AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 2, 2001
REGISTRATION NO. ____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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EZENIA! INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3114212
(State or other jurisdiction of incorporation (I.R.S. Employer identification
or organization) No.)
63 THIRD AVENUE
BURLINGTON, MASSACHUSETTS 01803
(781) 229-2000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
-----------
KHOA D. NGUYEN
CHIEF EXECUTIVE OFFICER OF
EZENIA! INC.
63 Third Avenue
Burlington, Massachusetts 01803
(781) 229-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------
WITH COPIES TO:
DAVID L. ENGEL, ESQ.
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
(617) 951-8000
-----------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
===================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
Common Stock
Par Value $0.01 per share 400,000 $.265 $106,000 $26.50
- -------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration
fee. Calculated in accordance with Rule 457(c), based on the offering of up to
400,000 shares at a purchase price of $.265 per share, which is the average of
high and low prices reported in the consolidated reporting system of the Nasdaq
National Market on July 26, 2001. It is not known how many shares will be
purchased under this Registration Statement or at what price such shares will be
purchased.
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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
Subject to Completion, Dated August 2, 2001
PROSPECTUS
EZENIA! INC.
400,000 Shares of
Common Stock, $0.01 par value
This prospectus of Ezenia! Inc., a Delaware corporation, relates to the
public offering of up to 400,000 shares of Ezenia!'s common stock, par value
$0.01 per share, by a certain stockholder of Ezenia!. More information is
provided in the section titled "Selling Stockholder." When used herein, the term
"selling stockholder" includes donees, transferees, pledgees and other
successors in interest. The shares have previously been issued by Ezenia!.
Ezenia! will not receive any of the proceeds from the sale of the
shares by the selling stockholder. Ezenia!'s common stock is listed on the
Nasdaq National Market under the symbol "EZEN". On August 1, 2001, the closing
sale price of the common stock, as reported on the Nasdaq National Market, was
$0.28 per share.
The selling stockholder may sell the shares in public or private
transactions, on or off the National Market System of the Nasdaq Stock Market,
at prevailing market prices, or at privately negotiated prices. The selling
stockholder may sell the shares directly to purchasers or through brokers or
dealers. Brokers or dealers may receive compensation in the form of discounts,
concessions or commissions from the selling stockholder. More information is
provided in the section titled "Plan of Distribution."
INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS," BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is August 2, 2001.
TABLE OF CONTENTS
PAGE
Forward-Looking Statements.................................... 1
Where You Can Get More Information............................ 2
Risk Factors.................................................. 3
Ezenia! Inc................................................... 8
Use of Proceeds............................................... 8
Selling Stockholder........................................... 8
Plan of Distribution.......................................... 9
Experts....................................................... 9
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Words such as "expect," "anticipate," "intend," "plan,"
"believe," "estimate," "likely," "will," "should" and variations of such words
and similar expressions are intended to identify such forward-looking
statements.
These forward-looking statements are not guarantees of future
performance and are subject to risks, uncertainties and assumptions. The actual
results of Ezenia! could differ materially from those anticipated in the
forward-looking statements due to a number of factors, including those set forth
under "Risk Factors," in information incorporated by reference and elsewhere in
this prospectus. The factors set forth under "Risk Factors" and other cautionary
statements made in this prospectus should be read and understood as being
applicable to all related forward-looking statements wherever they appear in
this prospectus.
The forward-looking statements contained in this prospectus represent
our judgment as of the date of this prospectus. Ezenia! cautions readers not to
place undue reliance on such statements. We undertake no obligation to update
publicly any forward-looking statements for any reason, even if new information
becomes available or other events occur in the future.
1
WHERE YOU CAN GET MORE INFORMATION
Ezenia! is subject to the reporting requirements of the Securities
Exchange Act of 1934 and files annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy these
reports, proxy statements and other information at the SEC's public reference
facilities at 450 Fifth Street, N.W., Washington, D.C. 20549. You can request
copies of these documents by writing to the SEC and paying a fee for the copying
cost. Please call the SEC at 1-800-SEC-0330 for more information about the
operation of the public reference facilities. SEC filings are also available at
the SEC's Web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" information that we
file with them. Incorporation by reference allows us to disclose important
information to you by referring you to those other documents. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information.
