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As filed with the Securities and Exchange Commission on July , 2000.
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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TRICORD SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 41-1590621
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2905 NORTHWEST BOULEVARD JOHN J. MITCHAM
SUITE 20 CHAIRMAN AND CO-CHIEF EXECUTIVE OFFICER
PLYMOUTH, MINNESOTA 55441 2905 NORTHWEST BOULEVARD
(612) 557-9005 SUITE 20
(Address, including zip code, PLYMOUTH, MINNESOTA 55441
and telephone number, (612) 557-9005
including area code, of registrant's (Name, address, including zip code,
principal executive offices) and telephone number, including
area code, of agent for service)
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Approximate date of commencement of proposed sale to the public:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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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 box. [ ]
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CALCULATION OF REGISTRATION FEE
======================================== ================ =================== ====================== ==================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (2) PER SHARE (3) PRICE (3) REGISTRATION FEE (3)
---------------------------------------- ---------------- ------------------- ---------------------- ------------------
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Common Stock, par value $.01
per share(1).................... 9,739,000 shares $16.81 $163,712,590 $43,220.22
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(1) Each share of Common Stock includes a right to purchase a fractional share
of the Registrant's Series A Junior Preferred Stock, par value $.01 per
share (a "Right").
(2) Consists of 9,739,000 shares of common stock to be sold by selling
stockholders and an indeterminate number of additional shares as may be
issued pursuant to antidilution or other similar rights.
(3) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act on the
basis of the average of the high and low reported sales prices of the
Registrant's Common Stock on July 25, 2000 on the Nasdaq SmallCap Market.
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WE HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER
AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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THE INFORMATION CONTAINED IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY
BE CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL A REGISTRATION STATEMENT
COVERING THE SECURITIES AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO
BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT
PERMITTED.
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SUBJECT TO COMPLETION, DATED JULY , 2000
PRELIMINARY PROSPECTUS
9,739,000 SHARES
[TRICORD LOGO]
COMMON STOCK
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The stockholders of Tricord Systems, Inc. named on page 11 of this prospectus
under the heading entitled "Selling Stockholders" are offering 9,739,000 shares
of our common stock.
The prices at which these selling stockholders may sell their shares will be
determined by the prevailing market price for our common stock or in negotiated
transactions. We will not receive any proceeds from their sales of such shares,
but we are contractually obligated to and will bear certain of the costs
relating to the registration of the shares. The shares being offered by this
prospectus include shares to be acquired upon the exercise of warrants. We will
receive proceeds from the exercise, if any, of warrants held by certain of the
selling stockholders.
Our common stock is listed on the Nasdaq SmallCap Market System and trades under
the symbol "TRCD." On July 19, 2000, the closing price of a share of our common
stock was $20.25.
THE COMMON STOCK OFFERED INVOLVES A HIGH DEGREE OF RISK. WE REFER YOU
TO "RISK FACTORS" BEGINNING ON PAGE 4.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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THE DATE OF THIS PROSPECTUS IS JULY , 2000.
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TABLE OF CONTENTS
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PAGE
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Tricord Systems...................................................................................................3
Risk Factors......................................................................................................4
Warning About Forward-Looking Statements.........................................................................10
Use of Proceeds..................................................................................................10
Selling Stockholders.............................................................................................11
Plan of Distribution.............................................................................................14
Legal Matters....................................................................................................17
Experts..........................................................................................................17
Documents Incorporated By Reference Into This Prospectus.........................................................17
Where You Can Find More Information..............................................................................18
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In deciding whether to purchase the shares being offered, you should rely only
on the information contained in this prospectus. We have not authorized any
other person to provide you with different information. This prospectus may only
be used where it is legal to sell these securities. The information in this
prospectus is accurate as of the date on the front cover. You should not assume
that the information contained in this prospectus is accurate as of any other
date.
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TRICORD SYSTEMS
We are in the business of providing server appliances with data storage
management software. Currently, we are developing server and storage appliances
for ISP (Internet Service Providers)/ASP (Application Service Providers)/SSP
(Storage Service Providers), applications and general file serving marketplaces.
Before 1997, we focused our efforts on designing, manufacturing and selling
enterprise servers that were used to support computer programs that were used
with Microsoft Windows, Novell NetWare and Unix. In 1997, we changed our
strategy to focus on developing software that would be used to manage data
storage. In August 1999, we sold the last of our assets that were used in
developing and manufacturing enterprise servers, and we are now focused
exclusively on developing software technology for storage management and
products based on that technology. Because these products are currently under
development, we have not yet generated any revenues from the sale of these
products.
Data storage is a critical part of most computing systems, both in
terms of cost and in the ability of the computing system to effectively serve
the needs of its users. We believe that three major trends in data access and
management will necessitate major changes in data storage. The first trend is
the growing user demand for large amounts of data and the increasing complexity
of applications used to manipulate that data. Reflecting this trend, data
storage today can account for up to 70% of the initial cost of a computer
system, compared with less than 30% a few years ago.
The second trend is the increasing costs of managing storage. These
costs are growing rapidly and often account for a higher percentage of total
costs of ownership than the initial purchase cost of storage.
The third trend is the increasing acceptance of clustered servers.
These computers need access to multiple storage systems providing data as a
shared network resource, and this access must be uninterrupted seven days a
week, 24 hours a day, 365 days a year, or 7x24x365. Storage needs are also
increasingly being met by external storage systems in the Windows NT, UNIX and
LINUX environments.
The operational demands of businesses are not only increasing the
complexity of storage management but are also increasing the demand for
availability of more and more data, including websites, e-mail, e-commerce,
production databases, data marts and support information. This rapidly growing
demand creates new requirements that we believe are not addressed adequately by
today's storage products. Future storage products will need to provide for the
ability to:
- Separate the application processing from the storage both in
terms of the purchase decision and functionality that can
provide greater flexibility in configuring the storage system
and a wider range of growth options.
- Aggregate storage beyond a single storage enclosure and
expand, without downtime, in varying increments.
