<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15, 1999
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
NETSCOUT SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-2837575
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
4 TECHNOLOGY PARK DRIVE
WESTFORD, MA 01886
(Address of Principal Executive Offices)
--------------------
NETSCOUT SYSTEMS, INC. 1999 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
--------------------
ANIL K. SINGHAL, CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
NARENDRA POPAT, PRESIDENT AND CHIEF OPERATING OFFICER
NETSCOUT SYSTEMS, INC.
4 TECHNOLOGY PARK DRIVE
WESTFORD, MA 01886
(Name and Address of Agent For Service)
(978) 614-4000
(Telephone Number, Including Area Code, of Agent For Service)
--------------------
Copies to:
JOHN A. MELTAUS, ESQ.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------- ------------ -------------- -------------- ----------------
NETSCOUT SYSTEMS, INC. 1999 STOCK OPTION AND INCENTIVE PLAN
<S> <C> <C> <C> <C>
OPTIONS GRANTED
- ---------------
Common Stock, $.001 par 155,813 shares $10.35 $1,612,665 --
value (1)
287,750 shares $18.90 $5,438,475 --
30,000 shares $20.50 $615,000 --
60,000 shares $22.50 $1,350,000 --
OPTIONS RESERVED FOR GRANT
- --------------------------
Common Stock, $.001 par 3,966,437 shares $23.875 $94,698,684 --
value (2)
TOTAL: 4,500,000 shares -- $103,714,824 $28,833
========= =========== ======
</TABLE>
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(1) Based on options to purchase 533,563 shares of NetScout Systems,
Inc.'s Common Stock granted as of November 15, 1999 under the NetScout Systems,
Inc. 1999 Stock Option and Incentive Plan (the "Plan"). All of such shares are
issuable upon the exercise of outstanding options to purchase the number of
shares at the exercise price listed above. Pursuant to Rule 457(h)(1), the
aggregate offering price and the fee have been computed upon the basis of the
price at which the options may be exercised.
(2) None of such shares are subject to outstanding options. The exercise
price of such options shall be determined at the time of grant. Accordingly,
pursuant to Rule 457(h)(1), the price of $23.875 per share, which is the average
of the high and low prices reported on the Nasdaq National Market on November
11, 1999, is set forth solely for purposes of calculating the filing fee.
<PAGE>
This Registration Statement registers additional securities of the same
class as other securities for which a Registration Statement on Form S-8 (No.
333-88131) relating to NetScout's 1999 Employee Stock Purchase Plan is
effective. Pursuant to General Instruction E of Form S-8, the contents of the
above-listed Registration Statements are hereby incorporated by reference.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Third Amended and Restated Certificate of
Incorporation of the Registrant (filed as Exhibit
3.3, 4.1 to the Company's Registration Statement on
Form S-1 (No. 333-76843) and incorporated herein by
reference)
4.2 Amended and Restated By-Laws of the Registrant
(filed as Exhibit 3.5, 4.2 to the Company's
Registration Statement on Form S-1 (No. 333-76843)
and incorporated herein by reference)
4.3 NetScout Systems, Inc. 1999 Stock Option and
Incentive Plan, as amended (filed as Exhibit 10.2 to
the Company's Registration Statement on Form S-1
(No. 333-76843) and incorporated herein by
reference)
5 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included as part of the signature
page of this Registration Statement)
</TABLE>
<PAGE>
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 Westford, in the Commonwealth of Massachusetts, on
this 15th day of November, 1999.
NETSCOUT SYSTEMS, INC.
By: /s/ Charles W. Tillett
------------------------------------------
Charles W. Tillett
Vice President, Finance and Administration
and Chief Financial Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of NetScout Systems, Inc.,
hereby severally constitute and appoint Anil K. Singhal, Narendra Popat and
Charles W. Tillett, 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 NetScout
Systems, 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/ Anil K. Singhal
- ---------------------- Chief Executive Officer and Chairman of the Board November 15, 1999
Anil K. Singhal (Principal Executive Officer)
/s/ Narendra Popat
- ---------------------- President, Chief Operating Officer and Director November 15, 1999
Narendra Popat
/s/ Charles W. Tillett
- ---------------------- Vice President, Finance and Administration and November 15, 1999
Charles W. Tillett Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Joseph G. Hadzima, Jr.
- ---------------------- Director November 8, 1999
Joseph G. Hadzima, Jr.
/s/ Kenneth T. Schiciano
- ---------------------- Director November 15, 1999
Kenneth T. Schiciano
/s/ Richard J. Egan
- ---------------------- Director November 15, 1999
Richard J. Egan
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Third Amended and Restated Certificate of
Incorporation of the Registrant (filed as Exhibit
3.3, 4.1 to the Company's Registration Statement on
Form S-1 (No. 333-76843) and incorporated herein by
reference)
4.2 Amended and Restated By-Laws of the Registrant
(filed as Exhibit 3.5, 4.2 to the Company's
Registration Statement on Form S-1 (No. 333-76843)
and incorporated herein by reference)
4.3 NetScout Systems, Inc. 1999 Stock Option and
Incentive Plan, as amended (filed as Exhibit 10.2
to the Company's Registration Statement on Form
S-1 (No. 333-76843) and incorporated herein by
reference)
5 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included as part of the signature
page of this Registration Statement)
</TABLE>
<PAGE>
EXHIBIT 5
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
November 15, 1999
NetScout Systems, Inc.
4 Technology Park Drive
Westford, MA 01886
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We are acting as counsel for NetScout Systems, Inc., a Delaware
corporation (the "COMPANY"), in connection with the registration on a
Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") under the
Securities Act of 1933, as amended, of the offer and sale of up to 4,500,000
shares (the "SHARES") of Common Stock, par value $.001 per share, of the Company
under the 1999 Stock Option and Incentive Plan (the "1999 PLAN").
In rendering our opinion, we have examined, and are familiar with, and
have relied as to factual matters solely upon, originals or copies certified, or
otherwise identified to our satisfaction, of such documents, corporate records
or other instruments as we have deemed necessary or appropriate for the purposes
of the opinion set forth herein, including, without limitation, (a) the 1999
Plan, (b) the Company's Third Amended and Restated Certificate of Incorporation,
(c) the Company's Amended and Restated By-laws, (d) a specimen of the form of
Certificate evidencing the Shares and (e) the minute books of the Company.
Based upon and subject to the foregoing, we are of the opinion that the
Shares are duly authorized and, when issued and delivered pursuant to the terms
of the 1999 Plan and the terms of any agreement relating to any of the options
granted thereunder, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated July 14, 1999 relating to
the consolidated financial statements and financial statement schedules for the
year ended March 31, 1999 of NetScout Systems, Inc., which appears in NetScout
Systems, Inc.'s Registration Statement on Form S-1 (No. 333-76843), as amended,
as filed with the Securities and Exchange Commission on August 11, 1999.
PricewaterhouseCoopers LLP
Boston, MA
November 15, 1999
