AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON April __, 2000
REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TEKINSIGHT.COM, INC.
(Exact name of small business issuer as specified in its charter)
DELAWARE 7372 95-4228470
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation) Classification Code Number) Identification No.)
STEVEN J. ROSS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TEKINSIGHT.COM, INC.
5 HANOVER SQUARE
NEW YORK, NEW YORK 10004
(212) 271-8511
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
PETER W. ROTHBERG
NIXON PEABODY LLP
437 Madison Avenue
New York, New York 10022
Telephone (212) 940-3000
Facsimile (212) 940-3111
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
------------------------
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------- ----------------------- ---------------------- --------------------- -----------------------
Title of Each Class of Number of Shares to Proposed Maximum Aggregate Offering Amount of
Security to be Registered be Registered Offering Price per Price Registration Fee
Share
- --------------------------- ----------------------- ---------------------- --------------------- -----------------------
- --------------------------- ----------------------- ---------------------- --------------------- -----------------------
Common Stock, Par value 4,129,542 (1)(2) (1) (1) $5,150(1)
$.0001 per share
- --------------------------- ----------------------- ---------------------- --------------------- -----------------------
(1) This Registration Statement constitutes a post-effective amendment to
registration statement file numbers 33-50426, 33-95222 and 333-31157, declared
effective by the Securities and Exchange Commission on August 3, 1992, March 20,
1996 and July 11, 1997, respectively, and on which filing fees aggregating
$5,150 have previously been paid.
(2) Includes 3,679,542 shares of common stock of the Registrant reserved for
issuance upon exercise of various warrants and options.
- ------------------------
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
ii
SUBJECT TO COMPLETION, DATED APRIL __, 2000
PROSPECTUS
TEKINSIGHT.COM, INC.
4,129,542 SHARES OF COMMON STOCK
This prospectus covers the sale from time to time of shares of the
common stock, par value $.0001 per share, of TekInsight.Com, Inc., a Delaware
corporation, by or for the account of selling stockholders. TekInsight will not
receive any proceeds from the sale of these shares other than proceeds from the
issuance of common stock upon the exercise of outstanding options and warrants,
which funds will be added to working capital. All other proceeds will be
realized by the selling stockholders. All costs, expenses and fees in connection
with the registration of the shares offered by selling stockholders will be
borne by TekInsight.
The shares may be offered from time to time by the selling stockholders
through ordinary brokerage transactions in the over-the-counter market, in
negotiated transactions or otherwise, at market prices prevailing at the time of
sale or at negotiated prices. The selling stockholders may be deemed to be
"Underwriters" as defined in the Securities Act of 1933, as amended (the
"Securities Act"). No underwriting arrangements have been entered into by the
selling stockholders. If any broker-dealers are used by the selling
stockholders, any commissions paid to broker-dealers and, if broker-dealers
purchase any shares as principals, any profits received by such broker-dealers
on the resales of the shares, may be deemed to be underwriting discounts or
commissions under the Securities Act. In addition, any profits realized by the
selling stockholders may be deemed to be underwriting commissions. Brokerage
commissions, if any, attributable to the sale of the shares will be borne by the
selling stockholders. TekInsight has agreed to indemnify the selling
stockholders against certain liabilities, including liabilities under the
Securities Act.
TekInsight's publicly traded Class A warrants are currently listed
separately on the automated quotation system of The Nasdaq SmallCap Market under
the symbols "TEKS" and "TEKSW," respectively. The common stock and Class A
warrants are also separately listed on the Boston Stock Exchange under the
symbols "TKI" and "TKI&W," respectively. On March 29, 2000, the last trading
prices for the common stock and Class A warrants reported on Nasdaq were $4.0625
per share and $3.875 per Class A warrant, respectively.
You should read this prospectus and any prospectus supplement carefully
before you decide to invest. For a discussion of certain matters which should be
considered by prospective investors, see "Risk Factors" commencing on page 4.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
THE DATE OF THIS PROSPECTUS IS April__, 2000.
ii
TABLE OF CONTENTS
PAGE
PROSPECTUS SUMMARY............................................................1
USE OF PROCEEDS..............................................................12
PLAN OF DISTRIBUTION.........................................................12
LEGAL MATTERS................................................................15
EXPERTS......................................................................15
DOCUMENTS INCORPORATED BY REFERENCE..........................................15
ABOUT THIS PROSPECTUS........................................................16
WHERE YOU CAN FIND MORE INFORMATION..........................................16
iii
No dealer, salesman or other person has been authorized to give any
information or to make representations other than those contained in this
prospectus, and, if given or made, such information or representations must not
be relied upon as having been authorized by TekInsight or the selling
stockholders. Neither the delivery of this prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that the
information herein is correct as of any time subsequent to its date. This
prospectus does not constitute an offer of solicitation by anyone in any
jurisdiction in which such offer or solicitation is not authorized or in which
the person making such offer of solicitation is not qualified to do so or to
anyone to whom it is unlawful to make such offer or solicitation.
CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Certain of the matters discussed in or incorporated by reference in
this prospectus, including documents incorporated by reference, may constitute
forward-looking statements for purposes of the securities act and the Securities
and Exchange Act of 1934, as amended (the "Exchange act"). Such forward-looking
statements may involve risks, uncertainties and other factors that may cause the
actual results and performance of the company to be materially different from
future results or performance expressed or implied by such statements.
Cautionary statements regarding the risks, uncertainties and other factors
associated with such forward-looking statements are discussed under "risk
factors" beginning on page 4 of this prospectus, such as "our quarterly
financial results are subject to significant fluctuations" and "we have a
limited operating history," and prospective investors are urged to carefully
consider such factors.
All written forward-looking statement attributable to the company are
expressly qualified by the foregoing cautionary statements.
iv
PROSPECTUS SUMMARY
This summary highlights some information from this prospectus. Because
this is a summary, it may not contain all of the information that may be
important to you. You should read the entire prospectus, including the Risk
Factors, before making an investment decision.