- Provide 7x24x365 availability regardless of whether the
failure occurs in the disk, controller, storage system or
other source.
We believe that most data storage products currently available do not
adequately address these concerns. Most data storage software used today breaks
computer files into blocks of data, which are then stored on one or more storage
devices. The location of this data can only be identified when the data is
transferred between a server and the storage device. We believe our new software
avoids the limitations associated with this existing type
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of software. Our new software is called Tricord Storage Management Software
or "TSMS". TSMS is different from most existing types of data storage management
software because of the way it stores data and identifies the location of stored
data. Rather than use the block input/output model, TSMS avoids the limitations
inherent in such a model by using file-intelligent input/output to manage data.
We intend to develop products that incorporate TSMS and believe that
all TSMS-based products will offer the following benefits:
- Easier management of attached storage because TSMS manages
storage as a single logical unit which allows the system
administrator to better manage the allocation of physical
storage in storage systems.
- Seamless scalability and increased availability of storage
through the ability to easily add additional storage with
little administration and no system downtime.
We are currently in the process of developing our distribution channels
for our TSMS-based products and are pursuing bringing TSMS and TSMS-based server
and storage appliances to market, with an initial focus on Linux-based network
attached storage appliances. We also intend to pursue various other distribution
relationships, which may include partnerships with original equipment
manufacturers, storage suppliers, computer system vendors, disk drive
manufacturers, and disk controller vendors.
We are incorporated in Delaware and have our principal executive
offices at 2905 Northwest Boulevard, Suite 20, Plymouth, MN 55441. Our telephone
number is (612) 557-9005.
RISK FACTORS
This offering involves a high degree of risk. You should carefully
consider the risks and uncertainties described below and the other information
contained in this prospectus and in the documents to which we refer you under
the heading "Documents Incorporated by Reference into this Prospectus" on page
17 before deciding whether to invest in shares of our common stock. If any of
the following risks actually occur, our business, financial condition or
operating results could be harmed. In that case, the trading price of our common
stock could decline, and you may lose part or all of your investment. The risks
and uncertainties described below are not the only ones we face. Additional
risks and uncertainties not currently known to us or that we currently deem
immaterial may also impair our business operations and adversely affect the
market price of our common stock.
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RISKS RELATING TO OUR BUSINESS
WE ARE NOT GENERATING ANY REVENUES FROM PRODUCT SALES, AND WE ARE
UNCERTAIN IF OR WHEN WE WILL GENERATE REVENUES FROM THE SALE OF
PRODUCTS.
Since selling the remaining assets associated with our server line of
business in August of 1999, we have not generated any revenues from the sale of
products. We anticipate that all of our revenues for the foreseeable future will
come from TSMS and TSMS-based products. However, because TSMS is still under
development, we are currently not selling any products. We cannot be sure if or
when the development of TSMS or TSMS-based products will be completed, nor can
we be sure that anyone will buy our TSMS-based products once they are ready for
sale. Therefore, we cannot assure you that we will generate any revenues from
sales of products in the future.
WE ARE EXPERIENCING INCREASING COSTS AND INCREASING OPERATING LOSSES,
AND WE ARE UNCERTAIN THAT WE WILL BE PROFITABLE IN THE FUTURE.
During 1999, our operating costs rose 88% over our operating costs in
1998 and we anticipate that operating costs in 2000 will be greater than our
operating costs in 1999 because we intend to expand our operations. Although our
costs are increasing, we are not currently selling any products and therefore
our operating losses will continue to grow. During the three year period
commencing at the beginning of 1997 (the year we implemented our storage system
management software strategy), we have incurred aggregate operating net losses
of $20,679,000. Even if we begin selling the products we are developing, we
cannot assure you that such sales will be profitable and we therefore may remain
unprofitable in the future.
WE WILL NEED TO RAISE ADDITIONAL CAPITAL TO FUND OUR FUTURE OPERATIONS,
AND ANY FAILURE TO OBTAIN ADDITIONAL CAPITAL WHEN NEEDED OR
ON SATISFACTORY TERMS COULD DAMAGE OUR BUSINESS.
Because we are not generating any revenue through product sales and our
costs are increasing, we will need to raise or borrow additional capital
in the future to fund our ongoing operations, including continued aggressive
product development and marketing. We cannot assure you that when we need to
raise any additional capital in the future, we will be able to do so. If we are
able to raise additional capital, the terms on we which we obtain financing may
not be favorable to us and if we raise capital through one or more equity
offerings, it may result in dilution to our stockholders. Any difficulty in
obtaining additional financial resources, including the inability to borrow on
satisfactory terms, could force us to downsize our operations, prevent us from
pursuing our growth strategy or otherwise cause us financial harm.
WE NEED TO ESTABLISH DISTRIBUTION CHANNELS TO SELL THE PRODUCTS WE ARE
DEVELOPING, AND, IF WE ARE UNABLE TO DO SO, WE WILL NOT BE ABLE TO
EFFECTIVELY SELL SUCH PRODUCTS AND IT WILL BE DIFFICULT TO GENERATE
REVENUE.
We currently intend to market TSMS and the TSMS-based products we are
developing directly and through distribution relationships, which may include
partnerships with original equipment manufacturers, storage suppliers, computer
system vendors, disk drive manufacturers and other businesses. These potential
sales strategies present risks to our business. In order to sell the products we
are developing directly, we will need to hire and train a new sales
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staff, which will increase our sales and marketing expenses. Any sales people
that we hire will need to sell an entirely new product to customers in a market
in which we have not previously sold, and we cannot assure you that such a sales
effort will be successful.
To sell our TSMS-based products through distribution partnerships, we
will need to establish relationships with businesses with whom we do not
currently have any relationships. Our failure to establish such relationships on
acceptable terms or in sufficient numbers could adversely affect our ability to
introduce and market our TSMS products successfully. Even if we do establish
such distribution relationships, using other businesses to sell the products we
are developing presents several risks to our business. These risks include our
inability to control the distributors, our dependence upon their continued
commercial success and financial stability, and the possibility that they may be
unable to market or sell our products effectively. In addition, we anticipate
our agreements with distribution partners will typically be non-exclusive, so
they could carry competing product lines, devote their efforts to other products
in different markets, reduce or discontinue sales of our products, fail to
devote the resources necessary to provide effective sales and marketing support
of our products or develop their own competing product lines.
