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As filed with the Securities and Exchange Commission on July 16, 1999 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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PARADYNE NETWORKS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 75-2658219
(State of Incorporation) (I.R.S. Employer Identification No.)
8545 126TH AVENUE NORTH
LARGO, FLORIDA 33773
(727) 530-2000
(Address of principal executive offices)
1996 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
JAMES L. SLATTERY
SENIOR VICE PRESIDENT, CHIEF LEGAL AND INTELLECTUAL PROPERTY OFFICER AND
CORPORATE SECRETARY
PARADYNE NETWORKS, INC.
8545 126TH AVENUE, NORTH
LARGO, FLORIDA 33773
(727) 530-2000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copies to:
KENNETH L. GUERNSEY
LAURA BEREZIN
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
REGISTERED REGISTERED (1) (1) AMOUNT OF REGISTRATION FEE
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Stock Options and Common
Stock (par value $.001) 6,242,507 shares $3.5686 - $17.00 $59,707,811 $16,600
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933, as amended. The offering price per share and aggregate offering
price are based upon (a) the weighted average exercise price for shares
subject to outstanding options granted pursuant to Paradyne Networks,
Inc.'s (the "Company") 1996 Equity Incentive Plan and (b) the initial
public offering price of Registrant's Common Stock.
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The chart below details the calculations of the registration fee:
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AGGREGATE OFFERING
SECURITIES NUMBER OF SHARES OFFERING PRICE PER SHARE PRICE
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Shares issuable pursuant to
outstanding options under the 1996
Equity Incentive Plan 3,455,694 $3.5686(1)(a) $12,331,990
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Shares issuable pursuant to the 1996
Equity Incentive Plan 1,536,813 $ 17.00(1)(b) $26,125,821
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Shares issuable pursuant to the 1999
Employee Stock Purchase Plan 1,000,000 $ 17.00(1)(b) $17,000,000
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Shares issuable pursuant to the 1999
Non-Employee Directors' Stock Option
Plan 250,000 $ 17.00(1)(b) $ 4,250,000
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Proposed Maximum Offering Price $59,707,811
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Registration Fee $ 16,600
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1.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Paradyne Networks, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(A) The Company's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), on July 16, 1999 (No.
333-76385).
(B) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed June 24, 1999, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
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 deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for
the Company by Cooley Godward LLP, Palo Alto, California ("Cooley Godward"). As
of the date of this prospectus, certain members of Cooley Godward own an
aggregate of approximately 3,200 shares of the Registrant's Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Company's By-laws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. Under the
Company's By-laws, indemnified parties are entitled to indemnification for
negligence, gross negligence and otherwise to the fullest extent permitted by
law. The By-laws also require the Company to advance litigation expenses in the
case of stockholder derivative actions or other actions, against an undertaking
by the indemnified party to repay such advances if it is ultimately determined
that the indemnified party is not entitled to indemnification.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law. The Company also maintains an insurance policy for
its directors and executive officers insuring against certain liabilities
arising in their capacities as such.
2.
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EXHIBITS
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EXHIBIT
NUMBER
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4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified Public Accountants.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1996 Equity Incentive Plan.
99.2* Form of Stock Option Agreement pursuant to the 1996 Equity Incentive Plan.
99.3* Form of Early Exercise Stock Purchase Agreement.
99.4* 1999 Employee Stock Purchase Plan and related offering documents.
99.5* 1999 Non-employee Directors' Stock Option Plan
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* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-76385), filed with the SEC on April 15, 1999.
UNDERTAKINGS
1. The undersigned registrant 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 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement, and
(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)(i) and (a)(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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
3.
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(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 herein, 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.
2. 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 herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. 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 by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
4.
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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 Largo, State of Florida, on July 15, 1999.
PARADYNE NETWORKS, INC.
By /s/ Andrew S. May
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Andrew S. May
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Andrew S. May, Patrick M. Murphy and
James L. Slattery and each or any one of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in 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
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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SIGNATURE TITLE DATE
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/s/ Andrew S. May President, Chief Executive Officer July 15, 1999
- -------------------------------------------- and Director (Principal Executive
Andrew S. May Officer)
/s/ Patrick M. Murphy Senior Vice President, Chief July 15, 1999
- -------------------------------------------- Financial Officer and Treasurer
Patrick M. Murphy (Principal Financial Officer and
Accounting Officer)
/s/ Thomas E. Epley Chairman of the Board July 15, 1999
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Thomas E. Epley
Director July __, 1999
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David Bonderman
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5.
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Director July __, 1999
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Keith B. Geeslin
/s/ David M. Stanton Director July 15, 1999
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David M. Stanton
/s/ William R. Stensrud Director July 15, 1999
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William R. Stensrud
/s/ Peter F. VanCamp Director July 15, 1999
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Peter F. VanCamp
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6.
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EXHIBIT INDEX
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EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
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4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Amended and Restated Bylaws of the Company.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Certified Public Accountants.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1996 Equity Incentive Plan.
99.2* Form of Stock Option Agreement pursuant to the 1996 Equity Incentive Plan.
99.3* Form of Early Exercise Stock Purchase Agreement.
99.4* 1999 Employee Stock Purchase Plan and related offering documents.
99.5* 1999 Non-employee Directors' Stock Option Plan
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* Documents incorporated by reference from the Company's Registration Statement
on Form S-1, as amended (333-76385), filed with the SEC on April 15, 1999.
7.
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July 16, 1999 Exhibit 5.1
Paradyne Networks, Inc.
8545 126th Avenue North
Largo, Florida 33773
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Paradyne Networks, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an aggregate of 6,242,507
shares of the Company's Common Stock, $.001 par value (the "Shares"), with
respect to the Company's 1996 Equity Incentive Plan, 1999 Employee Stock
Purchase Plan and 1999 Non-Employee Directors' Stock Option Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, the Company's Amended and Restated Certificate of
Incorporation and By-laws, and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents, where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Suzanne S. Hooper
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Suzanne S. Hooper
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of our reports dated June 8, 1999, relating to the financial
statements of Paradyne Networks, Inc. (formerly Paradyne Acquisition Corp.) and
the Financial Statement Schedule listed in Item 16(b) of the Form S-1
(Registration No. 333-76385), and our report dated November 23, 1998, relating
to the financial statements of Paradyne Predecessor Business, all which are
included in Paradyne Network, Inc.'s Registration Statement on Form S-1.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Tampa, Florida
July 12, 1999
