e424b3
Filed Pursuant to Rule 424(b) (3)
Registration No. 333-166591
PROSPECTUS
$70,000,000
POWERSECURE INTERNATIONAL, INC
Common Stock
Preferred Stock
Warrants
Units
We may from time to time offer and sell common stock, preferred stock, warrants, or any
combination of these securities in units. We may offer these securities separately or together, in
one or more offerings, series or classes and in amounts, at prices and on terms that we will
determine at the time of an offering. In addition to the securities that we may offer, the selling
stockholders may offer and sell up to 1,025,641 shares of our common stock from time to time under
this prospectus. We will not receive any proceeds from the sale of common stock by the selling
stockholders. The aggregate offering price of all securities sold under this prospectus will not
exceed $70,000,000.
We and the selling stockholders may offer and sell these securities to or through
underwriters, dealers or agents or directly to purchasers. The names of any underwriters, dealers
or agents involved in the sale of the securities and any fees, commissions or discounts to be paid
to them will be set forth in the applicable prospectus supplement.
This prospectus describes some of the general terms of these securities and the general manner
in which we and the selling stockholders may offer them. When we or the selling stockholders offer
and sell any of these securities, the specific terms of the securities offered, including the
offering price of the securities, will be included in supplements to this prospectus. The
prospectus supplements will also describe the specific manner in which we or the selling
stockholders will offer these securities and may also add, update or change information contained
in this prospectus. You should carefully read this prospectus and the applicable prospectus
supplement, as well as the documents incorporated by reference herein or therein, before you
purchase any of the securities offered hereby. This prospectus may not be used to offer and sell
securities unless accompanied by a prospectus supplement.
Our common stock
is listed and traded on The NASDAQ Global Select Market under the symbol
“POWR.” On May 26, 2010, the last sale price of our common stock as reported on The NASDAQ Global
Select Market was $9.20 per share.
Investing in our securities involves significant risks. You should carefully read the section
entitled “Risk Factors” beginning on page 6 of this prospectus and in the applicable prospectus
supplement and in any of the documents we incorporate by reference.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 27, 2010
Table of Contents
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You should rely only on the information contained or incorporated by reference in this
prospectus, any applicable prospectus supplement and any related free writing prospectus. Neither
we nor the selling stockholders have authorized any other person to provide you with information
that is different from the information contained or incorporated by reference in this prospectus,
any applicable prospectus supplement or any related free writing prospectus. If any person does
provide you with information that differs from information that is contained or incorporated by
reference in this prospectus, any applicable prospectus supplement or any related free writing
prospectus, you should not rely on it. Neither we nor the selling stockholders are making an offer
to sell or are soliciting an offer to buy these securities in any jurisdiction where such offers or
sales are not permitted. You should assume that the information in this prospectus, any applicable
prospectus supplement or any related free writing prospectus is complete and accurate only as of
the date on the front of the document and that any of the information that we have incorporated by
reference is accurate only as of the date of the document incorporated by reference, regardless of
the time of delivery of this prospectus, any applicable prospectus supplement or any free writing
prospectus, or of any sale of a security.
This prospectus incorporates important business and financial information about us that is not
included in or delivered with the prospectus. We will provide you without charge upon your request
a copy of any documents incorporated by reference into this prospectus (other than exhibits to
those documents that are not specifically incorporated by reference into those documents). You may
request a copy of a document by writing or telephoning us at the following address:
PowerSecure International, Inc.
1609 Heritage Commerce Court
Wake Forest, North Carolina 27587
Attention: Investor Relations
Telephone: (919) 556-3056
To obtain timely delivery, you must request information no later than five business days
before the date you must make your investment decision.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission using a “shelf” registration process. Under this shelf registration process, we
may from time to time offer and sell the securities, or combinations of the securities, described
in this prospectus in one or more offerings in amounts, at prices and on terms that we determine at
the time of the offering, up to a total dollar amount, including the resale of common stock by the
selling stockholders, of $70,000,000.
This prospectus provides you with a general description of the securities that we may offer.
Each time we offer a type or series of securities under this prospectus, we will provide a
prospectus supplement that will contain more specific information about the terms of that offering
and those securities. The information in the prospectus supplement (and in any related free writing
prospectus that we may authorize to be provided to you) may add, update or change the information
contained in this prospectus or in the documents that we have incorporated by reference into this
prospectus. Before investing in any of the securities being offered under this registration
statement, you should read carefully this prospectus, any applicable prospectus supplement and any
related free writing prospectus, together with the information incorporated herein by reference as
described under the heading “Incorporation by Reference.”
In addition, the selling stockholders may use this prospectus to offer and sell up to
1,025,641 shares of our common stock from time to time. We will not receive any proceeds from the
sale of our common stock by the selling stockholders. The selling stockholders will deliver a
supplement with this prospectus, to the extent appropriate, to update the information contained in
this prospectus. The selling stockholders may sell their shares of common stock through any means
described in the section entitled “Plan of Distribution.”
This prospectus contains summaries of certain provisions contained in some of the documents
described herein, but reference is made to the actual documents for complete information. All of
the summaries are qualified in their entirety by the actual documents. Copies of some of the
documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain
copies of those documents as described below under the heading “Where You Can Find Additional
Information.”
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POWERSECURE INTERNATIONAL, INC.
Who We Are
PowerSecure International, Inc., headquartered in Wake Forest, North Carolina, is a leading
provider of Energy and Smart Grid Solutions to electric utilities and their commercial,
institutional and industrial customers, and of Energy Services to oil and natural gas producers. We
provide these customers with products and services in four strategic business areas:
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Interactive Distributed Generation®, |
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Utility Infrastructure, |
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Energy Efficiency, and |
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Energy Services. |
Our Energy and Smart Grid Solutions segment is operated through our largest wholly-owned
subsidiary PowerSecure, Inc., which we refer to as “our PowerSecure subsidiary.” This segment
includes three of our four strategic business areas: Interactive Distributed
Generation®, Utility Infrastructure and Energy Efficiency. These three areas are focused
on providing utilities and their commercial, institutional and industrial customers with products
and services to help them generate, deliver and utilize electricity more efficiently and are
intended to deliver strong returns on investment. This segment operates primarily out of our Wake
Forest, North Carolina headquarters office, and its operations also include several satellite
office and manufacturing facilities, the largest of which are in Raleigh, North Carolina,
McDonough, Georgia, and Anderson, South Carolina.
