SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act Of 1933
COYOTE NETWORK SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 36-2448698
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
4360 Park Terrace Drive, Westlake Village, California 91361
(Address of Principal Executive Offices) (ZIP Code)
-------------------------------------------
COYOTE TECHNOLOGIES, LLC
EMPLOYEES NONQUALIFIED STOCK OPTION PLAN
(Full Title of the Plan)
-------------------------------------------
James J. Fiedler
Chairman of the Board and Chief Executive Officer
COYOTE NETWORK SYSTEMS, INC.
4360 Park Terrace Drive, Westlake Village, CA 91361
(Name and Address of Agent for Service)
(818) 735-7600
(Telephone Number, Including Area Code, of Agent for Service)
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------- ---------- -------------- -------------- ----------------------
Proposed Proposed
Title of Amount Maximum Maximum
Securities to to be Offering Price Aggregate Amount of
be Registered Registered Per Share* Offering Price Registration Fee
- --------------- ---------- -------------- -------------- ---------------------
$1.00 par value 2,000,000 $5.81 $11,620,000 $3,428.00
Common Stock Shares
- --------------- ---------- -------------- -------------- ---------------------
* For the purpose of computing the registration fee, Coyote Network Systems,
Inc. (the "Registrant") has used $5.81 as the average of the bid and ask
prices of the Common Stock as reported on September 1, 1998 on the NASD OTC
Bulletin Board for the offering price per share, in accordance with Rule
457(h) under the Securities Act of 1933, as amended (the "Securities Act").
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or
given to Plan participants as specified by Rule 428(b)(1) under the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant hereby states that (i) the documents set forth in (a) and
(b) below are incorporated by reference in this Registration Statement, and (ii)
all documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby 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 a part hereof from the date
of filing of such documents.
(a) The Registrant's annual report on Form 10-K for the fiscal year ended March
31, 1998.
(b) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A dated February 26, 1997, and any
amendment or report filed for the purpose of updating such description.
(c) The Registrant's quarterly report on Form 10-Q for the quarterly period
ended June 30, 1998.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein 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 hereof.
Item 4. Description of Securities
Not applicable. See Item 3 above.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
Consistent with section 145 of the Delaware General Corporation Law
("Delaware Law"), Article IX of the Registrant's By-Laws provides that the
Registrant shall indemnify any person in connection with legal proceedings
threatened or brought against him by reason of his present or past status as an
officer or director of the Registrant or present or past status as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise if he is serving in such capacity at the request of
the Registrant, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person,
provided that the person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The Registrant shall also indemnify any such
person in connection with any action by or in the right of the Registrant
provided the person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Registrant; except in such
cases as involve gross negligence or willful misconduct in the performance of
his duties. In addition, to the extent that any officer or director is
successful in the defense of any such legal proceeding, the Registrant is
required to indemnify him against expenses, including attorneys' fees, that are
actually and reasonably incurred by him in connection therewith. The By-Laws
also contain a nonexclusivity clause which provides in substance that the
indemnification rights under the By-Laws shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
agreement with the Registrant, any By-Law, any vote of stockholders or
disinterested directors of the Registrant or otherwise.
Consistent with section 102(b) of the Delaware Law, Article IX of the
Registrant's Certificate of Incorporation provides that a director of the
Registrant shall not be liable to the Registrant or its stockholders for damages
for breach of fiduciary duties as director, subject to certain limitations.
Article IX does not eliminate or limit the liability of a director for (a) any
breach of the director's duty of loyalty to the Registrant or its stockholders;
(b) any acts or omissions not in good faith or which involved intentional
misconduct or a knowing violation of law; (c) any conduct that is the subject of
section 174 of the Delaware Law; or (d) any transaction from which the director
derived an improper personal benefit.
The Registrant maintains D&O insurance for its directors and officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Exhibit Index following the signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
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Item 9. Undertakings
(a) The undersigned 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:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) 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, represents a fundamental change in the information set
forth in the Registration Statement; and
(iii)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)(l)(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
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 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, 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 therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Reference is made to the indemnification provisions referred to in Item 6
of this Registration Statement.
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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 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, 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 Village of Westlake, State of California on September 4,
1998.
COYOTE NETWORK SYSTEMS, INC.
By: /s/ James J. Fiedler
----------------------------
James J. Fiedler
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James J. Fiedler and Edward A. Beeman, and each
of them, as true and lawful attorney-in fact and agent, with full power of
substitution and resubstitution for him and 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 onto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary to be done in and about the premises, as to fully to all intents and
purposes as he might or could do, in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute may lawfully do or cause
to be done by virtue hereof.