We are involved (i) through our operating subsidiary, Astratek, Inc.,
in the development of computer software products and the provision of computer
network related services for the management of distributed client/server
networks operating on systems such as Microsoft Windows NT and Linux, and (ii)
through our subsidiary, Tadeo-E Commerce Corp., in the provision of consulting,
technical and related services to clients for the development of electronic
commerce businesses on the Internet, including consulting and development
services for the maintenance, design and enhancement of electronic commerce
Internet sites. Products and services provided by Astratek have included
software solutions for systems management, Year 2000 compliance, security
management and network-wide problem management and resolution.
We have also developed a number of innovative products for automated
data gathering and fault diagnostics for distributed client/server environments
and the Internet. Currently, we are engaged in the research and development of
products employing rich XML-based technology. Using innovative compression
technology, these products are expected to deliver significant improvements in
features and performance to distributed data acquisition and analysis.
We were incorporated in Delaware on May 12, 1989 as Universal Self
Care, Inc., changed our name to Tadeo Holdings, Inc. on February 2, 1998 and
subsequently changed our name to TekInsight.Com, Inc. on November 30, 1999.
On October 27, 1998 we acquired Astratek, a New York corporation,
pursuant to a merger of our wholly-owned subsidiary into Astratek, with Astratek
being the surviving corporation.
On May 25, 1999, we incorporated Tadeo-E in Delaware as a wholly-owned
subsidiary active in the electronic commerce industry.
Our principal executive offices are located at 5 Hanover Square, New
York, New York 10004 and our telephone number is (212) 271-8511.
ASTRATEK
Astratek began operations in 1995, developing software and related
products for Internet and intranet technology and providing consulting and
professional services for several companies. It originally was formed as the
Advanced Technology Consulting Group at Bankers Trust Corporation and split off
from Bankers Trust and began operating independently in April 1997.
Astratek's goal is to become a leading provider of professional
services and proprietary products related to development of software tools and
related services for client/server and distributed application technology
environments. We are continually developing innovative solutions to address
critical operational issues in distributed environments.
TADEO-E
Tadeo-E Commerce Corp. was organized in May 1999 to develop business
opportunities related to electronic commerce involving the Internet. To date, it
has entered into agreements to provide consulting and development services for
the design, maintenance, enhancement and operation of Internet Web sites for two
public companies.
PROPOSED MERGER
On February 29, 2000, we announced that we had entered into a
definitive merger agreement with Data Systems Network Corporation, a Michigan
corporation, a leading provider of enterprise services and strategic technology
solutions to fortune 1000 companies and over 16 state and local government
agencies. DSNC provides a wide range of services, including application
development, network services, enterprise management, help desk and security
services. We believe that the merger will enhance our existing Internet
infrastructure and give us critical value-added sales channels for new products
which we intend to bring to market.
DSNC will be merged with and into our wholly-owned subsidiary Tadeo-E
Commerce Corp. We will accomplish the merger by issuing to shareholders of DSNC
common stock between $12.5 million and $18 million market value of our Series A
convertible preferred stock.
The Series A preferred stock will vote along with our common stock and
will be convertible into our common stock one year after the closing of the
merger. The market value and the number of shares of Series A preferred stock to
be issued as merger consideration will depend on the average trading price of
our common stock during the ten trading days immediately prior to the merger.
SUMMARY FINANCIAL INFORMATION
The following summary financial information as of and for the years
ended June 30, 1998 and 1999 for TekInsight and its subsidiaries on a
consolidated basis has been derived from the audited consolidated financial
statements of TekInsight. Financial information as of and for the six months
ended December 31, 1999 has been derived from the unaudited consolidated
financial statements of TekInsight. The audited and unaudited consolidated
financial statements of TekInsight have been incorporated by reference, and the
following summary financial information should be read in conjunction with those
financial statements.
---------------------------------- ----------------------------
Six months ended
YEAR ENDED JUNE 30, DECEMBER 31,
---------------------------------- ----------------------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
1999 1998 1999 1998
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Revenues........................................... $ 1,514,849 $ 997,433 $ 487,832 $ 363,594
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Cost of Goods Sold................................. 700,254 248,261 209,873 183,854
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Gross Profit....................................... 814,595 749,172 277,959 179,740
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Total Operating Expenses........................... 3,572,862 2,354,489 502,701 926,412
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Loss From Operations............................... (2,758,267) (1,605,317) (224,742) (746,672)
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Gain on Marketable Securities...................... 1,689,664 -- -- --
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
2
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Interest Income.................................... 590,092 452,016 162,790 258,108
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Loss From Continuing Operations.................... (478,511) (1,153,301) -- --
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Total Income from Discontinued Operations 1,491,923 3,018,589 -- --
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
Net Income (Loss).................................. 1,013,412 1,865,288 (61,952) (488,564)
- ------------------------------------------------------ ----------------- ---------------- -------------- -------------
----------------------------------------- ---------------------
AT JUNE 30 AT DECEMBER 31
---------- --------------
----------------------------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
1999 1998 1999
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Total Current Assets............................... $8,219,530 $3,025,538 $ 7,225,257
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Long Term Note Receivable.......................... 1,528,167 6,000,000 1,490,766
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Investments - Marketable Securities................ 5,533,177 -- 4,333,049
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Total Assets....................................... 16,487,663 9,912,512 14,428,236
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Total Current Liabilities.......................... 2,854,388 2,248,844 2,393,395
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Long-Term Liabilities.............................. 17,765 944,062 17,675
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Redeemable Preferred Stock -- 1,219,141 --
- ------------------------------------------------------ --------------------- ------------------- ---------------------
- ------------------------------------------------------ --------------------- ------------------- ---------------------
Stockholders' Equity............................... 13,615,600 5,500,465 12,017,166
- ------------------------------------------------------ --------------------- ------------------- ---------------------
3
THE OFFERING
Securities Offered.....................1,707,875 shares of common stock issuable
upon exercise of the same number of
publicly traded Class A warrants at
$3.30 until December 17, 2000.
450,000 shares of common stock to be
sold by selling stockholders.
1,971,667 shares of common stock issuable
upon exercise of the same number of
exercisable options and warrants held by
a diverse group of holders exercisable at
varying prices ranging from $1.00 per
share to $2.25 per share (the "New
Convertible Securities").
