to this arrangement have been paid in full.
FACILITIES LEASE
Prior to purchasing our Aurora, Ohio facility in January 2000, we leased
warehouse and office space from a corporation that was 25% owned by Mr. Lyon and
25% owned by each of Mr. Lyon's spouse, brother and sister-in-law. We paid
approximately $51,000 in 1998, $83,000 in 1999 and $35,000 in 2000 in lease
payments to this corporation. In addition, in 2000, we surrendered a $50,000
rent deposit to this corporation as settlement for the termination of the lease
agreement.
BUILDING PURCHASE/SALE
In June 1999, we purchased a building from Mr. Lyon's affiliated
corporation for $125,000, which price was based on arm's length negotiations.
This affiliated corporation purchased the building in December 1997 for
approximately $110,000. In January 2000, we sold this building to an unrelated
party, with net proceeds from the sale totaling approximately $102,000.
SHANGHAI ZHEN XIN AND SHANGHAI JENSING
Currently, almost all of our lighting products are manufactured by Shanghai
Zhen Xin Electronic Engineering Co., Ltd. and Shanghai Jensing Electron
Electrical Equipment Co., Ltd. located in Shanghai China. Both Shanghai Zhen Xin
and Shanghai Jensing are Chinese companies formed by a joint venture between Mr.
Yan and an entity indirectly controlled by a local township in Shanghai, China.
Mr. Yan owns 95% of Shanghai Zhen Xin and 70% of Shanghai Jensing, which share
the same facilities, assets and personnel and essentially operate as the same
entity but are legally distinct and have operating lives of different durations
in order to continuously enjoy certain tax benefits in China. Additionally, Mr.
Yan's brother, Solomon Yan, manages the operations of both of these companies as
their president.
We purchased lighting products from Shanghai Zhen Xin in amounts of
approximately $9,191,000 for 1999, $14,496,000 for 2000 and $76,588,000 for
2001. We purchased lighting products from Shanghai Jensing in amounts of
approximately $389,000 for 1999, $694,000 for 2000 and $658,000 for 2001.
54
Effective December 31, 1998, we refinanced $931,328 of our trade accounts
payable to Shanghai Zhen Xin and Shanghai Jensing outstanding at December 31,
1998 with a promissory note to Shanghai Zhen Xin in the amount of $164,571 and a
promissory note to Shanghai Jensing in the amount of $766,757. Both notes are
due on January 9, 2009 and bear interest at 6% per annum. The interest due on
the note to Shanghai Zhen Xin was approximately $10,000 for each of 1999, 2000
and 2001. The interest due on the note to Shanghai Jensing was $46,000 for each
of 1999, 2000 and 2001. We anticipate paying these notes off with a portion of
the proceeds of this offering. The interest due on these notes was offset
against certain fees that we charge to these companies for management and
advisory services that we provided related to expansion, quality control,
production, component sourcing, accounting, freight and logistics. We intend to
continue to provide these services to Shanghai Zhen Xin and Shanghai Jensing
pursuant to the manufacturing and supply agreement.
Pursuant to the terms of our amended credit facility, we are prohibited
from reducing the amount of our trade accounts payable to Shanghai Zhen Xin and
Shanghai Jensing to an amount less than $3.0 million and from making early
principal payments on their respective promissory notes. We anticipate using a
portion of the net proceeds of this offering to repay the borrowings under this
facility and subsequently terminating this facility.
During 1999 and 2001, we entered into an arrangement with Shanghai Zhen Xin
pursuant to which we acted as a commissioned sales agent for certain products
sales made at our direction that were directly shipped to customers by Shanghai
Zhen Xin. We earned approximately $237,000 in 1999 and $295,000 in 2001 in
commissions from Shanghai Zhen Xin under this arrangement.
We have entered into a manufacturing and supply agreement and a technology
license agreement with Shanghai Zhen Xin and Shanghai Jensing. See
"Business -- Our Manufacturing Operations -- Manufacturing and supply agreement"
and "-- Technology license agreement."
In 2001, Shanghai Zhen Xin and Shanghai Jensing agreed to share the
research and development expense incurred by us for the development of a
commercial grade ballast, and, accordingly, we charged Shanghai Zhen Xin and
Shanghai Jensing $196,000 for their share of research and development expense
for 2001.
In connection with the fourth license agreement described below, we paid
$200,000 to the licensor of certain technology as consideration for, among other
things, a general release for us, Shanghai Zhen Xin and Shanghai Jensing and for
terminating a license agreement between the licensor and Shanghai Zhen Xin and
Shanghai Jensing.
LICENSE AGREEMENTS
We are a party to four related license agreements with Practical
Innovations, Inc. and, in certain instances, Mr. Bobel, the president of
Practical Innovations, pursuant to which we were granted licenses to use
Practical Innovations' electronic ballast technology in exchange for a license
fee and minimum monthly royalty payments.
We entered into the first of these agreements in June 1996 with Practical
Innovations, at which time Mr. Bobel was not one of our stockholders, and were
granted a non-exclusive license to one of Practical Innovations' patents
relating to certain electronic ballast technology. We paid aggregate monthly
royalty payments to Practical Innovations under this agreement of approximately
$333,000 in 1999.
In March 2000, we entered into the second agreement with Practical
Innovations and Mr. Bobel, which incorporated the terms of the first agreement.
Under the terms of this second agreement, we obtained an exclusive license for a
patent for which we only had a non-exclusive license under the initial license
agreement and obtained additional exclusive and non-exclusive licenses for
patents covering other electronic ballast technology. Additionally, the terms of
this second agreement were modified to increase the minimum monthly royalties to
$20,000. We entered into this second agreement primarily to obtain the exclusive
license for the patent that we only had a non-exclusive license for pursuant to
the initial license agreement in order to obtain legal standing to initiate a
lawsuit against a competitor that we believed was infringing on this
55
patent since Practical Innovations was unwilling to either initiate such lawsuit
or become a party thereto. We attributed the 560,000 shares of our common stock,
which when issued represented 5% of our outstanding common stock, that we issued
to Mr. Bobel in January 2000 as the consideration for the conversion of the
non-exclusive patent license to an exclusive patent license. We attributed our
agreement to pay increased minimum monthly royalty payments of $20,000 as the
consideration for the additional licenses granted under this second agreement.
We paid aggregate monthly royalty payments to Practical Innovations under this
Agreement of approximately $426,000 in 2000.
As was contemplated when we entered into the April 2001 stock buy back
agreement, in May 2001, we entered into the third agreement with Practical
Innovations and Mr. Bobel, which incorporated the terms of both the first and
second agreements. Shortly after obtaining the exclusive license covering the
patent that we believed was being infringed, we realized that many others were
potentially infringing upon this patent. Because we had neither the time nor the
resources to take legal action against all those allegedly infringing upon the
patent, and because we concluded that the infringement of this patent was not
material to our operations, we no longer had a need for an exclusive license
with respect to Practical Innovations' electronic ballast technology. Therefore,
we entered into this agreement to effect the conversion of our exclusive
licenses into non-exclusive licenses. We also entered into this agreement to
limit the amount of royalties to be paid in the future under each of the prior
agreements and to remove the requirement that we purchase certain component
parts from Practical Innovations by making a $2.0 million non-refundable payment
payable over five years. We paid approximately $75,000 in royalty payments to
Practical Innovations in 2001 prior to entering into this third agreement. As of
December 31, 2001, we had paid Practical Innovations $650,000 under this third
license agreement.
In September 2001, we entered into the fourth agreement with Practical
Innovations and Mr. Bobel, which amended and restated the terms of the first
three agreements. We entered into this fourth agreement to (1) clarify certain
rights and obligations, including certain vague or uncertain contractual terms,
under the three other license agreements described above, (2) provide us the
right to transfer the license agreement without the consent of Practical
Innovations and (3) expressly provide that we have a perpetual, nonexclusive
license to use the technology licensed under the agreement after paying
Practical Innovations the payments due under the license agreement. Under this
restated license agreement, we agreed to pay Practical Innovations $2,160,000,
payable over 54 months, in lieu of the remaining $1,350,000 due under the third
agreement. Under the terms of this fourth license agreement, in order to protect
us from any unforeseen obligations or liabilities that could result from the
vague or uncertain portions of the previous agreements, we also paid $200,000 to
Practical Innovations on October 10, 2001 as consideration for a mutual general
release for us and our principal suppliers with respect to any obligations or
other liabilities arising on or prior to September 30, 2001 under all of the
license agreements and under a technical assistance agreement that we entered
into with Practical Innovations in June 1996 that expired in June 1997, as well
as for terminating a license agreement that our principal suppliers had entered
into with Practical Innovations. Although we were not contractually obligated to
pay for such a release and termination on behalf of our principal suppliers, we
requested that they be included in the general release to limit any unforeseen
risks, and thus potential increased product costs to us, that our suppliers may
have been subject to during the term of their agreement with Practical
Innovations. As of December 31, 2001, we had paid Practical Innovations $320,000
under this fourth license agreement.
As a percentage of our total net sales, we sold products incorporating the
patented technology that we license from Practical Innovations of approximately
24% in 1999, approximately 19% in 2000 and approximately 10% in 2001.
INTEREST EXPENSE
As more fully described above, we recorded interest expense with related
parties of approximately $92,000 in 1999, $56,000 in 2000 and $102,000 in 2001.
The $92,000 interest expense for 1999 was comprised of $10,000 in interest
payable to Shanghai Zhen Xin and $46,000 in interest payable to Shanghai Jensing
on their respective promissory notes and $36,000 in financing costs paid to Mr.
Lyon under the factoring arrangement. The $56,000 interest expense for 2000 was
comprised of $10,000 in interest payable to
56
Shanghai Zhen Xin and $46,000 in interest payable to Shanghai Jensing on their
respective promissory notes. The $102,000 interest expense for 2001 was
comprised of $10,000 in interest payable to Shanghai Zhen Xin and $46,000 in
interest payable to Shanghai Jensing on their respective promissory notes and
$46,000 in interest attributable to the amortization of the license agreement
with Practical Innovations and Mr. Bobel through September 30, 2001, which was
the date Mr. Bobel ceased to be a stockholder and a related party.
OPTION AGREEMENT
In November 2000, we executed a document authorizing the grant of an option
to purchase 560,000 shares of our common stock to Mr. Coleman. However, because
this agreement was neither formally agreed to or executed by Mr. Coleman and
because our board of directors never took any action to approve this agreement,
we determined that neither we nor Mr. Coleman had any rights or obligations
under this document. As consideration for the significant assistance that Mr.
Coleman has provided us as an officer and Mr. Coleman's agreement to release us
from any obligation that we may be deemed to have had to grant Mr. Coleman
options in the past under the document executed by us in November 2000, we have
agreed to grant Mr. Coleman, immediately upon completion of this offering, an
option to purchase 1,064,000 shares of our common stock under our Amended and
Restated 2001 Equity Plan pursuant to an option agreement that we entered into
with Mr. Coleman in January 2002. This option will have an exercise price equal
to the initial public offering price of our common stock and will be immediately
exercisable in full beginning six months following the date of grant.
REGISTRATION RIGHTS AGREEMENT
We have granted rights to Messrs. Yan, Lyon and Coleman that require us to
register their shares under the Securities Act and to include their shares in
future registration statements that we file for our own benefit or other
stockholders under the Securities Act. See "Description of Capital
Stock -- Registration Rights."
DELAWARE INDEMNIFICATION AGREEMENTS
We have entered into indemnification agreements with each of our directors
and executive officers. Such indemnification agreements require us to indemnify
our directors and executive officers to the fullest extent permitted by Delaware
law. See "Management -- Liability Limitations and Indemnification."
TERMS OF RELATED PARTY TRANSACTIONS
We believe that the transactions described above with Shanghai Jensing and
Shanghai Zhen Xin and the transactions described above with Mr. Bobel and/or
Practical Innovations were on terms no less favorable to us than could be
obtained from unrelated parties. We are not able to determine whether the other
related party transactions described above were on terms no less favorable to us
than could be obtained from unrelated parties because, when we entered into
these transactions, we did not obtain independent, third-party valuations of the
transactions, the transactions were not negotiated on an arm's length basis and
we did not seek to enter into the transactions with independent third parties
against which to measure the terms of the transactions. However, all of these
transactions are reflected in our results of operations and our financial
statements, which are included elsewhere in this prospectus. Our board of
directors will adopt a resolution whereby all future transactions with related
parties, including any transactions between us and our officers, directors,
principal stockholders or affiliates, must be approved by a majority of the
disinterested members of the board of directors and must be on terms no less
favorable to us than could be obtained from unaffiliated third parties.
57
CHANGES IN AND DISAGREEMENTS WITH
ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
PREVIOUS INDEPENDENT ACCOUNTANTS
In July 2001, we dismissed Grant Thornton LLP as our independent public
accountants.
Except as described below, the reports of Grant Thornton on our financial
statements for the fiscal years ended December 31, 1999 and December 31, 2000
did not contain an adverse opinion or a disclaimer of opinion and were not
qualified or modified as to uncertainty, audit scope or accounting principles.
For the fiscal years ended December 31, 1999 and December 31, 2000, Grant
Thornton rendered reports dated January 26, 2000 and January 26, 2001,
respectively, which stated that Grant Thornton did not observe our physical
inventory taken as of December 31, 1998 since that date was prior to their
initial engagement as our auditors, and our records did not permit adequate
retroactive tests to those inventory quantities. Accordingly, Grant Thornton
noted in their report that the scope of their work was not sufficient to enable
them to express, and that they did not express, an opinion on our statements of
earnings and accumulated deficit, and cash flows for the year ended December 31,
1999. Our management did not direct Grant Thornton to extend their audit
procedures.
The dismissal of Grant Thornton was recommended and approved by our board
of directors.
