AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 22, 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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INRANGE TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-0962862
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
13000 MIDLANTIC DRIVE
MT. LAUREL, NEW JERSEY 08054
(Address of registrant's principal executive offices)
INRANGE TECHNOLOGIES CORPORATION 2000 STOCK COMPENSATION PLAN
INRANGE TECHNOLOGIES CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
GREGORY R. GRODHAUS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INRANGE TECHNOLOGIES CORPORATION
13000 MIDLANTIC DRIVE
MT. LAUREL, NEW JERSEY 08054
(856) 234-7900
(Name, address, and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Class B common stock, par value $0.01 per
share (the "Common Stock") 10,254,000 shares $16.00 (2) $164,064,000 $43,313
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Common Stock 1,331,000 shares $13.00 (3) $17,303,000 $4,568
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Total 11,585,000 shares -- -- $47,881
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<FN>
(1) Includes an indeterminate number of shares of Common Stock that may be
issued in the event of stock splits, stock dividends or similar
transactions in accordance with Rule 416 of the Securities Act of
1933, as amended (the "Securities Act"). This Registration Statement
registers the following number of shares of Common Stock that may be
issued under each of the following plans: 11,530,000 pursuant to the
Inrange Technologies Corporation 2000 Stock Compensation Plan and
55,000 pursuant to the Inrange Technologies Corporation Employee Stock
Purchase Plan.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act using the
initial public offering price.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act.
</FN>
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PART I
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to 55,000 shares of our
Common Stock which may be issued under our Employee Stock Purchase Plan
(the "ESPP") and 11,530,000 shares of our Common Stock which may be issued
under our 2000 Stock Compensation Plan.
The documents containing information specified by Part I of this
Registration Statement will be delivered to participants in the ESPP and
recipients of awards under the 2000 Stock Compensation Plan as specified in
Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
"SEC") under the Securities Act. These documents are not required to be
filed with the SEC but constitute (along with the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
References to the "Company" and the "Registrant" shall mean Inrange
Technologies Corporation, a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms in Washington, DC, New York, NY and
Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. Reports, proxy and
information statements and other information concerning us can also be
inspected at the offices of the Nasdaq Stock Market's National Market, 33
Whitehall Street, New York, NY 10004.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents and any future filings
made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
termination of the offering:
(a) Our prospectus filed with the SEC on September 22, 2000 pursuant
to Rule 424(b) of the Securities Act in connection with the Form
S-1, which includes our audited financial statements for the
fiscal year ended December 31, 1999 and describes the terms of
the Common Stock.
(b) Our Registration Statement on Form 8-A filed with the SEC on
September 13, 2000, which describes the terms of the Common
Stock.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Fried, Frank, Harris, Shriver & Jacobson (a partnership including
professional corporations), New York, New York, will pass upon the validity
of the issuance of the shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
specified actions, suits and proceedings, whether civil, criminal,
administrative, or investigative (other than an action by or in the right
of the corporation - a "derivative action"), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of
such action, and the statute requires court approval before there can be
any indemnification where the person seeking indemnification has been found
liable to the corporation. The statute provides that it is not exclusive of
other indemnification that may be granted by a corporation's certificate of
incorporation, bylaws, disinterested director vote, stockholder vote,
agreement, or otherwise.
Our bylaws and our certificates of incorporation require us to
indemnify to the fullest extent authorized by the DGCL any person made or
threatened to be made a party to an action, suit or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact
that he or she is or was a director or officer of the Company, or is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or
other enterprise.
As permitted by Section 102(b)(7) of the DGCL, our certificate of
incorporation eliminates the liability of a director to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liabilities arising (a) from any breach of the
director's duty of loyalty to the corporation or its stockholders; (b) from
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (c) under section 174 of the DGCL; or (d)
from any transaction from which the director derived an improper personal
benefit.
We intend to obtain primary and excess insurance policies insuring our
directors and officers and those of our subsidiaries against certain
liabilities they may incur in their capacity as directors and officers.
Under these policies, the insurer, on our behalf, may also pay amounts for
which we have granted indemnification to the directors or officers.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 to our Registration Statement No. 333-38592 on Form S-1, which
provides for indemnification by us of our underwriters and persons who
control them under certain circumstances, and by our underwriters of us and
persons who control us under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Amended and Restated Certificate of Incorporation of
the Company, previously filed as Exhibit 3.3 to the
Company's Registration Statement No. 333-38592 on Form
S-1, and incorporated herein by reference
4.2 Amended and Restated By-Laws of the Company, previously
filed as Exhibit 3.2 to the Company's Registration
Statement No. 333-38592 on Form S-1, and incorporated
herein by reference
4.3* Inrange Technologies Corporation Employee Stock
Purchase Plan
4.4 Inrange Technologies Corporation 2000 Stock
Compensation Plan, previously filed as Exhibit 10.8 to
the Company's Registration Statement No. 333-38592 on
Form S-1, and incorporated herein by reference
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2* Consent of Arthur Andersen LLP (independent public
accountants)
23.3* Consent of Arthur Andersen LLP (independent public
accountants)
23.4* Consent of Ernst & Young LLP (independent auditors)
24 Power of Attorney (included in the signature pages of
this Registration Statement)
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* Filed herewith.
ITEM 9. UNDERTAKINGS
The Company 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 this 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 this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (i) and (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 SEC by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(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
therein, 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described in Item 6 of
this Registration Statement, or otherwise, the Company has been advised
that in the opinion of the SEC 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by a director,
officer or controlling person of the Company in connection with the
securities being registered, the Company 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, 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 Mount Laurel, State of New
Jersey, on September 22, 2000.
INRANGE TECHNOLOGIES CORPORATION
/s/ Kenneth H. Koch
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By: Kenneth H. Koch
Vice President and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Inrange Technologies
Corporation, a Delaware corporation, do hereby constitute and appoint
Gregory R. Grodhaus, Jay Zager and Kenneth H. Koch, and each of them, the
lawful attorneys-in-fact and agents of each of them with full power and
authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine
may be necessary or advisable or required to enable said corporation to
comply with the Securities Act and any rules or regulations or requirements
of the SEC in connection with this Registration Statement. Without limiting
the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to (i) this
Registration Statement, (ii) any and all amendments and supplements to this
Registration Statement, (iii) any and all additional registration
statements pursuant to Instruction E to Form S-8 and (iv) any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement (and any amendments or supplements thereto). Each of
the undersigned hereby ratifies and confirms all that said attorneys and
agents, or any one of them, shall do or cause to be done by virtue hereof.
This Power of Attorney may be signed in several counterparts.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act, 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/ John B. Blystone Chairman of the Board September 22, 2000
---------------------------------
John B. Blystone
/s/ Gregory R. Grodhaus President and Chief Executive September 22, 2000
--------------------------------- Officer, Director (Principal
Gregory R. Grodhaus Executive Officer)
/s/ Jay Zager Vice President, Chief Financial September 22, 2000
--------------------------------- Officer and Treasurer (Principal
Jay Zager Financial and Accounting Officer)
/s/ Robert B. Foreman Director September 22, 2000
---------------------------------
Robert B. Foreman
/s/ Christopher J. Kearney Director September 22, 2000
---------------------------------
Christopher J. Kearney
/s/ Lewis M. Kling Director September 22, 2000
---------------------------------
Lewis M. Kling
/s/ Patrick J. O'Leary Director September 22, 2000
---------------------------------
Patrick J. O'Leary
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<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Amended and Restated Certificate of Incorporation of
the Company, previously filed as Exhibit 3.3 to the
Company's Registration Statement No. 333-38592 on Form
S-1, and incorporated herein by reference
4.2 Amended and Restated By-Laws of the Company, previously
filed as Exhibit 3.2 to the Company's Registration
Statement No. 333-38592 on Form S-1, and incorporated
herein by reference
4.3* Inrange Technologies Corporation Employee Stock
Purchase Plan
4.4 Inrange Technologies Corporation 2000 Stock
Compensation Plan, previously filed as Exhibit 10.8 to
the Company's Registration Statement No. 333-38592 on
Form S-1, and incorporated herein by reference
5.1* Opinion of Fried, Frank, Harris, Shriver & Jacobson
23.1 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.2* Consent of Arthur Andersen LLP (independent public
accountants)
23.3* Consent of Arthur Andersen LLP (independent public
accountants)
23.4* Consent of Ernst & Young LLP (independent auditors)
24 Power of Attorney (included in the signature pages of
this Registration Statement)
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* Filed herewith.
