PROXY STATEMENT
PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant |x|
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|_| Preliminary Proxy Statement
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ACCELR8 TECHNOLOGY CORPORATION
------------------------------
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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ACCELR8 TECHNOLOGY CORPORATION
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD DECEMBER 13, 2005
Notice is hereby given that the Annual Meeting (the "Annual Meeting") of
the shareholders (the "Shareholders") of Accelr8 Technology Corporation, a
Colorado corporation (the "Company"), will be held at 2:00 p.m., local time, on
December 13, 2005, at the Warwick Hotel Denver, 1776 Grant Street, Denver,
Colorado 80203, and any adjournments or postponements thereof for the following
purposes:
1. To elect the following three (3) persons to serve as directors of the
Company until the next Annual Meeting of Shareholders and thereafter
until their successors shall have been elected and qualified: Thomas
V. Geimer, A. Alexander Arnold III and Charles E. Gerretson.
2. To ratify the selection of Comiskey & Company, P.C. as the independent
public accountants of the Company for the fiscal year ending July 31,
2006.
3. To consider and act upon such other business as may properly come
before the Annual Meeting or any adjournments thereof.
Only Shareholders of record at the close of business on October 31, 2005,
shall be entitled to notice of and to vote at the Annual Meeting or any
adjournments thereof. All Shareholders are cordially invited to attend the
Annual Meeting in person.
By Order of the Board of Directors
Thomas V. Geimer, Chairman of the Board
November 8, 2005
Denver, Colorado
IF YOU DO NOT EXPECT TO BE PRESENT AT THE ANNUAL MEETING AND WISH YOUR SHARES OF
COMMON STOCK TO BE VOTED, YOU ARE REQUESTED TO SIGN AND MAIL PROMPTLY THE
ENCLOSED PROXY WHICH IS BEING SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. A
RETURN ENVELOPE WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES IS
ENCLOSED FOR THAT PURPOSE.
ACCELR8 TECHNOLOGY CORPORATION
7000 North Broadway, Building 3-307
Denver, CO 80221
PROXY STATEMENT
Dated November 8, 2005
ANNUAL MEETING OF SHAREHOLDERS
FOR THE FISCAL YEAR ENDED JULY 31, 2005
TO BE HELD ON DECEMBER 13, 2005
GENERAL
-------
This Proxy Statement is being furnished to the shareholders of Accelr8
Technology Corporation, a Colorado corporation (the "Company"), in connection
with the solicitation of proxies by the Board of Directors of the Company (the
"Board of Directors") from holders (the "Shareholders") of outstanding shares of
common stock, no par value, of the Company (the "Common Stock"), for use at the
Annual Meeting of the Shareholders for the fiscal year ended July 31, 2005, to
be held at 2:00 p.m., local time, on December 13, 2005, at the Warwick Hotel
Denver, 1776 Grant Street, Denver, Colorado 80203, and any adjournments or
postponements thereof (the "Annual Meeting"). This Proxy Statement, Notice of
Annual Meeting of Shareholders and the accompanying Proxy Card are first being
mailed to shareholders on or about November 13, 2005.
VOTING SECURITIES AND VOTE REQUIRED
-----------------------------------
Only Shareholders of record at the close of business on October 31, 2005
(the "Record Date") are entitled to notice of and to vote the shares of Common
Stock of the Company held by them on such date at the Annual Meeting or any and
all adjournments thereof. As of the Record Date, there were 9,971,121 shares of
Common Stock issued and outstanding with 1,129,110 shares held in a Rabbi Trust
by the Company for the benefit of Thomas V. Geimer. Mr. Geimer does not have
voting power over the shares that are held in the Rabbi Trust. As a result,
there are 8,842,011 shares entitled to vote at the Company's Annual Meeting.
There was no other class of voting securities outstanding as of the Record Date.
Each share of Common Stock held by a Shareholder entitles such Shareholder
to one vote on each matter that is voted upon at the Annual Meeting or any
adjournments thereof.
The presence, in person or by proxy, of the holders of 33% of the
outstanding shares of Common Stock is necessary to constitute a quorum at the
Annual Meeting. Assuming that a quorum is present, the affirmative vote of the
holders of a majority of the shares of Common Stock present at the Annual
Meeting in person or by proxy will be required to (i) elect each of the three
nominees for directors of the Company and (ii) ratify the selection of Comiskey
& Company, P.C. as the independent public accountants of the Company for the
fiscal year ending July 31, 2006.
1
Abstentions and broker "non-votes" will be counted toward determining the
presence of a quorum for the transaction of business; however, abstentions will
have the effect of a negative vote on the proposals being submitted. Abstentions
may be specified on all proposals. A broker "non-vote" will have no effect on
the outcome of any of the proposals.
If the accompanying proxy is properly signed and returned to the Company
and not revoked, it will be voted in accordance with the instructions contained
therein. Unless contrary instructions are given, the persons designated as proxy
holders in the accompanying Proxy Card will vote "FOR" each proposal to be
considered by the Shareholders at the Annual Meeting or, if no such
recommendation is given, in their own discretion. The Company's executive
officers and directors have advised the Company that they intend to vote their
shares (including those shares over which they hold voting power), representing
approximately 9.48% as of October 12, 2005, of the outstanding shares of Common
Stock, in favor of each of the proposals above. Each Proxy granted by a
Shareholder may be revoked by such Shareholder at any time thereafter by writing
to the Secretary of the Company prior to the Annual Meeting, or by execution and
delivery of a subsequent Proxy or by attendance and voting in person at the
Annual Meeting, except as to any matter or matters upon which, prior to such
revocation, a vote shall have been cast pursuant to the authority conferred by
such Proxy.
