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As filed with the Securities and Exchange Commission on August 11, 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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PILOT NETWORK SERVICES, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
DELAWARE 94-3164036
(State of incorporation) (I.R.S. Employer Identification No.)
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1080 MARINA VILLAGE PARKWAY
ALAMEDA, CALIFORNIA 94501
(Address of principal executive offices)
_______________________
1998 EMPLOYEE STOCK PURCHASE PLAN
1998 STOCK OPTION PLAN
1998 DIRECTORS' STOCK OPTION PLAN
1994 STOCK PLAN
(Full title of the Plans)
_______________________
M. MARKETTA SILVERA
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PILOT NETWORK SERVICES, INC.
1080 MARINA VILLAGE PARKWAY
ALAMEDA, CALIFORNIA 94501
(510) 433-7800
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Donald M. Keller, Jr.
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(415) 854-4488
Page 1 of 10 Pages
Exhibit Index on Page 8
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Amount Maximum Maximum Amount of
to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
1998 EMPLOYEE STOCK PURCHASE PLAN
Common Stock,
$0.001 par value..................... 200,000 Shares $ 12.75(2) $ 2,550,000
1998 STOCK OPTION PLAN
Common Stock,
$0.001 par value.................... 95,450 Shares $ 13.00(3) $ 1,240,850
Common Stock,
$0.001 par value.................... 904,550 Shares $ 15.00(4) $ 13,568,250
1998 DIRECTORS' STOCK OPTION PLAN
Common Stock,
$0.001 par value..................... 200,000 Shares $ 15.00(4) $ 3,000,000
1994 STOCK PLAN
Common Stock,
$0.001 par value.................... 1,479,762 Shares $ 2.04(3) $ 3,018,715
TOTAL 2,879,762 Shares $ 23,377,815 $ 6,897
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_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being
registered pursuant to this Registration Statement by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in an
increase in the number of the Registrant's outstanding shares of Common
Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
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registration fee. The computation is based upon the proposed maximum
offering price per share of Common Stock as set forth in the Registrant's
Registration Statement on Form S-1 (File No. 333-57453), as amended,
multiplied by 85%, which is the percentage of the trading purchase price
applicable to purchases under the referenced plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. Computation based on
the weighted average per share exercise price (rounded to nearest cent)
of outstanding options under the referenced plan, of which the underlying
shares of Common Stock are registered hereby.
(4) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the proposed maximum
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offering price per share of Common Stock as set forth in the Registrant's
Registration Statement on Form S-1 (File No. 333-57453), as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
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(a) The Registrant's Prospectus filed on August 11, 1998 pursuant to
Rule 424(b) of the Securities Act, which contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on August
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10, 1998, 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 securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers, as well as
other employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, bylaws, disinterested director vote, stockholder vote, agreement or
otherwise.
The Company's Restated Certificate of Incorporation limits the
liability of directors to the full extent permitted by Delaware law. Delaware
law provides that a corporation's certificate of incorporation may contain a
provision eliminating or limiting the personal liability of directors 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 or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. The Company's Bylaws provide that the
Company shall indemnify its directors and officers and may
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indemnify its employees and agents to the fullest extent permitted by law. The
Company believes that indemnification under its Bylaws covers at least
negligence and gross negligence on the part of indemnified parties.
The Company has entered into agreements which indemnify its
directors and executive officers. These agreements, among other things,
indemnify the Company's directors and officers for certain expenses (including
attorneys' fees), judgments, fines and settlement amounts incurred by such
persons 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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Item 8. EXHIBITS.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney (see p. 7).
Item 9. UNDERTAKINGS.
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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 purposes 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.
(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.
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 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.
Insofar as the 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
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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 a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Pilot Network Services, Inc., a corporation organized and existing under the
laws of the State of Delaware, 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 Alameda, State of
California, on August 10, 1998.
Pilot Network Services, Inc.
By: /s/ M. Marketta Silvera
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M. Marketta Silvera
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints M. Marketta Silvera and William C.
Leetham, jointly and severally, his or her attorneys-in-fact and agents, each
with the power of substitution and resubstitution, for him or her and in his or
her name, place or stead, in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8, and to file such amendments, together
with exhibits and other documents in connection therewith, with the Securities
and Exchange Commission, granting to each attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully as he or she might or
could do in person, and ratifying and confirming all that the attorneys-in-fact
and agents, or his or her substitute or substitutes, may do or cause to be done
by virtue hereof.
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.
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Signature Title Date
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/s/ M. Marketta Silvera President, Chief Executive Officer and August 10, 1998
- ------------------------------------ Director (Principal Executive Officer)
M. Marketta Silvera
/s/ William C. Leetham Sr. Vice President, Finance and August 10, 1998
- ------------------------------------ Administration, Chief Financial Officer,
William C. Leetham Treasurer and Secretary (Principal
Financial Officer)
/s/ Robert G. Carrade Vice President, Finance and Administration August 10, 1998
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Robert G. Carrade
/s/ Shanda Bahles Director August 10, 1998
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Shanda Bahles
/s/ William B. Elmore Director August 10, 1998
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William B. Elmore
/s/ K. Flynn McDonald Director August 10, 1998
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K. Flynn McDonald
/s/ Thomas O'Rourke Director August 10, 1998
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Thomas O'Rourke
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INDEX TO EXHIBITS
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Exhibit Page
Number No.
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5.1 Opinion of Venture Law Group, a Professional Corporation 9
23.1 Consent of Venture Law Group, a Professional Corporation 9
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors. 10
24.1 Powers of Attorney (see p. 7). 7
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EXHIBIT 5.1
August 10, 1998
Pilot Network Services, Inc.
1080 Marina Village Parkway
Alameda, California 94501
REGISTRATION STATEMENT ON FORM S-8
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Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-
8 (the "Registration Statement") executed by Pilot Network Services, Inc. (the
"Company") and to be filed with the Securities and Exchange Commission (the
"Commission") in connection with the registration under the Securities Act of
1933, as amended, of a total 2,879,762 shares of the Company's Common Stock
(the "Shares") reserved for issuance under the Company's 1994 Stock Plan, 1998
Stock Option Plan, 1998 Employee Stock Purchase Plan and 1998 Directors' Stock
Option Plan. As your counsel in connection with this transaction, we have
examined the proceedings taken and are familiar with the proceedings proposed
to be taken by you in connection with the sale and issuance of the Shares.
It is our opinion that upon conclusion of the proceedings being taken
or contemplated by us, as your counsel, to be taken prior to the issuance of
the Shares, and upon completion of the proceedings being taken in order to
permit such transactions to be carried out in accordance with the securities
laws of the various states where required, the Shares when issued and sold in
the manner described in the Registration Statement will be legally and validly
issued, fully paid and non-assessable.
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 in any amendment thereto.
This opinion is solely for your benefit and may not be relied upon by
any other person without our prior written consent.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
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The Board of Directors and Stockholders
Pilot Network Services, Inc.
We consent to the incorporation herein by reference of our report dated May
29, 1998, except for Note 6 which is as of August 5, 1998, related to the
balance sheets of Pilot Network Services, Inc. as of March 31, 1997 and March
31, 1998, and the related statements of operations, stockholders' deficit, and
cash flows for each of the years in the three-year period ended March 31, 1998,
which report appears in the Registration Statement on Form S-1 (File No. 333-
57453), of Pilot Network Services, Inc.
/s/ KPMG Peat Marwick LLP
Oakland, California
August 11, 1998
