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As filed with the Securities and Exchange Commission on March 22, 2000
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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Pilot Network Services, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 94-3305774
(State of incorporation) (I.R.S. Employer Identification No.)
1080 Marina Village Parkway
Alameda, California 94501
(Address of principal executive offices)
_______________________
1998 Employee Stock Purchase Plan
1998 Stock Option 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
(650) 854-4488
(Calculation of Registration Fee on following page)
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Maximum Amount of
Amount 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........................... 447,347 Shares $ 32.33 (2) $ 14,462,729 $ 3,818.16
1998 Stock Option Plan
Common Stock,
$0.001 par value.......................... 782,270 Shares $ 14.72 (3) $ 11,515,015 $ 3,039.97
Common Stock,
$0.001 par value.......................... 2,977,812 Shares $ 38.03 (4) $113,246,191 $29,896.99
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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 average of the high
and low sale prices of the Common Stock as reported on The Nasdaq National
Market on March 21, 2000, 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, the shares issuable under
which 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 average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
March 21, 2000.
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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 Annual Report on Form 10-K for the fiscal year ended
March 31, 1999, which contains audited financial statements for the Registrant's
latest fiscal year for which such statements have been filed; the Registrant's
Quarterly Reports on Form 10-Q for the quarters ended June 30, 1999, September
30, 1999 and December 31, 1999.
(b) The Registrant's Current Report on Form 8-K, filed with the Commission
on January 5, 2000 (File No. 000-24507).
(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 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.
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The Company have 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.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent of the Company where indemnification 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.
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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.
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
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
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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 this 22nd day of March, 2000.
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 attorney-in-facts
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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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ M. Marketta Silvera President, Chief Executive Officer and March 22, 2000
- ------------------------------------- Director (Principal Executive Officer)
M. Marketta Silvera
/s/ William C. Leetham Sr. Vice President, Finance and March 22, 2000
- ------------------------------------- Administration, Chief Financial Officer,
William C. Leetham Treasurer and Secretary (Principal
Financial and Accounting Officer)
/s/ Shanda Bahles Director March 22, 2000
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Shanda Bahles
/s/ Thomas B. Kelly Director March 22, 2000
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Thomas B. Kelly
/s/ Thomas O'Rourke Director March 22, 2000
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Thomas O'Rourke
/s/ K. Paul Singh Director March 22, 2000
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K. Paul Singh
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INDEX TO EXHIBITS
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
March 22, 2000
Pilot Network Services, Inc.
1080 Marina Village Parkway
Alameda, California 94501
Registration Statement on Form S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
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Statement") filed by you with the Securities and Exchange Commission (the
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"Commission") on or about March 22, 2000 in connection with the registration
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under the Securities Act of 1933, as amended, of a total of 4,207,429 shares of
your Common Stock (the "Shares") reserved for issuance under the 1998 Employee
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Stock Purchase Plan and the 1998 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, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
DMK
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
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The Board of Directors and Shareholders
Pilot Network Services, Inc.:
We consent to the incorporation herein by reference of our report dated
April 28, 1999, relating to the consolidated balance sheets of Pilot Network
Services, Inc. and subsidiary as of March 31, 1999 and 1998, and the related
consolidated statements of operations, comprehensive loss, stockholders' equity
(deficit), and cash flows for each of the years in the three-year period ended
March 31, 1999, and the related financial statement schedule, which report
appears in the March 31, 1999 annual report on Form 10-K of Pilot Network
Services, Inc.
/s/ KPMG LLP
San Francisco, California
March 22, 2000