We incorporate by reference the documents listed below, and any future
filings we will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 prior to termination of the offering:
o Annual Report on Form 10-K for the fiscal year ended December 31,
2000, filed on March 12, 2001
o Current Report on Form 8-K, filed on April 11, 2001, as amended on
June 11, 2001.
o Quarterly Report on Form 10-Q for the fiscal quarters ended March
31, 2001 and June 30, 2001 (filed on August 2, 2001).
o The description of the common stock contained in the Registration
Statement on Form S-1 of Ezenia! filed on April 12, 1995 with the
SEC, as amended.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Ezenia! Inc.
63 Third Avenue
Burlington, Massachusetts 01803
(781) 229-2000
Attn: Laura M. Alessio, Manager, Investor Relations
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information incorporated by reference or
provided in this prospectus. No one else is authorized to provide you with
different information. We are not making an offer of these securities in any
state where the offer 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 document.
2
RISK FACTORS
BEFORE YOU INVEST IN OUR COMMON STOCK, YOU SHOULD BE AWARE THAT THERE
ARE VARIOUS RISKS, INCLUDING THOSE DESCRIBED BELOW, THAT COULD HAVE A MATERIAL
ADVERSE EFFECT ON OUR BUSINESS, INCLUDING OUR OPERATING RESULTS AND FINANCIAL
CONDITION. THE RISK FACTORS LISTED IN THIS SECTION, AS WELL AS ANY CAUTIONARY
LANGUAGE IN THIS PROSPECTUS, PROVIDE EXAMPLES OF RISKS, UNCERTAINTIES AND EVENTS
THAT MAY CAUSE OUR ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE EXPECTATIONS WE
DESCRIBE IN OUR FORWARD-LOOKING STATEMENTS. YOU SHOULD CAREFULLY CONSIDER THESE
RISK FACTORS, TOGETHER WITH ALL OF THE OTHER INFORMATION INCLUDED IN OR
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS, BEFORE YOU DECIDE WHETHER TO
PURCHASE SHARES OF OUR COMMON STOCK.
WE HAVE NEVER ACHIEVED PROFITABILITY AND WE MAY BECOME UNABLE TO FUND OPERATIONS
IN THE NEAR FUTURE
We have never achieved profitability and, since inception, have
incurred significant net operating losses. At July 1, 2001, we had an
accumulated deficit of approximately ($26,339). We expect to continue to
incur losses for the foreseeable future. Our ability to continue as a going
concern is dependent upon our ability to raise additional capital or to improve
operating margins considerably. There is little likelihood of securing
additional capital on reasonable terms, if at all, in the near future.
Accordingly, we recently implemented a restructuring and cost reduction plan to
align company resources and expenses with our current revenue forecasts. This
plan involved a reduction in workforce of approximately one hundred employees,
including engineering, marketing and manufacturing employees in Burlington,
Massachusetts and salespeople in North America and Europe. In addition, our
restructuring and cost reduction plan calls for the Company to close down our
Burlington, Massachusetts facility and move our office headquarters to a
smaller, more cost efficient facility. There can be no assurance that any
actions implemented by the Company will reduce expenses or increase revenue to
the extent desired or that any reduction in expenses or increase in revenue will
materially extend the Company's ability to continue operations.
