Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by us in connection with the
sale of common stock being registered. All amounts are estimates except the
registration fee, the NASD filing fee and the Nasdaq National Market listing
fee.
Amount
To Be Paid
----------
Securities and Exchange Commission Registration fee............... $18,480
NASD filing fee................................................... 7,500
Nasdaq National Market listing fee................................ *
Blue sky fees and expenses........................................ *
Legal fees and expenses........................................... *
Accounting fees and expenses...................................... *
Printing and engraving expenses................................... *
Transfer agent and registrar fees................................. *
Miscellaneous..................................................... *
-------
Total........................................................... $ *
=======
* To be filed by amendment
Item 14. Indemnification of Directors and Officers
As permitted by Section 145 of the Delaware General Corporation Law, our
Amended and Restated Certificate of Incorporation includes a provision that
eliminates the personal liability of our directors for monetary damages for
breach of their fiduciary duty as a director to the fullest extent permitted
under Delaware General Corporation Law. In addition, as permitted by Section
145 of the Delaware General Corporation Law, our Amended and Restated Bylaws
provide that: (1) we are required to indemnify our directors and executive
officers and persons serving in these capacities in other business enterprises
(including, for example, our subsidiaries) at our request, to the fullest
extent permitted by Delaware General Corporation Law, including in those
circumstances in which indemnification would otherwise be discretionary; (2) we
may, in our discretion, indemnify our employees and agents in those
circumstances where indemnification is not required by law; (3) the rights
conferred in the Amended and Restated Bylaws are not exclusive, and we are
authorized to enter into indemnification agreements with our directors,
executive officers and employees; and (4) we may not retroactively amend these
provisions in the Amended and Restated Bylaws in a way that is adverse to the
directors, executive officers and employees who benefit from these protections.
Our policy is to enter into indemnification agreements with each of its
directors and executive officers that provide the maximum indemnity allowed to
directors and executive officers by Section 145 of the Delaware General
Corporation Law and the Amended and Restated Bylaws, as well as certain
additional procedural protections. In addition, these indemnity agreements
provide that parties to the indemnification agreements will be indemnified to
the fullest possible extent not prohibited by law against any and all expenses
(including any federal, state, local or foreign taxes imposed on the indemnitee
as a result of the actual or deemed receipt of any payments under the
indemnification agreement), judgments, fines, penalties and amounts paid in
settlement (if such settlement is approved in advance by us, which approval
shall not be unreasonably withheld), actually and reasonably incurred in
relation to the Indemnitee's position as a director, officer, employee, agent
or fiduciary of the
II-1
Registrant, or any subsidiary of the Registrant, or in relation to the
Indemnitee's service at the request of the Registrant as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint
venture, trust or other enterprise or in relation to Indemnitee's action or
inaction while serving in such a capacity. LynuxWorks will not be obligated
pursuant to the indemnity agreements to indemnify or advance expenses to an
indemnified party with respect to proceedings or claims initiated by the
indemnified party and not by way of defense, counterclaim or crossclaim, except
with respect to proceedings specifically authorized by the Registrants' Board
of Directors or brought to enforce a right to indemnification under the
indemnity agreement, the Registrant's Amended and Restated Bylaws or any
statute or law. Under the agreements, the Registrant is not obligated to
indemnify the indemnified party (1) for any expenses incurred by the
indemnified party with respect to any proceeding instituted by the indemnified
party to enforce or interpret the agreement, if a court of competent
jurisdiction determines that each of the material assertions made by the
indemnified party in such proceeding was not made in good faith or was
frivolous; (2) for any amounts paid in settlement of a proceeding unless the
Registrant consents to such settlement; (3) with respect to any proceeding
brought by the Registrant against the indemnified party for willful misconduct,
unless a court determines that each of such claims was not made in good faith
or was frivolous; (4) on account of any suit in which judgment is rendered
against the indemnified party for an accounting of profits made from the
purchase or sale by the indemnified party of securities of the Registrant
pursuant to the provisions of (S) 16(b) of the Securities Exchange Act of 1934
and related laws; (5) on account of the indemnified party's conduct which is
finally adjudged to have been knowingly fraudulent or deliberately dishonest,
or to constitute willful misconduct or a knowing violation of the law; (6) on
account of any conduct from which the indemnified party derived an improper
personal benefit; (7) on account of conduct the indemnified party believed to
be contrary to the best interests of the Registrant or its stockholders; (8) on
account of conduct that constituted a breach of the indemnified party's duty of
loyalty to the Registrant or its stockholders; or (9) if a final decision by a
court having jurisdiction in the matter shall determine that such
indemnification is not lawful.