In connection with the audits of our financial statements for the fiscal
years ended December 31, 1999 and December 31, 2000 and the subsequent period of
January 1, 2001 through the date of their dismissal, there were no disagreements
with Grant Thornton on any matter of accounting principles or practices,
financial statement disclosure, or auditing scope or procedure, which
disagreements, if not resolved to the satisfaction of Grant Thornton, would have
caused Grant Thornton to make reference to the subject matter of the
disagreement(s) in connection with its report on the financial statements for
each such year.
NEWLY ENGAGED INDEPENDENT ACCOUNTANTS
On August 9, 2001, we engaged PricewaterhouseCoopers LLP as our new
independent accountants. Through August 8, 2001, neither we nor anyone on our
behalf consulted PricewaterhouseCoopers LLP regarding:
- the application of accounting principles to any transaction, either
completed or proposed; or
- the type of audit opinion that might be rendered on our financial
statements.
As noted above, we did not request that Grant Thornton perform retroactive
tests of our December 31, 1998 physical inventory. As part of their engagement,
we asked PricewaterhouseCoopers LLP to perform extended procedures to rollback
inventory quantities from the 1999 physical counts observed by Grant Thornton to
December 31, 1998. These procedures were satisfactorily completed and permitted
PricewaterhouseCoopers LLP to issue an unqualified opinion on all of our
financial statements for the fiscal year ending December 31, 1999.
58
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information known to us regarding
the beneficial ownership of our common stock as of January 25, 2002 and as
adjusted to reflect to the sale of the shares of common stock in this offering
for:
- each person known by us to beneficially own more than 5% of our common
stock;
- each of our directors;
- each of our executive officers named in the summary compensation table;
and
- all of our directors and executive officers as a group.
We have determined beneficial ownership in accordance with the rules of the
Securities and Exchange Commission. We believe that each stockholder named in
the table has sole voting and investment power for the shares shown as
beneficially owned by them. Percentage of ownership after the offering is based
on 13,640,000 shares of common stock outstanding after completion of this
offering assuming an initial public offering price of $13.00 per share. This
table assumes no exercise of the underwriters' over-allotment option. The
mailing address for each stockholder is c/o Technical Consumer Products, Inc.,
300 Lena Drive, Aurora, Ohio 44202.
[Enlarge/Download Table]
PERCENTAGE OF SHARES
NUMBER OF BENEFICIALLY OWNED
SHARES ---------------------
BENEFICIALLY BEFORE AFTER
NAME OWNED OFFERING OFFERING
---- ------------ -------- --------
Ellis Yan................................................... 8,400,000 78.9% 61.6%
Matthew G. Lyon............................................. 1,680,000 15.8 12.3
James R. Coleman(1)......................................... 560,000 5.3 4.1
Benjamin G. Ammons(1)....................................... -- -- --
Jack Kahl................................................... -- -- --
R. Louis Schneeberger....................................... -- -- --
Boake A. Sells.............................................. -- -- --
All executive officers and directors as a group (seven
persons).................................................. 10,640,000 100.0% 78.0%
---------------
(1)Immediately upon completion of this offering, we intend to grant Mr. Coleman
an option to purchase 1,064,000 shares of our common stock and Mr. Ammons an
option to purchase 294,000 shares of our common stock. These options will be
exercisable in full beginning six months following the date of grant.
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DESCRIPTION OF CAPITAL STOCK
Prior to the completion of this offering and after receiving stockholder
approval, we will amend our certificate of incorporation to increase to
30,000,000 the number of authorized shares of common stock, $0.001 par value per
share, and authorize the issuance of 5,000,000 shares of undesignated preferred
stock, $0.001 par value per share, the rights and preferences of which may be
established from time to time by our board of directors. Immediately after the
filing of our amended and restated certificate of incorporation, we will also
effect a 56,000-for-1 forward stock split in the form of a stock dividend on all
of our issued and outstanding common stock. Upon completion of this offering,
there will be 13,640,000 shares of common stock outstanding and no serial
preferred shares issued and outstanding.
COMMON STOCK
As of January 25, 2002, without giving effect to the forward stock split
discussed above, our authorized capital stock consisted of 500 shares of common
stock, of which 190 shares were outstanding. These shares were held of record by
three stockholders.
Following the completion of this offering, each outstanding share of our
common stock will be entitled to one vote on all matters submitted to a vote of
stockholders. Pursuant to our certificate of incorporation, holders of our
common stock will not have the right to cumulative voting; therefore, the
holders of a majority of the shares voting for the election of our board of
directors will be able to elect all the directors standing for election, if they
so choose. Subject to any superior rights of any holders of preferred stock,
each outstanding share of our common stock will be entitled to such dividends as
may be declared from time to time by our board of directors out of legally
available funds. See "Dividend Policy." In the event of our liquidation,
dissolution or winding up, holders of common stock will be entitled to their
proportionate share of any assets remaining after payment of liabilities and any
amounts due to the holders of preferred stock. Holders of our common stock have
no preemptive rights and no right to convert or exchange their common stock into
any other securities. No redemption or sinking fund provisions will apply to our
common stock. All outstanding shares of common stock are, and all shares of
common stock to be outstanding upon completion of this offering will be, fully
paid and non-assessable.
PREFERRED STOCK
Following the completion of this offering, our board of directors will be
authorized, without stockholder approval, to issue up to 5,000,000 shares of
preferred stock in one or more series and to fix the rights, preferences,
privileges and restrictions granted to or imposed upon the convertible preferred
stock, including voting rights, dividend rights, conversion rights, terms of
redemption, liquidation preference, sinking fund terms and the number of shares
constituting any series or the designation of a series. Our board of directors
can issue preferred stock with voting and conversion rights that could adversely
affect the voting power of the holders of common stock, without stockholder
approval. The issuance of convertible preferred stock could have the effect of
delaying, deferring or preventing a change in control of TCP. We have no present
plan to issue any shares of preferred stock.
REGISTRATION RIGHTS
We have granted the current holders of our common stock "piggyback"
registration rights pursuant to a registration rights agreement with those
investors. These rights are summarized below.
After the completion of this offering, holders of 10,640,000 shares of
common stock or their permitted transferees will be entitled to unlimited
"piggyback" registration rights. These rights entitle the holders to notice of
the registration and to include, at our expense, their shares of common stock in
many of our registrations of our common stock. We and our underwriters can
reduce the number of shares of common stock to be included by holders of
piggyback rights in view of market conditions. If our stockholders with
registration rights cause a large number of securities to be registered and sold
in the public market, those sales could cause the market price of our common
stock to fall.
60
ANTI-TAKEOVER EFFECTS OF DELAWARE GENERAL CORPORATION LAW AND PROVISIONS OF OUR
CERTIFICATE OF INCORPORATION AND BYLAWS
In addition to the potential anti-takeover effects of the preferred stock
as summarized above, our certificate of incorporation and bylaws contain several
provisions that may make it more difficult to acquire us by means of a tender
offer, open market purchase, proxy fight or otherwise.
These provisions of the certificate of incorporation and the bylaws are
designed to encourage persons seeking to acquire control of us to negotiate with
our board. We believe that, as a general rule, our interests and the interests
of our stockholders would be served best if any change in control results from
negotiations with our board based upon careful consideration of the proposed
terms, such as the price to be paid to stockholders, the form of consideration
to be paid and the anticipated tax effects of the transaction.
The certificate of incorporation and bylaw provisions could, however, have
the effect of discouraging a prospective acquiror from making a tender offer for
our shares or otherwise attempting to obtain control of us. To the extent that
these provisions discourage takeover attempts, they could deprive stockholders
of opportunities to realize takeover premiums for their shares. Moreover, these
provisions could discourage accumulations of large blocks of common stock, thus
depriving stockholders of any advantages which large accumulations of stock
might provide.
Set forth below is a summary of the relevant provisions of our certificate
of incorporation and bylaws and certain applicable sections of the General
Corporation Law of the State of Delaware. This summary does not purport to be
complete summary of all of the provisions of our certificate of incorporation,
bylaws and sections of the General Corporation Law of the State of Delaware. The
summary of the relevant provisions of our certificate of incorporation and
bylaws is qualified in its entirety by reference to all of the provisions of our
certificate of incorporation and bylaws, copies of which are filed as exhibits
to the registration statement of which this prospectus is a part.
Business Combinations
We are governed by Section 203 of the General Corporation Law of the State
of Delaware. Section 203, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any business combination with any interested
stockholder for a period of three years following the time that such stockholder
became an interested stockholder, unless:
- prior to such time, the board of the corporation approved either the
business combination or the transaction which resulted in the stockholder
becoming an interested stockholder;
- upon consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding specified shares; or
- at or subsequent to such time, the business combination is approved by
the board and authorized at an annual or special meeting of stockholders,
and not by written consent, by the affirmative vote of at least 66 2/3%
of the outstanding voting stock that is not owned by the interested
stockholder.
The application of Section 203 may limit the ability of stockholders to
approve a transaction that they may deem to be in their best interests.
In general, Section 203 defines "business combination" to include:
- any merger or consolidation involving the corporation and the interested
stockholder;
- any sale, lease, exchange, mortgage, pledge, transfer or other
disposition of 10% or more of the assets of the corporation to or with
the interested stockholder;
- subject to certain exceptions, any transaction which results in the
issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
61
- any transaction involving the corporation which has the effect of
increasing the proportionate share of the stock of any class or series of
the corporation beneficially owned by the interested stockholder; or
- the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In general, Section 203 defines an "interested stockholder" as any person
that is:
- the owner of 15% or more of the outstanding voting stock of the
corporation; or
- an affiliate or associate of the corporation and was the owner of 15% or
more of the outstanding voting stock of the corporation at any time
within three years immediately prior to the relevant date; or
- an affiliate or associate of either of the above.
Under specific circumstances, Section 203 makes it more difficult for an
"interested stockholder" to effect various business combinations with a
corporation for a three-year period, although the stockholders may, by adopting
an amendment to the corporation's certificate of incorporation or bylaws, elect
not to be governed by this section, effective twelve months after adoption.
Our certificate of incorporation and bylaws do not exclude us from the
restrictions imposed under Section 203. We anticipate that the provisions of
Section 203 may encourage companies interested in acquiring us to negotiate in
advance with our board of directors since the stockholder approval requirement
would be avoided if a majority of the directors then in office approve either
the business combination or the transaction that resulted in the stockholder
becoming an interested stockholder.
Classified Board of Directors
Our certificate of incorporation provides for our board to be divided into
three classes of directors, as nearly equal in number as possible, serving
staggered terms. Approximately one-third of our board will be elected each year.
See "Management -- Composition of the Board of Directors." Under Section 141 of
the General Corporation Law of the State of Delaware, directors serving on a
classified board can only be removed for cause unless otherwise provided in the
certificate of incorporation. Our certificate of incorporation does not contain
this provision of Section 141, and, therefore, the members of our board of
directors can only be removed for cause. The provision for our classified board
may be amended, altered or repealed only upon the affirmative vote of the
holders of at least 80% of our outstanding voting stock.
The provision for a classified board could prevent a party that acquires
control of a majority of the outstanding voting stock from obtaining control of
our board until the second annual meeting of stockholders following the date the
acquiror obtains the controlling stock interest. The classified board provision
could have the effect of discouraging a potential acquiror from making a tender
offer for our shares or otherwise attempting to obtain control of us and could
increase the likelihood that our incumbent directors will retain their
positions.
We believe that a classified board will help to assure the continuity and
stability of our board and our business strategies and policies as determined by
our board, because a majority of the directors at any given time will have prior
experience on our board. The classified board provision should also help to
ensure that our board, if confronted with an unsolicited proposal from a third
party that has acquired a block of our voting stock will have sufficient time to
review the proposal and appropriate alternatives and to seek the best available
result for all stockholders.
Number of Directors; Removal; Vacancies
Our certificate of incorporation and bylaws provide that the number of
directors shall be not fewer than five nor more than nine and shall be set by
resolution adopted by the affirmative vote of (1) a majority of the total number
of directors that we would have if there were no vacancies on our board or (2)
the holders of at least 80% of our outstanding voting stock. This provision
regarding the size of our board may not be
62
amended, altered, changed or repealed in any respect without the affirmative
vote of at least 80% of our outstanding voting stock.
Pursuant to our certificate of incorporation, each director will serve
until his or her successor is duly elected and qualified, unless he or she
resigns, dies, becomes disqualified or is removed. Our certificate of
incorporation also provides that, subject to the rights of the holders of any
series of preferred stock, directors may be removed, but only for cause by the
affirmative vote of the holders of at least 80% of our voting stock.
Our certificate of incorporation further provides that generally, vacancies
or newly created directorships in our board may only be filled by a resolution
approved by a majority of the remaining directors then in office, even though
less than a quorum of our board, and any director so chosen will hold office
until the next election of the class for which such director was chosen.
Stockholder Action; Special Meetings
Our certificate of incorporation provides that stockholder action can be
taken only at an annual or special meeting of stockholders and cannot be taken
by written consent in lieu of a meeting. Our certificate of incorporation, and
our bylaws provide that, except as otherwise required by law, special meetings
of the stockholders can only be called by the chairman of our board, our
president or at the request of a majority of our board. Stockholders are not
permitted to call a special meeting or to require our board to call a special
meeting.
Stockholder Proposals
At an annual meeting of stockholders, only business that is properly
brought before the meeting will be conducted or considered. To be properly
brought before an annual meeting of stockholders, business must be specified in
the notice of the meeting (or any supplement to that notice), brought before the
meeting by the presiding officer or by or at the direction of the majority of
the total number of directors that our board would have if there were no
vacancies, or properly requested by a stockholder to be brought before the
meeting.
