As filed with the Securities and Exchange Commission on September 26, 2000
Registration No. 333-_________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
PATH 1 NETWORK TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3989885
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
3636 Nobel Drive, Suite 275, San Diego, California 92122
(Address of principal executive offices) (Zip Code)
PATH 1 NETWORK TECHNOLOGIES INC.
1999 STOCK OPTION/ STOCK ISSUANCE PLAN
(Full title of the Plan)
Dr. Michael T. Elliott
President and Chief Executive Officer
Path 1 Network Technologies Inc.
3636 Nobel Drive, Suite 275
San Diego, California 92122
(Name and address of agent for service)
(858) 450-4220
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to be Maximum Maximum Registration
to be Registered(1) Offering Aggregate Fee
Registered Price per Offering
Share Price
1999 Stock 3,500,000 $ 4.35 (2) $ 10,875,000(2) $ 2,871
Option/Stock shares
Issuance Plan
Class B Common
Stock
(1) This Registration Statement shall also cover any additional shares of
Registrant's Class B Common Stock which become issuable under the 1999 Stock
Option/Stock Issuance Plan with respect to the securities registered hereunder
by reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration which
results in an increase in the number of the Registrant's outstanding shares of
Class B Common Stock.
(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 book value of the
Registrant's Class B Common Stock computed as of September 22, 2000.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
Path 1 Network Technologies Inc. (the "Registrant") incorporates by reference
into this Registration Statement the following documents previously filed with
the SEC:
(a) The Registrant's Registration Statement on Form 10 filed with the SEC on
May 23, 2000 (File No. 000-30928) together with the amendments filed with the
SEC on June 8, 2000 and June 16, 2000, as declared effective on June 19, 2000.
(b) The Registrant's Quarterly Report on Form 10-Q/A, filed with SEC on August
11, 2000 for the period ended June 30, 2000. All reports and definitive proxy
or information statements filed under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered under this Registration Statement 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 of
this Registration Statement from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in this Registration Statement or in any subsequently filed
document which also is deemed to be incorporated by reference in this
Registration Statement modifies or supersedes such statement. Any such
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
The Registrant's Certificate of Incorporation authorizes thirty million
(30,000,000) shares of common stock, divided into two series: Class A
Common Stock and Class B Common Stock. The Class B Common Stock, a junior
common stock, is designed to be used principally in connection with recruitment
of new employees and as a method of providing incentives to existing employees.
The Class B Common Stock has no voting rights except to the extent expressly
required by law. The Class B Common Stock is not transferable except to the
extent that a proposed transfer is expressly consented to by vote of the
holders of the Class A Common Stock. This restriction on transfer is intended
to comply with Delaware General Corporation Law Section 202. The Registrant is
entitled to note conspicuously, on each stock certificate representing shares
of Class B Common Stock, this restriction on transfer. The Class B Common
Stock is not redeemable and is not entitled to receive dividends unless and
until an aggregate of $100,000,000 of dividends has been declared and paid on
the Class A Common Stock. Upon liquidation, dissolution or winding up of the
Registrant, the holders of Class B Common Stock shall be entitled, after the
holders of Class A Common Stock have received their full aforesaid preferential
amounts, to share pro rata with the Class A Common Stock in the distribution of
the remaining assets.
In addition, the Class B Common Stock is not convertible except that it will be
automatically converted into Class A Common Stock on a 1-for-1 basis upon the
occurrence of any of the following events:
(a) The Registrant (or 50% or more of its stock or assets) is acquired by a
person or an affiliated group by merger, reverse triangular merger, private
stock sale, direct stock issuance, consolidation or otherwise;
(b) The Registrant sells, leases, or exclusively licenses all or substantially
all of its assets (excluding sales of inventory in the ordinary course of
business);
(c) The Registrant reports for any fiscal year revenues from operations equal
to $10,000,000 or more and reports for such fiscal year EBITDA (earnings before
interest, taxes, depreciation, amortization and extraordinary items) of
$2,000,000 or more, as determined in accordance with United States generally
accepted accounting principles; or
(d) The Registrant consummates the sale of its Class A Common Stock in a bona
fide, firm commitment underwriting pursuant to a registration statement under
the Securities Act of 1933, as amended, the public offering price of which is
not less than $25,000,000 in the aggregate.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Class B Common Stock offered hereby will be
passed upon for the Registrant by Brobeck, Phleger & Harrison LLP, San Diego,
California.
Item 6. Indemnification of Directors and Officers
The Registrant's Certificate of Incorporation and Bylaws contain provisions
authorizing indemnification of and advancement of expenses to officers and
directors. The indemnities provided by the Registrant's charter documents (i)
shall continue as to a person who has ceased to be a director or officer, (ii)
shall inure to the benefit of his heirs, executors and administrators, and
(iii) shall not be deemed to limit or exclude any rights, indemnities or
limitations of liability to which any person may be entitled, whether as a
matter of law, under the Bylaws, by agreement, vote of the stockholders or
disinterested directors or otherwise.
