As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 333-91169
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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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GODIGITAL NETWORKS CORPORATION
(Exact name of Registrant as specified in its charter)
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California
(prior to reincorporation)
Delaware 3661 94-3240382
(after reincorporation) (Primary Standard Industrial (I.R.S. Employer
(State or other jurisdiction
of Classification Code Number) Identification Number)
incorporation or
organization)
41652 Boscell Road
Fremont, California 94538
(510) 979-2200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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T. Olin Nichols
Chief Financial Officer
41652 Boscell Road
Fremont, California 94538
(510) 979-2200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Judith M. O'Brien, Esq. Nora L. Gibson, Esq.
Alisande M. Rozynko, Esq. Laura M. de Petra, Esq.
Lior Zorea, Esq. Leonard A. Ho, Esq.
Wilson Sonsini Goodrich & Rosati Brobeck, Phleger & Harrison LLP
Professional Corporation One Market, Spear Street Tower
650 Page Mill Road San Francisco, CA 94105
Palo Alto, CA 94304 (415) 442-0900
(650) 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.
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, 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 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 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 purpose of this Amendment No. 1 to the Registration Statement is solely
to file certain exhibits to the Registration Statement, as set forth below in
Item 16(a) of Part II.
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 GoDigital Networks
Corporation 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............................................. $15,568
NASD filing fee.................................................. 6,100
Nasdaq National Market listing fee............................... *
Printing and engraving costs..................................... *
Legal fees and expenses.......................................... *
Accounting fees and expenses..................................... *
Blue Sky fees and expenses....................................... 3,000
Transfer Agent and Registrar fees................................ *
Miscellaneous expenses........................................... *
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Total.......................................................... $ *
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* To be filed by amendment
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents, and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
Article XI of the Registrant's Restated Certificate of Incorporation
provides for the indemnification of the Registrant's directors and officers to
the fullest extent permissible under Delaware law.
The Registrant intends to enter into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for
in the Registrant's Restated Certificate of Incorporation, and intends to enter
into indemnification agreements with any new directors and executive officers
in the future.
Item 15. Recent Sales of Unregistered Securities
Since our incorporation in February 1996, we have sold and issued the
following securities:
(1) On March 1, 1996, we issued 3,120,000 shares of common stock to three
founding stockholders for an aggregate consideration of $1,560.00.
(2) On March 12, 1996, we issued 120,000 shares of common stock to a
consultant for an aggregate consideration of $60.00.
(3) On April 6, 1996, we issued 2,678,000 shares of Series A Preferred Stock
to ten investors for an aggregate consideration of $2,678,500.00.
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(4) On December 11, 1996, we issued 1,339,250 shares of Series B Preferred
Stock to ten investors for an aggregate consideration of $2,678,500.00.
(5) On August 5, 1997, we issued 1,992,476 shares of Series C Preferred
Stock to twelve investors for an aggregate consideration of $7,192,838.36.
(6) On September 22, 1998, we issued 428,574 shares of Series D Preferred
Stock to three investors for an aggregate consideration of $3,000,018.00, and
on October 15, 1998, we issued 12,143 shares of Series D Preferred Stock to
three investors for an aggregate consideration of $85,001.00.
(7) On July 30, 1999, we issued 530,000 shares of Series E Preferred Stock
to fifteen investors for an aggregate consideration of $6,625,000.00, and on
August 12, 1999, we issued 77,920 shares of Series E Preferred Stock to one
investor for an aggregate consideration of $974,000.00.
(8) On September 14, 1999, we issued an aggregate of 6,000 shares of common
stock to four consultants as consideration for past services rendered.
(9) Since our incorporation, we have issued, and there remain outstanding,
options to purchase an aggregate of 2,150,600 shares of common stock with
exercise prices ranging from $0.18 to $4.50 per share. Since our incorporation,
options to purchase 2,858,292 shares of common stock have been exercised for an
aggregate consideration of $2,578,838.78.
None of the foregoing transactions involved any underwriters, underwriting
discounts or commissions, or any public offering.
The issuance of securities described in Items 15(1) through (6) and (8) were
exempt from registration under the Securities Act in reliance on Section 4(2)
of the Securities Act as transactions by an issuer not involving a public
offering. The issuance of securities described in Item 15(7) were exempt from
registration under the Securities Act in reliance on Regulation D of the
Securities Act as transactions by an issuer not involving a public offering.
