PIPER & MARBURY
L.L.P.
1200 NINETEENTH STREET, N.W.
Washington, D.C. 20036-2430
202-861-3900
FAX: 202-223-2085
BALTIMORE
NEW YORK
PHILADELPHIA
EASTON
May 11, 1998
ELECTRONIC DELIVERY
U.S. Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Visual Networks, Inc. (the "Registrant")
Amended and Restated
1997 Directors' Stock Option Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
On behalf of the Registrant, attached hereto for filing by your electronic
data gathering analysis and retrieval ("EDGAR") system is one copy of the
Registrant's registration statement on Form S-8 relating to the sale of up to
300,000 shares of the Registrant's common stock, par value $.01 per share,
pursuant to the terms of the Visual Networks, Inc. Amended and Restated 1997
Directors' Stock Option Plan, together with a copy of the exhibits required to
be filed with such registration statement.
Earlier today, the Registrant delivered immediately available funds in the
amount of $2,061 by wire transfer to your bank account (Account No.: 910-8739)
at the Mellon Bank (ABA No.: 043 000261) in payment of the aggregate filing fee.
Please acknowledge receipt of this filing by delivering written
confirmation by electronic mail to Piper & Marbury L.L.P. at the electronic mail
address set forth in the filing.
Should you have any questions, please call me at (202) 861-6314.
Very truly yours,
/s/ Nancy A. Spangler
<PAGE>
As filed with the Securities and Exchange Commission on May 11,1998.
Registration No. 333-_____
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
--------------------------
VISUAL NETWORKS, INC.
(Exact name of registrant as specified in its charter)
2092 Gaither Road
Delaware Rockville, Maryland 20850 52-1837515
(301) 296-2300
(State or other (Address of principal executive offices) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
Visual Networks, Inc.
Amended and Restated 1997 Directors' Stock Option Plan
(Full title of the plan)
Copy to:
PETER J. MINIHANE NANCY A. SPANGLER, ESQ.
Executive Vice President, Piper & Marbury L.L.P.
Chief Financial Officer and Treasurer 1200 Nineteenth Street, N.W.
Visual Networks, Inc. Washington, D.C. 20036-2430
2092 Gaither Road (202) 861-3900
Rockville, Maryland 20850
(301) 296-2300
(Name, address and telephone number, including area code, of agent for service)
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
_______________________________________________________________________________________
<S> <C> <C> <C> <C>
Proposed Maximum Proposed
Title of Securities Amount to be Offering Price Max-imum Amount of
to be registered Registered(1) Per Share(2) Aggregate REGISTRATION FEE (2)
Offering Price(2)
Common Stock (par value
$.01 per share) 144,000 $12.50 (2) $1,800,000 (2) $531 (2)
Plan.
Amended and Restated 1997
Directors' Stock Option 156,000 $33.25 (3) $5,187,000 (3) $1,530 (3)
Plan
_______________________________________________________________________________________
(1) This Registration Statement shall also cover any additional shares of Common Stock that become issuable
under the Visual Networks, Inc. Amended and Restated 1997 Directors' Stock Option Plan by reason of any
stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of
consideration that results in an increase in the number of the Registrant's outstanding shares of Common
Stock.
(2) Calculated pursuant to Rule 457(h) on the basis of an exercise price of $12.50 per share.
(3) Estimated pursuant to Rule 457 solely for the purpose of calculating the registration fee on the basis of
the closing price of $33.25 per share reported on the Nasdaq National Market on May 6, 1998.
This Registration Statement shall hereafter become effective in accordance with Rule 462 promulgated under
the Securities Act of 1933, as amended (the "Securities Act").
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION-OF-DOCUMENTS-BY-REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission (the "Commission") by Visual Networks, Inc.
(the "Company" or the "Registrant") are hereby incorporated by reference in this
Registration Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(2) The Company's Current Report on Form 8-K filed April 20, 1998 pursuant
to Section 13 of the Exchange Act.
(3) The Company's Schedule 14A Definitive Proxy Statement for the 1998
Annual Meeting of Stockholders filed on April 29, 1998, pursuant to Section 14
of the Exchange Act.
(4) The description of the Company's Common Stock, $.01 par value per
share, contained in the Company's Registration Statement on Form 8-A filed
January 30, 1998 pursuant to section 12(g) of the Exchange Act.
(5) The description of the Company's Amended and Restated 1997 Directors'
Stock Option Plan contained in Amendment No. 4 to its Registration Statement on
Form S-1, File No. 333-41517, filed on February 4, 1998, under the Securities
Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that deregisters all securities remaining
unsold shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. The
documents required to be so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION-OF-SECURITIES. Not applicable. The class of securities
to be offered is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS-OF-NAMED-EXPERTS-AND-COUNSEL. Not applicable.
ITEM 6. INDEMNIFICATION-OF-DIRECTORS-AND-OFFICERS.
