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As filed with the Securities and Exchange Commission on December 11, 1996
Registration No. 33-80683
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FORE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 25-1628117
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
174 THORN HILL ROAD
WARRENDALE, PENNSYLVANIA 15086-7535
(412) 772-6600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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ERIC C. COOPER
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
FORE SYSTEMS, INC.
174 THORN HILL ROAD
WARRENDALE, PENNSYLVANIA 15086-7586
(412) 772-6600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
CHRISTOPHER H. GEBHARDT
CORPORATE COUNSEL
FORE SYSTEMS, INC.
174 THORN HILL ROAD
WARRENDALE, PENNSYLVANIA 15086-7586
(412) 933-8119
Approximate date of commencement of proposed sale to public: From time to
time 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. [ ]
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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. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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SUBJECT TO COMPLETION, DATED DECEMBER 11, 1996
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BY ANY SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES
LAWS OF ANY STATE.
FORE SYSTEMS, INC.
744,810 SHARES
COMMON STOCK
(par value $.01 per share)
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The common stock, par value $.01 per share ("Common Stock"), of FORE
Systems, Inc. (the "Company") is quoted on the Nasdaq National Market. The last
reported sale price of the Common Stock on the Nasdaq National Market on
December 9, 1996 was $39 per share. All share numbers stated herein reflect the
number of shares of the Company's Common Stock held in the aggregate by the
Selling Stockholders (as defined below) and by each Selling Stockholder as of
January 23, 1996, the effective date (the "Effective Date") of the Registration
Statement (as defined below) of which this Prospectus forms a part, and have
been retroactively adjusted to give effect to a two-for-one Common Stock split
in the form of a Common Stock dividend paid on June 3, 1996. A portion of such
Shares may have been sold by each Selling Stockholder subsequent to the
Effective Date.
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SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR CERTAIN CONSIDERATIONS
RELEVANT TO AN INVESTMENT IN THE COMMON STOCK.
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This Prospectus relates to an aggregate of 744,810 shares of Common
Stock (the "Shares"), of which (i) 268,508 shares were held of record by
Bessemer Venture Partners III L.P. ("Bessemer") as of the Effective Date, (ii)
86,446 shares were held of record by Fred Sepah as of the Effective Date, 86,446
shares were held of record by Nasser Hiekali as of the Effective Date, 86,446
shares were held of record by Himanshu Vaishnav as of the Effective Date and
86,446 shares were held of record by Steve Krichman as of the Effective Date,
(iii) 54,922 shares were held of record by California Micro Devices Corporation
("CMD") as of the Effective Date, (iv) an aggregate of 48,150 shares were held
of record as of the Effective Date by BVP III Special Situations L.P., William
T. Burgin, G. Felda Hardymon, Michael I. Barach, Christopher Gabrieli, Quentin
Corporation, Richard R. Davis, Neill H. Brownstein, Bradford Mills, David J.
Cowan, Belisarius Corporation, Barbara M. Henagan, Robert H. Buescher, Robi L.
Soni, Gautam A. Prakash, John K. Rodakis, Gabrieli Family Foundation, Thomas F.
Ruhm, Adam P. Godfrey, Rodney A. Cohen and WS Investment Company '95B
(collectively, the "Investors") and (v) 27,446 shares are held of record by
Robert W. Coltun. Bessemer has indicated its intention to distribute an
aggregate of 26,852 of the shares held of record by it as of the Effective Date
to Bessemer Ventures, Inc. and the Investors other than WS Investment Company
`95B. Bessemer, Fred Sepah, Nasser Hiekali, Himanshu Vaishnav, Steve Krichman,
CMD, the Investors, Bessemer Ventures, Inc. and Robert W. Coltun are referred to
herein collectively as the "Selling Stockholders." The purpose of this
Prospectus is to permit the Selling Stockholders, if they desire, to dispose of
some or all of the Shares at such times and at such prices as they choose,
whether such sales will be made and the timing and amount of any sale is within
the sole discretion of each Selling Stockholder. The Company has been advised
that any sales of shares will be effected in open market or privately negotiated
transactions. See "Plan of Distribution."
