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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
--------------------------
NETWORK COMPUTING DEVICES, INC.
-------------------------------
(Exact name of registrant as specified in its charter)
California 77-0177255
----------------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
350 North Bernardo Avenue
Mountain View, CA 94043
-------------------------
(Address of principal executive offices) (Zip code)
NETWORK COMPUTING DEVICES, INC.
1989 STOCK OPTION PLAN
1994 OUTSIDE DIRECTORS STOCK OPTION PLAN
1992 EMPLOYEE STOCK PURCHASE PLAN
AND INDIVIDUAL STOCK OPTION AGREEMENT
-------------------------------------
(Full Title of the Plan)
Robert G. Gilbertson
President and Chief Executive Officer
Network Computing Devices, Inc.
350 North Bernardo Avenue
Mountain View, CA 94043
-----------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 650/694-0650.
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
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered (1) registered per share (2) offering price (2) registration fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1989 STOCK OPTION PLAN
Common Stock 233,676 $8.5938 $2,008,164.81
No Par Value 2,466,324 $5.76 $14,206,026.24
1994 OUTSIDE DIRECTORS
STOCK OPTION PLAN
Common Stock 62,500 $8.5938 $537,112.50
No Par Value 187,500 $6.9350 $1,300,312.50
1992 EMPLOYEE STOCK
PURCHASE PLAN
Common Stock 215,281 $7.3047 $1,572,563.12
No Par Value
INDIVIDUAL OPTION
Common Stock 265,000 $3.50 $927,500.00
No Par Value
TOTALS 3,430,281 $20,551,679.17 $6,227.78
</TABLE>
- -----------------------
(1) The securities to be registered include options and rights to acquire such
Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under the 1989 Stock Option Plan and the 1994 Outside Directors
Stock Option Plan, the price is computed on the basis of the weighted
average exercise price. As to the remaining shares under the 1989 Stock
Option Plan and the 1994 Outside Directors Stock Option Plan, the price
is based upon the average of the high and low prices of the Common Stock
on November 10, 1997, as reported on the National Association of
Securities Dealers Automated Quotations System. The 1992 Employee Stock
Purchase Plan establishes a purchase price equal to 85% of the fair
market value of the Company's Common Stock and, therefore, the price for
purchase rights under this plan is based upon 85% of the average of the
high and low prices of the Common Stock on November 10, 1997, as reported
on the National Association of Securities Dealers Automated Quotations
System. As to the 265,000 shares under the individual stock option
agreement, the price is based upon the exercise price.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Network Computing Devices, 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
Sections 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 December 31, 1996, as filed with the
Commission.
(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 dated April 25, 1992, filed
under 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 Articles of Incorporation provide that the liability of the
directors for monetary damages shall be eliminated to the fullest extent
permissible under California law. Pursuant to California law, the Company's
directors shall not be liable for monetary damages for breach of the
directors' fiduciary duty of care to the Company and its shareholders.
However, this provision does not eliminate the duty of care, and in
appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under California law.
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In addition, each director will continue to be subject to liability for
(i) acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law, (ii) acts or omissions that a director believes to
be contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director, (iii) any
transaction from which a director derived an improper personal benefit, (iv)
acts or omissions that show a reckless disregard for the director's duty to
the Company or its shareholders in circumstances in which the director was
aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of serious injury to the Company or its
shareholders, (v) acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the
Company or its shareholders, (vi) any transaction that constitutes an illegal
distribution or dividend under California law, and (vii) any transaction
involving an unlawful conflict of interest between the director and the
Company under California law. The provision also does not affect a
director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
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 of 1933;
(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;
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PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(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 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.
(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 of 1933, 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 of 1933 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 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 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 Mountain View, State of California,
on November 13, 1997.
Network Computing Devices, Inc.
By: /s/ Robert G. Gilbertson
----------------------------------
Robert G. Gilbertson,
President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Network Computing Devices, Inc. whose
signatures appear below, hereby constitute and appoint Robert G. Gilbertson
and Rudolph G. Morin, 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
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 November 13, 1997.
Signature Title
- ------------------------------------------------------------------------------
/s/ Robert G. Gilbertson President, Chief Executive Officer, and
- ----------------------------- Director (Principal Executive Officer)
Robert G. Gilbertson
/s/ Rudolph G. Morin Executive Vice President, Operations &
- ----------------------------- Finance and Chief Financial Officer
Rudolph G. Morin (Principal Financial and Accounting Officer)
/s/ Peter Preuss Director
- -----------------------------
Peter Preuss
/s/ Philip Greer Director
- -----------------------------
Philip Greer
/s/ Paul Low Director
- -----------------------------
Paul Low
Director
- -----------------------------
Stephen A. MacDonald
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EXHIBIT INDEX
4.1 Amended and Restated Articles of Incorporation of the Company is
incorporated by reference to Exhibit 3.1 to the Company's Form 10-K
Annual Report for the year ended December 31, 1992, filed with the
Securities and Exchange Commission
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.3
to the Company's Registration Statement on Form S-1 (No. 33-47246)
filed with the Securities and Exchange Commission, effective on June
4, 1992
4.3 Amendments to Bylaws of the Company, effective as of August 12, 1997
4.4 Rights Agreement dated as of August 12, 1997, between the Company
and ChaseMellon Shareholder Services, L.L.C., which includes as
Exhibit B the form of Rights Certificate, is incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement on
Form 8-A filed with the Securities and Exchange Commission as of
August 14, 1997 (File No. 000-20124)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 4.3
AMENDMENTS TO THE BY-LAWS
OF NETWORK COMPUTING DEVICES, INC.