OUR RESOURCES ARE FOCUSED ON THE DEVELOPMENT AND MARKETING OF A SINGLE
TYPE OF NEW SOFTWARE TECHNOLOGY FOR STORAGE MANAGEMENT AND PRODUCTS
BASED ON THAT TECHNOLOGY HAVE NOT BEEN PREVIOUSLY USED IN THE
MARKETPLACE.
For the foreseeable future, we expect our revenues, if any, to come
from the sales and support of TSMS and TSMS-based products, which we are still
developing. Accordingly, our business and future operating results depend on our
ability to be able to complete the development and testing of TSMS on a timely
basis. We cannot be sure that we will be able to successfully complete the
development of TSMS and TSMS-based products or when the development and testing
of TSMS and TSMS-based products will be complete. If we fail to successfully
complete the development of TSMS and TSMS-based products, we will not have any
products to sell. Further, even if we are able to successfully complete the
development of TSMS and TSMS-based products, we cannot assure you that there
will be any demand in the marketplace for our TSMS-based products. TSMS
is a new technology, and therefore it is difficult to ascertain how much, if
any, demand there will be for such TSMS-based products.
WE ARE DEVELOPING A NEW TECHNOLOGY IN A RAPIDLY EVOLVING INDUSTRY WHICH
WILL REQUIRE US TO COMPLETE THE DEVELOPMENT OF TSMS ON A TIMELY BASIS
AND TO CONTINUALLY ENHANCE TSMS AFTER IT IS COMPLETED AND TO
CONTINUALLY DEVELOP AND ENHANCE NEW PRODUCTS.
The market for storage products is characterized by rapid technological
change and evolving industry standards and is expected to remain highly
competitive with respect to product development and innovation. If we experience
delays during the development or testing of TSMS or our TSMS-based products,
changes in technology or industry standards could result in our products
becoming obsolete before we begin to sell them. TSMS and TSMS-based products may
also become obsolete or unmarketable if our competitors introduce better
technologies. Our success is dependent in part upon our ability to anticipate
changes in technology and industry standards and to continually and successfully
develop and introduce new and technologically-enhanced products on a timely
basis. If we fail to anticipate or respond to technological developments or
customer requirements, or if we are significantly delayed in developing and
introducing products, our business may suffer. If any technology that is
competing with ours proves to be more reliable, higher performing, less
expensive or has other
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advantages over our technology, then the demand for our TSMS-based products
could decrease.
WE ARE A NEW ENTRANT IN A MARKETPLACE THAT HAS SHOWN A GENERAL
RELUCTANCE TO NEW ENTRANTS AND WE WILL BE COMPETING WITH SEVERAL OTHER
COMPANIES WITH MORE EXPERIENCE.
We have not previously sold TSMS-based products, and due to the
sensitivity of data, customers purchasing products for use in data storage have
shown a tendency to purchase products from companies with established
reputations in this marketplace. Although we believe that we are well-positioned
to capture a significant portion of the market, established product channels and
product bundling arrangements from our competitors with established reputations
may impede our ability to compete and hinder market acceptance of the TSMS
products that we are developing. Our ability to gain widespread market
acceptance of these products may require the endorsement of industry leaders. We
cannot assure you that we will be able to obtain such endorsements or, even if
we obtain them, that such endorsements will be effective. We cannot assure you
that we will be able to compete successfully against our competitors. Increased
competition may result in our inability to sell any products that we develop or
could prevent us, even if we are able sell such products, from selling them at
profitable prices.
THE SOFTWARE THAT WE ARE DEVELOPING IS COMPLEX, HAS NOT PREVIOUSLY BEEN
USED BY ANYONE AND IS SUBJECT TO RISK OF DEFECTS AND BUGS.
Software, such as TSMS, often contains undetected errors when first
introduced. In addition, to the extent that we may have to enhance or modify
TSMS to allow it to operate in new environments, the possibility for program
errors and failures may increase due to factors such as the use of new
technologies or the need for more rapid product development that is
characteristic of the marketplace in which we operate. Despite our testing of
TSMS, it may still contain errors after commercial shipment. The occurrence of
such errors could result in the delay or failure of market acceptance of TSMS,
which would have a harmful effect on our business and financial condition.
Although we anticipate that the agreements we will use to license TSMS
will contain provisions designed to limit our exposure to potential product
liability claims, it is possible that such limitation of liability provisions
may not be effective as a result of existing or future laws or unfavorable
judicial decisions. Because we anticipate that TSMS will be used in
business-critical applications, any failures of products using this software may
give rise to product liability claims, which would have a harmful effect on our
business and financial condition.
OUR BUSINESS DEPENDS ON THE ACCEPTANCE OF OPERATING SYSTEM SOFTWARE FOR
WHICH WE HAVE NO RESPONSIBILITY OR CONTROL.
TSMS and TSMS-based products are designed to be used with operating
systems that are designed and manufactured by companies other than us. The first
TSMS-based products that we intend to market will be designed to be used with
the Linux operating system and future TSMS-based products we intend to sell may
be designed to be used in operating environments using Windows NT and UNIX.
Therefore, our business depends on the acceptance of Linux, Windows NT and UNIX
to
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run computer networks. If the market acceptance of any of these operating
systems fails to increase for any reason, our ability to sell our TSMS-based
products will be hurt. Because we have no control over the market acceptance of
any of this operating software or their manufacturers, our ability to generate
revenues will be largely dependent on the ability and desire of such
manufacturers to continue to offer quality products that fulfill market demand.
WE MAY NOT BE ABLE TO ADEQUATELY PROTECT OR ENFORCE OUR INTELLECTUAL
PROPERTY RIGHTS.