Of the 744,810 shares offered hereby, an aggregate of 717,364 shares
were acquired by Bessemer, Fred Sepah, Nasser Hiekali, Himanshu Vaishnav, Steve
Krichman, CMD and the Investors in connection with the merger, effective
November 17, 1995, of Benjamin Acquisition Corporation ("Benjamin"), a wholly
owned subsidiary of the Company, with and into CellAccess Technology, Inc.
("CAT"). The balance of 27,446 shares offered hereby were acquired by Robert W.
Coltun on April 14, 1995 in connection with the exchange of all the issued and
outstanding shares of capital stock of RainbowBridge Communications, Inc.
("RainbowBridge") for shares of Common Stock.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is December __ , 1996.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
located at 7 World Trade Center, Suite 1300, New York, New York 10048 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
materials can be obtained from the Public Reference Section of the Commission,
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
The Company has filed with the Commission a registration statement on
Form S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the offering made hereby. This Prospectus
does not contain all of the information set forth in the Registration
Statement, certain portions of which are omitted in accordance with the rules
and regulations of the Commission. Statements contained in this Prospectus as
to the contents of any agreement or other document are summaries which are not
necessarily complete and in each instance reference is made to the copy of such
agreement or other document filed as an exhibit to the Registration Statement,
each such statement herein being qualified in all respects by such reference.
Such additional information may be obtained from the Commission's principal
office in Washington, D.C. as set forth above. For further information,
reference is hereby made to the Registration Statement. In addition, reports,
proxy statements, registration statements and certain other filings made with
the Commission through its Electronic Data Gathering, Analysis and Retrieval
("EDGAR") system are publicly available through the Commission's site on the
Internet's World Wide Web, located at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1996, the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996, the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1996, the Company's Report on Form 10-C
dated June 13, 1996 and the description of the Common Stock contained in the
Company's Registration Statement on Form 8-A under the Exchange Act are hereby
incorporated by reference in this Prospectus. All reports and other documents
filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date hereof and prior to the termination of the
offering described herein shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of the filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus. The
Company will provide, without charge, to each person to whom this Prospectus is
delivered, upon written or oral request of such person, a copy (without certain
exhibits) of any or all documents incorporated by reference in this Prospectus.
Requests for such copies should be directed to Investor Relations, FORE
Systems, Inc., 174 Thorn Hill Road, Warrendale, Pennsylvania 15086-7586,
telephone (412) 772-6600.
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RISK FACTORS
Prospective investors should consider carefully the following factors,
in addition to the other information contained in this Prospectus or
incorporated herein by reference, in evaluating an investment in the shares of
Common Stock offered hereby.
The following risk factors, in addition to the risks described
elsewhere in the reports and other filings incorporated herein by reference, as
modified or superseded by documents that are subsequently filed and
incorporated by reference herein, may cause actual results to differ materially
from those in any forward-looking statements contained or incorporated by
reference herein or which are contained under the caption "Management's
Discussion and Analysis of Financial Condition and Results of Operations" in
the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1996, the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996 and Annual Report on Form 10-K for the fiscal year
ended March 31, 1996, as well as under the caption "Business - Strategy" in
such Form 10-K and other such statements contained in the reports and other
filings incorporated herein by reference or made in the future by the Company
or its representatives:
SUBSTANTIAL DEPENDENCE ON ATM; EARLY STAGE OF MARKET DEVELOPMENT. Asynchronous
Transfer Mode ("ATM") is an industry standard for high-speed local-area and
wide-area networking. Although many network equipment suppliers have introduced
or announced plans to introduce ATM-based products and several public carriers
have implemented or announced plans to implement ATM services, the ATM market
is still emerging and only a limited number of users have installed ATM
networks. Sales of ATM networking products and related services are expected
to continue to account for a substantial portion of the Company's revenue for
the foreseeable future. The Company's business strategy is based on the belief
that ATM will be the technology underlying switched enterprise-wide networks as
well as the interactive broadband architecture of future network environments.