The Company's By-laws provide that the Company shall, to the full extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware, as amended from time to time, indemnify all persons whom it may
indemnify pursuant thereto. In addition, the Company's Certificate of
Incorporation eliminates personal liability of its directors to the full extent
permitted by Section 102(b)(7) of the General Corporation Law of the State of
Delaware, as amended from time to time.
Section 145 of the General Corporation Law of the State of Delaware permits
a corporation to indemnify its directors and officers against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlements
actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties, if such directors or officers acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reason to believe their conduct was unlawful. In a derivative
action, i.e., one by or in the right of the corporation, indemnification may be
made only for expenses actually and reasonably incurred by directors and
officers in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant officers or directors are
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a corporation may eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
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<PAGE>
ITEM 7. EXEMPTION-FROM-REGISTRATION-CLAIMED. Not applicable.
ITEM 8. EXHIBITS. See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) 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 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.
(2) 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of the
offering.
(b) 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such 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 Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rockville, State of Maryland, on this 11th day of
May, 1998.
VISUAL NETWORKS, INC.
By: /s/ Scott E. Stouffer
---------------------
Scott E. Stouffer, President and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Each person whose signature appears below in so signing also makes,
constitutes and appoints Scott E. Stouffer, Peter J. Minihane and Nancy A.
Spangler and each of them acting alone, his true and lawful attorney-in-fact,
with full power of substitution, for him in any and all capacities, to execute
and cause to be filed with the Securities and Exchange Commission any and all
amendments and post-effective amendments to this Registration Statement on Form
S-8, with exhibits thereto and other documents in connection therewith, and
hereby ratifies and confirms all that said attorney-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
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<PAGE>
<TABLE>
<CAPTION>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<S> <C> <C>
Signature Title Date
/s/ Scott E. Stouffer Chairman of the Board of Directors, May 11, 1998
-----------------------
Scott E. Stouffer President and Chief Executive Officer
(Principal Executive Officer)
/s/ Peter J. Minihane Executive Vice President, Chief May 11, 1998
----------------------
Peter J. Minihane Financial Officer and Treasurer
(Principal Accounting and
Financial Officer)
/s/ Grant G. Behrman Director May 11, 1998
---------------------
Grant G. Behrman
/s/ Marc F. Benson Director May 11, 1998
-------------------
Marc F. Benson
/s/ Theodore R. Joseph Director May 11, 1998
-----------------------
Theodore R. Joseph
/s/ Ted H. McCourtney Director May 11, 1998
----------------------
Ted H. McCourtney
/s/ Thomas A. Smith Director May 11, 1998
--------------------
Thomas A. Smith
Director May 11, 1998
---------------------
William J. Smith
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
<S> <C>
Exhibit
Number Description
5.1 Opinion of Piper & Marbury L.L.P. (contains Consent of Counsel) as to the
legality of securities being registered.
10.1 * Visual Networks, Inc. Amended and Restated 1997 Directors' Stock Option
Plan.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (included in signature pages).
________________________
* Incorporated by reference to Exhibit 10.3 to the Company's Amendment No. 4 to Registration Statement
on Form S-1, File No. 333-41517, filed on February 4, 1998.
</TABLE>
<PAGE>
Exhibit 5.1
PIPER & MARBURY
L.L.P.
1200 NINETEENTH STREET, N.W.
Washington, D.C. 20036-2430
202-861-3900
FAX: 202-223-2085
BALTIMORE
NEW YORK
PHILADELPHIA
EASTON
May 11, 1998
Visual Networks, Inc.
2092 Gaither Road
Rockville, Maryland 20850
Re: Amended and Restated
1997 Directors' Stock Option Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about May 11, 1998 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 300,000 shares (the "Shares") of Common
Stock of Visual Networks, Inc. reserved for issuance under the Visual Networks,
Inc. Amended and Restated 1997 Directors' Stock Option Plan (the "Plan"). As
your legal counsel, we have examined the proceedings proposed to be taken by you
in connection with the sale and issuance of said shares.
It is our opinion that, upon completion of the proceedings to be taken
prior to issuance of the shares pursuant to the Prospectus constituting part of
the Registration Statement on Form S-8 and upon completion of the proceedings
being taken in order to permit such transactions to be carried out in accordance
with the securities laws of the various states where required, the Shares, when
issued and sold in the manner referred to in the Plan and in the agreements that
accompany the Plan, and in accordance with the Company's Restated Certificate of
Incorporation, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and amendments thereto.
Very truly yours,
/s/ PIPER & MARBURY L.L.P.
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated February 10,
1998 included in the Visual Networks, Inc. Annual Report on Form 10-K for the
year ended December 31, 1997 and to all references to our Firm included in or
made a part of this registration statement filed on Form S-8.
ARTHUR ANDERSEN LLP
Washington, D.C.
May 11, 1998
