<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 31, 2000
REGISTRATION NO. 333 - 41386
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NETWORK APPLIANCE, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 7372 77-0307520
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
495 EAST JAVA DRIVE
SUNNYVALE, CALIFORNIA 94089
(408) 822-6000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
DANIEL J. WARMENHOVEN
CHIEF EXECUTIVE OFFICER
NETWORK APPLIANCE, INC.
495 EAST JAVA DRIVE
SUNNYVALE, CALIFORNIA 94089
(408) 822-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service of process)
Copies to:
RICHARD S. CHERNICOFF CHRISTOPHER DAHL
BROBECK, PHLEGER & HARRISON LLP LUCASH, GESMER & UPDEGROVE LLP
550 SOUTH HOPE STREET 40 BROAD STREET
LOS ANGELES, CALIFORNIA 90071 BOSTON, MASSACHUSETTS 02109
(213) 489-4060 (617) 350-6800
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to a 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, 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. [ ]
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 THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE> 2
PROSPECTUS
549,457 SHARES
[NETWORKAPPLIANCE LOGO]
NETWORK APPLIANCE, INC.
COMMON STOCK
This prospectus relates to the public offering, which is not being
underwritten, of 549,457 shares of our common stock which is held by some of our
current shareholders.
The prices at which those shareholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any of the proceeds from the sale of the
shares.
Our common stock is quoted on the Nasdaq National Market under the
symbol "NTAP." On July 11, 2000, the closing price of our common stock was
$83.50.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE THE SECTIONS ENTITLED
"RISK FACTORS" IN THE DOCUMENTS THAT WE INCORPORATE BY REFERENCE IN THIS
PROSPECTUS FOR SOME OF THE RISKS AND UNCERTAINTIES THAT YOU SHOULD CONSIDER.
---------------------
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.
--------------------
The date of this Prospectus is August 31, 2000.
<PAGE> 3
NETWORK APPLIANCE, INC.
We pioneered the concept of the "network appliance," an extension of the
industry trend toward specialized devices that perform a specific function in
the network, similar to the development of the router for network
communications. Today, we are the leading supplier of network attached data
storage and access devices, called filers. Our first filer product was
specifically designed to improve the storage and accessibility of data stored on
a network. In late 1997, we introduced an Internet caching appliance, our second
product category, designed to achieve Internet bandwidth savings and to improve
performance by moving data closer to end-users. This product is designed to
benefit customers struggling with Web data traffic that is, according to market
analysts, doubling every three months. Our filers are faster, more highly
available and easier to operate than similarly configured competitively priced
products. This filer performance is accomplished by a specialized and patented
software system optimized to exclusively perform file service tasks, thus
providing performance advantages as compared to general purpose computers used
as file servers.
Initially we marketed our filers primarily in the UNIX(R) environment in
high technology companies seeking to achieve leading edge performance.
Thereafter, we significantly expanded our market by supporting heterogeneous
Windows NT(R), UNIX and Web platforms. More recently we began marketing our
products to users of leading database and enterprise software applications, such
as applications offered by Oracle Corp., Sybase, Inc. and SAP AG. In fiscal
1999, we intensified our focus on the Windows NT market and entered into
original equipment manufacturer agreements with Dell Computer Corporation and
Fujitsu Limited.
Our executive offices are located at 495 East Java Drive, Sunnyvale,
California 94089, and the telephone number at that address is (408) 822-6000.
WE WILL NOT RECEIVE ANY PROCEEDS
We will not receive any of the proceeds from this offering. All of the
net proceeds from this offering will be for the account of the selling
shareholders.
DIVIDEND POLICY
We have never paid cash dividends on our common stock. We currently
anticipate retaining all available funds, if any, to finance internal growth and
product development. Payment of dividends in the future will depend upon our
earnings and financial condition and such other factors as our board of
directors may consider or deem appropriate at the time.