Our Interactive Distributed Generation® business involves manufacturing, installing
and operating electric generation equipment located at the facility where the power is used,
including commercial, institutional, and industrial operations, generally on behalf of electric
utilities. Our equipment provides a dependable backup power supply during power outages, and
provides a more efficient and environmentally friendly source of power during high cost periods of
peak power demand. Our Interactive Distributed Generation systems contain our proprietary
electronic controls, which enable our systems to be monitored around the clock by our smart grid
monitoring center, protecting our customers’ operations from power outages and their costs. Through
our monitoring center, we also forecast utilities’ peak demand periods, and electronically deploy
our systems during these periods to power the customers’ operations instead of drawing electricity
from the utility grid. Our smart grid monitoring center ensures that our interactive distributed
generation systems deliver more efficient and environmentally friendly power at optimal times and
durations. This more efficient peak demand power supply benefits both the utility and the customer
whose facility is being powered by the system. Our systems also enable utilities to delay new
infrastructure investments for transmitting and distributing power, and minimize energy losses
associated with moving electricity over long distances.
Our Utility Infrastructure business is focused on helping electric utilities design, build,
upgrade and maintain infrastructure that enhances the efficiency of their grid systems. Our
products and services include transmission and distribution system construction and maintenance,
installation of advanced metering and efficient lighting, and emergency storm restoration.
Additionally, we provide utilities with a wide range of engineering and design services, as well as
consulting services for regulatory and rate design matters.
Our Energy Efficiency area is focused on providing energy solutions to commercial,
institutional, and industrial customers that deliver strong returns on investment by reducing
energy costs, improving their operations, and benefiting the environment. Our primary business in
this area is our EfficientLights business, and our primary product is our EfficientLights
LED-based, or light-emitting diode based, lights that reduce the energy and maintenance costs for
refrigerated cases in grocery, drug, and convenience stores. Additionally, we are in the process of
developing other LED-based lighting products, including additional in-store retail lighting, and
LED-based street lights and security lights. Our other business in this area is our EnergyLite
business, which designs and installs cost-effective energy improvement systems for general
lighting, building controls and other facility upgrades.
Our Energy Services segment is operated through our two other principal operating
subsidiaries, Southern Flow Companies, Inc., which we refer to as “Southern Flow,” and WaterSecure
Holdings, Inc., which we refer to as “WaterSecure.” Our Southern Flow business provides oil and
natural gas measurement services to customers involved in oil and natural gas production,
transportation and processing, with a focus on the natural gas market.
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Southern Flow is headquartered in Lafayette, Louisiana, and provides these services through
ten division offices located throughout the Gulf of Mexico, Southwest, Midwest and Rocky Mountain
regions. WaterSecure owns approximately 40% of the equity interests in an unconsolidated business,
Marcum Midstream 1995-2 Business Trust, which we refer to as “MM 1995-2” or as our “WaterSecure
operations.” Our WaterSecure operations provide water processing and disposal services for oil and
natural gas producers in northeastern Colorado utilizing environmentally responsible technologies
and processes.
In this prospectus, references to “PowerSecure,” “we,” “us” and “our” mean PowerSecure
International, Inc. together with its subsidiaries, and references to our “PowerSecure subsidiary”
means PowerSecure, Inc. alone, unless we state otherwise or the context indicates otherwise.
We were incorporated in Delaware on April 5, 1991. On August 22, 2007, we changed our name to
PowerSecure International, Inc. from Metretek Technologies, Inc., recognizing that the significant
growth in the business operations of our PowerSecure subsidiary resulted in it becoming our core
business and the business best positioned in the marketplace to lead our growth in the future. Our
principal executive offices are located at 1609 Heritage Commerce Court, Wake Forest, North
Carolina 27587, and our telephone number at those offices is (919) 556-3056. Our internet website
address is www.powersecure.com. The contents of and the information on or accessible through our
corporate website is not a part of, and is not incorporated into, this prospectus, other than the
documents that we file with the SEC that are incorporated by reference into this prospectus, and
any references to our website are intended to be an inactive textual references only.
Recent Developments
On April 6, 2010, we announced that we have launched an expansion of our LED lighting business
through the formation and acquisition of a two-thirds controlling interest in Innovative Electronic
Solutions Lighting, LLC, a Delaware limited liability company, which we refer to as “IES”, which
acquired substantially all of the assets and business of a leading LED lighting development
company, in order to accelerate the expansion of new LED lighting products and to capitalize on the
growing marketplace for LED lighting. IES will design and manufacture new LED-based lighting
products for commercial, industrial, and retail customers. The business of IES will include
turn-key product development, design and manufacturing of solid state LED-based lights, including
power drivers, light engines, and thermal management solutions.
IES commenced its business and operations by acquiring, on April 1, 2010, substantially all of
the assets and business of Innovative Electronic Solutions, LLC, a North Carolina limited liability
company, which conducted a solid state LED-based lighting design and manufacturing business. Our
PowerSecure subsidiary owns two-thirds of the membership interests in, and controls the management
of, IES. Our PowerSecure subsidiary contributed approximately $4.4 million to IES to fund the
capitalization of IES and the acquisition by IES of substantially all of the assets and business of
the seller as well as the assumption by IES of the seller’s current liabilities. In connection with
its sale and contribution of substantially all of its asset and business to IES, the seller
received the remaining one-third of the membership interests in IES.
On April 30, 2010, our PowerSecure subsidiary, which previously owned two-thirds of the equity
interests in EfficientLights, LLC, a Delaware limited liability company, exercised its option to
purchase the one-third minority interest in EfficientLights. The minority interests in
EfficientLights were previously owned by the founder, who is also the President, of EfficientLights
and by five other key employees of EfficientLights. EfficientLights markets and sells LED-based
lights that reduce the energy and maintenance costs for refrigerated cases in grocery, drug, and
convenience stores, and is in the process of developing other LED-based lighting products,
including additional in-store retail lighting, and LED-based street lights and security lights. As
a result, EfficientLights has become a wholly-owned subsidiary of our PowerSecure subsidiary and
there will no longer be a reduction in our consolidated net income due to the net income
attributable to the noncontrolling interest. Our PowerSecure subsidiary acquired the minority
interest in EfficientLights in exchange for 1,025,641 shares of our common stock,
which had a value of $11,548,717, based on $11.26, the last sale
price of our common stock on April 30, 2010 as
reported on The
NASDAQ Global Select Market.