OUR COMMON STOCK MAY BE DELISTED FROM THE NASDAQ NATIONAL MARKET
The Company's common stock is presently listed on the Nasdaq National
Market under the symbol EZEN. All companies listed on Nasdaq are required to
comply with certain continued listing standards, including maintaining a minimum
bid price for its common stock of at least $1.00. As of June 29, 2001, the
Company did not meet this standard since its common stock had not traded at a
minimum bid price of at least $1.00 over the previous 30 consecutive trading
days. Pursuant to Nasdaq rules, the Company has until September 27, 2001 to meet
the required $1.00 minimum bid price for its common stock for at least 10
consecutive trading days. If the Company does not meet such standard by
September 27, 2001, or if it is determined that, notwithstanding its meeting
such standard, the Company is otherwise not in compliance with Nasdaq rules, the
Company's common stock will be delisted from Nasdaq unless the Company
successfully appeals the delisting determination. There can be no assurance that
the Company's common stock will meet the required $1.00 minimum bid price at any
time in the future or that any appeal by the Company of a delisting
determination would be successful. There can therefore be no assurance that the
Company's common stock will continue to be listed on Nasdaq in the future. In
the event that the Company's common stock is delisted from Nasdaq, the market
value and liquidity of the Company's common stock could be materially adversely
affected.
WE HAVE RECENTLY REVISED OUR BUSINESS STRATEGY
With the acquisition of InfoWorkSpace, a business area of General
Dynamics Government Systems Corporation, in March 2001, we have continued to
shift our focus away from traditional ISDN-based videoconferencing products to
IP and Internet based videoconferencing and real-time collaboration products.
Sales of real-time collaboration products account for an increasing portion of
the Company's revenue. The Company's success depends, to a significant extent,
on the acceptance and the rate of adoption of collaboration products, in general
and its products in particular. There is inadequate experience to predict
whether real-time collaboration products will ultimately be accepted by the
market. There can be no assurance that any of the markets for the Company's
products will develop to the extent, in the manner, or at the rate anticipated
by the Company. In addition, future prices the Company is able to obtain for its
products may decrease as a result of new product introductions by others, price
competition, technological change or other factors.
3
WE DEPEND ON A SMALL NUMBER OF MAJOR CUSTOMERS
Historically, sales to a relatively small number of customers have
accounted for a significant portion of our revenue. The Company believes that
its dependence on a similarly few number of customers will continue during 2001.
This concentration of customers may cause revenues and operating results to
fluctuate from quarter to quarter based on major customers' requirements and the
timing of their orders. Our agreements with our customers generally do not
include minimum purchase commitments or exclusivity arrangements. Our operating
results could be materially and adversely affected if any present or future
major customer were to choose to reduce its level of orders, were to change to
another vendor for purchases of a similar product, were to combine their
operations with another organization that had an established relationship with
another vendor for purchases of a similar product, were to experience financial,
operational or other difficulties or were to delay paying or fail to pay amounts
due. Early in 2000, PictureTel Corporation, our largest customer in 2000,
reported that it is experiencing financial difficulties and is presently in the
process of being acquired.
OUR STOCK PRICE HAS BEEN EXTREMELY VOLATILE AND MAY CONTINUE TO BE SO IN THE
FUTURE
Our shares have traded at prices between $0.37 and $5.375 per share in
the past twelve months. Additionally, the market for shares in
technology-related companies is subject to extreme price and volume
fluctuations. Market reaction to information relating to our company, as well as
broad fluctuations in market prices of shares in similarly situated companies,
may materially and adversely affect the price of our common stock. The price of
our shares may continue to be volatile in the future, and may be affected by a
number of factors, including:
o actual or perceived likelihood of our inability to continue funding
operations
o actual or anticipated fluctuations in our operating results
o changes in investors' and securities analysts' expectations as to
our future financial performance or changes in financial estimates
of securities analysts
o announcement of new products or product enhancements by us or our
competitors
o technological innovations by us or our competitors
o the operating and stock price performance of comparable companies
INCREASED COMPETITION MAY RESULT IN DECREASED DEMAND FOR OUR PRODUCTS AND
SERVICES
The market for multimedia collaboration products is highly competitive
and is subject to rapid technological change. Additional competition could
adversely affect the Company's sales and profitability, through price reductions
and loss of market share. Many of the Company's current and potential
competitors have substantially greater financial, technical, and sales and
marketing resources than the Company.
The principal competitive factors in the market for multimedia
collaboration are, and should continue to be, breadth of capabilities,
demonstrated interoperability, price, performance, network management
capabilities, reliability and customer support. While the Company believes it
presently competes favorably in all of these areas, there can be no assurance
that it will continue to do so.
