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As filed with the Securities and Exchange Commission on August 13, 1997
Registration 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
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NEW ERA OF NETWORKS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 84-1234845
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
7400 East Orchard Road, Suite 230
Englewood, CO 80111
(Address, including zip code of Principal Executive Offices)
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1995 Stock Option Plan
1997 Employee Stock Purchase Plan
1997 Director Option Plan
(Full title of the plans)
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George F. (Rick) Adam, Jr.
Chief Executive Officer
New Era of Networks, Inc.
7400 East Orchard Road, Suite 230
Englewood, CO 80111
(303) 694-3933
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Mark L. Bertelsen, Esq.
Richard J. Hart, Esq.
Robert M. Tarkoff, Esq.
David M. Campbell, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(415) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed maximum Proposed Maximum
Title of Securities Amount to be offering price Aggregate Offering Amount of
to be registered registered per share Price registration fee
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<S> <C> <C> <C> <C>
Common Stock
$0.0001 par value:
- Reserved or Outstanding under 1995 Stock
Option Plan . . . . . . . . . . . . . . 2,333,333 $ 8.55(1) $19,949,997(1) $ 5,985
- Reserved under 1997 Employee Stock
Purchase . . . . . . . . . . . . . . 216,666 $ 10.20 $2,209,993(2) $ 663
- Reserved under 1997 Director Option
Plan . . . . . . . . . . . . . . . . 100,000 $ 14.06 $1,406,000.00(3) $ 422
TOTAL . . . . . . . . . . . . . . . . . . 2,649,999 $23,565,990 $ 7,070
=================================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of (i) the weighted average
exercise price of $6.37 per share for outstanding options to purchase a
total of 1,673,051 shares of Common Stock and (ii) $14.06 per share (based
on the average high and low price of Registrant's Common Stock as reported
on the Nasdaq National Market on August 6, 1997, for 660,282 shares of
Common Stock reserved for issuance thereunder.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $11.95 per share (85% of
$14.06, which is the average high and low price of Registrant's Common
Stock as reported on the Nasdaq National Market on August 6, 1997).
(3) Estimated in accordance with Rule 457 (h) solely for the purpose of
calculating the filing fee on the basis of $10.20 per share (85% of
$12.00, which was the price of the Registrant's Common Stock pursuant
to its initial public offering).
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NEW ERA OF NETWORKS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission by the Registrant:
1. The Registrant's Prospectus, filed on June 18, 1997 pursuant
to Rule 424(b) promulgated under the Securities Act of 1933,
as amended (the "Securities Act").
2. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated June 4,
1997, filed pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") which
was declared effective on June 17, 1997, including any
amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the
filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold under this registration statement, shall be deemed to be
incorporated by reference herein and to be 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation limits
the liability of directors to the maximum extent permitted by Delaware law.
Delaware law provides that a corporation's certificate of incorporation may
contain, and the Company's Amended and Restated Certificate of Incorporation
does contain, a provision eliminating or limiting the personal liability of a
director for monetary damages for breach of their fiduciary duties as
directors, except for liability (i) for any breach of their duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith for which involve intentional misconduct or a knowing violation of law,
(iii) for unlawful payments of dividend or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General Corporation Law
or (iv) for any transaction from which the director derived an improper
personal benefit.
The Company's Amended and Restated Bylaws provide that the Company
shall indemnify its directors, officers, employees and agents to the fullest
extent permitted by law. The Company believes that the
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indemnification under its Amended and Restated Bylaws covers at least
negligence and gross negligence on the part of indemnified parties.
The Company has entered into agreements to indemnify its directors and
officers, in addition to the indemnification provided for in the Company's
Amended and Restated Bylaws. These agreements, among other things, indemnify
the Company's directors and officers for certain expenses (including attorney
fees), judgments, fines and settlement amounts incurred by any such person in
any action or proceeding, including any action by or in the right of the
Company, arising out of such person's services as a director or officer of the
company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company. The Company
believes that these provisions and agreements are necessary to attract and
retain qualified directors and officers.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent of the Company where indemnifications will
be required or permitted. The Company is not aware of any threatened
litigation or proceeding that might result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description of Document
4.1* Certificate of Incorporation of Registrant dated May
21, 1997.
4.2* Amended and Restated Bylaws of Registrant as of June
23, 1997.
4.3* Form of Amended and Restated Certificate of
Incorporation of Registrant as filed upon the
closing of the Company's Initial Public Offering.
4.4* 1995 Stock Option Plan, as amended.
4.5* 1997 Employee Stock Purchase Plan.
4.6* 1997 Director Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (included in Exhibit 5.1).
