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As filed with the Securities and Exchange Commission on January 2, 2001
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NETSCOUT SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 04-2837575
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4 TECHNOLOGY PARK DRIVE
WESTFORD, MA 01886
(978) 614-4000
(Address, including zip code, and
telephone number, including area code, of
Registrant's principal executive offices)
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ANIL K. SINGHAL, PRESIDENT AND CHIEF EXECUTIVE OFFICER
NETSCOUT SYSTEMS, INC.
4 TECHNOLOGY PARK DRIVE
WESTFORD, MA 01886
(978) 614-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of all communications, including all communications sent to
the agent for service, should be sent to:
JOHN A. MELTAUS, ESQ.
MIGUEL J. VEGA, ESQ.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered Registered Share (1) Price (1) Registration Fee (1)
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share 2,095,439 $ 9.875 $ 20,692,460.13 $ 5,173.12
===================================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933,
as amended, solely for purposes of calculating the registration fee,
based upon the average of the high and low prices per share as
reported on the Nasdaq National Market on December 29, 2000.
---------------------------
NETSCOUT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL NETSCOUT 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 SECTION 8(A), MAY
DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell securities, and we are not soliciting offers to buy these securities.
PROSPECTUS
SUBJECT TO COMPLETION, DATED JANUARY 2, 2001
NETSCOUT SYSTEMS, INC.
2,095,439 SHARES
COMMON STOCK
This Prospectus relates to the resale of up to an aggregate of
2,095,439 shares of our common stock issued to the stockholders of NextPoint
Networks, Inc. in connection with our acquisition of NextPoint. None of the
proceeds from the resale of the shares will be received by us. The selling
stockholders may sell the shares at market prices prevailing at the time of
the sale or at prices otherwise negotiated.
THE COMMON STOCK OFFERED IN THIS PROSPECTUS INVOLVE A HIGH DEGREE OF
RISK. CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 6.
Our common stock is traded on the Nasdaq National Market under the symbol
"NTCT."
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy of this prospectus. Any contrary representation is a criminal offense.
The date of this prospectus is ___________________, 2001.
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TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
Incorporation by Reference....................................................................... 2
Forward-Looking Information...................................................................... 3
Where You Can Find More Information.............................................................. 3
Summary.......................................................................................... 4
Risk Factors..................................................................................... 6
Use of Proceeds.................................................................................. 12
Selling Stockholders............................................................................. 13
Plan of Distribution............................................................................. 15
Legal Matters.................................................................................... 16
Experts.......................................................................................... 17
</TABLE>
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INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with the SEC. This means that we can disclose important
information to you by referring you to those documents. The information we
incorporate by reference is considered a part of this prospectus, and later
information we file with the SEC will automatically update and supersede this
information. We incorporate by reference our documents listed below and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 until this offering is completed:
- Annual Report on Form 10-K for the year ended March 31, 2000 and
related exhibits;
- Current Report on Form 8-K filed on July 20, 2000;
- Current Report on Form 8-K/A filed on September 20, 2000;
- Current Report on Form 8-K filed on January 2, 2001;
- Quarterly Report on Form 10-Q for the quarters ended June 30, 2000
and September 30, 2000 and related exhibits;
- Quarterly Report on Form 10-Q/A for the quarter ended September 30,
2000 filed on November 29, 2000; and
- The description of our capital stock contained in the Registration
Statement on Form 8-A which was filed with the SEC on June 3, 1999.
You may request these documents in writing or by telephone. We will
provide to you, at no cost, a copy of any or all information incorporated by
reference in the registration statement, of which this prospectus is a part.
Requests should be directed to our Investor Relations Department at our
principal offices which are located at 4 Technology Park Drive, Westford, MA
01886. You may contact our investor relations department by calling us at (978)
614-4000.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. The selling stockholders
are not making an offer of these securities in any state where the
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offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of the document.
FORWARD LOOKING INFORMATION
This prospectus includes "forward-looking statements" within the meaning
of Section 27A of the Securities Act of 1933. This section provides a "safe
harbor" for forward-looking statements to encourage companies to provide
prospective information about themselves so long as they identify these
statement as forward-looking and provide meaningful cautionary statements
identifying important factors that could cause actual results to differ from the
projected results. All statements other than statements of historical fact we
make in this prospectus or in any document incorporated by reference are
forward-looking statements. In particular, the statements regarding industry
prospects and our future results of operations or financial position are
forward-looking statements. Forward-looking statements reflect our current
expectations and are inherently uncertain. Our actual results may differ
significantly from our expectations. The section entitled "Risk Factors"
describes some, but not all, of the factors that could cause these differences.
NetScout is a registered trademark, and the NetScout logo, nGenius,
nGenius Application Service Level Manager, nGenius Real-Time Monitor, nGenius
Capacity Planner are trademarks of NetScout Systems, Inc. All other trade names
and trademarks referred to in this Registration Statement are the property of
their respective owners.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You can inspect and
copy the registration statement on Form S-3 of which this prospectus is a part,
as well as reports, proxy statements and other information filed by us, at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
You can obtain copies of such material from the Public Reference Room of the SEC
at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. You can
call the SEC at 1-800-SEC-0330 for information regarding the operation of its
Public Reference Room. The SEC also maintains an Internet site at
http://www.sec.gov that contains reports, proxy and information statements, and
other information regarding registrants, like us, that file electronically.