This prospectus
covers the resale of those shares of our common stock by the former holders of the minority
interest in EfficientLights. See “Selling Stockholders” below.
5
RISK FACTORS
Investing in our securities involves significant risks. Before making an investment decision,
you should consider carefully the risks, uncertainties and other factors described in our most
recent Annual Report on Form 10-K, as supplemented and updated by subsequent Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K that we have filed or will file with the SEC, and in
documents which are incorporated by reference into this prospectus, as well as the risk factors and
other information contained in or incorporated by reference into the applicable prospectus
supplement and any related free writing prospectus.
If any of these risks were to occur, our business, affairs, prospects, assets, financial
condition, results of operations and cash flows could be materially and adversely affected. If this
occurs, the trading price of our securities could decline, and you could lose all or part of your
investment. For more information about our SEC filings, please see “Where You Can Find More
Information” and “Documents Incorporated by Reference.” See also “Cautionary Note Regarding
Forward-Looking Statements.”
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and any related free writing prospectus and the
documents incorporated by reference herein or therein contain forward-looking statements within the
meaning of and made under the safe harbor provisions of Section 27A of the Securities Act of 1933,
and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are all
statements other than statements of historical fact, including statements that refer to plans,
intentions, objectives, goals, strategies, hopes, beliefs, projections, prospects, expectations or
other characterizations of future events or performance, and assumptions underlying the foregoing.
The words “may,” “could,” “should,” “would,” “will,” “project,” “intend,” “continue,” “believe,”
“anticipate,” “estimate,” “forecast,” “expect,” “plan,” “potential,” “opportunity” and “scheduled,”
variations of such words, and other comparable terminology and similar expressions are often, but
not always, used to identify forward-looking statements. Examples of forward-looking statements
include, but are not limited to, statements about the following:
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our prospects, including our future business, revenues, expenses, net income,
margins, profitability, cash flow, cash position, liquidity, financial condition and
results of operations, our targeted growth rate and our expectations about realizing
the revenue in our backlog and in our sales pipeline; |
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the effects on our business, financial condition and results of operations of
current and future economic, business, market and regulatory conditions, including the
downturn in the economy and the adverse effects of the difficult credit markets on our
customers and their capital spending and ability to finance purchases of our products,
services, technologies and systems; |
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the effects of fluctuations in sales on our business, revenues, expenses, net
income, margins, profitability, cash flow, liquidity, financial condition and results
of operations; |
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our products, services, technologies and systems, including their quality and
performance in absolute terms and as compared to competitive alternatives, their
benefits to our customers and their ability to meet our customers’ requirements, and
our ability to successfully develop and market new products, services, technologies and
systems; |
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our markets, including our market position or market share; |
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our ability to successfully develop, operate, grow and diversify our operations and
businesses; |
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our business plans, strategies, goals and objectives, and our ability to
successfully achieve them; |
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the sufficiency of our capital resources, including our cash and cash equivalents,
funds generated from operations, availability of borrowings under our credit and
financing arrangements and other capital resources, to meet our future working capital,
capital expenditure, lease and debt service and business growth needs; |
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the value of our assets and businesses, including the revenues, profits and cash
flow they are capable of delivering in the future; |
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industry trends and customer preferences and the demand for our products, services,
technologies and systems; |
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the nature and intensity of our competition, and our ability to successfully compete
in our markets; |
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business acquisitions, combinations, sales, alliances, ventures and other similar
business transactions and relationships; and |
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the effects on our business, financial condition and results of operations of
litigation and other claims and proceedings that arise from time to time. |
Any forward-looking statements we make are based on our current plans, intentions, objectives,
goals, strategies, hopes, beliefs, projections and expectations, as well as assumptions made by and
information currently available to management. Forward-looking statements are not guarantees of
future performance or events, but are subject to and qualified by substantial risks, uncertainties
and other factors, which are difficult to predict and are often beyond our control. Forward-looking
statements will be affected by assumptions and expectations we might make that do not materialize
or that prove to be incorrect and by known and unknown risks, uncertainties and other factors that
could cause actual results to differ materially from those expressed, anticipated or implied by
such forward-looking statements. These risks, uncertainties and other factors include, but are not
limited to, those described in “Risk Factors” above, as well as other risks, uncertainties and
factors discussed elsewhere in this prospectus, in documents that we include as exhibits to the
registration of which this prospectus is a part or incorporate by reference into this prospectus,
and in other reports and documents we from time to time file with or furnish to the SEC and
incorporate by reference in this prospectus. In light of these risks and uncertainties, you are
cautioned not to place undue reliance on any forward-looking statements that we make.
Any forward-looking statements contained in this prospectus, any prospectus supplement or any
free writing prospectus or in any document we incorporate by reference speak only as of the date of
this prospectus, such prospectus supplement or free writing prospectus or such document
incorporated by reference. We undertake no duty or obligation to update or revise any
forward-looking statement or to publicly disclose any update or revision for any reason, whether as
a result of changes in our expectations or the underlying assumptions, the receipt of new
information, the occurrence of future or unanticipated events, circumstances or conditions or
otherwise.
USE OF PROCEEDS
Unless we indicate otherwise in the applicable prospectus supplement, we intend to use the net
proceeds from the sale of the securities offered by us under this prospectus and any prospectus
supplement for general corporate purposes, including but not limited to working capital, capital
expenditures, acquisitions, repayment of indebtedness and other business opportunities. We have not
determined the amount of net proceeds to be used specifically for the foregoing purposes.
Accordingly, management will have broad discretion in the application of any proceeds from the sale
of securities offered in this prospectus. Pending any specific application, we may initially invest
funds in short-term marketable securities or apply them to the reduction of short-term
indebtedness.
We will not receive any of the proceeds from any sale of shares by any of the selling
stockholders.
THE SECURITIES THAT MAY BE OFFERED
The descriptions of the securities contained in this prospectus, together with the applicable
prospectus supplements, summarize the material terms and provisions of the various types of
securities that we or the selling stockholders may offer. These descriptions are not meant to be
complete. We will describe in the applicable prospectus supplement relating to any securities the
particular terms of the securities offered by that prospectus supplement. If we indicate in the
applicable prospectus supplement, the terms of the securities may differ from the terms we have
summarized below. We will also include information in the prospectus supplement, where applicable,
about material United States federal income tax considerations relating to the securities, and the
securities exchange, if any, on which the securities will be listed.
