As filed with the Securities and Exchange Commission on August 24, 2000
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NETWORK EQUIPMENT TECHNOLOGIES, INC.
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(Exact name of Registrant, as specified in its charter)
DELAWARE 94-2904044
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(State of Incorporation) (IRS Employer Identification No.)
6530 Paseo Padre Parkway
Fremont, California 94555
(Address of principal executive offices)
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1998 EMPLOYEE STOCK PURCHASE PLAN
N.E.T. STOCK OPTION PROGRAM
(Full title of the plan)
-------------------------------
Mary Ann Moran, Esq.
General Counsel
NETWORK EQUIPMENT TECHNOLOGIES, INC.
6530 Paseo Padre Parkway
Fremont, California 94555
(510) 713-7300
(Name, address and telephone number of agent for service)
-------------------------------
Copies to:
Twila L. Foster, Esq.
Melinda L. Sesto, Esq.
CROSBY, HEAFEY, ROACH & MAY PROFESSIONAL CORPORATION
Two Embarcadero Center, Suite 2000
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED
TITLE OF MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE (2) OFFERING PRICE FEE
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Common Stock, par 4,450,657(1) $9.20 $40,946,044 $10,809.76
value $0.01 per
share
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<PAGE>
(1) Registering 950,657 shares for the 1998 Employee Stock Purchase Plan (the
"Stock Purchase Plan') and 3,500,000 shares for the N.E.T. Stock Option
Program (the "Stock Option Program").
(2) Estimated in accordance with Rule 457 (h) under the Securities Act of
1933, as amended (the "Securities Act") and, in part, pursuant to Rule
457(c) under the Securities Act solely for the purpose of calculating the
total registration fee. With respect to 25,319 shares subject to
outstanding options to purchase Common Stock under the Stock Option
Program, the Proposed Maximum Offering Price Per Share was estimated
pursuant to Rule 457(h), under which the per share price of options to
purchase stock under an employee stock option plan shall be estimated by
reference to the exercise price of such options. The weighted average
exercise price of the 25,319 shares subject to outstanding options under
the Stock Option Program is $10.31. With respect to 3,474,681 shares of
Common Stock available for future grant under the Stock Option Program,
Stock, the estimated Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(c) whereby the per share price was
determined by reference to the average between the high and low price
reported on the New York Stock Exchange on August 21, 2000, which average
was $9.50. With respect to the 950,657 shares of Common Stock available
for purchase under the Stock Purchase Plan, the calculation is based upon
85% of the average of the high and low prices reported of one share of
Common Stock of the Registrant, as reported on the New York Stock Exchange
on August 21, 2000. The price per share for the Stock Purchase Plan is 85%
of the Market Price. The number referenced in the table above under
"Proposed Maximum Offering Price Per Share" represents a weighted average
of the foregoing estimates calculated in accordance with Rules 457(h) and
457(c).
Pursuant to General Instruction E of the General Instructions to the Form S-8,
this Registration Statement incorporates by reference the Registrant's
Registration Statement on Form S-8 filed April 10, 1998 (No. 333-49837).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference the following documents and
information heretofore filed with the Securities and Exchange Commission (the
"Commission"):
1. Registration Statement on Form S-8 (No. 333-49837), as filed on
April 10, 1998;
2. The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 2000, including all material incorporated by reference
therein;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2000, as filed on August 14, 2000;
4. The description of the Registrants' Common Stock contained in its
registration statement filed with the Commission under the
Securities Exchange Act of 1934, as amended ("Exchange Act"),
including any amendment or reports filed for the purpose of updating
such description; and
5. 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 which indicates that all
securities offered have been sold or which de-registers 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. 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 of
this registration statement to the extent that a statement contained
herein, or in any other subsequently field document that also is or
is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such 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.
Item 6. Indemnification of Directors and Officers.
The Registrant has the power to indemnify its officers and directors
against liability for certain acts pursuant to Section 145 of the General
Corporation Law of the State of Delaware. Section 6 of Article VII of the
Registrant's By-Laws provides:
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"INDEMNIFICATION OF OFFICERS AND DIRECTORS
(a) Indemnification in Actions Other Than Those Brought by the
Corporation. The corporation shall indemnify and hold harmless, to
the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the
case of such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights
than such law permitted the corporation to provide prior to such
amendment), 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 or she is or was a director or officer of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or
proceeding. Except as provided in paragraph (d) of this Section 6,
the corporation shall be required to indemnify a person in
connection with a proceeding (or part thereof) initiated by such
person only if the proceeding (or part thereof) was authorized by
the Board of Directors of the corporation.
(b) Indemnification in Actions Brought By or on Behalf of the
Corporation. The corporation shall indemnify and hold harmless, to
the fullest extent permitted by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, 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
the fact that he or she is or was a director or officer of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection with the defense or settlement
of such action or suit.
(c) Expenses; Prepayment. The corporation shall pay the expenses
(including attorneys' fees) incurred by a director or officer who
has been successful on the merits or otherwise in defending any
action, suit or proceeding referenced in paragraphs (a) and (b) of
this Section 6 and shall pay such expenses in advance of the final
disposition of such matter upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled
to be indemnified under this Article or otherwise.
