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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1999
REGISTRATION NO. 333-59753
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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INET TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 3661 75-2269056
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. employer
incorporation or organization) Classification Code number) identification number)
ELIE S. AKILIAN
PRESIDENT
AND CHIEF EXECUTIVE OFFICER
INET TECHNOLOGIES, INC.
1255 W. 15TH STREET, SUITE 600
PLANO, TEXAS 75075
(972) 578-6100
FACSIMILE: (972) 578-6113
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
1255 WEST 15TH STREET, SUITE 600
PLANO, TEXAS 75075
(972) 578-6100
(Address, including zip code, and telephone number, including area code, of the
registrant's principal executive offices)
Copies to:
CARMELO M. GORDIAN, ESQ. KENNETH M. SIEGEL, ESQ.
RONALD G. SKLOSS, ESQ. PAUL R. TOBIAS, ESQ.
DAVID K. RICHARDSON, ESQ. ANN CRADY, ESQ.
BROBECK, PHLEGER & HARRISON LLP WILSON SONSINI GOODRICH & ROSATI,
301 CONGRESS AVENUE, SUITE 1200 PROFESSIONAL CORPORATION
AUSTIN, TEXAS 78701 650 PAGE MILL ROAD
(512) 477-5495 PALO ALTO, CALIFORNIA 94304
FACSIMILE: (512) 477-5813 (650) 493-9300
FACSIMILE: (650) 493-6811
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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.
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, as amended, 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, 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 number of the earlier effective registration statement for the same
offering. [ ] ________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
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,
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
All capitalized terms used and not defined in Part II of this Registration
Statement shall have the meaning assigned to them in the Prospectus which forms
a part of this Registration Statement.
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than the
underwriting discount, payable by the registrant in connection with the sale of
Common Stock being registered. All amounts are estimates except the SEC
registration fee and the NASD filing fee.
SEC registration fee........................................ $ 33,162
NASD filing fee............................................. 11,742
Nasdaq National Market listing fee.......................... 17,500
Printing and engraving expenses............................. 200,000
Legal fees and expenses..................................... 575,000
Accounting fees and expenses................................ 375,000
Blue sky fees and expenses.................................. 10,000
Transfer agent fees......................................... 15,000
Miscellaneous............................................... 12,596
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Total............................................. $1,250,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 ("Section 145") of the DGCL empowers a
corporation to 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 such person 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), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
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 right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made
with respect to 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.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
such action, suit or proceeding referred
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to in subsections (a) and (b) of Section 145 or in the 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; that the indemnification provided for by Section 145 shall not be
deemed exclusive of any other rights which the indemnified party may be
entitled; that indemnification provided by Section 145 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators; and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of the director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article VI of the registrant's Charter provides that, to the fullest extent
permitted by the DGCL as the same exists or as it may hereafter be amended, no
director of the registrant shall be personally liable to the registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Section 11.1 of the registrant's Bylaws further provides that the
registrant shall, to the maximum extent and in the manner permitted by the DGCL,
indemnify each of its directors and officers against expenses (including
attorneys' fees), judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding, arising by reason of the
fact that such person is or was an agent of the registrant.
Prior to consummation of the offerings, the registrant will enter into
indemnification agreements with each of its directors and executive officers
that provide for indemnification and expense advancement to the fullest extent
permitted under the DGCL.
Prior to consummation of the offerings, the registrant intends to obtain
officers' and directors' liability insurance.
Reference is made to Section 9 of the Underwriting Agreements filed as
Exhibits 1.1 and 1.2 hereto, indemnifying the officers and directors of the
registrant against certain liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since July 1, 1995, the registrant has issued and sold or otherwise
transferred the below listed unregistered securities. These issuances were
deemed exempt from registration under the Securities Act in reliance on Rule 701
promulgated under the Securities Act or Section 4(2) of the Securities Act.
1. In March 1996, the registrant issued and sold 1,600,000 shares (net of
repurchases) of its Common Stock to employees for an aggregate purchase
price of $4,000 pursuant to exercises of options granted by the
registrant.
2. In February 1997, the registrant issued 50,000 shares of its Common
Stock to William H. Mina as a bonus in connection with the commencement
of his employment with the Company.
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3. In August 1998, the registrant issued and sold 15,000 shares of its
Common Stock to the widow of a deceased employee for a purchase price of
$9,000 pursuant to the exercise of an option granted by the registrant.
4. The Company has from time to time granted stock options to employees.
The following table sets forth certain information regarding such
grants:
NUMBER EXERCISE PRICE
OF SHARES PER SHARE
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July 1, 1995 through June 30, 1996.................... 50,000 $0.60
July 1, 1996 through June 30, 1997.................... 456,750 1.15
July 1, 1997 through the date hereof.................. 526,000 4.20
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
1.1* Form of U.S. Underwriting Agreement.
1.2* Form of International Underwriting Agreement.
3.1* Certificate of Incorporation.
3.2 Amended and Restated Bylaws.
4.1* Specimen Common Stock certificate.
4.2* See Exhibits 3.1 and 3.2 for provisions of the Certificate
of Incorporation and Bylaws of the registrant defining the
rights of holders of Common Stock.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1* Lease dated as of May 1, 1996 by and among Pitman Partners,
Ltd., Rosewood Property Company and the registrant.
10.2* Loan Agreement dated as of June 26, 1997 by and between
NationsBank of Texas, N.A. and the registrant.
10.3* Inet Technologies, Inc. 1998 Stock Option/Stock Issuance
Plan.
