As filed with the Securities and
Exchange Commission on May 30, 2000
Registration No. 333-33946
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8 TO FORM S-4
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)
AVESTA TECHNOLOGIES, INC. 1996 STOCK PLAN, AS AMENDED
AND ASSUMED BY VISUAL NETWORKS, INC.
(Full title of plan)
(Name, address and telephone
number of agent for service) (Copy to:)
Peter J. Minihane Nancy A. Spangler, Esquire
Executive Vice President, Piper Marbury Rudnick & Wolfe LLP
Chief Operating Officer, 1850 Centennial Park Drive, Suite 610
Chief Financial Officer and Treasurer Commerce Park III
Visual Networks, Inc. Reston, Virginia 20191
2092 Gaither Road (703) 390-5240
Rockville, Maryland 20850
(301) 296-2300
CALCULATION OF REGISTRATION FEE
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<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 Offering Price Fee
--------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 per 673,338(1) (2) (2) (2)
share
====================================================================================================================
</TABLE>
(1) These shares were originally registered on the Registration Statement on
Form S-4 filed on April 4, 2000, File No. 333-33946, as amended, to which
this Amendment relates.
(2) Not applicable. All filing fees payable in connection with the registration
of these securities were paid in connection with the filing of the
Registration Statement on Form S-4 on April 4, 2000, File No. 333-33946, as
amended, to register 8,532,554 shares of Visual Networks, Inc. common
stock, par value $0.01 per share, issuable to shareholders of Avesta
Technologies, Inc., including the 673,338 shares which may be issued
pursuant to the Plan referred to above. See "Introductory Statement."
<PAGE>
INTRODUCTORY STATEMENT
Visual Networks, Inc. ("Visual" or the "Company") hereby amends its
Registration Statement on Form S-4 (File No. 333-33946) by filing this
Post-Effective Amendment No. 1 on Form S-8 (the "Post-Effective Amendment")
relating to the sale of up to 673,338 shares of common stock, par value $0.01
per share, of the Company ("Visual Common Stock") issuable upon the exercise of
stock options granted under the Avesta Technologies, Inc. 1996 Stock Plan, as
amended and assumed by Visual Networks, Inc. (the "Plan").
On February 7, 2000, Visual entered into a merger agreement with Avesta
Technologies, Inc., a Delaware corporation ("Avesta"), by which Avesta became a
wholly-owned subsidiary of Visual (the "Merger"). As a result of the Merger,
each outstanding share of Avesta common stock, par value $0.01 per share
("Avesta Common Stock") was converted into the right to receive 0.1910 shares of
Visual Common Stock at closing and the right to receive 0.0584 shares of Visual
Common Stock as additional consideration if certain revenue goals for Avesta's
products are achieved in the calendar year 2000. In addition, each outstanding
option issued pursuant to the Plan is no longer exercisable for shares of Avesta
Common Stock, but instead, constitutes an option to acquire, on the same terms
and conditions as were applicable under such option immediately prior to the
consummation of the Merger, that number of shares of Visual Common Stock
(rounded down to the nearest whole share) equal to the product of (x) the number
of shares of Avesta Common Stock for which such option was theretofore
exercisable and (y) 0.1910. The exercise price for each option shall be equal to
the exercise price per share for such option immediately prior to the effective
time of the Merger divided by 0.1910 (rounded up to the nearest whole cent).
The designation of the Post-Effective Amendment as Registration No.
333-33946 denotes that the Post-Effective Amendment relates only to the shares
of Visual Common Stock issuable on the exercise of stock options under the Plan
and that this is the first Post-Effective Amendment to the Form S-4 filed with
respect to such shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not required to be included in this Post-Effective Amendment No. 1 on Form S-8
to the registration statement on Form S-4 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) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999 filed pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act");
<PAGE>
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the 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 with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and prior
to the filing of a post-effective amendment hereto which indicates that all
securities offered have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof 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.
Section 145 of the Delaware General Corporation Law ("Section 145")
permits indemnification of directors, officers, agents and controlling persons
of a corporation under certain conditions and subject to certain limitations.
The Registrant's By-Laws include provisions to require the Registrant to
indemnify its directors and officers to the fullest extent permitted by Section
145, including circumstances in which indemnification is otherwise
discretionary. Section 145 also empowers the Registrant to purchase and maintain
insurance that protects its officers, directors, employees and agents against
any liabilities incurred in connection with their service in such positions.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
Item 8. Exhibits.
DESCRIPTION
-----------
4.1 Amended and Restated Certificate of Incorporation (incorporated
by reference to the Exhibits to the Corporation's Quarterly
Report on Form 10-Q, for the three months ended June 30, 1999
(File No. 000-23699) and Registration Statement on Form S-4,
dated April 4, 2000 (File No. 333-33946), as amended)
4.2 Amended and Restated 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
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney
Item 9. Undertakings.
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 "Securities 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 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 Exchange Act
that are incorporated by reference in this 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 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
<PAGE>
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.
<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, or amendment thereto, to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rockville, State of
Maryland, on the 30th day of May, 2000.
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,
this registration statement, or amendment thereto, has been signed by the
following persons in the capacities and on the dates indicated.
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<S> <C> <C>
Signature Title Date
--------- ----- ----
/s/ Scott E. Stouffer Chairman of the Board, President and May 30, 2000
--------------------------------- Chief Executive Officer
Scott E. Stouffer (Principal Executive Officer)
/s/ Peter J. Minihane Executive Vice President, Chief Operating May 30, 2000
--------------------------------- Officer, Chief Financial Officer and Treasurer
Peter J. Minihane (Principal Financial and Accounting Officer)
</TABLE>
A majority of the Board of Directors (Scott E. Stouffer, Peter J. Minihane,
Theodore R. Joseph, Ted H. McCourtney, and William J. Smith).
Date: May 30, 2000 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 (incorporated
by reference to the Exhibits to the Corporation's Quarterly
Report on Form 10-Q, for the three months ended June 30, 1999
(File No. 000-23699) and Registration Statement on Form S-4,
dated April 4, 2000 (File No. 333-33946), as amended)
4.2 Amended and Restated 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
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney
