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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 8, 1999
REGISTRATION NO. 333-81109
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 5
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NETRIX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 54-1345159
(State or other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
13595 DULLES TECHNOLOGY DRIVE
HERNDON, VIRGINIA 22071
(703) 742-6000
(Address and Telephone Number of Principal Executive Offices)
LYNN C. CHAPMAN
PRESIDENT
13595 DULLES TECHNOLOGY DRIVE
HERNDON, VIRGINIA 22071
(703) 742-6000
(Name, Address and Telephone Number of Agent for Service)
WITH A COPY TO:
JAY R. SCHIFFERLI, ESQ.
KELLEY DRYE & WARREN LLP
TWO STAMFORD PLAZA
281 TRESSER BOULEVARD
STAMFORD, CONNECTICUT 06901
(203) 324-1400
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 this form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS 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 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 these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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EXPLANATORY NOTE
This Amendment No. 5 is filed for the sole purpose of updating Exhibit
5.1. No changes are made to the form of prospectus, and accordingly, Part I
of the registration statement is not amended hereby.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be incurred in
connection with the distribution of the securities being registered. The
expenses will be paid by Netrix Corporation.
TYPE OR NATURE OF EXPENSE AMOUNT TO BE PAID
SEC registration fee........................ $1,247.74
Accounting fees and expenses................ 5,000.00
Legal fees and expenses..................... 1,500.00
Miscellaneous............................... 1,000.00
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Total....................................... $8,747.74
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a Delaware corporation may 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 (a
"proceeding") (other than an action by or in the right of the corporation) by
reason of the fact that he 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, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with that action, suit or proceeding if he acted
in good faith and in a manner he 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 his conduct was unlawful. A
Delaware corporation may indemnify any person under Section 145 who was, is or
is 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 judgment in its favor,
by reason of such fact as provided in the preceding sentence, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of that action or suit, except that no
indemnification shall be made in respect of the an action or suit if he did not
act in good faith and in a manner he reasonably believed to be in or not opposed
to our best interests and unless, and then only to the extent that, a court of
competent jurisdiction shall determine upon application that he is fairly and
reasonably entitled to indemnity for those expenses as the court shall deem
proper. A Delaware corporation must indemnify any person who was successful on
the merits or otherwise in defense of any action, suit or proceeding or in
defense of any claim, issue or matter in any proceeding, by reason of such fact
as provided in the preceding two sentences against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection the
indemnified claim. A Delaware corporation may pay for the expenses (including
attorneys' fees) incurred by an officer or director in defending a proceeding in
advance of the final disposition to repay the amount advances if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for any
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acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) in respect of certain unlawful dividend payments
or stock redemptions or repurchases, or (iv) for any transaction from which the
director derived an improper personal benefit. The DGCL permits the purchase of
insurance on behalf of directors and officers against any liability asserted
against directors and officers and incurred by them in their capacity as an
officer or director, or arising out of their status as an officer or director,
whether or not the corporation would have the power to indemnify directors and
officers against that liability. We have acquired officers' and directors'
liability insurance of $1 million for members of our Board of Directors and
executive officers.
At present, there is no pending litigation or other proceeding involving
any of our directors or officers for which indemnification is being sought, and
we are not aware of any threatened litigation that may result in claims for
indemnification by any officer or director.
Article Eighth of our certificate of incorporation provides that we will
indemnify all persons we are permitted to indemnify under the Delaware General
Corporation Law, and that this indemnification will be to the fullest extent
permitted the Delaware General Corporation Law.
ITEM 16. EXHIBITS
The exhibits listed below have been filed as part of this registration
statement.
4.1* Amended and restated certificate of incorporation (incorporated into
this registration statement by reference to Exhibit 3.1 to Netrix's
registration statement on Form S-1 filed on September 18, 1992, as
amended (File No. 33-50464) (the "1992 S-1").
4.2* Amended and restated by-laws of Netrix (incorporated into this
registration statement by reference to Exhibit 3.2 of the 1992 S-1).
4.3* Specimen certificate of common stock of the registrant (incorporated
into this registration statement by reference to Exhibit 4.2 to the
1992 S-1).
4.4* Certificate of designations for the form of Series A 8% convertible
preferred stock.
4.5* Supplemental certificate of designations for the form of Series A 8%
convertible preferred stock (incorporated by reference to Exhibit
4.2 to Netrix's quarterly report on Form 10-Q filed on August 16,
1999, Commission file no. 0-50464).
4.6* Form of Warrant issued to Renwick Securities, Inc. (incorporated
by reference to Exhibit 10.3 to Netrix's quarterly report on Form
10-Q filed on August 16, 1999, Commission file no. 0-50464).