We may offer and sell from time to time, in one or more primary offerings:
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common stock; |
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preferred stock; |
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warrants to purchase common stock and/or preferred stock; and |
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units consisting of common stock, preferred stock and/or warrants in any
combination. |
The selling stockholders may from time to time offer our common stock for resale in one or
more secondary offerings.
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This prospectus may not be used to consummate a sale of securities unless it is accompanied by
a prospectus supplement.
DESCRIPTION OF COMMON STOCK
The following is a description of the general terms of our common stock and of certain
provisions of our Second Amended and Restated Certificate of Incorporation, which we refer to as
our restated certificate, and of our Amended and Restated Bylaws, which we refer to as our restated
bylaws. This description is a summary only and not meant to be complete, but is qualified in its
entirety by reference to the relevant provisions of the General Corporation Law of the State of
Delaware, which we refer to as the DGCL, and to our restated certificate and of our restated
bylaws. For more detailed information, you should refer to our restated certificate and our
restated bylaws, which we have filed with the SEC and are available as described below under “Where
You Can Find More Information,” and the DGCL.
General
Under our restated certificate, we are authorized to issue 25,000,000 shares of common stock,
par value $.01 per share. As of May 26, 2010, 18,250,041 shares of common stock were issued and
outstanding.
Voting Rights, Dividends and Other Rights
The holders of our common stock are entitled to one vote for each share in the election of
directors and on all other matters submitted to a vote of the stockholders. The holders of our
common stock do not have cumulative voting rights in the election of directors or any preemptive
rights to purchase or subscribe for our securities. Our common stock is not convertible into any
other securities and is not subject to redemption by us. All outstanding shares of our common stock
are, and any additional shares of our common stock that we may issue under this prospectus will
upon issuance be, fully paid and non-assessable.
Subject to the rights of the holders of any shares of preferred stock then outstanding, the
holders of our common stock are entitled to receive ratably such dividends and other distributions,
if any, as may be declared from time to time by our board out of funds legally available for that
purpose.
In the event of the liquidation, dissolution or winding-up of our affairs, the holders of our
common stock will be entitled to share ratably in our net assets that are remaining after payment
or provision for payment of all of our debts and obligations and after payment of any liquidation
preferences to the holders of any shares of preferred stock then outstanding.
The rights of holders of our common stock are subject to and may be adversely affected by the
rights, preferences and privileges of the holders of shares of any series of preferred stock that
we may issue in the future.
Listing
Our common stock is listed on The NASDAQ Global Select Market under the symbol “POWR.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Anti-Takeover Provisions
Certain provisions of Delaware law, our restated certificate and restated bylaws, and our
stockholder rights plan discussed below could discourage, delay or prevent a proxy contest or other
change in control or a change in management. These provisions are intended to enhance the
likelihood of continuity and stability in the composition of our board and in the policies
formulated by the board and to discourage certain types of transactions that may involve an actual
or threatened change of control of us. These provisions are also designed to reduce our
vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be
used in proxy fights.
Delaware Business Combinations Statute. We are a Delaware corporation and are subject to the
provisions of Section 203 of the DGCL. In general, Section 203 prohibits a publicly-held Delaware
corporation from engaging in
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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, or the transaction in which the person became an interested stockholder
was, approved in a prescribed manner or another prescribed exception applies. For purposes of
Section 203, a “business combination” is defined broadly to include a merger, asset or stock sale
or other transaction resulting in a financial benefit to the interested stockholder, and, subject
to certain exceptions, an “interested stockholder” is a person who, together with such person’s
affiliates and associates, owns (or, within three years prior, did own) 15% or more of the
corporation’s voting stock.
Blank Check Preferred Stock. Our restated certificate authorizes the issuance of up to
3,500,000 shares of preferred stock, par value $0.01 per share, of which 2,000,000 shares of
preferred stock were not designated as of the date of this prospectus. The board has the authority,
without further approval of the stockholders, to issue and determine the powers, preferences and
relative, participating, optional or other special rights of each series of preferred stock, and
any qualifications, limitations or restrictions thereof, including, without limitation, the voting
rights, dividend rate, conversion or exchange rights, redemption rights and price (including
sinking fund provisions) and liquidation preference. The board can issue shares of preferred stock
in one or more series and fix the number of shares constituting any such series and the designation
thereof. The rights and preferences of any series of preferred stock that we issue in the future
could adversely affect the voting power and ownership interest of holders of our common stock. See
“Description of Preferred Stock” below.
Classified Board of Directors and Limitation on Removal of Directors. Our restated certificate
provides that our board is divided into three classes, each serving staggered three-year terms, so
that only approximately one-third of the directors are elected at each annual meeting of
stockholders. All directors elected to our classified board will serve until the election and
qualification of their respective successors or their earlier resignation or removal. The board is
authorized to create new directorships and to fill such positions so created and is permitted to
specify the class to which any such new position is assigned. The person filling such position
would serve for the term applicable to that class. The board (or its remaining members, even if
less than a quorum) is also empowered to fill vacancies on the board occurring for any reason for
the remainder of the term of the class of directors in which the vacancy occurred. Members of the
board may be removed only for cause and only by the affirmative vote of the holders of a majority
of shares entitled to vote at an election of directors.
Advance Notice Provisions for Stockholder Proposals and Stockholder Nominations of Directors.
Our restated bylaws contain provisions requiring that, in order for nominations to the board or for
other business to be properly brought by a stockholder before a meeting of stockholders, the
stockholder must first have given timely notice of the proposal in writing to our Secretary.
Generally, for an annual meeting, a stockholder’s notice must be delivered not less than 90 days
nor more than 120 days prior to the anniversary of the previous year’s annual meeting, provided if
the date of the annual meeting is not within 30 days before or after such anniversary date, notice
by the stockholder must be delivered not later than the 90th day prior to such annual
meeting or, if later, the tenth day following the day on which public disclosure of the date of the
annual meeting was first made. The notice must set forth specific information regarding the
proposing stockholder, the proposed business or director nominee and such other information, and
the stockholder must follow the procedures, specified in the restated bylaws. Such requirements in
our restated bylaws are in addition to the requirements set forth in the rules and regulations of
the SEC under the Exchange Act. If it is determined that a nomination or other business was not
properly brought before a meeting in accordance with our restated bylaw provisions, such business
will not be conducted and such nominee will be disregarded at the meeting.
Special Meetings of Stockholders. Special meetings of the stockholders may be called only by
our Chairman of the board, our President or by our Secretary at the request in writing of a
majority of our board. Business to be transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice of the special meeting.
