As filed with the Securities and Exchange Commission on March 16, 2004
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PERFORMANCE TECHNOLOGIES, INCORPORATED
(Exact name of Registrant as specified in its charter)
Delaware 16-1158413
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
205 Indigo Creek Drive
Rochester, New York 14626
(585) 256-0200
(Address, including zip code and telephone number, including area code, of
Registrant's principal executive offices)
Donald L. Turrell
Chief Executive Officer
Performance Technologies, Incorporated
205 Indigo Creek Drive
Rochester, New York 14626
(585) 256-0200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------
Copies to:
Jeffrey H. Bowen, Esq.
Harter, Secrest & Emery LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
(585) 232-6500
--------------------
Approximate date of commencement of proposed sale to the public: from time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
------------------------- ----------------------- ----------------------- ---------------------- -----------------------
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Aggregate Price Per Aggregate Offering Registration Fee
Registered Share Price
------------------------- ----------------------- ----------------------- ---------------------- -----------------------
Common Stock, par value $75,000,000 $18.68 (4) $75,000,000 $9,502.50
$.01 per share (1)
------------------------- ----------------------- ----------------------- ---------------------- -----------------------
Common Stock, par value 1,000,000 shares (3) $18.68 (4) $18,680,000 $2,366.76
$.01 per share (2)
------------------------- ----------------------- ----------------------- ---------------------- -----------------------
Total Common Stock, par (1) $18.68 (4) $93,680,000 $11,869.26
value $.01 per share
------------------------- ----------------------- ----------------------- ---------------------- -----------------------
(1) An indeterminate number of shares of Common Stock of the Registrant are
covered by this Registration Statement.
(2) Represents shares of Common Stock to be sold by certain selling stockholders
identified herein.
(3) In accordance with Rule 416 of Regulation C under the Securities Act of
1933, this registration statement also covers any additional shares of Common
Stock issued or issuable to the selling stockholders as a result of a stock
split, stock dividend or similar transaction.
(4) Estimated solely for the purpose of determining the registration fee and
calculated in accordance with Rule 457(c) under the Securities Act on the basis
of the last reported price of the Registrant's Common Stock on March 10, 2004.
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.
SUBJECT TO COMPLETION, DATED MARCH __, 2004
PROSPECTUS
[GRAPHIC OMITTED]
$75,000,000
PERFORMANCE TECHNOLOGIES, INCORPORATED
Common Stock
1,000,000 Shares of Common Stock
Offered by Selling Stockholders
This prospectus includes a general description of the shares of common stock we
may issue from time to time. We will provide the specific terms of these
securities in supplements to this prospectus. You should read this prospectus
and each supplement carefully before you invest in our common stock.
The aggregate initial offering price of all securities sold by us under this
prospectus will not exceed $75,000,000. In addition, the selling stockholders
named in this prospectus may sell up to 1,000,000 shares of our common stock. We
will not receive any of the proceeds from the sale of our common stock by
the selling stockholders.
Our common stock trades on The Nasdaq National Market under the symbol "PTIX."
Investing in our common stock involves risks, which are described at page 5 of
this prospectus and which you should consider before you invest.
Neither the Securities and Exchange Commission nor any other regulatory body has
approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is March __, 2004.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Table of Contents
Page
About this Prospectus.................................................2
Where You Can Find More Information...................................3
Forward-Looking Statements............................................3
Prospectus Summary....................................................4
Risk Factors..........................................................5
Use of Proceeds.......................................................8
Dividend Policy.......................................................8
Selling Stockholders..................................................8
Plan of Distribution..................................................9
Description of Securities to be Registered...........................11
Legal Matters........................................................15
Experts..............................................................15
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC
using a shelf registration process. Under the shelf registration process, we may
offer from time to time shares of our common stock up to an aggregate amount of
$75,000,000. In addition, the selling stockholders named in this prospectus may
sell up to 1,000,000 shares of our common stock from their own account. This
prospectus provides you with a general description of the securities we and/or
the selling stockholders may offer. Each time we and/or the selling stockholders
offer securities, in addition to this prospectus, we will provide you with a
prospectus supplement that will contain specific information about the
securities being offered. The prospectus supplement may also add, update or
change information contained in this prospectus. You should carefully read this
prospectus and any prospectus supplements, as well as the additional
information contained in the documents "Where You Can Find More Information" and
"Documents Incorporated by Reference."
You should rely only on the information contained or incorporated by reference
in this prospectus or any prospectus supplement. We have not authorized anyone
else to provide you with different information. Neither we, nor any other person
on our behalf, are making an offer to sell or soliciting an offer to buy any of
the securities described in this prospectus or in any prospectus supplement in
any state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of these documents. There may have
been changes in our affairs since the date of the prospectus or any prospectus
supplement.
Unless the context otherwise requires, the terms "we," "our," "us," "the
Company" and "Performance Technologies" refer to Performance Technologies,
Incorporated, a Delaware corporation, and not to the selling stockholders.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet from the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference room located at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room and their
copy charges.
The SEC allows us to "incorporate by reference" in this prospectus the
information in documents filed with it. This means that we can disclose
important information to you by referring you to these documents. The
information incorporated by reference is considered to be a part of this
prospectus, and information in documents that we file later with the SEC will
automatically update and supersede information contained in documents filed
earlier with the SEC or contained in this prospectus or any prospectus
supplement.
We incorporate by reference in this prospectus the documents listed below and
any future filings that we may make with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until we, or our agents, sell
all of the securities that may be offered by this prospectus:
o our Annual Report on Form 10-K for the year ended December 31, 2002;
o our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2003,
June 30, 2003 and September 30, 2003; and
o our Current Reports on Form 8-K filed February 20, 2004, February 3, 2004,
January 26, 2004, January 14, 2004, August 11, 2003, April 10, 2003 and
January 31, 2003.
