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As filed with the Securities and Exchange Commission on September 22, 1998
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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AMENDED AND RESTATED 1995 STOCK OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE 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.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $.0001 par value:
Newly reserved under the 1995
Stock Plan (the "OPTION PLAN")(1)
(currently outstanding options) 496,880 $30.5686 $15,188,876.28(3) $4,480.72
Newly reserved under the 1995 Stock
Option Plan (the "OPTION PLAN")(1)
(options available for future grants) 3,120 $37.0625 $ 115,635.00(4) $ 34.11
======================================================================================================================
Total 1995 Stock Option Plan shares
registered 500,000
======================================================================================================================
Newly reserved under the 1997
Employee Stock Purchase Plan
(the "PURCHASE PLAN")(2) 100,000 $31.5031 $ 3,150,310.00(5) $ 929.34
======================================================================================================================
TOTAL: 600,000 shares $19,010,503.48 $5,445.17
======================================================================================================================
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(1) In addition to the shares registered hereby, the Option Plan provides for
an annual increase in the number of shares of the Registrant's Common Stock
reserved and available for issuance under the Option Plan equal to the
lesser of (i) 350,000, (ii) 3% of the Registrant's Common Stock outstanding
as of the last business day preceding the first day of such fiscal year or
(iii) a lesser amount determined by the Board of Directors. Pursuant to
Rule 416(a), this Registration Statement shall also cover any additional
shares of the Registrant's Common Stock that becomes issuable under the
Option Plan by reason of any stock dividend, stock split,
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recapitalization or other similar transaction effected without the receipt
of consideration that increases the number of the Registrant's outstanding
shares of Common Stock.
(2) In addition to the shares registered hereby, the Purchase Plan provides for
an annual increase in the number of shares of the Registrant's Common Stock
reserved and available for issuance under the Purchase Plan equal to the
lesser of 100,000 shares, or 1.5% of the Registrant's Common Stock
outstanding as of the last business day preceding the first day of such
fiscal year or such lesser number of shares that the Board of Directors may
determine. Pursuant to Rule 416(a), this Registration Statement shall also
cover any additional shares of the Registrant's Common Stock that becomes
issuable under the Purchase Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration that increases the number of the Registrant's
outstanding shares of Common Stock.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis at the weighted average
exercise price of $30.5686 per share for the outstanding options to
purchase a total of 496,880 shares of Common Stock.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee (based on the average high and low price
of Registrant's Common Stock as reported on the Nasdaq National Market on
September 21, 1998).
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $31.5031 per share (85% of
$37.0625, which is the average high and low price of Registrant's Common
Stock as reported on the Nasdaq National Market on September 21, 1998).
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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.
The following documents and information heretofore filed with the
Commission by the Registrant are incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 filed pursuant to the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT");
2. The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1998 and March 31, 1998, filed pursuant
to the Exchange Act;
3. 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;
4. The Registrant's Current Reports on Form 8-K, dated June 26, 1998
and August 14, 1998, as amended, filed pursuant to the Exchange
Act.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained herein or 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 other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such earlier statement. Any 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.
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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 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.
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Exhibit
Number Description of Document
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<S> <C>
4.1 Specimen stock certificate representing the Common Stock of the Company
(which is incorporated herein by reference to Exhibit 4.1 to
Registrant's 1997 Registration Statement on Form S-1 (File No. 333-20189)).
4.2 Amended and Restated Bylaws of Registrant, as amended through February
2, 1998 (which are incorporated herein by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997).
</TABLE>
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4.3 Amended and Restated Certificate of Incorporation of Registrant, as
amended through May 21, 1997 (which is incorporated herein by reference
to Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997).
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
as to legality of securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
24.1 Powers of Attorney (see page 6).
</TABLE>
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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
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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 September 22, 1998.
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, President, August 24, 1998
- --------------------------------- Chief Executive Officer, and Director
George F. Adam, Jr.
/s/ LEONARD M. GOLDSTEIN Senior Vice President, Senior Counsel August 24, 1998
- ---------------------------------
Leonard M. Goldstein
/s/ STEPHEN E. WEBB Senior Vice President and Chief August 24, 1998
- --------------------------------- Financial Officer
Stephen E. Webb
/s/ JAMES C. PARKS Vice President of Finance and August 26, 1998
- --------------------------------- Controller
James C. Parks
/s/ HAROLD A. PISKIEL Executive Vice President, Chief August 24, 1998
- --------------------------------- Technical Officer and Director
Harold A. Piskiel
/s/ STEVE LAZARUS Director August 24, 1998
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Steve Lazarus
/s/ MARK L. GORDON Director August 24, 1998
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Mark L. Gordon
/s/ JAMES REEP Director August 24, 1998
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James Reep
/s/ ELISABETH W. IRELAND Director August 1, 1998
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Elisabeth W. Ireland
/s/ PATRICK J. FORTUNE Director August 24, 1998
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Patrick J. Fortune
/s/ JOSEPH E. KASPUTYS Director August 23, 1998
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Joseph E. Kasputys
</TABLE>
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Index to Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
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<S> <C>
4.1 Specimen stock certificate representing the Common Stock of the Company
(which is incorporated herein by reference to Exhibit 4.1 to
Registrant's 1997 Registration Statement on Form S-1 (File No. 333-20189)).
4.2 Amended and Restated Bylaws of Registrant, as amended through February
2, 1998 (which are incorporated herein by reference to Exhibit 3.2 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997).
4.3 Amended and Restated Certificate of Incorporation of Registrant, as
amended through May 21, 1997 (which is incorporated herein by reference
to Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997).
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
as to legality of securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
24.1 Powers of Attorney (see page 6).
</TABLE>
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Exhibit 5.1
September 22, 1998
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 September 22, 1998, in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of 600,000 shares
of your Common Stock, $.0001 par value (the "Shares"), outstanding or reserved
for issuance pursuant to the Amended and Restated 1995 Stock Option Plan and
1997 Employee Stock Purchase 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, P.C.
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated January
27, 1998 included in the New Era of Networks, Inc. Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Denver, Colorado
September 21, 1998