(d) Indemnification Procedure; Claims. Any indemnification under
paragraphs (a) and (b) of this Section 6 (unless ordered by a court)
shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or
officer is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in paragraphs (a) and (b).
If a claim for indemnification or payment of expenses under Section
6 of this
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Article is not paid in full within sixty days after a written claim
therefor has been received by the corporation, the claimant may file
suit to recover the unpaid amount of such claim and, if successful
in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim.
(e) Indemnification of Others. The Board of Directors, in its
discretion, shall have the power on behalf of the corporation to
indemnify any person, other than a director or officer, made a party
to any action, suit or proceeding by reason of the fact that he or
she, or his or her testator or intestate, is or was an employee or
agent of the corporation and to pay the expenses incurred by any
such person in defending such action, suit or proceeding in advance
of its final disposition.
(f) Non-exclusivity of Rights. The indemnification and advancement of
expenses provided by or granted pursuant to Section 6 of this
Article VII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of stockholders, or
disinterested directors or otherwise, both as to action in his or
her official capacity and as to action in another capacity while
holding such office.
(g) Other Indemnification. The corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity
shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
(h) Insurance. The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation against any liability asserted
against him or her and incurred by him or her in such capacity, or
arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against
such liability under the provisions of this Section 6.
(i) Successor Entities. For purposes of Section 6 of this Article VII,
references to "the corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, employees and
agents so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation shall
stand in the same position under the provisions of this Section 6 of
Article VII with respect to the resulting or surviving corporation
as he or she would have with respect to such constituent corporation
if its separate existence had continued.
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(j) Survival of Rights; Amendment or Repeal. The indemnification and
advancement of expenses provided by or granted pursuant to this
Article VII shall, unless otherwise provided when authorized or
ratified, continue as a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Any repeal or
modification of the foregoing provisions of Section 6 of this
Article VII shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
In addition, the Article IX of the Registrant's Restated Certificate of
Incorporation provides as follows:
"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 Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the Delaware
General Corporation Law is hereafter amended to authorize, with the
approval of a corporation's stockholders, further reductions in the
liability of the corporation's directors for breach of fiduciary duty,
then a director of the corporation shall not be liable for any such breach
to the fullest extent permitted by the Delaware General Corporation Law as
so amended. Any repeal or modification of the foregoing provisions of this
Article IX 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."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. 5.1 Opinion of Crosby, Heafey, Roach & May Professional
Corporation, as to the legality of securities being registered.
Exhibit No. 23.1 Independent Auditors' Consent.
Exhibit No. 23.2 Consent of Counsel (contained in Exhibit 5.1 above).
Exhibit No. 24.1 Power of Attorney (see page 10).
Exhibit No. 99.1 1998 Employee Stock Purchase Plan, as amended.
Exhibit No. 99.2 N.E.T. Stock Option Program, as amended.
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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:
(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.
(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 registration statement is on Form S-8 and 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 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 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 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
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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 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 Fremont, State of California, on August 21,
2000.
NETWORK EQUIPMENT TECHNOLOGIES, INC.
By: /s/ Hubert A.J. Whyte
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Hubert A.J. Whyte, President and
Chief Executive Officer and
Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hubert A.J. Whyte, John C. Batty and/or
Mary Ann Moran, his or her attorneys-in-fact, each with the power of
substitution, 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 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, alone or together, or his or her substitute or 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 on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Hubert A.J. Whyte President, Chief Executive
------------------------------ Officer and Director August 21, 2000
Hubert A.J. Whyte (Principal Executive
Officer)
/s/ John C. Batty Senior Vice President and
------------------------------ Chief Financial Officer August 21, 2000
/s/ John C. Batty (Principal Financial and
Accounting Officer)
/s/ Dixon R. Doll Director August 21, 2000
-----------------------------
Dixon R. Doll
/s/ James K. Dutton Director August 21, 2000
-----------------------------
James K. Dutton
/s/ Walter J. Gill Director August 21, 2000
-----------------------------
Walter J. Gill
/s/ George M. Scalise Director August 21, 2000
-----------------------------
George M. Scalise
/s/ Peter Sommerer Director August 21, 2000
-----------------------------
Peter Sommerer
/s/ Hans A. Wolf Director August 21, 2000
-----------------------------
Hans A. Wolf
</TABLE>
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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
NETWORK EQUIPMENT TECHNOLOGIES, INC.
<PAGE>
INDEX OF EXHIBITS
Sequentially
Exhibit No. Numbered Page
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5.1 Opinion of Crosby, Heafey, Roach & May,
Professional Corporation
23.1 Independent Auditors' Consent
23.2 Consent of Counsel (contained in Exhibit 5.1
above).
24.1 Power of Attorney (see page 10)
99.1 1998 Employee Stock Purchase Plan, as amended
99.2 N.E.T. Stock Option Program, as amended
