As filed with the Securities and Exchange Commission on April 8, 2002
Registration No. 333-76986
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
TRIMBLE NAVIGATION LIMITED
(Exact name of registrant as specified in its charter)
California 94-2802192
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
645 North Mary Avenue
Sunnyvale, California 94088
(408) 481-8000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Steven W. Berglund
President and Chief Executive Officer
Trimble Navigation Limited
645 North Mary Avenue
Sunnyvale, California 94088
(408) 481-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Thomas C. DeFilipps, Esq.
Thomas C. Klein, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
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, please 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. [ ]
CALCULATION OF REGISTRATION FEE
========================================= ========================= ====================== ====================== =================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
----------------------------------------- ------------------------- ---------------------- ---------------------- -----------------
----------------------------------------- ------------------------- ---------------------- ---------------------- -----------------
Common Stock, no par value............ 3,063,341 $15.09(1) $46,225,816 $4,253
----------------------------------------- ------------------------- ---------------------- ---------------------- -----------------
----------------------------------------- ------------------------- ---------------------- ---------------------- -----------------
Common Stock, no par value, issuable 612,672 $19.475(2) $11,931,787 $1,098
upon exercise of warrants to
purchase shares of Common Stock....
----------------------------------------- ------------------------- ---------------------- ---------------------- -----------------
----------------------------------------- ------------------------- ---------------------- ---------------------- -----------------
Totals................................ 3,676,013(1) -- $58,157,603 $5,351(3)
========================================= ========================= ====================== ====================== =================
(1) The Proposed Maximum Offering Price Per Share is estimated solely for
the purpose of calculating the registration fee in accordance with
Rule 457(c) under the Securities Act of 1933, as amended, using the
average of the high and low price reported by the Nasdaq National
Market for the common stock on January 16, 2002, which was
approximately $15.09 per share.
(2) The Proposed Maximum Offering Price Per Share was determined in
accordance with Rule 457(g) under the Securities Act of 1933, as
amended, under which rule the per share price is estimated by
reference to the exercise price of the securities, which is $19.475.
(3) Previously paid.
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 the registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a)
may determine.
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The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell nor does it seek and offer to buy these
securities in any jurisdiction where the offer of sale is not permitted.
Subject to Completion, Dated April 8, 2002
Prospectus
Trimble Navigation Limited
3,676,013 Shares
Common Stock
This prospectus relates to 3,676,013 shares of our common stock, no par
value, which may be sold from time to time by the selling shareholders named
herein, or their transferees, pledges, donees or successors. These shares
include 612,672 shares that are issuable upon the exercise of outstanding
warrants. The shares were initially sold, and the warrants were initially
issued, in private placement transactions in December 2001 and January 2002.
The shares are being registered to permit the selling shareholders to sell
the shares from time to time in the public market. The shareholders may sell the
common stock through ordinary brokerage transactions, directly to market makers
of our shares or through any other means described in the section beginning on
page 10 titled "Plan of Distribution." We cannot assure you that the selling
shareholders will sell all or any portion of the common stock offered hereby. We
will not receive any of the proceeds from this offering, although we have paid
the expenses of preparing this prospectus and the related registration
statement.
Shares of our common stock are quoted on the Nasdaq National Market under
the symbol "TRMB." The last reported sale price of the common stock on March 22,
2002, was $15.95 per share.
We are a California corporation formed in January 1981. Our principal
executive offices are located at 645 North Mary Ave., Sunnyvale, California and
our telephone number is (408) 481-8000.
Investing in our common stock involves risks. See "Risk Factors" beginning
on page 3 to read about risk factors you should consider before purchasing our
common stock.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is_______ ___, 2002.
You should rely only on the information incorporated by reference or
provided in this prospectus or a prospectus supplement or amendment. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume the information in this prospectus or a
prospectus supplement or amendment is accurate as of any date other than the
date on the front of the documents.
TABLE OF CONTENTS
ABOUT TRIMBLE...............................................................3
RISK FACTORS................................................................3
USE OF PROCEEDS............................................................10
SELLING SHAREHOLDERS.......................................................10
PLAN OF DISTRIBUTION.......................................................12
EXPERTS....................................................................13
VALIDITY OF COMMON STOCK...................................................13
INFORMATION INCORPORATED BY REFERENCE......................................13
AVAILABLE INFORMATION......................................................14
Some of the statements under "Risk Factors" and elsewhere in this
prospectus constitute forward-looking statements. These statements relate to
future events or our future financial performance and involve known and unknown
risks, uncertainties and other factors that may cause our actual results, levels
of activity, performance or achievements to be materially different from any
future results, levels of activity, performance or achievements expressed or
implied by the forward looking statements. In some cases, you can identify
forward looking statements by terminology such as "may," "will," "should,"
"expects," "plans," "anticipates," "believes," "estimates," "predicts,"
"potential," "continue" or the negative terms or other comparable terminology.
In evaluating these statements, you should specifically consider various
factors, including the risks outlined under "Risk Factors."
Although we believe that the expectations in the forward-looking statements
contained in this prospectus are reasonable we cannot guarantee future results,
levels of activity and performance achievements. You should not place undue
reliance on these forward-looking statements.