4.7* Form of Warrant issued to Coast Business Credit (incorporated by
reference to Exhibit 10.2 to Netrix's quarterly report on Form 10-Q
filed on August 16, 1999, Commission file no. 0-50464).
4.8** Amendment to Certificate of Incorporation dated August 26, 1999.
4.9* Form of Warrant issued to Kaufman Bros. L.P. (incorporated by
reference to Exhibit 4.6 to Netrix's quarterly report on Form
10-Q filed November 15, 1999, (Commission file no. 0-50464)).
5.1 Opinion on Legality.
10.1* Agreement and Plan of Merger between Netrix Corporation and
OpenROUTE Networks, Inc. dated September 30, 1999 (incorporated by
reference to Exhibit 2.1 to Netrix's current report on Form 8-K
filed on October 14, 1999, Commission file no. 0-50464).
10.2* Amendment to Agreement and Plan of Merger between Netrix Corporation
and OpenROUTE Networks, Inc. dated November 9, 1999 (incorporated by
reference to Exhibit 10.4 to Netrix's quarterly report on Form 10-Q
filed on November 15, 1999, Commission file No. 0-50464).
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23.1** Consent of Arthur Andersen LLP.
23.2 Consent of Kelley Drye & Warren LLP (contained in Exhibit 5.1).
24** Power of Attorney (included within signature page).
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* Incorporated by reference.
** Filed previously
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
A. To file, during any period in which offers or sales are being made,
a post-effective amendment of this registration statement:
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933.
(ii) To include in the prospectus any facts or events arising after
the effective date of the registration statement (or 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.
(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.
B. That, for the purposes 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.
C. To remove from registration by means of post-effective amendment any
of the securities registered which remain unsold at the termination
of the offering.
D. 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 any charter
provisions, by-laws, contract, arrangements, statute 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 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 a 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.
E. Subject to the terms and conditions of Section 15(d) of the
Securities Exchange Act of 1934, as amended, Netrix Corporation
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hereby undertakes to file with the Securities and Exchange
Commission such supplementary and periodic information, documents
and reports as may be prescribed by any rule or regulation of the
Commission heretofore or hereafter duly adopted pursuant to
authority conferred in that Section.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, Netrix Corporation certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and authorizes this
registration statement to be signed on its behalf by the undersigned, in the
City of Herndon, State of Virginia, on December 7, 1999.
NETRIX CORPORATION
By: /S/ STEVEN T. FRANCESCO
------------------------
Steven T. Francesco
Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
amendment to the registration statement has been signed by the following persons
in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ STEVEN T. FRANCESCO Chief Executive Officer and
- ------------------------------- Chairman of the Board of Directors December 7, 1999
Steven T. Francesco Principal Executive Officer)
/s/ LYNN C. CHAPMAN President, Chief Operating Officer December 7, 1999
- ------------------------------- and Director
Lynn C. Chapman
/s/ PETER J. KENDRICK Vice President-Finance and Administration December 7, 1999
- ------------------------------- and Chief Financial Officer
Peter J. Kendrick (Principal Financial and Accounting
Officer)
/s/ GREGORY MCNULTY* Director December 7, 1999
- -------------------------------
Gregory McNulty
/s/ JOHN M. FACCIBENE* Director December 7, 1999
- -------------------------------
John M. Faccibene
/s/ RICHARD YALEN* Director December 7, 1999
- -------------------------------
Richard Yalen
/s/ DOUGLAS J. MELLO* Director December 7, 1999
- -------------------------------
Douglas J. Mello
</TABLE>
* By Steven T. Francesco, attorney-in-fact.
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ITEM 27. EXHIBITS
(a) The exhibits listed below have been filed as part of this
registration statement.
EXHIBIT NO. DESCRIPTION
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The exhibits listed below have been filed as part of this registration
statement.
4.1* Amended and restated certificate of incorporation (incorporated into
this registration statement by reference to Exhibit 3.1 to Netrix's
registration statement on Form S-1 filed on September 18, 1992, as
amended (File No. 33-50464) (the "1992 S-1").
4.2* Amended and restated by-laws of Netrix (incorporated into this
registration statement by reference to Exhibit 3.2 of the 1992 S-1).
4.3* Specimen Certificate of common stock of the registrant (incorporated
into this registration statement by reference to Exhibit 4.2 to the
1992 S-1).
4.4* Certificate of designations for the form of Series A 8% convertible
preferred stock.
