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As filed with the Securities and Exchange Commission on May 18, 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
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THE MANAGEMENT NETWORK GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 48-1129619
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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7300 COLLEGE BLVD., SUITE 302
OVERLAND PARK, KS 66210
(913) 345-9315
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1998 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
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RICHARD P. NESPOLA
PRESIDENT AND CHIEF EXECUTIVE OFFICER
THE MANAGEMENT NETWORK GROUP, INC.
7300 COLLEGE BLVD., SUITE 302
OVERLAND PARK, KS 66210
(913) 345-9315
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
CHRISTOPHER D. MITCHELL, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO MAXIMUM AMOUNT OFFERING AGGREGATE REGISTRATION
BE REGISTERED TO BE REGISTERED PRICE PER SHARE OFFERING PRICE FEE
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1998 Equity Incentive Plan
Common Stock, $0.001 par value
(currently outstanding options)(1) 2,797,625 shares $ 5.81 $16,254,201.25 $ 4,291.11
1998 Equity Incentive Plan
Common Stock, $0.001 par value
(options available for future grant)(2) 523,243 shares $25.15625 $13,162,831.72 $ 3,474.99
Total 1998 Equity Incentive Plan shares
registered 3,320,868 shares $29,417,032.97 $ 7,766.10
1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value(3) 213,708 shares $21.3828125 $ 4,569,678.09 $ 1,206.40
TOTAL REGISTRATION FEES $ 8,972.50
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(1) The computation is based upon the weighted average exercise price per share
of $5.81 as to 2,797,625 outstanding but unexercised options to purchase
Common Stock under the 1998 Equity Incentive Plan (the "Currently
Outstanding Options").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 523,243 shares of Common Stock authorized for issuance pursuant
to the 1998 Equity Incentive Plan, solely for the purpose of calculating
the registration fee. No options have been granted with respect to such
shares. The computation is based upon the average of the high and low price
of the Common Stock as reported on the Nasdaq National Market on May 15,
2000 because the price at which the options to be granted in the future may
be exercised is not currently determinable.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
May 15, 2000 because the price at which the options to be granted in the
future may be exercised is not currently determinable. Pursuant to the
Employee Stock Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
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THE MANAGEMENT NETWORK GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed by The Management
Network Group, Inc. (the "Registrant") with the Securities and Exchange
Commission:
(1) The Registrant's Annual Report on Form 10-K for the year ended January
1, 2000 filed pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on March 30, 2000.
(2) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to Section 12(g)
of the Exchange Act and as declared effective on October 13, 1999.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
April 1, 2000 filed pursuant to Section 13 of the Exchange Act on May 15, 2000.
(4) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act on or after the date of this
Registration Statement and 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 in this Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Mario M. Rosati and Christopher D. Mitchell, members of Wilson Sonsini
Goodrich & Rosati, Professional Corporation, are Director and Secretary of the
Registrant respectively. Wilson Sonsini Goodrich & Rosati is corporate counsel
to the Registrant. In addition Mario M. Rosati beneficially owns 37,500 share of
the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any
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criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful." With respect to derivative actions, Section 145(b) of the DGCL
provides in relevant part that "[a] corporation shall have power to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor... [by reason of his service
in one of the capacities specified in the preceding sentence] against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper."
The Registrant's Restated Certificate of Incorporation provides that to the
fullest extent permitted by the DGCL, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Restated Certificate of
Incorporation also provides that no amendment or repeal of such provision shall
apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal whether asserted
before or after such amendment or repeal.
The Registrant's Bylaws provide that the Registrant shall indemnify to the
fullest extent authorized by law each of its directors, officers, employees and
other agents against expenses actually and reasonably incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
agent of the corporation.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to the indemnification provided
for in the Registrant's Bylaws, and intends to enter into indemnification
agreements with any new directors or executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Exhibit Index below).
ITEM 9. UNDERTAKINGS.
A. The 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 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.
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(2) 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 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 an initial bona fide offering thereof.
C. 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 Corporation Law, the Registrant's Restated
Certificate of Incorporation, the Registrant's Bylaws or the Registrant's
indemnification agreements, the Registrant has been informed 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 a successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the question has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of 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 Overland Park, State of Kansas, on this 18th day of
May, 2000.
The Management Network Group, Inc.
By: /s/ Richard P. Nespola
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Richard P. Nespola
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard P. Nespola and Donald E. Klumb,
jointly and severally, as his or her attorneys-in-fact, with full power of
substitution in each, for him or her in any and all capacities to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his 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 has been signed below by the following persons in
the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ Richard P. Nespola Chairman and Chief Executive Officer May 18, 2000
- -------------------------- (Principal Executive Officer)
Richard P. Nespola
/s/ Donald E. Klumb Vice President and Chief Financial May 18, 2000
- -------------------------- Officer (Principal Financial and
Donald E. Klumb Accounting Officer)
/s/ Grant G. Behrman Director May 18, 2000
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Grant G. Behrman
/s/ Micky K. Woo Director May 18, 2000
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Micky K. Woo
/s/ William M Matthes Director May 18, 2000
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William M. Matthes
/s/ Mario M. Rosati Director May 18, 2000
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Mario M. Rosati
/s/ Dennis G. Sisco Director May 18, 2000
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Dennis G. Sisco
/s/ Roy A. Wilkens Director May 18, 2000
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Roy A. Wilkens
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS
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Registration Statement on Form S-8
THE MANAGEMENT NETWORK GROUP, INC.
May 18, 2000
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INDEX TO EXHIBITS
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EXHIBIT NUMBER DESCRIPTION
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4.1* 1998 Equity Incentive Plan
4.2* 1999 Employee Stock Purchase Plan
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Deloitte & Touche L.L.P., Independent Auditors
24.1 Power of Attorney (see page II-4).
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* Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 333-87383), effective November 23, 1999.
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EXHIBIT 5.1
May 18, 2000
The Management Network Group, Inc.
7300 College Blvd., Suite 302
Overland Park, KS 66210
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 May 18, 2000 (the "Registration
Statement"), in connection with the registration under the Securities Act of
1933, as amended, of the 1998 Equity Incentive Plan (as to 3,320,868 shares) and
of the 1999 Employee Stock Purchase Plan (as to 213,708 shares) (collectively ,
the "Plans" and the "Shares" as appropriate). As your counsel in connection with
this transaction, we have examined the proceedings taken and are familiar with
the proceedings proposed to be taken by you in connection with the issuance and
sale of the Shares pursuant to the Plans.
It is our opinion that, when issued and sold in the manner described in the
Plans and pursuant to the agreements which accompany each grant under the Plans,
the Shares 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 and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
/s/ Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Management Network Group, Inc. on Form S-8 of our report dated February 15,
2000, appearing in the Annual Report on Form 10-K of The Management Network
Group, Inc. for the fiscal year ended January 1, 2000.
/s/ DELOITTE & TOUCHE LLP
Kansas City, Missouri
May 12, 2000