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ABOUT TRIMBLE
Trimble Navigation Limited, a California corporation, develops,
manufactures and distributes innovative products enabled by Global Positioning
System ("GPS") optical, laser and wireless communications technology. We provide
end-users and original equipment manufacturers with solutions for diverse
applications including agriculture, engineering and construction, fleet and
asset management, timing, automobile navigation and military. Our principal
products, which utilize substantial amounts of proprietary software and
firmware, are integrated systems for collecting, analyzing and utilizing
position data in forms optimized for specific end-user applications.
RISK FACTORS
You should carefully consider the following risk factors and all other
information contained in this prospectus before participating in this offering.
Investing in our common stock involves a high degree of risk. If any of the
following risks actually occur, our business, operating results and financial
condition could be materially harmed and you might lose all or part of your
investment.
Our Annual and Quarterly Performance May Fluctuate.
Our operating results have fluctuated and can be expected to continue to
fluctuate in the future on a quarterly and annual basis as a result of a number
of factors, many of which are beyond our control. Results in any period could be
affected by changes in market demand, competitive market conditions, market
acceptance of new or existing products, fluctuations in foreign currency
exchange rates, the cost and availability of components, our ability to
manufacture and ship products, the mix of our customer base and sales channels,
the mix of products sold, our ability to expand our sales and marketing
organization effectively, our ability to attract and retain key technical and
managerial employees, the timing of shipments of products under contracts and
sale of licensing rights, and general global economic conditions. In addition,
demand for our products in any quarter or year may vary due to the seasonal
buying patterns of our customers in the agricultural and engineering and
construction industries. Due to the foregoing factors, our operating results in
one or more future periods are expected to be subject to significant
fluctuations. The price of our common stock could decline substantially in the
event such fluctuations result in our financial performance being below the
expectations of public market analysts and investors, which are based primarily
on historical models that are not necessarily accurate representations of the
future.
Our Operating Results in Each Quarter May Not Accurately Reflect Business
Activity in Each Quarter.
Due, in part, to the buying patterns of our customers, a significant
portion of our quarterly revenues occurs from orders received and immediately
shipped to customers in the last few weeks and days of each quarter, although
our operating expenses tend to remain constant. Engineering and construction
purchases tend to occur in early spring, and governmental agencies tend to
utilize funds available at the end of the government's fiscal year for
additional purchases at the end of our third fiscal quarter in September of each
year. Concentrations of orders sometimes also occur at the end of our other two
fiscal quarters. Additionally, a majority of our sales force earn commissions on
a quarterly basis, which may cause concentrations of orders at the end of any
fiscal quarter. If for any reason expected sales are deferred, orders are not
received, or shipments were to be delayed a few days at the end of a quarter,
our operating results and reported earnings per share for that quarter could be
significantly impacted.
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Our Inability to Accurately Predict Orders and Shipments May Affect Our Revenue,
Expenses and Earnings per Share.
Because we have been unable in the past to predict exactly when our
customers will place orders and request shipments, we cannot accurately plan our
manufacturing requirements. As a result, if the orders and shipments differ from
what we predict, we may incur additional expenses and build unneeded inventory,
which may require additional reserves. Any significant change in our customers'
purchasing patterns could have a material adverse effect on our operating
results and reported earnings per share for a particular quarter.
Our Gross Margin Is Subject to Fluctuation.
Our gross margin is affected by a number of factors, including product mix,
product pricing, cost of components, foreign currency exchange rates and
manufacturing costs. For example, since our Engineering and Construction and
Geographic Information Systems (GIS) products generally have higher gross
margins than our Component Technologies products, absent other factors, a shift
in sales toward Engineering and Construction and GIS products would lead to a
gross margin improvement. On the other hand, if market conditions in the highly
competitive Engineering and Construction and GIS market segments forced us to
lower unit prices, we would suffer a decline in gross margin unless we were able
to timely offset the price reduction by a reduction in production costs or by
sales of other products with higher gross margins. A decline in gross margin
could have a material effect on our operating results.
We Are Dependent on a Sole Manufacturer for Our Products and on Sole Suppliers
of Critical Parts for Our Products.
With the selection of Solectron Corporation in August 1999 as an exclusive
manufacturing partner for many of our GPS products previously manufactured out
of our Sunnyvale facilities, we are substantially dependent upon a sole supplier
for the manufacture of our products. Under the agreement with Solectron, we
provide to Solectron a twelve-month product forecast and place purchase orders
with Solectron sixty calendar days in advance of the scheduled delivery of
products to our customers. Although purchase orders placed with Solectron are
cancelable, the terms of the agreement would require us to purchase from
Solectron all material inventory not returnable or usable by other Solectron
customers. Accordingly, if we inaccurately forecast demand for our products, we
may be unable to obtain adequate manufacturing capacity from Solectron to meet
customers' delivery requirements or we may accumulate excess inventories, if
such inventories are not usable by other Solectron customers.
In addition, we rely on sole suppliers for a number of our critical ASICS.
We have experienced shortages of supplies, including ASICS, in the past. As an
example, we were affected by industry-wide shortages of memory devices and
electronic components that reached their most severe impact in the third
calendar quarter of 2000. Our current reliance on sole or a limited group of
suppliers involves several risks, including a potential inability to obtain an
adequate supply of required components and reduced control over pricing. Any
inability to obtain adequate deliveries or any other circumstance that would
require us to seek alternative sources of supply or to manufacture such
components internally could significantly delay our ability to ship our
products, which could damage relationships with current and prospective
customers and could harm our reputation and brand, which could have a material
adverse effect on our business.
