<PAGE>
As filed with the Securities and Exchange Commission on
October 13, 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
----------------------
EFFICIENT NETWORKS, INC.
(Exact name of Registrant as specified in its charter)
----------------------
<TABLE>
<S> <C> <C>
Delaware 72-2486845
(State or other jurisdiction of Efficient Networks, Inc. (I.R.S. Employer
incorporation or organization) Identification Number)
4201 Spring Valley Road, Suite 1200
Dallas, TX 75244-3666
(972) 991-3884
</TABLE>
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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1999 STOCK PLAN
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Jill S. Manning
Chief Financial Officer
Efficient Networks, Inc.
4201 Spring Valley Road, Suite 1200
Dallas, TX 75244-3666
(972) 991-3884
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
Copy to:
Kenneth M. Siegel, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
----------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following line: ______
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following line: X
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share (1) Offering Price (1) Fee (1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $0.001 par value 3,500,000 $35.12 $122,920,000 $34,172
Issuable under:
1999 Stock Plan
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</TABLE>
(1) Estimated in part pursuant to Rule 457(h) and in part pursuant to Rule
457(c) under the Securities Act of 1933, as amended. With respect to 178,500
shares subject to outstanding options to purchase Common Stock under the Plan,
the proposed maximum offering price per share is equal to the weighted average
exercise price of $40.38 per share pursuant to Rule 457(h) under the Securities
Act. With respect to 3,321,500 shares of Common Stock available for future grant
under the Plan, the estimated proposed maximum offering price per share is
$34.84, which was estimated pursuant to Rule 457(c) under the Securities Act
whereby the per share price is the average between the ask and bid price
reported in the Nasdaq National Market on October 8, 1999. The proposed maximum
offering price per share represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(c) and 457(h) under the
Securities Act.
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EFFICIENT NETWORKS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Explanatory Note
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This Registration Statement on Form S-8 is being filed for the purpose of
registering 3,500,000 shares of the Registrant's Common Stock to be issued
pursuant to the Registrant's 1999 Stock Plan (the "1999 Plan").
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information filed with the Securities and
Exchange Commission (the "Commission") by the registrant are incorporated herein
by reference:
(a) The Registrant's Registration Statement on Form S-1 (Registration
No. 333-77795) as declared effective by the Commission on July 14, 1999.
(b) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999 as filed with the Commission on September 13, 1999.
(c) The description of the Company's common stock which is contained
in the Company's Registration Statement on Form 8-A filed with the Commission on
June 22, 1999 pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and any description of any securities of the
Registrant which is contained in any registration statement filed after the date
hereof under Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating any 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 to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's certificate of incorporation limits the liability of the
Registrant's directors to the maximum extent permitted by Delaware law. Delaware
law provides that directors of a corporation will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except
liability for any of the following: (i) any breach of their duty of loyalty to
the corporation or its stockholders; (ii) acts or
II-1
<PAGE>
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law; (iii) unlawful payments of dividends or unlawful stock
repurchases or redemptions; or (iv) any transaction from which the director
derived an improper personal benefit. This limitation of liability does not
apply to liabilities arising under the federal securities laws and does not
affect the availability of equitable remedies such as injunctive relief or
rescission.
The Registrant's certificate of incorporation and bylaws provide that it
will indemnify its directors and executive officers, and that it may indemnify
its other officers and employees and other agents, to the fullest extent
permitted by law. It believes that indemnification under its bylaws covers at
least negligence and gross negligence on the part of indemnified parties. The
Registrant's bylaws also permit it to secure insurance on behalf of any officer,
director, employee or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the bylaws would permit
indemnification.
The Registrant has entered into agreements to indemnify its directors and
executive officers, in addition to indemnification provided for in its bylaws.
These agreements, among other things, provide for indemnification of the
Registrant's directors and executive officers for expenses, judgments, fines and
settlement amounts incurred by any such person in any action or proceeding
arising out of such person's services as a director or executive officer of the
Registrant or at its request. The Registrant believes that these provisions and
agreements are necessary to attract and retain qualified persons as directors
and executive officers. The Registrant also maintains directors and officers
liability insurance. At present, the Registrant is not aware of any pending
litigation or proceeding involving any director, officer, employee or agent of
its where indemnification will be required or permitted. Furthermore, the
Registrant is not aware of any threatened litigation or proceeding that might
result in a claim for indemnity by these individuals.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description of Document
- ------------- -----------------------------------------------------------------
4.1(1) 1999 Stock Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
- --------------------------------------------------------------------------------
(1) Incorporated by Reference to Exhibit 10.2 of Efficient Networks, Inc.'s
Registration Statement of Form S-1 (Registration No. 333-77795) filed on
July 14, 1999, as amended.
II-2
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(i) 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.
(ii) 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.
(iii) 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Dallas, State of Texas, on October 11, 1999.
By: /s/ Mark A. Floyd
-----------------
Mark A. Floyd
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Mark A.
Floyd and Jill S. Manning jointly and severally, his attorneys-in-fact, each
with the power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorney-in-fact, or his substitute or substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement of Form S-8 has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------------------- -------------------------------------- ----------------
<S> <C> <C>
/s/ Mark A. Floyd President, Chief Executive Officer and October 11, 1999
- --------------------------------------- Director (Principal Executive Officer)
Mark A. Floyd
/s/ Jill S. Manning Vice President and Chief Financial October 11, 1999
- --------------------------------------- Officer (Principal Financial Officer)
Jill S. Manning
Director
_______________________________________
Bruce W. Brown
/s/ James P. Gauer Director October 11, 1999
- ---------------------------------------
James P. Gauer
_______________________________________ Director
Robert A. Hoff
/s/ William L. Martin III Director October 11, 1999
- ---------------------------------------
William L. Martin III
/s/ Thomas H. Peterson Director October 11, 1999
- ---------------------------------------
Thomas H. Peterson
/s/ Anthony T. Maher Director October 11, 1999
- ---------------------------------------
Anthony T. Maher
/s/ Robert Hawk Director October 11, 1999
- ---------------------------------------
Robert Hawk
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Document
- ------------- --------------------------------------------------------------
4.1(1) 1999 Stock Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
- -------------------------------------------------------------------------------
(1) Incorporated by Reference to Exhibit 10.2 of Efficient Networks, Inc.'s
Registration Statement of Form S-1 (Registration No. 333-77795) filed on
July 14, 1999, as amended.
<PAGE>
Exhibit 5.1
Wilson Sonsini Goodrich & Rosati
Palo Alto, California
October 12, 1999
Efficient Networks, Inc.
4201 Spring Valley Road, Suite 1200
Dallas, TX 75244-3666
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about October 12, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 3,500,000 shares of your Common Stock
reserved for issuance under the 1999 Stock Plan (the "1999 Plan"). As your legal
counsel, 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 such Common Stock under the 1999 Plan.
It is our opinion that, when issued and sold in the respective manners
referred to in the Plan and pursuant to the agreements which accompany the Plan,
the Common Stock issued and sold thereby 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 any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati, P.C.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
KPMG LLP
October 12, 1999