Representatives from Comiskey & Company, P.C. are expected to attend the
Annual Meeting. As a result, the Company anticipates that a representative from
Comiskey & Company, P.C. will be available to make a statement or respond to any
questions at the Annual Meeting.
The cost of soliciting these Proxies, consisting of the printing, handling,
and mailing of the Proxy and related material, and the actual expense incurred
by brokerage houses, custodians, nominees and fiduciaries in forwarding proxy
materials to the beneficial owners of the shares of Common Stock, will be paid
by the Company.
In order to assure that there is a quorum, it may be necessary for certain
officers, directors, regular employees and other representatives of the Company
to solicit Proxies by telephone, facsimile or in person. These persons will
receive no extra compensation for their services.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
---------------------
The following table sets forth certain information regarding beneficial
ownership of our Common Stock as of October 12, 2005 by (i) each person who is
known by the Company to own beneficially more than 5% of the Company's
outstanding Common Stock; (ii) each of the Company's executive officers and
directors; and (iii) all executive officers and directors as a group. The
calculation excludes 1,129,110 shares which are held by the Rabbi Trust for the
benefit of Thomas V. Geimer. Further, Mr. Geimer does not have voting power over
the shares that are held in the Rabbi Trust. Common Stock not outstanding but
deemed beneficially owned by virtue of the right of an individual to acquire
shares is treated as outstanding only when determining the amount and percentage
of Common Stock owned by such individual. Except as noted, each person or entity
has sole voting and sole dispositve power with respect to the shares shown.
2
Name and Address of Beneficial Owner Shares Beneficially Owned
------------------------------------ -------------------------
Number Percent
------ -------
Thomas V. Geimer (1) 348,700 3.40%
7000 North Broadway, Building 3-307
Denver, Colorado 80221
A. Alexander Arnold III(2) 868,000 8.64%
845 Third Ave., 6th Floor
New York, NY 10021
Charles E. Gerretson(3) 128,150 1.28%
7000 North Broadway, Building 3-307
Denver, Colorado 80221
David Howson(4) 300,000 2.92%
7000 North Broadway, Building 3-307
Denver, Colorado 80221
Executive Officers and Directors 1,644,850 15.44%
as a Group (4 persons)
-----------------------------
(1) Does not include 1,129,110 shares, which were purchased by Mr. Geimer upon
exercise of warrants and options. Mr. Geimer exercised these options and
warrants on October 14, 1997, and simultaneously contributed the shares
acquired to a Rabbi Trust. Includes 300,000 shares, which may be purchased
by Mr. Geimer upon exercise of options. Includes 400 shares held in
brokerage accounts for Mr. Geimer's children, in which Mr. Geimer has the
power and authority to dispose of the shares held by these accounts.
(2) Includes 730,000 shares held by four trusts. Mr. Arnold merely serves as
trustee for each of those trusts, but is not a beneficiary of and has no
pecuniary interest in any of those trusts. Also includes 63,000 shares held
in investment advisory accounts for which Mr. Arnold serves as the
investment advisor. Also includes 75,000 shares, which may be purchased by
Mr. Arnold upon exercise of options.
(3) Includes: (i) 103,250 shares owned directly by Mr. Gerretson and (ii)
10,000 shares, which may be purchased by Mr. Gerretson upon exercise of
options which options expire on March 15, 2015. Also includes 14,900 shares
held in brokerage and retirement accounts of individuals in which Mr.
Gerretson has the power and authority to dispose of the shares held by
these accounts.
(4) Includes 300,000 shares, which may be purchased by Mr. Howson upon exercise
of options which options expire on March 15, 2015, of which 75,000 stock
options shall vest if and only if prior to the expiration date of the
Options, the Company closes on a transfer for the sale of the Company
assets or the acquisition of the Company in which the Company's
shareholders receive aggregate consideration at closing equal to or greater
than $250,000,000.
3
BOARD OF DIRECTORS AND COMMITTEE MEETINGS
The Board of Directors currently consists of three members, each of whom is
proposed for election at the Annual Meeting.
The Board of Directors maintains a Compensation Committee and an Audit
Committee. The Audit Committee and Compensation Committee is comprised of
Messrs. Arnold and Gerretson, the Company's independent directors. The primary
function of the Compensation Committee is to review and make recommendations to
the Board with respect to the compensation, including bonuses, of the Company's
officers and to administer the Company's stock option plans. The function of the
Audit Committee is to review and approve the scope of audit procedures employed
by the Company's independent auditors, to review and approve the audit reports
rendered by the Company's independent auditors and to approve the audit fee
charged by the independent auditors. The Audit Committee reports to the Board of
Directors with respect to such matters and recommends the selection of
independent auditors. The Audit Committee's financial expert is Charles E.
Gerretson. The board of directors does not have a Nominating Committee or any
committee performing similar functions and the Board of Directors participates
in the consideration of new nominees as members of the Board of Directors.
During the fiscal year ended July 31, 2005, the board of directors held one
board meeting with all board members present. The Audit Committee held five
meetings with no director attending fewer than 75% of the aggregate of all the
meetings of the Audit Committee. The Compensation Committee held one meeting
during the fiscal year ended July 31, 2005 with both members present.
The Audit Committee has also discussed with Comiskey & Company, P.C. the
matters required to be discussed by Statement on Auditing Standards No. 61,
Communication with Audit Committees, as amended, by the Auditing Standards Board
of the American Institute of Certified Public Accountants.
The Audit Committee has received and reviewed the written disclosures and
the letter from Comiskey & Company, P.C. required by Independence Standards
Board Standard No. 1, Independence Discussions with Audit Committees, as
amended, and has discussed with Comiskey & Company, P.C. their independence.
Based on the reviews and discussions referred to above, the Audit Committee
recommended to the Board of Directors that the audited financial statements
referred to above be included in the Company's Annual Report on Form 10-KSB for
the year ended July 31, 2005 filed with the Securities and Exchange Commission.