Risk Factors See "Risk Factors"
Use of Proceeds....................... Net proceeds from the exercise of the
Class A warrants and the New
Convertible Securities, will be used for
working capital and general corporate
purposes. Although TekInsight has
reserved $1.4 million in connection with
the results of an audit conducted on a
former subsidiary by the California
Controller's Office for violations of
California's medical regulations, which
resulted in a judgment against
TekInsight in the amount of $1.3
million. TekInsight may have to pay
more than the amount reserved, and, to
the extent that the proceeds from the
exercise of any options and warrants are
sufficient, it is possible TekInsight may
be obliged to use up to $1.3 million,
plus accrued interest thereon, of such
proceeds to pay the judgment to settle
such claims. On March 29th, 2000, the
last sales price on Nasdaq for a share of
common stock was $4.0625.
Nasdaq Symbol..........................Common Stock: TEKS
Public Warrants: TEKSW
Boston Stock Exchange Symbol...........Common Stock: TKI
Public Warrants: TKI&W
4
RISK FACTORS
An investment in TekInsight involves material risks. Please carefully
consider all of the risks described in this section and elsewhere in this
prospectus. Additional risks that we are not presently aware of or that we
currently consider immaterial may also adversely affect our business.
WE MAY NOT ACHIEVE THE COST SAVINGS AND SALES INCREASES THAT WE EXPECT
TO RESULT FROM THE INTEGRATION OF TEKINSIGHT AND DSNC.
DSNC provides sales and marketing channels and experience that we do
not have. However, we are not expecting significant "synergies" to result from
the merger. The merger will not be successful unless DSNC can increase sales of
our existing products. DSNC's success and timing in realizing increased sales
depends on the quality and speed of the integration of TekInsight and DSNC. DSNC
may not realize the cost savings and sales increases that it anticipates
following completion of the merger as fully or as quickly as it expects:
TEKINSIGHT WILL FACE TECHNICAL, OPERATIONAL AND STRATEGIC CHALLENGES AS
A RESULT OF THE MERGER THAT MAY PREVENT IT FROM SUCCESSFULLY INTEGRATING WITH
DSNC.
The integration of DSNC will be a complex, time consuming and expensive
process and may disrupt our business. Following the merger, Tadeo-E (which we
intend to call TekInsight Services, Inc.) and DSNC must operate as a combined
organization using common information and communication systems, operating
procedures, financial controls and human resources practices. TekInsight may
encounter substantial difficulties, costs and delays involved in integrating the
operations of DSNC including:
o potential incompatibility of business cultures;
o perceived adverse changes in business focus;
o difficulties in integrating products and services;
o the loss of key employees or clients; and
o diversion of the attention of management from other ongoing business
concerns.
The integration of operations and technologies following the merger may
distract management of both companies from day-to-day business, the development
or acquisition of new products, services and technologies, and the pursuit of
other business acquisition opportunities. Successful integration of the two
companies' sales and marketing organizations will require TekInsight's sales and
marketing personnel to learn about the products, services and technologies of
DSNC.
WE HAVE LOST MONEY ON OUR OPERATIONS SINCE INCEPTION, AND WE EXPECT TO
LOSE MORE MONEY DURING THE NEXT SEVERAL YEARS.
As of December 31, 1999, we had an accumulated deficit of $8,319,800
million. We may continue to incur net losses and negative cash flow during the
next several years whether or not we consummate the merger. Our ability to
generate profits and positive cash flow will depend in
5
large part on our obtaining enough customers for our services and products to
offset the costs of marketing and staffing our professional services business
and developing the software products that we sell. To the extent that we cannot
achieve operating profitability or positive cash flows from operating
activities, our business will be adversely affected.
FAILURE TO OBTAIN ADDITIONAL FUNDING WOULD LIMIT OUR ABILITY TO EXPAND
OUR BUSINESS.
Following consummation of the merger, we expect to make significant
capital expenditures in the next few years in an effort to expand the number of
proprietary products and professional and electronic commerce services that we
develop for public sale and increase the staffs of research and development and
sales and marketing personnel to further develop and increase sales of such
products and services. We also expect to make expenditures in connection with
the acquisition of businesses that either augment our existing or extend us into
new product lines. We will need significant additional capital to complete this
product and service expansion and for any additional acquisitions. We cannot
assure you that we can raise sufficient capital to follow through with our
plans. To the extent we cannot, our growth and prospects will be limited.
IF WE ARE NOT ABLE TO MANAGE OUR GROWTH AND CHANGING OPERATIONS, OUR
BUSINESS WILL BE ADVERSELY AFFECTED.
Our ability to grow depends in part, upon our:
o successfully implementing our strategy;
o valuating markets;
o securing financing; and
o hiring and retaining qualified personnel.
In addition, as we increase our service and product offerings and
expand our sales and marketing expenses, we will have additional demands on our
customer support, sales and marketing, administrative and research and
development resources. In order to manage growth and change effectively, we must
implement and improve our operational systems, procedures and controls on a
timely basis. If we cannot effectively manage our growth and implement and
improve these systems, our business and results of operations will be adversely
affected.
ACQUISITIONS AND JOINT VENTURES COULD STRAIN OUR BUSINESS AND
RESOURCES.
If we acquire additional companies or businesses, or enter into joint
ventures, we may be subject to:
o miscalculation of the value of the acquired company or joint venture;
o diversion of resources and management time;
o difficulties in integration of the acquired business or joint venture
with our operations;
o relationship issues as a result of changes in management;
o additional liabilities or obligations as a result of the acquisition
or joint venture; and
6
o additional financial burdens or dilution incurred with the
transaction.
Our quarterly financial results are subject to significant
fluctuations.
OUR QUARTERLY REVENUES, EXPENSES AND OPERATING RESULTS MAY FLUCTUATE
SIGNIFICANTLY DUE TO A NUMBER OF FACTORS, INCLUDING:
o change in demand for our products;
o size and timing of significant orders and when they are filled;
o our ability to develop and upgrade our technology;
o changes in our level of operating expenses and unexpected expenses;
o our ability to compete in a highly competitive market; and
o undetected software errors and other product quality problems.
Our revenues for a quarter are based entirely on product orders and
services contracts received during that quarter. Our expenses tend to be fixed.