Accordingly, the Company's business opportunities and results of operations
will be dependent on continued growth and market acceptance of ATM technology
and in the ability of the Company to offer products that provide a smooth and
seamless migration path from existing networking technologies to ATM. In the
event that networking products based on ATM fail to achieve broad commercial
acceptance, the Company would be materially adversely affected.
MANAGEMENT OF GROWTH. The Company has experienced rapid growth, both in sales
and in the number of its employees, which has placed and could continue to place
a significant strain on its resources. Certain of the Company's senior
management and other key employees have not had previous experience in managing
a large company. The integration of ALANTEC Corporation, which was acquired by
the Company in February 1996, in addition to the integration of five smaller
companies, three of which were acquired during the 1996 fiscal year and two of
which were acquired during the 1997 fiscal year, has required, and will continue
for the foreseeable future to require, substantial attention from senior
management and key employees of the Company. In addition, the Company may in the
future acquire additional businesses, products or technologies. There can be no
assurance that the Company will be able to manage its expansion or integrate the
operations of any businesses, products or technologies it has acquired or may in
the future acquire; the failure to do so could materially adversely affect the
Company.
EVOLVING INDUSTRY STANDARDS AND RAPID TECHNOLOGICAL DEVELOPMENT. The markets
for the Company's products are characterized by evolving industry standards and
rapid technological development. The Company's success will depend, in part,
upon its ability to influence the development of industry standards, to
maintain its technological leadership, to enhance and expand its existing
product offerings and to develop in a timely manner new products which achieve
market acceptance. The Company believes that its ability to compete
successfully is also dependent upon the continued compatibility and
interoperability of its products with products and architectures offered by
various vendors and on the timely development of industry standards. There can
be no assurance that the Company will be able effectively to address the
compatibility and interoperability issues raised by technological changes or
that new industry standards will be developed in a timely manner. The Company
would be materially adversely affected if it were to incur significant delays
or be unsuccessful in developing new products or enhancements, if any such
products or enhancements did not gain market acceptance, or if a delay in the
creation of industry standards resulted in customers deciding not to deploy ATM
in their networks or to delay such deployment. In addition, there can be no
assurance that products or technologies developed by others will not render the
Company's products noncompetitive or obsolete.
DEPENDENCE ON KEY PERSONNEL. The Company's success to date has been
significantly dependent on the contributions of its founders, Eric C. Cooper,
Onat Menzilcioglu, Francois J. Bitz and Robert D. Sansom, and the loss of the
services of one or more of them could have a material adverse effect on the
Company. The Company's success also depends, to a significant extent, upon a
number of other key employees. The loss of the services of one or more of these
key employees also could have a material adverse effect on the Company. The
Company believes that its future success will depend not merely on retaining
its key personnel, but also upon its ability to attract and retain additional
highly-skilled technical, managerial, manufacturing, sales and marketing
personnel. Competition for such personnel is intense. There can be no assurance
that the Company will be able to anticipate accurately, or to obtain, the
personnel that it may require in the future. The failure to obtain needed
personnel, when and as needed, could have a material adverse effect on the
Company.
DEPENDENCE ON CUSTOMERS. Revenue from United States government agencies
represented approximately 7%, 7% and 10% of the Company's revenue on a
consolidated basis for the years ended March 31, 1996, 1995 and 1994,
respectively. These United States government customers include more than twenty
different agencies, each of which makes its own procurement decisions. These
government customers may from time to time reduce their budgets and
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expenditures or cancel orders. In addition, current Congressional initiatives to
balance the federal budget could curtail spending of government agencies in a
manner which may lead such customers to reduce their expenditures for the
Company's products. Reductions in sales to current customers, if not offset by
sales to new or existing customers, could have a material adverse effect on the
Company.