Information furnished under Item 9 or Item 12 of any of our Current Reports on
Form 8-K is not incorporated by reference in this prospectus and registration
statement.
You may request a copy of these documents, at no cost to you, by writing or
telephoning us at the following address:
Performance Technologies, Incorporated
205 Indigo Creek Drive
Rochester, NY 14626
Attention: Investor Relations
(585) 256-0200
Any statement made in this prospectus or any prospectus supplement concerning
the contents of any contract, agreement or other document is only a summary of
the actual document. You may obtain a copy of any document summarized in this
prospectus or any prospectus supplement at no cost by writing to or telephoning
us at the address and telephone number given above. Each statement regarding a
contract, agreement or other document is qualified in its entirety by reference
to the actual document.
FORWARD-LOOKING STATEMENTS
We believe that some of the information contained or incorporated by reference
in this prospectus constitutes "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995 regarding future events
and our future plans, objectives and expected performance. Specifically,
statements that are not historical facts, including statements accompanied by
words such as "may," "will," "would," "should," "believe," "expect,"
"anticipate," "intend," "estimate," "plan," "predict," "potential," "continue,"
"project," "outlook," "forecast," "presume," "assume" or the negative of these
terms or other comparable terminology are intended to identify forward-looking
statements and convey the uncertainty of future events or outcomes. These
statements are only predictions, are subject to a wide range of risks, and
actual results may differ materially. In evaluating these statements, you should
specifically consider the risks outlined in the "Risk Factors" section of this
prospectus.
PROSPECTUS SUMMARY
This section contains a general summary of the information contained in this
prospectus. It may not include all of the information that is important to you.
You should read the entire prospectus, any accompanying prospectus supplements
and the documents incorporated by reference before making an investment
decision.
Performance Technologies, Incorporated
We are a supplier of embedded computing products and system-level solutions used
in a broad range of applications and end markets.
Since our founding in 1981 as a Delaware corporation, we have consistently
designed innovative embedded products and system solutions that focus on
attributes such as reduced time-to-market for our customers, enhanced
performance, high availability and cost advantages for a user base that includes
communications, military and commercial applications. We have a history of
adapting our products and services to a constantly changing, technology-driven
marketplace through the course of several business cycles that have occurred
since our founding.
Our annual operating performance is subject to various risks and uncertainties.
The following discussion should be read in conjunction with the consolidated
financial statements and related notes included in our Form 10-K dated December
31, 2002, as well as the section appearing in Item 1 of our Form 10-K under the
heading "Risk Factors." Our future operating results may be affected by various
trends and factors which are beyond our control. These risks and uncertainties
include, among other factors, general business and economic conditions, rapid or
unexpected changes in technologies, cancellation or delay of customer orders,
including those relating to the "design wins", as discussed in our Form 10-K
referenced above, unreliability of customer forecasts, changes in the product or
customer mix of sales, delays in new product development, delays or lack of
availability of electronic components, customer acceptance of new products and
customer delays in qualification of products.
You may contact our principal executive offices at:
Performance Technologies, Incorporated
205 Indigo Creek Drive
Rochester, NY 14626
(585) 256-0200
Recent Developments
On January 23, 2004, we acquired the business of Mapletree Networks, Inc., by
purchasing substantially all of that company's assets. Mapletree Networks, Inc.,
a leader in voice processing products, using DSP technology for voice over
Internet Protocol (VoIP), wireless and media processing applications, is located
in Norwood, Massachusetts. We now operate that acquired business as an operating
unit of the Company through our wholly-owned subsidiary.
On February 18, 2004, we entered into an agreement to invest up to $3.0 million
in InSciTek Microsystems, Inc. in the form of an interest bearing convertible
note. InSciTek, based in the Rochester, New York area, is an emerging company
that has developed a highly integrated, IP-based communications server appliance
for small to mid-size businesses.
The Securities We May Offer
With this prospectus, we may offer common stock, and the selling stockholders
named in this prospectus may sell shares of our common stock. The aggregate
offering price of securities that we may offer with this prospectus will not
exceed $75,000,000. In addition, the selling stockholders named in this
prospectus may sell up to 1,000,000 shares of our common stock. See "Selling
Stockholders". Each time we and/or the selling stockholders offer securities
with this prospectus, we will provide offerees with a prospectus supplement that
will contain the specific terms of the securities being offered. The following
is a summary of the securities we and/or the selling stockholders may offer with
this prospectus.
Common Stock
We and the selling stockholders may offer shares of our common stock, par value
$0.01 per share. In this prospectus, we provide a general description of, among
other things, our dividend policy and the transfer and voting restrictions that
apply to holders of our common stock.
RISK FACTORS
You should carefully consider the risks described below before investing in our
securities. You should also refer to the other information contained or
incorporated by reference in this prospectus and in any prospectus supplement.
If any of the following risks occur, our business could be harmed.
If we do not respond adequately to technological changes, our competive position
will decline.
The market for our products is characterized by rapid technological change and
frequent introduction of products based on new technologies. As new products are
introduced, the industry standards change. Additionally, the overall embedded
systems market, particularly the telecommunications industry, is volatile as the
effects of new technologies, new standards, new products and short life cycles
contribute to changes in the market and the performance of industry
participants. Our future revenue will depend upon our ability to anticipate
technological changes and to develop and introduce enhanced products on a timely
basis that comply with new industry standards. New product introductions, or the
delays thereof, could contribute to quarterly fluctuations in operating results
as orders for new products commence and orders for existing products decline.
Moreover, significant delays can occur between a product introduction and
commencement of volume production. The inability to develop and manufacture new
products in a timely manner, the existence of reliability, quality or
availability problems in our products or their component parts, or the failure
to achieve market acceptance for our products would have a material adverse
effect on our revenue and operating results. Further, in a poor economic climate
such as today, current technologies may become obsolete before being replaced by
new technologies.
We operate in an extremely competitive industry and our revenues and operating
results will suffer if we do not compete effectively.
The embedded systems market, particularly the telecommunications industry, is
extremely competitive. We face a number of large and small competitors. Many of
our principal competitors have established brand name recognition and market
positions and have substantially greater experience and financial resources than
us to deploy on promotion, advertising, research and product development. In
addition, as we broaden our product offerings, we expect to face competition
from new competitors. Companies in related markets could offer products with
functionality similar or superior to that offered by our products. Increased
competition could result in price reductions, reduced margins and loss of market
share, all of which would materially and adversely affect our revenue and
operating results. Large companies have recently acquired several of our
competitors. These acquisitions are likely to permit our competition to devote
significantly greater resources to the development and marketing of new
competitive products and the marketing of existing competitive products to their
larger installed bases. We expect that competition will increase substantially
as a result of these and other industry consolidations and alliances, as well as
the emergence of new competitors. We cannot guarantee that we will be able to
compete successfully with our existing or new competitors or that competitive
pressures faced by us will not have a material adverse effect on our revenue and
operating results.
We are dependent on a number of key customers, the loss of any of which would
harm our revenues and operating results.
We cannot assure that our principal customers will continue to purchase products
from us at current levels. Customers typically do not enter into long-term
volume purchase contracts with us and customers have certain rights to extend
or delay the shipment of their orders. The loss of one or more of our major
customers, the reduction, delay or cancellation of orders, or a delay in
shipment of our products to such customers, would have a material adverse effect
on our revenue and operating results.
Achieving "design wins" is an important indicator of success in our industry;
however, many factors beyond our control influence whether we achieve design
wins that result in meaningful revenue generation.
A design win occurs when a customer or prospective customer notifies us that our
product has been selected to be integrated with their product. Ordinarily, there
are several steps between the time of the design win and when customers initiate
production shipments. Typically, design wins reach production volumes at varying
rates, if they reach production at all. Historically, this gestation period
prior to volume orders has been twelve to eighteen months or more after the
design win occurs. A variety of risks such as schedule delays, cancellations,
and changes in customer markets and economic conditions can adversely affect a
design win before production is reached or during deployment. Traditionally,
design wins have been an important metric for management and industry analysts
to judge our product acceptance in its marketplace. Unfortunately, during weak
economic periods, fewer customers do new design activity and a smaller numbers
of these design wins move into production.
Our annual and quarterly results can fluctuate greatly, which can have a
disproportionate effect on the price of our commnon stock.
Our future annual and quarterly operating results can fluctuate significantly
depending on factors such as the timing and shipment of significant orders, new
product introductions by us and our competitors, market acceptance of new and
enhanced versions of our products, changes in pricing policies by us and our
competitors, the mix of distribution channels through which our products are
sold, inability to obtain sufficient supplies of sole or limited source
components for our products, and seasonal and general economic conditions. Our
expense levels are based, in part, on our expectations as to future revenue.
Since a substantial portion of our revenue in each quarter results from orders
placed within the quarter and often shipped in the final weeks of that quarter,
revenue levels are difficult to predict. If revenue levels are below
expectations, revenue and operating results will be adversely affected. Net
income would be disproportionately affected by a reduction in revenue because
only a small portion of our net expenses varies with our revenue.
We depend on a limited number of third-party suppliers to provide us with
important components for our products. If we were unable to obtain components
from these suppliers, our revenue and operating results would suffer.
Certain components used in our products are currently available to us from only
one or a limited number of sources. There can be no assurance that future
supplies will be adequate for our needs or will be available on prices and terms
acceptable to us. Our inability in the future to obtain sufficient
limited-source components, or to develop alternative sources, could result in
delays in product introduction or shipments, and increased component prices
could negatively affect our gross margins, either of which would have a material
adverse effect on our revenue and operating results.
Potential limitations in our manufacturing arrangements could impair our ability
to meet our customers' expectations.
In order to avoid relying on outside contract manufacturers, we manufacture our
network access, switch and signaling products at our Rochester, New York
facility. The Company's computing and platform products have been manufactured
at contract manufacturers. We do not have significant alternative manufacturing
capabilities, either internally or through third parties, to perform our
manufacturing functions. Even if we were able to identify alternative
third-party contract manufacturers, we cannot assume that we would be able to
retain their services on terms and conditions acceptable to us. In the event of
an interruption in production, we would not be able to deliver products on a
timely basis, which would have a material adverse effect on our revenue and
operating results. Although we currently have business interruption insurance,
we cannot assure that such insurance would adequately cover our lost business as
a result of such an interruption.
If we do not adequately protect our proprietary technology, or if we infringe on
the intellectual property rights of others, our revenues and operating results
would suffer.
Our success depends upon our proprietary technologies. To date, we have relied
principally upon trademark, copyright and trade secret laws to protect our
proprietary technologies. We generally enter into confidentiality or license
agreements with our customers, distributors and potential customers and limit
access to, and distribution of, the source code to our software and other
proprietary information. Our employees are subject to our employment policy
regarding confidentiality. We cannot assure that the steps taken by us in this
regard will be adequate to prevent misappropriation of our technologies or to
provide an effective remedy in the event of a misappropriation by others.
Although we believe that our products do not infringe on the proprietary rights
of third parties, we cannot assure that infringement claims will not be
asserted, resulting in costly litigation in which we may not ultimately prevail.
