As filed with the Securities and Exchange Commission on August 12, 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)
Delaware 52-1837515
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or organization)
2092 Gaither Road
Rockville, Maryland 20850
(Address of principal executive offices) (Zip Code)
VISUAL NETWORKS, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of plan)
(Name, address and telephone
number of agent for service) (Copy to:)
SCOTT E. STOUFFER MARK MUEDEKING, ESQUIRE
President & Chief Executive Officer Piper & Marbury L.L.P.
Visual Networks, Inc. 36 South Charles Street
2092 Gaither Road Baltimore, Maryland 21201
Rockville, Maryland 20850 (410) 539-2530
(301) 296-2300
CALCULATION OF REGISTRATION FEE
<TABLE>
==================================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Amount Maximum Maximum Amount of
to be Offering Aggregate Registration
Title of Securities to be Registered Registered Price Per Unit (2) Offering Price (2) Fee (2)
- ------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 400,000 (1) $33.09375 $13,237,500 $3,681
===================================================================================================================
</TABLE>
(1) 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 and an indeterminate number of plan
participation interests to be offered or sold pursuant to the Visual Networks,
Inc. 1999 Employee Stock Purchase Plan.
(2) 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 August 10, 1999 (i.e.,
$33.09375). Pursuant to Rule 457(h)(2), no separate registration fee is provided
for the participation interests in the 1999 Employee Stock Purchase Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Form S-8 Registration Statement pursuant to
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended ("Exchange
Act"), since the end of the fiscal year covered by the
document referred to in (a) above; and
(c) Description of Common Stock of the Registrant contained or
incorporated in the registration statements filed by the
Registrant under the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant and the Plan with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part of this Registration Statement from the date of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. 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 Visual Networks, Inc. (the Corporation") provides for
indemnification of directors and officers of the Corporation, as follows:
<PAGE>
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, on 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 Restated Certificate of
Incorporation. 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 an 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 proceeding, 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation (filed herewith)
4.2 By-Laws (incorporated by reference to the Corporation's Registration
Statement on Form S-1, as amended (File No. 333-41517))
5.0 Opinion of Piper & Marbury L.L.P., 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 5.0)
23.2 Consent of Independent Public Accountants (filed herewith)
24.0 Power of Attorney (filed herewith)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
<PAGE>
(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;
(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 this Registration
Statement;
(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.
Paragraphs (l)(i) and (l)(ii) above do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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.
<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 the 12th day of
August, 1999.
VISUAL NETWORKS, INC.
By: /s/ Scott E. Stouffer
-------------------------------
Scott E. Stouffer
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Administrator of the Visual Networks, Inc. 1999 Employee Stock Purchase Plan
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Reston, Commonwealth of
Virginia, on the 12th day of August, 1999.
VISUAL NETWORKS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
All the members of the Compensation Committee
of the Board of Directors of Visual Networks,
Inc.
Date: August 12, 1999 By: /s/ Nancy A. Spangler
---------------------
Nancy A. Spangler
Attorney-In-Fact
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Scott E. Stouffer President, Chief Executive Officer August 12, 1999
- --------------------------------- and Director
Scott E. Stouffer (Principal Executive Officer)
/s/ Peter J. Minihane Executive Vice President, Chief Financial August 12, 1999
- --------------------------------- Officer and Treasurer
Peter J. Minihane (Principal Financial and Accounting Officer)
</TABLE>
A majority of the Board of Directors (Grant G. Behrman, Marc F. Benson,
Theodore R. Joseph, Ted H. McCourtney, Thomas A. Smith, William J. Smith, Scott
E. Stouffer).
Date: August 12, 1999 By: /s/ Nancy A. Spangler
---------------------
Nancy A. Spangler
Attorney-In-Fact
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation (filed
herewith)
4.2 By-Laws (incorporated by reference to the Corporation's
Registration Statement on Form S-1, as amended (File No.
