<PAGE>
As filed with the Securities and Exchange Commission on April 19, 2000.
Registration No. 333-_______
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
NETPLIANCE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 74-2902814
-------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
7600A North Capital of Texas Highway
Austin, Texas 78731
(512) 493-8300
(Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Principal Executive Offices)
AMENDED AND RESTATED 1999 STOCK OPTION
AND RESTRICTED STOCK PLAN
AND
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
James E. Cahill Copy to:
Vice President and General Counsel J. William Wilson
Netpliance, Inc. Hughes & Luce, L.L.P.
7600A North Capital of Texas Highway 111 Congress Avenue, Suite 900
Austin, Texas 78731 Austin, Texas 78701
(512) 493-8300 (512) 482-6821
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Price Aggregate Registration
to be Registered Registered/1/ per Share/2,3/ Offering Price/2,3/ Fee/2,3/
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock,
$0.01 par value per
share 11,100,000 $8.46875 $54,391,469 $14,360
====================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement is deemed to include additional shares of Common
Stock issuable under the terms of the Amended and Restated 1999 Stock Option
and Restricted Stock Plan (the "Option Plan") and the 2000 Employee Stock
Purchase Plan (the "ESPP" and together with the Option Plan, the "Plans")
pursuant to the antidilution provisions of the Plans.
<PAGE>
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h) of the Securities Act.
Accordingly, the price per share of the Common Stock offered hereunder
pursuant to the Plans is based upon (i) 2,486,430 shares of Common Stock
originally reserved for issuance under the Plans that are not currently
subject to outstanding Stock Options or issued as Restricted Stock, at a
price per share of $8.46875 which is based upon the average of the high and
low prices reported for the Common Stock on the Nasdaq National Market
System on April 17, 2000; and (ii) 8,613,570 shares of Common Stock reserved
for issuance under the Plans subject to Stock Options already granted
thereunder at a weighted average exercise price of $3.87 per share.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents, which have been previously filed with the
Securities and Exchange Commission (the "Commission") by Netpliance, Inc. (the
"Registrant") are incorporated by reference in this Registration Statement:
(a) The Registrant's Prospectus dated March 17, 2000, filed pursuant
to Rule 424(b)(4) in connection with the Registration Statement on Form S-1,
dated December 23, 1999, as amended (Commission File Number 333-93545).
(b) All reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1999.
(c) The description of the Registrant's Common Stock set forth in the
Registrant's Registration Statement on Form 8-A, dated February 29, 2000
(Commission File Number 001-15715), including any amendment or report filed for
the purpose of updating 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 of the shares of Common Stock offered have been sold or which deregisters
all of such shares then 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 (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
As permitted by the Delaware General Corporation Law ("DGCL"), the
Registrant's Bylaws provide that the directors and officers of the Registrant
will be indemnified by the Registrant against certain liabilities that those
persons may incur in their capacities as directors or officers. Furthermore, the
Registrant's Certificate of Incorporation eliminates the liability of directors
of the Registrant to the maximum extent permitted by the DGCL.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-7 of this Registration Statement, which Index is
incorporated herein by reference.
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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (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;
(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)(1)(i) and (a)(1)(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(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 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.
II-2
<PAGE>
(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 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 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 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 by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, or otherwise, the Registrant has been advised that in the opinion of the
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 by the Registrant 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.
II-3
<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 Austin, Texas, on April 18, 2000.
NETPLIANCE, INC.
By: /s/ KENT A. SAVAGE
-------------------------------------
Kent A. Savage
President and Chief Executive Officer
By: /s/ BARBARA A. KACZYNSKI
-------------------------------------
Barbara A. Kaczynski
Chief Financial Officer
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:
POWER OF ATTORNEY
We, the undersigned officers and directors of Netpliance, Inc., hereby
severally constitute and appoint Kent A. Savage and Barbara A. Kaczynski, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
amendments (including post-effective amendments) to the Registration Statement,
and generally to do all things in our name and behalf in the capacities
indicated below to enable Netpliance, Inc. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements to the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our attorneys, or any of them, to said Registration Statement and
any and all amendments thereto.