Adverse determinations in such litigation could result in the loss of our
proprietary rights, subject us to significant liabilities, require us to seek
licenses from third parties or prevent us from manufacturing or selling our
products, any of which would have a material adverse effect on our revenue and
operating results.
Because of the existence of a large number of patents in the computer networking
industry and the rapid rate of new patents granted or new standards or new
technology developed, we may have to enter into technology licenses from others.
We do not know whether these third party technology licenses will be available
to us on commercially reasonable terms. The loss of, or inability to obtain, any
of these technology licenses could result in delays or reductions in our product
shipments. Any such delays or reductions in product shipments would have a
material adverse effect on our revenue and operating results.
We are dependent upon a number of key personnel. The loss of these people or
delays in replacing them could harm our operating results.
Our success depends on the continued contributions of our personnel, many of
whom would be difficult to replace. Through mid-2001, competition for
engineering personnel in our marketplace was intense. Since mid-2001,
engineering personnel seem to be more readily available. Although our employees
are subject to our employment policy regarding confidentiality and ownership of
inventions, employees are generally not subject to employment agreements or
non-competition covenants. Changes in personnel could adversely affect our
operating results.
Delays in purchasing and implementing an enterprise-wide software system could
harm our operating results.
As a continuing effort to improve the flow of management information and control
of our operations, we intend to purchase, install, and implement an
enterprise-wide software system by the end of 2004. We are currently in the
process of evaluating our requirements and available enterprise-wide systems. We
are examining the hardware, software, consulting, and implementation costs of
available systems as well as the internal time and resources required for
implementation. Our current estimates of the time and costs necessary to
implement a system are based upon the facts and information available today. New
developments may occur that could affect our estimates of the amount of time and
the costs necessary to implement such a system. Significant delays in the
implementation of a system, interruption in business activities while
implementing a system, or actual costs higher than estimated, could adversely
impact our operating results.
USE OF PROCEEDS
We will use the net proceeds from the sale of securities that we may offer with
this prospectus and any accompanying prospectus supplement for general corporate
purposes. General corporate purposes may include capital expenditures, possible
acquisitions, investments, repurchase of our capital stock and any other
purposes that we may specify in any prospectus supplement. We may invest the net
proceeds from this offering temporarily until we use them for their stated
purpose. We will not receive any of the proceeds from the sale of our common
stock by selling stockholders.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock or other
securities and we do not anticipate paying cash dividends in the future. We
currently intend to retain our earnings, if any, for future growth. Future
dividends on our common stock or other securities, if any, would be paid at the
discretion of our board of directors in accordance with applicable laws and
would depend on, among other things, our operations, capital requirements and
surplus, general financial condition, contractual restrictions and such other
factors as our board of directors may deem relevant.
SELLING STOCKHOLDERS
All or any of the stockholders named below may from time to time offer and sell,
pursuant to this prospectus and the applicable prospectus supplement, up to an
aggregate of 1,000,000 shares of our common stock. The following table sets
forth, as of March 10, 2004, the number of shares of our common stock that each
selling stockholder beneficially owned and the number of shares being registered
for sale by each selling stockholder. The percentage of outstanding shares
beneficially owned before the offering is based on 12,712,000 shares of common
stock outstanding as of March 10, 2004. The term "selling stockholders," as used
in this prospectus, includes the holder listed below as well as his or her
transferees, pledgees, donees, heirs or other successors receiving shares from
the holder listed below after the date of this prospectus. The selling
stockholders may sell, transfer or otherwise dispose of some or all of their
shares of our common stock in transactions exempt from the registration
requirements of the Securities Act.
The selling stockholders may from time to time offer and sell any or all of
their shares that are registered under this prospectus. Because the selling
stockholders are not obligated to sell their shares, and because the selling
stockholders may also acquire publicly traded shares of our common stock, we
cannot estimate how many shares of our common stock the selling stockholders
will own after this offering. The percentage of our common stock to be owned by
each selling stockholder following the offering assumes the sale of all of the
registered shares of our common stock by that selling stockholder. We may
update, amend or supplement this prospectus from time to time to update the
disclosure in this section. The actual amount, if any, of our common stock to
be offered by each selling stockholder and the amount and percentage of our
common stock to be owned by that selling stockholder following that offer will
be disclosed in the applicable prospectus supplement.
Shares Beneficially Shares Beneficially
Owned Before the Offering Owned After Completion
of the Offering
-------------------------- --------------------------
Number of Percent of Total Shares That May Number of Percent of
Name Position Shares Shares Be Offered by Selling Shares Shares
Stockholders
----------------------- ---------------------- ----------- ------------ -------------------------- ------------- ------------
Charles E. Maginness Director 617,860 4.86% 400,000 217,860 1.71%
Reginald T. Cable Former executive 575,000 4.52% 100,000 475,000 3.74%
John M. Slusser Chief strategic officer 430,761 3.39% 250,000 180,761 1.41%
Donald L. Turrell** Chief executive officer 264,852 2.08% 50,000 214,852 1.66%
William E. Mahuson Corporate vice president 225,960 1.78% 100,000 125,960 *
Bernard Kozel Director 199,144 1.57% 100,000 99,144 *
* Less than 1% ownership.
** Includes shares to be issued in future upon exercise of vested options
PLAN OF DISTRIBUTION
We may sell shares of our common stock, and the selling stockholders may sell
shares of our common stock, through underwriters, agents, dealers, or directly
to one or more purchasers. We and the selling stockholders may distribute these
securities from time to time in one or more transactions, including block
transactions and transactions on The Nasdaq National Market or any other
organized market where the securities may be traded. The securities may be sold
at a fixed price or prices, at market prices prevailing at the times of sale, at
prices related to these prevailing market prices or at negotiated prices. Any
such price may be changed from time to time.