INTERNATIONAL SALES, REGULATORY STANDARDS AND CURRENCY EXCHANGE. International
sales accounted for approximately 39% of the Company's revenue on a consolidated
basis for the year ended March 31, 1996 and approximately 33% of the Company's
revenue on a consolidated basis for the quarter ended September 30, 1996. The
Company expects that international sales will continue to be a significant
portion of its business as it seeks to expand its international presence.
However, there can be no assurance that the Company's revenue from international
sales will continue to increase in the future; a decline in international sales
could have a material adverse effect on the Company. While the Company's current
products are designed to meet relevant regulatory requirements of foreign
markets in which they are sold, any inability to obtain any required foreign
regulatory approvals on a timely basis could have a material adverse effect on
the Company. Additionally, the Company's international business may be affected
by changes in demand resulting from fluctuations in currency exchange rates and
local purchasing practices, including seasonal fluctuations in demand and slower
payment of invoices, as well as by risks such as increases in duty rates,
difficulties in distribution and constraints upon international trade.
EFFECT OF ECONOMIC AND MARKET CONDITIONS. Sales of networking products
fluctuate, from time to time, based on numerous factors, including customers'
capital spending levels and general economic conditions. Future declines in
networking product sales, as a result of general economic conditions or for any
other reason, could have a material adverse effect on the Company.
LIMITED OPERATING HISTORY; POTENTIAL FLUCTUATIONS IN OPERATING RESULTS. The
Company was founded in April 1990 and first shipped products in November 1991.
Although the Company has historically experienced increasing sales, the Company
may experience fluctuations in operating results in the future, both on an
annual and a quarterly basis, caused by various factors, including general
economic conditions, specific economic conditions in the computer networking
industry, the size and timing of customer orders, the pattern and seasonality
of customer purchasing cycles, the introduction of new products by the Company
or its competitors, the mix of products sold and the mix of product channels
through which products are sold. In addition, as a strategic response to a
changing competitive environment, the Company may elect, from time to time, to
make certain pricing, product or marketing decisions, and any such decisions
could have a material adverse effect on its periodic results of operations,
including revenue and profits from quarter to quarter.
POTENTIAL VOLATILITY OF STOCK PRICE. The market price of the Company's Common
Stock has been and may continue to be volatile. Factors such as fluctuations in
the Company's operating results, announcements of technological innovations or
new products by the Company or its competitors, developments with respect to
patents or proprietary rights, changes in financial estimates by, or
expectations or recommendations of, securities analysts, general market
conditions and sales of substantial amounts of the Company's Common Stock in
the public market, or the prospect of such sales, may have a significant effect
on the market price of its Common Stock.
ANTITAKEOVER EFFECT OF CERTAIN CHARTER, BY-LAW AND OTHER PROVISIONS. Certain
provisions of the Company's Amended and Restated Certificate of Incorporation,
as amended, and Amended and Restated By-laws and Delaware law could have the
effect of making it more difficult for a third party to acquire, or of
discouraging a third party from attempting to acquire, control of the Company.
Such provisions could limit the price that certain investors might be willing
to pay in the future for shares of the Company's Common Stock. Certain of such
provisions allow the Company to issue preferred stock with rights senior to
those of the Common Stock and impose various procedural and other requirements
which could make it more difficult for stockholders to effect certain corporate
actions.
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USE OF PROCEEDS
The Company will not derive any proceeds from the sale of any of the
Shares offered hereby.
