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Registration No. ____________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BAY NETWORKS, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 04-2916246
- --------------------------------- -----------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
4401 GREAT AMERICA PARKWAY
SANTA CLARA, CALIFORNIA 95054
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(Address of principal executive offices) (Zip code)
BAY NETWORKS, INC.
OPTIONS GRANTED UNDER THE
RAPID CITY COMMUNICATIONS 1996 STOCK PLAN AND
RAPID CITY COMMUNICATIONS 1997 STOCK PLAN
AND ASSUMED BY BAY NETWORKS, INC.
---------------------------------------------
(Full title of the plan)
JOHN J. POGGI, JR.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
BAY NETWORKS, INC.
4401 GREAT AMERICA PARKWAY
SANTA CLARA, CALIFORNIA 95054
---------------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 988-2400
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Rapid City Communications 1996 Stock Plan
68,472 $0.2439 $16,700.32
Rapid City Communications 1997 Stock Plan
69,394 $0.4673 $32,427.82
TOTAL 137,866 $49,128.14 $14.89
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Bay Networks, Inc. (the "Company") hereby incorporates by reference
in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended June 30, 1996.
- ---------------
(1) The securities to be registered are shares of Common Stock, par value
$0.01, of the Company issuable under options granted under the specified equity
compensation plan, which have been assumed by the Company, and include the
options to acquire such Common Stock. The offering price is estimated pursuant
to Rule 457 solely for purposes of calculating the registration fee and is
computed on the basis of the average exercise prices.
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(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
(d) The description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A, filed pursuant to
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All 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 to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
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.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation provides that the
Company shall indemnify its directors and officers to the full extent permitted
by Delaware law, including in circumstances in which indemnification is
otherwise discretionary under Delaware law, may advance their expenses incurred
as a result of any proceeding against them as to which they could be indemnified
and may maintain directors' and officers' liability insurance, if available on
reasonable terms.
In addition, with the approval of its Board of Directors, the Company has
entered into separate indemnification agreements with its directors and officers
which require the Company to, among other things, indemnify them against certain
liabilities which may arise by reason of their status or service.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Company's officers and directors for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act
of 1933, as amended (the "Securities Act").
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Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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)(l)(ii) do not apply if the
registration statement is on Form S-3 or 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 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.
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(b) Filing incorporating subsequent Exchange Act documents by reference
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.
(h) Request for acceleration of effective date or filing of registration
statement on Form S-8
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.
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SIGNATURE
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 Santa Clara, State of California, on
July 7, 1997.
Bay Networks, Inc.
/s/ John J. Poggi, Jr.
By:_________________________________
John J. Poggi, Jr.,
Vice President, General Counsel
and Secretary
POWER OF ATTORNEY
The officers and directors of Bay Networks, Inc. whose signatures appear
below, hereby constitute and appoint John J. Poggi, Jr. and David J. Rynne, and
each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their, her or his substitutes, shall do or cause to
be done by virtue hereof. Pursuant to the requirements of the Securities Act of
1933, as amended, this registration statement has been signed by the following
persons in the capacities indicated on July 7, 1997.
Signature Title
/s/ David L. House President, Chief Executive Officer and Chairman
- ------------------------------ of the Board of Directors (Principal Executive
David L. House Officer)
/s/ David J. Rynne Executive Vice President and Chief Financial
- ------------------------------ Officer (Principal Financial Officer)
David J. Rynne
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/s/ Robin G. Seim Vice President and Corporate Controller
- ----------------------------- (Principal Accounting Officer)
Robin G. Seim
/s/ Arthur Carr Director
- -----------------------------
Arthur Carr
/s/ Shelby H. Carter, Jr. Director
- ------------------------------
Shelby H. Carter, Jr.
/s/ Kathleen Ann Cote Director
- -----------------------------
Kathleen Ann Cote
/s/ John S. Lewis Director
- -----------------------------
John S. Lewis
/s/ Andrew K. Ludwick Director
- -----------------------------
Andrew K. Ludwick
/s/ Benjamin F. Robelen Director
- -----------------------------
Benjamin F. Robelen
/s/ Ronald V. Schmidt Director
- -----------------------------
Ronald V. Schmidt
/s/ Paul J. Severino Director
- -----------------------------
Paul J. Severino
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is
incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on May 26, 1995 (file No.
33-92736)
4.2 Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 3.3 to the Company's registration statement
on Form S-4 filed with the Securities and Exchange Commission on
September 14, 1994
4.3 Rights Agreement is incorporated by reference to Exhibit 1 to the
Company's report on Form 8-K dated February 7, 1995 (File No.
0-19366)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Price Waterhouse LLP, Independent Accountants
24 Power of Attorney (included in signature pages to this
registration statement)
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[GRAY CARY WARE & FREIDENRICH LETTERHEAD]
EXHIBIT 5
ATTORNEYS AT LAW OUR FILE NO.
400 HAMILTON AVENUE 1020821-907700
PALO ALTO, CA 94301-1825
TEL (415) 328-6561
FAX (415) 327-3699
July 7, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Bay Networks, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 137,866 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of options granted under the Rapid City Communications 1996 Stock
Plan and Rapid City Communications 1997 Stock Plan assumed by the Company (the
"Options"). We have examined all instruments, documents and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we express
no opinion concerning any law other than the law of the State of California, the
corporation laws of the State of Delaware and the federal law of the United
States. As to matters of Delaware corporation law, we have based our opinion
solely upon our examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard, unofficial
compilations. We have not obtained opinions of counsel licensed to practice in
jurisdictions other than the State of California. Based on such examination, we
are of the opinion that the 137,866 shares of Common Stock which may be issued
upon exercise of the Options are duly authorized shares of the Company's Common
Stock, and, when issued against receipt of the consideration therefor in
accordance with the provisions of the Options, will be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears therein.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the options assumed by Bay Networks, Inc. which options were
granted originally under the Rapid City Communications 1996 Stock Plan and Rapid
City Communications 1997 Stock Plan and assumed by Bay Networks, Inc. of our
reports dated July 19, 1996 with respect to the consolidated financial
statements and the financial statement schedule, of Bay Networks, Inc. included
in its Annual Report (Form 10-K) for the year ended June 30, 1996, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
July 2, 1997
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Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Bay Networks, Inc. of our report dated July 18, 1994
relating to the financial statements of Wellfleet Communications, Inc. for the
year ended June 30, 1994.
PRICE WATERHOUSE LLP
Boston, Massachusetts
July 2, 1997