The Company currently competes, or expects to compete, directly or
indirectly with the real-time collaboration and video conferencing companies.
OUR OPERATING RESULTS MAY VARY FROM QUARTER TO QUARTER
Our operating results are likely to vary significantly from quarter to
quarter as a result of several factors, including:
4
o the timing of new product announcements and introductions by us and
our major customers and competitors
o market acceptance of new or enhanced versions of our products
o changes in the product mix of revenue
o price reductions for our products
o the gain or loss of significant customers
o increased research and development expenses associated with new
product introductions
o seasonality and general economic conditions
New customers orders have generally been characterized by lengthy sales
cycles, making it difficult to predict the quarter in which sales will occur.
Also, ordering patterns have resulted in the Company recognizing a substantial
portion of its revenue in a given quarter from sales booked and shipped in the
last weeks of that quarter. These and other factors can materially adversely
affect the Company's business and operating results for one quarter or a series
of quarters, and are difficult to forecast.
OUR INDUSTRY IS CHARACTERIZED BY RAPID TECHNOLOGICAL CHANGE
The market for our products is characterized by rapidly changing
technology, evolving industry standards, emerging network architectures and
frequent new product introductions. The adoption rate of new technologies and
products may adversely impact near-term growth of the conferencing market as
users evaluate the alternatives. We have invested, and for 2001 plan to continue
to invest, in software development and products incorporating certain of these
new technologies. Many other companies are also developing products
incorporating these new technologies that are competitive with Ezenia!'s current
and future offerings. Ezenia!'s success will depend, in part, upon the
following:
o our ability through continued investments to maintain technological
leadership
o our ability to enhance and expand our existing product offerings
o our ability to select and develop in a timely manner new products
that achieve market acceptance
If we are unable, for technical or other reasons, to develop and introduce new
services or enhancements of existing services in a timely manner in response to
changing market conditions or customer requirements, or if new services do not
achieve market acceptance, our business, financial condition and results of
operations could be materially and adversely affected.
WE DEPEND ON OUR KEY PERSONNEL TO IMPLEMENT OUR BUSINESS STRATEGY
Our success depends, to a significant degree, upon the continuing
contributions of our key management, sales, marketing and research and
development personnel, many of whom would be difficult to replace. We do not
have employment contracts with most of our key personnel. The Company believes
that its future success will depend in large part upon its ability to attract
and retain such key employees
WE MAY NOT BE ABLE TO PROTECT OUR INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
Ezenia!'s success and ability to compete, depends, to a large extent,
on our ability to protect our proprietary technology. In addition to our patents
and patent applications relating to our products, we rely primarily on a
combination of contractual rights, trade secrets and copyrights to protect our
intellectual property rights.
5
Legal standards relating to the protection of intellectual property
rights in Internet-related industries are uncertain and still evolving. As a
result, the future viability or value of our intellectual property rights, as
well as those of other companies that conduct business over the Internet, is
unknown. Despite our efforts to protect our proprietary rights, unauthorized
parties may attempt to copy aspects of our technology or obtain and use
information that we regard as proprietary. Policing unauthorized use of our
proprietary rights is difficult. In addition, litigation may be necessary in the
future to enforce our intellectual property rights, to protect our trade secrets
or trademarks or to determine the validity and scope of the proprietary rights
of others. Litigation might result in substantial costs and diversion of
resources and management attention. Any infringement or misappropriation of our
proprietary rights and the related costs of enforcing those rights could have a
material adverse effect on our business, financial condition and results of
operations.
WE MAY INFRINGE UPON OTHER PARTIES' PROPRIETARY RIGHTS
Our business activities may infringe upon the proprietary rights of
others and other parties may assert infringement claims against us. Moreover,
from time to time, third parties may allege infringement by us or our strategic
partners on their trademarks, service marks and other intellectual property
rights. Such claims and any resultant litigation could subject us to significant
liability for damages, might result in invalidation of our proprietary rights
and, even if not meritorious, could result in substantial costs and diversion of
resources and management attention and have a material adverse effect on our
business, financial condition and results of operations.