For business to be properly requested by a stockholder to be brought before
an annual meeting, the stockholder must (1) be a stockholder of record at the
time of the giving of the notice for the meeting, (2) be entitled to vote at the
meeting and (3) have given timely written notice of the business to our
secretary. To be timely, a stockholder's notice must be delivered to or mailed
and received at our principal executive offices not less than 60 nor more than
90 calendar days prior to the first anniversary date on which we first mailed
our proxy materials for the preceding year's annual meeting of stockholders;
provided, however, that if the date of the annual meeting is advanced more than
30 calendar days prior to or delayed by more than 30 calendar days after the
anniversary of the preceding year's annual meeting, notice by the stockholder to
be timely must be so delivered not later than the close of business on the later
of the 90th calendar day prior to such annual meeting or the 10th calendar day
following the day on which public announcement of the date of such meeting is
first made. A stockholder's notice must set forth, as to each matter the
stockholder proposes to bring before the meeting, (1) a description in
reasonable detail of the business proposed to be brought before the meeting, (2)
the name and address of the stockholder proposing such business and of the
beneficial owner, if any, on whose behalf the proposal is made, (3) the class
and number of shares that are owned of record and beneficially by the
stockholder proposing the business and by the beneficial owner, if any, on whose
behalf the proposal is made, (4) any arrangements among such stockholder and
beneficial owner and any material interest of such stockholder or beneficial
owner in such business and (5) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and forms of proxy to holders of at
least the percentage of shares of our voting stock required to approve such
proposal.
Similarly, at a special meeting of stockholders, only such business as is
properly brought before the meeting will be conducted or considered. To be
properly brought before a special meeting, business must be (1) specified in the
notice of the meeting (or any supplement to that notice) given by or at the
direction of the chairman of our board, our president or a majority of the total
number of directors that our board would have if there were no vacancies or, (2)
otherwise brought before the meeting by the presiding officer or by or at
63
the direction of the majority of the total number of directors that our board
would have if there were no vacancies. In addition, a stockholder must also
comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to matters requested by a stockholder to be
brought before an annual meeting or special meeting.
Nomination of Candidates for Election to Our Board
Under our bylaws, only persons that are properly nominated will be eligible
for election to be members of our board. To be properly nominated, a director
candidate must be nominated at an annual meeting of the stockholders by or at
the direction of our board or properly nominated by a stockholder. To be
properly nominated by a stockholder, such stockholder must have delivered a
proxy statement and form of proxy to the holders of at least the percentage of
shares of our voting stock required to approve such nomination and included in
such materials a timely and proper notice in proper written form to our
secretary.
To be timely, a stockholder's notice must be delivered to or mailed and
received at our principal executive offices not less than 60 nor more than 90
calendar days prior to the first anniversary of the date on which we first
mailed our proxy materials for the preceding year's annual meeting of
stockholders. If, however, the date of the annual meeting is advanced more than
30 calendar days prior to or delayed by more than 30 calendar days after the
anniversary of the preceding year's annual meeting, notice by the stockholder to
be timely must be so delivered not later than the later of the 90th calendar day
prior to such annual meeting or the tenth calendar day following the day on
which public announcement of the date of such meeting is first made.
To be in proper written form, such stockholder's notice must include: (1)
the name and address of the stockholder giving the notice and of the beneficial
owner, if any, on whose behalf the nomination is made; (2) a representation that
the stockholder giving the notice is a holder of record of shares of our voting
stock entitled to vote at such annual meeting and intends to appear in person or
by proxy at the annual meeting to nominate the person or persons specified in
the notice; (3) the class and number of shares of stock owned beneficially and
of record by the stockholder giving the notice and by the beneficial owner, if
any, on whose behalf the nomination in made; (4) a description of all
arrangements or understandings between or among any of (A) the stockholder
giving the notice, (B) the beneficial owner on whose behalf the notice is given,
(C) each nominee, and (D) any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made by the
stockholder giving the notice as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the SEC had the nominee been
nominated, or intended to be nominated, by our board; (6) the signed consent of
each nominee to serve as a director or our board if so elected and (7) whether
such stockholder or beneficial owner intends to deliver a proxy statement and
form of proxy to holders of at least the percentage of shares of our voting
stock required to elect such nominee or nominees. In addition, a stockholder
must also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to matters relating to nomination
of candidates for directors.
Amendment of Bylaws
Except for certain provisions indicated above, our bylaws may be amended,
altered or repealed by the affirmative vote of the holders of a majority of our
voting stock or by the affirmative vote of a majority of our board. Certain
provisions that require the affirmative vote of the holders of 80% of our voting
stock may make it more difficult to change the bylaws for the purpose of gaining
control over us.
TRANSFER AGENT AND REGISTRAR
We have appointed National City Bank as the transfer agent and registrar
for our capital stock.
LISTING
We have applied to have our common stock listed for quotation on The Nasdaq
National Market under the symbol "TCPS."
64
SHARES ELIGIBLE FOR FUTURE SALE
No public market for our common stock existed before this offering. Future
sales of substantial amounts of our common stock in the public market or the
perception that those sales may incur could cause the market price of our common
stock to decline. A large number of our shares of common stock outstanding will
not be available for sale shortly after this offering because of contractual and
legal restrictions on resale as described below. Sales of substantial amounts of
our common stock in the public market after these restrictions lapse could
depress our prevailing market price and make it difficult or impossible for us
to sell additional securities when we need to raise capital.
Upon completion of this offering, we will have outstanding an aggregate of
13,640,000 shares of common stock, assuming no exercise of the underwriters'
over-allotment option. All of the shares sold in this offering, other than those
sold to our affiliates, will be freely tradable without restriction or further
registration under the Securities Act. The remaining 10,640,000 shares of common
stock held by existing stockholders are restricted securities. Subject to the
restrictions on transfer contained in the lock-up agreements described in
"Underwriting," restricted securities may be sold in the public market only if
registered or if they qualify for an exemption from registration under the
Securities Act.
As a result of the contractual lock-up restriction described below and the
rules under the Securities Act, the restricted shares will be available for sale
in the public market as follows:
[Enlarge/Download Table]
NUMBER OF
SHARES ELIGIBLE
RELEVANT DATES FOR FUTURE SALE COMMENT
-------------- --------------- --------------------------------------
On the effective date................. 0 Shares not locked up and saleable
under Rule 144(k)
90 days following the effective
date................................ 0 Shares not locked up and saleable
under Rule 144
180 days following the effective
date................................ 10,640,000 Lock-up released: shares held by
affiliates not saleable under Rule
144(k) but otherwise saleable in
compliance with Rule 144
LOCK-UP AGREEMENTS
All of our executive officers and directors, and all of our current
stockholders, have agreed not to transfer or dispose of, directly or indirectly,
any shares of our common stock or any securities convertible into or exercisable
or exchangeable for shares of our common stock, for a period of 180 days after
the date of this prospectus. Transfers or dispositions can be made sooner with
the prior written consent of McDonald Investments Inc.
RULE 144
In general, under Rule 144, beginning 90 days after the date of this
prospectus, a person who has beneficially owned shares of our common stock for
at least one year would be entitled to sell within any three-month period a
number of shares that does not exceed the greater of:
- 1% of the shares of common stock then outstanding, which will equal
136,400 shares immediately after this offering; or
- the average weekly trading volume of the common stock on The Nasdaq
National Market during the four calendar weeks preceding the filing of a
notice on Form 144 with respect to the sale.
Sales under Rule 144 must comply with manner of sale provisions and notice
requirements, and information about us must be publicly available.
65
RULE 144(k)
Under Rule 144(k), a person who has not been one of our affiliates at any
time during the 90 days preceding a sale, and who has beneficially owned the
shares proposed to be sold for at least two years, is entitled to sell those
shares without complying with the manner of sale, public information, volume
limitation or notice provisions of Rule 144. Therefore, unless otherwise
restricted, 144(k) shares may be sold immediately upon the completion of this
offering. All of our common stock outstanding prior to this offering is held by
affiliates and therefore cannot be sold pursuant to Rule 144(k) after complying
with the applicable 180-day lock-up agreement.
REGISTRATION RIGHTS
On the date 180 days after the effective date of the registration statement
of which this prospectus is a part, the holders of 10,640,000 shares of our
common stock will have "piggyback" registration rights in connection with future
offerings of our common stock. "Piggyback" registration rights entitle the
holders to notice of the registration and to include, at our expense, their
shares of common stock in many of our registrations of our common stock. Upon
the effectiveness of a registration statement covering these shares, the shares
would become freely tradable. See "Description of Capital Stock -- Registration
Rights."
STOCK OPTIONS
Upon the completion of this offering, we intend to file a registration
statement on Form S-8 under the Securities Act covering the shares of common
stock to be issued under our Amended and Restated 2001 Equity Plan. Based on the
number of shares reserved for issuance under our Amended and Restated 2001
Equity Plan, the registration statement would cover approximately 2,016,000
shares. The registration statement will become effective upon filing.
Accordingly, shares registered under the registration statement on Form S-8 will
be available for sale in the open market immediately thereafter, after complying
with Rule 144 volume limitations applicable to affiliates and with applicable
180-day lock-up agreements.
66
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
by and among us and McDonald Investments Inc. and First Albany Corporation, as
representatives for the underwriters named in the agreement, we have agreed to
sell to each underwriter, and each underwriter has severally agreed to purchase
from us, the number of shares of common stock set forth opposite its name in the
table below.
[Download Table]
UNDERWRITER NUMBER OF SHARES
----------- ----------------
McDonald Investments Inc....................................
First Albany Corporation....................................
---------
Total....................................................... 3,000,000
=========
The underwriting agreement provides that the obligations of the several
underwriters to purchase the shares offered hereby are subject to certain
conditions precedent and that the underwriters will purchase all of the shares
of common stock offered by this prospectus, other than those covered by the
over-allotment option described below, if any of these shares are purchased.
We have been advised by the representatives of the underwriters that the
underwriters propose to offer the shares of common stock to the public at the
public offering price set forth on the cover of this prospectus and to dealers
at a price that represents a concession not in excess of $ per share under
the public offering price. The underwriters may allow, and these dealers may
re-allow, a discount of not more than $ per share to other dealers. After
the initial public offering, representatives of the underwriters may change the
offering price and other selling terms.
We have granted to the underwriters an option, exercisable not later than
30 days after the date of this prospectus, to purchase up to 450,000 additional
shares of common stock at the public offering price less the underwriting
discounts and commissions set forth on the cover page of this prospectus. The
underwriters may exercise this option only to cover over-allotments made in
connection with the sale of the shares of common stock offered by this
prospectus. To the extent that the underwriters exercise this option, each of
the underwriters will become obligated, subject to conditions, to purchase
approximately the same percentage of these additional shares of common stock as
the number of shares to be purchased by it in the above table bears to the total
number of shares offered by this prospectus. We will be obligated, pursuant to
the option, to sell these additional shares of common stock to the underwriters
to the extent the option is exercised. If any additional shares of common stock
are purchased, the underwriters will offer the additional shares on the same
terms as those on which the 3,000,000 shares are being offered.
The underwriting discounts and commissions per share are equal to the
public offering price per share less the amount paid by the underwriters to us
per share. The underwriting discounts and commissions are % of the initial
public offering price. We have agreed to pay the underwriters the following
discounts
67
and commissions, assuming either no exercise or full exercise by the
underwriters of the underwriters' over-allotment option:
[Enlarge/Download Table]
TOTAL FEES
---------------------------------------------
WITHOUT EXERCISE OF WITH FULL EXERCISE OF
FEE PER SHARE OVER-ALLOTMENT OPTION OVER-ALLOTMENT OPTION
------------- --------------------- ---------------------
Underwriting discounts and commissions
paid by us.............................. $ $ $
In addition, we estimate that our share of the total expenses of this
offering, excluding underwriting discounts and commissions, will be
approximately $1.5 million.
We have agreed to indemnify the underwriters against some specified types
of liabilities, including liabilities under the Securities Act, and to
contribute to payments the underwriters may be required to make in respect of
any of these liabilities.
Each of our officers and directors, and all of our stockholders, have
agreed not to directly or indirectly sell, offer to sell, contract to sell,
grant any option for the sale, transfer, distribute or otherwise dispose of by
any means, shares of our common stock or other securities convertible into
shares of our common stock or shares of common stock issuable upon exercise of
options, warrants, subscription or other rights held by these persons prior to
180 days after the effective date of the registration statement of which this
prospectus is a part without the prior written consent of McDonald Investments
Inc. This consent may be given at any time without public notice. Our officers,
directors and stockholders may, however, make gifts of our securities to people
or entities who agree to be bound by the restrictions described above. We have
entered into a similar agreement with the representatives of the underwriters,
except that without such consent we may grant options pursuant to our Amended
and Restated 2001 Equity Plan and shares of common stock upon exercise of such
options. There are no agreements between the representatives and any of our
stockholders or affiliates releasing them from these lock-up agreements prior to
the expiration of the 180-day period.
The representatives of the underwriters have advised us that the
underwriters do not intend to confirm sales to any account over which they
exercise discretionary authority.
In order to facilitate the offering of shares of our common stock, the
underwriters may engage in transactions that stabilize, maintain, or otherwise
affect the market price of our common stock. Specifically, the underwriters may
over-allot shares of our common stock in connection with this offering, thus
creating a short sales position in our common stock for their own account. A
short sales position results when an underwriter sells more shares than that
underwriter is committed to purchase. A short sales position may involve either
"covered" short sales or "naked" short sales. Covered short sales are sales made
for an amount not greater than the underwriters' over-allotment option to
purchase additional shares in the offering described above. The underwriters may
close out any covered short position by either exercising their over-allotment
option or purchasing shares in the open market. In determining the source of
shares to close out the covered short position, the underwriters will consider,
among other things, the price of shares available for purchase in the open
market as compared to the price at which they may purchase shares through the
over-allotment option. Naked short sales are sales in excess of the
over-allotment option. The underwriters will have to close out any naked short
position by purchasing shares in the open market. A naked short position is more
likely to be created if the underwriters are concerned that there may be
downward pressure on the price of the shares in the open market after pricing
that could adversely affect investors who purchase in the offering.
Accordingly, to cover these short sales positions or to stabilize the
market price of our common stock, the underwriters may bid for, and purchase,
shares of our common stock in the open market. These transactions may be
effected on The Nasdaq National Market or otherwise.