333-41517))
5.0 Opinion of Piper & Marbury L.L.P., 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 5.0)
23.2 Consent of Independent Public Accountants (filed herewith)
24.0 Power of Attorney (filed herewith)
<PAGE>
EXHIBIT 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VISUAL NETWORKS, INC.
Pursuant to Section 242
Of the Corporation Law of the
State of Delaware
Visual Networks, Inc. (hereinafter called the "Corporation"), organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify as follows:
The date of incorporation of the Corporation is December 13,1994.
At a meeting of the Board of Directors of the Corporation a resolution was
duly adopted, pursuant to Section 242 of the General Corporation Law of the
State of Delaware, setting forth an amended and restated Certificate of
Incorporation of the Corporation and declaring said amendment and restatement to
be advisable. The stockholders of the Corporation duly approved said proposed
amendment and restatement by the affirmative vote of the holders of at least a
majority of the Common Stock at the Annual Meeting of Stockholders in accordance
with Sections 211 and 242 Of the General Corporation Law of the State of
Delaware. The resolutions setting forth the amendment and restatement is as
follows:
RESOLVED: That the Certificate of Incorporation of the Corporation be and
hereby is amended and restated as follows:
FIRST: The name of the Corporation is Visual Networks, Inc. The date of
filing of its original Certificate of Incorporation with the Secretary of State
was December 13, 1994.
SECOND: This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of the
Corporation and all prior amendments thereto by deleting from the Certificate of
Incorporation, as amended, all provisions thereof and substituting in lieu
thereof the Amended and Restated Certificate of Incorporation set forth in
Paragraph 3 below.
THIRD: The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended and restated hereby to read as herein
set forth in full:
1. Name. The name of the corporation is Visual Networks, Inc.
2. Registered Office and Agent. The address of its registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of its registered agent at such
address is Corporation Trust Company.
3. Purpose. The purposes for which the Corporation is formed are to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware, and to possess and exercise all of the
powers and privileges granted by such law and other laws of Delaware.
<PAGE>
4. Authorized Capital. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 55,000,000 shares, of
which (i) 50,000,000 shall be shares of common stock, par value $0.01 per share
(the "Common Stock"), and (ii) 5,000,000 shall be shares of preferred stock, par
value $0.01 per share (the "Preferred Stock").
A. Common Stock
(1) General. The voting, dividend and liquidation rights of the
holders of the Common Stock are subject to and qualified by the rights of the
holders of the Preferred Stock of any series as may be designated by the Board
of Directors upon any issuance of the Preferred Stock of any series.
(2) Voting. The holder of the Common Stock are entitled to
one vote for each share held at all meetings of stockholders. There shall be no
cumulative voting.
(3) Dividends. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor as and when determined by
the Board of Directors and subject to any preferential dividend rights of any
then outstanding Preferred Stock.
(4) Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
(5) Redemption. The Common Stock is not redeemable.
B. Preferred Stock. The Board of Directors expressly is
authorized, subject to limitations prescribed by the Delaware General
Corporation Law and the provisions of this Amended and Restated Certificate of
Incorporation of the Corporation, to provide, by resolution and by filing a
certificate pursuant to the Delaware General Corporation Law, for the issuance
from time to time of the shares of Preferred Stock in one or more series, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and other rights of the
shares of each such series and to fix the qualifications, limitations and
restrictions thereon, including, but without limiting the generality of the
foregoing, the following:
(1) the number of shares constituting that series and the
distinctive designation of that series;
(2) the dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of that
series;
(3) whether that series shall have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of such voting
rights;
(4) whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion, including provision for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(5) whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the dates upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption rates;
<PAGE>
(6) whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(7) the rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series; and
(8) any other relative powers, preferences, and rights of that
series, and qualifications, limitations or restrictions on that series.
5. Term. The Corporation is to have perpetual existence.
6. Bylaws. The bylaws of the corporation may be altered, amended or
repealed by the vote of a majority of all of the directors or by the vote of
holders of a majority of the stock entitled to vote.