We may permit the selling stockholders or their transferees, pledgees, donees,
heirs or other successors to sell our common stock pursuant to this prospectus
in conjunction with an offering by us. The selling stockholders may only sell
pursuant to this prospectus with our consent, which consent may be withheld in
our sole discretion. If selling stockholders sell our common stock pursuant to
this prospectus, a prospectus supplement will set forth information required by
the SEC rules and regulations regarding the selling stockholders. Selling
stockholders may also resell all or a portion of their securities in reliance
upon Rule 144 under the Securities Act, including pursuant to written trading
plans designed to comply with Rule 10b5-1 of the Exchange Act, provided they
meet the criteria and conform to the requirements of Rule 144.
The prospectus supplement for the securities we and/or the selling stockholders
sell will describe that offering, including:
o the identity of any underwriters, dealers or agents who purchase securities,
as required;
o the amount of securities sold, the public offering price and consideration
paid, and the proceeds we and/or the selling stockholders will receive from
that sale;
o the place and time of delivery for the securities being sold;
o whether or not the securities will trade on any securities exchanges or The
Nasdaq National Market;
o the amount of any compensation, discounts or commissions to be received by
underwriters, dealers or agents, any other items constituting underwriters'
compensation, and any discounts or concessions allowed or reallowed or paid
to dealers;
o the terms of any indemnification provisions, including indemnification from
liabilities under the federal securities laws; and
o any other material terms of the distribution of securities.
Use of Underwriters, Agents and Dealers
We and/or the selling stockholders may offer the securities to the public
through one or more underwriting syndicates represented by one or more managing
underwriters, or through one or more underwriters without a syndicate. If
underwriters are used in the sale, we and/or the selling stockholders will
execute an underwriting agreement with those underwriters relating to the
securities that we and/or the selling stockholders will offer and will name the
underwriters and describe the terms of the transaction in a prospectus
supplement. The securities subject to the underwriting agreement will be
acquired by the underwriters for their own account and may be resold by them, or
their donees, pledgees, or transferees, from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Subject to conditions
to be specified in the underwriting agreement, underwriters will be obligated to
purchase all of these securities if any are purchased or will act on a best
efforts basis to solicit purchases for the period of their appointment, unless
we state otherwise in the prospectus supplement.
We and/or the selling stockholders may authorize underwriters to solicit offers
by institutions to purchase the securities subject to the underwriting agreement
from us and/or the selling stockholders at the public offering price stated in
the prospectus supplement under delayed delivery contracts providing for payment
and delivery on a specified date in the future. If we and/or the selling
stockholders sell securities under delayed delivery contracts, the prospectus
supplement will state that as well as the conditions to which these delayed
delivery contracts will be subject and the commissions payable for that
solicitation.
Underwriters may sell these securities to or through dealers. Alternatively, we
and/or the selling stockholders may sell the securities in this offering
directly to one or more dealers, who would act as a principal or principals.
Dealers may then resell such securities to the public at varying prices to be
determined by the dealers at the time of the resale.
We and/or the selling stockholders may also sell the securities offered with
this prospectus through other agents designated by us from time to time. We will
identify any agent involved in the offer or sale of these securities who may be
deemed to be an underwriter under the federal securities laws, and describe any
commissions or discounts payable by us and/or the selling stockholders to these
agents, in the prospectus supplement. Any such agents will be obligated to
purchase all of these securities if any are purchased or will act on a best
efforts basis to solicit purchases for the period of their appointment, unless
we state otherwise in the prospectus supplement.
In connection with the sale of the securities offered with this prospectus,
underwriters, dealers or agents may receive compensation from us, the selling
stockholders or from purchasers of the securities for whom they may act as
agents, in the form of discounts, concessions or commissions. These discounts,
concessions or commissions may be changed from time to time. Underwriters,
dealers and/or agents may engage in transactions with us, or perform services
for us, in the ordinary course of business, and may receive compensation in
connection with those arrangements. In the event any underwriter, dealer or
agent who is a member of the National Association of Securities Dealers
participates in a public offering of these securities, the maximum commission or
discount to be received by any such NASD member or independent broker-dealer
will not be greater than 8% of the offering proceeds from securities offered
with this prospectus.
Selling stockholders, underwriters, dealers, agents or purchasers that
participate in the distribution of the securities may be deemed to be
underwriters under the Securities Act. Broker-dealers or other persons acting on
behalf of parties that participate in the distribution of the securities may
also be deemed to be underwriters. Any discounts or commissions received by them
and any profit on the resale of the securities received by them may be deemed to
be underwriting discounts and commissions under the Securities Act.
Underwriters and purchasers that are deemed underwriters under the Securities
Act may engage in transactions that stabilize, maintain or otherwise affect the
price of the securities, including the entry of stabilizing bids or syndicate
covering transactions or the imposition of penalty bids. Such purchasers will be
subject to the applicable provisions of the Securities Act and Exchange Act and
the rules and regulations thereunder, including Rule 10b-5 and Regulation M.
Regulation M may restrict the ability of any person engaged in the distribution
of the securities to engage in market-making activities with respect to those
securities. In addition, the anti-manipulation rules under the Exchange Act may
apply to sales of the securities in the market. All of the foregoing may affect
the marketability of the securities and the ability of any person to engage in
market-making activities with respect to the securities.
Indemnification and Contribution
We and/or the selling stockholders may provide underwriters, agents, dealers or
purchasers with indemnification against civil liabilities, including liabilities
under the Securities Act, or contribution with respect to payments that the
underwriters, agents, dealers or purchasers may make with respect to such
liabilities.
Because selling stockholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, they may be subject to the
prospectus delivery requirements of the Securities Act.