As noted above, the members of the Audit Committee are A. Alexander Arnold
III and Charles E. Gerretson, both of whom are independent directors as defined
in Section 121 of the American Stock Exchange listing standards, as applicable
and as may be modified or supplemented.
4
Effective as of June 9, 2000, the Board of Directors of the Company adopted
a written charter for the Audit Committee. Effective November 3, 2005, the Audit
Committee adopted a revised written charter for the Audit Committee, a copy of
which is attached to this Proxy Statement at Appendix A.
EXECUTIVE COMPENSATION
The following table sets forth the annual and long-term compensation for
services in all capacities to the Company in the three fiscal years ended July
31, 2005, 2004 and 2003, of Thomas V. Geimer and David C. Howson, the Company's
most highly compensated executive officers.
Annual Compensation Long Term Compensation
--------------------------- ----------------------------------------- ------------------------------------
--------------------------- ---------- -------------- --------------- ----------------- ------------------
Name and Fiscal Salary Other Other Annual Securities
Principal Position Year Compensation Underlying
Options
--------------------------- ---------- -------------- --------------- ----------------- ------------------
--------------------------- ---------- -------------- --------------- ----------------- ------------------
Thomas V. Geimer 2005 $165,000 $75,000(1) $ -- --
Chief Executive 2004 $165,000 $75,000(1) $ -- --
Officer and Chief 2003 $142,500 $75,000(1) $ -- --
Financial Officer
--------------------------- ---------- -------------- --------------- ----------------- ------------------
--------------------------- ---------- -------------- --------------- ----------------- ------------------
David C. Howson 2005 $120,000 -- $ -- 300,000 (4)
President 2004 $102,039(2) -- $ -- --
2003 $ 95,500(3) -- $ -- --
--------------------------- ---------- -------------- --------------- ----------------- ------------------
----------------------------
(1) Represents deferred compensation for Mr. Geimer pursuant to the Company's
deferred compensation plan, $75,000 of which vested during each of the
fiscal years ended July 31, 2005, 2004 and 2003.
(2) Includes $66,500 paid to Mr. Howson as a consultant from August 1, 2003 to
March, 2004.
(3) For services performed as a consultant to the Company.
(4) Options at $2.57, of which 225,00 are vested and are 75,000 unvested.
Option/SAR Grants in Last Fiscal Year
The following table sets forth information concerning options granted
during the fiscal year ended July 31, 2005 to either Thomas V. Geimer or David
C. Howson.
----------------------- --------------------- --------------------- --------------------- ---------------------
Number of % of Total Options
Securities Granted to Exercise Expiration
Name Underlying Options Employees in Fiscal Price Date
Granted Year
----------------------- --------------------- --------------------- --------------------- ---------------------
David C. Howson 225,000 69.8% $ 2.57 March 15, 2015
75,000 (1) 23.3% $ 2.57 March 15, 2015
----------------------- --------------------- --------------------- --------------------- ---------------------
(1) The 75,000 stock options shall vest if and only if prior to the expiration
date of the Options, the Company closes on a transfer for the sale of the
Company assets or the acquisition of the Company in which the Company's
shareholders receive aggregate consideration at closing equal to or greater than
$250,000,000.
5
Option Values
The following table provides certain information concerning the fiscal year end
value of unexercised options held by Mr. Geimer and Mr. Howson.
Aggregated Option Exercises in 2005 Fiscal Year
and Fiscal Year End Option Values
Shares Number of Unexercised Value of Unexercised
Acquired on Value Options at Fiscal Year In-the-Money Options
Name Exercise Realized End Fiscal Year End(1)
------------------------------------------------------------------------------------------------------
Exer- Unexer- Exer- Unexer-
cisable cisable cisable cisable
------- ------- ------- -------
Thomas V. Geimer 0 0 300,000 0 $487,000 $0
David Howson 0 0 225,000 75,000 $189,000 $39,000
---------------------------
(1) Value calculated by determining the difference between the closing
sales price on July 29, 2005, of $3.09 per share and the exercise
price of the options. Fair market value was not discounted for
restricted nature of any stock purchased on exercise of these options.
Employment Agreement
Effective December 1, 2002, we entered into an employment agreement with
our Chairman, Chief Executive Officer and Chief Financial Officer and Secretary,
Mr. Thomas V. Geimer. The agreement was negotiated and approved by the
Compensation Committee. The agreement provides for an annual base salary of
$165,000 with annual deferred compensation of $75,000. The agreement expires on
December 31, 2007. In the event of termination by mutual agreement, termination
"with cause," as defined in the agreement, death or permanent incapacity or
voluntary termination, Mr. Geimer or his estate would be entitled to the sum of
the base salary and unreimbursed expenses accrued to the date of termination and
any other amounts due under the agreement. In the event of termination "without
cause," as defined in the agreement, Mr. Geimer would be entitled to the sum of
the base salary and unreimbursed expenses accrued to the date of termination and
any other amounts due under the agreement and an amount equal to the greater of
Mr. Geimer's annual base salary (12 months of salary) or any other amounts
remaining due to Mr. Geimer under the agreement, which as of July 31, 2005 would
be $580,000. Additionally, in the event of a change in control, any unpaid
amounts due under the initial term of the agreement for both base salary and
deferred compensation would be payable plus five times the sum of the base
salary and deferred compensation.
Compensation Pursuant to Plans
Deferred Compensation Plan. In January 1996, we established a deferred
compensation plan for our employees. Contributions to the plan are provided for
under the employment agreement detailed above. For each of the fiscal years
ended July 31, 2005 and 2004, we contributed $75,000 to the plan. The $75,000
contribution for the fiscal year ended July 31, 2005 was made on September 1,
2005.
