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As filed with the Securities and Exchange Commission on September 30, 1999
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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NETSCOUT SYSTEMS, INC.
(Exact Name of Registrant as specified in its charter)
DELAWARE 04-2837575
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4 TECHNOLOGY PARK DRIVE
WESTFORD, MA 01886
(978) 614-4000
(Address of Principal Executive Offices) (Zip Code)
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NETSCOUT SYSTEMS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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 of Process)
(978) 614-4000
(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
JOHN A. MELTAUS, ESQ.
TESTA, HURWITZ & THIBEAULT, LLP
125 HIGH STREET
BOSTON, MASSACHUSETTS 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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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 (1) Offering Price Registration Fee
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<S> <C> <C> <C> <C>
1999 EMPLOYEE STOCK PURCHASE PLAN 500,000 $21.50 $10,750,000 $2,988.50
Common Stock (par value $.001 per share)
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(1) The price of $21.50 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on September 24, 1999, is set
forth solely for purposes of calculating the filing fee pursuant to
Rule 457(c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others 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.
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.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated August 11, 1999, as filed with the
Commission pursuant to Rule 424(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act of 1933"), on August 11, 1999;
(b) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on
Form 8-A (File No. 000-26251) filed on June 3, 1999 pursuant to Section
12(g) of the Securities Exchange Act of 1934 (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.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law, the Registrant's charter and
by-laws provide for indemnification of the Registrant's directors and
officers for liabilities and expenses that they may incur in such capacities.
In general, directors and officers are indemnified with respect to actions
taken in good faith in a manner reasonably believed to be in, or not opposed
to, the best interests of the Registrant, and with respect to any criminal
action or proceeding, actions that the indemnitee had no reasonable cause to
believe were unlawful. Reference is made to the Registrant's corporate
charter filed as 3.3, 4.1 to the Registrant's Registration Statement on Form
S-1 (File No. 333-76843) and the Registrant's by-laws filed as Exhibits 3.5,
4.2 to the Registrant's Registration Statement on Form S-1 (File No.
333-76843).
The underwriting agreement 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 of 1933. 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. 333-76843).
The Registrant has in effect a directors' and officers' insurance
policy.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
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Exhibit No. Description of Exhibit
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<S> <C>
4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4.3 to the Registrant's Registration Statement on
Form S-1 (File No. 333-76843) and incorporated herein by reference)
4.2 Third Amended and Restated Certificate of Incorporation (filed as
Exhibits 3.3, 4.1 to the Registration Statement on Form S-1 (File
No. 333-76843) and incorporated herein by reference)
4.3 Amended and Restated By-Laws of the Registrant (filed as
Exhibits 3.5, 4.2 to the Registration Statement on Form S-1
(File No. 333-76843) and incorporated herein by reference)
4.4 1999 Employee Stock Purchase Plan (filed as Exhibit 10.3 to
the Registration Statement on Form S-1 (File 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)
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Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes 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; and
(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 (i) and (ii) above do not apply if
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
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
The undersigned Registrant hereby undertakes (i) 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
(ii) 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act of 1934 that is incorporated by reference herein 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 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
Securities Act of 1933 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
Securities Act of 1933 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 Westford in the State of Massachusetts, on this 30th
day of September, 1999.
NETSCOUT SYSTEMS, INC.
By: /s/ Charles W. Tillett
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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.
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SIGNATURE TITLE DATE
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/s/ Anil K. Singhal
- -------------------------- Chief Executive Officer and Chairman of the Board September 30, 1999
Anil K. Singhal (Principal Executive Officer)
/s/ Narendra Popat
- -------------------------- President, Chief Operating Officer and Director September 30, 1999
Narendra Popat
/s/ Charles W. Tillett
- -------------------------- Vice President, Finance and Administration and September 30, 1999
Charles W. Tillett Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Joseph G. Hadzima, Jr.
- -------------------------- Director September 30, 1999
Joseph G. Hadzima, Jr.
/s/ Kenneth T. Schiciano
- ------------------------ Director September 28, 1999
Kenneth T. Schiciano
/s/ Richard J. Egan
- ------------------------ Director September 30, 1999
Richard J. Egan
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INDEX TO EXHIBITS
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Exhibit No. Description
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4.1 Specimen Certificate for shares of the Registrant's Common
Stock (filed as Exhibit 4.3 to the Registrant's Registration
Statement on Form S-1 (File No. 333-76843) and incorporated
herein by reference)
4.2 Third Amended and Restated Certificate of Incorporation
(filed as Exhibits 3.3, 4.1 to the Registration Statement on
Form S-1 (File No. 333-76843) and incorporated herein by
reference)
4.3 Amended and Restated By-Laws of the Registrant (filed as
Exhibits 3.5, 4.2 to the Registration Statement on Form S-1
(File No. 333-76843) and incorporated herein by reference)
4.4 1999 Employee Stock Purchase Plan (filed as Exhibit 10.3 to
the Registration Statement on Form S-1 (File 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)
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EXHIBIT 5
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
September 30, 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 500,000
shares (the "SHARES") of Common Stock, par value $.001 per share, of the Company
under the 1999 Employee Stock Purchase Plan (the "PURCHASE 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 Purchase
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 Purchase 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
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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
September 30, 1999