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/ James J. Fiedler Chairman of the Board and September 4, 1998
- ------------------------ Chief Executive Officer
James J. Fiedler (Principal Executive Officer)
/s/ Edward A. Beeman Executive Vice President, September 4, 1998
- ------------------------ Chief Financial Officer and Secretary
Edward A. Beeman (Principal Financial and Accounting Officer)
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/s/ Jack E. Donnelly Director September 4, 1998
- ------------------------
Jack E. Donnelly
/s/ Daniel W. Latham Director, President and September 4, 1998
- ------------------------ Chief Operating Officer
Daniel W. Latham
/s/ Sydney B. Lilly Director September 4, 1998
- ------------------------
Sydney B. Lilly
/s/ Stephen W. Portner Director September 4, 1998
- ------------------------
Stephen W. Portner
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COYOTE NETWORK SYSTEMS, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
Incorporated
Exhibit Herein by Filed
Number Description Reference to Herewith
4.1 Restated Certificate of X
Incorporation of the Registrant
4.2 By-Laws of the Registrant 1
5 Opinion of Counsel X
23.1 Consent of Arthur Andersen LLP, X
Independent Public Accountants
23.2 Consent of Counsel Contained in
Opinion filed as
Exhibit 5
23.3 Consent of X
PricewaterhouseCoopers
LLP, Independent Accountants
24 Powers of Attorney Signatures Page
to Registration
Statement
- ---------------------
1 Incorporated herein by reference to Exhibit 3.2 of the Registrant's Form
10-K for the year ended March 31, 1997.
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RESTATED
CERTIFICATE OF INCORPORATION
OF
COYOTE NETWORK SYSTEMS, INC.
The corporation was originally incorporated under the name Roy Minor
Corporation and its original certificate of incorporation was filed with the
Secretary of State of Delaware on January 25, 1961.
This Restated Certificate of Incorporation has been duly adopted by the
board of directors of the corporation in accordance with Section 245 of the
General Corporation Law of the State of Delaware to restate and integrate but
not further amend the certificate of incorporation of the corporation as
heretofore amended. Upon the filing of this Restated Certificate of
Incorporation with the Secretary of State, the corporation's original
certificate of incorporation, as theretofore amended or supplemented, shall be
superseded; and thenceforth, this Restated Certificate of Incorporation shall be
the certificate of incorporation of the corporation.
ARTICLE I
The name of the corporation (hereinafter referred to as the
"Corporation") is COYOTE NETWORK SYSTEMS, INC.
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of this Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
The total number of shares of stock of all classes which the
corporation shall have authority to issue is 35,000,000, of which 5,000,000
shares shall be shares of Preferred Stock, $.01 par value per share, and
30,000,000 shares shall be shares of Common Stock, $1.00 par value per share.
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The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the shares of each class of stock
of the Corporation are as follows:
1. The Board of Directors is expressly authorized to provide for the issue of
all or any shares of the Preferred Stock, in one or more series, and to fix
for each such series such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Board of Directors providing for the issue of
such series and as may be permitted by the General Corporation Law of the
State of Delaware, including, without limitation, the authority to provide
that any such series may be (i) subject to redemption at such time or times
and at such price or prices; (ii) entitled to receive dividends (which may
be cumulative or noncumulative) at such rates, on such conditions, and at
such times and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or any other series; (iii)
entitled to such rights upon the dissolution of, or upon any distribution
of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any
other series of the same or any other class or classes of stock, of the
Corporation at such price or prices or at such rates of exchange and with
such adjustments; all as may be stated in such resolution or resolutions.
2. All shares of the Common Stock of the Corporation shall be identical and,
except as otherwise required by law or as otherwise provided in the
resolution or resolutions, if any, adopted by the Board of Directors with
respect to any series of Preferred Stock, the holders of the Common Stock
shall exclusively possess all voting power, and each share of Common Stock
shall have one vote.
ARTICLE V
The term of existence of the Corporation shall be perpetual.
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ARTICLE VI
The stockholders may hold their meetings, annual or special, within or
without the State of Delaware as may be provided in the By-Laws, and the Board
of Directors or any Committee thereof may hold all or any of their meetings
within or without the State of Delaware at such places as the By-Laws or the
Board of Directors may designate. The Corporation may have one or more offices
and keep any of the books of the Corporation subject to the provisions of the
laws of the State of Delaware within or without the State of Delaware at such
places as may from time to time be designated by the Board of Directors.
Elections of directors need not be by written ballot unless the By-Laws of the
Corporation shall so provide.
ARTICLE VII
The Corporation shall possess and may exercise all the powers and
privileges granted by the General Corporation Law or by any other law of the
State of Delaware at the time in force or by this Restated Certificate of
Incorporation, together with any powers incidental thereto, so far as such
powers and such privileges are necessary or convenient to the conduct, promotion
or attainment of the purpose set forth in Article III of this Restated
Certificate of Incorporation.
ARTICLE VIII
In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the Board of Directors may exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the express provisions of the laws of the
State of Delaware, of this Restated Certificate of Incorporation, and of the
By-Laws of the Corporation.
ARTICLE IX
The Corporation shall, to the full extent permitted by the General
Corporation Law of the State of Delaware, indemnify all persons whom this
Corporation may indemnify pursuant thereto.