THE SELLING STOCKHOLDERS
Of the 744,810 shares offered hereby, an aggregate of 717,364 shares
were acquired by the Selling Stockholders other than Robert W. Coltun in
connection with the merger, effective November 17, 1995, of Benjamin, a wholly
owned subsidiary of the Company, with and into CAT (the "CAT Merger") pursuant
to an Agreement and Plan of Reorganization, dated as of November 13, 1995, by
and among the Company, Benjamin, CAT, Fred Sepah, Nasser Hiekali, Himanshu
Vaishnav and Steve Krichman (the "CAT Agreement") or, as to 18,844 shares
offered hereby by Bessemer Ventures, Inc. and 8,008 of the shares offered
hereby by the Investors other than WS Investment Company `95B, through a
partnership distribution of shares received by Bessemer in connection with the
CAT Merger. Prior to the CAT Merger, Fred Sepah, Himanshu Vaishnav and David
J. Cowan, the nominee of Bessemer, were directors of CAT. Fred Sepah served as
CAT's President and Chief Technical Officer, Himanshu Vaishnav served as CAT's
Executive Vice President Marketing and Sales and Chief Financial Officer and
Nasser Hiekali and Steve Krichman served as CAT's director of hardware
development and CAT's director of software development, respectively. Bessemer,
Fred Sepah, Nasser Hiekali, Himanshu Vaishnav and Steve Krichman were the
holders of all the Common Stock of CAT outstanding immediately prior to the
effective time of the CAT Merger, and Bessemer was the holder of 647,937 shares
of the Series A Preferred Stock of CAT which represented approximately 58% of
the Series A Preferred Stock of CAT outstanding immediately prior to the
effective time of the CAT Merger. As of December 19, 1995, the number of shares
of Common Stock held by each of Bessemer, Fred Sepah, Nasser Hiekali, Himanshu
Vaishnav, Steve Krichman and David J. Cowan was 268,508, 259,342, 259,342,
259,342, 259,342 and 1,848, respectively. Assuming that all shares offered by
them hereby are sold, the number of shares owned by each of Bessemer, Fred
Sepah, Nasser Hiekali, Himanshu Vaishnav, Steve Krichman and David J. Cowan
will be 0, 172,896, 172,896, 172,896, 172,896 and 0, respectively.
The balance of 27,446 Shares offered hereby were acquired by Robert W.
Coltun on April 14, 1995 in connection with the exchange of all the issued and
outstanding shares of capital stock of RainbowBridge for shares of Common Stock
(the "RBC Transaction") pursuant to a Share Exchange Agreement, dated as of
March 31, 1995, by and among the Company, RainbowBridge, Robert W. Coltun and
Eileen Coltun (the "RBC Agreement"). Robert W. Coltun was the holder of all the
outstanding capital stock of RainbowBridge and received in exchange therefor
109,788 shares of Common Stock. Prior to the RBC Transaction, Robert W. Coltun
served as the President and Treasurer of RainbowBridge. Assuming that all
shares offered by him hereby are sold, Robert W. Coltun will own 54,894 shares
of Common Stock.
Pursuant to the terms of the CAT Agreement, the Company was obligated
to file at its expense one registration statement on Form S-3 under the
Securities Act and to use its best efforts to cause such registration statement
to become effective and to remain current and effective for up to two (2) years
following effectiveness so as to permit a public offering of all of the shares
of Common Stock other than the Founder Restricted Registrable Shares (as
defined below) issued by the Company in connection with the CAT Merger. The
Registration Statement of which this Prospectus forms a part constituted such
registration statement. In addition, pursuant to the terms of the CAT
Agreement, the Company was obligated to file a registration statement on Form
S-8 under the Securities Act (the "Form S-8 Registration Statement") and to use
its best efforts to cause such registration statement to become effective and
to remain current and effective for up to two years following effectiveness so
as to permit a public offering of up to an aggregate of 691,584 additional
shares of Common Stock (the "Founder Restricted Registrable Shares") held of
record by Fred Sepah, Nasser Hiekali, Himanshu Vaishnav and Steve Krichman as
of the Effective Date. The Form S-8 Registration Statement became effective on
January 31, 1996 and Post-Effective Amendment No.1 thereto became effective on
September 23, 1996.
Pursuant to the terms of the RBC Agreement, Robert W. Coltun was
entitled to require that the Company include up to 25% of the number of shares
of Common Stock acquired by him in connection with the RBC Transaction in any
registration statement filed by the Company on its behalf or on behalf of any
of its securityholders on or before April 14, 1996. Robert W. Coltun exercised
such right to require that the Company include 27,446 shares in the
Registration Statement of which this Prospectus forms a part. The Company has
agreed to indemnify Robert W. Coltun against certain liabilities in connection
with the offering made hereby, including liabilities under the Securities Act.