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Our Credit Agreement Contains Stringent Financial Covenants.
Two of the financial covenants in our Credit Agreement with ABN AMRO Bank,
N.V. and certain other banks, dated as of July 14, 2000 as amended (the "Credit
Agreement"), minimum fixed charge coverage and maximum leverage ratio, are
extremely sensitive to changes in earnings before interest, taxes, depreciation
and amortization ("EBITDA"). In turn, EBITDA is highly correlated to revenues
and cost cutting. Due to uncertainties associated with the downturn in the
worldwide economy, our future revenues by quarter are becoming increasingly more
difficult to forecast and we have recently put in place various cost cutting
measures, including the consolidation of service functions and centers, closure
of redundant offices, consolidation of redundant product lines and reductions in
staff. If revenues should decline at a faster pace than the rate of these cost
cutting measures, on a quarter to quarter basis we may not be in compliance with
the two above mentioned financial covenants. If we default on one or more
covenants, we will have to obtain either negotiated waivers or amendments to the
Credit Agreement. If we are unable to obtain such waivers or amendments, the
banks would have the right to accelerate the payment of our outstanding
obligations under the Credit Agreement, which would have a material adverse
effect on our financial condition and viability as an operating company. In
addition, a default under one of our debt instruments may also trigger
cross-defaults under our other debt instruments. An event of default under any
debt instrument, if not cured or waived, could have a material adverse effect on
us.
Our Substantial Indebtedness Could Materially Restrict Our Operations and
Adversely Affect Our Financial Condition.
We now have, and for the foreseeable future will have, a significant level
of indebtedness. Our substantial indebtedness could:
o increase our vulnerability to general adverse economic and industry
conditions;
o limit our ability to fund future working capital, capital
expenditures, research and development and other general corporate
requirements, or to make certain investments that could benefit us;
o require us to dedicate a substantial portion of our cash flow to
service interest and principal payments on our debt;
o limit our flexibility to react to changes in our business and the
industry in which we operate; and o limit our ability to borrow
additional funds.
We Face Competition in Our Markets.
Our markets are highly competitive and we expect that both direct and
indirect competition will increase in the future. Our overall competitive
position depends on a number of factors including the price, quality and
performance of our products, the level of customer service, the development of
new technology and our ability to participate in emerging markets. Within each
of our markets, we encounter direct competition from other GPS, optical and
laser suppliers and competition may intensify from various larger domestic and
international competitors and new market entrants, some of which may be our
current customers. The competition in the future, may, in some cases, result in
price reductions, reduced margins or loss of market share, any of which could
materially and adversely affect our business, operating results and financial
condition. We believe that our ability to compete successfully in the future
against existing and additional competitors will depend largely on our ability
to execute our strategy to provide systems and products with significantly
differentiated features compared to currently available products. There can be
no assurance that we will be able to implement this strategy successfully, or
that any such products will be competitive with other technologies or products
that may be
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be developed by our competitors, many of whom have significantly greater
financial, technical, manufacturing, marketing, sales and other resources than
we do. There can be no assurance that we will be able to compete successfully
against current or future competitors or that competitive pressures cause us to
lose market share or force us to engage in price reductions that could have a
material adverse effect on our business.
We May Encounter Problems Associated With International Operations and Sales.
Our customers are located throughout the world. Sales to unaffiliated
customers in foreign locations represented approximately 50% of our revenues in
our fiscal year 2001 and 52% in each of our fiscal years 2000 and 1999. In
addition, we have significant international operations, including manufacturing
facilities, sales personnel and customer support operations. Our international
sales operations include offices in Australia, Canada, China, France, Germany,
Great Britain, Japan, Mexico, New Zealand, Sweden, Russia, Singapore and others.
Our international manufacturing facilities are in Sweden and Germany. Our
international presence exposes us to risks not faced by wholly-domestic
companies. Specifically, we have experienced issues relating to integration of
foreign operations, greater difficulty in accounts receivable collection, longer
payment cycles and currency fluctuations. Additionally, we face the following
risks, among others: unexpected changes in regulatory requirements; tariffs and
other trade barriers; political, legal and economic instability in foreign
markets, particularly in those markets in which we maintain manufacturing and
research facilities; difficulties in staffing and management; language and
cultural barriers; seasonal reductions in business activities in the summer
months in Europe and some other countries; and potentially adverse tax
consequences. Although we implemented a program to attempt to manage foreign
exchange risks through hedging and other strategies, there can be no assurance
that this program will be successful and that currency exchange rate
fluctuations will not have a material adverse effect on our results of
operations. In addition, in certain foreign markets, there may be reluctance to
purchase products based on GPS technology, given the control of GPS by the U.S.
Government.
We Are Dependent on Proprietary Technology.
Our future success and competitive position is dependent upon our
proprietary technology, and we rely on patent, trade secret, trademark and
copyright law to protect our intellectual property. There can be no assurance
that the patents owned or licensed by us will not be invalidated, circumvented,
challenged, or that the rights granted thereunder will provide competitive
advantages to us or that any of our pending or future patent applications will
be issued within the scope of the claims sought by us, if at all. We are
currently defending two separate lawsuits for alleged patent infringement, one
alleging infringement of a patent by some of our grade control systems, which
products accounted for approximately two percent (2 %) of our revenues in our
fiscal year 2001, and another alleging infringement by our surveying products,
which products accounted for approximately eleven percent (11 %) of our revenues
in our fiscal year 2001. In the event that in either or both of these suits our
products are held to be infringing a valid patent, we could be prevented from
continuing to sell these products and could be required to pay substantial
damages, or, alternatively, enter into a royalty-bearing license agreement.