Consequently, because we have insignificant backlog, and cannot quickly adjust
expenses, we may experience liquidity problems from time to time.
WE DEPEND ON LIMITED SOURCES FOR OUR REVENUES.
We have derived substantially all of our revenues since 1998 from
limited sources including large financial institutions, certain independent
software vendors, or ISVs, and customers entering into electronic commerce. To
compete in this market, we believe that we must devote substantial resources to
expanding our marketing and advertising, to continuing product development, and
to diversifying. Our operating revenues have increased over the last two years
but our operations have not produced net income to date. Net income has resulted
solely from the sale of securities and the nonrecurring sale of our former
operating business. Therefore, unless we increase sales, it is unlikely that we
can achieve net income in the future.
OUR PRODUCTS AND SERVICES ARE SUBJECT TO RAPID TECHNOLOGICAL CHANGE.
The market for our products and services is characterized by rapid
technological change, frequent new product introductions, short product life
cycles, changes in customer demands and evolving industry standards. Our
products and services could be quickly rendered obsolete if new products are
introduced or new industry standards emerge and we fail to adapt quickly. We
rely on our relationships with Microsoft and attempt to coordinate our product
offerings with the future releases of its operating systems.
We also believe that operating system software vendors, particularly
Microsoft and Novell, could enhance their products to include functionality that
we currently provide in our products. If these vendors include our software
functionality as standard features of their operating system or other software,
our products could quickly become obsolete. Even if the functionality of the
standard software features of these vendors is more limited than ours, there is
a substantial risk
7
that a significant number of customers would elect to keep this limited
functionality rather than purchase additional software.
The market for the professional services and the electronic commerce
services provided by our subsidiaries are fragmented and characterized by few
barriers to entry. Competitors include ISVs such as IBM and Microsoft (who are
also clients of ours) and consulting firms such as Andersen Consulting. Many of
these companies have much greater resources than we do, making it difficult for
us to compete.
Client/server computing environments and the Internet are inherently
complex and continually developing. New products and product enhancements can
require long development and testing periods, which depend significantly on our
ability to hire and retain or contract with increasingly scarce technically
competent personnel. Our ability to provide highly technical professional
services related to the Internet and LAN management are similarly constrained.
Significant delays in new product releases, or in hiring the necessary
technically skilled personnel, could seriously damage our business. We have, on
occasion, experienced delays in scheduled introduction of new products. We
cannot be certain that such delays will not occur again.
To be successful, we must enhance existing products, develop and
introduce new products, satisfy customer requirements for our products and
services and achieve market acceptance. We cannot be certain that we will
successfully identify new product opportunities and develop and bring new
products to market in a timely and cost-effective manner. Further, the products,
capabilities or technologies developed by others may render our products or
technologies obsolete or shorten their life cycles. Similarly, we cannot be
certain that we will be able to provide the right professional and electronic
commerce services at the right price in the future. To the extent that we cannot
do so, our business will be adversely affected.
IF WE FAIL TO PROPERLY MANAGE OUR CHANGING OPERATIONS, OUR BUSINESS
WILL SUFFER.
We intend to expand our operations in the foreseeable future to pursue
market opportunities. In order to manage growth effectively, we must implement
and improve our operational systems, procedures and controls on a timely basis.
If we fail to implement and improve these systems, our business, operating
results and financial condition will be materially, adversely affected.
LOSS OF KEY PERSONNEL WOULD ADVERSELY AFFECT US.
Our success depends largely on the efforts of our executive officers
and, most particularly, Alexander Kalpaxis, President of Astratek, a director of
Tadeo-E and Chairman of the Board of TekInsight. We have an employment contract
requiring Mr. Kalpaxis to continue his employment through October 2001. We do
not maintain key man life insurance policies on any of our executive officers.
The loss of the services of one or more of our key individuals or the failure to
attract and retain additional qualified personnel could adversely affect our
business.
THERE IS NO ASSURANCE OUR INTELLECTUAL PROPERTY RIGHTS CAN BE
PROTECTED.
We rely on a combination of trademark, trade secret, patent, and
copyright law and contractual restrictions to protect our technology. These
legal protections provide only limited
8
protection. We may not be able to detect unauthorized use or take appropriate
steps to enforce our intellectual property rights. Litigation is expensive
regardless of the outcome, diverts management resources and may not be adequate
to protect our business in any event. We also could be subject to claims
alleging infringement by third-parties intellectual property rights. In
addition, we may be required to indemnify our distribution partners and
end-users for similar claims made against them. Any claims against us could
require us to spend significant time and money in litigation, pay damages,
develop non-infringing intellectual property or acquire licenses to intellectual
property that is the subject of the infringement claims.
OUR INVESTMENTS IN OTHER COMPANIES MAY NOT BE SUCCESSFUL.
We may continue to make investments in companies with technologies,
services or products that we find attractive. We may have difficulty integrating
the personnel and operations, technology, services or products acquired through
these acquisitions. Acquisitions can disrupt our ongoing business, distract
management and other resources and make it difficult to maintain our standards,
controls and procedures. We may also lose all or a part of our investment if
these businesses fail.
UNDETECTED SOFTWARE ERRORS MAY DAMAGE OUR BUSINESS REPUTATION.
Our software products are complex and may contain certain undetected
bugs or errors, particularly when first introduced or when new versions or
enhancements are released. Despite testing, we cannot be certain that bugs or
errors will be discovered in our products before we commence commercial
shipping. Undetected bugs or errors could result in adverse publicity, loss of
customer confidence, delay in market acceptance or claims against us, any of
which could adversely affect our business.
WE FACE RISK OF PRODUCT LIABILITY CLAIMS.
Our agreements with customers typically contain provisions intended to
limit liability claims. These limitations may not preclude all potential claims,
however. Liability claims could require us to spend significant time and money
in litigation or pay significant damages. As a result, these claims, whether or
not successful, could adversely impact our business and damage our reputation.
OUR STOCK PRICE IS VOLATILE WHICH PRESENTS AN ADDITIONAL LITIGATION
RISK.
