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As filed with the Securities and Exchange Commission on January 3, 2001
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
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NEW ERA OF NETWORKS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 84-1234845
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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ONE GREENWOOD PLAZA
6550 GREENWOOD PLAZA BOULEVARD
ENGLEWOOD, COLORADO 80111
(ADDRESS, INCLUDING ZIP CODE OF PRINCIPAL EXECUTIVE OFFICES)
1995 STOCK OPTION PLAN
1997 DIRECTOR OPTION PLAN
(FULL TITLES OF THE PLANS)
GEORGE F. (RICK) ADAM, JR.
CHIEF EXECUTIVE OFFICER
NEW ERA OF NETWORKS, INC.
ONE GREENWOOD PLAZA
6550 GREENWOOD PLAZA BOULEVARD
ENGLEWOOD, COLORADO 80111
(303) 694-3933
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
MARK A. BERTELSEN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock $0.0001 par value:
Newly reserved under the 1995
Stock Option Plan (the "Option
Plan") (1) 700,000 shares $5.281(3) $3,696,700 $925
Common Stock $0.0001 par 200,000 shares $5.281(3) $1,056,200 $265
value: Reserved under 1997
Director Option Plan (the
"Director Plan") (2)
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TOTAL: 900,000 shares $4,752,900 $1,190
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(1) 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) 700,000, (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 as
determined by the Board of Directors. Pursuant to Rule 416(a) of the
Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the Option 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.
(2) The Director Plan provides for an annual increase in the number of
shares of the Registrant's Common Stock reserved and available for
issuance under the Director Plan equal to the lesser of (i) 200,000
shares or (ii) an 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 become issuable
under the 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 solely for the purpose of computing the registration fee
required by Section 6(b) of the Securities Act pursuant to Rules 457(h)
and 457(c) under the Securities Act, based upon the average between the
high and low prices of the Common Stock as reported on the Nasdaq
National Market on December 26, 2000.
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NEW ERA OF NETWORKS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Securities
and Exchange Commission (the "Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission (the "Commission") by New Era of Networks,
Inc. (the "Registrant") are hereby incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999 filed with the Commission on March 29,
2000 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 March 31, 2000, June 30, 2000 and September 30,
2000 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 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 description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on August 14, 1998, as amended by the Company's
Registration Statement on Form 8-A/A, filed with the Commission
on August 17, 1998, pursuant to Section 12(g) of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description;
5. The Registrant's Current Report on Form 8-K filed on April 7,
2000; and
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In addition, 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
on or after the date of this Registration Statement 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 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
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 such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. Article
VII of the Registrant's Certificate of Incorporation and Article VI of the
Registrant's Bylaws provide for mandatory indemnifications of its directors and
officers and permissible indemnifications of employees and other agents to the
maximum extent permitted by the General Corporation Law of the State of
Delaware. In addition, the Registrant has entered into indemnification
agreements with its officers and directors. Reference is also made to Section 8
of the Registration Rights Agreement between the Registrant and certain parties
named therein dated May 9, 1995, which provides for the cross indemnification of
certain of the Registrant's stockholders and the Registrant, its directors and
officers against certain liabilities under the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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4.1 1995 Stock Option Plan, as amended.
4.2 1997 Director Option Plan, as amended.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (see page [ ]).
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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 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.
(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, 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 Englewood, State of Colorado, on this 28th day
of December 2000.
NEW ERA OF NETWORKS, INC.
By: /s/ LEONARD M. GOLDSTEIN
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Leonard M. Goldstein
Senior Vice President and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints George F. (Rick) 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, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED ON THIS 28TH DAY OF
DECEMBER 2000 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED:
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SIGNATURES TITLE
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/s/ GEORGE F. ADAM, JR. Chairman of the Board, Chief Executive Officer and Director
--------------------------------- (principal executive officer)
George F. Adam, Jr.
/s/ PATRICK J. FORTUNE President, Chief Operating Officer and Director
---------------------------------
Patrick J. Fortune
/s/ STEPHEN E. WEBB Senior Vice President and Chief Financial Officer (principal
--------------------------------- financial officer)
Stephen E. Webb
/s/ LONNIE S. CLARK Vice President Accounting (principal accounting officer)
---------------------------------
Lonnie S. Clark
/s/ STEVEN LAZARUS Director
---------------------------------
Steven Lazarus
/s/ MARK L. GORDON Director
---------------------------------
Mark L. Gordon
/s/ JOSEPH E. KASPUTYS Director
---------------------------------
Joseph E. Kasputys
/s/ MELVYN E. BERGSTEIN Director
---------------------------------
Melvyn E. Bergstein
/s/ ROBERT I. THEIS Director
---------------------------------
Robert I. Theis
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1 1995 Stock Option Plan, as amended.
4.2 1997 Director Option Plan, as amended.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (see page 5).
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