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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 2000
REGISTRATION NO. 333-38592
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INRANGE TECHNOLOGIES CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 3663 06-0962862
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
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13000 MIDLANTIC DRIVE
MT. LAUREL, NEW JERSEY 08054
(856) 234-7900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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GREGORY R. GRODHAUS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INRANGE TECHNOLOGIES CORPORATION
13000 MIDLANTIC DRIVE
MT. LAUREL, NEW JERSEY 08054
(856) 234-7900
(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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<S> <C>
STUART GELFOND, ESQ. MARK G. BORDEN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON JEFFREY A. STEIN, ESQ.
ONE NEW YORK PLAZA STUART R. NAYMAN, ESQ.
NEW YORK, NEW YORK 10004-1980 HALE AND DORR LLP
(212) 859-8000 405 LEXINGTON AVENUE
NEW YORK, NEW YORK 10174
(212) 937-7200
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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,
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 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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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) FEE
<S> <C> <C> <C> <C>
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Class B Common Stock, $0.01 par
value per share.................. 8,855,000 shares
of Class B Common
Stock $14.00 per share $123,970,000 $32,729(3)
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(1) Includes 1,155,000 shares of Class B Common Stock subject to an
over-allotment option.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act.
(3) Previously paid.
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THE REGISTRANT HEREBY AMENDS THE 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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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses and costs payable by Inrange
Technologies Corporation (other than underwriting discounts and commissions)
expected to be incurred in connection with the issuance and distribution of the
securities described in this registration statement. All amounts are estimated
except for the Securities and Exchange Commission's registration fee and the
National Association of Securities Dealers' filing fee.
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<CAPTION>
AMOUNT
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<S> <C>
Registration fee under Securities Act....................... $ 32,729
NASD filing fee............................................. 12,897
Nasdaq National Market fees................................. 69,375
Legal fees and expenses..................................... 950,000
Accounting fees and expenses................................ 475,000
Printing and engraving expenses............................. 429,000
Registrar and transfer agent fees........................... 10,000
Miscellaneous expenses...................................... 113,625
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Total............................................. $2,092,626
==========
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits and proceedings, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the corporation -- a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
certificate of incorporation, bylaws, disinterested director vote, stockholder
vote, agreement, or otherwise.
Our bylaws and our certificates of incorporation require us to indemnify to
the fullest extent authorized by the DGCL any person made or threatened to be
made a party to an action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he or she is or was
a director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise.
As permitted by Section 102(b)(7) of the DGCL, our certificate of
incorporation eliminates the liability of a director to the corporation or its
stockholders for monetary damages for such breach of fiduciary duty as a
director, except for liabilities arising (a) from any breach of the director's
duty of loyalty to the corporation or its stockholders; (b) from acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (c) under section 174 of the DGCL; or (d) from any transaction
from which the director derived an improper personal benefit.
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We intend to obtain primary and excess insurance policies insuring our
directors and officers and those of our subsidiaries against certain liabilities
they may incur in their capacity as directors and officers. Under these
policies, the insurer, on our behalf, may also pay amounts for which we have
granted indemnification to the directors or officers.
Additionally, the Underwriting Agreement filed as Exhibit 1.1 to this
registration statement provides for indemnification by us of our underwriters,
and persons who control them, under certain circumstances and by our
underwriters of us and persons who control us, under certain circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
None.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
The following documents are filed as exhibits to this registration
statement:
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EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<S> <C>
1.1 Form of Underwriting Agreement.
3.2 Amended and Restated By-Laws of Inrange Technologies
Corporation.
3.3 Amended and Restated Certificate of Incorporation of Inrange
Technologies Corporation.**
4.1 Form of Inrange Technologies Corporation Class B common
stock certificate.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson
regarding the legality of the shares being registered.**
10.1 Tax Sharing Agreement, between Inrange Technologies
Corporation and SPX Corporation.
10.2 Management Services Agreement, between Inrange Technologies
Corporation and SPX Corporation.
10.3 Registration Rights Agreement, between Inrange Technologies
Corporation and SPX Corporation.
10.4 Trademark License Agreement, between Inrange Technologies
Corporation and SPX Corporation.