4.5* Supplemental certificate of designations for the form of Series A 8%
convertible preferred stock (incorporated into this registration
statement by reference to Exhibit 4.2 to Netrix's quarterly report
on Form 10-Q filed on August 16, 1999, Commission file no. 0-50464).
4.6* Form of warrant issued to Renwick Securities, Inc. (incorporated
into this registration statement by reference to Exhibit 10.3 to
Netrix Corporation's quarterly report on Form 10-Q filed on August
16, 1999, Commission file no. 0-50464).
4.7* Form of warrant issued to Coast Business Credit (incorporated into
this registration statement by reference to Exhibit 10.2 to Netrix's
quarterly report on Form 10-Q filed on August 16, 1999, Commission
file no. 0-50464).
4.8** Amendment to Certificate of Incorporation dated August 26, 1999.
4.9* Form of Warrant issued to Kaufman Bros. L.P. (incorporated by
reference to Exhibit 4.6 to Netrix's quarterly report on Form
10-Q filed November 15, 1999, (Commission file no. 0-50464)).
5.1 Opinion on Legality.
10.1* Agreement and Plan of Merger between Netrix Corporation and
OpenROUTE Networks, Inc. (incorporated by reference to Exhibit 2.1
to Netrix's current report on Form 8-K filed on October 14, 1999,
Commission file no. 0-50464).
10.2* Amendment to Agreement and Plan of Merger between Netrix Corporation
and OpenROUTE Networks, Inc. dated November 9, 1999 (incorporated by
reference to Exhibit 10.4 to Netrix's quarterly report on Form 10-Q
filed on November 15, 1999, Commission file No. 0-50464).
23.1** Consent of Arthur Andersen LLP.
23.2 Consent of Kelley Drye & Warren LLP (contained in Exhibit 5.1).
24** Power of attorney (included within signature page).
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*Incorporated by reference
**Filed previously
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KELLEY DRYE & WARREN
TWO STAMFORD PLAZA
281 TRESSER BOULEVARD
STAMFORD, CONNECTICUT 06901-3229
(203) 324-1400
EXHIBIT 5.1
December 7, 1999
Netrix Corporation
13595 Dulles Technology Drive
Herndon, VA 20171
Ladies and Gentlemen:
We have acted as special counsel to Netrix Corporation, a Delaware
corporation (the "Company"), in connection with the registration statement on
Form S-3 (No. 333-81109) (the "Registration Statement") pertaining to the
proposed offering of 1,413,660 shares of common stock, $.05 par value per share
(the "Shares"), as described in the Registration Statement. The Shares are
issuable upon the exercise of certain warrants described in the Registration
Statement (the "Warrants") and the Company's Series A 8% convertible preferred
stock (the "Preferred Stock"). As such counsel, you have requested our opinion
as to the matters described herein relating to the Shares. All capitalized terms
used but not defined herein shall have the meanings assigned to them in the
Registration Statement.
We have examined the Company's certificate of incorporation and by-laws,
in each case as amended through the date hereof; the certificate of
designations, as supplemented, with respect to the Preferred Stock (the
"Certificate of Designations"); the agreement related to the Warrants (the
"Warrant Agreement"); minutes of the Company's corporate proceedings through the
date hereof, as made available to us by officers of the Company; an executed
copy of the Registration Statement, as amended to date, and all exhibits thereto
in the form filed with the Securities and Exchange Commission; and such matters
of law and such documents and other instruments as we have deemed necessary by
us in order to deliver the within opinion. In the course of our examination, we
have assumed the genuineness of all signatures, the authority of all signatories
to sign on behalf of their principals, if any, the authenticity of all documents
submitted to us as original documents and the conformity to original documents
of all documents submitted to us as certified or photostatic copies. As to
certain factual matters, we have relied upon information furnished to us by
officers of the Company.
Based on the foregoing and solely in reliance thereon, it is our opinion
that the Shares have been duly authorized, and when they are issued upon
conversion of the Preferred Stock or exercise of the Warrants, against payment
of the consideration therefore contemplated by the Certificate of Designations
or Warrant Agreements, as the case may be, the Shares will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and to the reference to it in the prospectus included
therein under the caption "Legal Matters." We further consent to the use of our
name and the statement with respect to us under the caption "Risk Factors - The
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staff of the Securities and Exchange Commission has indicated that it believes
one of the finders in our recent private placement may have acted as an
unregistered broker-dealer in violation of the Securities Exchange Act of 1934
and this could subject us to a repurchase obligation that could have an adverse
effect on our financial position."
Very truly yours,
KELLEY DRYE & WARREN LLP
By: /S/ JAY R. SCHIFFERLI
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A Member of the Firm
