As filed with the Securities and Exchange Commission on October 2, 2000
Registration Statement
No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NETSPEAK CORPORATION
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(Exact name of registrant as specified in its charter)
Florida 65-0627616
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(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
902 Clint Moore Road, Suite 104, Boca Raton, Florida 33487
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(Address of Principal Executive Offices) (Zip Code)
NetSpeak Corporation 1995 Stock Option Plan, as amended
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(Full title of the plan)
John W. Staten
NetSpeak Corporation
902 Clint Moore Road, Suite 104
Boca Raton, Florida 33487
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(Name and address of agent for service)
(561) 998-8700
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(Telephone number, including area code, of agent for service)
Copies to:
Dale S. Bergman, P.A.
Broad and Cassel
201 South Biscayne Boulevard
Suite 3000
Miami, Florida 33131
(305) 373-9400
(305) 373-9495 (facsimile)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered (1) share(2) price(2) registration fee
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,500,000 shares $10.66 $15,990,000 $4,221.36
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<FN>
(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as
amended, this Registration Statement covers an indeterminate number of
securities to be offered as a result of any adjustment from stock splits, stock
dividends or similar events.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, promulgated under the Securities Act of
1933, as amended, and based upon the average of the high and low sales price of
the Registrant's common stock on September 28, 2000.
Pursuant to Rule 429, this Registration Statement serves as a Post-Effective
Amendment to the Registrant's Registration Statements on Form S-8 (File Nos.
33-63079 and 333-44827) relating to the Registrant's 1995 Stock Option Plan and
Employee Stock Purchase Plan.
</FN>
</TABLE>
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this Registration
Statement:
A. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999;
B. The Registrant's Quarterly Report on Form 10-Q for the
quarters ended March 31, 2000 and June 30, 2000; and
C. The description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A filed with the SEC, as such
description is updated in any amendment to the Form 8-A.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents with the SEC. Any statement contained in a document
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 a subsequently filed document 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 part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
A. Jeffry Robinson, a partner of the law firm of Broad and Cassel,
counsel to NetSpeak, is a director of and holds 80,000 options in NetSpeak.
Item 6. Indemnification of Directors and Officers.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided for in such statute. The Registrant's Amended and Restated Articles of
Incorporation and Bylaws provide that the Registrant may insure, shall indemnify
and shall advance expenses on behalf of its officers and directors to the
fullest extent not prohibited by law. The Registrant is also a party to
indemnification agreements with each of its directors and officers.
<PAGE>
Item 7. Exemption for Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Form of 1995 Stock Option Plan, as amended(1)
4.2 Employee Stock Purchase Plan(2)
5.1 Opinion of Broad and Cassel
23.1 Consent of Broad and Cassel (contained in its opinion
filed as Exhibit 5.1 to this Registration Statement)
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included in the signature page of
this Registration Statement)
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1 Incorporated by reference to the Registrant's Proxy Statement on Schedule 14A
for the Annual Meeting of Shareholders held on June 15, 2000.
2 Incorporated by reference to the Registrant's Proxy Statement on Schedule 14A
for the Annual Meeting of Shareholders on June 18, 1998.
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:
a. To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
b. 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 the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
<PAGE>
c. 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 paragraphs (1)(a) and (1)(b) shall 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 the 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 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.
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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 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 Company 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 Boca Raton, State of Florida on this 2nd day of
October, 2000.
NETSPEAK CORPORATION
By: /s/ John W. Staten
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John W. Staten
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Michael R. Rich and John W. Staten, or any one of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution
for him and in his name, place and stead in any and all capacities to execute in
the name of each such person who is then an officer or director of the Company
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto and other
documents in connection therewith with the SEC, 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 required or necessary to be done in and
about the premises as fully as he 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 substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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<CAPTION>
Signatures Title Date
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<S> <C> <C>
/s/ Michael R. Rich Chairman of the Board and October 2, 2000
------------------------------------ Chief Executive Officer (principal
Michael R. Rich executive officer)
/s/ John W. Staten Chief Financial Officer, Treasurer and October 2, 2000
------------------------------------ Secretary (Principal financial and
John W. Staten accounting officer)
<PAGE>
/s/ Mark Borota Director October 2, 2000
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Mark Borota
/s/ Robert F. Jones Director October 2, 2000
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Robert F. Jones
/s/ Martin Shum Director October 2, 2000
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Martin Shum
/s/ A. Jeffry Robinson Director October 2, 2000
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A. Jeffry Robinson
</TABLE>
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EXHIBIT INDEX
Exhibit Description
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5.1 Opinion of Broad and Cassel
23.1 Consent of Broad and Cassel (contained in its opinion
filed as Exhibit 5.1 to this Registration Statement)
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included in the signature page of this
Registration Statement)