There can be no assurance that others will not develop technologies that
are similar or superior to our technology, duplicate our technology or design
around the patents owned by us. In addition, effective copyright, patent and
trade secret protection may be unavailable, limited or not applied for in
certain foreign countries. There can be no assurance that the steps taken by us
to protect our technology will prevent the misappropriation of such technology.
The value of our products relies substantially on our technical innovation in
fields in which there are many current patent filings. We recognize that as new
patents are issued or are brought to our attention by the holders of such
patents, it may be necessary for us to withdraw products from the market, take a
license from such patent holders, or redesign our products. We do not believe
any of our products currently infringe
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patents or other proprietary rights of third parties, but we cannot be certain
they do not do so. In addition, the legal costs and engineering time required to
safeguard intellectual property or to defend against litigation could become a
significant expense of operations. Such events could have a material adverse
effect on our revenues or profitability.
We Are Dependent on New Products.
Our future revenue stream depends to a large degree on our ability to bring
new products to market on a timely basis. We must continue to make significant
investments in research and development in order to continue to develop new
products, enhance existing products and achieve market acceptance of such
products. However, there can be no assurance that development stage products
will be successfully completed or, if developed, will achieve significant
customer acceptance. If we were unable to successfully define, develop and
introduce competitive new products, and enhance existing products, our future
results of operations would be adversely affected. Development and manufacturing
schedules for technology products are difficult to predict, and there can be no
assurance that we will achieve timely initial customer shipments of new
products. The timely availability of these products in volume and their
acceptance by customers are important to our future success. A delay in new
product introductions could have a significant impact on our results of
operations. No assurance can be given that we will not incur problems in the
future in innovating and introducing new products.
Our Stock Price May Be Volatile.
Our common stock has experienced and can be expected to experience
substantial price volatility in response to actual or anticipated quarterly
variations in results of operations, announcements of technological innovations
or new products by us or our competitors, developments related to patents or
other intellectual property rights, developments in our relationship with
customers, suppliers, or strategic partners and other events or factors. In
addition, any shortfall or changes in revenue, gross margins, earnings, or other
financial results from analysts' expectations could cause the price of our
common stock to fluctuate significantly. Additionally, certain macro-economic
factors such as changes in interest rates as well as market climate for the
high-technology sector could also have an impact on the trading price of our
stock.
We Face Risks of Entering Into and Maintaining Alliances.
We believe that in certain emerging markets our success will depend on our
ability to form and maintain alliances with established system providers and
industry leaders. Our failure to form and maintain such alliances, or the
preemption of such alliances by actions of other competitors or us will
adversely affect our ability to penetrate emerging markets. No assurances can be
given that we will not experience problems from current or future alliances or
that we will realize value from any such strategic alliances.
We Face Risks in Investing in and Integrating New Acquisitions.
We are continuously evaluating external investments in technologies related
to our business, and have made relatively small strategic equity investments in
a number of GPS related technology companies. Acquisitions of companies,
divisions of companies, or products entail numerous risks, including (i) the
potential inability to successfully integrate acquired operations and products
or to realize cost savings or other anticipated benefits from integration; (ii)
diversion of management's attention; (iii) loss of key employees of acquired
operations; and (iv) inability to recover strategic investments in development
stage entities. As a result of such acquisitions, we have significant assets
that include goodwill and other purchased intangibles. The testing of these
intangibles under established accounting guidelines for impairment requires
significant use of judgment
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and assumptions. Changes in business conditions could require adjustments to the
valuation of these assets. Any such problems in integration or adjustments to
the value of the assets acquired could harm our growth strategy and have a
material adverse effect on our business, financial condition and compliance with
debt covenants.
We Are Dependent on Key Customers.
We currently enjoy strong relationships with key customers. An increasing
amount of our revenue is generated from large original equipment manufacturers
such as Siemens VDO Automotive, Nortel, Caterpillar, CNH Global, Bosch, and
others. A reduction or loss of business with these customers could have a
material adverse effect on our financial condition and results of operations.
There can be no assurance that we will be able to continue to realize value from
these relationships in the future.
We Are Dependent on Retaining and Attracting Highly Skilled Development and
Managerial Personnel.
Our ability to maintain our competitive technological position will depend,
in a large part, on our ability to attract, motivate, and retain highly
qualified development and managerial personnel. Competition for qualified
employees in our industry and location is intense, and there can be no assurance
that we will be able to attract, motivate and retain enough qualified employees
necessary for the future continued development of our business and products.
We Are Subject to the Impact of Governmental and Other Similar Certifications.
We market certain products that are subject to governmental and similar
certifications before they can be sold. For example, CE certification for
radiated emissions is required for most GPS receiver and data communications
products sold in the European Union. An inability to obtain such certifications
in a timely manner could have an adverse effect on our operating results. Also,
our products that use integrated radio communication technology require an
end-user to obtain licensing from the Federal Communications Commission ("FCC")
for frequency-band usage. During the fourth quarter of 1998, the FCC temporarily
suspended the issuance of licenses for certain of our real-time kinematic
products because of interference with certain other users of similar radio
frequencies. An inability or delay in obtaining such certifications or delays of
the FCC could adversely affect our ability to bring our products to market,
which could harm our customer relationships and have a material adverse effect
on our business.
