As filed with the Securities and Exchange Commission on November 22, 1999.
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
Rockville, Maryland 20850
Delaware (301) 296-2300 52-1837515
(State or other (Address of principal (I.R.S. Employer
jurisdiction of executive offices) Identification No.)
incorporation or
organization)
Visual Networks, Inc.
1997 Omnibus Stock Plan
(Full title of the plan)
Copy to:
PETER J. MINIHANE NANCY A. SPANGLER, ESQ.
Executive Vice President, Piper Marbury Rudnick & Wolfe LLP
Chief Financial Officer and Treasurer Suite 610, Commerce Executive Park III
Visual Networks, Inc. 1850 Centennial Park Drive
2092 Gaither Road Reston, Virginia 20191-1517
Rockville, Maryland 20850 (703) 391-7100
(301) 296-2300
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1)(2) PER SHARE OFFERING PRICE REGISTRATION FEE(5)
Common Stock (par value
$.01 per share) 663,975 $61.56(3) $40,874,301.00(3) $11,363.06(3)
32,000 $26.375(4) $844,000.00(4) $234.63(4)
1,304,025 $32.25(4) $42,054,806.25(4) $11,691.24(4)
2,000,000 Total Shares $23,288.93 Total Fee
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) An aggregate of 3,000,000 shares of Common Stock may be offered or issued
pursuant to the Visual Networks, Inc. 1997 Omnibus Stock Plan, 993,000 of
which were previously registered on Form S-8 (File No. 333-52349), and
2,000,000 of which are registered on this Form S-8.
<PAGE>
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
shares of Common Stock that may be offered or issued by reason of stock
splits, stock dividends or similar transactions.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h). The proposed maximum offering price per share,
proposed maximum aggregate offering price and the amount of the
registration fee are based on the average of the high and low prices of
Visual Networks, Inc. Common Stock reported on the Nasdaq National Market
on November 18, 1999 (i.e. $61.56).
(4) Pursuant to 457(h), the proposed maximum offering price per share, proposed
maximum aggregate offering price and the amount of the registration fee are
based on the price at which options may be exercised under the Visual
Networks, Inc. 1997 Omnibus Stock Plan.
(5) Pursuant to General Instruction E of Form S-8, the registration fee is
calculated with respect to the additional securities registered on this
Form S-8 only.
<PAGE>
INCORPORATION OF DOCUMENTS BY REFERENCE
In accordance with General Instruction E to Form S-8, the contents of
the Registration Statement filed by Visual Networks, Inc. (the "Corporation" or
the "Registrant") with the Securities and Exchange Commission (the "Commission")
(File No. 333-52349), with respect to securities offered pursuant to the
Corporation's 1997 Omnibus Stock Plan, are hereby incorporated herein by
reference.
All documents filed by the Corporation pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
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 which also is or is
deemed to be incorporated by reference herein modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superseded, to constitute part of this Registration
Statement.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the General Corporation Law of Delaware ("GCLD"),
Section Twelve of the Amended and Restated Certificate of Incorporation (the
"Certificate") of the Corporation provides for indemnification of directors and
officers of the Corporation, as follows:
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of Delaware, as amended from time to
time, indemnify each person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or had
agreed to serve, at the request of the Corporation, as a director,
officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action
alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or on his behalf
in connection with such action, suit or proceeding and any appeal
therefrom.
Also, the Corporation's By-Laws contain indemnification procedures that
implement the indemnification provisions of the Certificate. The GCLD permits a
corporation to indemnify its directors and officers, among others, against
judgments, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceedings to which they may be a party by reason of
their service in those or other capacities, if such person acted in good faith
and in a manner which such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any criminal action
or proceedings, had no reasonable cause to believe that such conduct was
unlawful.
As permitted by the GCLD, Section Seven of the Corporation's
Certificate provides for limitation of liability of directors of the
Corporation, as follows:
No director of the Corporation shall be personally liable to
the Corporation or to any stockholder of the Corporation for monetary
damages for breach of fiduciary duty as a director, provided that this
provision shall not limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation of its
stockholders, (ii) for acts or omissions not in good faith or which
involved intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of Delaware, or (iv)
for any transaction from which the director derived an improper
personal benefit.
<PAGE>
EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Amendment No. 1 to the Visual Networks, Inc. 1997 Omnibus Stock
Plan (filed herewith)
4.2 Visual Networks, Inc. 1997 Omnibus Stock Plan (incorporated by
reference to the exhibits to the Corporation's Registration
Statement on Form S-1, dated December 4, 1997 (File No.
333-41517)
4.3 Amended and Restated Certificate of Incorporation (incorporated
by reference to the Exhibits to the Corporation's Quarterly
Report on Form 10-Q, dated August 16, 1999 (File No. 000-23699))
4.4 By-Laws (incorporated by reference to the Exhibits to the
Corporation's Registration Statement on Form S-1, dated December
4, 1997 (File No. 333-41517), as amended)
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP, counsel for the
Registrant, regarding the legal validity of the shares of Common
Stock being registered for issuance under the Plan (filed
herewith)
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants (filed herewith)
24.1 Power of Attorney (included in signature pages)
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 22nd day
of November, 1999.
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 of 1933, as amended,
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.