This prospectus provides you with a general description of the common
stock being registered. This prospectus is part of a registration statement that
we have filed with the SEC. To see more detail, you should read the exhibits and
schedules filed with, or incorporated by reference into, our registration
statement.
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SUMMARY
All selling stockholders were former stockholders of NextPoint Networks,
Inc. The selling stockholders acquired the shares being offered in this
prospectus as a result of the acquisition by us of NextPoint Networks, Inc. on
July 7, 2000. All selling stockholders must deliver a prospectus to purchasers
at or prior to the time of any sale of the common stock offered in this
prospectus.
NETSCOUT SYSTEMS, INC.
THIS BUSINESS OVERVIEW HIGHLIGHTS INFORMATION CONTAINED ELSEWHERE IN THIS
PROSPECTUS, INCLUDING INFORMATION CONTAINED IN CERTAIN DOCUMENTS INCORPORATED BY
REFERENCE INTO THIS PROSPECTUS. THIS BUSINESS OVERVIEW DOES NOT CONTAIN ALL OF
THE INFORMATION THAT YOU SHOULD CONSIDER BEFORE INVESTING IN THE COMMON STOCK.
YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY, INCLUDING THE "RISK FACTORS"
SECTION AND THE FINANCIAL STATEMENTS AND THE NOTES TO THOSE STATEMENTS, BEFORE
MAKING AN INVESTMENT DECISION.
NetScout designs, develops, manufactures, markets and supports a
family of products that enable businesses and network service providers to
manage proactively and to enhance the performance of computer networks,
including the ability of computer networks to deliver critical business
applications and content to end-users. Our nGenius Performance Management
system monitors and provides information regarding the flow of software
applications, including web-based and e-commerce applications, and content
across the computer network, as well as the performance of the underlying
computer network. Our nGenius Performance Management system consists of data
collection tools and analysis and presentation software. Our data collection
tools collect, aggregate and analyze comprehensive, infrastructure-wide
information from a wide range of networked applications and technologies.
Using this data, our analysis and presentation software provides specific and
current information in an easy-to-use, graphical format allowing for
in-depth, efficient and accurate evaluation of software applications and
computer networks.
Business enterprises increasingly rely on their software applications and
computer networks as strategic assets that are essential to business operations.
Even minor computer network malfunctions can result in significant business
interruptions, lost revenue, decreased productivity and customer
dissatisfaction. As a result, businesses are recognizing the critical importance
of effective infrastructure performance management.
To support the growing number of users and the demands of users for
faster and more reliable computer network access, new computer network
technologies and software products are continually being introduced. This has
resulted in larger, highly-complex, geographically dispersed infrastructures
that are very difficult to manage.
Our nGenius Performance Management system provides a proactive,
integrated approach to infrastructure performance management that enables
businesses to understand, anticipate and address computer network, software
application and content performance problems, while improving the alignment
of their computer resources with their business strategies. We believe that
our nGenius Performance Management system provides the most comprehensive
infrastructure performance management system available through a single
vendor. Our nGenius Performance Management system provides the following key
functions:
- REAL TIME MONITORING AND TROUBLESHOOTING - Allows current monitoring
and trend analysis of network usage, performance and error
conditions which helps network managers prevent
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network malfunctions. when network problems do occur, detailed
information expedites troubleshooting to minimize the impact.
- APPLICATION SERVICE LEVEL MONITORING/REPORTING - Measures and
provides detailed, current information on computer network and
software application response times. This information enables
network managers to optimize network configuration and prioritize
software applications.
- CAPACITY PLANNING - Profiles and predicts computer network, software
application and device traffic patterns to establish future network
resource requirements. Allows network managers to make informed
infrastructure spending decisions.
- USAGE-BASED BILLING - Provides information on network usage by
users, departments or applications. Enables allocation or billing of
network costs according to network usage and a means of influencing
network user behavior.
NetScout's products are used by large companies and service providers,
many of which are Fortune 500 businesses. Newly acquired technology from
NextPoint Networks, Inc. has allowed us to extend further our nGenius
Performance Management system into the enterprise and service provider markets.
NetScout sells its products through indirect distribution channels and
a direct sales force. Our relationship with Cisco Systems, Inc., our largest
indirect channel partner, provides us with early insight into the development
of networking technologies by Cisco, and incentives from Cisco to develop
performance management products that align with those technologies. In
addition, our relationship with Cisco includes close collaboration between
the Cisco sales organization and ours to jointly identify opportunities and
deliver solutions to customers. This collaboration enables us to have direct,
ongoing relationships with the majority of our customers derived through
Cisco.
NetScout was incorporated in Massachusetts in June 1984 under the name
Frontier Software Development, Inc. We were primarily an engineering consulting
company until 1992 when we began developing the NetScout family of products. In
April 1993, we reincorporated in Delaware and, in March 1997, we changed our
name to NetScout Systems, Inc. Our principal offices are located at 4 Technology
Park Drive, Westford, Massachusetts 01886, and our telephone number is (978)
614-4000.
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RISK FACTORS
OUR OPERATING RESULTS AND FINANCIAL CONDITION HAVE VARIED IN THE PAST AND
MAY IN THE FUTURE VARY SIGNIFICANTLY DEPENDING ON A NUMBER OF FACTORS. EXCEPT
FOR THE HISTORICAL INFORMATION IN THIS REPORT, THE MATTERS CONTAINED IN THIS
REPORT INCLUDE FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES.