We Are Dependent on the Availability of Allocated Bands Within the Radio
Frequency Spectrum.
Our GPS technology is dependent on the use of the Standard Positioning
Service ("SPS") provided by the U.S. Government's Global Positioning System
("GPS"). The GPS SPS operates in radio frequency bands that are globally
allocated for radio navigation satellite services. International allocations of
radio frequency are made by the International Telecommunications Union ("ITU"),
a specialized technical agency of the United Nations. These allocations are
further governed by radio regulations that have treaty status and which may be
subject to modification every two-three years by the World Radiocommunication
Conference. Any ITU reallocation of radio frequency bands, including frequency
band segmentation or sharing of spectrum, may materially and adversely affect
the utility and reliability of our products, which would, in turn, cause a
material adverse effect on our operating results. Many of our products use other
radio frequency bands, together with the GPS signal, to provide enhanced GPS
capabilities, such as real-time kinematic precision. The continuing availability
of these non-GPS radio frequencies is essential to provide enhanced GPS products
to our precision survey markets. Any regulatory changes in spectrum allocation
or in allowable operating conditions may
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materially and adversely affect the utility and reliability of our products,
which would, in turn, cause a material adverse effect on our operating results.
In addition, unwanted emissions from mobile satellite services and other
equipment operating in adjacent frequency bands or inband from licensed and
unlicensed devices may materially and adversely affect the utility and
reliability of our products, which could result in a material adverse effect on
our operating results. The FCC continually receives proposals for novel
technologies and services, such as ultra-wideband technologies, which may seek
to operate in, or across, the radio frequency bands currently used by the GPS
SPS and other public safety services. Adverse decisions by the FCC that result
in harmful interference to the delivery of the GPS SPS and other radio frequency
spectrum also used in our products may materially and adversely affect the
utility and reliability of our products, which could result in a material
adverse effect on our business and financial condition.
We Are Subject to the Adverse Impact of Radio Frequency Congestion.
We have certain real-time kinematic products, such as our Land Survey 5700,
that use integrated radio communication technology that requires access to
available radio frequencies allocated by the FCC. In addition, access to these
frequencies by state agencies is under management by state radio communications
coordinators. Some bands are experiencing congestion that excludes their
availability for access by state agencies in some states, including the state of
California. An inability to obtain access to these radio frequencies could have
an adverse effect on our operating results.
We Are Reliant on the GPS Satellite Network.
The GPS satellites and their ground support systems are complex electronic
systems subject to electronic and mechanical failures and possible sabotage. The
satellites were originally designed to have lives of 7.5 years and are subject
to damage by the hostile space environment in which they operate. However, of
the current deployment of 28 satellites in place, some have already been in
place for 12 years. To repair damaged or malfunctioning satellites is currently
not economically feasible. If a significant number of satellites were to become
inoperable, there could be a substantial delay before they are replaced with new
satellites. A reduction in the number of operating satellites would impair the
current utility of the GPS system and the growth of current and additional
market opportunities. In addition, there can be no assurance that the U.S.
Government will remain committed to the operation and maintenance of GPS
satellites over a long period, or that the policies of the U.S. Government for
the use of GPS without charge will remain unchanged. However, a 1996
Presidential Decision Directive marks the first time in the evolution of GPS
that access for civilian use free of direct user fees is specifically recognized
and supported by Presidential policy. In addition, Presidential policy has been
complemented by corresponding legislation, signed into law. Because of
ever-increasing commercial applications of GPS, other U.S. Government agencies
may become involved in the administration or the regulation of the use of GPS
signals. Any of the foregoing factors could affect the willingness of buyers of
our products to select GPS-based systems instead of products based on competing
technologies. Any resulting change in market demand for GPS products could have
a material adverse effect on our financial results. For example, European
governments have expressed interest in building an independent satellite
navigation system, known as Galileo. Depending on the as yet undetermined design
and operation of this system, there may be interference to the delivery of the
GPS SPS and may materially and adversely affect the utility and reliability of
our products, which could result in a material adverse effect on our business
and operating results.
We Are Reliant on a Continuous Power Supply.
California recently experienced an energy crisis that threatened to disrupt
our operations and resulted in increased expenses for our California facilities.
In the event of an acute power shortage, that is, when power
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reserves for the State of California fall below certain critical levels,
California has on some occasions implemented, and may in the future continue to
implement, rolling blackouts throughout the state. We currently do not have
adequate backup generators or alternate sources of power in the event of a
blackout, and our current insurance does not provide coverage for any damages we
or our customers may suffer as a result of any interruption in our power supply.
If blackouts interrupt our power supply or Solectron's power supply, we would be
temporarily unable to continue operations at our California facilities. Any such
interruption in our ability to continue operations at our facilities or
Solectron's ability to manufacture product at its facilities could damage our
reputation, harm our ability to retain existing customers and to obtain new
customers, and could result in lost revenue, any of which could substantially
harm our business and results of operations.
We Must Carefully Manage Our Future Growth.