We believe that protecting our proprietary technology is important to
our success and competitive positioning. We have been granted one U.S. patent in
the core distributed file system technology and we currently have additional
United States patent applications pending with respect to TSMS to protect our
intellectual property rights. There can be no assurance, however, that any of
these patent applications will result in issued patents or that any such
patents, if issued, will be held to be valid or will otherwise be of value to
us. We also rely on a combination of trade secret and other intellectual
property law, nondisclosure agreements and other protective measures to
establish and protect our proprietary rights in our intellectual property. We
cannot be certain that the steps we take to protect our intellectual property
will adequately protect our proprietary rights, that others will not
independently develop or otherwise acquire equivalent or superior technology or
that we can maintain any of our technology as trade secrets. We also cannot be
certain that the use of our TSMS and TSMS-based products with open source
software will not subject us to claims that our software should be made
available to the public. In addition, the laws of some of the countries in which
TSMS and TSMS-based products may be sold may not protect our systems and
intellectual property to the same extent as the United States or at all. Our
failure to protect our intellectual property rights could have a material
adverse effect on our business, results of operations and financial condition.
OTHERS MAY ASSERT INTELLECTUAL PROPERTY CLAIMS AGAINST US.
We cannot be certain that we have not infringed the proprietary rights
of others. Any such infringement could cause third parties to bring claims
against us, resulting in significant costs, possible damages and substantial
uncertainty. We could also be forced to develop a non-infringing alternative
that could be costly and time-consuming, or to license, develop or procure an
alternative product at significant expense. If we are unable to do so, our
business and financial condition will suffer.
IF WE FAIL TO ATTRACT AND RETAIN HIGHLY SKILLED MANAGERIAL AND
TECHNICAL PERSONNEL, WE MAY FAIL TO REMAIN COMPETITIVE.
Our future success depends, in significant part, upon retaining the
continued service and performance of our senior management, team members,
consultants and other key personnel as well as our continued ability to attract
and recruit qualified personnel. Losing the services of any member of our
management team could impair our ability to effectively manage our company and
to carry out our business plan. In addition, competition for skilled technical
employees in our industry is intense. If we cannot attract and retain sufficient
qualified technical employees, we may be unable to effectively develop and
deliver competitive products to the market.
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RISKS RELATED TO THIS OFFERING
POSSIBLE ISSUANCE OF UNDESIGNATED PREFERRED SHARES.
Our Board of Directors has authority, pursuant to our Certificate of
Incorporation, to issue up to 2,500,000 undesignated shares of capital stock and
to fix the rights, preferences, privileges and restrictions, including voting
rights, of these shares without any further vote or action by our stockholders.
The rights of the holders of common stock will be subject to, and may be
adversely affected by, the rights of the holders of any undesignated shares that
may be created and issued in the future. The issuance of undesignated shares
could have the effect of delaying, deferring or preventing a change in control
of our company.
THERE ARE ANTI-TAKEOVER PROVISIONS THAT COULD DISCOURAGE OR PREVENT A
TAKEOVER, EVEN IF AN ACQUISITION WOULD BE BENEFICIAL TO OUR
STOCKHOLDERS.
We are governed by Delaware law, which contains provisions that could
have the effect of discouraging others from making tender offers for our common
stock. In addition, we have adopted a rights agreement which would cause
substantial dilution to any person or group that attempts to acquire our company
on terms not approved in advance by our board of directors. Our rights plan and
these provisions in Delaware law may prevent our stock price from increasing
substantially in response to actual or rumored takeover attempts.
WE DO NOT ANTICIPATE PAYING ANY CASH DIVIDENDS; THEREFORE, ANY GAINS
FROM YOUR INVESTMENT IN OUR COMMON STOCK WILL HAVE TO COME FROM
INCREASES IN ITS MARKET PRICE.
We currently intend to retain any future earnings for use in our
business and do not anticipate paying any cash dividends in the foreseeable
future. Therefore, any gains from your investment in our common stock will have
to come from increases in its market price.
OUR STOCK PRICE MAY BE VOLATILE.
The market price of our common stock may fluctuate significantly in
response to a number of factors, many of which are beyond our control. These
factors include:
- successful and timely completion of the development of TSMS
and TSMS-based products;
- marketplace acceptance of TSMS products;
- announcements of significant events, such as entering into a
distribution relationship or business combination;
- developments or disputes concerning patent or proprietary
rights;
- announcements of technological innovations or new products by
us or our competitors;
- general market conditions of computer technology driven
companies;
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- economic conditions in the United States or abroad;
- actual or anticipated fluctuations in our operating results;
- broad market fluctuations; and
- changes in financial estimates by securities analysts.
WARNING ABOUT FORWARD-LOOKING STATEMENTS
This prospectus and the documents to which we refer you under the
heading "Documents Incorporated by Reference into this Prospectus" contain
forward-looking statements. In addition, from time to time, we or our
representatives may make forward-looking statements orally or in writing. We
base these forward-looking statements on our expectations and projections about
future events, which we derive from the information currently available to us.
You can identify forward-looking statements by those that are not
historical in nature, particularly those that use terminology such as "may,"
"will," "should," "expects," "anticipates," "contemplates," "estimates,"
"believes," "plans," "projected," "predicts," "potential" or "continue" or the
negative of these or similar terms. In evaluating these forward-looking
statements, you should consider various factors, including the factors set forth
under the heading "Risk Factors," beginning on page 4 of this prospectus. These
and other factors may cause our actual results to differ materially from any
forward-looking statement.
Forward-looking statements are only predictions. The forward-looking
events discussed in this prospectus and the documents to which we refer you
under the heading "Documents Incorporated by Reference into this Prospectus" and
other statements made from time to time from us or our representatives, may not
occur, and actual events and results may differ materially and are subject to
risks, uncertainties and assumptions by us. We are not obligated to publicly
update or revise any forward-looking statement, whether as a result of new
information, future events or otherwise. In light of these risks, uncertainties
and assumptions, the forward-looking events discussed in this prospectus and
other statements made from time to time from us or our representatives, might
not occur. For these statements, we claim the protection of the safe harbor for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares by the
selling stockholders. This offering satisfies our obligations to register under
the Securities Act of 1933 the resale of shares of our common stock in
accordance with an amended and restated investors' rights agreement between the
selling stockholders and us. This offering also includes common stock that will
be issued to certain of the selling stockholders who hold warrants and choose to
exercise them. We will receive proceeds from the exercise, if any, of warrants
held by these selling stockholders. Any funds received upon exercise of the
warrants, will be used for general corporate purposes, including ongoing
development of TSMS and TSMS-based products.