The issuance of securities described in Item 15(9) were exempt from
registration under the Securities Act in reliance on Section 4(2) or Rule 701
promulgated thereunder as transactions pursuant to compensatory benefit plans
and contracts relating to compensation.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit
Number
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1.1* Form of Underwriting Agreement
3.1** Restated Certificate of Incorporation of the Registrant
3.2** Bylaws of the Registrant
4.1* Specimen of Common Stock Certificate
4.2** Third Amended and Restated Shareholder Rights Agreement
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
10.1** Form of Indemnification Agreement between the Registrant and each of its directors and officers
10.2+ Purchase Agreement by and between BCTel and the Registrant
10.3 Multi-Tenant Industrial Triple Net Lease, dated as of June 1, 1999, by and between the Registrant
and Catellus Development
10.4** Amended and Restated 1996 Stock Plan and forms of agreements thereunder
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Exhibit
Number
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10.5** 1999 Employee Stock Purchase Plan
10.6** Change of Control Severance Agreement by and between the Registrant and each of
its officers
10.7** Change of Control Severance Agreement by and between Dennis Haar and the
Registrant
10.8+ Product Purchase Agreement between GTE Communication Systems Corporation and the
Registrant
10.9+ Agreement for Products by and between US West Communications, Inc. and E/O
Networks
10.10 Assignment, Assumption and Acceptance for Products by and among US West
Communications, Inc., E/O Networks and the Registrant
23.1** Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2** Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.3* Consent of Counsel (see Exhibit 5.1)
24.1** Power of Attorney
27.1** Financial Data Schedules
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+ The Registrant will request confidential treatment with respect to certain
portions of this exhibit. The omitted portions will be separately filed with
the Commission.
* To be filed by amendment
** Previously filed
(b) Financial Statement Schedules
Schedule Page
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Schedule II--Valuation and Qualifying Accounts........................ S-1
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 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 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 a
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 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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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 Amendment No. 1 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Fremont, State of California, on the 15th day of December, 1999.
GoDigital Networks Corporation
Dennis Haar*
By: _________________________________
Dennis Haar,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
Signature Title Date
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Francis I. Akers* Chairman of the Board December 15, 1999
____________________________________ President, Chief
Francis I. Akers Development Officer and
Director
Dennis Haar* President, Chief Executive December 15, 1999
____________________________________ Officer and Director
Dennis Haar (Principal Executive
Officer)
/s/ T. Olin Nichols Vice President, Finance, December 15, 1999
____________________________________ Chief Financial Officer
T. Olin Nichols (Principal Financial
Officer)
Douglas Carlisle* Director December 15, 1999
____________________________________
Douglas Carlisle
James Flach* Director December 15, 1999
____________________________________
James Flach
Gregorio Reyes* Director December 15, 1999
____________________________________
Gregorio Reyes
/s/ T. Olin Nichols
*By: ___________________________
T. Olin Nichols
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit
Number
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1.1* Form of Underwriting Agreement
3.1** Restated Certificate of Incorporation of the Registrant
3.2** Bylaws of the Registrant
4.1* Specimen of Common Stock Certificate
4.2** Third Amended and Restated Shareholder Rights Agreement
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
10.1** Form of Indemnification Agreement between the Registrant and each of
its directors and officers
10.2+ Purchase Agreement by and between BC Tel and the Registrant
10.3 Multi-Tenant Industrial Triple Net Lease, dated as of June 1, 1999, by
and between the Registrant and Catellus Development
10.4** Amended and Restated 1996 Stock Plan and form of agreements thereunder
10.5** 1999 Employee Stock Purchase Plan
10.6** Change of Control Severance Agreement by and between the Registrant
and each of its officers
10.7** Change of Control Severance Agreement by and between Dennis Haar and
the Registrant
10.8+ Product Purchase Agreement between GTE Communication Systems
Corporation and the Registrant
10.9+ Agreement for Products by and between US West Communications, Inc. and
E/O Networks
10.10 Assignment, Assumption and Acceptance of Agreement for Products by and
among US West Communications, Inc., E/O Networks and the Registrant
23.1** Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2** Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.3* Consent of Counsel (see Exhibit 5.1)
24.1** Power of Attorney
27.1** Financial Data Schedules
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+ The Registrant will request confidential treatment with respect to certain
portions of this exhibit. The omitted portions will be separately filed with
the Commission.
* To be filed by amendment
** Previously filed