THE FOLLOWING FACTORS, AMONG OTHERS, COULD CAUSE ACTUAL RESULTS TO DIFFER
MATERIALLY FROM THOSE CONTAINED IN FORWARD-LOOKING STATEMENTS MADE IN THIS
REPORT. ADDITIONAL RISKS THAT ARE NOT YET IDENTIFIED OR THAT WE CURRENTLY THINK
ARE IMMATERIAL MAY ALSO IMPAIR OUR BUSINESS OPERATIONS. SUCH FACTORS, AMONG
OTHERS, MAY HAVE A MATERIAL ADVERSE EFFECT UPON OUR BUSINESS, RESULTS OF
OPERATIONS AND FINANCIAL CONDITION. THE TRADING PRICE OF OUR COMMON STOCK COULD
DECLINE DUE TO ANY OF THESE RISKS, AND YOU COULD LOSE ALL OR PART OF YOUR
INVESTMENT. YOU SHOULD ALSO REFER TO THE OTHER INFORMATION SET FORTH IN THIS
PROSPECTUS, INCLUDING OUR CONSOLIDATED FINANCIAL STATEMENTS AND THE RELATED
NOTES.
A REDUCTION IN ORDERS FROM CISCO SYSTEMS, INC. WOULD MATERIALLY ADVERSELY
AFFECT OUR BUSINESS.
Our operating results and financial condition for a particular fiscal
period would be materially adversely affected if there is a substantial
reduction in orders from Cisco Systems, Inc. or if we are unable to complete one
or more Cisco orders planned for that period. We derive a significant portion of
our revenue from Cisco, which distributes some of our products under its private
label and incorporates some of our software in its products. Cisco accounted for
50% of our total revenue for the fiscal year ended March 31, 2000 and 56% of our
total revenue for the six months ended September 30, 2000. Our future
performance is significantly dependent upon Cisco's continued promotion of our
products. Cisco has no obligation to purchase any products from us. Further, we
do not control Cisco's distribution of our products, whether incorporated into
Cisco's products or sold under private label. Finally, Cisco may decide to
internally develop products that compete with our solution or partner with our
competitors or bundle or sell competitors' solutions, possibly at lower prices.
If our relationship with Cisco were terminated or adversely affected for any
reason, our business, operating results and financial condition would be
materially adversely affected.
OUR QUARTERLY OPERATING RESULTS MAY FLUCTUATE.
Our quarterly revenue and operating results are difficult to predict and
may fluctuate significantly from quarter to quarter. Most of our expenses, such
as employee compensation and rent, are relatively fixed in the short term.
Moreover, our expense levels are based, in part, on our expectations regarding
future revenue levels. As a result, if revenue for a particular quarter is below
our expectations, we may not be able to reduce operating expenses
proportionately for that quarter, and therefore this revenue shortfall would
have a disproportionately negative effect on our operating results for that
quarter.
Our quarterly revenue may fluctuate as a result of a variety of factors,
many of which are outside our control, including the following:
- the market for network and application performance management
solutions is in an early stage of development and therefore demand
for our solutions may be uneven;
- the timing and receipt of orders from customers, particularly Cisco,
especially in light of our lengthy sales cycle;
- the timing and market acceptance of new products or product
enhancements by us or our competitors;
- distribution channels through which our products are sold could
change;
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- the timing of hiring sales personnel and the speed at which such
personnel become productive;
- we may not be able to anticipate or adapt effectively to developing
markets and rapidly changing technologies; and
- our prices or the prices of our competitors' products may change.
We operate with minimal backlog because our products typically are shipped
shortly after orders are received. Therefore, product revenue in any quarter is
substantially dependent on orders booked and shipped in that quarter and revenue
for any future quarter is not predictable to any degree of certainty. Therefore,
any significant deferral of orders for our products would cause a shortfall in
revenue for that quarter.
OUR RELIANCE ON SOLE SOURCE SUPPLIERS COULD ADVERSELY AFFECT OUR BUSINESS.
Many components that are necessary for the assembly of our probes are
obtained from separate sole source suppliers or a limited group of suppliers.
These components include some of our network interface cards, which are produced
for us solely by SBS Technologies, Inc., SysKonnect, Inc. and Adaptec, Inc. Our
reliance on sole or limited suppliers involves several risks, including a
potential inability to obtain an adequate supply of required components and
reduced control over pricing, quality and timely delivery of components. We do
not generally maintain long-term agreements with any of our suppliers or large
volumes of inventory. Our inability to obtain adequate deliveries or the
occurrence of any other circumstance that would require us to seek alternative
sources of these components would affect our ability to ship our products on a
timely basis. This could damage relationships with current and prospective
customers, cause shortfalls in expected revenue and materially adversely affect
our business, operating results and financial condition.
OUR CONTINUED GROWTH DEPENDS ON OUR ABILITY TO EXPAND OUR SALES FORCE.
We must increase the size of our sales force in order to increase our
direct sales and support our indirect sales channels. Because our products are
very technical, sales people require a long period of time to become productive,
typically three to six months. This lag in productivity, as well as the
challenge of attracting qualified candidates, may make it difficult to meet our
sales force growth targets. Further, we may not generate sufficient sales to
offset the increased expense resulting from growing our sales force. If we are
unable to successfully expand our sales capability, our business, operating
results and financial condition could be materially adversely affected.
OUR SUCCESS DEPENDS ON OUR ABILITY TO EXPAND AND MANAGE INDIRECT DISTRIBUTION
CHANNELS.