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PLAN OF DISTRIBUTION
The purpose of this Prospectus is to permit the Selling Stockholders,
if they desire, to dispose of some or all of the Shares at such times and at
such prices as they choose. Whether sales of Shares will be made, and the
timing and amount of any sale made, is within the sole discretion of the
Selling Stockholders. The Company has been advised that the Selling
Stockholders intend to make any sales of Shares in open-market transactions at
prevailing market prices or in privately negotiated transactions (which may
include a transaction with a market maker). Negotiated block transactions may
be at prices which differ from prevailing prices as reported on the Nasdaq
National Market. Usual and customary commissions or specially negotiated
brokerage fees may be paid by the Selling Stockholders in connection with such
sales.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K of the Company for the year ended
March 31, 1996 have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
VALIDITY OF COMMON STOCK
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Morgan, Lewis & Bockius LLP, Pittsburgh,
Pennsylvania. As of December 9, 1996, Marlee S. Myers, a partner of Morgan,
Lewis & Bockius, LLP, beneficially owned 4,000 shares of the Common Stock of
the Company and held options to acquire up to 40,000 shares of the Company's
Common Stock.
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=============================================================
No person has been authorized to give any information
or to make any representations other than those contained in
this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to
sell or the solicitation of an offer to buy any securities
other than the securities to which it relates or an offer to
sell or the solicitation of an offer to buy such securities
in any circumstances in which such offer or solicitation is
unlawful. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs
of the Company since the date hereof or that the information
contained herein is correct as of any time subsequent to its
date.
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TABLE OF CONTENTS
Available Information................................2
Incorporation of Certain Information
by Reference.......................................2
Risk Factors.........................................3
Use of Proceeds......................................6
The Selling Stockholders.............................6
Plan of Distribution.................................6
Experts..............................................7
Validity of Common Stock.............................7
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744,810 SHARES
FORE SYSTEMS, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
=============================================================
<PAGE> 9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Following is an estimate of the expenses to be incurred in connection
with the offering and sale of the securities being registered, other than
selling commissions:
<TABLE>
<S> <C>
SEC registration fee..................... $ 6,967
Blue Sky fees and expenses .............. 2,500
Legal fees and expenses.................. 3,750
Miscellaneous............................ 1,783
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Total.................................... $ 15,000
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</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, in its certificate of incorporation, to limit or
eliminate, subject to certain statutory limitations, the liability of directors
to the corporation or its stockholders for monetary damages for breaches of
fiduciary duty, except for liability (a) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (b) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) under Section 174 of the DGCL, or (d) for any transaction
from which the director derived an improper personal benefit. Article Eighth of
the Company's Amended and Restated Certificate of Incorporation, as amended,
provides that the personal liability of directors of the Company is eliminated
to the fullest extent permitted by Section 102(b)(7) of the DGCL.
Under Section 145 of the DGCL, a corporation has the power to
indemnify directors and officers under certain prescribed circumstances and
subject to certain limitations against certain costs and expenses, including
attorneys' fees actually and reasonably incurred in connection with any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
to which any of them is a party by reason of his being a director or officer of
the corporation if it is determined that he acted in accordance with the
applicable standard of conduct set forth in such statutory provision. Article
VII of the Company's Amended and Restated By-Laws provides that the Company
will 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 by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another entity, against certain liabilities,
costs and expenses. Article VII further permits the Company to maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent of another entity against any liability
asserted against such person and incurred by such person in any such capacity
or arising out of his status as such, whether or not the Company would have the
power to indemnify such person against such liability under the DGCL. The
Company maintains directors' and officers' liability insurance.
II - 1
<PAGE> 10
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this registration
statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------------- ----------------------------------------------------------------------------------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3.1 to FORE Systems, Inc.'s
Form 10-K for the year ended March 31, 1996 (File No. 0-24156)).
