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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 23, 1999
REGISTRATION NO. 333-76539
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DIGITAL LIGHTWAVE, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 3663 95-4313013
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
15550 LIGHTWAVE DRIVE
CLEARWATER, FL 33760
(727)442-6677
(Address, including zip code, and telephone number, including area code, of the
registrant's principal executive offices)
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STEVEN H. GRANT
EXECUTIVE VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER
DIGITAL LIGHTWAVE, INC.
15550 LIGHTWAVE DRIVE
CLEARWATER, FL 33760
(727)442-6677
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
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SCOTT D. LESTER GAIL CLAYTON HUSICK
ELIZABETH H. LEFEVER MARTIN A. WELLINGTON
ANGELA C. HILT KELLY S. BOYD
BROBECK, PHLEGER & HARRISON LLP WILSON SONSINI GOODRICH & ROSATI
ONE MARKET, SPEAR STREET TOWER 650 PAGE MILL ROAD
SAN FRANCISCO, CA 94105 PALO ALTO, CA 94304
(415) 442-0900 (650) 493-9300
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, 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, 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 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
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
Registrant in connection with the sale of Notes being registered. All amounts
are estimates except the registration fee, the NASD fee and the Nasdaq National
Market.
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AMOUNT
TO
BE PAID
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Registration fee............................................ $6,394
NASD filing fee............................................. $2,800
Nasdaq National Market fee.................................. *
Printing and engraving...................................... *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Blue sky fees and expenses.................................. *
Trustee fees and expenses................................... *
Transfer agent fees and expenses............................ *
Miscellaneous............................................... *
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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 General Corporation Law of the state of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceedings, whether civil, criminal,
administrative or investigative (other than action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include 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, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
The Company's Certificate of Incorporation provides that the Company shall
indemnify its directors to the fullest extent permitted by law either now or
hereafter. Article 5 of the Amended and Restated Bylaws of the Company provides
for
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indemnification of the officers and directors of the Company to the fullest
extent permitted by applicable law. The Company has also entered into an
agreement with each of its directors and certain of its officers, a form of
which is attached as Exhibit 10.03 hereto, wherein it has agreed to indemnify
each of them to the fullest extent permitted by law. Reference is also made to
Section of the Underwriting Agreement contained in Exhibit 1.01 hereto,
indemnifying officers and directors of the Company against certain civil
liabilities that may be incurred in connection with this offering, including
certain liabilities under the Securities Act of 1933, as amended (the
"Securities Act").
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
(1) The Registrant granted options to the persons identified below as
follows:
(a) On March 17, 1995, Digital Lightwave, Inc., a California
corporation (the "Predecessor"), granted an option, solely in the event of
an initial public offering (an "IPO") to purchase $150,000 worth of shares
of Common Stock at a price equal to 50% of the IPO effective price per
share to Michael Baum and George Murgatroyd in reliance on Sections 3(b)
and 4(2) of the Securities Act;
(b) On June 19, 1995, the Predecessor granted an option, solely in the
event of an IPO of the Predecessor, to purchase $400,000 worth of shares of
Common Stock at a price equal to 1% of the IPO effective price per share to
Stanley P. Zurn in reliance on Sections 3(b) and 4(2) of the Securities
Act;
(c) On June 22, 1995, the Predecessor granted an option, solely in the
event of an IPO of the Predecessor, to purchase $30,000 worth of shares of
Common Stock at a price equal to 50% of the IPO effective price per share
to Edward F. Guignon in reliance on Sections 3(b) and 4(2) of the
Securities Act;
(d) On June 23 1995, the Predecessor granted an option, solely in the
event of an IPO of the Predecessor, to purchase $30,000 worth of shares of
Common Stock at a price equal to 50% of the IPO effective price per share
to Paul J. Hedlund in reliance on Sections 3(b) and 4(2) of the Securities
Act;
(e) On July 12 1995, the Predecessor granted an option, solely in the
event of an IPO of the Predecessor, to purchase $21,000 worth of shares of
Common Stock at a price equal to 50% of the IPO effective price per share
to Margaret A. Guignon in reliance on Sections 3(b) and 4(2) of the
Securities Act;
(f) On August 15, 1995, the Predecessor granted an option to purchase
200,000 shares of Common Stock to Michael Baum and Paul J. Hedlund upon
conversion of a promissory note evidencing a loan made by such persons to
the Registrant in reliance on Sections 3(b) and 4(2) of the Securities Act;
and
(g) On September 7, 1995, the Predecessor granted an option, solely in
the event of an IPO of the Predecessor, to purchase $70,000 worth of shares
of Common Stock at a price equal to 50% of the IPO effective price per
share to Tony Charles Lonstein in reliance on Sections 3(b) and 4(2) of the
Securities Act.
(2) On January 2, 1996, the Registrant issued a three-year subordinated
promissory note in the original principal amount of $1 million and a warrant to
purchase 200,000 shares of Common Stock at an exercise price of $5.00 per share
to Renato Kasinsky, a citizen and resident of Brazil, in reliance on Regulation
S promulgated under the Securities Act.