The indemnification provision in the Amended and Restated Certificate of
Incorporation, Amended and Restated Bylaws and the indemnification agreements
entered into between us and our directors and executive officers, may be
sufficiently broad to permit indemnification of the our officers and directors
for liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act")
Reference is made to the following documents filed as exhibits to this
Registration Statement regarding relevant indemnification provisions described
above and elsewhere herein:
Exhibit
Document Number
-------- -------
Form of Underwriting Agreement........................................ 1.1
Seventh Amended and Restated Articles of Incorporation of LynuxWorks,
Incorporated, as currently in effect................................. 3.1
Certificate of Incorporation of LynuxWorks, Incorporated, in
connection with our reincorporation in Delaware...................... 3.2
Form of Amended and Restated Certificate of Incorporation of
LynuxWorks, Incorporated, to be filed upon the closing of the
offering made under this Registration Statement...................... 3.3
Amended and Restated Bylaws of LynuxWorks, Incorporated, as currently
in effect............................................................ 3.4
Bylaws of LynuxWorks, Incorporated, in connection with our
reincorporation in Delaware.......................................... 3.5
Form of Amended and Restated Bylaws of LynuxWorks, Incorporated, to be
in effect upon the closing of the offering made under this
Registration Statement............................................... 3.6
Form of Indemnification Agreement to be entered into by LynuxWorks,
Incorporated with each of its directors and executive officers....... 10.1
II-2
Item 15. Recent Sales of Unregistered Securities
During the past three years, the Registrant has issued and sold the following
securities:
(a) During the past three years, the Registrant has granted an aggregate of
6,708,975 options (consisting of 0 options from 1988 Stock Plan, 310,000
options from 1992 Stock Plan and 6,398,975 options from 1997 Stock Plan) to
purchase shares of common stock to directors, officers, employees, former
employees and consultants at exercise prices ranging from $.50 to $3.30 per
share. These shares were sold pursuant to the exercise of options granted by
the Board of Directors. As to each director, officer, employee and consultant
of the Registrant who was issued these securities, the Registrant relied upon
Rule 701 of the Securities Act. Each such person was granted such options
pursuant to a written contract between such person and the Registrant. In
addition, the Registrant met the conditions imposed under Rule 701(b) as
transactions pursuant to compensatory benefit plans and contracts related to
compensation.
(b) On November 14, 1997, the Registrant issued warrants to purchase an
aggregate of 373,210 shares of unregistered common stock to 6 investors at an
exercise price of $0.50 per share. The Registrant relied upon Section 4(2) of
the Securities Act in connection with the issuance of these warrants as
transactions by an issuer not involving a public offering.
(c) On June 9, 1998, the Registrant sold 857,988 shares of unregistered
Series E-1 preferred stock to 5 investors for an aggregate consideration of
$1,295,819. The Registrant relied upon Section 4(2) of the Securities Act in
connection with the sale of these shares as transactions by an issuer not
involving a public offering.
(d) On June 9, 1998, the Registrant sold 6,621,268 shares of unregistered
Series E-2 preferred stock to 1 investor for an aggregate consideration of
$10,000,101. The Registrant relied upon Section 4(2) of the Securities Act in
connection with the sale of these shares as transactions by an issuer not
involving a public offering.
(e) Between March 9, 2000 and May 30, 2000, the Registrant sold 8,071,207
shares of unregistered Series F preferred stock to 66 investors for aggregate
cash consideration of $34,948,326. The Registrant relied upon Section 4(2) of
the Securities Act in connection with the sale of these shares as transactions
by an issuer not involving a public offering.
Appropriate legends were affixed to the share certificates issued in the
transactions described above. All recipients had adequate access, through their
relationships with the Registrant, to adequate information about the
Registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Number Description
------ -----------------------------------------------------------------------
1.1* Form of Underwriting Agreement.
2.1 Agreement and Plan of Reorganization, dated July 21, 2000, by and among
LynuxWorks, Incorporated, Lworks, Inc., Integrated Software & Devices
Corporation and, with respect to Articles VII and X only, Reza Soliman-
Noori as Shareholder Representative.
3.1 Seventh Amended and Restated Articles of Incorporation of LynuxWorks,
Incorporated, as currently in effect.
II-3
Number Description
------ -----------------------------------------------------------------------
3.2 Certificate of Incorporation of LynuxWorks, Incorporated, in connection
with our reincorporation in Delaware.
3.3 Form of Amended and Restated Certificate of Incorporation of
LynuxWorks, Incorporated, to be filed upon the closing of the offering
made under this Registration Statement.
3.4 Amended and Restated Bylaws of LynuxWorks, Incorporated, as currently
in effect.
3.5 Bylaws of LynuxWorks, Incorporated, in connection with our
reincorporation in Delaware.
3.6 Form of Amended and Restated Bylaws of LynuxWorks, Incorporated, to be
in effect upon the closing of the offering made under this Registration
Statement.
