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As filed with the Securities and Exchange Commission on August 30, 2000
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
NETsilicon, Inc.
(Exact Name of Registrant as specified in its charter)
Massachusetts 04-2826579
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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411 WAVERLEY OAKS ROAD, BLDG. 227
WALTHAM, MA 02452
(781) 647-1234
(Address of Principal Executive Offices) (Zip Code)
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NETSILICON, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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CORNELIUS PETERSON VIII
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NETSILICON, INC.
411 WAVERLEY OAKS ROAD, BLDG. 227
WALTHAM, MA 02452
(Name and Address of Agent for Service of Process)
(781) 647-1234
(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
EDWIN L. MILLER, JR., ESQ.
TESTA, HURWITZ & THIBEAULT, LLP
125 HIGH STREET
BOSTON, MASSACHUSETTS 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Maximum Proposed
Offering Maximum
Title of Securities Amount to be Price Per Aggregate Amount of
to be Registered Registered Share Offering Price Registration Fee(2)
<C> <C> <C> <C> <C>
2000 Employee Stock Purchase Plan
Common Stock (par value $.01 per share) 500,000 $25.38(1) $12,690,000 $3,350.16
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</TABLE>
(1) These shares are not subject to outstanding options. The price of $25.38 per
share, which is the average of the high and low prices reported on the
Nasdaq National Market on August 29, 2000, is set forth solely for purposes
of calculating the filing fee pursuant to Rule 457(c) and (h) and has been
used for shares without a fixed exercise or purchase price.
(2) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.
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The documents containing the information specified in this Item 1 will
be sent or given to employees 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. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
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The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b). 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.
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The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the year ended January 31,
2000, as filed with the Commission pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) 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
Registrant's document referred to in (a) above.
(c) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on
Form 8-A (File No. 000-26761) filed on July 20, 1999 pursuant to
Section 12(g) of the Exchange Act.
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, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein 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 a part thereof from the date of filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES.
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Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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The Restated Articles of Organization and the Amended and Restated
By-Laws of the Company provide for indemnification of the Company's directors
and officers unless such indemnification is prohibited by the Massachusetts
Business Corporation Law. The Massachusetts Business Corporation Law generally
permits indemnification of the Company's directors and officers for liabilities
and expenses that they may incur in such capacities, except with respect to any
matter that the indemnified person shall have been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that his or her action
was in the best interest of the Company. Reference is made to the Registrant's
Restated Articles of Organization filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-62231) and the Registrant's
Amended and Restated By-Laws filed as Exhibit 3.3 to the Registrant's
Registration Statement on Form S-1 (File No. 333-62231).
The underwriting agreement, dated September 15, 1999, by and between
the Registrant and the underwriters listed therein provides that the
underwriters are obligated, under certain circumstances, to indemnify directors,
officers and controlling persons of the Registrant against certain liabilities,
including liabilities under the Securities Act. Reference is made to the Form of
Underwriting Agreement filed as Exhibit 1.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-62231).
The Registrant has in effect a directors' and officers' insurance
policy.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
Item 8. EXHIBITS.
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EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4 to the Registrant's Registration Statement on
Form S-1 (File No. 333-62231) and incorporated herein by reference)
4.2 Restated Articles of Organization (filed as Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 (File No. 333-62231)
and incorporated herein by reference)
4.3 Amended and Restated By-Laws of the Registrant (filed as Exhibit 3.3
to the Registration Statement on Form S-1 (File No. 333-62231) and
incorporated herein by reference)
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4.4 NETsilicon, Inc. 2000 Employee Stock Purchase Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (included as part of the signature page of this
Registration Statement)
Item 9. UNDERTAKINGS.
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(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 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(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 (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and 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
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
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(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 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 the City of Waltham in the State of Massachusetts, on this 30th
day of August, 2000.
NETsilicon, Inc.
By: /s/ Cornelius Peterson, VIII
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Cornelius Peterson, VIII
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of NETsilicon, Inc., hereby
severally constitute and appoint Cornelius Peterson VIII and Daniel J. Sullivan,
and each of them singly, our true and lawful attorneys, with full power to them
and each of them singly, to sign for us in our names in the capacities indicated
below, any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable NETsilicon, Inc., to comply with
the provisions of the Securities Act of 1933, as amended, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and all amendments thereto.
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Cornelius Peterson, VIII President, Chief Executive Officer and August 30, 2000
------------------------------------- Director (Principal Executive Officer)
Cornelius Peterson, VIII
/s/ Daniel J. Sullivan Chief Financial Officer August 30, 2000
------------------------------------- (Principal Financial and Accounting Officer)
Daniel J. Sullivan
/s/ Michael K. Ballard Director August 30, 2000
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Michael K. Ballard
/s/ Francis E. Girard Director August 30, 2000
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Francis E. Girard
/s/ William Johnson Director August 30, 2000
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William Johnson
/s/ Edward B. Roberts Director August 30, 2000
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Edward B. Roberts
/s/ F. Grant Saviers Director August 30, 2000
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F. Grant Saviers
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4 to the Registrant's Registration Statement on
Form S-1 (File No. 333-62231) and incorporated herein by
reference)
4.2 Restated Articles of Organization (filed as Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 (File No.
333-62231) and incorporated herein by reference)
4.3 Amended and Restated By-Laws of the Registrant (filed as Exhibit
3.3 to the Registration Statement on Form S-1 (File No.
333-62231) and incorporated herein by reference)
4.4 NETsilicon, Inc. 2000 Employee Stock Purchase Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (included as part of the signature page of
this Registration Statement)
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