The market price of our common stock is sometimes volatile. Trading
volume is sometimes low. In the past, companies that have experienced volatility
in the market price of their stock have been the object of securities class
action litigation in the event of a drop in market price. If we were the object
of litigation, it could result in substantial costs and diversion of
management's attention and resources.
SECURITY BREACHES COULD EXPOSE US TO A RISK OF LOSS, LITIGATION AND
POSSIBLY LIABILITY.
Although we are not aware of any attempts by hackers to penetrate our
network security, there can be no assurance that security breaches will not
occur in the future. A person able to penetrate our network security could
misappropriate our proprietary information or that of our
9
clients, or cause interruptions in our operations, which may adversely effect
our business. We may be required to spend significant amounts of money to
protect against the threat of breaches or to alleviate problems caused by
security breaches, which could be expensive. Concerns over the security of
Internet transactions and the privacy of users may also inhibit the growth of
the Internet, particularly as a means of conducting commercial transactions.
OUR ELECTRONIC COMMERCE SERVICES BUSINESS WOULD BE ADVERSELY AFFECTED
IF INTERNET SERVICE WERE INTERRUPTED DUE TO HARDWARE, SOFTWARE,
TELECOMMUNICATIONS OR OTHER BREAKDOWNS.
Our operations may be interrupted if the computer or software owned by
us, our clients or by service providers upon whom we depend (including Internet
Service Providers) are damaged or prevented from operating. To the extent that
we experience temporary or permanent business interruptions, whether due to a
casualty or an operating malfunction, our business is adversely affected. If
interruptions happen often enough, loss of customer confidence may adversely
affect our business; and if such interruptions result from general Internet
service deprivations, the loss of generalized confidence in Internet operability
may adversely affect our business that is specifically targeted at electronic
commerce.
WE MAY BE LIABLE FOR ONLINE CONTENT PROVIDED BY THIRD PARTIES.
The law of the Internet is uncertain and is changing. We may face
potential liability for defamation, negligence, copyright, patent or trademark
infringement and other claims based on the nature and content of the materials
that appear on web sites that we host through our subsidiaries. Claims of this
type have been successfully prosecuted from time to time. Liability could be
material.
GOVERNMENT REGULATION OF INTERNET COMMUNICATIONS MAY INFLUENCE OUR
BUSINESS.
We currently are not subject to direct regulation by any governmental
agency, other than regulations applicable to business generally. However, in the
future we could become subject to specific industry regulation by regulatory
agencies. Changes in the regulatory environment could have a material adverse
impact on our business and financial condition.
IF OUR STOCK BECOMES SUBJECT TO THE SEC'S "PENNY STOCK" RULES IT COULD
BECOME MORE DIFFICULT TO BUY AND SELL OUR STOCK WHICH MAY ADVERSELY IMPACT OUR
TRADING MARKET.
Continued quotation of our common stock in The Nasdaq Small Cap Market
is conditioned upon continuing to meet Nasdaq eligibility requirements. In
addition, if the trading price of TekInsight common stock common stock drops
below $5.00 per share, sales of common stock would be subject to Rule 15g-9
under the Securities Exchange Act of 1934, applicable to "low price stocks,"
which imposes additional sales practice requirements on broker-dealers making
sales of low-priced stock to the public. For transactions covered by this rule,
a broker-dealer must make a special suitability determination respecting each
purchaser and have received each purchaser's written consent to the transaction
prior to sale. If the TekInsight fails to meet the Nasdaq's eligibility
requirements or the trading price of our common stock drops below $5.00 per
share, the ability of holders to sell their common stock in the secondary market
could be adversely affected.
10
A SALE OF A SIGNIFICANT NUMBER OF OUR SHARES MAY ADVERSELY IMPACT US.
Sales of substantial amounts of common stock (including shares issued
upon the exercise of warrants or stock options and the common stock to be issued
upon conversion of the shares of Series A preferred stock to be issued in the
merger), or the possibility that such sales could occur, could adversely affect
the market price of the common stock and could also impair our ability to raise
capital through an offering of our equity securities in the future. Assuming
exercise of all outstanding convertible securities, we would have 19,593,071
shares of common stock outstanding, of which 11,651,829 shares will be
transferable without restriction under the Securities Act. Upon conversion to
common stock of all of the shares of Series A preferred stock proposed to be
issued in the merger, there will be approximately an additional 2.5 to 3.3
million shares of common stock issued and outstanding, depending on the market
price of TekInsight common stock at the closing date. The remaining 7,941,242
shares of common stock to be outstanding on completion of this Offering are
"restricted securities" under Rule 144 which may be publicly sold only if
registered under the Securities Act or if sold pursuant to an applicable
exemption. In general, under Rule 144, assuming satisfaction of other
conditions, a person, including an affiliate of TekInsight, who has beneficially
owned restricted securities for at least one year, is entitled to sell within
any three-month period, up to the greater of 1% of the total number of
outstanding shares of the same class or, since our common stock is quoted on The
Nasdaq SmallCap Market the average weekly trading volume during the four
calendar weeks preceding the sale. A person who has not been an affiliate of
TekInsight for three months and who has beneficially owned the restricted
securities for at least two years, is entitled to sell such restricted shares
under Rule 144 without regard to any of the limitations described above.
11
USE OF PROCEEDS
If all of the Class A warrants and New Convertible Securities being
registered hereunder are exercised, TekInsight will receive net proceeds of
approximately $9,000,000, after deduction of the expenses of this offering.
TekInsight intends to utilize the net proceeds of the offering for working
capital and general corporate purposes. If no warrants and options are
exercised, TekInsight will receive no proceeds from this offering. TekInsight
will not receive any proceeds from the resale by the holders of any of the Class
A warrants or the New Convertible Securities. It is not possible to predict how
many of the warrants and options will be exercised and the magnitude of the
proceeds, if any, realizable therefrom, as they have widely varying exercise
prices and some have exercise prices which are above the current market price of
TekInsight's common stock.
PLAN OF DISTRIBUTION
The common stock offered hereby may be sold from time to time in the
over-the-counter market, through underwriters, dealers, brokers or other agents.