No Stockholder Action by Written Consent. Our restated certificate and our restated bylaws
require that any action required or permitted to be taken by the stockholders must be taken at a
duly called meeting of the stockholders and may not be taken by written consent without a meeting.
Size of the Board. Our restated bylaws provide that the number of directors which shall
constitute the whole board shall be fixed from time to time by the board, provided it shall be not
less than four nor more than nine.
Filling Board Vacancies. Under our restated bylaws, any vacancy and any newly created
directorships resulting from any increase in the authorized number of directors will be filled by a
majority of the remaining
9
directors, even if less than a quorum, and the director so chosen will hold office until the
election of the class of directors for such directorship.
Super-Majority Stockholder Vote Required for Certain Actions. The DGCL provides generally that
the affirmative vote of a majority of the shares entitled to vote on any matter is required to
authorize a merger, consolidation, sale of all or substantially all assets or similar transaction
or to amend a corporation’s certificate of incorporation or bylaws, unless the corporation’s
certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our
restated certificate requires the affirmative vote of the holders of not less than 80% of our
outstanding voting shares in order for us to consolidate or merge with or into another corporation,
to cause a combination or majority share acquisition, to sell, transfer or otherwise dispose of all
or substantially all of our assets or to dissolve, unless two-thirds of our board approves that
action or transaction. In addition, our restated certificate provides that our restated
certificate and our restated bylaws can only be amended or repealed by the affirmative vote of the
holders of not less than 80% of our outstanding voting shares, unless two-thirds of our board
approves such amendment or repeal.
Other Provisions in our Restated Certificate. Our restated certificate contains other
provisions that could have the effect of discouraging, delaying or preventing a third party from
attempting to acquire us. For example, our restated certificate contains a fair price provision
that sets minimum price requirements for potential acquirers under certain conditions. In addition,
our restated certificate contains anti-greenmail provisions which limit our ability to repurchase
shares of common stock from significant stockholders.
Stockholder Rights Plan. Our board has adopted a stockholder rights plan, through an amended
and restated rights agreement. The rights plan may have the effect of delaying, deterring, or
preventing changes in our management or control of us, which may discourage potential acquirers who
otherwise might wish to acquire us without the consent of the board. Under the rights plan, if a
person or group acquires 15% or more of our common stock, all holders of rights (other than the
acquiring stockholder) may, upon payment of the purchase price then in effect (which is currently
$15.00 per right), purchase common stock having a value of twice the purchase price. In the event
that we are involved in a merger or other similar transaction where we are not the surviving
corporation, all holders of rights (other than the acquiring stockholder) shall be entitled, upon
payment of the then in effect purchase price, to purchase common stock of the surviving corporation
having a value of twice the purchase price. The rights are redeemable by us for $0.01 per right,
and will expire on November 30, 2011, unless we extend the terms of the rights agreement or we
earlier redeem or exchange the rights.
Limitation of Liability and Indemnification of Officers and Directors. Our restated
certificate and restated bylaws contain provisions permitted under the DGCL eliminating the
personal liability of our directors for monetary damages resulting from breaches of their fiduciary
duty, except in circumstances involving wrongful acts, such as the breach of a director’s duty of
loyalty or acts or omissions that involve intentional misconduct or a knowing violation of law. In
addition, our restated certificate and restated bylaws contain provisions requiring us to indemnify
our directors and officers to the fullest extent permitted by the DGCL. We have also entered into
indemnification agreements with our directors and executive officers providing them with broad
rights of indemnification to the fullest extent permitted by law.
DESCRIPTION OF PREFERRED STOCK
We are authorized to issue up to 3,500,000 shares of preferred stock, par value $0.01 per
share, of which 1,000,000 shares are designated as Series B and intended for a previous private
placement, 500,000 shares are designated as Series C and reserved for issuance under our rights
plan, and 2,000,000 shares are undesignated and available for issuance as “blank check” preferred
stock. As of May 26, 2010, no shares of our preferred stock were outstanding.
The following description of the general terms of our preferred stock is a summary only and
not meant to be complete, but is qualified in its entirety by reference to our restated certificate
and to the certificate of designations relating to any new series of preferred stock we offer
hereunder. For more detailed information, you should refer to our restated certificate, which we
have filed, and to one or more certificates of designations related to any new series of preferred
stock we offer under this prospectus, which prior to offering hereunder we will file, with the SEC
as described below and are or will be available as provided under “Where You Can Find More
Information.”
10
Our board is authorized, without stockholder approval, to issue shares of our preferred stock
from time to time in one or more series and to fix and designate the powers, preferences and
relative, participation, optional or other special rights, and any qualifications, limitations or restrictions, of each series of
preferred stock, including any:
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voting rights; |
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dividend rate; |
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conversion or exchange rights; |
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redemption rights and price (including sinking fund provisions); and |
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liquidation preferences. |
Our board may fix the number of shares constituting any series and the designations of these
series. The powers, preferences and relative, participation, optional or other special rights, and
any qualifications, limitations or restrictions, of each series will be fixed by a certificate of
designation relating to each series. If we issue shares of any series of preferred stock under this
prospectus, the prospectus supplement relating to each series will specify the terms of the
preferred stock, including, if applicable, the following:
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the maximum number of shares in the series and the distinctive designation; |
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the terms on which dividends will be paid, if any; |
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the terms on which the shares may be redeemed, if at all; |
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the liquidation preference, if any; |
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the terms of any retirement or sinking fund for the purchase or redemption of the
shares of the series; |
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the terms and conditions, if any, on which the shares of the series will be
convertible into, or exchangeable for, shares of any other class or classes of capital
stock; |
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the voting rights, if any, on the shares of the series; and |
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any or all other preferences and relative, participating, operational or other
special rights or qualifications, limitations or restrictions of the shares. |
DESCRIPTION OF WARRANTS
The following description, together with the additional information we may include in any
applicable prospectus supplement, summarizes the material terms and provisions of the warrants that
we may offer under this prospectus and the related warrant agreements and warrant certificates.
While the terms summarized below will apply generally to any warrants that we may offer, we will
describe the particular terms of any series of warrants in more detail in the applicable prospectus
supplement. If we so indicate in the prospectus supplement, the terms of any warrants offered under
that prospectus supplement may differ from the terms described below. Specific warrant agreements
will contain additional important terms and provisions and will be incorporated by reference as an
exhibit to the registration statement which includes this prospectus.