6
On October 14, 1997, Thomas V. Geimer exercised an aggregate of 1,140,000
warrants and options to acquire 1,140,000 shares of the Company's Common Stock
at an exercise price of $0.24 per share. Under the terms of the Rabbi Trust, we
will hold the shares in trust and carry the shares as held for employee benefit
by the Company. The Rabbi Trust provides that upon Mr. Geimer's death,
disability, or termination of his employment the shares will be released ratably
over the subsequent ten (10) years, unless the Board of Directors determines
otherwise.
The 1996 Stock Option Plans
The Board of Directors of the Company has adopted an incentive stock option
plan (the "Qualified Plan") which provides for the grant of options to purchase
an aggregate of not more than 700,000 shares of the Company's Common Stock. The
purpose of the Qualified Plan is to make options available to management and
employees of the Company in order to provide them with a more direct stake in
the future of the Company and to encourage them to remain with the Company. The
Qualified Plan provides for the granting to management and employees of
"incentive stock options" within the meaning of Section 422 of the Internal
Revenue Code of 1986 (the "Code").
The Board of Directors of the Company has adopted a non-qualified stock
option plan (the "Non-Qualified Plan") which provides for the grant of options
to purchase an aggregate of not more than 300,000 shares of the Company's Common
Stock. The purpose of the Non-Qualified Plan is to provide certain key
consultants, independent contractors, technical advisors and directors of the
Company with options in order to provide additional rewards and incentives for
contributing to the success of the Company. These options are not incentive
stock options within the meaning of Section 422 of the Code.
The Qualified Plan and the Non-Qualified Plan (the "Stock Option Plans")
are administered by a committee (the "Committee") appointed by the Board of
Directors which determines the persons to be granted options under the Stock
Option Plans and the number of shares subject to each option. No options granted
under the Stock Option Plans are transferable by the optionee other than by will
or the laws of descent and distribution and each option is exercisable, during
the lifetime of the optionee, only by such optionee. Any options granted to an
employee terminate 90 days after his ceasing to be an employee, except in
limited circumstances, including death of the employee, and where the Committee
deems it to be in the Company's best interests not to terminate the options.
The exercise price of all incentive stock options granted under the
Qualified Plan must be equal to the fair market value of such shares on the date
of grant as determined by the Committee, based on guidelines set forth in the
Qualified Plan. The exercise price may be paid in cash or (if the Qualified Plan
shall meet the requirements of rules adopted under the Exchange Act) in Common
Stock or a combination of cash and Common Stock. The term of each option and the
manner in which it may be exercised will be determined by the Committee, subject
to the requirement that no option may be exercisable more than 10 years after
the date of grant. With respect to an incentive stock option granted to a
participant who owns more than 10% of the voting rights of the Company's
outstanding capital stock on the date of grant, the exercise price of the option
must be at least equal to 110% of the fair market value on the date of grant and
the option may not be exercisable more than five years after the date of grant.
7
The Stock Option Plans were approved by our shareholders at a special
shareholders meeting held on November 8, 1996. At the annual meeting of
shareholders held on December 12, 2002, shareholders approved the following
amendments to the Qualified Plan and the Non-Qualified Plan: (i) the Committee
was given the power to amend and alter the Qualified Plan and the Non-Qualified
Plan so long as the amendments do not affect any outstanding options; (ii)
provide that any shares cancelled, terminated, or expired pursuant to the
Qualified Plan and the Non-Qualified Plan be made available for purposes of the
Qualified Plan and the Non-Qualified Plan; (iii) provide that the cashless
exercise provision of the Qualified Plan and the Non-Qualified Plan be in the
sole discretion of the Committee; and (iv) extended the expiration date of the
Qualified Plan and the Non-Qualified Plan until December 12, 2012.
As of July 31, 2005, 477,500 options had been granted pursuant to the
Qualified Plan with 2,500 of these options exercised and 222,500 available for
grant and 250,000 options had been granted pursuant to the Non-Qualified Plan
with 75,000 of these options exercised and 50,000 available for grant.
2004 Omnibus Stock Option Plan
On December 14, 2004, the shareholders approved the Company's 2004 Omnibus
Stock Option Plan (the "Omnibus Plan"). The Omnibus Plan authorizes the issuance
of up to five hundred thousand (500,000) shares of the Company's Common Stock.
The purpose of the Omnibus Plan is to promote the growth of the Company by
permitting the Company to grant options ("Options") to purchase shares of its
Common Stock, to attract and retain the best available personnel for positions
of substantial responsibility and to provide certain key employees, independent
contractors, consultants, technical advisors and directors of the Company with a
more direct stake in the future of the Company and provide an additional
incentive to contribute to the success of the Company.
The Omnibus Plan is administered by the Compensation Committee of the Board
or any committee of the Board performing similar functions, as appointed from
time to time by the Board (the "Omnibus Committee"). Pursuant to the terms of
the Omnibus Plan, the Omnibus Committee may grant either "incentive stock
options" within the meaning of Section 422 of the Internal Revenue Code of 1986
(the "Code") or nonqualified stock options, provided that incentive stock
options may not be granted to independent contractors and consultants. The
exercise price of all incentive stock options granted under the Omnibus Plan
must be equal to the fair market value of such shares on the date of grant as
determined by the Omnibus Committee, based on guidelines set forth in the
Omnibus Plan. The exercise price of nonqualified stock options granted under the
Omnibus Plan shall be not less than 50% of the fair market value of a share on
the date of grant of such Option. The Omnibus Committee may grant on behalf of
the Company, Options to purchase shares of the Company's Common Stock to any key
employee, independent contractor, consultant, technical advisor or director.
8
As of July 31, 2005, 320,000 options had been granted pursuant to the
Omnibus Plan with none of these options exercised and 180,000 were available for
grant.