TekInsight will receive approximately $9,000,000 if the various warrants and
options, the underlying common stock of which is being registered hereunder, are
exercised in their entirety; however, TekInsight will receive no proceeds from
the sale of the 450,000 shares of outstanding common stock included in this
prospectus.
The common stock offered may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. The selling
stockholder will determine the selling price at the time of the transaction or
by an agreement with its underwriters, dealers, brokers or other agents.
The selling stockholders and, under certain circumstances, any
broker-dealers that act as principals in connection with the sale of the shares
as principals may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, and any commissions received by them and any profit
on the resale of the shares of common stock while acting as principals might be
deemed to be underwriting discounts and commissions under the Securities Act.
The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares of
common stock against certain liabilities, including liabilities arising under
the Securities Act.
At the time a particular offer of shares is made by or on behalf of the
selling stockholders, to the extent required, we have been advised that the
selling stockholders will comply with the prospectus delivery requirements under
the Securities Act.
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
selling stockholders for whom TekInsight is registering shares of common stock
for resale to the public. TekInsight will not receive any of the proceeds from
the sale of the shares by the selling stockholders. Beneficial ownership of the
shares by such selling stockholders after this offering will depend on the
number of shares sold by each selling stockholder. Assuming all of the shares of
common
12
stock being offered hereby are sold, the selling stockholders will not
beneficially own any common stock in TekInsight, except as identified below.
Damon Testaverde has been a director of TekInsight for the last three
years. Brian Bookmeier has been a Director of TekInsight for the last three
years, and, until his resignation February 16, 2000, had been the President and
Chief Executive Officer of TekInsight for the prior three years.
13
- ----------------------------------------------- ---------------------- ----------------------- -------------------------------
SHARES OF COMMON
SHARES OF COMMON STOCK REGISTERED FOR
STOCK BENEFICIALLY OFFERING WITH THIS PERCENTAGE OF OUTSTANDING
NAME AND ADDRESS OF BENEFICIAL OWNER OWNED(1) PROSPECTUS COMMON STOCK OWNED
- ----------------------------------------------- ---------------------- ----------------------- -------------------------------
- ----------------------------------------------- ---------------------- ----------------------- --------------- ---------------
BEFORE
OFFERING AFTER OFFERING
- ----------------------------------------------- ---------------------- ----------------------- --------------- ---------------
Estate of Fred Kassner 2,809,455 550,040(2) 17.6% 3.4%
430 East 86th Street
New York, New York 10028
Susan Kaufman and Peter Fishbein 50,000 50,000(3) * -0-
430 East 86th Street
New York, New York 10028
Edward Buchholz 566,667 566,667(4) 3.5% -0-
9122 Chatsworth Cascade
Boca Raton, FL 33434
Brian Bookmeier 327,867 125,000(5) 2.0% *
19327 Augusta Drive
Livonia, MI 48152
Alan Korby 209,172 125,000(6) 1.3% *
42705 Wintergreen Circle
Novi, MI 48374
Matthew Gietzen 209,167 125,000(7) 1.3% *
23304 Mystic Forest
Novi, MI 48375
Robert M. Rubin 100,000 100,000(8) * -0-
25 Highland Blvd.
Dix Hills, NV 11746
Damon Testaverde 659,189 50,000(9) 4.1% 3.0%
580 Oakdale Street
Staten Island, NY 13012
Heller Healthcare Finance Holdings, Inc. 600,000 600,000(10) 3.6% -0-
c/o Heller Financial, Inc.
2 Wisconsin Circle, Fourth Floor
Chevy Chase, MD 20815
Tod Robinson 30,000 30,000(11) * -0-
5694 Weatherstone Court
San Diego, CA 92130
Richard Hough 100,000 100,000(12) * -0-
5106 Hunting Hills Drive
Roanoke, VA 24014
- ----------------------------------------------- ---------------------- ----------------------- --------------- ---------------
* Less than 1%
(1) Includes any shares as to which the individual has sole or
shared voting or investment power and also any shares which the individual has
the right to acquire as of the date of this prospectus through the exercise of
any stock option, warrant or other right, including those granted under
TekInsight's 1992 Employee Stock Option Plan and 1997 Stock Option Plan for
Non-Employee Directors.
(2) Includes 100,040 shares of common stock issuable upon exercise of warrants
and 450,000 restricted shares which Mr. Kassner received upon exercise of
warrants.
(3) Represents shares of common stock issuable upon exercise of warrants.
(4) Represents shares of common stock issuable upon exercise of options.
14
(5) Represents shares of common stock issuable upon exercise of options.
(6) Represents shares of common stock issuable upon exercise of options.
(7) Represents shares of common stock issuable upon exercise of options.
(8) Represents shares of common stock issuable upon exercise of warrants.
(9) Represents shares of common stock issuable upon exercise of warrants.
(10) Represents shares of common stock issuable upon exercise of warrants.
(11) Represents shares of common stock issuable upon exercise of options.
(12) Represents shares of common stock issuable upon exercise of options.
LEGAL MATTERS
The validity of the securities offered hereby has been passed upon for
TekInsight by Nixon Peabody LLP, 437 Madison Avenue, New York, New York 10022.
EXPERTS
The financial statements of TekInsight have been incorporated by
reference in this prospectus from TekInsight's 1999 Annual Report on Form 10-K
and have been audited by Feldman Sherb Horowitz & Co., P.C., independent
auditors, as stated in their report.
DOCUMENTS INCORPORATED BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus,
and information that we file later with the Securities and Exchange Commission
will automatically update and supercede this information. We are incorporating
by reference in this prospectus the following documents:
1. Our annual report on Form 10-K for the fiscal year ended June 30,
1999.
2. Our quarterly reports on Form 10-Q for the quarters ended
o September 30, 1999
o December 31, 1999
4. Our current reports on Form 8-K dated
o July 30, 1999
o December 6, 1999
o January 26, 2000
o February 29, 2000
5. Our definitive proxy material filed on November 17, 1999 on Schedule
14A in connection with our special meeting of stockholders which took place on
November 30, 1999.
15
5. The description of our common stock, par value $.0001 per share,
contained in the prospectus dated December 10, 1992, forming a part of our
registration statement on Form S-1 (Registration No. 33-50426) filed with the
Securities and Exchange Commission pursuant to Rule 424(b) on December 14, 1992.
