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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
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(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)
1994 EMPLOYEE STOCK PURCHASE PLAN,
1998 EMPLOYEE STOCK PURCHASE PLAN AND
OPTIONS GRANTED UNDER THE
NETWAVE TECHNOLOGIES, INC. NON-QUALIFIED
STOCK OPTION PLAN AND ASSUMED BY BAY NETWORKS, INC.
---------------------------------------------------
(Full title of the plan)
DAVID J. RYNNE
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
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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<CAPTION>
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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 aggregate offering Amount of
registered(1) registered share(2) price(1) registration fee
- --------------------------- --------------------------- -------------------------- -------------------------- ----------------------
<S> <C> <C> <C> <C>
1994 Employee Stock Purchase Plan
Common Stock, 2,000,000 $25.45 $50,900,000
par value $0.01
1998 Employee Stock Purchase Plan
Common Stock, 500,000 $25.45 $12,725,000
par value $0.01
Assumed Netwave Stock Options
Common Stock, 52,737 $0.578 $30,482
par value $0.01
TOTAL 2,552,737 $63,655,482 $18,778.37
</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, 1997.
- ----------
(1) Includes options and rights to acquire such Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating
the registration fee. The 1994 Employee Stock Purchase Plan and the
1998 Employee Stock Purchase Plan establish a purchase price equal
to 85% of the fair market value of the Company's Common Stock and,
therefore, the price is based upon 85% of the average of the high
and low prices of the Common Stock on June 18, 1998 as
reported on the New York Stock Exchange. With respect to the assumed
Netwave stock options, the price is based on the average exercise
price of the assumed options.
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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
Inapplicable.
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").
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
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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.
(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
June 22, 1998.
BAY NETWORKS, INC.
By: /s/ David J. Rynne
----------------------------------
David J. Rynne
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
The officers and directors of Bay Networks, Inc. whose signatures
appear below, hereby constitute and appoint David L. House 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 June 22, 1998.
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<CAPTION>
Signature Title
- --------------------------------------------------------------------------------
<S> <C>
/s/ David L. House Chairman of the Board, President and Chief
- ------------------------------- Executive Officer (Principal Executive Officer)
David L. House
/s/ David J. Rynne Executive Vice President and Chief Financial
- ------------------------------- Officer (Principal Financial Officer)
David J. Rynne
/s/ Rob G. Seim Vice President and Corporate Controller
- ------------------------------- (Principal Accounting Officer)
Rob G. Seim
/s/ Arthur Carr Director
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Arthur Carr
/s/ Shelby H. Carter, Jr. Director
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Shelby H. Carter, Jr.
</TABLE>
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<S> <C>
/s/ Kathleen A. Cote Director
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Kathleen A. Cote
/s/ John S. Lewis Director
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John S. Lewis
/s/ Benjamin F. Robelen Director
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Benjamin F. Robelen
/s/ Paul J. Severino Director
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Paul J. Severino
</TABLE>
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is
incorporated by reference to Exhibit 3.1 to the Company's
report on Form 10-Q for the quarterly period ended March 28,
1998
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 Certificate of Amendment of the Restated Certificate of
Incorporation of the Company is incorporated by reference to
Exhibit 3.3 to the Company's report on Form 10-Q for the
quarterly period ended March 28, 1998
4.4 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 regarding legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this
registration statement)
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EXHIBIT 5
[GRAY CARY WARE FREIDENRICH LLP LETTERHEAD]
June 22, 1998
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 2,552,737 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of purchase rights granted under the Bay Networks, Inc. 1994
Employee Stock Purchase Plan and 1998 Employee Stock Purchase Plan (the "Plans")
and the exercise of options granted under the Netwave Technologies, Inc.
Non-Qualified Stock Option Plan and 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 2,552,737 shares of Common Stock
which may be issued upon exercise of purchase rights granted under the Plans and
the exercise of the Options are duly authorized shares of the Company's Common
Stock, and, when issued against payment of the purchase price therefor in
accordance with the provisions of the Plans and 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 LLP
GRAY CARY WARE & FREIDENRICH LLP
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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 Bay Networks, Inc. 1994 Employee Stock Purchase Plan,
1998 Employee Stock Purchase Plan and options granted under the Netwave
Technologies, Inc. Non-Qualified Stock Option Plan and assumed by Bay Networks,
Inc. of our reports dated July 18, 1997 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, 1997,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
June 18, 1998