CERTAIN TRANSACTIONS
During fiscal year 1996, we established a deferred compensation plan for
our employees. We may make discretionary contributions to the plan based on
recommendations from the Board of Directors. As of July 31, 2005, the Board of
Directors had authorized deferred compensation totaling $750,000 since fiscal
year 1996 to Mr. Geimer of which $675,000 had been funded. The $75,000
representing the difference between the authorized deferred compensation and the
funded deferred compensation was funded on September 1, 2005.
There were no other transactions or series of transactions for the fiscal
year ended July 31, 2005, nor are there any currently proposed transactions, or
series of the same to which we are a party, in which the amount involved exceeds
$60,000 and in which, to the knowledge of the Company, any director, executive
officer, nominee, 5% shareholder or any member of the immediate family of the
foregoing persons, have or will have a direct or indirect material interest.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
Section 16(a) of the Exchange Act, generally requires the Company's
directors and executive officers and persons who own more than 10% of a
registered class of the Company's equity securities ("10% owners") to file with
the SEC initial reports of ownership and reports of changes in ownership of
Common Stock and other equity securities of the Company. Directors and executive
officers and 10% owners are required by Securities and Exchange Commission
regulation to furnish the Company with copies of all Section 16(a) forms they
file. To the Company's knowledge, based solely on review of copies of such
reports furnished to us and verbal representations that no other reports were
required to be filed during the fiscal year ended July 31, 2005, all Section
16(a) filing requirements applicable to its directors, executive officers and
10% owners were met, except that (i) David Howson, President of the Company
failed to timely file a Form 4 in March 2005 disclosing four transactions, which
was filed on March 31, 2005, (ii) Charles E. Gerretson failed to timely file a
Form 4 in February 2005 disclosing one transaction that was filed in October
2005, and (iii) DDx, Inc. failed to timely file a Form 4 in February 2005
disclosing one transaction, which was filed on February 22, 2005.
Involvement in Certain Legal Proceedings
On July 12, 2001, without admitting or denying any liability, Thomas V.
Geimer consented to the entry of a final judgment in the United States District
Court for the District of Colorado, Civil Action No. 99-D-2203. The final
judgment enjoined Mr. Geimer from future violations of Section 13 of the
Exchange Act, and Rules 12b-20, 13a-1, and 13a-13 promulgated thereunder. In
connection with the settlement, Mr. Geimer paid a civil penalty of $65,000. The
costs of Mr. Geimer's defense plus the civil penalties were borne by the
Company. There was no restatement of financial statements required for this
settlement.
9
PROPOSAL 1
ELECTION OF THREE (3) PERSONS
TO SERVE AS DIRECTORS OF THE COMPANY
The Company's directors are elected annually to serve until the next Annual
Meeting of Shareholders and thereafter until their successors shall have been
elected and qualified. The number of directors presently authorized by the
Bylaws of the Company shall be not less than three (3) nor more than seven (7).
Unless otherwise directed by shareholders, the proxy holders will vote all
shares represented by proxies held by them for the election of the following
nominees, all of whom are now members and constitute the Company's Board of
Directors. The Company is advised that all nominees have indicated their
availability and willingness to serve if elected. In the event that any nominee
becomes unavailable or unable to serve as a director of the Company prior to the
voting, the proxy holder will vote for a substitute nominee in the exercise of
his best judgment.
INFORMATION CONCERNING NOMINEES
Thomas V. Geimer, 58, has been the Chairman of the Board of Directors and a
director of Accelr8 since 1987. He currently serves as the Chief Executive
Officer, Chief Financial Officer and Secretary of the Company. Mr. Geimer is
responsible for development of our business strategy, day-to-day operations,
accounting and finance functions. Before assuming full-time responsibilities at
the Company, Mr. Geimer founded and operated an investment banking firm. Mr.
Geimer has been involved in certain legal proceedings relating to services
performed for the Company. For detailed information concerning these legal
proceedings, see "Involvement in Certain Legal Proceedings."
Alexander Arnold III, 64, has served as a director of the Company since
September 1992. For the past 25 years Mr. Arnold has served as a Managing
Director of Trainer, Wortham & Co., Inc., a New York City-based investment
counseling firm. Mr. Arnold received a Bachelor of Arts degree from Rollins
College in 1964 and a Masters of Business Administration from Boston University
in 1966.
Charles E. Gerretson, 59, was appointed a director of the Company on July
19, 2003. For the past 28 years, Mr. Gerretson has served as the President of
Gerretson Realty, Inc., a Denver Colorado based real estate firm, which Mr.
Gerretson founded. Mr. Gerretson received a Bachelor of Science degree in
Business Administration from the University of Minnesota in 1968. Mr. Gerretson
was formerly a CPA with Arthur Andersen and Company and currently heads the
Company's Audit Committee.
Board Recommendation
The Board recommends a vote FOR the election of each of the three nominees
for directors of the Company.
10
PROPOSAL 2
RATIFICATION OF SELECTION OF
COMISKEY & COMPANY, P.C. AS INDEPENDENT
PUBLIC ACCOUNTANTS OF COMPANY
The Board of Directors has selected Comiskey & Company, P.C. as independent
public accountants of the Company for the fiscal year ending July 31, 2006, and
has further directed that the Company submit the selection of independent public
accountants for ratification by shareholders at the Annual Meeting of
Shareholders.
Changes in Registrant's Certifying Accountant.
On February 18, 2005, Accelr8 Technology Corporation (the "Company")
dismissed Anton Collins Mitchell, LLP, as the Company's independent public
accountants. The Company's audit committee recommended the dismissal of Anton
Collins Mitchell, LLP.
The reports by Anton Collins Mitchell, LLP on the Company's financial
statements during the preceding two years contained no adverse opinion or
disclaimer of opinion and were not qualified or modified as to uncertainty,
audit scope, or accounting principles.
