<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 10, 1997
Registration No. 333-
===============================================================================
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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FORE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 25-1628117
(State or other jurisdiction of (I.R.S. Employer
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)
--------
ERIC C. COOPER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
FORE SYSTEMS, INC.
174 THORN HILL ROAD
WARRENDALE, PENNSYLVANIA 15086-7535
(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.
1000 FORE DRIVE
WARRENDALE, PENNSYLVANIA 15086
(412) 742-7658
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. / /
_______________
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
<TABLE>
<CAPTION>
===================================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE (1) PRICE (1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 900,870 Shares $33.0625 $29,785,014 $10,271
===================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee;
computed in accordance with Rule 457(c) on the basis of the average of
the high and low sales prices for the Common Stock on January 9, 1997 as
reported on the Nasdaq National Market
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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.
===============================================================================
<PAGE> 2
SUBJECT TO COMPLETION, DATED JANUARY 10, 1997
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 BE 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.
900,870 SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
-----------------------
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
January 9, 1997 was $32 per share.
-----------------------
SEE "RISK FACTORS" FOR CERTAIN CONSIDERATIONS RELEVANT
TO AN INVESTMENT IN THE COMMON STOCK.
-----------------------
This Prospectus relates to an aggregate of 900,870 shares of Common
Stock (the "Shares"), of which 241,513 shares are held of record by Ronald P.
Bianchini, Jr., 241,513 shares are held of record by Hyong S. Kim, 79,971
shares are held of record by Daniel S. Nydick, 199,928 shares are held of
record by The P/A Fund, L.P. ("P/A Fund"), 100,332 shares are held of record by
APA Excelsior IV, L.P. ("APA Excelsior IV"), 1,919 shares are held of record by
Patricof Private Investment Club, L.P. ("Patricof"), 17,705 shares are held of
record by APA Excelsior IV/Offshore, L.P. ("APA Excelsior IV/Offshore"), 1,599
shares are held of record by Eugene Levy, 1,599 shares are held of record by
Peter Bianchini, 3,598 shares are held of record by WS Investment Company 96A
("WS Investment"), 3,998 shares are held of record by WSGR Retirement Plan, FBO
Steven E. Bochner ("WSGR Retirement Plan"), 399 shares are held of record by
Richard S. Arnold, Jr., 3,598 shares are held of record by Leonard W. Arnold
and 3,198 shares are held of record by Jack Roseman. Ronald P. Bianchini, Jr.,
Hyong S. Kim, Daniel S. Nydick, P/A Fund, APA Excelsior IV, Patricof, APA
Excelsior IV/Offshore, Eugene Levy, Peter Bianchini, WS Investment, WSGR
Retirement Plan, Richard S. Arnold, Jr., Leonard W. Arnold and Jack Roseman are
referred to herein collectively as the "Selling Stockholders." The purpose of
this Prospectus is to permit the Selling Stockholders and any persons to whom
such Selling Stockholders may assign their registration rights pursuant to the
Registration Rights Agreement discussed below, 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."
The 900,870 Shares offered hereby were acquired by the Selling
Stockholders in connection with the merger, effective November 26, 1996, of
Glove Acquisition Corporation ("Glove"), a wholly-owned subsidiary of the
Company, with and into Scalable Networks, Inc. ("Scalable").
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.
--------------------
The date of this Prospectus is January ___, 1997.
<PAGE> 3
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. 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. The registration statement of which this Prospectus forms a
part, including all exhibits thereto and amendments thereof, has been filed
with the Commission through EDGAR.
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.
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 Current Report on
Form 8-K, filed with the Commission on January 7, 1997, 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 into 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 in any 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 into this Prospectus.
Requests for such copies should be directed to Investor Relations, FORE
Systems, Inc., 1000 FORE Drive, Warrendale, Pennsylvania 15086, telephone (412)
742-4444.
2
<PAGE> 4
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,
may cause actual results to differ materially from those in any forward-looking
statements 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 September 30, 1996, Quarterly
Report on Form 10-Q for the fiscal quarter ended June 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
which have otherwise been made or may be 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 three smaller
companies, 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.
3
<PAGE> 5
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
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 constitute a significant portion of its
business; 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 adversely 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.
4
<PAGE> 6
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.
USE OF PROCEEDS
The Company will not derive any proceeds from the sale of any of the
Shares offered hereby.
THE SELLING STOCKHOLDERS
The 900,870 Shares offered hereby were acquired by the Selling
Stockholders in connection with the merger, effective November 26, 1996, of
Glove, a wholly-owned subsidiary of the Company, with and into Scalable (the
"Scalable Transaction") pursuant to an Agreement and Plan of Merger, dated
November 26, 1996, by and among the Company, Glove, Scalable, Ronald P.
Bianchini, Jr., Hyong S. Kim and Daniel S. Nydick (the "Scalable Agreement").
Prior to the Scalable Transaction, Ronald P. Bianchini, Jr. and Hyong S. Kim
served as Scalable's President/Treasurer and Vice President/Secretary,
respectively. The Selling Stockholders were the holders of all the outstanding
capital stock of Scalable and received in exchange therefor an aggregate of
900,870 shares of Common Stock. As of January 10, 1997, the number of shares of
Common Stock held by each of Ronald P. Bianchini, Jr., Hyong S. Kim, Daniel S.