THE SELLING SHAREHOLDERS
We, Orca Systems, Inc. ("Orca") and Orca Acquisition Corp., our wholly
owned subsidiary, entered into an Agreement and Plan of Merger, dated as of June
1, 2000, pursuant to which shares of common stock of Orca were converted into
the right to receive shares of our common stock, no par value, as follows:
<TABLE>
<CAPTION>
NUMBER OF
NAME OF SELLING SHAREHOLDER SHARES OWNED
--------------------------- ------------
<S> <C>
Alan Langerman 264,497
David Ford 264,497
David W. Mitchell 1,044
Michelle P. Dominijanni 3,751
Arthur F. Lent 5,997
Donald J. Bolinger 5,910
Mary Trueblood 391
Joseph Boykin 238
Jim Geisman 3,132
--------
Total 549,457
</TABLE>
1
<PAGE> 4
Mr. Langerman was president, treasurer, secretary and a director of
Orca, and as of June 14, 2000, became our Director of Engineering, Client
Software. Mr. Ford was chief executive officer, assistant secretary and a
director of Orca, and as of June 14, 2000, became our Director of Technology,
Client Software. The remaining selling shareholders were employees of Orca, and
as of June 14, 2000, became our employees. The business address of each of the
selling shareholders is 375 Totten Pond Road, Waltham, Massachusetts 02451
Pursuant to the merger agreement, we also entered into a Registration
Rights Agreement, dated as of June 14, 2000, with the foregoing holders of the
shares in this offering. The selling shareholders have informed us that, as of
the date of this prospectus, they own an aggregate of 549,457 shares of our
common stock. As of the date of this prospectus, those shares constitute less
than one percent of the outstanding shares of our common stock. No estimate can
be given as to the number of shares that will be held by the selling
shareholders after completion of this offering because the selling shareholders
may offer all or some of the shares and because there currently are no
agreements, arrangements or understandings with respect to the sale of any of
the shares.
This registration statement also covers any additional shares of common
stock which become issuable in connection with the shares registered for sale
hereby by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which results
in an increase in the number of outstanding shares of our common stock.
PLAN OF DISTRIBUTION
The selling shareholders may offer the shares in this offering from time
to time, depending on market conditions and other factors, in one or more
transactions on the Nasdaq National Market or other national securities
exchanges on which our common stock is traded, in the over-the-counter market or
otherwise, at market prices prevailing at the time of sale, at negotiated prices
or at fixed prices. The shares may be offered in any manner permitted by law,
including through underwriters, brokers, dealers or agents, and directly to one
or more purchasers. Sales of the shares in this offering may involve (a) sales
to underwriters who will acquire the shares in this offering for their own
account and resell them in one or more transactions at fixed prices or at
varying prices determined at time of sale, (b) block transactions in which the
broker or dealer so engaged will attempt to sell the shares in this offering as
agent but may position and resell a portion of the block as principal to
facilitate the transaction, (c) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account, (d) an exchange distribution in
accordance with the rules of any such exchange and (e) ordinary broker
transactions and transactions in which a broker solicits purchasers. Brokers and
dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the shareholders (or future holders of such
shares) and/or purchasers of such shares for whom they may act as agent (which
compensation may be in excess of customary commissions). The selling
shareholders and any broker or dealer that participates in the distribution of
such shares may be deemed to be underwriters and any commissions received by
them and any profit on the resale of such shares positioned by a broker or
dealer may be deemed to be underwriting discounts and commissions under the
Securities Act. In the event any selling shareholder engages an underwriter in
connection with the sale of such shares, to the extent required, a supplement to
this prospectus will be distributed, which will set forth the number of shares
being offered and the terms of the offering, including the names of the
underwriters, dealers or agents, the public offering price and any discounts,
commissions or concessions allowed or reallowed or paid by underwriters to
dealers.
In addition, the selling shareholders may from time to time sell the
shares in transactions under Rule 144 promulgated under the Securities Act.
Pursuant to the registration rights agreement, we agreed to use reasonable
efforts to effect the registration of the shares in this offering and to permit
the resale of such shares in accordance with the shareholders' intended method
or methods. The registration rights agreement obligates us to pay all expenses
incurred in connection with registration, including, without limitation, all
listing fees, all fees and expenses of complying with securities or blue sky
laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for us and of our
independent public accountants (including the expenses of "cold comfort" letters
required by or incident to such performance and compliance) and the reasonable
fees and expenses of one counsel to the shareholders. However, each selling
shareholder will bear and pay transfer taxes, underwriting fees and brokerage
commissions (if any), applicable to the securities offered for its account in
connection with any
2
<PAGE> 5
registrations, filings and qualifications made pursuant to the registration
rights agreement. We agreed in the registration rights agreement to indemnify
the selling shareholders against liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The validity of the issuance of the shares in this offering will be
passed upon for Network Appliance, Inc. by Brobeck, Phleger & Harrison LLP, Los
Angeles, California. As of July 13, 2000, members and employees of Brobeck,
Phleger & Harrison LLP beneficially owned a total of 12,634 shares of our common
stock.