To increase our sales, we must further expand and manage our indirect
distribution channels, including original equipment manufacturers, distributors,
resellers, systems integrators and service providers. Sales to our indirect
distribution channels accounted for 81% and 74% of our total revenue for the
fiscal year ended March 31, 2000 and for the six months ended September 30,
2000, respectively. Sales to Cisco accounted for 51% and 56% of our total
revenue for the fiscal years ended March 31, 2000 and for the six months ended
September 30, 2000. Our indirect channel partners have no obligation to purchase
any products from us. In addition, they could internally develop products, which
compete with our solutions or partner with our competitors or bundle or resell
competitors' solutions, possibly at lower prices. Our inability to expand and
manage our relationships with our partners, the inability or unwillingness of
our partners to effectively market and sell our products or the loss of existing
partnerships could have a material adverse effect on our business, operating
results and financial condition.
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IF WE FAIL TO INTRODUCE NEW PRODUCTS AND ENHANCE OUR EXISTING PRODUCTS TO KEEP
UP WITH RAPID TECHNOLOGICAL CHANGE, DEMAND FOR OUR PRODUCTS MAY DECLINE.
The market for network and application performance management solutions
is relatively new and is characterized by rapid changes in technology, evolving
industry standards, changes in customer requirements and frequent product
introductions and enhancements. Our success is dependent upon our ability to
meet our customers' needs, which are driven by changes in computer networking
technologies and the emergence of new industry standards. In addition, new
technologies may shorten the life cycle for our products or could render our
existing or planned products obsolete. If we are unable to develop and introduce
new network and application performance management products or enhancements to
existing products in a timely and successful manner, it would have a material
adverse effect on our business, operating results and financial condition.
WE FACE SIGNIFICANT COMPETITION FROM OTHER TECHNOLOGY COMPANIES.
The market for network and application performance management solutions
is intensely competitive. We believe customers make network management system
purchasing decisions based primarily upon the following factors:
- product performance, functionality and price;
- name and reputation of vendor;
- distribution strength; and
- alliances with industry partners.
We compete with probe vendors, such as Agilent Technologies, providers of
network performance management solutions, such as Concord Communications, Inc.
and Micromuse, Inc., and providers of portable network traffic analyzers, such
as Network Associates, Inc. New vendors of network performance monitoring and
enhancing equipment are emerging to compete with us, including Packeteer, Inc.
In addition, leading network equipment providers could offer their own or
competitors' solutions in the future. Many of our current and potential
competitors have longer operating histories, greater name recognition and
substantially greater financial, management, marketing, service, support,
technical, distribution and other resources than we do. Therefore, they may be
able to respond more quickly than we can to new or changing opportunities,
technologies, standards or customer requirements.
As a result of these and other factors, we may not be able to compete
effectively with current or future competitors, which would have a material
adverse effect on our business, operating results and financial condition.
THE SUCCESS OF OUR BUSINESS DEPENDS ON THE CONTINUED GROWTH IN THE MARKET FOR
AND THE COMMERCIAL ACCEPTANCE OF NETWORK AND APPLICATION PERFORMANCE MANAGEMENT
SOLUTIONS.
We derive all of our revenue from the sale of products and services that
are designed to allow our customers to manage the performance of computer
networks and software applications. The market for network and application
performance management solutions is in an early stage of development. Therefore,
we cannot accurately assess the size of the market and may be unable to predict
the appropriate features and prices for products to address the market, the
optimal distribution strategy and the competitive environment that will develop.
In order for us to be successful, our potential customers must recognize the
value of more sophisticated network and application performance management
solutions,
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decide to invest in the management of their networks and the performance of
software applications and, in particular, adopt our management solutions. Any
failure of this market to continue to develop would materially adversely affect
our business, operating results and financial condition. Businesses may choose
to outsource the management of their networks and applications to service
providers. Our business may depend on our ability to develop relationships with
these service providers and successfully market our products to them.
FAILURE TO PROPERLY MANAGE GROWTH COULD ADVERSELY AFFECT OUR BUSINESS.
We have been experiencing a period of rapid growth over the past several
years. We plan to continue to expand our business by hiring additional
personnel. The growth in size and complexity of our business and our customer
base has been and will continue to be a significant challenge to our management
and operations. To manage further growth effectively we must enhance our
financial and accounting systems and controls, integrate new personnel and
manage expanded operations. If we are unable to effectively manage our growth,
our costs, the quality of our products, the effectiveness of our sales
organization, and our ability to retain key personnel, our business, operating
results and financial condition could be materially adversely affected.
LOSS OF KEY PERSONNEL COULD ADVERSELY AFFECT OUR BUSINESS.
Our future success depends to a significant degree on the skills,
experience and efforts of our co-founders Anil Singhal and Narendra Popat. We
also depend on the ability of our other executive officers and senior managers
to work effectively as a team. The loss of one or more of our key personnel
could have a material adverse effect on our business, operating results and
financial condition.
WE MUST HIRE AND RETAIN SKILLED PERSONNEL IN A TIGHT LABOR MARKET.
Qualified personnel are in great demand throughout the computer software,
hardware and networking industries. The demand for qualified personnel is
particularly acute in the New England area due to the large number of software
and high technology companies and the low unemployment in the region. Our
success depends in large part upon our ability to attract, train, motivate and
retain highly skilled employees, particularly sales and marketing personnel,
software engineers, and technical support personnel. We have had difficulty
hiring and retaining these highly skilled employees in the past. If we are
unable to attract and retain the highly skilled technical personnel that are
integral to our sales, marketing, product development and customer support
teams, the rate at which we can generate sales and develop new products or
product enhancements may be limited. This inability could have a material
adverse effect on our business, operating results and financial condition.