3.2 Amended and Restated By-laws of FORE Systems, Inc. (incorporated by reference to
Exhibit 4.1 to FORE Systems, Inc.'s registration statement on Form S-8 (File No. 333-
1728)).
5.1 Opinion of Morgan, Lewis & Bockius LLP as to the legality of the
securities being registered (filed herewith).
23.1 Consent of Morgan, Lewis & Bockius LLP (included in opinion filed as Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP (filed herewith).
24.1 Power of Attorney.
</TABLE>
ITEM 17. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes: (i) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement 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; (ii) that, for the purpose of determining any liability under the
Securities Act, 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; and (iii) 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.
(2) 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 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the 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 liability (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II - 2
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this amendment to registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
Borough of Warrendale, Commonwealth of Pennsylvania, on December 11, 1996.
FORE Systems, Inc.
By: /s/ Eric C. Cooper
---------------------------------
Eric C. Cooper
Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Eric C. Cooper Chairman and Chief Executive Officer December 11, 1996
- ---------------------- (Principal Executive Officer) and a Director
Eric C. Cooper
* President and a Director December 11, 1996
- ----------------------
Onat Menzilcioglu
* Vice President, Finance, Chief Financial Officer and December 11, 1996
- ---------------------- Treasurer (Principal Financial and Accounting
Thomas J. Gill Officer)
* Vice President, Engineering, and a Director December 11, 1996
- ----------------------
Francois J. Bitz
* Vice President, Engineering, Secretary and a Director December 11, 1996
- ----------------------
Robert D. Sansom
* Director December 11, 1996
- ----------------------
John C. Baker
* Director December 11, 1996
- ----------------------
Thomas J. Crotty
- -------------------------
* By: /s/ Eric C. Cooper
---------------------------------------------
Eric C. Cooper, Attorney in fact
pursuant to powers of attorney previosuly
filed as part of this Registration Statement
</TABLE>
<PAGE> 12
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ---------------------------------------------------------------
<S> <C>
5.1 Opinion of Morgan, Lewis & Bockius LLP as to the legality of the
securities being registered.
23.1 Consent of Morgan, Lewis & Bockius LLP (included in opinion filed
as Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
MORGAN, LEWIS & BOCKIUS LLP
ONE OXFORD CENTRE
PITTSBURGH, PA 15219
December 11, 1996
FORE Systems, Inc.
174 Thorn Hill Road
Warrendale, PA 15086-7535
Re: Post-Effective Amendment No.1 to Form S-3 Registration Statement
----------------------------------------------------------------
Gentlemen:
We have acted as counsel to FORE Systems, Inc., a Delaware corporation (the
"Company"), in connection with Post-Effective Amendment No.1 to the
Registration Statement on Form S-3, File No. 33-80683 (the "Post-Effective
Amendment"), filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, relating to the sale by
certain selling stockholders identified in the Post-Effective Amendment of an
aggregate of up to 744,810 shares (the "Shares") of the Company's Common Stock,
par value $.01 per share.
We are familiar with the Post-Effective Amendment. We have reviewed the
Company's Amended and Restated Certificate of Incorporation, as amended, and
Amended and Restated Bylaws. We have also examined such other public and
corporate documents, certificates, instruments and corporate records, and such
questions of law as we have deemed necessary for purposes of expressing an
opinion on the matters hereinafter set forth. In all examinations of documents,
instruments and other papers, we have assumed the genuiness of all signatures
on original and certified documents and the conformity to original and
certified documents of all copies submitted to us as conformed, photostatic or
other copies.
On the basis of the foregoing, we are of the opinion that the Shares have been
validly issued and are fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement and to the use of our name in the Prospectus forming a part thereof
under the caption "Validity of Common Stock."
Yours truly,
/s/ MORGAN, LEWIS & BOCKIUS LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 (No. 33-80683) of
our report dated April 25, 1996 appearing on page 25 of FORE Systems, Inc.'s
Annual Report on Form 10-K for the fiscal year ended March 31, 1996. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Pittsburgh, Pennsylvania
December 11, 1996