Nydick, P/A Fund, APA Excelsior IV, Patricof, APA Excelsior IV/Offshore, Eugene
Levy, Peter Bianchini, WS Investment, WSGR Retirement Plan, Richard S. Arnold,
Jr., Leonard W. Arnold and Jack Roseman was 241,513, 241,513, 79,971, 199,928,
100,332, 1,919, 17,705, 1,599, 1,599, 3,598, 3,998, 399, 3,598 and 3,198,
respectively. Assuming that all shares offered by them hereby are sold, the
number of shares owned by each of the Selling Stockholders will be zero.
Pursuant to the terms of a certain Registration Rights Agreement
entered into concurrently with the Scalable Agreement, the Company is obligated
to file at its expense a registration statement under the Securities Act and to
use reasonable commercial efforts to cause such registration statement to become
effective and to remain current and effective for up to approximately two years
following effectiveness, so as to permit a public offering of all of the shares
of Common Stock received by the Selling Stockholders in connection with the
Scalable Transaction. The Registration Statement, of which this Prospectus forms
a part, constitutes such registration statement. In addition, the Registration
Rights Agreement grants each Selling Stockholder the right, subject to certain
conditions, to assign his or its registration rights thereunder to certain
permitted transferees including, in the case of Selling Stockholders who are
individuals, to members of their immediate families and, in the case of any
Selling Stockholder which is a partnership, to any general or limited partner of
such partnership. In the event that any Selling Stockholder exercises his or its
rights to assign such stockholder's registration rights with respect to any
shares received by such stockholder in the Scalable Transaction to a permitted
transferee, such transferee will be deemed, with respect to such shares, to be a
Selling Stockholder for purposes of this Prospectus.
The Company has agreed to indemnify the Selling Stockholders against
certain liabilities in connection with the offering made hereby, including
liabilities under the Securities Act.
5
<PAGE> 7
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 each 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.
The Company is obligated to use reasonable efforts to effect the
qualification of the Shares under applicable state securities laws to enable
the Selling Stockholders to offer and sell the Shares, and has agreed to supply
the Selling Stockholders with such number of copies of this Prospectus as they
may reasonably request. The Selling Stockholders will in all cases be
responsible for complying with the prospectus delivery requirements of Section
5(b)(2) of the Securities Act in connection with the offering and sale of the
Shares.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Company's Annual Report on Form 10-K for the year ended
March 31, 1996 have been so incorporated in reliance upon 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 January 8, 1997, Marlee S. Myers, a partner of Morgan,
Lewis & Bockius LLP, beneficially owned 4,000 shares of Common Stock and held
options to acquire up to 40,000 shares of Common Stock.
6
<PAGE> 8
================================== ====================================
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 900,870 SHARES
HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE.
FORE SYSTEMS, INC.
COMMON STOCK
---------- (PAR VALUE $.01 PER SHARE)
TABLE OF CONTENTS
Available Information...........2
Incorporation of Certain
Information by Reference......2
Risk Factors....................3
Use of Proceeds.................5
The Selling Stockholders........5
Plan of Distribution............6
Experts.........................6
Validity of Common Stock........6
================================== ====================================
<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.................................. $10,271.00
Blue Sky fees and expenses ........................... $0.00
Legal fees and expenses............................... $300.00
Miscellaneous......................................... $500.00
----------
Total................................................. $11,071.00
==========
</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 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 V
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 V 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>
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 (included on signature page of this
Registration Statement).
</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, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act 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 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, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Borough of Warrendale, Commonwealth of Pennsylvania, on
January 10, 1997.
FORE Systems, Inc.
By: /s/ Eric C. Cooper
----------------------------------------
Eric C. Cooper
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Eric C. Cooper and Thomas J. Gill, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documentation in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and 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 attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act, this 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 January 10, 1997
- -------------------------------- (Principal Executive Officer) and a Director
Eric C. Cooper
/s/ Onat Menzilcioglu President and a Director January 10, 1997
- --------------------------------
Onat Menzilcioglu
/s/ Thomas J. Gill Vice President, Finance, Chief Financial January 10, 1997
- -------------------------------- Officer and Treasurer (Principal Financial
Thomas J. Gill and Accounting Officer)
/s/ Francios J. Bitz Vice President, Engineering and a Director January 10, 1997
- --------------------------------
Francois J. Bitz
/s/ Robert D. Sansom Vice President, Engineering, Secretary and a January 10, 1997
- -------------------------------- Director
Robert D. Sansom
/s/ John C. Baker Director January 10, 1997
- --------------------------------
John C. Baker
/s/ Thomas J. Crotty Director January 10, 1997
- --------------------------------
Thomas J. Crotty
</TABLE>
II-3
<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.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
</TABLE>
<PAGE> 1
Exhibit 5.1
One Oxford Centre MORGAN, LEWIS
Pittsburgh, PA 15219-1417 & BOCKIUS LLP
412-560-3300 COUNSELORS AT LAW
Fax: 412-560-3399
January 10, 1996
FORE Systems, Inc.
174 Thorn Hill Road
Warrendale, PA 15086-7535
Re: Form S-3 Registration Statement
-------------------------------
Gentlemen:
We have acted as counsel to FORE Systems, Inc., a Delaware corporation (the
"Company"), in connection with the Registration Statement on Form S-3 (the
"Registration Statement"), 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
Registration Statement of an aggregate of up to 900,870 shares (the "Shares")
of the Company's Common Stock, par value $.01 per share.
We are familiar with the Registration Statement. 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 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
January 10, 1997