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(3) On March 12, 1996, the Registrant issued an aggregate of 521,030 shares
of Common Stock and warrants to purchase 1,050,002 shares of Common Stock at an
exercise price of $5.00 per share to several noteholders of the Company, other
than those described in paragraph (1) above, in consideration of the
satisfaction of indebtedness of the Registrant in an aggregate amount of
$2,605,041 in reliance on Sections 3(b) and 4(2) of the Securities Act.
(4) On March 18, 1996, the Registrant issued 20,000,000 shares of Common
Stock to the sole stockholder of the Predecessor, upon the effective date of the
merger between the Registrant and the Predecessor in reliance on Section 3(a)(9)
of the Securities Act.
(5) On March 28, 1996, the Registrant issued 200,000 shares of Common Stock
for an aggregate purchase price of $263,192 to the persons identified in
subparagraph 1(f) above pursuant to the exercise of their option to purchase
shares of Common Stock described in subparagraph 1(f) in satisfaction of the
indebtedness evidencing their loan to the Registrant in reliance on Sections
3(b) and 4(2) of the Securities Act.
(6) Between March 31, 1996 and May 15, 1996, the Registrant issued an
aggregate of 448,212 shares of Common Stock to 57 persons for an aggregate of
$4,033,710 (consisting of cash subscriptions and the surrender of $2,449,000 of
the Company's indebtedness) in reliance on Sections 3(b) and 4(2) of the
Securities Act. Holders of the options described in subparagraphs 1(a), 1(c),
1(d) and 1(e) above surrendered such options in exchange for warrants
exercisable for an aggregate of 18,748 shares of Common Stock at a price of
$9.00 per share.
(7) On May 27, 1996, the Registrant issued 66,667 shares of Common Stock to
Bulldog Capital Partners for an aggregate purchase price of $1,200,000 in
reliance on Sections 3(b) and 4(2) of the Securities Act.
(8) On May 31, 1996, the Company issued an aggregate of $750,000 of its 18%
subordinated promissory notes due May 31, 1997 to 11 persons in reliance on
Sections 3(b) and 4(2) of the Securities Act.
(9) On July 29, 1996, the Registrant issued 26,668 shares of Common Stock
for an aggregate purchase price of $4,000 to the person identified in
subparagraph (1)(b) above pursuant to the exercise of his option to purchase
shares of Common Stock in reliance on Sections 3(b) and 4(2) of the Securities
Act.
(10) On July 29, 1996, the Registrant issued 4,667 shares of Common Stock
for an aggregate purchase price of $35,000 to the person identified in
subparagraph 1(g) above pursuant to the exercise of his option to purchase
shares of Common Stock in reliance on Sections 3(b) and 4(2) of the Securities
Act.
(11) During August and September 1996, the Registrant issued an aggregate
of 1,051,669 shares of Common Stock upon the exercise of warrants described in
items (3) and (6) above in reliance on Sections 3(b) and 4(2) of the Securities
Act and issued 200,000 shares of Common Stock upon the exercise of the warrants
described in item (2) above in reliance on Regulation S of the Securities Act.
(12) During the period August 1993 to December 1996, the Registrant granted
incentive and non-statutory stock options to employees, officers, directors and
consultants under the 1996 Stock Option Plan which were exercisable into an
aggregate of 1,250,037 shares of its Common Stock, none of which have been
issued upon exercise. These options are subject to vesting provisions following
their respective dates of grant and were issued in reliance on Sections 3(b) and
4(2) of the Securities Act.
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(13) On March 31, 1999, the Company entered into a financing agreement with
certain investors pursuant to which the Company issued $3.0 million of 9%
Secured Bridge Notes due January 17, 2000. In connection with the financing
agreement, the Company issued warrants to purchase an aggregate of 550,000
shares of the Company's common stock at an exercise price of $2.75 per share,
the market price of the stock on the date prior to the issuance of the warrants.
The warrants have a term of five years from the date of issuance. The Company
has agreed to register the warrants and the common stock issuable upon exercise
thereof under the Securities Act of 1933. The warrants were issued in reliance
on section 3(b) and 4(2) of the Securities Act.
No underwriting discounts or commissions were paid in connection with any
of the foregoing transactions.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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1.01* -- Form of Underwriting Agreement
3.01(1) -- Certificate of Incorporation of the Company
3.02(1) -- Amendment to Certificate of Incorporation of the Company
dated January 8, 1997
3.03(1) -- Amended and Restated By-laws of the Company
4.01(1) -- Specimen Certificate for the Common Stock
4.02* -- Form of Indenture
4.03* -- Form of Notes
5.01* -- Opinion of Brobeck Phleger & Harrison LLP
10.01(1) -- Lease Agreement dated October 7, 1994, between the Company
and Atrium at Clearwater, Limited
10.02(1) -- First Lease Agreement Amendment dated February 16, 1996,
between the Company and Atrium at Clearwater, Limited
10.03(1) -- Form of Indemnification Agreement between the Company and
officers and directors of the Company
10.04(1) -- Digital Lightwave, Inc. 1996 Stock Option Plan
10.05(3) -- Digital Lightwave, Inc. Employee Stock Purchase Plan
10.06(2) -- Second Lease Amendment, dated September 10, 1997, between
the Company and Atrium At Clearwater, Limited
10.07(2) -- Lease Agreement, dated June 30, 1997, between the Company
and Pinellas Business Center, Inc.