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RESALE OF SHARES COVERED BY THIS PROSPECTUS
This Prospectus covers the resale by the selling stockholders listed in
the table under the heading "Selling Stockholders" of up to 9,739,000 shares of
our common stock, 2,850,000 shares of which are shares that unless amended or
supplemented appropriately, may be issued upon exercise of outstanding warrants
held by such stockholders. This Prospectus does not cover the sale of shares by
any person other than a person listed in the table under the heading "Selling
Stockholders." If a selling stockholder transfers a warrant, the transferee of
the warrant may not sell the shares of common stock issuable upon exercise of
the warrants pursuant to this Prospectus unless we appropriately amend or
supplement this Prospectus.
SELLING STOCKHOLDERS
The following table sets forth information known to Tricord Systems
with respect to the beneficial ownership of our common stock as of May 23, 2000
by the selling stockholders. In accordance with the rules of the SEC, beneficial
ownership includes the shares issuable pursuant to warrants that are exercisable
within 60 days of May 23, 2000. Shares issuable pursuant to warrants are
considered outstanding for computing the percentage of the person holding the
warrants and convertible securities but are not considered outstanding for
computing the percentage of any other person. The number of shares of common
stock outstanding after this offering includes 2,850,000 shares issuable upon
exercise of warrants.
The percentage of beneficial ownership for the following table is based
on 24,258,868 shares of common stock outstanding as of May 23, 2000 and
27,108,868 shares of common stock outstanding after the completion of this
offering. To our knowledge, except as indicated in the footnotes to this table,
the persons named in the table have sole voting and investment power with
respect to all shares of common stock.
Except as set forth below, none of the selling stockholders has had any
position, office or other material relationship with Tricord Systems within the
past three years. The table assumes that the selling stockholders sell all of
the shares offered by them in this offering. However, we are unable to determine
the exact number of shares that will actually be sold or when or if these sales
will occur. We will not receive the proceeds of any shares sold under this
prospectus.
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares Shares Beneficially Owned
Name and Address of Before the Offering Being After the Offering
Beneficial Owner Number Percentage Offered Number Percentage
---------------- ------ ---------- ------- ------ ----------
<S> <C> <C> <C> <C> <C>
Abernathy Group Long Term Capital (1) 125,000 0.5% 125,000 0 0.0%
Partners General Partner, LLC
Suite 3800
20 Exchange Place
New York, NY 10005
Murry Bowden 80,000 0.3% 80,000 0 0.0%
5847 San Felipe
Suite 3600
Houston, TX 77057
</TABLE>
11
<PAGE> 13
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares Shares Beneficially Owned
Name and Address of Before the Offering Being After the Offering
Beneficial Owner Number Percentage Offered Number Percentage
---------------- ------ ---------- ------- ------ ----------
<S> <C> <C> <C> <C> <C>
James Braniff III 65,000 0.3% 65,000 0 0.0%
1330 Post Oak Blvd.
Suite 2200
Houston, TX 77056
Jesus David Cabello (2) 625,000 2.6% 500,000 125,000 0.5%
18207 Theiss Mail Route Road
Spring, TX 77379
Joseph Rodney Canion (3) 4,281,500 16.3% 4,000,000 281,500 1.0%
Insource, Inc.
5 Post Oak Park
Suite 1655
Houston, TX 77027
H. Scott Caven, Jr. 49,000 0.2% 49,000 0 0.0%
2169 Troon Road
Houston, TX 77109
Kathleen Clark (4) 81,900 0.3% 50,000 31,900 0.1%
5025 Doliver Drive
Houston, TX 77056
Alfred L. Deaton III 81,000 0.3% 81,000 0 0.0%
408 Little John Lane
Houston, TX 77024
Jack and Nancy Dinerstein Family Investment 105,000 .4% 105,000 0 0.0%
Partnership Ltd.
Jack Dinerstein
6363 Woodway
Suite 1000
Houston, TX 77056
James Easterling 181,000 0.7% 170,000 11,000 0.1%
1800 St. James Place
Suite 206
Houston, TX 77056
James M. Harris 400,000 .6% 400,000 0 0.0%
7884 Eagle Lane
Suite 100
Spring, TX 77379
Timothy Harris 250,000 1.0% 250,000 0 0.0%
11819 Primwood Drive
Houston, TX 77070
</TABLE>
12
<PAGE> 14
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares Shares Beneficially Owned
Name and Address of Before the Offering Being After the Offering
Beneficial Owner Number Percentage Offered Number Percentage
---------------- ------ ---------- ------- ------ ----------
<S> <C> <C> <C> <C> <C>
Gerdes Huff Investments 112,500 0.5% 112,500 0 0.0%
Larry Gerdes
3353 Peachtree Road NE
Suite 1030
Atlanta, GA 30326
William D. Leven 65,000 0.3% 65,000 0 0.0%
1815 North Blvd.
Houston, TX 77098
Donald L. Lucas (5) 398,030 1.9% 300,000 98,030 0.3%
Sand Hill Financial
3000 Sand Hill Road
#3-210
Menlo Park, CA 94025
Oppenheimer Variable Account Funds for the 1,875,000 7.7% 1,875,000 0 0.0%
account of Oppenheimer Aggressive Growth
Fund
c/o OppenheimerFunds, Inc.