OUR SUCCESS DEPENDS ON OUR ABILITY TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS.
Our business is heavily dependent on our intellectual property. We rely
upon a combination of copyright, trademark and trade secret laws and
non-disclosure and other contractual arrangements to protect our proprietary
rights. The reverse engineering, unauthorized copying or other misappropriation
of our intellectual property could enable third parties to benefit from our
technology without compensating us. Legal proceedings to enforce our
intellectual property rights could be burdensome and expensive and could involve
a high degree of uncertainty. In addition, legal proceedings may divert
management's attention from growing our business. There can be no assurance that
the steps we have taken to protect our intellectual property rights will be
adequate to deter misappropriation of proprietary information, or that we will
be able to detect unauthorized use by third parties and take appropriate steps
to enforce our intellectual property rights. Further, we also license software
from third parties for use as
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part of our products, and if any of these licenses were to terminate, we may
experience delays in product shipment until we develop or license alternative
software.
OTHERS MAY CLAIM THAT WE INFRINGE ON THEIR INTELLECTUAL PROPERTY RIGHTS.
We may be subject to claims by others that our products infringe on their
intellectual property rights. These claims, whether or not valid, could require
us to spend significant sums in litigation, pay damages, delay product
shipments, reengineer our products or acquire licenses to such third-party
intellectual property. We may not be able to secure any required licenses on
commercially reasonable terms or secure them at all. We expect that these claims
will become more frequent as more companies enter the market for network and
application performance management solutions. Any of these claims or resulting
events could have a material adverse effect on our business, operating results
and financial condition.
IF OUR PRODUCTS CONTAIN ERRORS, THEY MAY BE COSTLY TO CORRECT, REVENUE MAY BE
DELAYED, WE COULD GET SUED AND OUR REPUTATION COULD BE HARMED.
Despite testing by our customers and us, errors may be found in our
products after commencement of commercial shipments. If errors are discovered,
we may not be able to successfully correct them in a timely manner or at all. In
addition, we may need to make significant expenditures of capital resources in
order to eliminate errors and failures. Errors and failures in our products
could result in loss of or delay in market acceptance of our products and could
damage our reputation. If one or more of our products fails, a customer may
assert warranty and other claims for substantial damages against us. The
occurrence or discovery of these types of errors or failures could have a
material adverse effect on our business, operating results and financial
condition.
OUR SUCCESS DEPENDS ON OUR ABILITY TO EXPAND AND MANAGE OUR INTERNATIONAL
OPERATIONS.
Sales outside North America accounted for a significant portion of our
total revenue for the fiscal year ended March 31, 2000 and for the six months
ended September 30, 2000, respectively. We currently expect international
revenue to continue to account for a significant percentage of total revenue in
the future. We believe that we must continue to expand our international sales
activities in order to be successful. Our international sales growth will be
limited if we are unable to:
- expand international indirect distribution channels;
- hire additional sales personnel;
- adapt products for local markets; or
- manage geographically dispersed operations.
The major countries outside of North America, in which we do, or intend to do,
businesses are the United Kingdom, Germany and Japan. Our international
operations, including our operations in the United Kingdom, Germany and Japan,
are generally subject to a number of risks, including:
- failure of local laws to provide the same degree of protection
against infringement of our intellectual property;
- protectionist laws and business practices that favor local
competitors;
- dependence on local indirect channel partners;
- multiple conflicting and changing governmental laws and regulations;
- longer sales cycles;
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- greater difficulty in collecting accounts receivable;
- foreign currency exchange rate fluctuations; and
- political and economic instability.
OUR BUSINESS MAY BE NEGATIVELY AFFECTED BY OUR FAILURE TO SUCCESSFULLY INTEGRATE
WITH NEXTPOINT OR TO RETAIN NEXTPOINT EMPLOYEES.
On July 7, 2000 we acquired NextPoint Networks, Inc. The anticipated
benefits of the merger may not be achieved unless, among other things, the
operations, products, services and personnel of NextPoint are successfully
combined with ours in a timely and efficient manner. If the anticipated benefits
of the business combination are not achieved or are not achieved in a timely
fashion, then the merger could have an adverse effect on our operating results
for a significant period of time that cannot now be determined. Furthermore, the
diversion of the attention of management, and any difficulties encountered in
the transition process, could have an adverse impact on our revenues and
operating results.
Despite NetScout's efforts to retain key employees, NetScout may lose
some of NextPoint's key employees following the merger. Competition for
qualified management, engineering and technical employees in the computer
software, hardware and networking industries is intense. Former NextPoint
employees may decide that they do not want to work for a larger, publicly-traded
company instead of a smaller, private company. In addition, competitors may
recruit former NextPoint employees during the integration of NextPoint and us.
We cannot provide any assurance that the combined enterprise will be able to
attract, retain and integrate key employees following the merger.
RISKS ASSOCIATED WITH THIS OFFERING OF OUR COMMON STOCK
THE PRICE OF OUR COMMON STOCK AFTER THIS OFFERING MAY BE LOWER THAN THE PRICE
YOU PAY IN THIS OFFERING.
The market price of our common stock has been highly volatile and has
fluctuated significantly since the initial public offering of our common stock
on August 12, 1999. The market price of our common stock may continue to
fluctuate significantly in response to a number of factors, some of which are
beyond our control.