DESCRIPTION OF SECURITIES TO BE REGISTERED
With this prospectus, we may offer shares of our common stock. The aggregate
offering price of securities that we may offer with this prospectus will not
exceed $75,000,000. In addition, the selling stockholders named in this
prospectus may sell up to 1,000,000 shares of our common stock.
The following description of our capital stock, together with the additional
information included in any applicable prospectus supplement, summarizes the
material terms and provisions of these types of securities but is not complete.
You should read our certificate of incorporation, as amended, our bylaws, as
amended, our rights plan (as described below) and the certificate of designation
relating to any particular series of preferred stock before you purchase any of
our capital stock or securities convertible into shares of our capital stock
because those documents and not this description set forth the terms of our
capital stock.
We will describe in a prospectus supplement the specific terms of any capital
stock we may offer pursuant to this prospectus. If indicated in a prospectus
supplement, the terms of such capital stock may differ from the terms described
below.
Authorized Capital Stock
Our certificate of incorporation provides that we have authority to issue
50,000,000 shares of common stock, par value $0.01 per share and 1,000,000
shares of preferred stock, par value $0.01.
The authorized shares of common stock and preferred stock are available for
issuance without further action by our stockholders, unless such action is
required by applicable law or the rules of any stock exchange or automated
quotation system on which our securities may be listed or traded. If the
approval of our stockholders is not so required, our board of directors may
determine not to seek stockholder approval.
Common Stock
As of March 10, 2004, there were 12,712,000 shares of common stock outstanding.
Common stockholders are entitled to one vote for each share held on all matters
submitted to a vote of stockholders. They do not have cumulative voting rights.
Common stockholders do not have preemptive, subscription, redemption or
conversion rights. The outstanding shares of common stock are fully paid and
nonassessable. The rights, preferences and privileges of common stockholders are
subject to the rights of the stockholders of any series of preferred stock,
which we may designate and issue in the future. We will describe the specific
terms of any common stock we may offer in a prospectus supplement.
Preferred Stock
Under our certificate of incorporation, we have authorized 1,000,000 shares of
preferred stock, par value $0.01 per share. At March 10, 2004, we had no shares
of preferred stock issued and outstanding. Our board of directors, without
further stockholder approval (except as may be required by applicable law or the
rules of any stock exchange or automated quotation system on which our
securities may be listed or traded) has the authority to issue from time to time
up to an aggregate of 1,000,000 shares of preferred stock in one or more series,
and to fix or alter the designations, preferences, rights and any
qualifications, limitations or restrictions of the shares of each series
thereof, including:
o dividend rights;
o dividend rates;
o conversion rates;
o voting rights;
o terms of redemption (including sinking fund provisions);
o redemption prices;
o liquidation preferences; and
o the number of shares constituting any series or designations of such
series.
In addition, our rights plan provides for the issuance of shares of preferred
stock and common stock under the circumstances specified in the rights plan. See
"Certain Anti-Takeover Provisions in Our Certificate of Incorporation, Bylaws,
Rights Plan and Delaware General Corporation Law" below for a more detailed
description of our rights plan.
Although our board of directors has no intention at the present time of doing
so, it could issue a series of preferred stock that could, depending on the
terms of such series, impede the completion of a merger, tender offer or other
takeover attempt.
Ranking
Each new series of preferred stock will rank with respect to each other series
of our preferred stock as specified in the certificate of designation relating
to that new series of preferred stock.
Dividends
Holders of each new series of preferred stock will be entitled to receive cash
dividends or dividends in kind, if declared by our board of directors out of
funds legally available for dividends. For each series of preferred stock, we
will specify in the certificate of designation:
o the dividend rates;
o whether the rates will be fixed or variable or both;
o the dates of distribution of the cash dividends; and
o whether the dividends on any series of preferred stock will be cumulative or
non-cumulative.
Conversion and Exchange
The certificate of designation for any new series of preferred stock will state
the terms and other provisions, if any, on which shares of the new series of
preferred stock are convertible into shares of our common stock or exchangeable
for securities of a third party.
Redemption
We will specify in the certificate of designation relating to each new series of
preferred stock:
o whether that new series will be redeemable at any time, in whole or in part,
at our option or at the option of the holder of the shares of preferred
stock;
o whether that new series will be subject to mandatory redemption under a
sinking fund or on other terms; and
o the redemption prices.
Liquidation Preference
Upon our voluntary or involuntary liquidation, dissolution or winding up, we
will specify how the holders of each new series of preferred stock will be
entitled to receive:
o distributions upon liquidation in the amount provided in the prospectus
supplement relating to that series of preferred stock; and
o any accrued and unpaid dividends.
These payments will be made to holders of preferred stock out of our assets
available for distribution to stockholders before any distribution is made on
any securities ranking junior to the preferred stock regarding liquidation
rights.
After payment of the full amount of the liquidation preference to which they are
entitled, the holders of each series of preferred stock may or may not be
entitled to any further participation in any distribution of our assets, as
provided in the prospectus supplement relating to that series of preferred
stock.
Voting Rights
The holders of shares of any series of preferred stock will have voting rights
as indicated in the certificate of designations relating to that series or as
required by law.
Certain Anti-Takeover Provisions in Our Certificate of Incorporation, Bylaws,
Rights Plan and Delaware General Corporation Law
The following is a summary of certain provisions of our certificate of
incorporation, bylaws, and rights plan and Delaware law. This summary does not
purport to be complete and is qualified in its entirety by reference to our
certificate of incorporation, bylaws, and rights plan and the corporate law of
Delaware.
