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As filed with the Securities and Exchange Commission November __, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SAFENET, INC.
(Exact Name of Registrant as Specified in Charter)
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<S> <C>
Delaware 52-1287752
(State of other jurisdiction of incorporation or organization) (I.R.S Employer Identification No.)
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8029 Corporate Drive
Baltimore, MD 21236
(Address of Principal Executive Offices)(Zip Code)
SAFENET, INC.
2000 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
Mr. Anthony A. Caputo
Chairman, Chief Executive Officer and President
SAFENET, INC.
8029 Corporate Drive
Baltimore, MD 21236
(410) 931-7500
(Name, address and telephone number of agent for service)
Copies to:
Elizabeth R. Hughes, Esq.
Venable, Baetjer and Howard, LLP
Two Hopkins Plaza
Baltimore, MD 21201
(410) 244-7608
Calculation of Registration Fee
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------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Proposed Maximum Proposed Maximum
Titles of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(1) Price Registration Fee
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value 500,000 Shares $39.938 $19,969,000 $ 5,272
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
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(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c) based upon a price of $39.938per share which
was the average of the high and low sale prices as reported on the
Nasdaq National Market System on November 24, 2000.
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SafeNet, Inc. (formerly, Information Resources Engineering, Inc.) (the
"Company" or "Registrant"), registered 300,000 shares of its common stock for
issuance under the SafeNet, Inc. 2000 Nonqualified Stock Option Plan pursuant to
a Registration Statement of Form S-8 that was filed with the Securities and
Exchange Commission and became effective on August 4, 2000 (File No. 333-43062),
which Registration Statement is incorporated herein by reference
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission ("SEC") are incorporated by reference in this Prospectus:
- Annual Report on Form 10-K for the fiscal year ended December 31, 1999;
- Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2000;
- Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2000;
- Quarterly Report on Form 10-Q for the quarterly period ended September 30,
2000;
- Current Report on Form 8-K, filed June 22, 2000; and
- The description of our common stock contained in the Form 8-A Registration
Statement filed with the SEC on September 16, 1992 and any amendment or
report filed for the purpose of updating those descriptions.
All reports and other documents subsequently filed with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus and to be a part of this Prospectus from the date of filing
thereof. Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus 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 such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law, as amended, provides for the
indemnification of the Company's officers, directors and corporate employees and
agents under certain circumstances as follows:
DEL. CODE ANN. TITLE 8
Sec. 145. Indemnification of officers, directors, employees and agents;
insurance
a) A corporation may indemnify 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 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, partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he 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 his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
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
reasonable cause to believe that his conduct was unlawful.
b) A corporation may indemnify 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 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, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
d) Any indemnification under subsection (a) and (b) of this section
(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,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceedings, or (2) if such a quorum is not obtainable, or,
even, if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the stockholders.
e) Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in
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this section. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section 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
official capacity and as to action in another capacity while holding such
office.
g) A corporation shall have 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, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
h) For purposes of this section, 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, and employees or 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,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
The Certificate of Incorporation of the Company provides that the
indemnification provisions of Sections 102(b)(7) and 145 of the Delaware
Corporation Law shall be utilized to the fullest extent possible. Further, the
Certificate of Incorporation contains provisions to eliminate the liability of
the Company's directors to the Company or its stockholders to the fullest extent
permitted by Section 102(b)(7) of the Delaware General Corporation Law, as
amended from time to time.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, is permitted to directors, officers or controlling
persons of the Registrant, pursuant to the above mentioned statutes or
otherwise, the Registrant understands that the Securities and Exchange
Commission is of the opinion that such indemnification may contravene federal
public policy, as expressed in said Act, and therefore, may be unenforceable.
Accordingly, in the event that a claim for such indemnification is asserted by
any director, officer or a controlling person of the Company, and the Commission
is still of the same opinion, the Registrant (except insofar as such claim seeks
reimbursement by the Registrant of expenses paid or incurred by a director,
officer of controlling person in successful defense of any action, suit or
proceeding) will, unless the matter has theretofore been adjudicated by
precedent deemed by counsel for the Registrant to
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be controlling, submit to a court of appropriate jurisdiction the question
whether or not indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Specimen of Common Stock Certificate of Registrant (1)
4.2 Certificate of Incorporation of Registrant, as filed with the Secretary
of State of Delaware on November 1, 1988, as amended on March 6, 1989,
May 19, 1989, September 22, 1992, June 30, 1995, October 4, 1995 and
November 3, 2000
4.3 By-laws of Registrant (1)
4.4 SafeNet, Inc. 2000 Nonqualified Stock Option Plan
4.5 Example of Nonqualified Stock Option Grant Agreement intended to be
used under the 2000 Nonqualified Stock Option Plan (2)
5 Opinion of Counsel as to the legality of securities being registered
15 None
23A Consent of Venable, Baetjer and Howard, LLP Counsel to the Company
(included in Exhibit 5)
23B Consent of KPMG, LLP, Independent Auditors
24 Power of Attorney - See signature page
28 None
(1) Filed as an exhibit to the Registration Statement on Form S-18 (File
No. 33-28673) of the Registrant and incorporated herein by reference.
(2) Filed as an exhibit to the Registration Statement on Form S-8 (File
No. 333-43062) of the Registrant and incorporated herein by reference.
ITEM 17. UNDERTAKINGS
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to any charge provision, by-law contract,
arrangements statute, 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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by 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 against public policy as expressed in the 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 at Baltimore, Maryland on the 27th day of November, 2000.
SAFENET, INC.
By: /s/ Anthony A. Caputo
--------------------------------------
ANTHONY A. CAPUTO, Chairman,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each of the undersigned whose signature
appears below constitutes and appoints Anthony A. Caputo and David A. Skalitzky,
and each of them (with full power of each of them to act alone), his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and on his behalf, and in his name, place and stead, in
any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, or subsequent
registration statements related to the shares registered hereby and to file the
same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as 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 agents or any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, 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> <C> <C>
/s/ Anthony A. Caputo Chairman, President and Chief Executive November 27, 2000
--------------------------- Officer (Principal Executive Officer)
ANTHONY A. CAPUTO
/s/ Carole D. Argo Senior Vice President and Chief November 27, 2000
-------------------------------- Financial Officer
CAROLE D. ARGO (Principal Financial and Accounting Officer)
/s/ Thomas A. Brooks Director November 27, 2000
-----------------------------
THOMAS A. BROOKS
/s/ Douglas E. Kozlay Director November 27, 2000
----------------------------
DOUGLAS E. KOZLAY
/s/ Shelley A. Harrison Director November 27, 2000
---------------------------
SHELLEY A. HARRISON
/s/ Ira A Hunt, Jr. Director November 27, 2000
-------------------------------------
IRA A. HUNT, JR.
/s/ Bruce R. Thaw Director November 27, 2000
-------------------------------------
BRUCE R. THAW
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