The stock market in general has recently experienced extreme price and
volume fluctuations. In addition, the market prices of securities of technology
companies have been extremely volatile, and have experienced fluctuations that
often have been unrelated or disproportionate to the operating performance of
these companies. These broad market fluctuations could adversely affect the
market price of our common stock.
OUR EXECUTIVE OFFICERS, DIRECTORS AND AFFILIATES ARE ABLE TO CONTROL
MATTERS REQUIRING STOCKHOLDER APPROVAL.
Our executive officers, directors and affiliates together control a
majority of the outstanding common stock. As a result, these stockholders, if
they act together, will be able to control matters requiring stockholder
approval, including the election of directors and approval of significant
corporate transactions. This concentration of ownership may have the effect
of delaying, preventing or deterring a change in control of NetScout, could
deprive our stockholders of an opportunity to receive a premium for their
common stock as part of a sale of NetScout and might affect the market price
of our stock.
-11-
<PAGE>
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of our common stock
by the selling stockholders. The principal purpose of this offering is to effect
an orderly disposition of the selling stockholders' shares.
-12-
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the number of shares beneficially owned by
each of the selling stockholders as of December 31, 2000 and the number of
shares that may be offered by the selling stockholders pursuant to this
prospectus. We have assumed, when calculating the numbers in the table, that all
of the shares owned by each selling stockholder and offered pursuant to this
prospectus will be sold.
As of December 31, 2000, there were 29,409,328 shares of common stock
outstanding.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF NUMBER OF
SHARES OWNED SHARES OFFERED SHARES OWNED
BEFORE THE PURSUANT TO AFTER THE
SELLING STOCKHOLDER POSITION OFFERING THIS PROSPECTUS OFFERING
<S> <C> <C> <C> <C>
A. Dana Callow, Jr. 20,801 20,801 -
Alan (Yuming) Huang 1,174 1,174 -
Albert A. Holman, III 39,522 39,522 -
Alexander Marks 291 291 -
Allen Sweet 5,547 5,547 -
Allyn C. Woodward, Jr. 2,773 2,773 -
Andrea Smith 145 145 -
Andrew M. Levin 2,798 2,798 -
Baker Communications Fund, L.P. 803,691 803,691 -
Boris Zuckerman 1,165 1,165 -
Bruce A. Kelley, Jr. Vice President, Engineering, 157,412 157,412 -
Service Level Management
Bruce Sweet Vice President, Engineering, 160,185 160,185 -
Capacity Management
Cathleen A. Costello 6,933 6,933 -
Chestnut Investment
Associates 1997 93,605 93,605 -
Chestnut Partners, Inc. 81,896 81,896 -
Chih-Cheng Hsieh 291 291 -
Chuong H. Huynh 291 291 -
Danny J. Hansen 2,331 2,331 -
David McAuliffe 13,867 13,867 -
E. Andrews Grinstead, III 2,773 2,773 -
Gary Snow 291 291 -
Gev F. Daruwalla 3,923 3,923 -
H&D Investments II 6,933 6,933 -
High Street Partners, L.P. 27,735 27,735 -
Infonetics Research, Inc. 1,399 1,399 -
James M. Fitzgibbons 6,933 6,933 -
Jeffrey Mow 291 291 -
John Burnham 46 46 -
</TABLE>
-13-
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF NUMBER OF
SHARES OWNED SHARES OFFERED SHARES OWNED
BEFORE THE PURSUANT TO AFTER THE
SELLING STOCKHOLDER POSITION OFFERING THIS PROSPECTUS OFFERING
<S> <C> <C> <C> <C>
John Fulreader 1,766 1,766 -
John Hyde Fisher 4,160 4,160 -
John W. Spencer 2,098 2,098 -
Josef H. von Rickenbach 8,320 8,320 -
Juan Ardura 999 999 -
Lisa Kane 233 233 -
Mark Vaysman 524 524 -
Michael DuCros 6,933 6,933 -
Peter San Giovanni 233 233 -
Polaris Venture Partners, L.P. 382,866 382,866 -
Polaris Venture Partners
Founders' Fund, L.P. 22,216 22,216 -
Rajesh D. Puranik 833 833 -
Ralph S. Dormitzer 13,867 13,867 -
Robert Darabant 1,165 1,165 -
Russell Waldman 291 291 -
Silicon Valley Bank 11,319 11,319 -
Thomas F. Ryan, Jr. 6,933 6,933 -
Vincent Husovsky 291 291 -
Virginia M. Holman 16,641 16,641 -
William L. Maro 162,959 162,959 -
William S. Oglesby 2,773 2,773 -
William T. Sobo, Jr. 2,773 2,773 -
Yichuan Li 204 204 -
TOTAL 2,095,439 2,095,439 -
-----
</TABLE>
The selling stockholders acquired their shares in connection with the
acquisition of NextPoint Networks, Inc. by our wholly owned subsidiary, NetScout
Service Level Corporation, on July 7, 2000. In the merger, NetScout issued
shares of its common stock and cash in exchange for all of the capital stock of
NextPoint. The acquisition was accounted for using the purchase method of
accounting. In connection with the acquisition, we entered into a registration
rights agreement with the NextPoint stockholders pursuant to which we agreed to
register the shares issued to them in connection with the acquisition.