General
We may issue warrants to purchase shares of our common stock or our preferred stock, or a
combination thereof, in one or more series. We may issue warrants independently or together with
other securities, and the warrants may be attached to or separate from these securities.
Each series of warrants will be evidenced by warrant certificates that we will issue under a
separate warrant agreement. We may enter into each warrant agreement with a warrant agent. We will
indicate the name and address of any warrant agent in the applicable prospectus supplement relating
to a particular series of warrants.
If we issue warrants pursuant to this prospectus, we will describe in the applicable
prospectus supplement the terms of each series of warrants, including, as applicable, the
following:
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the title of the warrants; |
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the offering price for the warrants, if any; |
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the aggregate number of warrants offered; |
11
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the designation, number and terms of the securities purchasable upon exercise of the
warrants; |
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if the warrants are issued as a unit with another security, the date, if any, on and
after which the warrants and the related securities will be separately transferable; |
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the exercise price of the warrants; |
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the dates or periods during which the warrants are exercisable; |
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any minimum or maximum amount of warrants that may be exercised at any one time; |
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the designation and terms of any securities with which the warrants are issued; |
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the effect of any merger, consolidation, sale or other disposition of our business
on the warrant agreement and the warrants; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or the number of
securities issuable upon exercise of the warrants; |
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any terms, procedures and limitations relating to the transferability, exchange or
exercise of the warrants; |
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the manner in which the warrant agreement and warrants may be modified; |
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the federal income tax consequences of holding or exercising the warrants; and |
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any other specific terms, preferences, rights or limitations of or restrictions on
the warrants. |
Before exercising their warrants, holders of warrants will not have any of the rights of
holders of the securities purchasable upon such exercise, including the right to receive dividends,
if any, or payments upon our liquidation, dissolution or winding up or the right to exercise voting
rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify at the
exercise price that we describe in the applicable prospectus supplement. Unless we otherwise
specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants
at any time up to 5:00 P.M. New York City time on the expiration date that we set forth in the
applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information, and paying the
required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth in the warrant certificate and in the applicable
prospectus supplement the information that the holders of the warrants will be required to deliver
to the warrant agent upon exercise of the warrants.
Upon receipt of the required payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the securities purchasable upon such
exercise. If fewer than all of the warrants represented by the warrant certificate are exercised,
then we will issue a new warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the warrants may surrender securities
as all or part of the exercise price for warrants.
Enforceability of Rights By Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and
will not assume any obligation or relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than one issue of warrants. A
warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of warrants may, without the consent of
the related warrant agent or the holder of any other warrants, enforce by appropriate legal action
its right to exercise, and to receive the securities purchasable upon exercise of, its warrants.
12
DESCRIPTION OF UNITS
We may issue units consisting of one or more shares of common stock, shares of preferred stock
and/or warrants in any combination. Each unit will be issued so that the holder of the unit is also
the holder of each security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under which a unit is
issued may provide that the securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified date.
If we issue any units pursuant to this prospectus, we will describe in the applicable
prospectus supplement the terms of and other information relating to such units, including, as
applicable, the following:
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the designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or
transferred separately; |
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any applicable material U.S. Federal income tax consequences; |
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the terms of any unit agreement governing the units; and |
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any provisions for the issuance, payment, settlement, transfer or exchange of the
units or of the securities comprising the units. |
The provisions described in this section, as well as those described under “Description of
Common Stock”, “Description of Preferred Stock” and “Description of Warrants,” will apply to each
unit, as applicable, and to any common stock, preferred stock or warrant included in each unit.
SELLING STOCKHOLDERS
In addition to covering the offer and sale of securities by us, this prospectus covers the
offer and resale by the selling stockholders of up to 1,025,641 shares of our common stock. As used
in this prospectus, the term “selling stockholders” includes each of the selling stockholders
listed in the table below, and any donees, pledgees, transferees or other successors-in-interest
selling shares received after the date of this prospectus from a selling stockholder as a gift,
pledge or other non-sale related transfer.
As described above under “PowerSecure International, Inc. — Recent Developments,” on April
30, 2010 we issued 1,025,641 shares of our common stock to the founder, who is the President, of
EfficientLights, and to five other key employees of EfficientLights who owned membership interests
in EfficientLights, who are the selling stockholders listed below, in a private placement in
connection with our acquisition of the minority interest in EfficientLights, which thereafter
became a wholly-owned subsidiary of our PowerSecure subsidiary. We previously owned two-thirds of
the membership interests in EfficientLights, and we exercised our right and option, under the
operating agreement of EfficientLights, to acquire the remaining one-third membership interest from
the selling stockholders listed below in exchange for the issuance of shares of our common stock.
The following table sets forth:
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the name of each of the selling stockholders; |
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the number of shares of our common stock beneficially owned by each such selling
stockholder as of May 26, 2010; |
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the number of shares of our common stock being offered for the account of such
selling stockholder under this prospectus, and |
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the number of shares of our common stock beneficially owned by each selling
stockholder upon completion of this offering, assuming all shares offered under this
prospectus are sold. |
The information in the table below is based solely on information supplied to us by the
selling stockholders, and we have not independently verified such information. Each of the selling
stockholders may sell all, some or none of the shares offered under this prospectus. We do not know
how long the selling stockholders will hold their shares before selling them, and we currently have
no agreements, arrangements or understandings with any selling stockholders regarding the sale of
any of the shares. Mr. Beatenbough is the President, and the other selling stockholders are
employees, of our EfficientLights subsidiary. Except as described in the foregoing sentence and
13
other than as a result of the ownership of our shares, none of the selling stockholders has
held any position, office or other material relationship with us or any of our affiliates within
the past three years.