<TABLE>
<S> <C> <C>
Signature Title Date
- --------- ----- ----
/s/ Scott E. Stouffer Chairman of the Board of Directors, November 22, 1999
- ------------------------------------ President and Chief Executive Officer
Scott E. Stouffer (Principal Executive Officer)
/s/ Peter J. Minihane Executive Vice President, Chief November 19, 1999
- ------------------------------------ Financial Officer and Treasurer
Peter J. Minihane (Principal Accounting and
Financial Officer)
/s/ Grant G. Behrman Director November 19, 1999
- ------------------------------------
Grant G. Behrman
/s/ Marc F. Benson Director November 18, 1999
- ------------------------------------
Marc F. Benson
/s/ Theodore R Joseph Director November 18, 1999
- ------------------------------------
Theodore R. Joseph
Director
- ------------------------------------
Ted H. McCourtney
<PAGE>
/s/ Thomas A. Smith Director November 18, 1999
- ------------------------------------
Thomas A. Smith
/s/ William J. Smith Director November 18, 1999
- ------------------------------------
William J. Smith
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Amendment No. 1. to the Visual Networks, Inc. 1997 Omnibus Stock
Plan (filed herewith)
4.2 Visual Networks, Inc. 1997 Omnibus Stock Plan (incorporated by
reference to the exhibits to the Corporation's Registration
Statement on Form S-1, dated December 4, 1997 (File No.
333-41517)
4.2 Amended and Restated Certificate of Incorporation (incorporated
by reference to the Exhibits to the Corporation's Quarterly
Report on Form 10-Q, dated August 16, 1999 (File No. 000-23699))
4.3 By-Laws (incorporated by reference to the Exhibits to the
Corporation's Registration Statement on Form S-1, dated December
4, 1997 (File No. 333-41517), as amended)
5.1 Opinion of Piper Marbury Rudnick & Wolfe LLP, counsel for the
Registrant, regarding the legal validity of the shares of Common
Stock being registered for issuance under the Plan (filed
herewith)
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants (filed herewith)
24.1 Power of Attorney (included in signature pages)
<PAGE>
Exhibit 4.1
AMENDMENT NO. 1 TO THE
VISUAL NETWORKS, INC.
1997 OMNIBUS STOCK PLAN
W I T N E S S E T H:
WHEREAS, Section 7(e) of the Visual Networks, Inc. 1997 Omnibus Stock
(the "Plan") authorizes the Board of Directors (the "Board") of Visual Networks,
Inc. (the "Corporation") to amend the Plan at any time and from time to time;
and
WHEREAS, Section 4 of the Plan provides that 1,000,000 shares of the
authorized and unissued shares of Common Stock of the Corporation, par value of
$0.01 per share (the "Common Stock"), shall be reserved and authorized for
issuance pursuant to awards granted under the Plan; and
WHEREAS, the Board has determined that it is desirable and in the best
interest of the Corporation to authorize the issuance of a limited number of
additional shares under the Plan to meet the Corporation's immediate needs in
hiring and retaining qualified employees who are not officers and directors of
the Corporation.
NOW, THEREFORE, the Plan is amended as follows:
The following Section 8 is added to the Plan:
8. Additional Shares
In addition to Common Stock reserved under Section 4 of the
Plan, 2,000,000 shares of Common Stock shall be reserved for Awards
granted under the Plan to eligible persons who are not officers or
directors within the meaning of the National Association of Securities
Dealers (NASD) Marketplace Rule 4310(c)(25)(H), during the period
commencing June 1, 1999, and ending on the date of the first annual
meeting of the Corporation's shareholders which occurs after such date,
provided, however, that no Award with respect to such shares shall be
deemed to be an incentive stock option. If any Award granted with
respect to shares of Common Stock reserved and authorized for issuance
pursuant to this Section 8 is forfeited or terminates for any reason
before being exercised, the corresponding shares of Common Stock shall
not again become available for Awards under the Plan as provided in
Section 4. The provision of this Section 8 shall be subject to
adjustment pursuant to Section 7(d). Awards with respect to shares of
Common Stock received and authorized pursuant to this Section 8 shall
not be taken into account for purposes of the limitations of Section 4.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to be
executed by its duly authorized officers this 14th day of October, 1999.
ATTEST: VISUAL NETWORKS, INC.
By: /s/ Nancy A. Spangler By: /s/ Peter J. Minihane
-------------------------------- -------------------------------
<PAGE>
Exhibit 5.1
- ------------------
PIPER
MARBURY
RUDNICK
& WOLFE LLP
- ------------------
Suite 610, Commerce Executive Park III NANCY A. SPANGLER
1850 Centennial Park Drive
Reston, Virginia 20191-1517 [email protected]
www.piperrudnick.com PHONE (703) 390-5240
FAX (703) 390-5299
PHONE (703) 391-7100
FAX (703) 390-5299
November 22, 1999
Visual Networks, Inc.
2092 Gaither Road
Rockville, Maryland 20850
Re: 1997 Omnibus Stock Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Visual Networks, Inc. a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") filed on the date hereof
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to 2,000,000 additional shares of the Company's Common Stock, par value
$.01 per share (the "Shares"), reserved for issuance under The Visual Networks,
Inc. 1997 Omnibus Stock Plan (the "Plan").
In this capacity, we have examined the Company's Amended and Restated
Certificate of Incorporation and By-laws, the proceedings of the Board of
Directors of the Company relating to the issuance of the Shares and such other
documents, instruments and matters of law as we have deemed necessary to the
rendering of this opinion. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity with originals of all documents submitted to us as
copies.
Based upon the foregoing, we are of the opinion and advise you that
each of the Shares described in the Registration Statement has been duly
authorized and validly issued and is fully paid and nonassessable.
We hereby consent to the use of our name in the Registration Statement
and under the caption "Legal Matters" in the related Prospectus and consent to
the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Nancy A. Spangler
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated October 12,
1999 and to all references to our Firm included in this Registration Statement
filed on Form S-8. Our report dated January 15, 1999 included in the Visual
Networks, Inc. Annual Report on Form 10-K for the year ended December 31, 1998
is no longer appropriate since restated financial statements have been presented
giving effect to a business combination accounted for as a pooling-of-interests.
Vienna, Virginia
November 19, 1999