4.1* Form of LynuxWorks, Incorporated common stock certificate.
4.2 Amended and Restated Investors' Rights Agreement, dated March 9, 2000,
among LynuxWorks, Incorporated and the parties named therein.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1 Form of Indemnification Agreement to be entered into by LynuxWorks,
Incorporated with each of its directors and executive officers.
10.2 1988 Stock Option Plan and related agreements.
10.3 1992 Stock Plan and related agreements.
10.4 1997 Stock Plan and related agreements.
10.5 ISDCorp 2000 Equity Incentive Plan and related agreements.
10.6 ISDCorp 2000 Executive Equity Incentive Plan and related agreements.
10.7 Form of 2000 Employee Stock Purchase Plan and related agreements.
10.8 Form of 2000 Stock Option Plan and related agreements.
10.9 Form of Change of Control Severance Agreement between LynuxWorks,
Incorporated and each of Inder M. Singh, Reza Soliman-Noori, Arthur
Swift, Mitchell P. Bunnell, Bhupindarpal Singh, Luke C. Dion, George A.
(Skip) Forster, Albert J. McCabe, Gurjot Singh, Robert N. Morris and
Daniel Wald.
10.10 Lease Agreement, dated January 31, 1995, as amended on July 30, 1999,
by and between LynuxWorks, Incorporated and Mission West Properties,
L.P. II.
10.11 Lease, dated October 2, 2000, by and between LynuxWorks, Incorporated
and Mission West Properties, L.P.
10.12+ Software Licensing Agreement, dated June 8, 1999, by and between
LynuxWorks, Incorporated and Rockwell Collins, Inc.
10.13+ Software Development Agreement, dated May 25, 2000, by and between
LynuxWorks, Incorporated and Hewlett-Packard Company.
10.14+ License and Distribution Agreement, dated February 2000 by and between
LynuxWorks, Incorporated and Motorola, Inc.
10.15+ OEM Software Licensing Agreement, dated April 30, 1999, by and between
LynuxWorks, Incorporated and Xerox Corporation.
10.16+ International Distributor Agreement, dated November 20, 1991, as
amended on March 24, 1994, by and between LynuxWorks, Incorporated and
Nissin Software Corporation.
10.17+ Software License Agreement, dated December 4, 1998, by and between
LynuxWorks, Incorporated and Hewlett-Packard Company.
II-4
Number Description
------ ---------------------------------------------------------------------
11.1 Statement of computation of net loss per share and pro forma net loss
per share (see Note 1 of Notes to Financial Statements).
21.1 Subsidiaries of LynuxWorks, Incorporated.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLC, Independent Accountants.
24.1 Power of Attorney (see page II-6).
27.1 Financial Data Schedule.
* To be supplied by amendment.
+ Confidential treatment requested.
(b) Financial Statement Schedules
Schedule I--Report of Independent Accountants
Schedule II--Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information required
to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
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 provisions referenced in Item 14 of this
Registration Statement or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of Prospectus shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement on Form S-1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Jose,
State of California, on this 25th day of October, 2000.
LYNUXWORKS, INCORPORATED
By: /s/ Inder M. Singh
Inder M. Singh
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature to this
Registration Statement appears below constitutes and appoints Inder M. Singh
and Bhupindarpal Singh, or any one or more of them, as such person's true and
lawful attorney-in-fact and agents, each with full power of substitution, for
such person and in such person's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and any registration statement
related to the offering contemplated by this registration statement that is to
be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto and all other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, 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 each of said attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done or by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Inder M. Singh President, Chief Executive Officer October 25, 2000
_________________________________ and Chairman of the Board
Inder M. Singh (Principal Executive Officer)
/s/ Bhupindarpal Singh Vice President of Finance and Chief October 25, 2000
_________________________________ Financial Officer (Principal
Bhupindarpal Singh Financial and Accounting Officer)
/s/ Reza Soliman-Noori Vice Chairman of the Board October 25, 2000
_________________________________
Reza Soliman-Noori
/s/ Phillip E. White Director October 25, 2000
_________________________________
Phillip E. White
II-6
Signature Title Date
--------- ----- ----
/s/ Steven E. Bochner Director October 25, 2000
_________________________________
Steven E. Bochner
/s/ Kapil Nanda Director October 25, 2000
_________________________________
Kapil Nanda
/s/ M. Yaqub Mirza Director October 25, 2000
_________________________________
M. Yaqub Mirza
/s/ Robert F. Weber, Jr. Director October 25, 2000
_________________________________
Robert F. Weber, Jr.
II-7
SCHEDULE I
REPORT OF INDEPENDENT ACCOUNTS
In connection with our audits of the consolidated financial statements of
LynuxWorks, Incorporated (formerly Lynx Real-Time Systems, Incorporated) and
its subsidiaries as of April 30, 1999 and 2000 and for each of the three years
in the period ended April 30, 2000, which consolidated financial statements are
included in the Registration Statement, we have also audited the financial
statement schedule listed in Item 16 herein.
In our opinion, this financial statement schedule, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
/s/ PricewaterhouseCoopers LLP
San Jose, California
May 30, 2000
S-1
SCHEDULE II
LynuxWorks, Incorporated
VALUATION AND QUALIFYING ACCOUNTS
Years Ended April 30, 1998, 1999 and 2000
(in thousands)
Allowance for Doubtful Accounts Receivable
Additions-
Balance at Charged Balance at
Beginning to Costs Deductions- End of
Year Ended April 30, of Period and Expenses Write-off Period
-------------------- ---------- ------------ ----------- ----------
1998............................. $100 -- $19 $81
1999............................. 81 30 -- 111
2000............................. 111 6 -- 117
S-2
EXHIBIT INDEX
Number Description
------ -----------------------------------------------------------------------
1.1* Form of Underwriting Agreement.
2.1 Agreement and Plan of Reorganization, dated July 21, 2000, by and among
LynuxWorks, Incorporated, Lworks, Inc., Integrated Software & Devices
Corporation and, with respect to Articles VII and X only, Reza Soliman-
Noori as Shareholder Representative.
3.1 Seventh Amended and Restated Articles of Incorporation of LynuxWorks,
Incorporated, as currently in effect.
3.2 Certificate of Incorporation of LynuxWorks, Incorporated, in connection
with our reincorporation in Delaware.
3.3 Form of Amended and Restated Certificate of Incorporation of
LynuxWorks, Incorporated, to be filed upon the closing of the offering
made under this Registration Statement.
3.4 Amended and Restated Bylaws of LynuxWorks, Incorporated, as currently
in effect.
3.5 Bylaws of LynuxWorks, Incorporated, in connection with our
reincorporation in Delaware.
3.6 Form of Amended and Restated Bylaws of LynuxWorks, Incorporated, to be
in effect upon the closing of the offering made under this Registration
Statement.
4.1* Form of LynuxWorks, Incorporated common stock certificate.
4.2 Amended and Restated Investors' Rights Agreement, dated March 9, 2000,
among LynuxWorks, Incorporated and the parties named therein.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1 Form of Indemnification Agreement to be entered into by LynuxWorks,
Incorporated with each of its directors and executive officers.
10.2 1988 Stock Option Plan and related agreements.
10.3 1992 Stock Plan and related agreements.
10.4 1997 Stock Plan and related agreements.
10.5 ISDCorp 2000 Equity Incentive Plan and related agreements.
10.6 ISDCorp 2000 Executive Equity Incentive Plan and related agreements.
10.7 Form of 2000 Employee Stock Purchase Plan and related agreements.
10.8 Form of 2000 Stock Option Plan and related agreements.
10.9 Form of Change of Control Severance Agreement between LynuxWorks,
Incorporated and each of Inder M. Singh, Reza Soliman-Noori, Arthur
Swift, Mitchell P. Bunnell, Bhupindarpal Singh, Luke C. Dion, George A.
(Skip) Forster, Albert J. McCabe, Gurjot Singh, Robert N. Morris and
Daniel Wald.
10.10 Lease Agreement, dated January 31, 1995, as amended on July 30, 1999,
by and between LynuxWorks, Incorporated and Mission West Properties,
L.P. II.
10.11 Lease, dated October 2, 2000, by and between LynuxWorks, Incorporated
and Mission West Properties, L.P.
10.12+ Software Licensing Agreement, dated June 8, 1999, by and between
LynuxWorks, Incorporated and Rockwell Collins, Inc.
10.13+ Software Development Agreement, dated May 25, 2000, by and between
LynuxWorks, Incorporated and Hewlett-Packard Company.
Number Description
------ ----------------------------------------------------------------------
10.14+ License and Distribution Agreement, dated February 2000 by and between
LynuxWorks, Incorporated and Motorola, Inc.
10.15+ OEM Software Licensing Agreement, dated April 30, 1999, by and between
LynuxWorks, Incorporated and Xerox Corporation.
10.16+ International Distributor Agreement, dated November 20, 1991, as
amended on March 24, 1994, by and between LynuxWorks, Incorporated and
Nissin Software Corporation.
10.17+ Software License Agreement, dated December 4, 1998, by and between
LynuxWorks, Incorporated and Hewlett-Packard Company.
11.1 Statement of computation of net loss per share and pro forma net loss
per share (see Note 1 of Notes to Financial Statements).
21.1 Subsidiaries of LynuxWorks, Incorporated.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLC, Independent Accountants.
24.1 Power of Attorney (see page II-6).
27.1 Financial Data Schedule.
* To be supplied by amendment.
+ Confidential treatment requested.