The above table includes an aggregate of 314,887 shares of common
stock beneficially owned by the selling stockholders (except for Silicon
Valley Bank) that have been deposited in an escrow account pursuant to an
escrow agreement dated as of July 7, 2000. The escrowed shares will be used
to indemnify NetScout against losses resulting from breaches of the
representations and warranties made by the NextPoint Networks, Inc. in the
merger agreement. One-third of the escrowed shares that are not needed to
cover pending claims made by NetScout will be released on July 7, 2001. The
remaining escrowed shares will be released on January 7, 2002 less any shares
that are needed to cover pending claims made by NetScout.
103,027 shares held by each of Messrs. Kelley and Sweet, each an
employee of NetScout, are subject to a holdback right of NetScout. Each of
Messrs. Kelley and Sweet will be entitled to be distributed approximately 15%
to 20% of their shares at the end of each calendar quarter (through June 30,
2002) if each of Messrs. Kelley or Sweet has remained continuously employed
by NetScout through the end of each applicable calendar quarter,
respectively. If either Messrs. Kelley or Sweet are terminated for cause,
each will forfeit their respective right to be distributed any shares that
are being heldback by NetScout at such time. If either Messrs. Kelley or
Sweet are terminated without cause, terminate his own employment for good
reason or dies or becomes disabled, each will be entitled to be distributed
all of his respective shares subject to the holdback.
-14-
<PAGE>
PLAN OF DISTRIBUTION
The shares offered in this prospectus may be offered and sold from
time to time for the accounts of the selling stockholders, including
transferees of the selling stockholders so long as a transferee received
100,000 shares from a transferring selling stockholder and agreed to the
terms and conditions of the Registration Rights Agreement dated July 7, 2000
by and among NetScout Systems, Inc. and certain security holders of NextPoint
Networks, Inc.
The selling stockholders will act independently of NetScout in making
decisions with respect to the timing, manner and size of any sale. The selling
stockholders may sell the shares:
- at then-prevailing prices and terms;
- at prices related to the then-current market price; or
- at negotiated prices.
The sales may be made in the over-the-counter market, on the Nasdaq
National Market, or on any exchange on which the shares are listed. The selling
stockholders may sell the shares in one or more of the following types of
transactions:
- one or more block trades in which the broker or dealer will attempt
to sell as agent or principal all or a portion of the shares held by
the selling stockholder;
- purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers;
- in negotiated transactions; or
- through other means.
Subject to the restrictions imposed on them related to their employment
by us, the selling stockholders may enter into hedging transactions when selling
the shares. For example, the selling stockholders may:
- sell shares short and redeliver such shares to close out their short
positions;
- enter into transactions involving short sales by the brokers or
dealers;
- enter into option or other types of transactions that require the
selling stockholder to deliver shares to a broker or dealer, who
then resells or transfer the shares under this prospectus; or
- loan or pledge the shares to a broker or dealer, who may sell the
loaned shares or, in the event of default, sell the pledged shares.
The selling stockholders may effect sales through brokers, dealers or
agents, who in turn may arrange for other brokers or dealers to participate. The
brokers, dealers or agents may receive discounts, concessions, commissions or
fees from the selling stockholders and/or purchasers of the shares in amounts to
be determined prior to the sale. Under the federal securities laws, these
brokers or dealers and any other participating brokers or dealers may be deemed
to be "underwriters" and any discounts, concessions or commissions received by
them may be deemed to be "underwriting compensation" under the Securities Act if
1933, as amended. Because the selling stockholders may be deemed to be
"underwriters" within the meaning of the Securities Act, the selling
stockholders will be subject to the prospectus delivery requirements of the
Securities Act.
-15-
<PAGE>
In addition to selling the shares, the selling stockholders may:
- sell their shares under Rule 144 of the Securities Act, if the
transaction meets the requirements of Rule 144;
- transfer the shares by gift, distribution or other transfer not
involving market makers or established trading markets; or
- agree to indemnify any broker, dealer or agent that participates in
transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities Act.
The selling stockholders are not subject to any underwriting agreement.
The selling stockholders, or any parties who receive the shares from the selling
stockholders by way of a gift, donation, distribution or other transfer, may
sell the shares covered by this prospectus.
NetScout will pay all expenses incident to the offering and sale of the
shares to the public other than any discounts, concessions, commissions or fees
of underwriters, brokers, dealers or agents.
Some states require that any shares sold in that state only be sold
through registered or licensed brokers or dealers. In addition, some states
require that the shares have been registered or qualified for sale in that
state, or that there exists an exemption from the registration or qualification
requirements and that the issuer has complied with the exemption.
We intend to maintain the effectiveness of this prospectus until July 7,
2002 or such period as is required to satisfy our obligations under the
registration rights agreement among the selling stockholders and us. We may
suspend the selling stockholders' rights to resell shares under this prospectus.
We have informed the selling stockholders that the anti-manipulation
rules of Regulation M under the Securities Exchange Act of 1934, as amended, may
apply to sales of shares in the market and to the activities of the selling
stockholders and their respective affiliates. In addition, we will make copies
of this prospectus available to each of the selling stockholders and shall
inform them of the need to deliver copies of this prospectus to purchasers at or
prior to the time of any sale of the shares.
We will not receive any proceeds from this offering. The selling
stockholders will pay or assume brokerage commissions or other charges and
expenses incurred in the resale of the shares.
LEGAL MATTERS
The legality of the shares offered in this prospectus is being passed
upon for us by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts. As of the
date of this prospectus, certain attorneys with the firm of Testa, Hurwitz &
Thibeault, LLP beneficially own an aggregate of 800 shares of our common stock.