Signature Title Date
--------- ----- ----
/s/ JOHN F. MCHALE Chairman of the Board April 18, 2000
- -------------------------
John F. McHale
/s/ KENT A. SAVAGE President, Chief Executive Officer April 18, 2000
- ------------------------- and Director
Kent A. Savage (Principal Executive Officer)
II-4
<PAGE>
/s/ BARBARA A. KACZYNSKI Chief Financial Officer April 18, 2000
- ------------------------- (Principal Financial Officer)
Barbara A. Kaczynski
/s/ M. DAVID HAMPTON Treasurer and Controller April 18, 2000
- ------------------------- (Principal Accounting Officer)
M. David Hampton
/s/ PAUL S. ZITO Director and Secretary April 18, 2000
- -------------------------
Paul S. Zito
/s/ MICHAEL R. CORBOY Director April 18, 2000
- -------------------------
Michael R. Corboy
/s/ DAVID S. LUNDEEN Director April 18, 2000
- -------------------------
David S. Lundeen
/s/ STEVEN G. PAPERMASTER Director April 18, 2000
- -------------------------
Steven G. Papermaster
/s/ JAMES M. MANSOUR Director April 18, 2000
- -------------------------
James M. Mansour
/s/ GRANT A. DOVE Director April 18, 2000
- -------------------------
Grant A. Dove
Director
- -------------------------
Kevin Denuccio
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Exhibit
- --------------------------------------------------------------------------------
4.1 Netpliance, Inc. Amended and Restated 1999 Stock Option and
Restricted Stock Plan (incorporated herein by reference to
Exhibit 10.5 to the Registrant's Registration Statement on
Form S-1, as amended, filed with the Commission on December
23, 1999, File No. 333-93545).
4.2 Netpliance, Inc. 2000 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.6 to the
Registrant's Registration Statement on Form S-1, as amended,
filed with the Commission on December 23, 1999, File No.
333-93545).
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Hughes & Luce, L.L.P.
(Contained in Exhibit 5.1)
23.2* Consent of KPMG LLP
24.1* Power of Attorney (Contained at page II-6)
- ---------------
*Filed herewith.
II-6
<PAGE>
EXHIBIT 5.1
Hughes & Luce, L.L.P.
111 Congress Avenue
Suite 900
Austin, Texas 78701
April 18, 2000
Netpliance, Inc.
7600A North Capital of Texas Highway
Austin, Texas 78731
Re: Registration Statement on Form S-8 for the Netpliance, Inc. Amended
and Restated 1999 Stock Option and Restricted Stock Plan (the "Stock
Option Plan") and the Netpliance, Inc. 2000 Employee Stock Purchase
Plan (the "ESPP")
Ladies and Gentlemen:
We have acted as counsel to Netpliance, Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, of 11,100,000 shares ("Shares") of the Company's common stock,
$0.01 par value per share, issuable pursuant to the Stock Option Plan and the
ESPP (together, the "Plans") as described in the Registration Statement of the
Company on Form S-8 (the "Registration Statement") filed with the Securities and
Exchange Commission.
In connection with this opinion, we have examined such documents and records
of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, we are of the opinion that the Shares will be, if and
when issued and paid for pursuant to the Stock Option Plan or the ESPP, as
appropriate, validly issued, fully paid and nonassessable, assuming the Company
maintains an adequate number of authorized but unissued shares of common stock
available for such issuance, and further assuming that the consideration
received by the Company for the Shares exceeds the par value thereof.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ HUGHES & LUCE, L.L.P.
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Netpliance, Inc.:
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated March 16, 2000 related to the financial statements
of Netpliance, Inc. as of December 31, 1999 and for the period from January 12,
1999 (inception) through December 31, 1999, which report is included in the
Netpliance, Inc. Registration Statement on Form S-1, dated March 17, 2000 (File
Number 333-93545).
KPMG LLP
Austin, Texas
April 18, 2000