PROVISIONS OF OUR GOVERNING DOCUMENTS AND DELAWARE LAW COULD DISCOURAGE
ACQUISITION PROPOSALS OR DELAY A CHANGE IN CONTROL OF EZENIA!
Our certificate of incorporation and by-laws contain anti-takeover
provisions, including those listed below, that could make it more difficult for
a third party to acquire control of us, even if that change in control would be
beneficial to shareholders:
o our board of directors has the authority to issue common stock and
preferred stock and to determine the price, rights and preferences
of any new series of preferred stock without shareholder approval
o our board of directors is divided into three classes, each serving
three-year terms
o supermajority voting is required to amend key provisions of our
certificate of incorporation and by-laws
o there are limitations on who can call special meetings of
shareholders
o shareholders may not take action by written consent
o advance notice is required for nominations of directors and for
shareholder proposals
In addition, provisions of Delaware law and our stock option plans may
also discourage, delay or prevent a change of control of Ezenia! or unsolicited
acquisition proposals.
6
EZENIA! INC.
Ezenia! Inc. is a leading global provider of real-time collaboration
solutions for corporate networks and eBusiness. Founded in 1991, Ezenia!
develops and markets products that enable organizations to provide high-quality
group communication and collaboration capabilities to commercial, consumer and
institutional users. Ezenia!'s products allow individuals and groups that are
geographically distant from each other to interact and share information in a
natural, spontaneous way -- voice-to-voice, face-to-face, flexibly and in
real-time - via a wide range of networks. Using our products, disparately
located individuals can interact through a natural meeting experience, allowing
groups to work together effectively and disseminate vital information quickly.
Ezenia!'s products enable seamless connectivity across a wide range of networks
including LANs, intranets, the Internet, ISDN, ATM and frame relay.
Ezenia! sells its products worldwide through leading resellers,
integrators and remarketers of collaboration, videoconferencing and networking
solutions. Ezenia! also sells directly to end users of collaboration products
and to providers of conferencing services.
USE OF PROCEEDS
The selling stockholder will receive the net proceeds from any sales of
its shares of common stock offered pursuant to this Registration Statement.
Ezenia! will not receive any proceeds from these sales.
SELLING STOCKHOLDER
On March 27, 2001, General Dynamics Government Systems Corporation
acquired 400,000 shares of Ezenia!'s common stock in a transaction exempt from
the registration requirements of the Securities Act of 1933, in connection with
an asset purchase agreement, dated as of December 28, 2000. Pursuant to the
asset purchase agreement, Ezenia! purchased all of the operating assets and
intellectual property used by the Electronic Systems division of General
Dynamics Government Systems Corporation in the conduct of its InfoWorkSpace
product and technology business in exchange for $17,000,000 in cash and 400,000
shares of Ezenia!'s common stock.
Pursuant to the asset purchase agreement, Ezenia! agreed to file with
the Securities and Exchange Commission a registration statement, of which this
prospectus is a part, with respect to the resale of the 400,000 shares issued to
General Dynamics Government Systems Corporation. Ezenia! has committed to keep
the registration statement effective until the earlier of (i) March 27, 2003 or
(ii) such times as all of the shares have been resold.
Our registration of the shares does not necessarily mean that General
Dynamics Government Systems Corporation will sell all or any of the shares. The
information provided in the table below with respect to General Dynamics
Government Systems Corporation has been obtained from General Dynamics
Government Systems Corporation. General Dynamics Government Systems Corporation
has not had any position, office or other material relationship with Ezenia! or
any of its affiliates. Because General Dynamics Government Systems Corporation
may sell all or some or none of the shares, only an estimate (assuming the sale
of all of the shares) can be given as to the number of shares of common stock
that will be owned by General Dynamics Government Systems Corporation after this
offering.
As of July 31, 2001, there were 13,741,880 shares of Ezenia!'s common
stock issued and outstanding.