24.1 Powers of Attorney (see page 5).
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(*) Incorporated by reference to the Registrant's Registration Statement
on Form S-1, as amended (File No. 333-20189).
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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 Securities Act of 1933;
(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 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 Commission 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.
(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 paragraphs (a)(1)(i) and (a)(1)(ii) 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 Commissioner by the Registrant 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) 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.
(c) 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 of 1933 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,
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 Englewood, State of Colorado, on August 11,
1997.
NEW ERA OF NETWORKS, INC.
By: /s/ Leonard M. Goldstein
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Leonard M. Goldstein
Senior Vice President, Senior Counsel
and Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints George F. Adam, Jr. and
Leonard M. Goldstein, and each of them, his or her true and lawful agent, proxy
and attorney-in-fact, with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to (i) act on, sign and file with the Securities and Exchange Commission any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 together with all schedules and exhibits thereto (ii) act
on, sign and file such certificates, instruments, agreements and other
documents as may be necessary or appropriate in connection therewith, and (iii)
take any and all actions that may be necessary or appropriate to be done, as
fully for all intents and purposes as he or she might or could do in person,
hereby approving, ratifying and confirming all that such agent, proxy and
attorney-in-fact or any of his substitutes may lawfully do or cause to be done
by virtue thereof.
IN ACCORDANCE WITH 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 STATED:
<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
/s/ George F. Adam, Jr. Chairman of the Board, Chief Executive August 6, 1997
- ---------------------------------------- Officer, President and Director
George F. Adam, Jr.
/s/ Stephen E. Webb Senior Vice President and Chief August 5, 1997
- ---------------------------------------- Financial Officer
Stephen E. Webb
/s/ James C. Parks Vice President of Finance and Controller August 5, 1997
- ---------------------------------------- (Principal Accounting Officer)
James C. Parks
/s/ Harold A. Piskiel Senior Vice President, Chief Technical August 11, 1997
- ---------------------------------------- Officer and Director
Harold A. Piskiel
/s/ Steven Lazarus Director August 11, 1997
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Steven Lazarus
/s/ Mark L. Gordon Director August 5, 1997
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Mark L. Gordon
/s/ James Reep Director August 4, 1997
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James Reep
</TABLE>
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Index to Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
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<S> <C>
4.1* Certificate of Incorporation of Registrant dated May
21, 1997.
4.2* Amended and Restated Bylaws of Registrant as of June
23, 1997.
4.3* Form of Amended and Restated Certificate of
Incorporation of Registrant as filed upon the
closing of the Company's Initial Public Offering.
4.4* 1995 Stock Option Plan, as amended.
4.5* 1997 Employee Stock Purchase Plan.
4.6* 1997 Director Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (included in Exhibit 5.1).
24.1 Powers of Attorney (see page 5).
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</TABLE>
(*) Incorporated by reference to the Registrant's Registration Statement
on Form S-1, as amended (File No. 333-20189).
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EXHIBIT 5.1
August 13, 1997
New Era of Networks, Inc.
7400 East Orchard Road, Suite 230
Englewood, CO 80111
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by New Era of Networks, Inc., a Delaware
corporation (the "Registrant" or "you"), with the Securities and Exchange
Commission on or about August 13, 1997, in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of 2,694,999
shares of your Common Stock, $.0001 par value (the "Shares"), outstanding or
reserved for issuance pursuant to the 1995 Stock Option Plan, as amended, 1997
Employee Stock Purchase Plan and 1997 Director Option Plan (the "Plans"). As
your legal counsel, we have reviewed the actions proposed to be taken by you in
connection with the proposed sale and issuance of the Shares by the Registrant
under the Plans. We assume that the consideration received by you in connection
with each issuance of Shares will include an amount in the form of cash,
services rendered or property that exceeds the greater of (i) the aggregate par
value of such Shares or (ii) the portion of such consideration determined by the
Company's Board of Directors to be "capital" for purposes of the Delaware
General Corporation Law.
It is our opinion that, upon completion of the proceedings being
taken, or contemplated by us, as your counsel, to be taken prior to the
issuance of the Shares pursuant to the Registration Statement and the Plans,
including the proceedings being taken in order to permit such transaction to be
carried out in accordance with applicable state securities laws, the Shares,
when issued and sold in the manner described in the Registration Statement and
in accordance with the resolutions adopted by the Board of Directors of the
Company, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the registration statement of New Era of Networks, Inc. on Form
S-8 of our report dated January 17, 1997, appearing in the Form S-1
Registration Statement (Amendment No. 2) of New Era of Networks, Inc.
(Registration No. 333-20189) filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933.
Arthur Andersen LLP
Denver, Colorado
August 12, 1997