During the preceding two fiscal years and through February 18, 2004, there
no disagreements between the Company and Anton Collins Mitchell, LLP on any
matter of accounting principles or practices, financial statement disclosure, or
audit scope or procedure, which, if not resolved to Anton Collins Mitchell,
LLP's satisfaction, would have caused Anton Collins Mitchell, LLP to make
reference to the subject matter of the disagreements in connection with Anton
Collins Mitchell, LLP's reports on the Company's financial statements.
During the preceding two fiscal years and through February 18, 2005, there
were no reportable events required to be disclosed pursuant to Item
304(a)(1)(iv) of Regulation S-B.
Pursuant to Item 304(a)(3) of Regulation S-B, on February 22, 2005, Anton
Collins Mitchell, LLP furnished the Company a letter addressed to the Securities
and Exchange Commission stating it agrees with the statements made by the
Company in response to Item 304(a). A copy of the Anton Collins Mitchell, LLP
letter was filed by the Company on Form 8-K on February 23, 2005.
On February 18, 2005, the Company's audit committee named Comiskey &
Company, P.C. ("Comiskey") as its new independent accountants. During the
preceding two fiscal years and through February 18, 2005, the Company has not
consulted with Comiskey regarding the matters described in, and required to be
disclosed pursuant to Item 304(a)(2)(i) or Item 304(a)(2)(ii) of Regulation S-B.
Fees Paid to the Independent Auditors
The aggregate fees billed by Comiskey & Company, P.C. for professional
services rendered for the audit of the Company's annual consolidated financial
statements for the year ended July 31, 2005 including the reviews of the
11
unaudited interim financial statements of the Company's Form 10-QSBs was
approximately $5,677. The aggregate fees billed by Anton Collins Mitchell LLP
for professional services rendered for the audit of the Company's annual
consolidated financial statements for the fiscal years ended July 31, 2005 and
July 31, 2004, including the reviews of the unaudited interim financial
statements of the Company's Form 10-QSBs was approximately $39,514 and $45,500,
respectively.
Tax Fees
The aggregate fees billed by Comiskey & Company, P.C. for professional
services rendered for the tax compliance, tax advice and tax planning for the
fiscal year ended July 31, 2005 ("Tax Fees") was $0. The aggregate fees billed
by Anton Collins Mitchell LLP for professional services rendered for the tax
compliance, tax advice and tax planning for the fiscal years ended July 31, 2005
and 2004 ("Tax Fees") were $0 and $0, respectively.
All other Fees
Comiskey & Company, P.C. did not perform any professional services other
than those set forth above for the fiscal years ended July 31, 2005 and 2004.
Anton Collins Mitchell LLP did not perform any professional services other than
those set forth above for the fiscal years ended July 31, 2005 and 2004.
Audit Committee Pre-Approval Policies
The Audit Committee shall pre-approve all auditing services and permitted
non-audit services (including the fees and terms thereof) to be performed for
the Company by its independent auditor, subject to any de minimus exceptions
that may be set for non-audit services described in Section 10A(i)(l)(B) of the
Exchange Act which are approved by the Committee prior to the completion of the
audit.
None of the hours expended on the principal accountant's engagement to
audit the Company's financial statements for the most recent fiscal year were
attributed to work performed by persons other than the principal accountant's
full-time permanent employees.
Board Recommendation
The Board recommends a vote FOR the ratification of the selection of
Comiskey & Company, P.C. as independent public accountants of the Company for
the fiscal year ending July 31, 2006.
GENERAL
Other Matters
The Board of Directors does not know of any matters that are to be
presented at the Annual Meeting of Shareholders other than those stated in the
Notice of Annual Meeting and referred to in this Proxy Statement. If any other
matters should properly come before the Annual Meeting, it is intended that the
proxies in the accompanying form will be voted as the persons named therein may
determine in their discretion.
12
Shareholder Proposals
If any shareholder of the Company intends to present a proposal for
consideration at the 2005 Annual Meeting of Shareholders and desires to have
such proposal included in the proxy statement and form of proxy distributed by
the Board of Directors with respect to such meeting, such proposal must be
received at the Company's offices, 7000 North Broadway, Building 3-307, Denver,
CO 80221, Attention: Secretary, not later than July 21, 2006.
By Order of the Board of Directors
Thomas V. Geimer,
Chairman of the Board
ACCELR8 TECHNOLOGY CORPORATION
ANNUAL MEETING OF SHAREHOLDERS
December 13, 2005
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned shareholder of ACCELR8 TECHNOLOGY CORPORATION, a Colorado
corporation (the "Company"), acknowledges receipt of the Notice of Annual
Meeting of Shareholders and Proxy Statement, dated October 31, 2005, and hereby
appoints Thomas V. Geimer and Henry F. Schlueter, or either of them, each with
the power of substitution, as Attorneys and Proxies to represent and vote all
shares of Common Stock of the Company which the undersigned would be entitled to
vote at the Annual Meeting of Shareholders and at any adjournment or
adjournments thereof, hereby revoking any proxy or proxies heretofore given and
ratifying and confirming all that said Attorneys and Proxies may do or cause to
be done by virtue thereof with respect to the following matters:
1. Election of each of the following three (3) persons to serve as
directors of the Company until the next Annual Meeting of Shareholders
and thereafter until their successors shall have been elected and
qualified:
Thomas V. Geimer
FOR /___/ AGAINST /___/ ABSTAIN /___/
A. Alexander Arnold III
FOR /___/ AGAINST /___/ ABSTAIN /___/
Charles E. Gerretson
FOR /___/ AGAINST /___/ ABSTAIN /___/
2. Ratification of the selection of Comiskey & Company, P.C. as the
independent public accountants of the Company for the fiscal year
ending July 31, 2006.
