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As filed with the Securities and Exchange Commission on July 13, 2000
Registration No. 333-_______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
NETWORK APPLIANCE, INC.
(Exact name of registrant as specified in its charter)
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CALIFORNIA 77-0307520
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
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495 EAST JAVA DRIVE, SUNNYVALE, CA 94089
(Address of principal executive offices) (Zip Code)
NETWORK APPLIANCE, INC. EMPLOYEE STOCK PURCHASE PLAN
NETWORK APPLIANCE, INC. 1995 STOCK INCENTIVE PLAN
ORCA SYSTEMS, INC. 1999 STOCK OPTION/STOCK ISSUANCE PLAN
(AS ASSUMED BY NETWORK APPLIANCE, INC.)
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(Full title of the Plans)
DANIEL J. WARMENHOVEN
CHIEF EXECUTIVE OFFICER AND DIRECTOR
NETWORK APPLIANCE, INC.
495 EAST JAVA DRIVE, SUNNYVALE, CA 94089
(Name and address of agent for service)
(408) 822-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
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Network Appliance, Inc. Employee
Stock Purchase Plan 2,600,000 shares $75.37(2) $195,975,000.00(2) $51,737.40
Common Stock, $0.001 par value
Network Appliance, Inc. 1995 Stock
Incentive Plan 21,600,000 shares $75.37(2) $1,628,100,000.00(2) $429,818.40
Common Stock, $0.001 par value
Orca Systems, Inc. 1999 Stock
Option/Stock Issuance Plan 355,769 shares $19.77(3) $7,036,332.99(3) $1,857.60
Common Stock, $0.001 par value
Total: 24,555,769 shares Aggregate Registration Fee: $483,413.40
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(1) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock which become issuable under the Network
Appliance, Inc. Employee Stock Purchase Plan, the Network Appliance, Inc.
1995 Stock Incentive Plan, and/or the Orca Systems, Inc. 1999 Stock
Option/Stock Issuance Plan (as assumed by Registrant) by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which results in
an increase in the number of the Registrant's outstanding shares of Common
Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of Common Stock of Network Appliance, Inc.
on July 6, 2000, as reported by the Nasdaq National Market.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price of the outstanding options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Network Appliance, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K and Form 10-K/A for the
fiscal year ended April 28, 2000, filed with the Commission on July
12, 2000, and as amended on July 13, 2000, pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"); and
(b) The Registrant's Registration Statement No. 000-27130 on Form 8-A
filed with the Commission on November 1, 1995, in which there is
described the terms, rights and provisions applicable to the
Registrant's Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then 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 subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement 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.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit indemnification (including
reimbursement of expenses incurred) under certain circumstances for liabilities
arising under the Securities Act of 1933, as amended, (the "1933 Act"). The
Registrant's Restated Articles of Incorporation, as amended, and Bylaws provide
for indemnification of its directors, officers, employees and other agents to
the maximum extent permitted by the California Corporations Code.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statements No. 000-27130 on Form 8-A, together with the amendments and
exhibits thereto, which are incorporated herein by reference pursuant to Items 3(b).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this Registration Statement.
99.1 Network Appliance, Inc. Employee Stock Purchase Plan (Amended and Restated Through
August 17, 1999).
99.2 Network Appliance, Inc. 1995 Stock Incentive Plan (Amended and Restated Through
October 26, 1999).
99.3 Orca Systems, Inc. 1999 Stock Option/Stock Issuance Plan.
99.4 Form of Orca Systems, Inc. Incentive Stock Option Agreement.
99.5 Form of Orca Systems, Inc. Non-Qualified Stock Option Agreement.
99.6 Form of Stock Option Assumption Agreement for Orca Systems, Inc.
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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: (i) to include any prospectus required by Section
10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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; and (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 Network
Appliance, Inc. Employee Stock Purchase Plan, the Network Appliance, Inc. 1995
Stock Incentive Plan, and the Orca Systems, Inc. 1999 Stock Option/Stock
Issuance Plan (as assumed by Registrant).
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this 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 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the indemnification provisions summarized in Item 6 or otherwise,
the Registrant has been advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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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 Sunnyvale, State of California on this 13th day
of July, 2000.
NETWORK APPLIANCE, INC.
By: /s/ DANIEL J. WARMENHOVEN
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Daniel J. Warmenhoven
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel J. Warmenhoven and Jeffry R.
Allen, and each of them, as such person's true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for such person and
in such person's name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated:
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Signature Title Date
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/s/ DANIEL J. WARMENHOVEN Chief Executive Officer July 13, 2000
---------------------------------------- and Director
Daniel J. Warmenhoven (Principal Executive Officer)
/s/ JEFFRY R. ALLEN Executive Vice President, Finance July 13, 2000
---------------------------------------- and Operations, Chief Financial
Jeffry R. Allen Officer and Secretary
(Principal Financial and Accounting
Officer)
/s/ DONALD T. VALENTINE Chairman of the Board and Director July 13, 2000
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Donald T. Valentine
/s/ SANJIV AHUJA Director July 13, 2000
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Sanjiv Ahuja
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Director July __, 2000
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Carol A. Bartz
/s/ LARRY R. CARTER Director July 13, 2000
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Larry R. Carter
/s/ MICHAEL R. HALLMAN Director July 13, 2000
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Michael R. Hallman
/s/ ROBERT T. WALL Director July 13, 2000
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Robert T. Wall
Director July __, 2000
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Dr. Sachio Semmoto
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
NETWORK APPLIANCE, INC.
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EXHIBIT INDEX
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Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's
Registration Statements No. 000-27130 on Form 8-A, together with the amendments and
exhibits thereto, which are incorporated herein by reference pursuant to Items 3(b).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this Registration Statement.
99.1 Network Appliance, Inc. Employee Stock Purchase Plan (Amended and Restated Through
August 17, 1999).
99.2 Network Appliance, Inc. 1995 Stock Incentive Plan (Amended and Restated Through
October 26, 1999).
99.3 Orca Systems, Inc. 1999 Stock Option/Stock Issuance Plan.
99.4 Form of Orca Systems, Inc. Incentive Stock Option Agreement.
99.5 Form of Orca Systems, Inc. Non-Qualified Stock Option Agreement.
99.6 Form of Stock Option Assumption Agreement for Orca Systems, Inc.
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