SHARES OWNED
NAME OF SELLING STOCKHOLDER PRIOR TO SHARES TO BE OWNED
OFFERING SHARES OFFERED AFTER OFFERING
General Dynamics Government Systems
Corporation 400,000 400,000 0
7
PLAN OF DISTRIBUTION
The shares may be sold from time to time by General Dynamics Government
Systems Corporation or its donees, pledgees, transferees and other successors in
interest in one or more transactions at fixed prices, at market prices at the
time of sale, at varying prices determined at the time of sale or at negotiated
prices. The shares may be sold in one or more of the following transactions:
-- on any national securities exchange or quotation service on which
the common stock may be listed or quoted at the time of sale,
including the Nasdaq National Stock Market,
-- in the over-the-counter market,
-- in private transactions,
-- through options, or
-- a combination of any of the above transactions.
Ezenia! reserves the right to terminate the registration statement of
which this prospectus forms a part at any time after March 17, 2003.
At the time a particular offering of the shares is made, a supplement
to this prospectus, if required, will be distributed which will set forth the
aggregate number and type of shares being offered and the terms of the offering,
including the name or names of any underwriters, brokers/dealers or agents, any
discounts, commissions and other terms constituting compensation from General
Dynamics Government Systems Corporation and any discounts, commissions or
concessions allowed or reallowed to be paid to broker/dealers.
The shares may be sold from time to time directly by General Dynamics
Government Systems Corporation. Alternatively, General Dynamics Government
Systems Corporation may from time to time sell or distribute the shares to or
through broker/dealers or agents. General Dynamics Government Systems
Corporation and any broker/dealers or agents that participate in the
distribution of the shares may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933. Any profits on the resale of the shares and any
compensation received by any broker/dealer or agent may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933.
To comply with the securities laws of certain jurisdictions, if
applicable, the shares must be offered or sold only through registered or
licensed brokers or dealers. In addition, in certain jurisdictions, the shares
may not be offered or sold unless they have been registered or qualified for
sale or an exemption is available and complied with.
Under applicable rules and regulations under the Securities Exchange
Act of 1934, any person engaged in a distribution of the shares offered hereby
may not simultaneously engage in market-making activities with respect to our
common stock for a specified period prior to the start of the distribution. In
addition, General Dynamics Government Systems Corporation and any other person
participating in a distribution will be subject to the Securities Exchange Act
and the rules and regulations promulgated under the Securities Exchange Act,
including Regulation M, which may limit the timing of purchases and sales of the
shares by General Dynamics Government Systems Corporation or any such other
person. These factors may affect the marketability of the shares and the ability
of brokers or dealers to engage in market-making activities.
We shall pay all expenses of this registration. These expenses include
the SEC's filing fees and any fees under state securities or "blue sky" laws.
General Dynamics Government Systems Corporation will pay all underwriting
discounts and selling commissions, if any.
EXPERTS
The consolidated financial statements of Ezenia! Inc. appearing in
Ezenia! Inc.'s Annual Report (Form 10-K) for the year ended December 31, 2000,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report therein included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
8
===============================================================================
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR OTHER PERSON TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT. YOU MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION.
NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT IS AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THESE SECURITIES IN ANY JURISDICTION
WHERE AN OFFER OR SOLICITATION IS NOT PERMITTED. NO SALE MADE PURSUANT TO THIS
PROSPECTUS SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
NOT BEEN ANY CHANGE IN THE AFFAIRS OF EZENIA! SINCE THE DATE OF THIS PROSPECTUS.
===============================================================================
===============================================================================
400,000 SHARES
EZENIA! INC.