FOR /___/ AGAINST /___/ ABSTAIN /___/
3. To act upon such other matters as may properly come before the Meeting
or any adjournments thereof.
This Proxy, when properly executed, will be voted as directed. If no direction
is indicated, the Proxy will be voted FOR the election of each of the nominees
listed above to the Board of Directors and FOR the proposal to ratify the
selection of Comiskey & Company, P.C. as the independent public accountants of
the Company for the fiscal year ending July 31, 2006.
Dated:________________________, 2005
_________________________________
_________________________________
PLEASE SIGN, DATE AND MAIL THIS PROXY IMMEDIATELY IN THE ENCLOSED ENVELOPE.
Please sign exactly as name appears on the label ATTACHED TO THIS PROXY. When
shares are held by joint tenants, both should sign. When signing as attorney,
executor, administrator, trustee, or guardian, please give full title as it
appears hereon. If a corporation, please sign in full corporate name by an
authorized officer and affix corporate seal. If a partnership, please sign in
full partnership name by authorized person. No Postage is required if returned
in the enclosed envelope and mailed in the united states.
APPENDIX A
ACCELR8 TECHNOLOGY CORPORATION
AUDIT COMMITTEE CHARTER
I. PURPOSE
The primary function of the Audit Committee (the "Committee") of the Board
of Directors (the "Board") of Accelr8 Technology Corporation (the "Corporation")
is to assist the Board in fulfilling its oversight responsibilities by reviewing
the financial reports and other financial information provided by the
Corporation to any governmental body or the public; the Corporation's systems of
internal controls over financial reporting; and the Corporation's auditing,
accounting and financial reporting processes generally. Consistent with this
function, the Committee should encourage continuous improvement of, and should
foster adherence to, the Corporation's policies, procedures and practices at all
levels. The Committee's primary duties and responsibilities are to:
o Serve as an independent and objective party to monitor the Corporation's
financial and accounting reporting process and internal control system.
o Review and appraise the performance, qualifications and independence of the
Corporation's independent auditor.
o Provide an open avenue of communication among the independent auditor,
financial and senior management and the Board.
The Committee will fulfill these responsibilities by carrying out the
activities enumerated in this Charter and such other activities consistent with
this Charter as may from time to time be necessary or appropriate and assigned
to it by the Board.
The Committee's function is one of oversight only, it being understood that
the Company's management is responsible for preparing the Company's financial
statements and its independent auditor is responsible for auditing those
financial statements. Nothing contained in this Charter is intended to, or
should be construed as, creating any responsibility or liability of the members
of the Committee except to the extent otherwise provided under Colorado law
which shall continue to be the legal standard for the conduct of the members of
the Committee.
II. COMPOSITION OF THE AUDIT COMMITTEE
The Committee shall be comprised of at least two members of the board, as
determined by the Board. Subject to such exceptions as may pertain under
applicable rules of the American Stock Exchange LLC (the "AMEX"). Each member of
the Committee shall be an independent director and free from any relationship
that, in the opinion of the Board, would interfere with the exercise of his or
her independent judgment as a member of the Committee. For purposes of this
Charter, the definition of independent directors will be based on the rules of
the Securities and Exchange Commission (the "SEC") and the AMEX for audit
committees, in each case as amended, modified or supplemented from time to time.
All members of the Committee must be able to read and understand fundamental
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financial statements, including a balance sheet, income statement and cash flow
statement or become able to do so within a reasonable period of time after his
or her appointment to the Committee. At least one member of the Committee must
have past employment experience in finance or accounting, requisite professional
certification in accounting, or other comparable experience or background which
results in such member's financial sophistication, including being or having
been a chief executive officer, chief financial officer or other senior officer
with financial oversight responsibilities.
The members of the Committee shall be elected by the Board at the annual
organizational meeting of the Board and shall serve at the pleasure of the Board
or until their successors shall be duly elected, and qualified. Unless a
chairperson of the Committee (the "Chair") is elected by the Board, the members
of the Committee may designate a Chair by majority vote of the full Committee
membership.
III. MEETINGS
The Committee shall meet from time to time as called by the Chair or as
requested by the Corporation's independent auditor but at least once with
respect to the financial statements for each of the Corporation's first three
fiscal quarters and at least once with respect to the Corporation's annual
financial statements. The Committee may ask members of management or others to
attend meetings of the Committee and provide pertinent information as necessary.
As part of its responsibility to foster open communication, the Committee shall
meet at least annually with management and the independent auditor in separate
executive sessions to discuss any matters that the Committee or any of these
groups believe should be discussed privately. In addition, the Committee or its
Chair shall discuss with management and the independent auditor the
Corporation's annual and quarterly financial statements consistent with Section
IV below. The Committee shall maintain minutes or other records of meetings and
activities of the Committee.
IV. RESPONSIBILITIES AND DUTIES
The duties of the Committee shall include the following:
Documents/Reports Review
------------------------
o Review, prior to its filing or prior to its release, as the case may be,
the Corporation's Annual and Quarterly Reports to be filed with the SEC on
Forms 10-K, 10-KSB, l0-Q or l0-QSB and annual report to stockholders.
o Review such other reports or other financial information to be submitted to
the SEC or the public as the Committee shall deem appropriate.
o In connection with the review of all such reports and, financial
information, consult with the Corporation's management and independent
auditor as to the completeness and accuracy of such reports and financial
information and discuss any significant changes in the Corporation's
selection or application of accounting principles, the items required by
Statement of Auditing Standards 61 as in effect at that time in the ease of
the annual statements and Statement of Auditing Standards 100 as in effect
at that time in the case of the quarterly statements.