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Shares |
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Shares Beneficially |
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Beneficially |
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Owned Prior to |
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Shares Being |
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Owned After |
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Offering (1)(2) |
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Registered |
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Offering(2)(3)__ |
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| Name of Selling Stockholder |
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Number |
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Percent |
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For Sale |
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Number |
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Percent |
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Bryan Beatenbough |
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820,512 |
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4.5 |
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820,512 |
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0 |
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0 |
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Wesley Mize |
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102,564 |
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* |
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102,564 |
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0 |
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0 |
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Ryan Haley |
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51,282 |
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* |
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51,282 |
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0 |
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0 |
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Patrick Barbee |
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20,613 |
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* |
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20,513 |
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100 |
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* |
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Jeff Purcell |
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15,425 |
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* |
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15,385 |
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40 |
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* |
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Glenn Crump |
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15,385 |
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* |
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15,385 |
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0 |
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0 |
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| * |
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Represents less than 1% of the outstanding shares of our common stock. |
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| (1) |
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Except as otherwise indicated, each selling stockholder named in the table has sole
voting and investment power with respect to all common stock beneficially owned by such
stockholder. Beneficial ownership is determined in accordance with Rule 13d-3(d)
promulgated by the SEC under the Exchange Act. |
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| (2) |
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The percentages shown are calculated based on 18,250,041 shares of common stock
outstanding as of May 26, 2010. |
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| (3) |
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There is no assurance that the selling stockholders will sell all or any portion of the
shares being registered for sale. For purposes of this table, we have assumed that, upon
completion of the offering, the selling stockholders will have sold all of the shares
covered by this prospectus and will not have acquired beneficial ownership of any
additional shares. |
We will pay all expenses of the registration of the shares of common stock to be offered by
the selling stockholders under this prospectus including, without limitation, SEC filing fees and
expenses and compliance with state securities laws, except that the selling stockholders will pay
any underwriting discounts and selling commissions incurred by them in connection with such sales.
We will indemnify the selling stockholders against liabilities, including liabilities under the
Securities Act. We may be indemnified by the selling stockholders against civil liabilities,
including liabilities under the Securities Act, which may arise from any written information
furnished to us by the selling stockholders specifically for use in this prospectus.
PLAN OF DISTRIBUTION
We and the selling stockholders may sell the offered securities from time to time pursuant to
underwritten public offerings, negotiated transactions, block trades or a combination of these
methods. We and the selling stockholders may sell the securities being offered hereby in one or
more of the following ways from time to time:
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to or through underwriters or dealers; |
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through agents; |
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directly to purchasers; or |
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through a combination of any of these methods. |
We and the selling stockholders may distribute securities from time to time in one or more
transactions:
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at a fixed offering price or prices, which may be changed; |
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at market prices prevailing at the time of sale; |
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at prices related to prevailing market prices; or |
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at negotiated prices. |
The prospectus supplement will include the following information as to each offering of
securities hereunder:
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the terms of the offering; |
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the names of any underwriters, dealers or agents; |
14
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the name or names of any managing underwriter or underwriters; |
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the purchase price or public offering price of the securities; |
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the net proceeds to us or the selling stockholders from the sale of the securities; |
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any over-allotment options under which underwriters may purchase additional
securities from us; |
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any delayed delivery arrangements; |
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any underwriting discounts, commissions and other items constituting underwriters’
compensation; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any commissions paid to agents. |
Sales Through Underwriters or Dealers
If underwriters are used in the sale of securities, the underwriters will acquire the
securities for their own account and may resell the securities 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. Underwriters may offer the securities to the public either
through underwriting syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. Unless the prospectus supplement otherwise provides, the
obligations of the underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all of the securities offered by the prospectus
supplement if they purchase any of them, other than securities covered by any over-allotment
option. Any public offering price and any discounts or concessions allowed or reallowed or paid to
dealers may change from time to time. We or the selling stockholders may use underwriters with whom
we or they have a material relationship. We will describe in the prospectus supplement, naming the
underwriter, the nature of any such relationship.
During and after an offering through underwriters, the underwriters may purchase and sell the
securities in the open market. These transactions may include overallotment and stabilizing
transactions and purchases to cover syndicate short positions created in connection with the
offering. The underwriters may also impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities sold for their
account may be reclaimed by the syndicate if the offered securities are repurchased by the
syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or
otherwise affect the market price of the offered securities, which may be higher than the price
that might otherwise prevail in the open market. If commenced, the underwriters may discontinue
these activities at any time.
If dealers are used in the sale of securities, we and any selling stockholders will sell the
securities to them as principals. The dealers may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. The dealers participating in any
sale of the securities may be deemed to be underwriters within the meaning of the Securities Act
with respect to any sale of those securities. We will include in the applicable prospectus
supplement the names of the dealers and the terms of the transaction.
Direct Sales and Sales Through Agents
We or any selling stockholders may sell the securities directly to purchasers. In that case,
no underwriters or agents would be involved. We or any selling stockholders may also sell the
securities through agents designated from time to time. Any agent involved in the offer or sale of
the securities and any commissions payable to the agent will be disclosed in the applicable
prospectus supplement. Unless the applicable prospectus supplement states otherwise, any agent will
act on a reasonable best efforts basis for the period of its appointment.
We or any selling stockholders may sell the securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of the Securities Act with respect
to any sale of those securities. We will describe the terms of any sales of these securities in the
prospectus supplement.
Remarketing Arrangements
Offered securities may also be offered and sold, if so indicated in the applicable prospectus
supplement, in connection with a remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as
principals for their own accounts or as agents for
15
us. Any remarketing firm will be identified and the terms of its agreements, if any, with us and its compensation will be described in the
applicable prospectus supplement. Remarketing firms may be deemed to be underwriters, as that term
is defined in the Securities Act, in connection with the securities remarketed.
Delayed Delivery Contracts
If indicated in the prospectus supplement, we or any selling stockholders may authorize
agents, underwriters or dealers to solicit offers from certain types of institutions to purchase
securities from us at the public offering price under delayed delivery contracts. These contracts
would provide for payment and delivery on a specified date in the future. The contracts would be
subject only to those conditions described in the prospectus supplement. The prospectus supplement
will describe the commission payable for solicitation of those contracts.
Additional Provisions Applicable to Selling Stockholders
The selling stockholders are subject to the applicable provisions of the Exchange Act and the
rules and regulations under the Exchange Act, including Regulation M. This regulation may limit the
timing of purchases and sales of any of the shares of common stock offered in this prospectus by
the selling stockholders. The anti-manipulation rules under the Exchange Act may apply to sales of
shares in the market and to the activities of the selling stockholders and their affiliates.
Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of the
shares to engage in market-making activities for the particular securities being distributed for a
period of up to five business days before the distribution. The restrictions may affect the
marketability of the shares and the ability of any person or entity to engage in market-making
activities for the shares.
Instead of selling the shares of common stock under this prospectus, the selling stockholders
also may resell all or a portion of their shares of common stock in open market transactions in
reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the
requirements of that rule, or pursuant to other available exemptions from the registration
requirements of the Securities Act.