COMMON STOCK
-------------------
PROSPECTUS
AUGUST 2, 2001
-------------------
===============================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fee and the listing fee are estimated):
SEC Registration Fee......................................... $ 26.50
Legal Fees and Expenses...................................... $15,000.00
Accountants' Fees and Expenses............................... $ 6,000.00
Miscellaneous Costs.......................................... $ 3,973.50
Total.................................................. $25,000.00
All expenses in connection with the issuance and distribution of the
securities being offered shall be borne by the EZENIA!.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
EZENIA!'s Amended and Restated Certificate of Incorporation and Amended
and Restated By-Laws provide for advancement of expenses and indemnification of
officers and directors of the Registrant and certain other persons against
liabilities and expenses incurred by any of them in certain stated proceedings
and under certain stated conditions to the fullest extent permissible under
Delaware law.
ITEM 16. EXHIBITS
3.1(a) Certificate of Amendment to Certificate of Incorporation of the
Registrant. (Incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on From S-8, Registration
No. 333-44984, filed August 31, 2000.)
3.1(b) Certificate of Incorporation of the Registrant. (Incorporated
by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1, Registration No. 33-91132, filed April
12, 1995.)
3.2 Amended and Restated By-Laws of the Registrant. (Incorporated
by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1, Registration No. 33-91132, filed April
12, 1995.)
4.1 Asset Purchase Agreement, dated as of December 28, 2000,
between the Registrant and General Dynamics Government Systems
Corporation. (Incorporated by reference to Exhibit 10.20 to the
Registrant's Annual Report on Form 10-K, File No 0-25882, filed
March 12, 2001.)
5 Opinion of Bingham Dana LLP.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in signature pages hereto).
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ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made pursuant to this registration statement,
a post-effective amendment to this registration statement to
include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
(2) 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.
(3) 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions described in Item 15 above,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant, Ezenia! Inc., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Burlington and the
Commonwealth of Massachusetts, on this 2nd day of August 2001.
EZENIA! INC.
By: /s/ Stephen G. Bassett
-------------------------------------------
Stephen G. Bassett
CHIEF FINANCIAL OFFICER
POWER OF ATTORNEY
Each person whose signature appears below hereby appoint each of Khoa
D. Nguyen and Stephen G. Bassett, each of them acting severally, acting alone
and without the other, his/her true and lawful attorney-in-fact with the
authority to execute in the name of each such person, any and all amendments
(including without limitation, post-effective amendments) to this Registration
Statement on Form S-3, to sign any and all additional registration statements
relating to the same offering of securities as this Registration Statement that
are filed pursuant to Rule 462(b) of the Securities Act, and to file such
registration statements with the Securities and Exchange Commission, together
with any exhibits thereto and other documents therewith, necessary or advisable
to enable the Registrant to comply with the Securities Act, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, which amendments may make such other changes in the
Registration Statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE
/s/ Khoa D. Nguyen
- --------------------------------- Chairman of the Board of Directors, President and Chief Executive
Khoa D. Nguyen Officer (principal executive officer)
/s/ Stephen G. Bassett
- --------------------------------- Chief Financial Officer (principal financial and accounting
Stephen G. Bassett officer)
- --------------------------------- Director
William E. Foster
/s/ John F. Keane, Jr. Director
- ---------------------------------
John F. Keane, Jr.
/s/ John A. McMullen Director
- ---------------------------------
John A. McMullen
/s/ Roy G. Perry Director
- ---------------------------------
Roy G. Perry
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EXHIBIT INDEX
EXHIBITS
3.1(a) Certificate of Amendment to Certificate of Incorporation of the
Registrant. (Incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on From S-8, Registration No.
333-44984, filed August 31, 2000.)
3.1(b) Certificate of Incorporation of the Registrant. (Incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1, Registration No. 33-91132, filed April 12, 1995.)
3.2 Amended and Restated By-Laws of the Registrant. (Incorporated by
reference to Exhibit 3.2 to the Registrant's Registration Statement on
Form S-1, Registration No. 33-91132, filed April 12, 1995.)
4.1 Asset Purchase Agreement, dated as of December 28, 2000, between the
Registrant and General Dynamics Government Systems Corporation.
(Incorporated by reference to Exhibit 10.20 to the Registrant's Annual
Report on Form 10-K, File No 0-25882, filed March 12, 2001.)
5 Opinion of Bingham Dana LLP.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in signature pages hereto).
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