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As filed with the Securities and Exchange Commission on November 5, 1999
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Registration No. 333-
=====================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
Alteon WebSystems, Inc.
(Exact name of registrant as specified in its charter)
________________
Delaware 50 Great Oaks Boulevard 77-0429769
(State of Incorporation) San Jose, California 95119 (I.R.S. Employer
(408) 360-5500 Identification No.)
(Address of principal
executive offices)
________________
1999 Employee Stock Purchase Plan
1999 Equity Incentive Plan
_________________________
Dominic P. Orr
Chairman of the Board, Chief
Executive Officer and President
Alteon WebSystems, Inc.
50 Great Oaks Boulevard
San Jose, California 95119
(408) 360-5500
_________________________
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
________________
Copies to:
Eric C. Jensen, Esq.
Cooley Godward, LLP
5 Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
(650) 843-5000
________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Share Aggregate Offering Price
Registered Registered (1) (1) Amount of Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common
Stock (par value $.001) 11,038,695 $0.0533 - $71.21875 $409,627,051.98 $113,876.32
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The offering price per share and
aggregate offering price are based upon (a) with respect to the shares
subject to outstanding options granted under the Company's 1999 Equity
Incentive Plan, the weighted average exercise price for such outstanding
options (pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Act")) or (b) for shares available for future grant under the
Company's 1999 Equity Incentive Plan and the 1999 Employee Stock Purchase
Plan, the average of the high and low prices of the Company's Common stock
on October 29, 1999 as reported on the NASDAQ National Market (pursuant to
Rule 457(c) under the Act). The following chart illustrates the calculation
of the registration fee:
- --------------------------------------------------------------------------------
Offering Price Aggregate
Securities Number of Shares Per Share Offering Price
- --------------------------------------------------------------------------------
Shares issuable under the
1999 Equity Incentive Plan 5,880,874 $ 7.19170 $ 42,293,507.64
- --------------------------------------------------------------------------------
Shares reserved for future
issuance under the 1999
Equity Incentive Plan 3,657,821 $71.21875 $260,505,439.34
- --------------------------------------------------------------------------------
Shares reserved for future
issuance under the 1999
Employee Stock Purchase
Plan 1,500,000 $71.21875 $106,828,105.00
- --------------------------------------------------------------------------------
================================================================================
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PART II
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Alteon WebSystems, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated by reference into
this Registration Statement:
(a) The Company's latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"), that contains audited financial
statements for the Company's latest fiscal year for which such statements have
been filed.
(b) The description of the Company's Common Stock that is contained in the
Registration Statement on Form 8-A filed on September 3, 1999, under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All reports and other documents subsequently filed by the Company
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
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock offered hereby will be passed upon for
the Company by Cooley Godward LLP, Palo Alto, California. As of the date of this
Registration Statement, certain partners and associates of Cooley Godward LLP
own an aggregate of 87,916 shares of the Company's Common Stock of which 70,800
shares are owned through investment partnerships.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Delaware law, the Company's amended and restated
certificate of incorporation ("Restated Certificate") provides that its
directors will not be personally liable to the Company or its stockholders for
monetary damages for breach of their fiduciary duty as a director, except for
liability:
. for any breach of their duty of loyalty to the Company or its
stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under Section 174 of the Delaware General Corporation Law; or
. for any transaction from which the director derived an improper
personal benefit.
The Company's Restated Certificate further provides that the Company
must indemnify its directors and executive officers and may indemnify its other
officers and employees and agents to the fullest extent permitted by Delaware
law.
In addition, the Company's amended and restated bylaws provide that:
1
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. the Company is required to indemnify its directors and officers to
the fullest extent permitted by Delaware law, subject to limited
exceptions;
. the Company may indemnify other employees and agents to the extent
that it indemnifies its officers and directors, unless otherwise
required by law, the Company's Restated Certificate or agreements;
. the Company is required to advance expenses to its directors and
executive officers as incurred in connection with legal proceedings
against them for which they may be indemnified; and
. the rights conferred in the bylaws are not exclusive.
The Company has entered into indemnification agreements with each of
its directors and some of its officers. These agreement, among other things,
require the Company to indemnify each director and officer for expenses such as
attorney's fees, judgments, fines and settlement amounts incurred by any such
person in any action or proceeding, including any action by or in the right of
the Company, arising out of the person's services as the Company's director or
officer, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the Company's request.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
Exhibit
Number
4.1* Amended and Restated Certificate of Incorporation.
4.2* Bylaws of the Company.
4.3* Specimen Stock Certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1999 Equity Incentive Plan and related documents.
99.2* 1999 Employee Stock Purchase Plan.
___________________________
* Incorporated by reference from the Company's Registration Statement on Form
S-1, as amended (No. 333-82605).
2
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UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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;
(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% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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 herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as 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 Securities and
Exchange 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 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 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, 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 San Jose, State of California, on November 5, 1999.
ALTEON WEBSYSTEMS, INC.
By /s/ Dominic P. Orr
----------------------------------------
Dominic P. Orr
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dominic P. Orr and James G. Burke and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
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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.
Signature Title Date
/s/ Dominic P. Orr Chairman of the Board, Chief November 5, 1999
- ------------------------- Executive Officer and President
Dominic P. Orr (Principal Executive Officer)
/s/ James G. Burke Chief Financial Officer and November 5, 1999
- ------------------------- Secretary (Principal Financial
James G. Burke and Accounting Officer)
/s/ Joe T. Booker Vice President of Operations November 5, 1999
- ------------------------- and Director
Joe T. Booker
/s/ Tench Coxe Director November 5, 1999
- -------------------------
Tench Coxe
/s/ Andrew W. Verhalen Director November 5, 1999
- -------------------------
Andrew W. Verhalen
/s/ Adam Grosser Director November 5, 1999
- -------------------------
Adam Grosser
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EXHIBIT INDEX
Exhibit
Number Description
4.1* Amended and Restated Certificate of Incorporation.
4.2* Bylaws of the Company.
4.3* Specimen Stock Certificate.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1999 Equity Incentive Plan.
99.2* 1999 Employee Stock Purchase Plan.
____________________________
* Incorporated by reference from the Company's Registration Statement on
Form S-1, as amended (No. 333-82605).
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Exhibit 5.1
November 3, 1999
Alteon WebSystems, Inc.
50 Great Oaks Boulevard
San Jose, CA 95119
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Alteon WebSystems, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 11,968,811 shares of the
Company's Common Stock, $.001 par value, (the "Shares").
In connection with this opinion, we have examined the Registration Statement,
your Certificate of Incorporation and By-laws, as amended, and such other
documents, records, certificates, memoranda and other instruments as we deem
necessary as a basis for this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement, will be validly issued, fully paid, and nonassessable (except as to
shares issued pursuant to certain deferred payment arrangements, which will be
fully paid and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By:
/s/ Eric C. Jensen
--------------------------
Eric C. Jensen, Esq.
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Exhibit 23.1
CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement
of Alteon WebSystems, Inc. on Form S-8 of our reports dated July 16, 1999,
appearing in the Company's prospectus filed on September 24, 1999 pursuant to
Rule 424(b) under the Securities Act of 1933.
/s/ DELOITTE & TOUCHE LLP
November 5, 1999
San Jose, California