Any continued growth in our sales or any continued expansion in the scope
of our operations could strain our current management, financial, manufacturing
and other resources and may require us to implement and improve a variety of
operating, financial and other systems, procedures and controls. Specifically we
have experienced strain in our financial and order management system, as a
result of our acquisitions. While we plan to expand our sales, accounting,
manufacturing, and other information systems to meet these challenges, there can
be no assurance that these efforts will succeed, or that any existing or new
systems over time, procedures or controls will be adequate to support our
operations or that our systems, procedures and controls will be designed,
implemented or improved in a cost effective and timely manner. Any failure to
implement, improve and expand such systems, procedures and controls in a timely
and efficient manner could harm our growth strategy and adversely affect our
financial condition and ability to achieve our business objectives.
Provisions in Our Preferred Share Rights Agreement May Have Anti-Takeover
Effects.
Our preferred share rights agreement gives our board of directors and
shareholders the ability to dilute the ownership of any person acquiring fifteen
percent (15%) or more of our common stock, thereby potentially making any such
acquisition impractical for an acquirer. The existence of this preferred share
rights agreement could delay, defer or prevent a change of control of us in a
transaction not approved by our board of directors.
USE OF PROCEEDS
The selling shareholders will receive all of the proceeds from the shares
to be sold in this offering.
SELLING SHAREHOLDERS
We originally sold shares of common stock being registered in this
registration statement and warrants exercisable for shares of our common stock
being registered in this registration statement in two related private placement
equity offerings that closed on December 21, 2001, and January 14, 2002,
respectively. We offered and sold our common stock at a price of $15.00 per
share. The warrants we issued are exercisable for five years from the closing
dates of the respective offerings at an exercise price per share equal to one
hundred and twenty-five percent (125%) of the fair market value of a share of
common stock, which was deemed at each closing to be $15.58. The number of
shares subject to each warrant represents twenty percent (20%) of the number of
shares of common stock purchased by each selling shareholder.
The number of shares subject to the warrants and the exercise price of the
warrants are subject to adjustment as provided in the documents governing the
issuance of the warrants. The warrant exercise price and/or the number and kind
of shares purchasable upon the exercise of each warrant are subject to certain
adjustments for
-10-
subdivisions or combinations of stock, dividends or distributions in common
stock, other stock or property, reorganizations, consolidations or mergers,
certain sales or issuances of securities below the adjusted fair market value of
a share of common stock (deemed to be $15.58 initially in the warrants), or
liquidated damages in the event that the selling shareholders are prohibited
from selling their shares or shares purchasable upon the exercise of their
warrants for greater than a defined number of days.
The following table contains information as of January 16, 2002, with
respect to the selling shareholders and the number of shares of common stock
beneficially owned by each selling shareholder that may be offered using this
prospectus.
Name
Number of Shares
Number of Shares Beneficially Number of Beneficially Owned After
Owned Prior to the Offeringt Shares That May The Offering(4)
----------------------------- Be Sold in the ------------------------------
Number(1) Percentage(2) Offering(3) Number Percentage
------------ -------------- ---------------- ------------ ----------------
AIG SoundShore Holdings Ltd. (5) ................ 148,720 * 148,720 0 *
AIG SoundShore Opportunity Holding Fund (5)...... 98,280 * 98,280 0 *
AIG SoundShore Private Investors Holding Fund
Ltd. (5)...................................... 60,000 * 60,000 0 *
AIG SoundShore Strategic Holding Fund Ltd. (5) .. 69,000 * 69,000 0 *
Castle Creek Technology Partners LLC (6)......... 480,003 1.7% 480,003 0 *
Cleveland Overseas Ltd.(7)....................... 100,001 * 100,001 0 *
Cranshire Capital, L.P. (8)...................... 304,002 1.1% 304,002 0 *
Euram Cap Strat. "A" Fund Limited (8)............ 96,000 * 96,000 0 *
First Investors Holding Co., Inc. (9)............ 640,001 2.3% 640,001 0 *
Pine Ridge Financial Inc. (9).................... 964,602 3.4% 960,002 4,600 *
Steelhead Investments Ltd. (10).................. 160,001 * 160,001 0 *
ZLP Master Technology Fund, LTD (11)............. 560,003 * 560,003 0 *
------------------------------------------------------------------------------------------------------------------------------------
* Less than 1%.
(1) Includes shares of common stock issuable upon the exercise of that
particular holder's warrants.
(2) Calculated based on Rule 13d-3(d)(1)(i) of the Exchange Act using
28,144,912 shares of common stock outstanding as of January 16, 2002.
In calculating this amount for each holder, we treated as outstanding
the number of shares of common stock issuable upon exercise of all of
that particular holder's warrants. However, we did not assume the
exercise of any other holder's warrants.
(3) Assumes full exercise of each of the holder's warrants.
(4) Assumes the sale of all shares that may be sold in the offering.
(5) Investment and voting control is held by DKR Management Company Inc.
DKR Management Company Inc. has entered into an agreement with Basso
Securities Ltd., pursuant to which Basso provides portfolio management
services to the four AIG Funds. Basso has the authority to and
responsibility for directing the investment and reinvestment of the
respective Fund's assets allocated to it, subject, however, to the
supervision of DKR Management Company Inc. The president of Basso is
Howard I. Fischer. The chief operating officer of DKR Management
Company Inc. is Anthony Giordano.
(6) Investment and voting control is held by CC Securities, LLC. Castle
Creek Partners, LLC, is the investment manager of CC Securities, LLC,
and Daniel Asher is the managing member of Castle Creek Partners, LLC.
Castle Creek Technology Partners LLC purchased its shares in the
ordinary course of business, and, at the time of the purchase of its
shares, had no agreements or understandings, directly or indirectly,
with any person to distribute the securities.