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
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Law, or (iv) for any transaction from which the director derived and improper
personal benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this provision to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE X
All transactions between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be valid to the full extent permitted by the General Corporation Law of
the State of Delaware.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Restated Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights and powers
conferred herein on stockholders, directors and officers are subject to this
reservation.
ARTICLE XII
The Board of Directors shall be divided into 3 classes; the term of
office of the directors of the 1st class to expire at the annual meeting of
shareholders to be held in 1988; that of the 2nd class to expire at the annual
meeting of shareholders to be held in 1989; and that of the 3rd class to expire
at the annual meeting of shareholders to be held in 1990. At each annual meeting
starting in 1988 the number of directors equal to the number of the class whose
term expires at the time of such meeting shall be elected to hold office until
the 3rd succeeding annual meeting. The number of directors of the corporation
shall be six. This number of directors may be changed only by the affirmative
vote of (i) the holders of at least 75% of the shares of the corporation
entitled to vote on such change, or (ii) a majority of the directors in office
at the time of the vote. When the number of directors is changed, any increase
or decrease in directorships shall be apportioned among the classes so as to
make all classes as nearly equal in number as possible.
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A director may be removed from office only for cause, and only by
affirmative vote of a majority of the shares entitled to vote for the election
of such director, taken at a meeting of shareholders called for that purpose.
Except as may otherwise be provided by law, cause for removal shall be construed
to exist only if the director whose removal is proposed has been convicted of a
felony by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal or has been adjudged by a court of competent
jurisdiction to be liable for negligence or misconduct in the performance of his
duty to the corporation in a matter of substantial importance to the
corporation, and such adjudication is no longer subject to direct appeal.
All nominations for election to the Board of Directors, including any
nomination to fill a vacancy (whether created by an increase in the number of
directors, a resignation of a Director or the removal of a Director, or
otherwise), other than those made by the remaining directors then in office,
must be made at a meeting of shareholders called for the election of directors.
Special meetings of the shareholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called only by the Chairman of
the Board or the Secretary, or the Board of Directors.
This Article XII may be altered, amended or repealed only by the
affirmative vote of not less than seventy-five percent (75%) of the shares
present or represented at an annual or special meeting of the stockholders at
which a quorum is in attendance.
IN WITNESS WHEREOF, COYOTE NETWORK SYSTEMS, INC. has caused this Restated
Certificate of Incorporation to be signed by its Chairman and Chief Executive
Officer and attested by its Secretary, this 4th day of September, 1998.
COYOTE NETWORK SYSTEMS, INC.
BY: /s/ James J. Fiedler
---------------------------
James J. Fiedler,
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Edward A. Beeman
- ---------------------------
Edward A. Beeman, Secretary
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EXHIBIT 5
September 4, 1998
Coyote Network Systems, Inc.
4360 Park Terrace Drive
Westlake Village, California 91361
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration
Statement of Coyote Network Systems, Inc., a Delaware corporation (the
"Company"), on Form S-8 (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), with respect to the proposed
issuance by the Company of up to 2,000,000 shares of Company common stock, $1.00
per value per share (the "Shares"), pursuant to the provisions of Coyote
Technologies, LLC Nonqualified Employees Stock Option Plan (the "Plan").
We have examined (i) the Registration Statement, (ii) the Company's
Restated Certificate of Incorporation and By-Laws, (iii) the Plan, (iv) the
corporate proceedings related to the adoption of the Plan, the issuance of the
options under the Plan and the organization of the Company, and (v) such other
documents and records as we have deemed necessary in order to render this
opinion. In rendering this opinion, we have relied as to certain factual matters
on certificates of officers of the Company and of state officials.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation existing in good standing under the
laws of the State of Delaware.
2. The Shares, when issued as and for the consideration contemplated by
the Registration Statement and the Plan will be validly issued, fully paid and
non-assessable by the Company.
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We consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
"experts" within the meaning of section 11 of the Act, or that we come within
the category of persons whose consent is required by section 7 of the Act.
Yours very truly,
REINHART, BOERNER, VAN DEUREN,
NORRIS & RIESELBACH, P.C.
BY /s/ Timothy G. Atkinson
Timothy G. Atkinson
EXHIBIT 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated July 13, 1998,
included (or incorporated by reference) in the Coyote Network Systems, Inc. Form
10-K for the year ended March 31,1998, and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
- -------------------------
ARTHUR ANDERSEN LLP
Los Angeles, California
August 28, 1998
EXHIBIT 23.3
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 22, 1997, which appears in
Coyote Network Systems, Inc.'s Annual Report on Form 10-K for the year ended
March 31, 1998. We also consent to the application of such report to the
Financial Statement Schedule listed under Item 14(a) of Coyote Network Systems,
Inc.'s Annual Report on Form 10-K when such schedule is read in conjunction with
the financial statements referred to in our report. The audits referred to in
such report also included the Financial Statement Schedule.
/s/ PricewaterhouseCoopers LLP
- ---------------------------------
PRICEWATERHOUSECOOPERS LLP
Los Angeles, California
September 2, 1998