Attn: Banking Operations
6803 South Tucson Way
Englewood, CO 80112
Wit SoundView Corp. 136,500 .6% 136,500 0 0.0%
Tim Dunham
22 Gatehouse Road
Stamford, CT 06902
Lewis J. Schrock 100,000 0.4% 100,000 0 0.0%
Questia
3 Greenway Plaza
Suite 1700
Houston, TX 77046
Joseph M. Schwartz 25,000 0.1% 25,000 0 0.0%
Schwartz, Page & Harding
1300 Post Oak Road Blvd.
Suite 1400
Houston, TX 77056
Hartford Capital Appreciation Fund 1,212,500 5.0% 1,212,500 0 0.0%
c/o Wellington Management
Company, LLP
75 State Street
Boston, MA 02109
Attn: Tina Raymond
</TABLE>
13
<PAGE> 15
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares Shares Beneficially Owned
Name and Address of Before the Offering Being After the Offering
Beneficial Owner Number Percentage Offered Number Percentage
---------------- ------ ---------- ------- ------ ----------
<S> <C> <C> <C> <C> <C>
Hazelbrook Partners, L.P. 37,500 0.2% 37,500 0 0.0%
c/o Wellington Management
Company, LLP
75 State Street
Boston, MA 02109
Attn: Sean Higgins
</TABLE>
(1) Held in the name of the Abernathy Group Long Term Capital Partners
General Partner, LLC.
(2) Mr. Cabello served as the General Counsel of the Company from December
1998 - February 2000, as Secretary of the Company from February 1999 -
February 2000 and as Interim Chief Financial Officer from April 1999 -
July 1999.
(3) Mr. Canion has served as Co-Chief Executive Officer of the Company
since May 1999.
(4) Ms. Clark served as Vice President, Marketing of the Company from
December 1998 - February 2000.
(5) Mr. Lucas has served as a director of the Company since 1992. Mr.
Lucas shares are comprised of 285,530 shares held in the name of the
Donald L. Lucas Profit Sharing Trust, for which Mr. Lucas serves as a
Trustee and 112,500 shares held in the name of the Richard M. Lucas
Cancer Foundation, for which Mr. Lucas serves as chairman of the
board.
PLAN OF DISTRIBUTION
The selling stockholders purchased the shares of our common stock that
they are now selling from us in private transactions between the selling
stockholders and us.
The selling stockholders named in the table above or pledgees, donees,
transferees or other successors-in-interest selling shares received from a named
selling stockholder as a gift, partnership distribution or other
non-sale-related transfer after the date of this prospectus may sell the shares
from time to time. All of such persons are "selling stockholders" as that term
is used in this prospectus. The selling stockholders will act independently of
us in making decisions with respect to the timing, manner and size of each sale.
If a selling stockholder transfers a warrant, the transferee of the warrant may
not sell the shares of common stock issuable upon exercise of the warrants
pursuant to this Prospectus unless we appropriately amend or supplement this
Prospectus.
Sales by the selling stockholders may be made through the Nasdaq
SmallCap Market at prices and at terms then prevailing or at prices related to
the then current market price, or in negotiated transactions. The selling
stockholders may effect such transactions by selling the shares to or through
broker-dealers. The shares may be sold by one or more of, or a combination of,
the following:
14
<PAGE> 16
- a block trade in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
- privately negotiated transactions.
In addition, any securities covered by this prospectus which qualify
for sale pursuant to Rule 144 promulgated under the Securities Act of 1933 may
be sold under Rule 144 rather than pursuant to this prospectus.
We have been advised by the selling stockholders that they have not, as
of the date hereof, entered into any arrangement with a broker-dealer for the
sale of shares through a block trade, special offering, or secondary
distribution of a purchase by a broker-dealer. In effecting sales,
broker-dealers engaged by the selling stockholders may arrange for other
broker-dealers to participate. Broker-dealers will receive commissions or
discounts from the selling stockholders in amounts to be negotiated immediately
prior to the sale.
In connection with distributions of the shares or otherwise, the
selling stockholders may also enter into hedging transactions. For example, the
selling stockholders may:
- enter into transactions involving short sales of the shares of common
stock by broker-dealers;
- sell shares of common stock short and redeliver these shares to close
out the short position;
- enter into option or other types of transactions that require the
selling stockholders to deliver shares of common stock to a
broker-dealer, who will then resell or transfer the shares of common
stock under this prospectus; or
- loan or pledge shares of common stock to a broker dealer, who may
sell the loaned shares or, in the event of default, sell the pledged
shares.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from the selling stockholders or the
purchasers of the common stock in amounts to be negotiated in connection with
the sale. Broker-dealers and any other participating broker-dealers may be
deemed to be underwriters within the meaning of the Securities Act of 1933 in
connection with the sales, and any commission, discount or concession may be
deemed to be underwriting discounts or commissions under the Securities Act of
1933.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold
15
<PAGE> 17
unless they have been registered or qualified for sale in the applicable state
or an exemption from the registration or qualification requirement is available
and is complied with.
We have advised the selling stockholders that the anti-manipulation
rules under the Securities Exchange Act of 1934 may apply to sales of shares in
the market and to the activities of the selling stockholders and their
affiliates. The selling stockholders have advised us that during the time that
they may be engaged in the attempt to sell registered shares, the selling
stockholders will:
- not engage in any stabilization activity in connection with any of
Tricord Systems' securities;
- not bid for or purchase any of Tricord Systems' securities or any
rights to acquire Tricord Systems' securities, or attempt to induce
any person to purchase any of Tricord Systems' securities or rights
to acquire Tricord Systems' securities other than as permitted under
the Exchange Act;
- not effect any sale or distribution of the shares until after the
prospectus shall have been appropriately amended or supplemented, if
required, to set forth the terms thereof; and
- effect all sales of shares in broker's transactions through
broker-dealers acting as agents, in transactions directly with market
makers or in privately negotiated transactions where no broker or
other third party (other than the purchaser) is involved.
This offering will terminate on the earlier to occur of:
- the date on which all shares offered have been sold by the selling
stockholders; or
- the date on which the shares may be sold by the selling stockholders
under Rule 144(k) of the Securities Act of 1933.