Additionally, the representatives, on behalf of the underwriters, may also
reclaim selling concessions allowed to an underwriter or dealer if the
underwriting syndicate repurchases shares distributed by that underwriter or
dealer. Similar to other purchase transactions, the underwriters' purchases to
cover the syndicate short sales or to stabilize the market price of our common
stock may have the effect of raising or
68
maintaining the market price of our common stock or preventing or mitigating a
decline in the market price of our common stock. As a result, the price of our
common stock may be higher than the price that might otherwise exist in the open
market. The underwriters are not required to engage in these activities and, if
commenced, may end any of these activities at any time.
At our request, the underwriters have reserved for sale at the initial
public offering price up to 100,000 shares of our common stock being sold in
this offering for our vendors, employees, family members of employees, customers
and other third parties. The number of shares available for the sale to the
general public will be reduced to the extent these reserved shares are
purchased. Any reserved shares not purchased by these persons will be offered by
the underwriters to the general public on the same basis as the other shares in
this offering.
Prior to this offering, there has been no public market for our common
stock. Consequently, the initial public offering price of our common stock will
be determined by negotiation among us and the representatives of the
underwriters. Among the primary factors that will be considered in determining
the public offering price are:
- the information presented in this prospectus and otherwise available to
the underwriters;
- the history and the prospects for the industry in which we will compete;
- the ability of our management;
- our prospects for our future earnings;
- the present state of our development and our current financial condition;
- the general condition of the securities markets at the time of this
offering; and
- the recent market prices of, and the demand for, publicly traded common
stock of generally comparable companies.
We cannot be sure that the initial public offering price will correspond to
the price at which our common stock will trade in the public market following
this offering or that an active trading market for our common stock will develop
and continue after this offering.
The underwriters may, from time to time, engage in transactions with and
perform services for us in the ordinary course of their business.
69
LEGAL MATTERS
Jones, Day, Reavis & Pogue will pass upon the validity of the issuance of
the shares being sold in this offering. Certain matters will be passed upon for
the underwriters by Calfee, Halter & Griswold LLP, Cleveland, Ohio.
EXPERTS
The financial statements as of December 31, 2000 and 2001 and for each of
the three years in the period ended December 31, 2001 included in this
prospectus have been so included in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-1 under the Securities Act of 1933 with respect to the
common stock we are offering. This prospectus contains all information about TCP
and our common stock that would be material to an investor. The registration
statement includes exhibits and schedules to which you should refer for
additional information about us.
You may inspect a copy of the registration statement and the exhibits and
schedules to the registration statement without charge at the offices of the SEC
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. You may
obtain copies of all or any part of the registration statement from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549
upon the payment of the prescribed fees. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The
SEC maintains a web site at www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants like us that
file electronically with the SEC. You can also inspect our registration
statement on this web site.
After we have filed this registration statement, we will file annual,
quarterly and current reports, proxy statements and other information with the
SEC. You may read and copy any reports, statements or other information on file
at the public reference rooms. You can also request copies of these documents,
for a copying fee, by writing to the SEC, or you can review these documents on
the SEC's web site, as described above.
We intend to send our stockholders annual reports containing audited
financial statements and to make available quarterly reports containing
unaudited financial statements for the first three quarters of each fiscal year.
70
INDEX TO FINANCIAL STATEMENTS
[Download Table]
PAGE
----
Report of Independent Accountants........................... F-2
Balance Sheets at December 31, 2000 and 2001................ F-3
Statements of Operations for the Years Ended December 31,
1999, 2000 and 2001....................................... F-4
Statements of Stockholders' (Deficit) Equity for the Years
Ended December 31, 1999, 2000 and 2001.................... F-5
Statements of Cash Flows for the Years Ended December 31,
1999, 2000 and 2001....................................... F-6
Notes to the Financial Statements........................... F-7
F-1
REPORT OF INDEPENDENT ACCOUNTANTS
To the Stockholders and
Board of Directors of
Technical Consumer Products, Inc.
The stock split described in Note 10 to the financial statements has not been
consummated at January 16, 2002. When it has been consummated, we will be in a
position to furnish the following report:
"In our opinion, the accompanying balance sheets and the related statements
of operations, stockholders' (deficit) equity and cash flows present fairly,
in all material respects, the financial position of Technical Consumer
Products, Inc. as of December 31, 2000 and 2001, and the results of its
operations and its cash flows for each of the three years in the period
ended December 31, 2001, in conformity with accounting principles generally
accepted in the United States of America. These financial statements are the
responsibility of the Company's management; our responsibility is to express
an opinion on these financial statements based on our audits. We conducted
our audits of these financial statements in accordance with auditing
standards generally accepted in the United States of America, which require
that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the
overall financial statement presentation. We believe that our audits provide
a reasonable basis for our opinion."
/s/ PricewaterhouseCoopers LLP
Cleveland, Ohio
January 16, 2002
F-2
TECHNICAL CONSUMER PRODUCTS, INC.
BALANCE SHEETS
(IN THOUSANDS)
[Enlarge/Download Table]
DECEMBER 31, DECEMBER 31,
---------------- 2001
2000 2001 PRO FORMA
------ ------- ------------
(UNAUDITED)
ASSETS
Current assets:
Cash...................................................... $ 30 $ 389 $ 389
Accounts receivable, less allowance for doubtful accounts
of $49 and $218 at December 31, 2000 and 2001,
respectively........................................... 3,421 10,875 10,875
Inventories............................................... 3,594 19,840 19,840
Prepaid expenses.......................................... 67 304 304
------ ------- -------
Total current assets................................... 7,112 31,408 31,408
Property and equipment -- at cost:
Land...................................................... 186 186 186
Building and building improvements........................ 1,540 1,540 1,540
Equipment................................................. 303 859 859
Construction in process................................... -- 626 626
------ ------- -------
2,029 3,211 3,211
Less accumulated depreciation............................. 155 302 302
------ ------- -------
1,874 2,909 2,909
License agreement, net of amortization of $306 at December
31, 2001.................................................. -- 2,336 2,336
Cash surrender value of officer's life insurance............ 80 145 145
Intangible assets, net...................................... -- 146 146
Deferred security registration costs........................ -- 1,036 1,036
------ ------- -------
Total assets........................................... $9,066 $37,980 $37,980
====== ======= =======
LIABILITIES AND STOCKHOLDERS' (DEFICIT) EQUITY
Current liabilities:
Current maturities of long-term debt...................... $ 63 $ 24 $ 24
Current portion of liability under license agreement...... -- 383 383
Accounts payable.......................................... 599 2,044 2,044
Accounts payable affiliates............................... 2,276 14,956 14,956
Accrued stockholder distributions......................... 308 -- 3,582
Accrued liabilities....................................... 255 1,166 1,166
------ ------- -------
Total current liabilities.............................. 3,501 18,573 22,155
Long-term debt, net of current portion...................... 4,681 13,479 13,479
Notes payable affiliates.................................... 931 931 931
Liability under license agreement, net of current portion... -- 1,414 1,414
Commitments and contingencies............................... -- -- --
Stockholders' (deficit) equity:
Common stock, $0.001 par value; 11,200 and 28,000 shares
authorized at December 31, 2000 and 2001, respectively;
11,200 and 10,640 issued and outstanding at December
31, 2000 and 2001, respectively........................ -- -- --
Additional paid-in capital................................ 1 1 1
Accumulated (deficit) earnings............................ (48) 3,582 --
------ ------- -------
Total stockholders' (deficit) equity................... (47) 3,583 1
------ ------- -------
Total liabilities and stockholders' (deficit) equity... $9,066 $37,980 $37,980
====== ======= =======
The accompanying notes are an integral part of these financial statements.
F-3
TECHNICAL CONSUMER PRODUCTS, INC.
STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
[Enlarge/Download Table]
FOR THE YEAR ENDED DECEMBER 31,
---------------------------------
1999 2000 2001
--------- --------- ---------
Net product sales........................................... $15,414 $22,278 $87,800
Commission income -- related parties........................ 237 -- 295
------- ------- -------
Total net sales........................................... 15,651 22,278 88,095
Cost of goods sold -- related parties....................... 9,588 14,866 65,088
Cost of goods sold -- other................................. 1,963 2,102 6,927
------- ------- -------
Total cost of goods sold.................................. 11,551 16,968 72,015
------- ------- -------
Gross profit................................................ 4,100 5,310 16,080
Selling, general and administrative expenses................ 3,128 4,424 8,485
------- ------- -------
Income from operations...................................... 972 886 7,595
Other income................................................ 58 46 56
Interest expense -- related parties......................... (92) (56) (102)
Interest expense -- banks................................... (140) (405) (501)
------- ------- -------
Net income.................................................. $ 798 $ 471 $ 7,048
======= ======= =======
Weighted average shares outstanding -- basic and diluted.... 11,200 11,200 11,060
Net income per share -- basic and diluted................... $ 0.07 $ 0.04 $ 0.64
Unaudited pro forma income data:
Net income as reported.................................... $ 798 $ 471 $ 7,048
Pro forma income taxes.................................... (324) (194) (2,766)
------- ------- -------
Pro forma net income...................................... $ 474 $ 277 $ 4,282
======= ======= =======
Weighted average shares outstanding -- basic and
diluted................................................ 11,200 11,200 11,060
Pro forma net income per share -- basic and diluted....... $ 0.04 $ 0.02 $ 0.39
The accompanying notes are an integral part of these financial statements.
F-4
TECHNICAL CONSUMER PRODUCTS, INC.
STATEMENTS OF STOCKHOLDERS' (DEFICIT) EQUITY
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
[Enlarge/Download Table]
COMMON STOCK ADDITIONAL ACCUMULATED
-------------- PAID-IN (DEFICIT)
SHARES VALUE CAPITAL EARNINGS TOTAL
------ ----- ---------- ----------- -------
Balance at January 1, 1999................... 5,600 $-- $ 1 $ (775) $ (774)
S corporation distributions
($0.02 per share)....................... -- -- -- (105) (105)
Net income................................. -- -- -- 798 798
------ -- --- ------- -------
Balance at December 31, 1999................. 5,600 -- 1 (82) (81)
Issuance of common stock................... 5,600 -- -- -- --
S corporation distributions
($0.04 per share)....................... -- -- -- (437) (437)
Net income................................. -- -- -- 471 471
------ -- --- ------- -------
Balance at December 31, 2000................. 11,200 -- 1 (48) (47)
Common stock purchased..................... (560) -- -- (57) (57)
S corporation distributions
($0.30 per share)....................... -- -- -- (3,361) (3,361)
Net income................................. -- -- -- 7,048 7,048
------ -- --- ------- -------
Balance at December 31, 2001................. 10,640 $-- $ 1 $ 3,582 $ 3,583
====== == === ======= =======
The accompanying notes are an integral part of these financial statements.
F-5
TECHNICAL CONSUMER PRODUCTS, INC.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
[Enlarge/Download Table]
FOR THE YEAR ENDED
DECEMBER 31,
------------------------------
1999 2000 2001
-------- -------- --------
Cash flows from operating activities:
Net income................................................ $ 798 $ 471 $ 7,048
Adjustments to reconcile net income to net cash used in
operating activities:
Depreciation of property and equipment................. 161 106 186
Loss (gain) on disposal of property and equipment...... -- 9 (16)
Provision for bad debt expense......................... 21 43 177
Amortization of license agreement and intangible
assets............................................... -- -- 315
Change in operating assets and liabilities:
Accounts receivable.................................. (1,476) (584) (7,631)
Inventories.......................................... (1,941) (833) (16,246)
Prepaid expenses..................................... (1) (57) (237)
Deposits and other................................... 62 50 --
Accounts payable..................................... 155 191 1,445
Accounts payable affiliates.......................... 962 (300) 12,680
Accrued liabilities.................................. 23 73 911
-------- -------- --------
Net cash used in operating activities..................... (1,236) (831) (1,368)
Cash flows from investing activities:
Change in cash surrender value of life insurance.......... -- (80) (65)
Purchases of property and equipment and intangibles....... (267) (431) (1,408)
Proceeds from the sale of property and equipment.......... -- 102 48
-------- -------- --------
Net cash used in investing activities..................... (267) (409) (1,425)
Cash flows from financing activities:
Repayment of principal on notes payable................... -- (53) (872)
Borrowings under line of credit agreements................ 14,660 27,161 67,649
Repayments of line of credit agreements................... (12,624) (25,800) (58,018)
Payments of liability under license agreement............. -- -- (902)
Payments of deferred security registration costs.......... -- -- (1,036)
Proceeds from secured borrowings.......................... 480 -- --
Repayments of secured borrowings.......................... (978) -- --
Cash distributions to stockholders........................ (105) (129) (3,669)
-------- -------- --------
Net cash provided by financing activities................. 1,433 1,179 3,152
-------- -------- --------
Net (decrease) increase in cash............................. (70) (61) 359
Cash at beginning of year................................... 161 91 30
-------- -------- --------
Cash at end of year......................................... $ 91 $ 30 $ 389
======== ======== ========
Supplemental cash flow information:
Cash paid during the year for interest.................... $ 213 $ 480 $ 603
The accompanying notes are an integral part of these financial statements.
F-6
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NATURE OF OPERATIONS
Technical Consumer Products, Inc. (the "Company" or "TCP") designs, develops
and markets high-quality, energy efficient lighting products and accessories
to the commercial and industrial market and the residential consumer market
throughout North America. The Company's product line consists of a broad
range of compact fluorescent lamps, the electronic and magnetic ballasts
needed to illuminate linear and compact fluorescent lamps, compact
fluorescent lamp lighting fixtures and many compact fluorescent component
parts and accessories. Related parties in China manufacture substantially
all of the Company's products (see Note 2).
The Company operates as a single reportable segment. The internal financial
statements do not provide any further segregation of the operating results
of the Company below net sales. The same management group is responsible for
the entire operations of the Company. The Company has no international
operations or any significant international sales.
