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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ARROWPOINT COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3364184
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
50 NAGOG PARK, ACTON, MA 02210
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK INCENTIVE PLAN (15,709,463 Shares)
2000 EMPLOYEE STOCK PURCHASE PLAN (400,000 Shares)
2000 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (300,000 Shares)
(Full Title of the Plan)
CHIN-CHENG WU
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ARROWPOINT COMMUNICATIONS, INC.
50 NAGOG PARK
ACTON, MA 01720
(Name and Address of Agent for Service)
(978) 206-3000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount Price Offering Registration
Registered to be Registered Per Share Price Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 16,409,463 shares $99.85(1) $1,638,484,881(1) $432,560
par value
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Computed in accordance with Rules 457(c) and (h) under the Securities
Act of 1933, as amended, based upon the average of the high and low
prices of the Common Stock as reported by Nasdaq National Market on
April 4, 2000.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents
sent or given to participants in the Registrant's 1997 Stock Incentive Plan,
2000 Employee Stock Purchase Plan and/or 2000 Non-Employee Director Stock Option
Plan pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant
to Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the document referred to in (1) above.
(3) The description of the common stock of the
Registrant, $.001 par value per share (the "Common Stock"), contained
in a registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed 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 shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained 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 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
The legality of the Common Stock being offered hereby will be
passed upon for the registrant by Hale and Dorr LLP, Boston, MA. H&D Investments
97, a fund affiliated with Hale and Dorr LLP, owns 9,802 shares of the
Registrant's Common Stock.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law and the Registrant's Certificate of
Incorporation provide for indemnification of the Registrant's directors and
officers for liabilities and expenses that they may incur in such capacities. In
general, directors and officers are indemnified with respect to actions taken in
good faith in a manner reasonably believed to be in, or not opposed to, the best
interests of the Registrant and, with respect to any criminal action or
proceeding, actions that the indemnitee had no reasonable cause to believe were
unlawful.
In addition, the Registrant has purchased a directors and officers liability
insurance policy.
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Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. UNDERTAKINGS
1. The 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;
(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; and
(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 (i) and (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 Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities 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.
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(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.
2. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
3. Insofar as indemnification for liabilities arising
under the Securities Act 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 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 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 Acton, Massachusetts on April 5, 2000.
ARROWPOINT COMMUNICATIONS, INC.
By: /s/ Cynthia M. Deysher
---------------------------------
Cynthia M. Deysher
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Chin-Cheng Wu Chairman of the Board of April 5, 2000
- ----------------------------- Directors, Chief Executive
Chin-Cheng Wu Officer (Principal Executive
Officer)
/s/ Cynthia M. Deysher Chief Financial Officer April 5, 2000
- ----------------------------- (Principal Financial and
Cynthia M. Deysher Accounting Officer)
/s/ Edward T. Anderson Director April 5, 2000
- -----------------------------
Edward T. Anderson
/s/ James A. Dolce, Jr. Director April 5, 2000
- -----------------------------
James A. Dolce, Jr.
/s/ Paul J. Ferri Director April 5, 2000
- -----------------------------
Paul J. Ferri
/s/ Louis J. Volpe Director April 5, 2000
- -----------------------------
Louis J. Volpe
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4.1 (1) Amended and Restated Certificate of Incorporation of the
Registrant
4.2 (1) Amended and Restated By-Laws of the Registrant
4.3 (1) Specimen Certificate for Common Stock of the Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-95509).
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EXHIBIT 5
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
April 7, 2000
ArrowPoint Communications, Inc.
50 Nagog Park
Acton, MA 01720
Re: 1997 Stock Incentive Plan
2000 Employee Stock Purchase Plan
2000 Non-Employee Director Stock Option Plan
--------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 16,409,463 shares of Common Stock, $.001 par value
per share (the "Shares"), of ArrowPoint Communications, Inc., a Delaware
corporation (the "Company"), issuable under the Company's 1997 Stock Incentive
Plan, 2000 Employee Stock Purchase Plan and 2000 Non-Employee Director Stock
Option Plan (collectively, the "Plans").
We have examined the Amended and Restated Certificate of Incorporation and
Amended and Restated By-Laws of the Company, each as amended and restated to
date and originals, or copies certified to our satisfaction, of all pertinent
records of the meetings of the directors and stockholders of the Company, the
Registration Statement and such other documents relating to the Company as we
have deemed material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
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We assume that the appropriate action will be taken, prior to the offer and sale
of the Shares in accordance with the Plans, to register and qualify the Shares
for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction other
than the state laws of The Commonwealth of Massachusetts, the Delaware General
Corporation Law statute and the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the Shares
have been duly authorized for issuance and, when the Shares are issued and paid
for in accordance with the terms and conditions of the Plans, the Shares will be
validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with the
offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 26, 2000,
except with respect to the matters discussed in Notes 7(a) and 7(d)(ii), as to
which the date is February 29, 2000 included in ArrowPoint Communications,
Inc.'s Registration Statement (No. 333-95509) on Form S-1.
/s/ Arthur Andersen LLP
Boston, Massachusetts
April 5, 2000