EXPERTS
Network Appliance, Inc.'s consolidated financial statements and the
related financial statement schedule incorporated in this prospectus by
reference from Network Appliance, Inc.'s Annual Report on Form 10-K for the year
ended April 30, 2000 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file at the public reference facilities of the SEC located
at 450 Fifth Street N.W., Washington D.C. 20549. You may obtain information on
the operation of the SEC's public reference facilities by calling the SEC at
1-800-SEC-0330. You can also access copies of such material electronically on
the SEC's home page on the World Wide Web at http://www.sec.gov. Information
concerning us is also available for inspection at the offices of the Nasdaq
National Market, Reports Section, 1735 K Street, N.W., Washington, D.C. 20006.
This prospectus is part of a registration statement (Registration No.
333-41386) we filed with the SEC. The SEC permits us to "incorporate by
reference" the information we file with it, 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 with the SEC after the date of this
prospectus will automatically update and supersede this information. We
incorporate by reference the following documents filed by us with the SEC (File
No. 0-027430). We also incorporate by reference any future filings made with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, after the date of this prospectus until the termination of
this offering.
1. Our annual report on Form 10-K for the fiscal year ended April 28,
2000.
2. Our annual report on Form 10-K/A for the fiscal year ended April 28,
2000.
3. Our registration statement on Form 8-A, relating to our common
stock, filed on November 1, 1995, including any amendment or report filed for
the purpose of updating such description.
If you request orally or in writing a copy of any or all of the
documents incorporated by reference, then we will send to you the copies you
requested at no charge. However, we will not send exhibits to such documents,
unless such exhibits are specifically incorporated by reference in such
documents. You should direct requests for such copies to Chief Financial
Officer, 495 East Java Drive, Sunnyvale, California, 94089, (408) 822-6000.
To the extent information in any document which is filed after the date
of this prospectus supercedes or amends any information included in or
incorporated by reference in this prospectus, you should only rely on the
information as so superceded or amended.
3
<PAGE> 6
================================================================================
PROSPECTUS
549,457 SHARES
[LOGO]
NETWORK APPLIANCE, INC.
COMMON STOCK
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary ...................... 1
How We Intend to Use the Proceeds ....... 1
Dividend Policy ......................... 1
The Selling Shareholders ................ 1
Plan of Distribution .................... 2
Legal Matters ........................... 3
Experts ................................. 3
Where You Can Find More Information ..... 3
</TABLE>
No dealer, salesperson or other individual has been authorized to give
any information or make any representations not contained in this prospectus in
connection with the offering covered by this prospectus. If given or made, such
information or representations must not be relied upon as having been authorized
by us or the selling shareholders. This prospectus does not constitute an offer
to sell, or a solicitation of an offer to buy, the common stock in any
jurisdiction where, or to any person to whom, it is unlawful to make such offer
or solicitation. Neither the delivery of this prospectus nor any sale of the
offered shares shall, under any circumstances, create any implication that there
has not been any change in the facts of the offered shares set forth in this
prospectus or in the affairs of Network Appliance, Inc. since the date of the
prospectus.
================================================================================
<PAGE> 7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, payable by us in
connection with the sale of common stock being registered. All amounts are
estimates except the SEC registration fee.