USE OF ESTIMATES
The preparation of the financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the reported amounts
of revenues and expenses during the reporting periods. Actual results may
differ from those estimates.
INVENTORIES
Inventories, which are comprised principally of finished goods, are stated
at the lower of cost or market, with cost determined using the first-in,
first-out method.
PROPERTY AND EQUIPMENT
Property and equipment is recorded at cost. Additions and improvements to
property and equipment that materially increase productive capacity or
extend the life of an asset are capitalized. Maintenance, repairs and minor
renewals are expensed as incurred. Upon retirement or other disposition of
such assets, the related costs and accumulated depreciation are removed from
the respective accounts and any resulting gain or loss is included in
income. During 1999, the Company decided to relocate its corporate
headquarters. As a result of the move, the remaining net book value of
leasehold improvements associated with the former corporate headquarters was
amortized on an accelerated basis from the date the decision was made to
move through the actual date of the move. Due to this event, accelerated
amortization expense for leasehold improvements of approximately $113,000
was recorded in 1999.
The provision for depreciation of property and equipment is generally
computed using accelerated methods at rates designed to amortize the cost of
assets over their useful lives, which range from 3 to 5 years for equipment,
15 years for building improvements and 39 years for the building. The
Company performs reviews for the impairment of long-lived assets whenever
events or changes in circumstances indicate that the carrying amount of an
asset may not be recoverable.
LICENSE AGREEMENT
The license agreement was recorded at its net present value and is being
amortized on the straight-line basis over 5 years beginning April 2001 (see
Note 6).
F-7
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
CASH SURRENDER VALUE OF OFFICER'S LIFE INSURANCE
In March 2000, the Company entered into split dollar agreements with two
executives pursuant to which the Company pays the premiums due on whole life
insurance policies for each executive. The executives own the policies and
have each assigned an interest in the policy to the Company in an amount
equal to the lesser of the premiums paid to date or the cash surrender value
of the policy. The face value of these policies at December 31, 2001 total
approximately $2,926,000.
Additionally, in March 2000, the Company purchased whole life insurance
policies for two other executives. The Company owns each of these policies.
However, under a deferred compensation agreement, the executive or his
designated beneficiary will be entitled to a portion of the benefits of the
policy depending on the years of service, as follows. Death benefit: if the
executive dies while employed, the Company would receive the premiums paid
to date and his beneficiary would receive the remainder. Life time benefit:
if the executive remains employed for 15 years or more, the executive would
receive the entire cash surrender value of the policy; if the executive is
employed less than 15 years, the Company would receive, at a minimum, the
cash surrender value of each policy. The Company has recorded a deferred
compensation liability at December 31, 2001 totaling approximately $8,000
representing two-fifteenths of the cash surrender value of these policies at
December 31, 2001. The face value of these policies at December 31, 2001
total approximately $2,423,000.
At December 31, 2000 and 2001, the Company has recorded the cash surrender
value of these four policies totaling approximately $80,000 and $145,000,
respectively.
INTANGIBLE ASSETS
Intangible assets consist of the patents acquired in the acquisition of the
assets of JRS Technology, Inc. described in Note 8. Amortization of
intangible assets is provided using the straight-line method over 3 years.
Accumulated amortization at December 31, 2001 is approximately $8,600.
DEFERRED SECURITY REGISTRATION COSTS
Deferred security registration costs consist of direct, external costs
incurred by the Company for the proposed initial public offering of its
common stock. Assuming a successful initial public offering, this amount
will be offset against the equity generated from the offering. If the
offering is not successful, this amount will be expensed.
REVENUE RECOGNITION
The Company's revenue recognition policy is to recognize revenues when
products are shipped (FOB Shipping Point) or, for certain customers, when
products are received by the customer's shipping agent, at which time title
transfers to the customer. The Company's return policy is to replace, repair
or issue credit for product under warranty. The Company's customers, which
include distributors, take title to the Company's products upon shipment and
do not have any right of return provisions other than for warranty
provisions. In December 1999, the Securities and Exchange Commission
released Staff Accounting Bulletin No. 101, "Revenue Recognition in
Financial Statements." The adoption of this bulletin did not have a material
impact on the Company's financial statements.
ADVERTISING EXPENSE
Advertising costs are expensed as incurred. Advertising expenses were
approximately $232,000, $344,000 and $522,000 for the years ended December
31, 1999, 2000 and 2001, respectively.
F-8
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
RESEARCH AND DEVELOPMENT COSTS
Research and development costs are expensed as incurred. Research and
development costs totalled approximately $208,000 for the year ended
December 31, 2001. Prior to fiscal year 2001, the Company conducted most of
its research and development by working with the licensor of certain
technology that it used and by working with its suppliers and customers.
INCOME TAXES
The Company, with the consent of its stockholders, has elected to be treated
as an S corporation under the Internal Revenue Code. In lieu of corporate
federal and certain state income taxes, the stockholders of an S corporation
are taxed individually on their share of the Company's taxable income. For
purposes of these financial statements, pro forma income taxes were provided
as if the Company was a C corporation (which it will convert to concurrent
with the initial public offering) for the entire period of these financial
statements (see Note 9).
STATEMENTS OF CASH FLOWS -- NON-CASH INVESTING AND FINANCING ACTIVITIES
On January 12, 2000, the Company acquired land and a building for a new
operating facility for approximately $1,756,000, of which $356,000 was paid
in cash and $1,400,000 was financed with external loans (see Note 3). The
Company also declared stockholder distributions of $308,000 for fiscal 2000
that were unpaid and included in accrued liabilities at December 31, 2000.
Also, as further described in Note 6, in April 2001, and amended in
September 2001, the Company committed to a license agreement and to the
purchase of certain shares of common stock for which the net present value
of approximately $2,699,000 was recorded as an asset in fiscal 2001.
EARNINGS PER COMMON SHARE
Basic earnings per share is based on the weighted effect of all shares of
common stock issued and outstanding and is calculated by dividing net income
by the weighted average shares outstanding during the period. For all of the
fiscal years presented in these financial statements there were no
potentially dilutive shares of common stock; therefore, basic earnings per
share equals diluted earnings per share. In accordance with issued Statement
of Financial Accounting Standard ("SFAS") No. 128, "Earnings Per Share," the
5,600,000 shares of common stock issued to management and an outside party
in fiscal 2000 for nominal consideration (see Note 4) were considered to be
outstanding for all the periods presented in these financial statements in
computing basic and diluted earnings per share.
CONCENTRATIONS OF CREDIT RISK
Financial instruments that potentially expose the Company to concentrations
of credit risk consist primarily of trade accounts receivable. The Company's
customers are not concentrated in any specific geographic region or industry
but, at times, may be significant by individual customer (see Note 5). The
Company reviews a customer's credit history before extending credit. The
Company establishes an allowance for possible losses based upon factors
surrounding the credit risk of specific customers, historical trends and
other information. Collateral is generally not required against trade
accounts receivable. Losses from credit sales have been consistent and
within the allowance provided.
FAIR VALUES OF FINANCIAL INSTRUMENTS
Cash, accounts receivable, accounts payable and accrued liabilities are
reflected in the accompanying financial statements at cost, which
approximates fair value because of the short-term maturity of these
instruments. The Company's revolving line of credit agreement and the Bank
Note are carried at amounts that approximate fair value due to the variable
interest rates associated with these instruments (see Note 3). Based on the
borrowing rates currently available to the Company for bank loans with
F-9
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
similar terms and average maturities, the fair value of the State Note was
approximately $385,000 and $490,000 at December 31, 2000 and 2001,
respectively, compared to the recorded value of approximately $497,000 and
$475,000, respectively. Additionally, the fair value of the Notes Payable
Affiliates using the same methodology was approximately $791,000 and
$992,000 at December 31, 2000 and 2001, respectively, compared to the
recorded value of $931,328 at each date. The fair value of the liability
under license agreement was approximately $1,849,000 at December 31, 2001
compared to the recorded value of approximately $1,797,000.
IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS 138,
"Accounting for Certain Hedging Activities" was issued in June 2000 to amend
the accounting and reporting of derivative and hedging instruments. SFAS No.
133 requires all derivatives to be measured at fair value and recognized as
either assets or liabilities on the balance sheet with changes in fair
values recognized immediately in net income (loss) to the extent the
derivatives are not effective as hedges. Because the Company does not
presently use derivatives or engage in hedging activities, the adoption of
these standards did not have any effect on the Company's financial position,
results of operations, or cash flows.
In June 2001, the Financial Accounting Standards Board issued SFAS No. 141,
"Business Combinations," to improve the transparency of the accounting and
reporting for business combinations by requiring that all business
combinations be accounted for under a single method, the purchase method.
Use of the pooling-of-interests method is no longer permitted. SFAS 141 also
establishes criteria for separate recognition of intangible assets acquired
in a purchase business combination. SFAS 141 is effective for all business
combinations initiated after June 30, 2001. The Company considered this
standard in accounting for the acquisitions described in Note 8.
In June 2001, the Financial Accounting Standards Board issued SFAS No. 142,
"Goodwill and Other Intangible Assets." SFAS No. 142 addresses financial
accounting and reporting for acquired goodwill and other intangible assets
and supersedes Accounting Principles Board Opinion No. 17, "Intangible
Assets." SFAS No. 142 addresses how intangible assets that are acquired
individually or with a group of other assets (but not those acquired in a
business combination) should be accounted for in financial statements upon
their acquisition. SFAS No. 142 also addresses how goodwill and other
intangible assets should be accounted for after they have been initially
recognized in the financial statements. The provisions of SFAS No. 142 are
required to be applied starting with fiscal years beginning after December
15, 2001. The Company considered this standard in accounting for the
acquisitions described in Note 8.
In June 2001, the Financial Accounting Standards Board issued SFAS No. 143,
"Accounting for Asset Retirement Obligations." SFAS No. 143 addresses
financial accounting and reporting for obligations associated with the
retirement of tangible long-lived assets and the associated asset retirement
costs. It applies to legal obligations associated with the retirement of
long-lived assets that result from the acquisition, construction,
development and/or the normal operation of a long-lived asset, except for
certain obligations of lessees. SFAS 143 is effective for financial
statements issued for fiscal years beginning after June 15, 2002. Currently,
this standard has no effect on the Company.
In August 2001, the Financial Accounting Standards Board issued SFAS No.
144, "Accounting for the Impairment or Disposal of Long-Lived Assets." SFAS
No. 144 addresses financial accounting and reporting for the impairment or
disposal of long-lived assets. SFAS No. 144 supersedes the Financial
Accounting Standards Board SFAS No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of," and the
accounting and reporting provisions of Accounting Principles Board Opinion
No. 30, "Reporting the Results of Operations." SFAS No. 144 also amends
F-10
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
Accounting Research Bulletin No. 51, "Consolidated Financial Statements," to
eliminate the exception to consolidation for a subsidiary for which control
is likely to be temporary. SFAS No. 144 is effective for financial
statements issued for fiscal years beginning after December 15, 2001, and
interim periods within those fiscal years. The Company will consider this
standard going forward.
2. RELATED PARTY TRANSACTIONS
GENERAL: These financial statements include all costs associated with the
operations of the Company on a stand alone basis.
INVENTORY/MANUFACTURING AND SUPPLY AGREEMENT: Substantially all of the
Company's products are manufactured by and purchased from two affiliated
companies located in China, Shanghai Zhen Xin Electronic Engineering Co.,
Ltd. and Shanghai Jensing Electron Electrical Equipment Co., Ltd. The
Chairman, Chief Executive Officer and majority stockholder of TCP owns the
majority of the stock of these Chinese companies; the minority portion is
owned by an entity indirectly controlled by a local township in Shanghai,
China. Additionally, the brother of the Chairman and Chief Executive Officer
of TCP operates these Chinese companies, which share the same facilities,
assets and personnel and essentially operate as the same entity but are
legally distinct and have operating lives of different durations in order to
continuously enjoy certain tax benefits in China.
Prior to January 2002, transactions with the Chinese affiliates were
conducted through unwritten agreements. In January 2002, TCP and the Chinese
affiliates entered into a written, exclusive manufacturing and supply
agreement. The agreement is for a period of ten years, with five-year
automatic renewals thereafter unless terminated by either party within 90
days of expiration of the original term or any renewal term. This agreement
requires the Chinese suppliers to manufacture products to TCP's
specification at prices agreed upon from time to time; provided, however,
that the aggregate price for purchases by TCP in any given year does not
exceed the total costs incurred by the Chinese suppliers plus an agreed-upon
profit margin. Additionally, the agreement limits the Chinese suppliers from
selling competitive products to others. Because of the conflict of interest
that arises out of the ownership of TCP and the Chinese affiliates by TCP's
Chairman and Chief Executive Officer, changes to this supply agreement must
be approved by the independent board members of the Company.
At the end of the fourth quarter of fiscal 2001, TCP and the Chinese
affiliates agreed upon a retroactive price adjustment of approximately
$1,727,000 for certain products purchased and sold by TCP during the fourth
quarter of fiscal 2001. The effect of this adjustment for 2001 was to
decrease cost of sales by approximately $760,000, decrease inventory by
approximately $967,000 at December 31, 2001 and decrease accounts payable
affiliates by approximately $1,727,000 at December 31, 2001. The purpose of
this adjustment was to recognize price adjustments for production
efficiencies in the facilities of the Chinese affiliates that resulted from
increased volume throughout 2001. The Company was able to negotiate this
retroactive price adjustment because of its relationship with its Chinese
affiliates. In the future, the Company's product pricing will be governed by
the terms of the aforementioned manufacturing and supply agreement.
Purchases of inventory from these affiliates amounted to approximately
$9,580,000, $15,190,000 and $77,246,000 for the years ended December 31,
1999, 2000 and 2001, respectively. Amounts owed to these affiliates are
reflected as "Accounts payable affiliates" in the accompanying balance
sheets and are settled in the ordinary course of business; provided,
however, that the amended credit agreement entered into on December 28, 2001
prohibits the Company from reducing this balance to an amount less than
$3,000,000. Additionally, TCP provided these affiliates various management
and advisory services related to expansion, quality control, production,
component sourcing, accounting, freight and logistics. Fees
F-11
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
charged by TCP for these services approximated $56,000 in each of 1999, 2000
and 2001, and are included within other income in the statements of
operations.
NOTES PAYABLE AFFILIATES: Effective December 31, 1998, the Company
refinanced $931,328 of its accounts payable affiliates into two long-term
notes as follows: $766,757 note payable to Shanghai Jensing and $164,571
note payable to Shanghai Zhen Xin. Both notes are due on January 9, 2009 and
bear interest at 6% per annum. Interest expense on these notes was
approximately $56,000 in 1999, 2000 and 2001. These notes are subordinated
to all of the debt described in Note 3. Additionally, the amended credit
agreement entered into on December 28, 2001, prohibits the Company from
making any early principal payments on these notes.
COMMISSION INCOME: At various times, the Company entered into arrangements
with the Chinese affiliates whereby the Company acted as a commissioned
sales agent for certain product sales made at TCP's direction that were
directly shipped to customers by the affiliates. Total commissions earned
from the affiliates amounted to approximately $237,000 and $295,000 for the
years ended December 31, 1999 and 2001, respectively.
RESEARCH AND DEVELOPMENT COSTS: In fiscal 2001, TCP and the Chinese
affiliates agreed to share the research and development expenses incurred by
TCP in fiscal 2001 for the development of a commercial grade ballast.
Accordingly, in fiscal 2001, TCP charged the Chinese affiliates
approximately $196,000 for their share of such research and development
expenses. This amount has been recorded as a reduction in selling, general
and administrative expenses.
LICENSE AGREEMENT: As further described in Note 6, until September 30,
2001, the Company and its Chinese affiliates had license agreements with a
now former stockholder of the Company and such stockholder's company.
FACTORING ARRANGEMENT: Prior to obtaining a line of credit agreement in
January 1999, the Company obtained financing by factoring its accounts
receivable with an officer of the Company at a 3% to 5% discount. Financing
costs incurred by the Company under this arrangement totalled approximately
$36,000 in 1999 and are included within interest expense in the statements
of operations. The Company paid all amounts in full in January 1999.
LETTERS OF CREDIT: During 1999 and 2000, the Company acquired approximately
$697,000 and $277,000, respectively, of inventory through letter of credit
agreements funded by an officer of the Company. Fees paid by the Company to
this related party for these transactions were approximately 10.5% of the
borrowed amount and totalled approximately $73,000 and $29,000 for the years
ended December 31, 1999 and 2000, respectively. Amounts borrowed under these
letters of credit agreements were due within 30 to 60 days of receipt of the
inventory by the Company. Amounts borrowed and fees due under these letters
of credit agreements were paid in full.
LEASED FACILITY: Prior to purchasing its new facility on January 12, 2000,
the Company leased its warehouse and office space from an entity controlled
by an officer of the Company. Rent expense under this related party lease
was approximately $83,000 and $35,000 for the years ended December 31, 1999,
and 2000, respectively. In fiscal 2000, the Company surrendered a $50,000
rent deposit to this related party as a settlement for the early termination
of the lease agreement.
BUILDING PURCHASE/SALE: In fiscal 1999, the Company purchased a building
from an entity controlled by an officer of the Company for $125,000. In
December 1999, the Company decided to sell this building to an unrelated
party. Net proceeds from the sale totalling approximately $102,000 were
received in January 2000.
ACCOUNTING, TAX AND FINANCIAL CONSULTING SERVICES: At various times, an
officer of the Company provided certain accounting, tax and financial
consulting services to the Company outside of his capacity
F-12
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
as an employee and was paid approximately $30,000, $49,000 and $30,000 for
these services for the years ended December 31, 1999, 2000 and 2001,
respectively.
3. LONG-TERM DEBT
Long-term debt, excluding the notes payable affiliates, consists of the
following:
[Download Table]
DECEMBER 31,
----------------
2000 2001
------ -------
(IN THOUSANDS)
Line of credit agreement............................... $3,397 $13,028
Bank Note.............................................. 850 --
State Note............................................. 497 475
------ -------
4,744 13,503
Less amounts due within one year....................... (63) (24)
------ -------
Total long-term debt................................... $4,681 $13,479
====== =======
In January 1999, the Company entered into line of credit agreement with a
bank that made available borrowings up to $2,000,000, due on demand. In
September 1999, this agreement was amended to allow borrowings up to
$3,000,000. Borrowings under this agreement, which were limited based on a
certain percentage of accounts receivable and inventory, were collateralized
by substantially all of the Company's assets and guaranteed by the Company's
Chairman and Chief Executive Officer. Interest on outstanding borrowings was
due monthly at 2.5% above the bank's prime rate (11% at December 31, 1999).
This agreement contained certain restrictive covenants which, among other
things, limited additional indebtedness and required the Company to maintain
specified financial ratios. As further described below, subsequent to
December 31, 1999, the Company refinanced this agreement with a long-term
obligation; therefore, this obligation was classified as long-term at
December 31, 1999.
On February 1, 2000, the Company refinanced the above line of credit
agreement with a $3,500,000 line of credit agreement with a different bank
that was to expire in February 2003. This agreement was amended in November
2000 to increase borrowings to $4,000,000 and again in February 2001 to
increase borrowings to $5,000,000. Borrowings under this agreement were
limited based on certain percentages of eligible accounts receivable and
inventory. Based on the borrowing base formula, there was no limitation at
December 31, 2000. Borrowings under this agreement were collateralized by
substantially all of the Company's assets and guaranteed by the Company's
Chairman and Chief Executive Officer. Interest under this agreement was
payable monthly at .75% above the bank's prime lending rate (10.25% at
December 31, 2000). Additionally, this agreement contained certain
restrictive covenants that, among other things, limited additional
indebtedness and required the Company to maintain specified financial
ratios. In fiscal 2000, the Company obtained waivers for the violation of
certain financial ratio covenant violations.
In August 2001, the above described line of credit was refinanced with a
$15,000,000 revolving credit facility from a different bank, subject to a
similar borrowing base formula. On December 28, 2001, this agreement was
amended to increase borrowings to $20,000,000. Borrowings under this credit
facility, which expires in July 2003, bear interest at the Company's option
of the bank's prime rate or LIBOR plus 3.0% (4.75% at December 31, 2001
based on the prime rate selection) and are collateralized by substantially
all of the Company's assets. The Company is required to pay a quarterly
commitment fee of .125% for the unused portion of this facility.
Additionally, $1,000,000 of the borrowings under the credit facility is
guaranteed by the Company's Chairman and Chief Executive Officer. This new
credit facility also contains certain restrictive covenants that, among
other things, limit additional indebtedness and requires the Company to
maintain specified financial ratios. In 2001, the Company obtained waivers
for certain financial and non-financial covenant violations. The Company has
the ability to issue up to
F-13
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
$500,000 in letters of credit under the credit facility, which reduces the
availability on the revolving credit facility. There were no letters of
credit outstanding at December 31, 2000 or 2001.
In January 2000, the Company obtained a $900,000 commercial mortgage from a
bank ("Bank Note") and a $500,000 loan through the State of Ohio 166 Program
("State Note"), both of which were used to acquire a warehouse and office
facility located in Aurora, Ohio for $1,750,000. The Bank Note was payable
in 119 monthly principal payments of $3,750 through March 2010, plus
interest at the bank's prime rate, with a balloon payment of $453,750 due in
March 2010. In August 2001, the Company paid off the entire balance of the
Bank Note with proceeds from the new credit facility previously discussed.
The State Note is payable in 180 monthly payments of $4,015, which includes
interest at a rate of 5.25%, through December 2015. The State Note is
collateralized by the new facility, is guaranteed by the Company's Chairman
and Chief Executive Officer and contains certain restrictive covenants
similar to the line of credit agreement. In fiscal 2000, the Company
obtained waivers for certain financial covenant violations and in fiscal
2001, the Company obtained waivers for certain financial and non-financial
covenant violations.
The following is a summary of aggregate maturities of long-term debt at
December 31, 2001 (excluding the notes payable affiliates that are due in
2009) for each of the next five years:
[Download Table]
(IN THOUSANDS)
2002........................................................ $ 24
2003........................................................ 13,052
2004........................................................ 26
2005........................................................ 28
2006........................................................ 29
Thereafter.................................................. 343
-------
$13,503
=======
4. STOCKHOLDERS' EQUITY
Prior to January 2000, the Company's Chairman and Chief Executive Officer
owned 100% of the common stock of the Company. In January 2000, the Company
issued 2,240,000 shares of common stock to certain officers of the Company
and an additional 2,800,000 shares to the Chairman and Chief Executive
Officer. Additionally, as further described in Note 6, in January 2000, the
Company issued 560,000 shares of common stock to an individual to convert a
non-exclusive patent license to an exclusive license, all of which shares
the Company repurchased effective September 30, 2001. No compensation
expense was recognized for these transactions.
On October 15, 2001, the Company converted from an Ohio corporation to a
Delaware corporation and increased its authorized shares of common stock to
28,000,000. Each common share in the Ohio corporation issued and outstanding
was converted into one share of common stock in the Delaware corporation.
On January 11, 2002, the Company made estimated tax distributions to its
stockholders totaling approximately $581,000.
5. MAJOR CUSTOMERS / SIGNIFICANT SUPPLIERS
For the year ended December 31, 1999, customers A and B accounted for
approximately $1,724,000 and $1,686,000, or 11.0% and 10.8%, of net sales,
respectively. For the years ended December 31, 2000 and 2001, customer C
accounted for approximately $4,965,000 and $46,374,000, or 22.3% and 52.6%,
of net sales, respectively. Additionally, at December 31, 2001, customer D,
whose sales accounted for approximately 9.1% of net sales in 2001 (all of
which occurred in the fourth quarter of 2001), had outstanding receivables
of approximately $5,600,000, or 51% of total accounts receivable, at
December 31, 2001.
F-14
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
As further described in Note 2, substantially all of the Company's products
are manufactured by and purchased from two related parties located in China.
Although management believes that there are alternative sources that can
manufacture and supply the Company's products, they believe that only the
unique nature of this affiliated relationship can provide TCP with the
ability to monitor and control the entire manufacturing process of their
products to ensure consistently high quality products and enable the Company
to respond to the specialized product needs of TCP's customers. As a result,
any significant accidents, labor disputes, fires, severe weather, floods or
other difficulties encountered by these affiliated suppliers could result in
product defects, production delays, cost overruns or the inability to
fulfill customer orders on a timely basis, all of which could have a
material adverse effect on the Company's business and results of operations.
6. COMMITMENTS AND CONTINGENCIES
LICENSE AGREEMENTS:
The Company is a party to four related license agreements with an entity
and, in certain instances, such entity's president, pursuant to which the
Company was granted licenses to use the entity's electronic ballast
technology in exchange for a license fee and minimum monthly royalty
payments.
In 1996, TCP entered into the first of these license agreements that granted
the Company and its affiliates a non-exclusive license to manufacture and
sell certain products incorporating the technology of this entity. Royalty
payments were due by TCP based on the number of units sold by TCP. In 1996,
the Company's affiliates in China also entered into a license agreement with
this entity and such entity's president, which agreement required the
Company's affiliates to use certain component parts produced by the
counterparty of this agreement.
In January 2000, the Company issued 560,000 shares of common stock to the
president of the above-described entity as consideration for his agreement
to convert the non-exclusive patent license under the initial license
agreement into an exclusive patent license. This agreement was memorialized
in a license agreement entered into with him and the above-described entity
in March 2000. Under this agreement the Company obtained an exclusive
license for a patent for which it only had a non-exclusive license under the
initial license agreement and obtained additional exclusive and
non-exclusive licenses for patents covering other electronic ballast
technology of this entity. Additionally, the terms of the agreement were
modified to increase the minimum royalties to $20,000 per month. The Company
entered into this agreement primarily to obtain the exclusive license so
that it could obtain legal standing to initiate a lawsuit against a
competitor that the Company believed was infringing on a patent that was
subject to the license. The Company attributed the 560,000 shares of common
stock that it issued in January 2000 as the consideration for the conversion
of the non-exclusive patent license to an exclusive patent license. The
Company attributed its agreement to pay increased minimum monthly payments
of $20,000 as the consideration for the additional licenses granted under
the second agreement. These agreements are for an indefinite period of time
and are cancellable by the Company at any time provided that the Company
refrains from using, selling or marketing certain products as defined in the
agreements.
In May 2001, the Company entered into the third amendment to this agreement
with the above entity and such entity's president, which incorporated the
terms of both the first and second agreements. Shortly after obtaining the
exclusive license covering the patent that the Company believed was being
infringed, the Company realized that others were potentially infringing upon
this patent. Because the Company had neither the time nor the resources to
take legal action against all those allegedly infringing upon the patent and
because the Company concluded that the infringement of this patent was not
material to its operations, the Company no longer had a need for an
exclusive license with respect to this entity's electronic ballast
technology. Therefore, the Company entered into this third agreement to
effect the conversion of its exclusive licenses into non-exclusive licenses,
as well as to limit the amount of royalties to be paid in the future under
each of the prior agreements. Under the terms of the third
F-15
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
agreement, the Company and the entity agreed to a $2,000,000 settlement for
all future royalties that would have been due under these agreements. This
agreement is also for an indefinite period of time and is cancellable by the
Company at any time provided that the Company refrains from using, selling
or marketing certain products as defined in the agreements. Additionally,
the Company was no longer required to purchase certain component parts from
this entity. The settlement amount is non-refundable and due and payable as
follows: $108,334 for each month beginning April 2001 for 6 months and
$25,000 each month thereafter until the balance is paid in full (March
2006). Additionally, concurrent with this agreement and subject to a
September 2001 modification, the Company entered into a stock buy back
agreement to buy 560,000 shares of common stock held by the president of
this entity on September 30, 2001 for $500 and the conversion of the
Company's exclusive licenses into non-exclusive licenses. For purposes of
these financial statements, the present value of the amounts to be paid for
the license agreement and the stock buy back agreement were allocated as
follows: $1,683,000 to the license agreement, which is being amortized over
five years beginning April 2001, and $57,000 to the stock buy back
agreement.
