AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 28, 1997
REGISTRATION NO. 333-27335
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LIVINGSTON ENTERPRISES, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 7373 77-0127305
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
4464 WILLOW ROAD
PLEASANTON, CALIFORNIA 94588
(510) 737-2100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
STEVEN M. WILLENS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
LIVINGSTON ENTERPRISES, INC.
4464 WILLOW ROAD
PLEASANTON, CALIFORNIA 94588
(510) 737-2100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
Steven E. Bochner, Esq. William L. Hudson, Esq.
Nevan C. Elam, Esq. Valerie J. Horwitz, Esq.
Richard S. Arnold, Jr., Esq. Randall M. Lake, Esq.
Wilson Sonsini Goodrich & Rosati Brobeck, Phleger & Harrison LLP
Professional Corporation Spear Street Tower One Market Plaza
650 Page Mill Road San Francisco, California 94105
Palo Alto, California 94304 (415) 442-0900
(415) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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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: / /
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: / /
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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.
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EXPLANATORY NOTE
The sole purpose of this Amendment is to file an Exhibit to the Registration
Statement. No changes have been made to the text of the Registration Statement
other than to Item 16 (Exhibits).
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC registration fee and NASD filing fee.
SEC registration fee.............................................. $ 12,122
NASD filing fee................................................... 4,500
Nasdaq National Market listing fee................................ 50,000
Printing and engraving costs...................................... 125,000
Legal fees and expenses........................................... 310,000
Accounting fees and expenses...................................... 250,000
Blue Sky fees and expenses........................................ 10,000
Transfer Agent and Registrar fees................................. 5,000
Miscellaneous expenses............................................ 35,000
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Total......................................................... 801,622
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Bylaws of the Company provide for the indemnification of the Company's
officers and directors against certain liabilities and expenses relating to
lawsuits and other proceedings in which they may become involved. Section 317 of
the California Corporations Code also provides for indemnification of a
corporation's directors and officers under certain circumstances.
Section 204(a)(10) and (11) and Section 317 of the California Corporations
Code and the Bylaws of the Company contain provisions covering indemnification
of corporate directors and officers against certain liabilities and expenses
incurred as a result of proceedings involving such persons in their capacities
as directors and officers, including proceedings under the Securities Act or the
Exchange Act.
The Company provides indemnity insurance pursuant to which its directors and
officers are indemnified or insured under certain circumstances against certain
liabilities or losses, including liabilities under the Securities Act. The
Company has obtained shareholder approval to enter into indemnity agreements
with their respective directors and officers. Each agreement provides for
indemnification of the fines, settlements and other amounts incurred by such
person in connection with the good faith performance of his or her duties as a
director or officer. The indemnification agreements also provide for the advance
payment by the Company of expenses incurred in defending any proceeding to which
the director or officer may be a party, provided that the affected director or
officer executed an undertaking, acceptable to the disinterested members of the
board of directors, agreeing to repay all amounts advanced for defense of the
proceeding if it shall be ultimately determined that such director or officer
was not entitled to be indemnified in accordance with Sections 204(a)(10) and
(11) and Section 317 of the California Corporations Code.
The Company understands that the staff of the Commission is of the opinion
that statutory, charter and contractual provisions as are described above have
no effect on claims arising under the federal securities laws.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since 1994 the registrant has issued and sold the following unregistered
securities: as of April 30, 1997, the Registrant has issued and sold 186,832
shares of Common Stock to employees and consultants at prices
II-1
ranging from $.033 to $10.50 per share, upon exercise of stock options, pursuant
to the Registrant's 1994 Stock Option Plan; in December 1995, the Company issued
15,000 shares of Common Stock to Douglas Meltzer in consideration of past
services rendered to the Company and the signing of a confidentiality agreement;
and in connection with the Company's acquisition of certain assets, with a value
of $189,000 as determined by the Company's Board of Directors, of Lloyd
Internetworking, Inc. ("Lloyd") in June 1996, the Company issued 18,000 shares
of Common Stock to Lloyd shareholders.
The sales of the above securities were deemed to be exempt from registration
under the Securities Act in reliance on Section 4(2) of the Securities Act, or
Rule 701 promulgated under Section 3(b) of the Securities Act, as transactions
by an issuer not involving a public offering or transactions pursuant to
compensatory benefit plans and contracts relating to compensation as provided
under such Rule 701. The recipients of securities in each such transaction
represented their intention to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates and instruments
issued in such transaction. All recipients had adequate access, through their
relationships with the Company, to information about the Registrant.
ITEM 16. EXHIBITS
(a) Exhibits
1.1+ Underwriting Agreement.
3.1+ Restated Articles of Incorporation of Livingston Enterprises, Inc., a California
corporation, as currently in effect.
3.4+ Bylaws of the Registrant, as currently in effect.
3.5+ Bylaws of the Registrant, as in effect immediately following the closing of the
offering made under this Registration Statement.
