As filed with the Securities and Exchange Commission on March 24, 1999
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
NETOPIA, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 3661 94-3033136
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2470 Mariner Square Loop
Alameda, California 94501
(Address of principal executive offices) (Zip Code)
NETOPIA, INC.
1996 Stock Option Plan
Employee Stock Purchase Plan
(Full title of the Plans)
Alan B. Lefkof
President and Chief Executive Officer
NETOPIA, INC.
2470 Mariner Square Loop
Alameda, California 94501
(Name and address of agent for service)
(510) 814-5100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate
to be to be Price Offering Amount of
Registered Registered (1) per Share (2) Price (2) Registration Fee
- ------------------------------ -------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
1996 Stock Option Plan
- ----------------------
Options 1,123,087 N/A N/A N/A
Common Stock (par value $.001) 1,123,087 $7.75 $8,703,925 $2,420
Employee Stock Purchase Plan
- ------------------------------
Common Stock (par value $.001) 150,000 $7.75 $1,162,500 $323
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1996 Stock Option Plan and
the Employee Stock Purchase Plan 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 the outstanding shares of Common Stock of Netopia, Inc.
(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 prices per share of Common Stock of Netopia, Inc. as
reported on the Nasdaq National Market on March 22, 1999.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
Netopia, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents
previously filed with the Securities and Exchange Commission (the
"SEC"):
a The Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 1998;
b. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1998; and
c. The Registrant's Registration Statement No. 0-28450 on Form 8-A
filed with the SEC on May 3, 1996 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"),
together with amendments thereto, in which there is described the
terms, rights and provisions applicable to the Registrant's
outstanding 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 deregisters 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.
Item 4. Description of Securities
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
Item 6. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law authorizes a court
to award or a corporation's Board of Directors to grant indemnification
to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act
of 1933, as amended (the "1933 Act"). The Registrant's Bylaws provide
for mandatory indemnification of its directors and officers and
permissible indemnification of employees and other agents to the
maximum extent permitted by the Delaware General Corporation Law. The
Registrant's Certificate of Incorporation provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages
for breach of their fiduciary duty as directors to the Registrant and
its stockholders. This provision in the Certificate of Incorporation
does not eliminate the fiduciary duty of the directors, and, in
appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under Delaware
law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the
Registrant for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the director and for payment of
dividends or approval of stock repurchases or redemptions that are
unlawful under Delaware law. The provision also does not affect a
director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Registrant
has entered into Indemnification Agreements with its officers and
directors. The Indemnification Agreements provide the Registrant's
officers and directors with further indemnification to the maximum
extent permitted by the Delaware General Corporation Law.
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Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
- ------- -------
4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 0-28450 on Form 8-A,
together with amendments thereto, which is incorporated herein by
reference pursuant to Item 3(c) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
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 paragraphs 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 Registrant's 1996 Stock Option
Plan and Employee Stock Purchase Plan.
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 SEC, 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
Alameda, State of California on this 23rd day of March, 1999.
NETOPIA, INC.
By: /s/Alan Lefkof
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Alan B. Lefkof
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Netopia, Inc.,
a Delaware corporation, do hereby constitute and appoint Alan B. Lefkof
and James A. Clark, and either of them, the lawful attorneys-in-fact
and agents with full power and authority to do any and all acts and
things and to execute any and all instruments which said attorneys and
agents, and either one of them, determine may be necessary or advisable
or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements
of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to
any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and either
of the undersigned hereby ratifies and confirms all that said attorneys
and agents, or either one of them, shall do or cause to be done by
virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/Alan Lefkof President and Chief March 23, 1999
- --------------------- Executive Officer
Alan B. Lefkof and Director
(Principal Executive Officer)
/s/James A. Clark Vice President and March 23, 1999
- --------------------- Chief Financial Officer
James A. Clark (Principal Financial and
Accounting Officer)
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Signature Title Date
- --------- ----- ----
Director March 23, 1999
- ---------------------
Reese M. Jones
/s/David F. Marquardt Director March 23, 1999
- ---------------------
David F. Marquardt
/s/James R. Swartz Director March 23, 1999
- ---------------------
James R. Swartz
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EXHIBIT INDEX
Exhibit
Number Exhibit
4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 0-28450 on Form 8-A,
together with amendments thereto, which is incorporated herein by
reference pursuant to Item 3(c) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
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EXHIBIT 5
Opinion and Consent of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
March 23, 1999
Netopia, Inc.
2470 Mariner Square Loop
Alameda, CA 94501
Re: Netopia, Inc. Registration Statement for Offering of
an Aggregate of 1,273,087 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 1,123,087
shares of Common Stock under the 1996 Stock Option Plan and (ii) 150,000 shares
of Common Stock under the Employee Stock Purchase Plan, such shares will be
validly issued, fully paid and nonassessable shares of the Company's Common
Stock.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
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EXHIBIT 23.1
Consent of KPMG LLP, Independent Auditors
Consent of Independent Auditors
The Board of Directors
Netopia, Inc.:
We consent to incorporation herein by reference in the registration statement
dated on or about March 24, 1999, on Form S-8 of Netopia, Inc. of our report
dated November 4, 1998, except as to Note 9, which is as of December 17, 1998,
relating to the consolidated balance sheets of Netopia, Inc. and subsidiary as
of September 30, 1998 and 1997, and the related consolidated statements
of operations, stockholders' equity, and cash flows for each of the years in
the three-year period ended September 30, 1998, and our report on the
related financial statement schedule, which reports appear in the September
30, 1998, annual report on Form 10-K of Netopia, Inc.
/s/ KPMG LLP
San Francisco, California
March 23, 1999