Certificate of Incorporation and Bylaws
Our certificate of incorporation includes several other provisions in addition
to our preferred stock which may have the effect of preventing changes in our
management. These provisions may make an unfriendly tender offer, proxy contest,
merger or other change in control of us more difficult. These provisions are
intended to enhance the likelihood of continuity and stability in the
composition of our board of directors and in the policies formulated by our
board of directors and to discourage certain types of transactions that may
involve a change in control. These provisions are also designed to reduce our
vulnerability to unsolicited acquisition proposals and to discourage certain
tactics that may be used in proxy fights. These provisions, however, could have
the effect of discouraging others from making tender offers for the shares of
our common stock and, as a consequence, they also may inhibit fluctuations in
the market price of the shares of our common stock which could result from
actual or rumored takeover attempts.
Our bylaws provide for our board of directors to be divided into three classes
of directors serving staggered three-year terms. As a result, approximately
one-third of our board of directors will be elected each year. Classification of
our board of directors expands the time required to change the composition of a
majority of directors and may tend to discourage a takeover bid for us.
Moreover, under Delaware law, in the case of a corporation having a classified
board of directors, the stockholders may remove a director only for cause. These
provisions, when coupled with provisions of our certificate of incorporation and
bylaws authorizing only our board of directors to fill vacant directorships,
will preclude our stockholders from removing incumbent directors without cause
or simultaneously gaining control of our board of directors by filling the
vacancies with their own nominees.
Our bylaws provide that special meetings of stockholders may be called only by
the chairman or by the secretary or any assistant secretary at the request in
writing of a majority of our board of directors. These provisions may make it
more difficult for stockholders to take action opposed by our board of
directors.
Our bylaws provide that stockholders seeking to bring business before an annual
meeting of stockholders, or to nominate candidates for election as directors at
an annual or a special meeting of stockholders, must provide timely notice of
their intent in writing. To be timely, a stockholder's notice must be delivered
to, or mailed and received at our principal executive office (i) in the case of
an annual meeting that is called for a date that is within 30 days before or
after the anniversary date of the immediately preceding annual meeting of
stockholders, not less than 60 days nor more than 90 days prior to such
anniversary date, and, (ii) in the case of an annual meeting that is called for
a date that is not within 30 days before or after the anniversary date of the
immediately preceding annual meeting not later than the close of business on the
tenth day following the day on which notice of the date of the meeting was
mailed or public disclosure of the date of the meeting was made, whichever
occurs first. Our bylaws also specify certain requirement for a stockholders'
notice to be in proper written form. These provisions may preclude some
stockholders from making nominations for directors at an annual or special
meeting or from bringing other matters before the stockholders at a meeting. Our
certificate of incorporation also eliminates the right of stockholders to act
without a meeting.
Rights Plan
On October 27, 2000, our board of directors adopted a rights plan. As a result,
we issued one purchase right for each outstanding share of common stock.
Until the occurrence of certain events, the purchase rights are traded as a unit
with common stock. Each of the purchase rights will separate and entitle
stockholders to buy preferred and common stock upon the occurrence of certain
events generally related to the change of control of our company as defined in
the rights. The purchase rights become exercisable ten days after either: (1) an
"Acquiring Person" acquires or commences a tender offer to acquire 15% or more
of our common stock, or (2) an "Adverse Person" has acquired 10% or more of our
common stock and our board of directors determines this person is likely to
cause pressure on us to enter into a transaction that is not in our best
long-term interest. All purchase rights not held by an Acquiring Person or an
Adverse Person become rights to purchase from us one one-thousandth of one share
of preferred stock at an initial exercise price of $110 per purchase right. Each
purchase right entitles the holder of that purchase right to purchase the
equivalent of $220 worth of our common stock for $110.
If after such an event our company merges, consolidates or engages in a similar
transaction in which it does not survive, each holder has a "flip over" right to
buy discounted stock in the surviving entity. We may redeem the purchase rights
for $.001 each. The rights plan expires on November 1, 2010 or can be modified
or terminated, at the option of our board of directors.
Section 203 of Delaware Law
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. Section 203 prohibits publicly held Delaware corporations from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved in
a prescribed manner. A "business combination" includes mergers, asset sales and
other transactions resulting in a financial benefit to the interested
stockholder. Generally, an "interested stockholder" is a person who, together
with affiliates and associates, owns or was, within the three year period
immediately prior to the date on which it is sought to be determined whether
such person is an interested stockholder, an owner of 15% or more of a
corporation's voting stock. These provisions could have the effect of delaying,
deferring or preventing a change in control of our company or reducing the price
that certain investors might be willing to pay in the future for shares of our
common stock.
Transfer Agent and Registrar
The transfer agent, registrar, dividend disbursing agent and redemption agent
for the shares of our common stock is American Stock Transfer & Trust Company.
LEGAL MATTERS
Certain legal matters with respect to the securities will be passed upon for us
by Harter, Secrest & Emery LLP, Rochester, New York.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31, 2002
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Estimated
Amounts
Legal fees and expenses $125,000
Printing and engraving expense $100,000
Accountants' fees and expenses $ 50,000
Travel and miscellaneous expenses $ 50,000
Market listing fee $ 30,000
Securities and Exchange Commission registration fee $ 12,000
Blue Sky fees and expenses $ 10,000
Transfer Agent fees $ 5,000
Total $382,000
----------
* Except for the Securities and Exchange Commission registration fee, all fees
and expenses are estimated. All of the above fees and expenses will be borne by
the Registrant.
Item 15. Indemnification of Directors and Officers.
Under Article 8 of our certificate of incorporation and Section 145 of the
Delaware General Corporation Law, directors and officers are entitled to
indemnification by Performance Technologies, Incorporated against liability
which they may incur in their respective capacities as directors and officers
under certain circumstances. In addition, the Company carries directors and
officers liability insurance for the benefit of its officers and directors. In
the Underwriting Agreement, if any, each underwriter will agree to indemnify the
directors of, certain officers of, and persons who control Performance
Technologies, Incorporated, within the meaning of the Securities Act of 1933,
against liabilities resulting from information that such underwriter supplies
for the Registration Statement.