We are also incorporating by reference in this prospectus all reports
and other documents that we file after the date of this prospectus pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination
of the offering of securities under this prospectus. These reports and documents
will be incorporated by reference in and considered to be a part of this
prospectus as of the date of filing of such reports and documents.
Any statement contained in this prospectus or in a document which is
incorporated by reference herein will be modified or superseded for purposes of
this prospectus to the extent that a statement in any document that we file
after the date of this prospectus that also is incorporated by reference herein
modifies or supersedes such prior statement. Any such statement so modified or
superseded will not, except as so modified or superseded, constitute a part of
this prospectus.
This prospectus incorporates by reference documents which are not
presented in this prospectus or delivered to you with it. You may request, and
we will send to you, without charge, copies of these documents, other than
exhibits to these documents, which we will send to you for a reasonable fee.
Requests should be directed to Katrina Kostes, Communications Director, 5
Hanover Square, 24th Floor, New York, New York 10004; telephone number (212)
271-8511.
ABOUT THIS PROSPECTUS
This prospectus does not contain all of the information included in the
registration statement. We have omitted parts of the registration statement as
permitted by the rules and regulations of the Securities and Exchange
Commission. For further information, we refer you to the registration statement
on Form S-3, including its exhibits. If the Securities and Exchange Commission
rules and regulations require that any agreement or document be filed as an
exhibit to the registration statement, you should refer to that agreement or
document for a complete description of these matters. The registration statement
on form S-3 filed by TekInsight is available for inspection and copying at the
Securities and Exchange Commission as described below.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy materials that we have filed with the Securities and Exchange Commission,
including the registration statement, at the Securities Exchange Commission's
public reference room at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, DC 20549. You can also obtain copies of filed documents, at
prescribed rates, by mail from the Public Reference Section of the Securities
and Exchange Commission at its Judiciary Plaza location, listed above, or by
telephone at 1-800-SEC-0330 or electronically through the Commission's Web Site
at http://www.sec.gov.
16
Our common stock is listed on The Nasdaq SmallCap Market under the
symbol "TEKS," and our Securities and Exchange Commission filings can also be
read and obtained at the following Nasdaq address:
The Nasdaq Stock Market
Reports Section
1735 K Street, N.W.
Washington, D.C. 20006
We furnish our stockholders with annual reports containing our audited
financial statements and with proxy material for our annual meetings complying
with the proxy requirements of the Exchange Act.
17
------------------------
TEKINSIGHT.COM, INC.
4,129,542 Shares of Common Stock
---------------------
PROSPECTUS
---------------------
APRIL , 2000
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses (other than selling
commissions) which will be paid by TekInsight.Com, Inc. (the "Registrant") in
connection with the issuance and distribution of the securities being
registered. With the exception of the NASD filing fee, all amounts shown are
estimates.
NASDAQ fee 10,000
Boston Stock Exchange Fee............................................. 10,000
Blue sky fees and expenses (including legal and filing fees).......... 15,000*
Printing and engraving expenses....................................... 10,000*
Legal fees and expenses............................................... 30,000*
Accounting fees and expenses.......................................... 5,000*
Transfer Agent fees and expenses...................................... 3,000*
Miscellaneous expenses................................................ 2,000*
Total $75,000*
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh of the Certificate of Incorporation of the Registrant
eliminates the personal liability of directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided, however, that such elimination of the personal liability of a director
of the Registrant does not apply to (i) any breach of the director's duty of
loyalty to the Registrant or its stockholders, including, but not limited to,
any appropriation, in violation of his duties, of any business opportunity of
the Registrant, (ii) acts or omissions which involve intentional misconduct or a
knowing violation of law, (iii) actions prohibited under Section 174 of the
Delaware General Corporation Law (i.e., liabilities imposed upon directors who
vote for or assent to the unlawful payment of dividends, unlawful repurchases or
redemption of stock, unlawful distribution of assets of the Registrant to the
stockholders without the prior payment or discharge of the Registrant's debts or
obligations, or unlawful making or guaranteeing of loans to directors), or (iv)
any transaction from which the director derived an improper personal benefit. In
addition, Article Ninth of the Registrant's Certificate of Incorporation, as
amended, provides that the Registrant shall indemnify its corporate personnel,
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law, as amended from time to time.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation,
20
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section 145 further provides that a corporation may indemnify a person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper. To the extent
that a director, officer, employee or agent of a corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred
to above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of any undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this section.
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Section 145 of the Delaware General Corporation Law shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Each executive officer and director of TekInsight has signed an
indemnity agreement providing indemnification of such officer or director by
TekInsight to the fullest extent allowed under the Delaware General Corporation
Law. The indemnification agreement provides for
20
payment by TekInsight of all expenses, judgments and other amounts required to
be paid by an officer or director in connection with a proceeding or suit to
which he is a party or witness or is otherwise involved by reason of the fact
that he acted as an officer, employee, director and/or agent of TekInsight.
TekInsight is not obligated to pay any expenses with respect to any proceeding
arising out of acts or omissions for which such officer or director is
prohibited by applicable law from receiving indemnification or where the
attorney representing the officer or director seeking indemnification has
concluded that such officer or director is not entitled to indemnification of
any amounts.
The Selling Stockholder Agreements that Selling Stockholders are being
asked to sign contain, among other things, provisions whereby the Selling
Stockholders agree to indemnify the Registrant, each officer and director of the
Registrant who has signed the Registration Statement and each person who
controls the Registrant within the meaning of Section 15 of the Securities Act,
against any losses, liabilities, claims or damages arising out of alleged untrue
statements or alleged omissions of material facts with respect to information
furnished to the Registrant by Selling Stockholders for use in the Registration
Statement or Prospectus. See "Undertakings."