7. Limitation on Liability. 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.
If the General Corporation Law of Delaware or any other statute of the
State of Delaware hereafter is amended to authorize the further elimination or
limitation of the liability of directors of the Corporation, then the liability
of a director of the Corporation shall be limited to the fullest extent
permitted by the statutes of the State of Delaware, as so amended, and such
elimination or limitation of liability shall be in addition to, and not in lieu
of, the limitation on the liability of a director provided by the foregoing
provisions of this Article 7.
Any repeal of or amendment to this Article 7 shall be prospective only and
shall not adversely affect any limitation on the liability of a director of the
Corporation existing at the time of such repeal or amendment.
8. Election of Directors.
(A) General. Elections of directors need not be by written ballot unless
the By-laws of the Corporation shall so provide. Except as otherwise provided in
this Certificate of Incorporation or a certificate of designation relating to
the rights of the holders of any class or series of Preferred Stock, voting
separately by class or series, to elect additional directors under specified
circumstances, the number of directors of the Corporation shall be as fixed from
time to time by or pursuant to the By-lawsof the Corporation. No director of the
Corporation need be a stockholder of the Corporation.
<PAGE>
(B) Classification. The Board of Directors shall be classified with respect
to the time for which they severally hold office into three separate classes,
Class I, Class II and Class III, which shall be as nearly equal in number as
possible, and shall be adjusted from time to time in the manner specified in the
Bylaws of the Corporation to maintain such proportionality. Each initial
director in Class I shall hold office for a term expiring at the 2000 annual
meeting of stockholders. Each initial director in Class II shall hold office
initially for a term expiring at the 1999 annual meeting of stockholders. Each
initial director in Class III shall hold office for a term expiring at the 1998
annual meeting of stockholders. Notwithstanding the foregoing provisions of this
Article 8, each director shall serve until such director's successor is duly
elected and qualified or until such director's earlier death, resignation or
removal. At each annual meeting of stockholders, the successors to the class of
directors whose term expires at that meeting shall be elected to hold office for
a term expiring at the annual meeting of stockholders held in the third year
following the year of their election and until their successors have been duly
elected and qualified or until any such director's earlier death, resignation or
removal.
9. Meetings of Stockholders. Meetings of stockholders may be held within or
without the State of Delaware, as the bylaws of the Corporation may provide. At
such time as the Corporation shall be subject to the reporting requirements of
the Securities Exchange Act of 1934, as amended, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders, and may not be effected
by any consent in writing by such stockholders, unless such consent is
unanimous.
10. Corporate Records. The books of the Corporation may be kept (subject to
any provision contained in applicable statutes) outside the State of Delaware at
such place or places as may be designated from time to time by the board of
directors or in the bylaws of the Corporation.
11. Right to Amend. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate of incorporation
and in any certificate amendatory hereof, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders or others
hereunder or thereunder are granted subject to this reservation.
12. Indemnification. 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 has 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.
Indemnification may include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by the person indemnified to
repay such payment if it is ultimately determined that such person is not
entitled to indemnification under this Article 12, which undertaking may be
accepted without reference to the financial ability of such person to make such
repayment.
The Corporation shall not indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person
unless the initiation thereof was approved by the board of directors of the
Corporation.
The indemnification rights provided in this Article 12 (i) shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise and (ii) shall inure to the benefit of the heirs, executors and
administrators of such persons. The Corporation may, to the extent authorized
from time to time by its board of directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article 12.
FOURTH: This Amended and Restated Certificate of Incorporation shall be
effective as of the date set forth below.
<PAGE>
FIFTH: This Amended and Restated Certificate of Incorporation has been
advised by the Board and approved by the holders of at least a majority of the
outstanding capital stock of the Corporation.
IN WITNESS WHEREOF, Visual Networks, Inc. has caused this Certificate to be
signed by Scott Stouffer, its President this 21st day of July, 1999.