Item 16. Exhibits
Exhibit
Number Description
------- -----------
1 Underwriting Agreement*
4 Instruments defining the rights of security holders:
4(a) Restated Certificate of Incorporation (incorporated by reference
to Registrant's Registration Statement on Form S-1 as filed with
the SEC on November 22, 1995 (File No. 33-99684)).
4(b) Certificate of Amendment to Restated Certificate of Incorporation
(incorporated by reference to Registrant's Annual Report on Form
10-K as filed with the SEC on March 30, 2000 (File No. 0-27460)).
4(c) Amended Bylaws (incorporated by reference to Registrant's
Registration Statement on Form S-1 as filed with the SEC on
November 22, 1995 (File No. 33-99684)).
4(d) Specimen stock certificate representing shares of Common Stock
(incorporated by reference to Registrant's Registration Statement
on Form S-1 as filed with the SEC on November 22, 1995 (File No.
33-99684)).
4(e) Rights Agreement (incorporated by reference to Registrant's
Registration Statement on Form 8-A filed with the SEC on November
8, 2000 (Registration No. 000-27460)).
5 Opinion of Harter, Secrest & Emery LLP*
23(a) Consent of Independent Accountants, PricewaterhouseCoopers LLP
23(b) Consent of Harter, Secrest & Emery LLP*
24 Power of Attorney**
----------
* To be filed by amendment.
** Included on the signature page hereto.
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement or any material change to such information in
the Registration Statement; provided, however, that paragraphs (a)(i)
and (a) (ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) 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 15, 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rochester, State of New York, on March 16, 2004.
PERFORMANCE TECHNOLOGIES, INCORPORATED
By: /s/DONALD L. TURRELL
------------------------
Name: Donald L. Turrell
Title: Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints each
of Donald L. Turrell and Dorrance W. Lamb such person's true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for such person and in such person's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to sign any other registration statement and
any and all amendments thereto for the same offering that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with
the Securities and Exchange Commission, granting unto each said attorney-in-fact
and agent full power and authority to do and perform fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirming all that any said attorney-in-fact and agent, or any substitute or
substitutes of any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Date Title Signature
-------------------- ---------------------------------- ------------------------
March 16, 2004 President, Chief Executive /s/DONALD L. TURRELL
------------------------
Officer and Director Donald L. Turrell
-------------------- ---------------------------------- ------------------------
March 16, 2004 Chief Financial Officer and Vice /s/DORRANCE W. LAMB
------------------------
President of Finance Dorrance W. Lamb
-------------------- ---------------------------------- ------------------------
March 16, 2004 Chairman of the Board, Chief /s/JOHN M. SLUSSER
------------------------
Strategic Officer and Director John M. Slusser
--------------------- --------------------------------- ------------------------
March 16, 2004 Director /s/BERNARD KOZEL
------------------------
Bernard Kozel
--------------------- --------------------------------- ------------------------
March 16, 2004 Director /s/CHARLES E. MAGINNESS
-----------------------
Charles E. Maginness
--------------------- --------------------------------- ------------------------
March 16, 2004 Director /s/STUART B. MEISENZAHL
------------------------
Stuart B. Meisenzahl
--------------------- --------------------------------- ------------------------
March 16, 2004 Director /s/JOHN E. MOONEY
------------------------
John E. Mooney
--------------------- --------------------------------- ------------------------
March 16, 2004 Director /s/ROBERT L. TILLMAN
------------------------
Robert L. Tillman
--------------------- --------------------------------- ------------------------
March 16, 2004 Director /s/E. MARK RAJKOWSKI
------------------------
E. Mark Rajkowski
--------------------- --------------------------------- ------------------------
INDEX TO EXHIBITS
Item 16. Exhibits
------- --------
Exhibit
Number Description
1 Underwriting Agreement*
4 Instruments defining the rights of security holders:
4(a) Restated Certificate of Incorporation (incorporated by reference
to Registrant's Registration Statement on Form S-1 as filed with
the SEC on November 22, 1995 (File No. 33-99684)).
4(b) Certificate of Amendment to Restated Certificate of Incorporation
(incorporated by reference to Registrant's Annual Report on Form
10-K as filed with the SEC on March 30, 2000 (File No. 0-27460)).
4(c) Amended Bylaws (incorporated by reference to Registrant's
Registration Statement on Form S-1 as filed with the SEC on
November 22, 1995 (File No. 33-99684)).
4(d) Specimen stock certificate representing shares of Common Stock
(incorporated by reference to Registrant's Registration Statement
on Form S-1 as filed with the SEC on November 22, 1995 (File No.
33-99684)).
4(e) Rights Agreement (incorporated by reference to Registrant's
Registration Statement on Form 8-A filed with the SEC on November
8, 2000 (Registration No. 000-27460)).
5 Opinion of Harter, Secrest & Emery LLP*
23(a) Consent of Independent Accountants, PricewaterhouseCoopers LLP
23(b) Consent of Harter, Secrest & Emery LLP*
24 Power of Attorney**
----------
* To be filed by amendment.
** Included on the signature page hereto.
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 5, 2003 relating to the
financial statements, which appears in Performance Technologies, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 2002. We also consent to the
application of such report to the Financial Statement Schedule for the three
years ended December 31, 2002 listed under Item 15 (2) of such Form 10-K when
such schedule is read in conjunction with the financial statements referred to
in our report. The audits referred to in such report also include this
schedule. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
/s/PricewaterhouseCoopers LLP
Rochester, New York
March 15, 2004