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
A. EXHIBITS.
NUMBER DESCRIPTION OF EXHIBIT
3.1(a) Amendment to Certificate of Incorporation of TekInsight. (8)
3.1(b) Certificate of Incorporation of TekInsight. (1)
3.1(c) Certificate of Renewal of Charter of TekInsight. (1)
3.1(d) Certificate of Amendment of Charter of TekInsight. (3)
3.2 By-Laws of TekInsight. (3)
3.3 Certificate of designations, Preferences and relative,
Participating, Optional or other special rights of Series A
Redeemable Preferred Stock. (4)
3.4 Certificate of designations, Preferences and relative,
Participating, Optional or other special rights of Series B
Redeemable Preferred Stock. (4)
4.1(a) Specimen Certificate of TekInsight's common stock. (2)
4.1(b) Specimen of Redeemable common stock Purchase Warrant. (5)
5.1 Opinion of Nixon Peabody LLP
10.1 Consulting & Professional Services Agreement, dated as of
August 31, 1999, between Astratek, Inc. and 4th Peripheral
Technologies, Inc. (6)
21
10.2 Agreement between TekInsight and BusinessTalkRadio.Net, Inc.,
dated as of June 30, 1999. (6)
10.3 Form of Web Site Design and Consulting Agreement, dated as of
June 1, 1999, by and between Azurel and E Commerce Corp. (6)
10.4 Credit Note, dated May 28, 1999 made by Azurel in favor of
TekInsight (the "Credit Note"). (7)
10.5 First Allonge to Credit Note, made by Azurel in favor of
Tadeo-E, dated June 1, 1999. (7)
10.6 Credit Agreement, dated May 28, 1999, by and between
TekInsight and Azurel. (7)
10.7 Pledge Security Agreement, dated May 28, 1999, by and between
TekInsight and Azurel. (7)
10.8 Warrants to acquire 300,000 shares of Azurel common stock,
dated May 28, 1999. (7)
10.9 First Amendment to Credit Agreement, dated June 1, 1999, by
and between TekInsight, Tadeo-E and Azurel. (7)
10.10 Registration Rights Agreement, dated May 28, 1999, by and
between TekInsight and Azurel. (7)
10.11 Warrants to acquire 200,000 shares of Azurel common stock,
dated June 1, 1999. (7)
10.12 Form of On-Line Hosting Agreement, dated as of June 30, 1999,
by and between Tadeo-E and Style Site Marketing Inc.
("Style"). (7)
10.13 Web Site and Consulting Agreement, dated as of June 30, 1999,
by and between Tadeo-E and Style. (7)
10.14 Security Purchase Agreement, dated June 30, 1999, by and
between TekInsight, Tadeo-E and Style. (7)
10.15 Registration Rights Agreement, dated June 30, 1999, by and
between Tadeo-E and Style. (7)
10.16 Pledge Security Agreement, dated June 30, 1999, by and between
Tadeo-E, the Rubin Family Irrevocable Trust and Style. (6)
10.17 Amended Warrant Agreement, dated as of November 30, 1999,
between TekInsight and American Stock Transfer & Trust
Company. (8)
22
10.18 Web Site Design and Consulting Agreement, dated November 5,
1999, by and between Tadeo-E and Med-Emerg International, Inc.
("Med-Emerg").
10.19 Securities Purchase Agreement, dated November 5, 1999, between
Tadeo-E and Med-Emerg.
10.20 Registration Rights Agreement, dated November 5, 1999, by and
between Tadeo-E and Med-Emerg.
10.21 Letter of Intent, dated January 18, 2000, between TekInsight
and Data Systems. (10)
10.22 Agreement and Plan of Merger, dated Febraury 18, 2000, among
TekInsight, Tadeo-E and Data Systems. (11)
10.23 Financial Advisory and Investment Banking Agreement, dated
February 15, 2000, between TekInsight and
EarlyBirdCapital Inc.("EarlyBird").
10.24 Warrants dated February 15, 2000 to acquire 200,000 shares of
common stock of TekInsight granted to
EarlyBird.
10.25 Warrants dated February 15, 2000 to acquire 100,000 shares of
common stock of TekInsight granted to
EarlyBird.
23.1 Consent of Feldman Sherb Horowitz & Co., P.C.
23.2 Consent of Nixon Peabody LLP. Included in Exhibit 5.1.
(1) Incorporated by reference, filed as an exhibit to the
Registrant's Registration Statement on Form S-1 filed on
August 3, 1992, SEC File No. 33-50426.
(2) Incorporated by reference, filed as an exhibit to Amendment
No. 1 to the Registrant's Registration Statement on Form
S-1 filed on October 13, 1992.
(3) Incorporated by reference, filed as an exhibit to Amendment
No. 2 to the Registrant's Registration Statement on Form
S-1 filed on November 10, 1992.
(4) Incorporated by reference, filed as an exhibit to the
Registrant's Current Report on 8-K, filed on April 19, 1995.
(5) Incorporated by reference, filed as an exhibit to Amendment
No. 4 to the Registrant's Registration Statement on Form
S-1 filed on December 4, 1992.
(6) Incorporated by reference, filed as an exhibit to the
Registrant's Annual Report on Form 10-K for the year ended
June 30, 1999, filed on October 13, 1999.
23
(7) Incorporated by reference, filed as an exhibit to Registrant's
Current Report on Form 8-K, filed on July 30, 1999.
(8) Incorporated by reference, filed as an exhibit to Registrant's
Current Report on Form 8-K, filed on December 6, 1999.
(9) Incorporated by reference, filed as an exhibit to Form S-3
Registration Statement and Post-Effective Amendment No. 1
to form SB-2 Registration Statement on Form S-3 Registration
Statement, filed on July 11, 1997.
(10) Incorporated by reference, filed as an exhibit to the
Registrant's Current Report on Form 8-K, filed on January 26,
2000.
(11) Incorporated by reference, filed as an exhibit to th
Registrant's Current Report on Form 8-K, filed on
February 29, 2000.
B. FINANCIAL STATEMENT SCHEDULES
None Required.
ITEM 17. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(1) To include any additional or changed material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
24
3. The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 of Rule 14c-3 under the Securities Exchange Act 1934;
and, where interim financial information required to be presented by Article 3
of Regulation S-X are not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
4. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
5. The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has fully caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of New York, New York, on the 5th day of April,
2000.
TEKINSIGHT.COM, INC.
BY:/s/Steven J. Ross
-------------------------------------
Steven J. Ross,
President and Chief Executive Officer
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