<TABLE>
<CAPTION>
<S> <C>
SEC Registration fee........................................ $10,935
NASD fee.................................................... --
Nasdaq National Market listing fee.......................... --
Printing and engraving...................................... 500
Our legal fees and expenses ................................ 5,000
The selling shareholders' legal fees and expenses........... 0
Accounting fees and expenses................................ 4,500
Blue sky fees and expenses.................................. --
Transfer agent fees......................................... 500
Miscellaneous............................................... --
-------
Total............................................. $21,435
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
We have adopted provisions in our amended and restated articles of
incorporation that limit the liability of our directors. As permitted by the
California General Corporation Law, directors will not be liable to us for
monetary damages arising from a breach of their fiduciary duty as directors in
certain circumstances. That limitation does not affect liability for any breach
of a director's duty to us or our shareholders (a) with respect to approval by
the director of any transaction from which he or she derives an improper
personal benefit; (b) with respect to acts or omissions involving an absence of
good faith, that he or she believes to be contrary to our best interests or the
best interest of our shareholders, that involve intentional misconduct or a
knowing and culpable violation of law, that constitute an unexcused pattern of
inattention that amounts to an abdication of his or her duty to us or our
shareholders or that show a reckless disregard for his or her duty to us or our
shareholders in circumstances in which he or she was, or should have been,
aware, in the ordinary course of performing his or her duties, of a risk of
serious injury to us or our shareholders; or (c) based on transactions between
us and our directors or another corporation with interrelated directors or on
improper distributions, loans, or guarantees under applicable sections of the
California General Corporation Law. That limitation of liability also does not
affect the availability of equitable remedies such as injunctive relief or
rescission, although in certain circumstances equitable relief may not be
available as a practical matter. The limitation may relieve the directors of
monetary liability to us for grossly negligent conduct, including conduct in
situations involving attempted takeovers. No claim or litigation is currently
pending against our directors that would be affected by the limitation of
liability.
Our amended and restated articles of incorporation and bylaws provide
that we will indemnify our directors and may indemnify our officers to the
fullest extent permitted by California law, including circumstances in which
indemnification is otherwise discretionary under California law.
II-1
<PAGE> 8
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
5.1 -- Opinion of Brobeck, Phleger & Harrison LLP
23.1* -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1).
24.1 -- Power of Attorney (see signature page)
</TABLE>
*Previously filed.
ITEM 17. UNDERTAKINGS
(a) We hereby undertake:
(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; (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; 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
clauses (i) and (ii) of this section do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by us 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.
(b) We hereby undertake that for purposes of determining any liability
under the Securities Act, each filing of our annual report pursuant to Section
13(a) or Section 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons pursuant to the California General Corporation Law provisions described
in Item 15, we have 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 us
of expenses incurred or paid by a director, officer or controlling person of
ours 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, we will, unless in the opinion of our counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by us is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act, Network Appliance,
Inc. certifies that it has reasonable ground 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 this 31 day of
August, 2000.
NETWORK APPLIANCE, INC.
By: /s/ DANIEL J. WARMENHOVEN*
---------------------------------
Daniel J. Warmenhoven
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ DANIEL J. WARMENHOVEN* Chief Executive August 31, 2000
------------------------------------ Officer, Director
Daniel J. Warmenhoven (Principal Executive
Officer)
/s/ JEFFRY R. ALLEN
------------------------------------ Executive Vice President, August 31, 2000
Jeffry R. Allen Finance and Operations,
Chief Financial Officer
(Principal Financial and
Accounting Officer) and
Secretary
/s/ DONALD T. VALENTINE*
------------------------------------ Chairman of the Board and August 31, 2000
Donald T. Valentine Director
</TABLE>
II-3
<PAGE> 10
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ SANJIV AHUJA*
------------------------------------ Director August 31, 2000
Sanjiv Ahuja
------------------------------------ Director August , 2000
Carol A. Bartz
/s/ LARRY R. CARTER*
------------------------------------ Director August 31, 2000
Larry R. Carter
/s/ MICHAEL R. HALLMAN*
------------------------------------ Director August 31, 2000
Michael R. Hallman
/s/ ROBERT T. WALL*
------------------------------------ Director August 31, 2000
Robert T. Wall
------------------------------------ Director August , 2000
Dr. Sachio Semmoto
*By: /s/ Jeffry R. Allen
-------------------------------
Jeffry R. Allen
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
5.1 -- Opinion of Brobeck, Phleger & Harrison LLP
23.1* -- Consent of Deloitte & Touche LLP
23.2 -- Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1).
24.1 -- Power of Attorney (see signature page)
</TABLE>
*Previously filed.