We will pay the expenses of registering the shares under the Securities
Act of 1933, including registration and filing fees, printing expenses, fees and
disbursements of our counsel and accountants, all of our internal expenses, and
all legal fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the securities to be
offered are to be registered or qualified. In addition, we will also pay for the
cost of one counsel that is selected by the stockholders who hold a majority of
the shares being registered on this registration statement. The selling
stockholders will bear all discounts, commissions or other amounts payable to
underwriters, dealers or agents and all transfer taxes, as well as fees and
disbursements for any other legal counsel retained by the selling stockholders
that is in addition to the legal counsel we are responsible for paying.
Upon the occurrence of any of the following events, this prospectus
will be amended or supplemented to include additional disclosure before offers
and sales of the securities in question are made:
16
<PAGE> 18
- to the extent the securities are sold at a fixed price or at a price
other than the prevailing market price, the price would be set forth
in the prospectus;
- if the securities are sold in block transactions and the purchaser
acting in the capacity of an underwriter wishes to resell, the
arrangements would be described in the prospectus;
- if the selling stockholders sell to a broker-dealer acting in the
capacity as an underwriter, the broker-dealer will be identified in
the prospectus; and
- if the compensation paid to broker-dealers is other than usual and
customary discounts, concessions or commissions, disclosure of the
terms of the transaction would be included in the prospectus.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be
passed upon for us by Oppenheimer Wolff & Donnelly LLP, Palo Alto, California.
EXPERTS
Our consolidated financial statements and related financial statement
schedule, which are included or incorporated by reference to our Annual Report
on Form 10-K for the year ended December 31, 1999, have been so incorporated in
reliance on the reports of PricewaterhouseCoopers, LLP, given on authority of
said firm as experts in accounting and auditing.
DOCUMENTS INCORPORATED BY REFERENCE INTO THIS PROSPECTUS
The SEC allows us to "incorporate by reference" into this prospectus
the information contained in the documents we file with them, which means that
we can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be part of
this prospectus, and later information that we file with the SEC will update and
supersede this information. We are incorporating by reference the following
documents:
- our Annual Report on Form 10-K for the year ended December 31, 1999;
- our Quarterly Report on Form 10-Q for the quarter ended March 31,
2000;
- our current report on Form 8-K, as filed with the SEC on April 21,
2000;
- our registration statement on Form S-1, which describes our common
stock, including any subsequent amendments or reports filed for the
purpose of updating such description; and
17
<PAGE> 19
- our registration statement on Form 8-A, which describes our Series A
preferred stock, including any subsequent amendments or reports filed
for the purpose of updating such description.
We also incorporate by reference any future filings we make with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934 until the distribution is completed. Our SEC file number is 0-21366.
You may request a copy of these filings, at no cost, by contacting us
at:
Tricord Systems, Inc.
Attention: Investor Relations
2905 Northwest Boulevard, Suite 20
Plymouth, MN 55441
Telephone number: (612) 557-9005
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission. Copies of our reports, proxy statements and
other information may be inspected and copied at the following public reference
facilities maintained by the SEC:
Judiciary Plaza Citicorp Center 7 World Trade Center
450 Fifth Street, N.W. 500 West Madison Street Suite 1300
Washington, D.C. 20549 Chicago, Illinois 60621 New York, New York 10048
Copies of these materials can also be obtained by mail at prescribed
rates from the Public Reference Section of the SEC, 450 Fifth Street, N.W.,
Washington, D.C. 20549 or by calling the SEC at 1-800-SEC-0330. The SEC
maintains a web site that contains reports, proxy statements and other
information regarding us. The address of the SEC web site is http://www.sec.gov.
The Securities Act file number for our SEC filings is 0-27600.
Tricord Systems has filed a registration statement on Form S-3 under
the Securities Act with the Securities and Exchange Commission with respect to
the shares to be sold by the selling stockholders. This prospectus has been
filed as part of that registration statement. This prospectus does not contain
all of the information set forth in the registration statement because parts of
the registration statement are omitted in accordance with the rules and
regulations of the SEC. The registration statement is available for inspection
and copying as set forth above.
--------------------
This prospectus does not constitute an offer to sell, or a solicitation
of an offer to purchase, the securities offered by this prospectus or the
solicitation of a proxy, in any jurisdiction to or from any person to whom or
from whom it is unlawful to make an offer, solicitation of an offer or proxy
solicitation in that jurisdiction. Neither the delivery of this prospectus nor
any distribution of securities pursuant to this prospectus shall, under any
circumstances, create any implication that there has been no change in the
information set forth or incorporated herein by reference or in our affairs
since the date of this prospectus.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The aggregate estimated expenses (except the SEC registration fee,
which is an actual expense) to be paid by the registrant in connection with this
offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........................... $ 43,220
Accounting fees and expenses.................................................. 10,000
Legal fees and expenses....................................................... 50,000
Miscellaneous................................................................. 3,000
--------
Total................................................................ $106,220
========
</TABLE>
Note: None of the expenses listed above will be borne by the selling
stockholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General Corporation Law
("DGCL") empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that, despite the
adjudication of liability, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that, to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed
II-1
<PAGE> 21
exclusive of any other rights to which the indemnified party may be entitled;
and that the scope of indemnification extends to directors, officers, employees
or agents of a constituent corporation absorbed in a consolidation or merger and
persons serving in that capacity at the request of the constituent corporation
for another. Section 145 also empowers the corporation to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against or incurred by such person in any such capacity or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liabilities under
Section 145, including liabilities under the Securities Act.
Article VIII of the Company's Bylaws and Article VIII of the Company's
Certificate of Incorporation provides (a) for indemnification of the Company's
officers and directors to the full extent allowed by Delaware law and (b) that
the Company's directors do not have personal liability to the Company or its
stockholders for monetary damages for any breach of their fiduciary duty as
directors, except (i) for a breach of the duty of loyalty, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of the law, (iii) for willful or negligent violations of certain
provisions under the DGCL imposing certain requirements with respect to stock
repurchases, redemptions and dividends, or (iv) for any transaction from which
the director derived an improper personal benefit. Subject to these exceptions,
under Article VIII of the Bylaws and Article VIII of the Certificate of
Incorporation, directors do not have any personal liability to the Company or
its stockholders for any violation of their fiduciary duty. The Company has
directors and officers liability insurance which protects each director or
officer from certain claims and suits, including stockholder derivative suits,
even where the director may be determined to not be entitled to indemnification
under the DGCL and claims and suits arising under the Securities Act. The policy
may also afford coverage under circumstances where the facts do not justify a
finding that the director or officer acted in good faith and in a manner that
was in or not opposed to the best interests of the Company.