10.5 Reseller Agreement, dated October 29, 1999 between Inrange
Technologies Corporation and Ancor Communications, Inc.++
10.6 Technology License Agreement, dated September 24, 1998
between Inrange Technologies Corporation and Ancor
Communications Inc.++
10.7 Letter Agreement dated November 23, 1999 between Inrange
Technologies Corporation and Ancor Communications Inc.++
10.8 Inrange Technologies Corporation 2000 Stock Compensation
Plan.**
10.9 Loan Agreement, between Inrange Technologies Corporation and
SPX Corporation.
10.10 Employees Matters Agreement, between Inrange Technologies
Corporation and SPX Corporation.
16.1 Change in Principal Accountants.
21.1 List of Subsidiaries.**
23.1 Consent of Arthur Andersen LLP.**
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Ernst & Young LLP.**
23.4 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).**
23.5 Consent of David L. Chapman.**
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EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<S> <C>
23.6 Consent of Bruce J. Ryan.**
23.7 Consent of David Wright.**
24.1 Power of Attorney.**
27.1 Financial Data Schedule.**
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** Previously filed.
++ Portions of these exhibits have been omitted pursuant to a request for
confidential treatment.
(B) FINANCIAL STATEMENT SCHEDULES
Financial statement schedules have been omitted because they are not
applicable or the required information is shown in the combined financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS.
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, 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes:
(1) 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) That for purposes of determining any liability under the
Securities Act of 1933, 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.
(3) That for the purpose of determining any liability under the
Securities Act of 1933, 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, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Mount
Laurel, State of New Jersey, on September 13, 2000.
INRANGE TECHNOLOGIES CORPORATION
By: /s/ GREGORY R. GRODHAUS
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Gregory R. Grodhaus
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this Amendment to the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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<C> <S> <C>
/s/ GREGORY R. GRODHAUS Director, President and Chief Executive September 13, 2000
--------------------------------------------------- Officer
Gregory R. Grodhaus
* Vice President, Chief Financial Officer September 13, 2000
--------------------------------------------------- (Principal Financial and Accounting
Jay Zager Officer)
* Chairman of the Board September 13, 2000
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John B. Blystone
* Director September 13, 2000
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Robert B. Foreman
* Director September 13, 2000
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Christopher J. Kearney
* Director September 13, 2000
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Lewis M. Kling
* Director September 13, 2000
---------------------------------------------------
Patrick J. O'Leary
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*By: /s/ GREGORY R. GRODHAUS
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Gregory R. Grodhaus, attorney-in-fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<S> <C>
1.1 Form of Underwriting Agreement.
3.2 Amended and Restated By-Laws of Inrange Technologies
Corporation.
3.3 Amended and Restated Certificate of Incorporation of Inrange
Technologies Corporation.**
4.1 Form of Inrange Technologies Corporation Class B common
stock certificate.
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson
regarding the legality of the shares being registered.**
10.1 Tax Sharing Agreement, between Inrange Technologies
Corporation and SPX Corporation.
10.2 Management Services Agreement, between Inrange Technologies
Corporation and SPX Corporation.
10.3 Registration Rights Agreement, between Inrange Technologies
Corporation and SPX Corporation.
10.4 Trademark License Agreement between Inrange Technologies
Corporation and SPX Corporation.
10.5 Reseller Agreement, dated October 29, 1999 between Inrange
Technologies Corporation and Ancor Communications, Inc.++
10.6 Technology License Agreement, dated September 24, 1998
between Inrange Technologies Corporation and Ancor
Communications Inc.++
10.7 Letter Agreement dated November 23, 1999 between Inrange
Technologies Corporation and Ancor Communications Inc.++
10.8 Inrange Technologies Corporation 2000 Stock Compensation
Plan.**
10.9 Loan Agreement, between Inrange Technologies Corporation and
SPX Corporation.
10.10 Employee Matters Agreement, between Inrange Technologies
Corporation and SPX Corporation.
16.1 Change in Principal Accountants.
21.1 List of Subsidiaries.**
23.1 Consent of Arthur Andersen LLP.**
23.2 Consent of Arthur Andersen LLP.**
23.3 Consent of Ernst & Young LLP.**
23.4 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).**
23.5 Consent of David L. Chapman.**
23.6 Consent of Bruce J. Ryan.**
23.7 Consent of David Wright.**
24.1 Power of Attorney.**
27.1 Financial Data Schedule.**
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** Previously filed
++ Portions of these exhibits have been omitted pursuant to a request for
confidential treatment.