10.08(2) -- Lease Agreement, dated September 26, 1997, between the
Company and Monmouth/Atlantic Realty Associates
10.09(4) -- L.P. Lease Agreement, dated January 9, 1998, between the
Company and Orix Hogan-Burt Pinellas Venture.
10.10(4) -- First Lease Amendment, dated February 18, 1998, between the
Company and Orix Hogan-Burt Pinellas Venture.
</TABLE>
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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10.11(4) -- First Lease Amendment, dated September 25, 1997, between the
Company and Monmouth/Atlantic Realty Associates L.P.
10.12(4) -- Second Lease Amendment, dated February 23, 1998, between the
Company and Monmouth/Atlantic Realty Associates L.P.
10.13(4) -- Employment Agreement, dated February 27, 1998, between the
Company and Steven H. Grant.
10.14(5) -- Accounts Receivable Agreement dated December 28, 1998
between the Company and Bankers Capital.
10.15(5) -- Stock Option Agreement dated November 13, 1998 among the
Company, Dr. Brian J. Zwan and Hugh Brian Haney
10.16(5) -- Mutual General Release dated November 13, 1998, by and among
Hugh Brian Haney, Great American Fun Corp., Great American
Fun (HK) Ltd., Dr. Bryan J. Zwan, the Company and Logical
Magic, Inc.
10.17(5) -- Settlement Agreement dated November 13, 1998 by and among
Hugh Brian Haney, Dr. Bryan J. Zwan and the Company.
10.18(5) -- Letter Agreement dated as of December 31, 1998 between the
Company and Gerry Chastelet.
10.19(5) -- Letter Agreement dated April 13, 1998 and addendum thereto
dated February 9, 1999 between the Company and George J.
Matz.
10.20(5) -- Form of Stock Purchase Agreement, dated March 31, 1999,
between the Company and certain Purchasers, with exhibits
thereto.
10.21(5) -- Letter of Commitment between the Company and Emergent Asset
Based Lending, L.L.C. d/b/a/ Emergent Business Capital,
dated March 31, 1999.
10.22(5) -- Letter Agreement dated as of September 8, 1997 between the
Company and Ali Haider as amended and supplemented by the
Letter Agreements dated July 27, 1998 and August 4, 1998.
21.01(5) -- Subsidiaries of the Registrant
23.01 -- Consent of PricewaterhouseCoopers LLP
23.02* -- Consent of Brobeck Phleger & Harrison LLP
24.01 -- Power of Attorney (included on the signature page of this
Registration Statement)
25.01* -- Statement of Eligibility of Trustee
</TABLE>
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(1) Incorporated by reference to the similarly described exhibits filed in
connection with the Registrant's Registration Statement on Form S-1, File
No. 333-09457, declared effective by the Securities and Exchange Commission
on February 5, 1997.
(2) Incorporated by reference to the exhibit filed in connection with the
Registrant's Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1997.
(3) Incorporated by reference to the exhibit filed in connection with the
Registrant's Registration Statement on Form S-8, File No. 333-35375.
(4) Incorporated by reference to the similarly described exhibits filed in
connection with the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
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(5) Incorporated by reference to the similarly described exhibits filed in
connection with the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998.
* To be filed by Amendment.
(b) Financial Statement Schedules
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
(1) 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.
(2) 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 provisions described in Item 14, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(3) The undersigned Registrant hereby undertakes:
(a) That for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of the 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 the registration statement as of the time it was declared
effective.
(b) That for the purposes 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
"Securities Act"), the Registrant certifies that it has duly caused this
Pre-Effective Amendment No. 1 to Registration Statement No. 333-76539 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Clearwater, Florida, on the 23rd day of April, 1999.
DIGITAL LIGHTWAVE, INC.
By: /s/ GERRY CHASTELET
-----------------------------------
Gerry Chastelet
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this Pre-Effective
Amendment No. 1 to Registration Statement No. 333-76539 has been signed by the
following persons in the capacities and on the dates indicated.
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NAME TITLE DATE
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<S> <C> <C>
* Chairman of the Board April 23, 1999
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Dr. Bryan J. Zwan
/s/ GERRY CHASTELET President, Chief Executive April 23, 1999
- ------------------------------------------------ Officer and Director
Gerry Chastelet (Principal Executive
Officer)
/s/ STEVEN H. GRANT Executive Vice President, April 23, 1999
- ------------------------------------------------ Finance, Chief Financial
Steven H. Grant Officer and Secretary
(Principal Financial and
Accounting Officer)
* Director April 23, 1999
- ------------------------------------------------
Dr. William F. Hamilton
* Director April 23, 1999
- ------------------------------------------------
William Seifert
*By: /s/ GERRY CHASTELET April 23, 1999
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Gerry Chastelet, Attorney-in-Fact
</TABLE>
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