The Company has entered into indemnification agreements (collectively,
the "Indemnification Agreements") with certain of its directors containing
provisions that are in some respects broader than the specific indemnification
provisions contained in the DGCL. The Indemnification Agreements require the
Company, among other things, to indemnify such directors against certain
liabilities that may arise by reason of their status or service as directors
(other than liabilities arising from certain claims initiated by the director,
claims made not in good faith to enforce or interpret the indemnification
agreement and liabilities arising under Section 16(b) of the Exchange Act) and
to advance their expenses incurred as a result of any proceeding against them as
to which they could be indemnified.
The Company believes that the Indemnification Agreements are necessary
to attract and retain qualified persons as directors. The foregoing represents a
summary of the general effect of the DGCL, the Company's Bylaws and Certificate
of Incorporation, the Company's directors and officers liability insurance
coverage and the Indemnification Agreements for purposes of general description
only.
II-2
<PAGE> 22
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit Description of Exhibit
4.1 Certificate of Incorporation of Tricord Systems, Inc.
(incorporated by reference to exhibits to Tricord Systems'
Registration Statement on Form S-1 (File No. 33-48733)).
4.2 Amendment to Certificate of Incorporation of Tricord Systems, Inc.
(incorporated by reference to the exhibits to Tricord's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999
(file No. 0-21366)).
4.3 Bylaws of Tricord Systems, Inc. (incorporated by reference to the
exhibits to Tricord Systems' Registration Statement on Form S-1
(File No. 33-48733)).
4.4 Rights Agreement, dated as of October 25, 1994, between Tricord
Systems and Norwest Bank Minnesota, N.A. (incorporated by
reference to the exhibits to Tricord Systems' Annual Report on
Form 10-K for the year ended December 31, 1995 (file No. 0-21366)).
4.5 Amendment to Rights Agreement, dated as of January 30, 1999, between
Tricord Systems and Norwest Bank Minnesota, N.A. (incorporated by
reference to the exhibits to Tricord Systems' Annual Report on
Form 10-K for the year ended December 31, 1998 File No. 0-21366)).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP (filed
herewith electronically).
23.1 Consent of Oppenheimer Wolff & Donnelley LLP (included in Exhibit
5.1).
23.2 Consent of PricewaterhouseCoopers LLP (filed herewith electronically).
24.1 Powers of Attorney (filed herewith electronically).
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(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,
II-3
<PAGE> 23
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 a 20% 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any 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 be 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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.
(c) 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
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
II-4
<PAGE> 24
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
Securities Act and will be governed by the final adjudication of such issue.
(d) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
II-5
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
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 Minneapolis, State of Minnesota.
Dated: July 26, 2000 TRICORD SYSTEMS, INC.
By: /s/ JOHN J. MITCHAM
----------------------------------------------
John J. Mitcham
Chairman of the Board, Co-Chief Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints John J.
Mitcham and Steven E. Opdahl, and either of them, his true and lawful
attorney-in-fact and agent with full powers of substitution and resubstitution,
for and in his name, place and stead, in any and all capacities, to sign any or
all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on July 26, 2000 by the following persons
in the capacities indicated.
Signature Title
/s/ JOHN J. MITCHAM
---------------------------- Chairman of the Board and Co-Chief
John J. Mitcham Executive Officer (Principal Executive Officer
and Director)
/s/ STEVEN E. OPDAHL
---------------------------- Chief Financial Officer (Principal Financial
Steven E. Opdahl and Accounting Officer)
/s/ YUVAL ALMOG
---------------------------- Director
Yuval Almog
/s/ TOM R. DILLON
---------------------------- Director
Tom R. Dillon
/s/ DONALD L. LUCAS
---------------------------- Director
Donald L. Lucas
II-6
<PAGE> 26
/s/ FRED G. MOORE
---------------------------- Director
Fred G. Moore
II-7
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
Item No. Description Method of Filing
-------- ----------- ----------------
<S> <C> <C>
4.1 Certificate of Incorporation of Tricord
Systems ............................... Incorporated by reference to the exhibits
to Tricord Systems' Registration
Statement on Form S-1 (File No. 33-
48733).
4.2 Amendment to Certificate of
Incorporation of Tricord Systems ...... Incorporated by reference to the exhibits
to Tricord Systems' Quarterly Report on
Form 10-Q for the quarter ended March
31, 1999 (file No. 0-21366).
4.3 Bylaws of Tricord...................... Incorporated by reference to the exhibits
to Tricord Systems' Registration
Statement on Form S-1 (File No. 33-
48733).
4.4 Rights Agreement, dated as of October
25, 1994, between Tricord Systems and
Norwest Bank Minnesota, N.A............ Incorporated by reference to the exhibits
to Tricord Systems' Annual Report on
Form 10-K for the year ended December
31, 1995 (file No. 0-21366).
4.5 Amendment to Rights Agreement, dated
as of January 30, 1999, between Tricord
Systems and Norwest Bank Minnesota,
N.A.................................... Incorporated by reference to the exhibits
to Tricord Systems' Annual Report on
Form 10-K for the year ended December
31, 1998 (file No. 0-21366).
5.1 Opinion and Consent of Oppenheimer
Wolff & Donnelly, LLP.................. Filed herewith electronically.
23.1 Consent of Oppenheimer Wolff &
Donnelly, LLP.......................... Included in Exhibit 5.1.
23.2 Consent of PricewaterhouseCoopers
LLP.................................... Filed herewith electronically.
24.1 Powers of Attorney..................... Filed herewith electronically.
</TABLE>