11
(7) Investment and voting control is held by Beat Kunz.
(8) Investment and voting control is held by Mitchell P. Kopin.
(9) Investment and voting control is held by Cavallo Capital Corp. The
managing director of Cavallo Capital Corp is Avi Vigder.
(10) Investment and voting control is held by HBK Investments L.P. HBK
Management LLC is the general partner of HBK Partners II L.P., which
is the general partner of HBK Investments L.P. Each of Harlan B.
Korenvaes, Kenneth M. Hirsh, Laurence H. Lebowitz, William E. Rose,
Richard L. Booth, David C. Haley and Jamiel A. Akhtar, as the members
of HBK Management LLC, may be deemed to have voting and investment
control over the securities held by Steelhead Investments Inc.
pursuant to an investment management agreement.
(11) Investment and voting control is held by Stuart Zimmer and Craig
Lucas.
We prepared this table based on the information supplied to us by the
selling shareholders named in the table.
The selling shareholders listed in the above table may have sold or
transferred, in transactions exempt from the registration requirements of the
Securities Act, some or all of their shares or warrants since the date on which
the information in the above table is presented. Information about the selling
shareholders may change over time.
Because the selling shareholders may offer all or some of their common
stock from time to time, we cannot estimate the amount of common stock that will
be held by the selling shareholders upon the termination of any particular
offering. See "Plan of Distribution."
PLAN OF DISTRIBUTION
We will not receive any of the proceeds of the sale of the common stock
offered by this prospectus. The selling shareholders and any of their pledgees,
assignees and successors-in-interest named in the registration statement on Form
S-3 may, from time to time, sell any or all of their shares of common stock on
any stock exchange, market or trading facility on which the shares are traded or
in private transactions. These sales may be at fixed or negotiated prices. The
selling shareholders may use any one or more of the following methods when
selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o broker-dealers may agree with the selling shareholders to sell a
specified number of such shares at a stipulated price per share;
12
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling shareholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
The selling shareholders may also engage in short sales against the box,
puts and calls and other transactions in our securities or derivatives of our
securities and may sell or deliver shares in connection with these trades. The
selling shareholders may pledge their shares to their brokers under the margin
provisions of customer agreements. If a selling shareholder defaults on a margin
loan, the broker may, from time to time, offer and sell the pledged shares.
Broker-dealers engaged by the selling shareholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling shareholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling shareholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling shareholders and any broker-dealers or agents that are involved
in selling the shares may be deemed to be "underwriters" within the meaning of
the Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act.
We are required to pay all fees and expenses incident to the registration
of the shares. We have agreed to indemnify the selling shareholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act, and the selling shareholders have agreed to indemnify us against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 28, 2001, as set forth in their report, which is
incorporated by reference in this registration statement. Our financial
statements and schedules are incorporated by reference in reliance on Ernst &
Young LLP's report, given on their authority as experts in accounting and
auditing.
VALIDITY OF COMMON STOCK
The validity of the issuance of our common stock offered by this prospectus
will be passed upon for us by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference into this Prospectus the
information we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information we file
13
later with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until the sale of all of the shares of common stock that
are part of this offering. The documents we are incorporating by reference are
as follows:
o Our Annual Report on Form 10-K for the fiscal year ended December 28,
2001, as filed with the SEC on March 28, 2002, and any amendments
thereto;
o Our Current Report on Form 8-K, as filed with the SEC on January 16,
2002;
o Our Current Report on Form 8-K, as filed with the SEC on January 30,
2002;
o Our two Current Reports on Form 8-K, each as filed with the SEC on
March 18, 2002;
o Our Current Report on Form 8-K, as filed with the SEC on March 19,
2002;
o Our Current Report on Form 8-K, as filed with the SEC on March 21,
2002;
o Our Current Report on Form 8-K/A, as filed with the SEC on March 28,
2002;
o The description of our common stock contained in our Registration
Statement on Form 8-A filed on June 15, 1990, and any amendment or
report filed for the purpose of updating such description; and
o The description of certain dividend rights on our common stock
contained in our Registration Statement on Form 8-A filed on February
18, 1999.
Any statement contained in a document that is incorporated by reference
will be modified or superseded for all purposes to the extent that a statement
contained in this prospectus (or in any other document that is subsequently
filed with the SEC and incorporated by reference) modifies or is contrary to
that previous statement. Any statement so modified or superseded will not be
deemed a part of this prospectus except as so modified or superseded. You may
request a copy of these filings at no cost (other than exhibits unless such
exhibits are specifically incorporated by reference) by writing or telephoning
our investor relations department at the following address and telephone number:
Trimble Navigation Limited, 645 North Mary Avenue, Sunnyvale, California 94088,
(408) 481-8000.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934 and, in accordance therewith, we file annual, quarterly and special
reports, proxy statements, and other information with the SEC. You may read and
copy any document we file at the SEC's public reference facilities at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov.
Shares of our common stock are traded as "National Market Securities" on
the Nasdaq National Market. Documents we file can be inspected at the offices of
the National Association of Securities Dealers, Inc., Reports Section, 1735 K
Street, N.W., Washington, D.C. 20006.