4.1* Specimen Common Stock Certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1+ Form of Indemnification Agreement between the Company and each of its directors
and officers.
10.2+ 1994 Stock Option Plan and forms of agreement thereunder.
10.3+ 1997 Stock Plan and form of agreement thereunder.
10.4+ 1997 Employee Stock Purchase Plan and forms of agreements thereunder.
10.5+ Lease dated January 24, 1996 between Registrant and Willow Road Associates, LLC
for the facility located at 4464 Willow Road, Pleasanton, CA 94588.
10.6+ Deferred Compensation Plan dated May 2, 1996, as amended, between the Company
and Jerrold Livingston.
10.7+ Master Revolving Note with Comerica Bank dated April 30, 1996.
10.8** OEM Software License and Development Agreement between the Company and U.S.
Robotics Access Corp. (f/k/a U.S. Robotics, Inc.), as amended.
11.1+ Calculation of earnings per share.
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23.1+ Consent of KPMG Independent Auditors.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1+ Power of Attorney (see page II-4).
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* To be filed by amendment.
** Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
+ Previously filed.
(b) Financial Statement Schedules
II. Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement 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.
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, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pleasanton, State of
California, on the 28th day of May, 1997.
LIVINGSTON ENTERPRISES, INC.
By: /s/ STEVEN M. WILLENS
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Steven M. Willens
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Steven M. Willens and Steven A. Hess and each of
them his attorneys-in-fact, each with the power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to sign any registration statement for the same offering covered by this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto in all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming that such
attorneys-in-fact and agents or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
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/s/ STEVEN M. WILLENS
---------------------------- President, Chief Executive Officer and Chairman May 28, 1997
Steven M. Willens
/s/ STEVEN A. HESS
---------------------------- Chief Financial Officer (Principal Financial and May 28, 1997
Steven A. Hess Accounting Officer)
/s/ JERROLD LIVINGSTON
---------------------------- Director May 28, 1997
Jerrold Livingston
/s/ RONALD H. WILLENS
---------------------------- Director May 28, 1997
Ronald H. Willens
/s/ ALBERT A. PIMENTEL
---------------------------- Director May 28, 1997
Albert A. Pimentel
/s/ ROBERT C. HAWK
---------------------------- Director May 28, 1997
Robert C. Hawk
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LIVINGSTON ENTERPRISES, INC.
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
BALANCE AT DEDUCTIONS:
BEGINNING OF WRITE OFFS BALANCE AT
CLASSIFICATION PERIOD ADDITIONS OF ACCOUNTS END OF PERIOD
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Allowance for returns and doubtful accounts
Year ended August 31, 1994............................... $ -- $ 13 $ -- $ 13
Year ended August 31, 1995............................... $ 13 $ 137 $ -- $ 150
Year ended August 31, 1996............................... $ 150 $ 563 $ 65 $ 648
Six months ended February 28, 1996 (unaudited)........... $ 150 $ 200 $ 1 $ 349
Six months ended February 29, 1997 (unaudited)........... $ 648 $ 330 $ 96 $ 882
Warranty accrual
Year ended August 31, 1994............................... $ -- $ -- $ -- $ --
Year ended August 31, 1995............................... $ -- $ -- $ -- $ --
Year ended August 31, 1996............................... $ -- $ 85 $ -- $ 85
Six months ended February 28, 1996 (unaudited)........... $ -- $ -- $ -- $ --
Six months ended February 29, 1997 (unaudited)........... $ 85 $ 340 $ -- $ 425
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
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1.1+ Underwriting Agreement.
3.1+ Restated Articles of Incorporation of Livingston Enterprises, Inc., a California corporation, as
currently in effect.
3.4+ Bylaws of the Registrant, as currently in effect.
3.5+ Bylaws of the Registrant, as in effect immediately following the closing of the offering made under this
Registration Statement.
4.1* Specimen Common Stock Certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1+ Form of Indemnification Agreement between the Company and each of its directors and officers.
10.2+ 1994 Stock Option Plan and forms of agreement thereunder.
10.3+ 1997 Stock Plan and form of agreement thereunder.
10.4+ 1997 Employee Stock Purchase Plan and forms of agreements thereunder.
10.5+ Lease dated January 24, 1996 between Registrant and Willow Road Associates, LLC for the facility located
at 4464 Willow Road, Pleasanton, CA 94588.
10.6+ Deferred Compensation Plan dated May 2, 1996, as amended, between the Company and Jerrold Livingston.
10.7+ Master Revolving Note with Comerica Bank dated April 30, 1996.
10.8** OEM Software License and Development Agreement between the Company and U.S. Robotics Access Corp. (f/k/a
U.S. Robotics, Inc.), as amended.
11.1+ Calculation of earnings per share.
23.1+ Consent of KPMG Independent Auditors.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1+ Power of Attorney (see page II-4).
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* To be filed by amendment.
** Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
+ Previously filed.