VISUAL NETWORKS, INC.
By: /s/ Scott Stouffer
------------------
Scott Stouffer
President
<PAGE>
EXHIBIT 5.0
PIPER & MARBURY
L.L.P.
CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201-3010
410-539-2530 WASHINGTON
FAX: 410-539-0489 NEW YORK
PHILADELPHIA
EASTON
August 12, 1999
Visual Networks, Inc.
2092 Gaither Road
Rockville, MD 20850
Ladies and Gentlemen:
We have acted as counsel to Visual Networks, Inc., a Delaware
corporation (the "Corporation"), in connection with the preparation and filing
with the Securities and Exchange Commission of a registration statement on Form
S-8 (the "Registration Statement") registering 400,000 shares of Common Stock,
par value $.01 per share, issuable pursuant to the exercise of stock options
granted under the Visual Networks, Inc. 1999 Employee Stock Purchase Plan (the
"Plan") (shares registered under the Plan referred to as the "Plan Shares").
We have examined copies of the Corporation's Restated Certificate of
Incorporation, By-Laws, the Plan, all resolutions adopted by the Corporation's
Board of Directors relating to the above and other records and documents that we
have deemed necessary for the purpose of this opinion. We have also examined
such other documents, papers, statutes and authorities as we have deemed
necessary to form a basis for this opinion. In our examination, we have assumed
the genuineness of all signatures and the conformity to original documents of
all copies submitted to us. As to various questions of fact material to this
opinion, we have relied on statements and certificates of officers and
representatives of the Corporation and others.
Based upon the foregoing, we are of the opinion that the Plan Shares
issuable under the Plan have been duly authorized and will be (when issued, sold
and delivered as authorized) validly issued, fully paid and non-assessable.
The opinion set forth herein is limited to matters governed by the laws
of the State of Delaware and the Federal Laws of the United States of America,
and we express no opinion as to any other laws.
We hereby consent to the filing of this opinion as Exhibit 5.0 to the
Registration Statement.
Very truly yours,
/s/ Piper & Marbury L.L.P.
<PAGE>
EXHIBIT 23.1
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
January 15, 1999 included in the Visual Networks, Inc. Annual Report on Form
10-K for the year ended December 31, 1998 and to all references to our firm
included in or made a part of this registration statement filed on Form S-8.
/s/ ARTHUR ANDERSEN LLP
Washington, D.C.
August 10, 1999
<PAGE>
EXHIBIT 24.0
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Officers and
Directors of Visual Networks, Inc., a Delaware corporation (the "Corporation"),
hereby constitute and appoint Scott E. Stouffer, Peter J. Minihane and Nancy A.
Spangler, and each of them, the true and lawful agents and attorneys-in-fact of
the undersigned with full power and authority in said agents and
attorneys-in-fact, and in any one or more of them, to sign for the undersigned
and in their respective names as Officers and as Directors of the Corporation, a
Registration Statement on Form S-8 relating to the proposed issuance of Common
Stock and other securities pursuant to the Visual Networks, Inc. 1999 Employee
Stock Purchase Plan (or any and all amendments, including post-effective
amendments, to such Registration Statement) and file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, and with full power of substitution; hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Signature Title Date
/s/ Grant G. Behrman Director August 5, 1999
--------------------
Grant G. Behrman
/s/ Marc F. Benson Director August 12, 1999
------------------
Marc F. Benson
/s/ Theodore R. Joseph Director August 2, 1999
----------------------
Theodore R. Joseph
/s/ Ted H. McCourtney Director August 5, 1999
---------------------
Ted H. McCourtney
/s/ Thomas A. Smith Director August 3, 1999
-------------------
Thomas A. Smith
/s/ William J. Smith Director August 2, 1999
--------------------
William J. Smith
/s/ Scott E. Stouffer Director August 11, 1999
---------------------
Scott E. Stouffer