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o Review with management and the independent auditor major issues regarding
accounting principles, critical accounting policies and practices used and
to be used in the preparation of the Corporation's financial statements,
significant judgments made in management's preparation of the financial
statements, financial statement presentations, major issues as to the
adequacy of the Corporation's internal controls and any special audit steps
adopted in light of material control deficiencies therein, the effects of
alternative GAAP methods on the financial statements, off-balance sheet
structures and the type and presentation of information to be included in
financial statements and earnings press releases (including any use of "pro
forma" or "adjusted" non-GAAP information).
o Review disclosures made to the Committee by the Corporation's principal
executive officer and principal financial officer during their
certification process with respect to the Reports on Forms 10-K or 10-KSB,
and l0-Q or l0-QSB about any significant deficiencies in the design or
operation of internal controls or material weaknesses therein and any fraud
involving management or other employees who have a significant role in the
Corporation's internal controls.
o Recommend to the Board of Directors whether the Corporation's financial
statements for the year covered by such report should be included in the
Corporation's Annual Report on Form 10-K or 10-KSB.
Independent Auditor
-------------------
o Be directly responsible for the appointment, compensation, retention and
oversight of the work of the independent auditor (including resolution of
disagreements between management and the independent auditor regarding
financial reporting).
o Review the performance of the independent auditor.
o Have sole authority to appoint, discharge and replace the Corporation's
independent auditor, which shall report directly and be ultimately
accountable to the Board and the Committee.
o Receive the written statements from the independent auditor required by
Independence Standards Board Standard No. 1, as amended, modified or
supplemented from time to time and, on at least an annual basis, review and
engage in a dialogue with the auditor with respect to any disclosed
relationships or services that may impact the objectivity and independence
of the auditor and take, or recommend that the full Board take appropriate
action to oversee the independence of the auditor.
o Review the qualifications and performance of the lead partner and balance
of the auditor's staff for the audit of the Corporation's financial
statements.
o Discuss with the independent auditor at least annually (a) the independent
auditor's internal quality-control procedures, (b) any material issues
raised by the most recent internal quality-control review, or peer review,
of the independent auditor, or by any inquiry or investigation by
governmental or professional authorities, within the preceding five years
respecting one or more independent audits carried out by the independent
auditor, and (c) any steps taken by the independent auditor to deal with
any such issues.
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Pre-approve all audit and permitted non-audit services to be performed by the
independent auditor (including the terms of its engagement with respect
thereto), explicitly and/or through policies and procedures adopted by the
Committee; consider whether the provision of non-audit services is compatible
with maintaining the independent auditor's independence; and approve all
engagement letters between the Corporation and the independent auditor for both
audit and permitted non-audit services. The Committee may delegate to one or
more designated members of the Committee the authority to grant pre-approvals
required by this Section provided that the decisions of the member or members to
whom such authority is delegated shall be presented to the full Committee at its
next scheduled meeting.
o Discuss with the independent auditor the rotation of the audit partners,
including, without limitation, the lead partner and concurring or reviewing
partner) pursuant to Rule 20l(c)(6) of Regulation S-X promulgated by the
SEC.
o Set hiring policies for employees or former employees of the independent
auditor which shall, at a minimum, comply with Section 206 of the
Sarbanes-Oxley Act of 2002.
o Present its conclusions with respect to the independent auditor to the full
Board.
Financial Reporting Processes
-----------------------------
o Review with the independent auditor its opinion about the quality and
appropriateness of the Corporation's accounting principles as applied in
its financial reporting.
o Consider and approve, if appropriate, major changes to the Corporation's
auditing and accounting principles and practices as suggested by the
independent auditor or management.
o Review and discuss with management and the independent auditor and others
involved in the preparation thereof, the internal control procedures to be
developed by the Corporation in order to comply with Section 404 of the
Sarbanes-Oxley Act of 2002.
Process Improvement
-------------------
o Following completion of the annual audit, review separately with each of
management and the independent auditor any significant difficulties
encountered during the course of the audit, including any restrictions on
the scope of work or access to required information.
o Review any significant disagreement between management and the independent
auditor in connection with the preparation of any of the Corporation's
financial statements.
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o Periodically consult with the independent auditor out of the presence of
management about internal controls and the completeness and accuracy of the
Corporation's financial statements.
o Review with the independent auditor and management the extent to which
changes or improvements in financial or accounting practices, as approved
by the Committee, have been implemented.
Legal Compliance
----------------
o Review, with the Corporation's counsel, legal compliance matters, including
corporate securities trading policies.
o Review with the Corporation's counsel any legal matter that could have a
significant impact on the Corporation's financial statements.
Ethical Compliance
------------------
o Establish procedures for (i) the receipt, retention and treatment of
complaints received by the Corporation regarding accounting, internal
accounting controls or auditing matters; and (ii) the confidential,
anonymous submission by employees of the Corporation of concerns regarding
questionable accounting or auditing matters.
Self-Review
-----------
o Review the Committee's performance at least annually.
o Review and reassess the adequacy of this Charter periodically, but at least
annually, and update this Charter as conditions dictate.
Certain Other Authorities
-------------------------
o Have the authority to engage independent counsel, accountants and other
advisers, as it determines necessary to carry out its duties.
o Have the authority to provide for appropriate funding, as determined by the
Committee, in its capacity as a committee of the Board, for the payment of
(1) compensation to any independent auditor engaged for the purpose of
preparing or issuing an audit report or performing other audit, review or
attest services for the Corporation; (ii) compensation to any advisers
employed by the Committee; and (iii) ordinary administrative expenses of
the Committee that are necessary or appropriate, in the Committee's
discretion, in carrying out its duties.
Other Responsibilities
----------------------
o Perform any other activities consistent with this Charter, and the
Corporation's Articles of Incorporation, By-laws and governing law, as the
Committee or the Board deems necessary or appropriate.
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