In September 2001, the Company entered into a fourth agreement, which
amended and restated the terms of the first three agreements. The Company
entered into this fourth agreement to (1) clarify certain rights and
obligations, including certain vague or uncertain contractual terms, under
the three other license agreements described above, (2) provide the Company
with the right to transfer the license agreement without consent and (3)
expressly provide that the Company will have a perpetual, nonexclusive
license to use the technology licensed under the agreement after making
payments due under the license agreement. Under the terms of this fourth
license agreement, in order to protect the Company from any unforeseen
obligations or liabilities that could result from the vague or uncertain
portions of the previous agreements, the Company also obtained a mutual
general release for it and its principal suppliers with respect to any
obligations or other liabilities arising on or prior to September 30, 2001
under all of the license agreements and under a technical assistance
agreement that the Company entered into with the above entity in June 1996
that expired in June 1997, as well as for terminating a license agreement
that its principal suppliers had entered into with the above entity.
Although the Company was not contractually obligated to pay for such a
release and termination on behalf of its principal suppliers, it requested
that they be included in the general release to limit any unforeseen risks,
and thus potential increased product costs to the Company, that the
Company's suppliers may have been subject to during the term of their
agreement with the above entity.
At September 30, 2001, when the Company entered into this amended and
restated license agreement, the Company had already paid $650,000 of the
$2,000,000 obligation due under the third agreement previously described.
Under the terms of this amended and restated agreement, the Company also
agreed to satisfy all of the remaining obligations due under each of the
prior license agreements for a non-refundable payment of $2,360,000, which
includes $200,000 for the mutual general release described above. This
revised settlement is due as follows: $200,000 on October 10, 2001 and
$40,000 each month for 54 months through March 2006. As a result of this
amendment, the total payments to be made to the counterparty of the license
agreement are $3,010,000, of which $2,642,000 was allocated to the license
agreement based on the present value of the future payments. The present
value of the remaining obligation due under the fourth agreement at December
31, 2001 is approximately $1,797,000.
Approximately $333,000, $426,000 and $379,000 was incurred for royalty
expense under these agreements for the years ended December 31, 1999, 2000
and 2001, respectively. Approximately $306,000 of the fiscal 2001 royalty
expense was related to the amortization of the license agreement.
LEASE COMMITMENTS: The Company leases certain office equipment under
non-cancellable operating leases. Future minimum rental payments under these
non-cancellable leases at December 31, 2001 are approximately $3,000 each
year through 2004. Total rental expense was approximately $87,000, $41,000
F-16
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
and $3,000 for the years ended December 31, 1999, 2000 and 2001,
respectively. Such amounts include the related party portion disclosed in
Note 2.
Future payments due under the license agreement and the leases described
above at December 30, 2001 are as follows:
[Download Table]
LICENSE LEASE
AGREEMENT AGREEMENTS
--------- ----------
(IN THOUSANDS)
2002................................................ $ 480 $ 3
2003................................................ 480 3
2004................................................ 480 3
2005................................................ 480 --
2006................................................ 120 --
------ ---
Total future payments............................. $2,040 $ 9
Less amounts for interest......................... (243) --
------ ---
$1,797 $ 9
====== ===
FACILITY EXPANSION: In September 2001, the Company entered into a contract
for approximately $1.0 million to expand the facility purchased in January
2000 by 60,000 square feet. The Company expects this expansion to be
completed in early 2002.
LEGAL MATTERS: In the normal course of its operations, the Company is party
to certain legal actions which, based on internal review and advice of its
legal counsel, management believes will not have a material adverse effect
on the financial condition, results of operations or cash flows of the
Company.
ENERGY STAR: The Company participates in the Department of Energy's ENERGY
STAR Program, pursuant to which the Company's products have to meet
requirements established by the Department of Energy in order to be
qualified to bear the ENERGY STAR certification mark. The Company believes
that ENERGY STAR certification for its residential consumer products is
essential to its success in that market. New, more demanding ENERGY STAR
certification standards for compact fluorescent lamps were adopted by the
Department of Energy during the fourth quarter of 2001, and ENERGY STAR
partners must comply with these new requirements by July 2002. The Company
is in the process of having its products tested under the new standards.
While testing is not complete, based on preliminary results, the Company
believes that products representing the majority of its sales to the
residential consumer market will meet the new certification standards
without the need for modification. Other products will need to be modified
to meet the new standards. Should the Company's residential consumer
products fail to meet these new requirements, sales of its compact
fluorescent lamps could decline. The Company cannot guarantee that compact
fluorescent lamps that were previously ENERGY STAR certified will continue
to qualify for ENERGY STAR certification, or that any of its other compact
fluorescent lamps will qualify for ENERGY STAR certification, in the future.
If this occurs, in addition to losing sales in the residential market, the
Company may not be successful in implementing its strategy of expanding and
diversifying its retail presence into mass merchants and supermarkets.
7. EMPLOYEE BENEFIT PLAN
In fiscal year 2000, the Company adopted a tax-qualified 401(k) savings plan
for all eligible employees. The plan allows eligible employees to contribute
up to 12% of their pre-tax earnings up to the statutory limit prescribed by
the Internal Revenue Service. The Company matches 50% of participant
contributions made to the plan up to 6% of the participant's compensation.
Company matching contributions were approximately $22,000 and $23,000 for
the years ended December 31, 2000 and 2001, respectively.
F-17
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
8. ACQUISITIONS
In October 2001, the Company acquired substantially all of the assets of
enerSave data systems, Inc. and JRS Technology, Inc., each for a purchase
price of $500,000. EnerSave data systems designed and developed energy
management systems and the JRS Technology assets were used in the design and
development of commercial grade electronic ballasts. The purchase price for
enerSave data systems and JRS Technology was allocated to the fair value of
assets acquired as follows: enerSave: inventory -- $150,000 and equipment
$350,000; and JRS: inventory -- $288,000, equipment -- $57,000 and
patents -- $155,000.
9. PRO FORMA INFORMATION (UNAUDITED)
PRO FORMA INCOME TAXES: For the periods presented in these financial
statements, TCP operated as an S corporation, and, therefore, the individual
stockholders were liable for federal and state income taxes, and not the
Company. Cash distributions were regularly made by TCP in part to help fund
the stockholders' tax liabilities. Accordingly, net income as presented in
these financial statements does not include a provision for federal or state
income taxes.
Assuming completion of the proposed initial public offering, TCP will revoke
the S corporation status with stockholder consent and therefore will be
subject to corporate federal and state income taxes as a C corporation.
Accordingly, for informational purposes, the statements of operations
include a pro forma adjustment for income taxes that would have been
recorded if TCP had been a C corporation during the periods presented in
these financial statements calculated in accordance with SFAS No. 109,
"Accounting for Income Taxes."
Deferred income taxes arise from temporary differences in the recognition of
income and expense for tax purposes. Pro forma deferred income taxes were
computed using the liability method and reflect the net tax effects of
temporary differences between the carrying amounts of assets and liabilities
for financial statement purposes and the amounts used for income tax
purposes as if the Company was a C corporation for all periods presented
based on the statutory rates in effect for those periods. Components of the
Company's pro forma deferred tax assets and liabilities are as follows:
[Download Table]
DECEMBER 31,
------------------
1999 2000 2001
---- ---- ----
(IN THOUSANDS)
Deferred tax assets:
Accounts receivable................................. $-- $19 $129
Inventory........................................... -- -- 74
Accrued liabilities................................. 9 -- 20
-- --- ----
Total deferred tax assets........................ 9 19 223
-- --- ----
Deferred tax liabilities:
Property and equipment basis difference............. -- (7) (7)
-- --- ----
Net deferred tax asset................................ $9 $12 $216
== === ====
Deferred taxes have not been reflected in the financial statements because
TCP is not responsible for these income taxes until the revocation of the S
corporation status. Upon such revocation, a net deferred income tax benefit
will be reflected in the balance sheet with a corresponding credit to income
tax provision. The approximate amount of this net deferred benefit is
$216,000 at December 31, 2001.
F-18
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
Significant components of the pro forma provision for income taxes are as
follows:
[Download Table]
YEAR ENDED
DECEMBER 31,
--------------------
1999 2000 2001
---- ---- ------
(IN THOUSANDS)
Current provision:
Federal................................................... $ 61 $159 $2,400
State..................................................... 14 38 570
---- ---- ------
75 197 2,970
Deferred provision (benefit)................................ 249 (3) (204)
---- ---- ------
Total income tax provision.................................. $324 $194 $2,766
==== ==== ======
Pro forma net operating loss carryforwards outstanding at December 31, 1998
totaling approximately $662,000 were fully utilized in fiscal 1999.
The differences between pro forma income taxes at the statutory U.S. federal
income tax rate of 34% and those reported in the statements of operations
are as follows:
[Download Table]
YEAR ENDED
DECEMBER 31,
--------------------
1999 2000 2001
---- ---- ----
Income tax at U.S. federal statutory tax rate............... 34.0% 34.0% 34.0%
State income tax, net of federal tax effect............... 5.0 5.0 5.0
Non-deductible expenses................................... 1.6 2.1 0.2
---- ---- ----
Effective tax rate.......................................... 40.6% 41.1% 39.2%
==== ==== ====
TAX INDEMNIFICATION AGREEMENT: Assuming completion of the proposed initial
public offering, TCP intends to revoke its S corporation status. In
connection with the proposed offering and the revocation of the S
corporation tax status, the Company has entered into a tax indemnification
agreement with its existing stockholders and a former stockholder. Although
the Company believes that it has met the requirements for an S corporation,
the agreement provides, among other things, that the existing stockholders
and the former stockholder indemnify the Company for any federal and state
income taxes, including interest and penalties, incurred by the Company if
for any reason the Company is deemed to be a C corporation during any period
in which it reported taxable income as an S corporation. The tax
indemnification obligation of each of the existing stockholders and the
former stockholder is limited to the aggregate amount of all distributions
made to such stockholders by the Company to pay taxes since the first day of
the first tax year in which the Company is deemed to have been a C
corporation. The agreement also provides for payment by the existing
stockholders and the former stockholder to the Company and by the Company to
its existing stockholders and the former stockholder to adjust for any
increases or decreases in tax liability arising from a tax audit that
affects the Company's tax liability and results in a corresponding
adjustment to the tax liability of the Company's existing stockholders and
the former stockholder. The amount of such payment cannot exceed that amount
of refund received by the Company or its existing stockholders and the
former stockholder attributable to the adjustment in tax liability.
UNDISTRIBUTED EARNINGS OF S CORPORATION: The Company intends to distribute
to its current stockholders and a former stockholder substantially all of
its undistributed S corporation earnings for tax purposes through the date
of revocation of S corporation status. As of December 31, 2001, the amount
of these undistributed S corporation earnings was approximately $3,582,000.
The December 31, 2001 pro forma balance sheet included in these financial
statements reflects an accrual for this planned distribution along with a
corresponding reduction to retained earnings. The actual amount of the final
S corporation distributions will include the undistributed earnings of the
Company through the date of revocation of
F-19
TECHNICAL CONSUMER PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
S corporation status, which is anticipated to occur immediately prior to
completion of the initial public offering. To the extent that undistributed
earnings exceed the final S corporation distribution, the excess amount will
be reflected as additional paid-in capital at the date of revocation of S
corporation status.
PRO FORMA EARNINGS PER COMMON SHARE: The pro forma earnings per share
presented in the statements of operations include pro forma tax provision as
if the Company had been a C corporation during the periods presented in
these financial statements.
10. OTHER MATTERS (UNAUDITED)
EQUITY PLAN: In October 2001, the Company adopted a stock option plan,
which was amended and restated in December 2001 as an equity plan. The
equity plan was approved by the Company's stockholders in January 2002. The
equity plan provides for the grant of incentive and nonqualified stock
options and provides for the payment of director compensation in the form of
common stock for up to 2,016,000 shares of common stock.
In October 2001, assuming the successful completion of the initial public
offering, the Company agreed to grant an option to purchase 1,064,000 shares
of common stock to an executive and an option to purchase 294,000 shares of
common stock to a director under this equity plan. These options will have
an exercise price equal to the initial public offering price and will be
exercisable in full beginning six months following the date of grant.
CERTIFICATE OF INCORPORATION: Assuming the completion of the proposed
initial public offering, the Company will convert to a C corporation and the
Company's certificate of incorporation and bylaws will contain several
provisions that may make it difficult to acquire the Company by means of a
tender offer, open market purchase, proxy fight or otherwise. These
provisions are designed to encourage persons seeking to acquire control of
the Company to negotiate with the Company's board of directors.
Additionally, prior to the completion of the proposed initial public
offering and after receiving stockholder approval, the Company will amend
its certificate of incorporation to increase to 30,000,000 the number of
authorized shares of common stock, $0.001 par value per share, and authorize
the issuance of 5,000,000 shares of undesignated preferred stock, $0.001 par
value per share, the rights and preferences of which may be established from
time to time by the board of directors.
STOCK SPLIT: In October 2001, the Board of Directors declared a common stock
split to be effected in the form of a stock dividend of 56,000 shares of
common stock for every one share of common stock outstanding on the later of
(a) the date that the Company amends its certificate of incorporation to
increase its authorized capital stock as contemplated by the proposed
initial public offering registration statement and (b) the effectiveness of
such registration statement. All references in the financial statements to
number of shares and per share amounts have been retroactively adjusted to
reflect this stock split.