Derivative Transactions
We or the selling stockholders may enter into derivative transactions with third parties, or
sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the prospectus supplement indicates, in connection with those derivatives, the
third parties may sell securities covered by this prospectus and the prospectus supplement,
including in short sale transactions. If so, the third parties may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related open borrowings of
stock, and may use securities received from us in settlement of those derivatives to close out any
related open borrowings of stock.
We or the selling stockholders may loan or pledge securities to a financial institution or
other third party that in turn may sell those securities using this prospectus. Such financial
institution or third party may transfer its short position to investors in our securities or in
connection with a simultaneous offering of other securities offered by this prospectus or
otherwise.
General Information
All securities we may offer, other than shares of our common stock, will be new issues of
securities with no established trading market. Except for shares of our common stock, the
securities offered hereby may not be listed on a national securities exchange. Any underwriters to
whom we sell such securities for public offering and sale may make a market in those securities,
but they will not be obligated to do so and they may discontinue any market making at any time
without notice. Accordingly, we cannot assure you that a liquid trading market for any of our
offered securities, other than our common stock, will develop.
We or the selling stockholders may have agreements with the underwriters, dealers, agents and
remarketing firms to indemnify them against specified civil liabilities, including liabilities
under the Securities Act, or to provide contribution with respect to payments that they may make with respect to these
liabilities. Agents, dealers, selling stockholders, underwriters and remarketing firms may be
customers of, engage in transactions with or perform services for us in the ordinary course of
their businesses.
16
LEGAL MATTERS
The validity of the securities offered under this prospectus is being passed upon for us by
Kegler, Brown, Hill & Ritter Co., L.P.A., Columbus, Ohio.
EXPERTS
Hein
& Associates LLP,
independent registered public accounting firm, has audited our consolidated financial statements, including the
related financial statement schedule, and the consolidated financial statements of Marcum Midstream 1995-2
Business Trust as of December 31, 2009 and December 31, 2008 and for the three years then ended
included in our
Annual Report on Form 10-K for the year ended December 31, 2009, and the effectiveness of our internal
control
over financial reporting as of December 31, 2009, as set forth in their reports, which are incorporated by
reference in this prospectus and elsewhere in the registration statement. Our consolidated financial
statements are incorporated by reference in reliance on Hein & Associates LLP’s reports, given on their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with respect to the securities offered by
this prospectus with the SEC under the Securities Act. This prospectus is only part of the
registration statement and does not include all of the information contained in the registration
statement and the exhibits to the registration statement. You can obtain a copy of the registration
statement, including the exhibits filed with it, from the SEC as indicated below.
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. You may read and copy the registration statement and any other document we file with the SEC
at the SEC’s public reference room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You
can request copies of these materials by writing to the SEC and paying a fee for the copying cost.
You may call the SEC at 1-800-SEC-0330 for further information on the operation of the public
reference room. Our filings with the SEC are also available to the public on the Internet at the
SEC’s website at http://www.sec.gov.
We make available, free of charge, on our website located at www.powersecure.com, our
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and
amendments to those reports as soon as reasonably practicable after we electronically file them
with or furnish them to the SEC. The contents of and the information on or accessible through our
corporate website and our investor relations website are not a part of, and are not incorporated
into, this propspectus or any report or document we file with or furnish to the SEC and any
references to these websites are intended to be an inactive textual references only.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus the information contained
in documents that we file with the SEC. This means that we can disclose important information to
you by referring you to those documents filed separately by us with the SEC. The information that
we incorporate by reference is considered to be a part of this prospectus, except for any
information that is superceded by information that is included directly in this prospectus or
incorporated by reference from information contained in documents that we file later with the SEC,
which will automatically update and supersede this information.
We incorporate by reference into this prospectus the documents listed below, which we have
filed with the SEC (in each case, File No. 001-12014):
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed on
March 11, 2010 (including those portions of our definitive Proxy Statement filed on
April 28, 2010 incorporated by reference into the Annual Report on Form 10-K); |
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our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2010, filed
on May 6, 2010; |
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our Current Reports on Form 8-K filed on
January 6, 2010, January 25, 2010, February 25, 2010, March 11, 2010,
March 16, 2010, April 6, 2010, April 16,
2010, April 19, 2010, May 6, 2010, May 10, 2010, May 11,
2010, May 14, 2010, May 17, 2010 and May 25, 2010 (but, in each case, excluding information
furnished but not filed therein); and |
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the description of our common stock, including the description of our preferred
share purchase rights, contained in our registration statement on Form 8-A filed with
the SEC on August 5, 2005, which incorporates by reference the description of our
common stock contained in our registration statement on Form 8-A filed with the SEC on
January 10, 1993, which was amended in Form 8-A/A Amendment No. 5 filed with the SEC
on November 30, 2001 and Form 8-A/A Amendment No. 6 filed with the SEC on May 21, 2004,
and any amendments or reports filed with the SEC for the purpose of updating such
descriptions. |
We also incorporate by reference into this prospectus information contained in any reports and
other documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act on or after the date of this prospectus and prior to the termination of this offering and the
termination of the registration statement of which this prospectus is a part, other than
information that is furnished but not filed with the SEC under those filings.
Any statement contained in a document incorporated by reference into this prospectus will be
deemed to be modified or superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or in any subsequently filed document which is also incorporated or
deemed to be incorporated by reference in this prospectus modifies or supersedes that previous
statement. Any statement so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
The information relating to us contained in this prospectus should be read together with the
information in the documents incorporated or deemed to be incorporated by reference in this
prospectus.
Documents incorporated by reference are available from the SEC as described above or from us
without charge, excluding any exhibits to those documents unless the exhibit is specifically
incorporated by reference as an exhibit in this prospectus. You can obtain documents incorporated
by reference in this prospectus or filed as exhibits to the registration statement of which this
prospectus is a part by requesting them in writing or by telephone at the following address:
PowerSecure International, Inc.
1609 Heritage Commerce Court
Wake Forest, North Carolina 27587
Attention: Investor Relations
Telephone: (919) 556-3056
You should rely only on the information contained in, or incorporated by reference into, this
prospectus and any prospectus supplement. We have not authorized any person to provide you with any
information that is different from that contained in this prospectus or incorporated by reference
in this prospectus. We are not making an offer to sell or seeking an offer to buy these securities
in any jurisdiction in which such an offer, sale or solicitation is not permitted. You should not
assume that the information in this prospectus is accurate as of any date other than the date on
the front of this prospectus, regardless of the time of delivery of this prospectus or any sale of
the securities.
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