-16-
<PAGE>
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K of NetScout Systems, Inc. for
the year ended March 31, 2000 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The consolidated financial statements of NextPoint Networks, Inc. as
of December 31, 1999 and 1998 and for each of the two years ended December
31, 1999 incorporated in this Prospectus by reference to Amendment No. 1 of
the Current Report on Form 8-K, as filed on September 20, 2000, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
-17-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an estimate of the expenses we expect to
incur and pay in connection with the issuance and distribution of the securities
being registered:
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission........................................... $ 5,170
Nasdaq Additional Listing Fee.................................................................... 21,000
Accounting Fees and Expenses..................................................................... 10,000
Legal Fees and Expenses.......................................................................... 25,000
Miscellaneous.................................................................................... 1,000
TOTAL............................................................................................ $ 62,170
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and the Company's charter and
by-laws provide for indemnification of the Company's directors and officers for
liabilities and expenses that they may incur in such capacities. In general,
directors and officers are indemnified with respect to actions taken in good
faith in a manner reasonably believed to be in, or not opposed to, the best
interests of the Company and, with respect to any criminal action or proceeding,
actions that the indemnitee had no reasonable cause to believe were unlawful.
Reference is made to our charter filed as an exhibit to our registration
statement on Form S-1 (No. 333-76843) and to our by-laws filed as an exhibit to
our Annual Report on Form 10-K for the year ended March 31, 2000, both of which
are incorporated herein by reference.
Reference also is hereby made to Section 2.4 of the Registration Rights
Agreement filed as Exhibit 10.1 to the Company's Current Report on Form 8-K
dated July 7, 2000, filed on July 20, 2000, for a description of indemnification
arrangements between the Company and the Selling Stockholders, pursuant to which
the Selling Stockholders are obligated, under certain circumstances, to
indemnify directors, officers and controlling persons of the Company against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
In addition, the Company has an existing directors and officers liability
insurance policy.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. ITEM AND REFERENCE
----------- ------------------
<S> <C>
2 -- Agreement and Plan of Reorganization, dated June 13, 2000, by and among NetScout Systems, Inc.,
NetScout Service Level Corporation, NextPoint Networks, Inc. and certain stockholders of NextPoint
Networks, Inc. (filed as Exhibit 2.1 to the Company's Current Report on Form 8-K filed on July 20,
2000 and incorporated by reference herein)
4 -- Registration Rights Agreement dated as of July 7, 2000, by and among NetScout Systems, Inc.,
certain NextPoint stockholders, certain NextPoint Warrant Holders and Silicon Valley
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Bank (filed as Exhibit 10.1 to the Company's Current Report on Form 8-K filed on July 20, 2000 and
incorporated by reference herein)
5.1 -- Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 -- Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2 -- Consent of PricewaterhouseCoopers LLP (filed herewith)
23.3 -- Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24 -- Power of Attorney (contained on signature page)
</TABLE>
ITEM 17. UNDERTAKINGS.
We hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining 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 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of our 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.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of NetScout
pursuant to the foregoing provisions, or otherwise, NetScout has been advised
that in the opinion of the SEC 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, NetScout 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, NetScout
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 City of Westford, in the Commonwealth of Massachusetts, on
this 2nd day of January, 2001
NETSCOUT SYSTEMS, INC.
By: /s/ ANIL K. SINGHAL
------------------------------------
Anil K. Singhal
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of NetScout Systems, Inc.,
hereby severally constitute and appoint Anil K. Singhal, Narendra Popat and
David Sommers, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in the
capacities indicated below, any amendments to this registration statement on
Form S-3 (including post-effective amendments), any Rule 462(b) registration
statements and any amendments thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, and generally to do all things in our names and on our
behalf in our capacities as officers and directors to enable NetScout Systems,
Inc., to comply with the provisions of the Securities Act of 1933, as amended,
hereby ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said registration statement and all amendments
thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ ANIL K. SINGHAL President and Chief Executive Officer January 2, 2001
------------------------------- (Principal Executive Officer)
Anil K. Singhal
/s/ NARENDRA POPAT Chairman of the Board January 2, 2001
-------------------------------
Narendra Popat
/s/ DAVID P. SOMMERS Vice President and Chief Financial Officer January 2, 2001
------------------------------- (Principal Financial and Accounting Officer)
David P. Sommers
/s/ JOSEPH G. HADZIMA, JR. Director January 2, 2001
-------------------------------
Joseph G. Hadzima, Jr.
/s/ KENNETH T. SCHICIANO Director January 2, 2001
-------------------------------
Kenneth T. Schiciano
/s/ JOHN R. EGAN Director January 2, 2001
-------------------------------
John R. Egan
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Director January 2, 2001
-------------------------------
Vincent Mullarkey
</TABLE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<S> <C>
2 Agreement and Plan of Reorganization, dated June 13, 2000, by and among NetScout Systems, Inc.,
NetScout Service Level Corporation, NextPoint Networks, Inc. and certain stockholders of NextPoint
Networks, Inc. (filed as Exhibit 2.1 to the Company's Current Report on Form 8-K filed on July 20, 2000
and incorporated by reference herein)
4 Registration Rights Agreement dated as of July 7, 2000, by and among NetScout Systems, Inc., certain
NextPoint stockholders, certain NextPoint Warrant Holders and Silicon Valley Bank (filed as Exhibit
10.1 to the Company's Current Report on Form 8-K filed on July 20, 2000 and incorporated by reference
herein)
5.1 Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith)
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith)
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith)
23.3 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
24 Power of Attorney (contained on signature page)
</TABLE>