F-20
[TCP LOGO]
DEALER PROSPECTUS DELIVERY OBLIGATION
UNTIL , 2002 (25 DAYS AFTER THE COMMENCEMENT OF THIS OFFERING),
ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS
IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS AN
UNDERWRITER AND WITH RESPECT TO UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate (except for the registration fee, the NASD
filing fee and the Nasdaq filing fee) of the fees and expenses payable by us in
connection with the sale of common stock being registered.
[Download Table]
Registration fee............................................ $ 12,075
NASD filing fee............................................. 5,330
Nasdaq National Market Listing Application Fee.............. 87,000
Blue sky qualification fees and expenses.................... 5,000
Printing and engraving expenses............................. 150,000
Legal fees and expenses..................................... 650,000
Accounting fees and expenses................................ 400,000
Directors and officers liability insurance premiums......... 150,000
Transfer agent and registrar fees........................... 20,000
Miscellaneous............................................... 20,595
----------
Total.................................................. $1,500,000
==========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
ELIMINATION OF LIABILITY IN CERTAIN CIRCUMSTANCES
Pursuant to the authority conferred by Section 102 of the General
Corporation Law of the State of Delaware, our certificate of incorporation
contains a provision providing that none of our directors shall be personally
liable to us or our stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability:
- for any breach of the director's duty of loyalty to us or our
stockholders;
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the General Corporation Law of the State of
Delaware; or
- for any transactions from which the director derived an improper personal
benefit.
Our certificate of incorporation also provides that if Delaware law is
amended to further eliminate or limit the liability of directors, then the
liability of our directors shall be eliminated or limited, without further
stockholder action, to the fullest extent permissible under Delaware law as so
amended.
INDEMNIFICATION AND INSURANCE
Section 145 of the General Corporation Law of the State of Delaware
contains provisions permitting (and, in some situations, requiring) Delaware
corporations such as us to provide indemnification to their officers and
directors for losses and litigation expense incurred in connection with, among
other things, their service to the corporation in those capacities. Our
certificate of incorporation contains provisions requiring us to indemnify and
hold harmless our directors, officers and employees to the fullest extent
permitted or required by law. Among other things, these provisions provide that
we are required to indemnify any person who was or is a party or is threatened
to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that the indemnitee is or was acting in an
official capacity as our director, officer, employee or agent, or is or was
serving at our request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise (including
service with respect to any employee benefit plan) against all expense,
liability and loss, including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by the indemnitee in connection with such
II-1
proceeding to the fullest extent permitted by the General Corporation Law of the
State of Delaware, as the same exists or may be amended (but, in the case of any
amendment, only to the extent that the amendment permits us to provide broader
indemnification rights than law permitted us to provide prior to the amendment).
These provisions also provide for the advance payment of fees and expenses
incurred by the indemnitee in defense of any such proceeding, subject to
reimbursement by the indemnitee if it is ultimately determined that the
indemnitee is not entitled to be indemnified by us. We have entered into
agreements with our directors, executive officers and certain other key
employees providing contractually for indemnification consistent with our
certificate of incorporation and bylaws.
Our certificate of incorporation also permit us to secure insurance on our
behalf and on behalf of any officer, director, employee or agent for any
liability arising out of actions in his or her capacity as an officer, director,
employee or agent, regardless of whether the bylaws would permit
indemnification. We have obtained an insurance policy that insures our directors
and officers against losses, above a deductible amount, from specified types of
claims.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, TCP has issued and sold the following
securities, which numbers reflect the 56,000-for-1 stock split that will occur
immediately prior to the completion of this offering:
In January 2000, we sold:
- 2,800,000 shares of common stock to Ellis Yan, our President, Chief
Executive Officer and Chairman of the Board of Directors, for $50.00;
- 1,680,000 shares of common stock to Matthew G. Lyon, our Vice
President--Finance and Operations, Treasurer and a member of our board of
directors, for $30.00; and
- 560,000 shares of common stock to James R. Coleman, our Chief Operating
Officer, Vice President--Sales and Marketing and a member of our board of
directors, for $10.00.
In January 2000, we issued 560,000 shares of common stock to Andrzej Bobel.
These shares were the consideration for the conversion of a non-exclusive patent
license into an exclusive patent license pursuant to a license agreement that we
entered into with Mr. Bobel's company in March 2000.
The issuances of the securities described above were deemed to be exempt
from registration under Section 5 of the Securities Act in reliance upon Section
4(2) of the Securities Act. All recipients of securities had adequate access,
through their relationships with TCP, to information about TCP. No underwriters
were involved in the foregoing issuances of securities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
[Download Table]
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
1.1* Form of Underwriting Agreement
3.1** Certificate of Incorporation
3.2** Bylaws
3.3* Form of Amended and Restated Certificate of Incorporation
3.4* Form of Amended and Restated Bylaws
4.1 Specimen certificate for shares of common stock
4.2** Stock Restriction and Registration Rights Agreement, dated
as of December 6, 2001, by and among Technical Consumer
Products, Inc. and Ellis Yan, Matthew G. Lyon and James R.
Coleman
5.1* Opinion of Jones, Day, Reavis & Pogue
10.1 Manufacturing and Supply Agreement, dated as of January 17,
2002, by and among Technical Consumer Products, Inc. and
Shanghai Zhen Xin Electronic Engineering Co., Ltd. and
Shanghai Jensing Electron Electrical Equipment Co., Ltd.
II-2
[Download Table]
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
10.2 Technology License Agreement, dated as of December 12, 2001,
by and among Technical Consumer Products, Inc. and Shanghai
Zhen Xin Electronic Engineering Co., Ltd. and Shanghai
Jensing Electron Electrical Equipment Co., Ltd.
10.3** Amended and Restated 2001 Equity Plan
10.4 Option Agreement, dated as of January 11, 2002, by and
between James R. Coleman and Technical Consumer Products,
Inc.
10.5** Form of Directors and Officers Indemnification Agreement
10.6 Tax Indemnification Agreement, dated as of December 10,
2001, by and among Technical Consumer Products, Inc. and
Ellis Yan, Matthew G. Lyon, James R. Coleman, and Andrzej
Bobel
10.7** Amended and Restated Stock Buy Back Agreement, dated as of
September 30, 2001, by and among Technical Consumer
Products, Inc., Andrzej Bobel and Practical Innovations,
Inc.
10.8** License Agreement, dated as of June 18, 1996, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.9** Amendment to License Agreement, dated as of November 13,
1998 and effective as of January 1, 1999, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.10** License Agreement, dated as of March 1, 2000, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.11** License Agreement, dated as of May 23, 2001, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.12** Amended and Restated License Agreement, dated as of
September 30, 2001, by and among Technical Consumer
Products, Inc. and Andrzej Bobel and Practical Innovations,
Inc.
10.13** Split Dollar Agreement, dated as of March 6, 2000, by and
between Technical Consumer Products, Inc. and Ellis Yan
10.14** Split Dollar Agreement, dated as of March 6, 2000, by and
between Technical Consumer Products, Inc. and Matthew Lyon
10.15** Deferred Compensation Agreement, dated as of March 6, 2000,
by and between Technical Consumer Products, Inc. and James
R. Coleman
10.16** Credit and Security Agreement, dated as of August 10, 2001,
by and between Bank One, Michigan and Technical Consumer
Products, Inc.
10.17** Letter Agreement, dated as of September 10, 2001, by and
between Bank One, Michigan and Technical Consumer Products,
Inc.
10.18** Letter Agreement, dated as of October 15, 2001, by and
between Bank One, Michigan and Technical Consumer Products,
Inc.
10.19** Confirmation of Assumption, Ratification and Amendment
Agreement, dated as of October 18, 2001, by and between Bank
One, Michigan and Technical Consumer Products, Inc.
10.20 Fourth Amendment to Credit and Security Agreement, dated as
of December 28, 2001, by and between Bank One, Michigan and
Technical Consumer Products, Inc.
16.1 Letter of Grant Thornton LLP, dated January 25, 2002, to the
Securities and Exchange Commission
23.1 Independent Auditor's Consent of PricewaterhouseCoopers LLP
23.2* Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1)
24.1** Power of Attorney
24.2 Certified Resolutions of the Board of Directors of Technical
Consumer Products, Inc. Authorizing Power of Attorney
---------------
* To be filed by amendment
** Previously filed
II-3
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and this offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 14 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Technical
Consumer Products, Inc. has duly caused this amendment no. 2 to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Aurora, State of Ohio, on January 25, 2002.
[Download Table]
TECHNICAL CONSUMER PRODUCTS, INC
By: /s/ MATTHEW G. LYON
----------------------------------------------
Matthew G. Lyon
Vice President -- Finance & Operations
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this amendment
no. 2 to the registration statement has been signed by the following persons in
the capacities and on the dates indicated:
[Enlarge/Download Table]
SIGNATURE TITLE DATE
--------- ----- ----
* President, Chief Executive Officer and January 25, 2002
------------------------------------------ Chairman of the Board of Directors
Ellis Yan (Principal Executive Officer)
/s/ MATTHEW G. LYON Vice President -- Finance & Operations, January 25, 2002
------------------------------------------ Treasurer and Director (Principal
Matthew G. Lyon Financial and Accounting Officer)
* Director January 25, 2002
------------------------------------------
James R. Coleman
* Director January 25, 2002
------------------------------------------
Benjamin G. Ammons
* Director January 25, 2002
------------------------------------------
Jack Kahl
* Director January 25, 2002
------------------------------------------
R. Louis Schneeberger
* Director January 25, 2002
------------------------------------------
Boake A. Sells
* Matthew G. Lyon, by signing his name hereto, does hereby execute this amendment no. 2 to the
registration statement on behalf of the directors and officers of Technical Consumer Products, Inc.
indicated above by asterisks, pursuant to powers of attorney duly executed by such directors and
officers, which are filed with the Securities and Exchange Commission on behalf of such directors
and officers.
/s/ MATTHEW G. LYON
----------------------------------------
Matthew G. Lyon
Attorney-in-fact
II-5
EXHIBIT INDEX
[Download Table]
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
1.1* Form of Underwriting Agreement
3.1** Certificate of Incorporation
3.2** Bylaws
3.3* Form of Amended and Restated Certificate of Incorporation
3.4* Form of Amended and Restated Bylaws
4.1 Specimen certificate for shares of common stock
4.2** Stock Restriction and Registration Rights Agreement, dated
as of December 6, 2001, by and among Technical Consumer
Products, Inc. and Ellis Yan, Matthew G. Lyon and James R.
Coleman
5.1* Opinion of Jones, Day, Reavis & Pogue
10.1 Manufacturing and Supply Agreement, dated as of January 17,
2002, by and among Technical Consumer Products, Inc. and
Shanghai Zhen Xin Electronic Engineering Co., Ltd. and
Shanghai Jensing Electron Electrical Equipment Co., Ltd.
10.2 Technology License Agreement, dated as of December 12, 2001,
by and among Technical Consumer Products, Inc. and Shanghai
Zhen Xin Electronic Engineering Co., Ltd. and Shanghai
Jensing Electron Electrical Equipment Co., Ltd.
10.3** Amended and Restated 2001 Equity Plan
10.4 Option Agreement, dated as of January 11, 2002, by and
between James R. Coleman and Technical Consumer Products,
Inc.
10.5** Form of Directors and Officers Indemnification Agreement
10.6 Tax Indemnification Agreement, dated as of December 10,
2001, by and among Technical Consumer Products, Inc. and
Ellis Yan, Matthew G. Lyon, James R. Coleman, and Andrzej
Bobel
10.7** Amended and Restated Stock Buy Back Agreement, dated as of
September 30, 2001, by and among Technical Consumer
Products, Inc., Andrzej Bobel and Practical Innovations,
Inc.
10.8** License Agreement, dated as of June 18, 1996, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.9** Amendment to License Agreement, dated as of November 13,
1998 and effective as of January 1, 1999, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.10** License Agreement, dated as of March 1, 2000, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.11** License Agreement, dated as of May 23, 2001, by and between
Technical Consumer Products, Inc. and Practical Innovations,
Inc.
10.12** Amended and Restated License Agreement, dated as of
September 30, 2001, by and among Technical Consumer
Products, Inc. and Andrzej Bobel and Practical Innovations,
Inc.
10.13** Split Dollar Agreement, dated as of March 6, 2000, by and
between Technical Consumer Products, Inc. and Ellis Yan
10.14** Split Dollar Agreement, dated as of March 6, 2000, by and
between Technical Consumer Products, Inc. and Matthew Lyon
10.15** Deferred Compensation Agreement, dated as of March 6, 2000,
by and between Technical Consumer Products, Inc. and James
R. Coleman
10.16** Credit and Security Agreement, dated as of August 10, 2001,
by and between Bank One, Michigan, and Technical Consumer
Products, Inc.
10.17** Letter Agreement, dated as of September 10, 2001, by and
between Bank One, Michigan and Technical Consumer Products,
Inc.
10.18** Letter Agreement, dated as of October 15, 2001, by and
between Bank One, Michigan and Technical Consumer Products,
Inc.
II-6
[Download Table]
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
10.19** Confirmation of Assumption, Ratification and Amendment
Agreement, dated as of October 18, 2001, by and between Bank
One, Michigan and Technical Consumer Products, Inc.
10.20 Fourth Amendment to Credit and Security Agreement, dated as
of December 28, 2001, by and between Bank One, Michigan and
Technical Consumer Products, Inc.
16.1 Letter of Grant Thornton LLP, dated January 25, 2002, to the
Securities and Exchange Commission
23.1 Independent Auditor's Consent of PricewaterhouseCoopers LLP
23.2* Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1)
24.1** Power of Attorney
24.2 Certified Resolutions of the Board of Directors of Technical
Consumer Products, Inc. Authorizing Power of Attorney
---------------
* To be filed by amendment
** Previously filed
II-7
Dates Referenced Herein and Documents Incorporated by Reference
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