10.4* Form of Indemnification Agreement between the registrant and
each of its directors and executive officers.
10.5* Form of Registration Rights Agreement, dated as of July 17,
1998 by and among the registrant, Samuel S. Simonian, Elie
S. Akilian and Mark A. Weinzierl.
10.6* Renewal, Extension and First Amendment to Loan Agreement
entered into to be effective as of June 15, 1998 between the
Company and NationsBank, N.A.
10.7* Fourth Amendment to Office lease dated as of July 15, 1998
by and among Pitman Partners, Ltd., Rosewood Property
Company and the registrant.
10.8* Assumption and Modification Agreement, dated effective as of
July 16, 1998, between the registrant and NationsBank, N.A.
21.1* Subsidiaries of the registrant.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Brobeck, Phleger & Harrison LLP (included in the
opinion filed as Exhibit 5.1).
24.1* Power of attorney pursuant to which amendments to this
registration statement may be filed (included on the
signature page in Part II hereof).
27.1* Financial data schedule for the period ended June 30, 1998.
27.2* Financial data schedule for the period ended June 30, 1997.
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27.3* Financial data schedule for the period ended December 31,
1997.
27.4* Financial data schedule for the period ended December 31,
1996.
27.5* Financial data schedule for the period ended December 31,
1995.
27.6* Financial data schedule for the period ended December 31,
1998.
27.7* Financial data schedule for the period ended March 31, 1999.
27.8* Financial data schedule for the period ended March 31, 1998.
99.2* Consent of James R. Adams.
99.3* Consent of Grant A. Dove.
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* Previously filed.
(b) Financial Statement Schedules:
The following financial statement schedule of the Company is included in
Part II of this registration statement:
PAGE
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Report of Independent Auditors on Financial Statement
Schedule.................................................. S-1
Schedule II -- Valuation and Qualifying Accounts............ S-2
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
Consolidated Financial Statements or the Notes thereto.
ITEM 17. UNDERTAKINGS.
The registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreements certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
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 DGCL, the Certificate of Incorporation or the Bylaws
of the registrant, the Underwriting Agreement, 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 hereunder, 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.
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, as amended, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Plano,
State of Texas, on this 1st day of June 1999.
INET TECHNOLOGIES, INC.
By: /s/ WILLIAM H. MINA
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William H. Mina
Senior Vice President --
Finance and Administration
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:
NAME TITLE DATE
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SAMUEL S. SIMONIAN* Chairman of the Board June 1, 1999
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Samuel S. Simonian
ELIE S. AKILIAN* President, Chief Executive June 1, 1999
- ----------------------------------------------------- Officer and Director
Elie S. Akilian (Principal executive officer)
MARK A. WEINZIERL* Executive Vice President and June 1, 1999
- ----------------------------------------------------- Director (Principal financial
Mark A. Weinzierl officer)
/s/ WILLIAM H. MINA Senior Vice President -- Finance June 1, 1999
- ----------------------------------------------------- and Administration and
William H. Mina Director (Principal accounting
officer)
*By: /s/ WILLIAM H. MINA
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William H. Mina
Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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1.1* Form of U.S. Underwriting Agreement.
1.2* Form of International Underwriting Agreement.
3.1* Certificate of Incorporation.
3.2 Bylaws.
4.1* Specimen Common Stock certificate.
4.2* See Exhibits 3.1 and 3.2 for provisions of the Certificate
of Incorporation and Bylaws of the registrant defining the
rights of holders of Common Stock.
5.1* Opinion of Brobeck, Phleger & Harrison LLP.
10.1* Lease dated as of May 1, 1996 by and among Pitman Partners,
Ltd., Rosewood Property Company and the registrant.
10.2* Loan Agreement dated as of June 26, 1997 by and between
NationsBank of Texas, N.A. and the registrant.
10.3* Inet Technologies, Inc. 1998 Stock Option/Stock Issuance
Plan.
10.4* Form of Indemnification Agreement between the registrant and
each of its directors and executive officers.
10.5* Form of Registration Rights Agreement, dated as of July 17,
1998 by and among the registrant, Samuel S. Simonian, Elie
S. Akilian and Mark A. Weinzierl.
10.6* Renewal, Extension and First Amendment to Loan Agreement
entered into to be effective as of June 15, 1998 between the
Company and NationsBank, N.A.
10.7* Fourth Amendment to office lease dated as of July 15, 1998
by and among Pitman Partners, Ltd., Rosewood Property
Company and the registrant.
10.8* Assumption and Modification Agreement, dated effective as of
July 16, 1998, between the registrant and NationsBank, N.A.
21.1* Subsidiaries of the registrant.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Brobeck, Phleger & Harrison LLP (included in the
opinion filed as Exhibit 5.1).
24.1* Power of attorney pursuant to which amendments to this
registration statement may be filed (included on the
signature page in Part II hereof).
27.1* Financial data schedule for the period ended June 30, 1998.
27.2* Financial data schedule for the period ended June 30, 1997.
27.3* Financial data schedule for the period ended December 31,
1997.
27.4* Financial data schedule for the period ended December 31,
1996.
27.5* Financial data schedule for the period ended December 31,
1995.
27.6* Financial data schedule for the period ended December 31,
1998.
27.7* Financial data schedule for the period ended March 31, 1999.
27.8* Financial data schedule for the period ended March 31, 1998.
99.2* Consent of James R. Adams.
99.3* Consent of Grant A. Dove.
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* Previously filed.