Section 145 of the Delaware General Corporation Law permits indemnification of
the Registrant's officers and directors under certain conditions and subject to
certain limitations. Section 145 of the Delaware General Corporation Law also
provides that a corporation has the power to purchase and maintain insurance on
behalf of its officers and directors against any liability asserted against
such person and incurred by him or her in such capacity, or arising out of his
or her status as such, whether or not the corporation would have the power to
indemnify him or her against such liability under the provisions of Section 145
of the Delaware General Corporation Law. The Registrant purchased and
presently maintains insurance on behalf of its officers and directors.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
4 Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of
the Registrant's Registration Statement on Form 10, filed on May 23,
2000).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
10.1 1999 Stock Option/Stock Incentive Plan (incorporated by reference to
Exhibit 10.5 of the Registrant's Registration Statement on Form 10, filed
on May 23, 2000).
10.2 Form of Notice of Grant of Stock Option (incorporated by reference to
Exhibit 10.6 of the Registrant's Registration Statement on Form 10, filed
on May 23, 2000).
10.3 Form of Stock Option Agreement (incorporated by reference to Exhibit 10.6
of the Registrant's Registration Statement on Form 10, filed on May 23,
2000).
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
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 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 clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference into 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; 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 Path 1 Network Technologies Inc. 1999 Stock Option/Stock
Issuance Plan.
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 Exchange Act of 1934 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 Securities Act
of 1933 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
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 1933
Act and will be governed by the final adjudication of such issue.
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 San Diego, State of California on this 26th day of
September, 2000.
PATH 1 NETWORK TECHNOLOGIES INC.
By: /s/ Michael T. Elliott
Michael T. Elliott
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
/s/Michael T.Elliott President, Chief September 20, 2000
Michael T. Elliott Executive Officer
and Director (principal
executive officer)
/s/ Richard B. Slansky Chief Financial Officer September 20, 2000
Richard B. Slansky and Vice President of
Finance (principal
financial and accounting
officer)
/s/ Ronald Fellman Director September 20, 2000
Ronald D. Fellman
/s/ Douglas Palmer Director September 20, 2000
Douglas A. Palmer
/s/ Paul Robinson Director September 20, 2000
Paul Robinson
/s/ Roderick Adams Director September 20, 2000
Roderick Adams
/s/ John A. MacDonald Director September 20, 2000
John A. MacDonald
/s/ Reginald J. Tiessen Director September 20, 2000
Reginald J. Tiessen
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
PATH 1 NETWORK TECHNOLOGIES INC.
EXHIBIT INDEX
Exhibit
Number Exhibit
4 Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of
the Registrant's Registration Statement on Form 10, filed on May 23,
2000).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
10.1 1999 Stock Option/Stock Incentive Plan (incorporated by reference to
Exhibit 10.5 of the Registrant's Registration Statement on Form 10, filed
on May 23, 2000).
10.2 Form of Notice of Grant of Stock Option(incorporated by reference to
Exhibit 10.6 of the Registrant's Registration Statement on Form 10, filed
on May 23, 2000).
10.3 Form of Stock Option Agreement (incorporated by reference to Exhibit 10.6
of the Registrant's Registration Statement on Form 10, filed on May 23,
2000).
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
EXHIBIT 5
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON
LLP
September 18, 2000
Path 1 Network Technologies Inc.
3636 Nobel Drive, Suite 275
San Diego, California 92122
Re: Path 1 Network Technologies Inc. Registration Statement on Form S-8 for
3,500,000 Shares of Class B Common Stock Issuable Under the 1999 Stock
Option/Stock Issuance Plan.
Ladies and Gentlemen:
We have acted as counsel to Path 1 Network Technologies Inc., a Delaware
corporation (the "Company"), in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, of
3,500,000 shares of Class B Common Stock and related stock options issuable
under the Path 1 Network Technologies Inc. 1999 Stock Option/Stock Issuance
Plan (the "Option Plan"). All of such shares of common stock are collectively
referred to herein as the "Shares."
This opinion is being furnished in accordance with the requirements of Item 8
of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate proceedings
taken by the Company in connection with the establishment and administration of
the Option Plan. Based on such review, we are of the opinion that if, as and
when the 3,500,000 Shares reserved in the aggregate under the Option Plan have
been issued and sold (and the consideration therefore received) pursuant to (a)
the provisions of option agreements duly authorized under the Option Plan and
in accordance with the Registration Statement, or (b) duly authorized direct
stock issuances in accordance with the Option Plan and in accordance with the
Registration Statement, those Shares will be legally issued, fully paid and
nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and we
disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Option Plan or the Shares.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1999 Stock Option/Stock Issuance Plan of Path 1
Network Technologies Inc. of our report dated February 10, 2000 (except for
Note 6, as to which the date is May 20, 2000, and except for the second
paragraph of Note 6, as to which the date is February 28, 2000, and except for
Note 7 and Note 8, as to which the date is April 27, 2000), with respect to the
financial statements of Path 1 Network Technologies Inc. included in the
Registration Statement (Form 10), filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
San Diego, California
September 21, 2000