14
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses, other than any underwriting
discount and commissions, in connection with the issuance and distribution of
the securities being registered. All amounts indicated are estimates (other than
the registration fee):
Registration fee.................................... $5,351
Accounting fees and expenses........................ $11,500
Legal fees and expenses of the registrant........... $25,000
Miscellaneous....................................... $5,000
-----------
Total.......................................... $46,851
Item 15. Indemnification of Directors and Officers
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit indemnification, including
reimbursement of expenses incurred, under certain circumstances for liabilities
arising under the Securities Act. Our restated articles of incorporation, as
amended, and amended bylaws provide for indemnification of its directors,
officers, employees and other agents to the maximum extent permitted by the
California Corporations Code. In addition, we have entered into indemnification
agreements with each of our directors and officers.
Item 16. Exhibits
The following exhibits are filed herewith or incorporated by reference
herein:
Exhibit
Number Exhibit Title
------ -----------------------------------------------------------------------
3.1 Restated Articles of Incorporation of Trimble Navigation Limited, filed
June 25, 1986. (1)
3.2 Certificate of Amendment of Articles of Incorporation of Trimble
Navigation Limited, filed October 6, 1988. (1)
3.3 Certificate of Amendment of Articles of Incorporation of Trimble
Navigation Limited, filed July 18, 1990. (1)
3.4 Certificate of Determination of Trimble Navigation Limited, filed
February 19, 1999. (1)
3.8 Amended and Restated Bylaws of Trimble Navigation Limited. (2)
4.1 First Amended and Restated Stock and Warrant Purchase Agreement, dated
January 14, 2002. (3)
4.2 Form of Warrant, dated January 14, 2002. (3)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.3 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
24.1 Power of Attorney (4).
-------------------
II-1
(1) Incorporated by reference to identically numbered exhibits filed in
response to Item 14(a), "Exhibits" of the registrant's Annual Report on
Form 10-K for the fiscal year ended January 1, 1999, as filed with the SEC
on March 29, 1999.
(2) Incorporated by reference to identically numbered exhibits filed in
response to Item 14(a), "Exhibits" of the registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999, as filed with the
SEC on March 27, 2000.
(3) Incorporated by reference to corresponding exhibits filed in response to
Item 7(c), "Exhibits" of the registrant's Current Report on Form 8-K as
filed with the SEC on January 16, 2002.
(4) Previously filed.
Item 17. Undertakings
1. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that the undertakings set forth in clauses (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by these clauses is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
2. The undersigned registrant hereby undertakes, that, for purposes of
determining any liability under the 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
II-2
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 Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
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 Act and will be governed by the final adjudication of
such issue.
4. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the 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 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-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 City of Sunnyvale, State of California, on April 8, 2002.
TRIMBLE NAVIGATION LIMITED
By: /s/ Steven W. Berglund
----------------------------------------
Steven W. Berglund
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, on April 8,
2002, this Registration Statement has been signed by the following persons in
the capacities indicated:
Name Title Date
--------------------------------- ------------------------------------------ ---------------
/s/ Steven W. Berglund President, Chief Executive Officer and April 8, 2002
--------------------------- Director
Steven W. Berglund
/s/ Mary Ellen Genovese Chief Financial Officer and Assistant Secretary April 8, 2002
--------------------------- (Principal Financial Officer)
Mary Ellen Genovese
/s/ Anup V. Singh Corporate Controller April 8, 2002
--------------------------- (Principal Accounting Officer)
Anup V. Singh
/s/ Robert S. Cooper* Director April 8, 2002
---------------------------
Robert S. Cooper
/s/ John B. Goodrich* Director April 8, 2002
---------------------------
John B. Goodrich
/s/ William Hart* Director April 8, 2002
---------------------------
William Hart
/s/ Ulf J. Johansson* Director April 8, 2002
---------------------------
Ulf J. Johansson
/s/ Bradford W. Parkinson* Director April 8, 2002
---------------------------
Bradford W. Parkinson
*By: /s/ Steven W. Berglund
-----------------------
Steven W. Berglund
(Attorney-in-fact)
II-4
EXHIBIT INDEX
Exhibit
Number Exhibit Title
------ -----------------------------------------------------------------------
3.1 Restated Articles of Incorporation of Trimble Navigation Limited, filed
June 25, 1986. (1)
3.2 Certificate of Amendment of Articles of Incorporation of Trimble
Navigation Limited, filed October 6, 1988. (1)
3.3 Certificate of Amendment of Articles of Incorporation of Trimble
Navigation Limited, filed July 18, 1990. (1)
3.4 Certificate of Determination of Trimble Navigation Limited, filed
February 19, 1999. (1)
3.8 Amended and Restated Bylaws of Trimble Navigation Limited. (2)
4.1 First Amended and Restated Stock and Warrant Purchase Agreement, dated
January 14, 2002. (3)
4.2 Form of Warrant, dated January 14, 2002. (3)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.3 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
24.1 Power of Attorney (4).
-------------------
(1) Incorporated by reference to identically numbered exhibits filed in
response to Item 14(a), "Exhibits" of the registrant's Annual Report on
Form 10-K for the fiscal year ended January 1, 1999, as filed with the SEC
on March 29, 1999.
(2) Incorporated by reference to identically numbered exhibits filed in
response to Item 14(a), "Exhibits" of the registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999, as filed with the
SEC on March 27, 2000.
(3) Incorporated by reference to corresponding exhibits filed in response to
Item 7(c), "Exhibits" of the registrant's Current Report on Form 8-K as
filed with the SEC on January 16, 2002.
(4) Previously filed.