Section 2.2 of Article II of the Corporation's By-Laws shall be amended
and restated to read in its entirety as follows:
SECTION 2.2 ANNUAL MEETINGS. The annual meetings of shareholders
shall be held on such day and at such hour as shall be fixed by the
Board of Directors. At such meeting, the shareholders shall elect
Directors and shall transact such other business as may properly be
brought before the meeting.
To be properly brought before the annual meeting, business must be
either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of
the Board of Directors, or (c) otherwise properly brought before the
meeting by a shareholder of record. In addition to any other applicable
requirements, for business to be properly brought before the annual
meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
shareholder's notice must be delivered by a nationally recognized
courier service or mailed by first class United States mail, postage or
delivery charges prepaid, and received at the principal executive
offices of the corporation, addressed to the attention of the Secretary
of the corporation, not less than 60 days nor more than 90 days prior to
the scheduled date of the meeting (regardless of any postponements,
deferrals or adjournments of that meeting to a later date); provided,
however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the scheduled meeting is given or made
to shareholders, notice by the shareholder to be timely must be so
received not later than the earlier of (a) the close of business on the
10th day following the day on which such notice of the date of the
scheduled annual meeting was mailed or such public disclosure was made,
whichever first occurs, and (b) two days prior to the date of the
scheduled meeting. A shareholder's notice to the Secretary shall set
forth as to each matter the shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of the
shareholder proposing such business, (iii) the class, series and number
of shares of the corporation that are owned beneficially by the
shareholder, and (iv) any material interest of the shareholder in such
business. Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at the annual meeting except in accordance
with the procedures set forth in this Section; provided, however, that
nothing in this Section shall be deemed to preclude discussion by any
shareholder of any business properly brought before the annual meeting.
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The Chairman of the Board of the corporation (or such other person
presiding at the meeting in accordance with these By-Laws) shall, if the
facts warrant, determine and declare to the meeting that business was
not properly brought before the meeting in accordance with the
provisions of this Section, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before
the meeting shall not be transacted.
Section 3.3 of Article III of the Corporation's By-Laws shall be amended
and restated to read in its entirety as follows:
SECTION 3.3 ELECTION AND TERM OF OFFICE. The Directors shall be
elected at each annual meeting of shareholders, but if any such annual
meeting is not held, or the Directors are not elected thereat, the
Directors may be elected at any special meeting of the shareholders held
for that purpose. All Directors shall hold office until the expiration
of the term for which elected and until their respective successors are
elected, except in the case of the death, resignation or removal of any
Director. A Director need not be a shareholder.
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors at the annual meeting, by
or at the direction of the Board of Directors, may be made by any
nominating committee or person appointed by the Board of Directors;
nominations may also be made by any shareholder of record of the
corporation entitled to vote for the election of Directors at the
meeting who complies with the notice procedures set forth in this
Section. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the corporation. To be timely, a
shareholder's notice shall be delivered by a nationally recognized
courier service or mailed by first class United States mail, postage or
delivery charges prepaid, and received at the principal executive
offices of the corporation addressed to the attention of the Secretary
of the corporation not less than 60 days nor more than 90 days prior to
the scheduled date of the meeting (regardless of any postponements,
deferrals or adjournments of that meeting to a later date); provided,
however, that, in the case of an annual meeting and in the event that
less than 70 days' notice or prior public disclosure of the date of the
scheduled meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the earlier
of (a) the close of business on the 10th day following the day on which
such notice of the date of the scheduled meeting was mailed or such
public disclosure was made, whichever first occurs, and (b) two days
prior to the date of the scheduled meeting. Such shareholder's notice
to the Secretary shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a
Director, (i) the name, age, business address and residence address of
the person, (ii) the principal occupation or employment of the person,
(iii) the class, series and number of shares of capital stock of the
corporation that are owned beneficially by the person, (iv) a statement
as to the person's citizenship, and (v) any other information relating
to the person that is required to be disclosed in solicitations for
proxies for election of Directors pursuant to Section 14 of
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the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder; and (b) as to the shareholder giving
the notice, (i) the name and record address of the shareholder and (ii)
the class, series and number of shares of capital stock of the
corporation that are owned beneficially by the shareholder. The
corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as Director
of the corporation. No person shall be eligible for election as a
Director of the corporation unless nominated in accordance with the
procedures set forth herein.
In connection with any annual meeting, the Chairman of the Board of
Directors (or such other person presiding at such meeting in accordance
with these By-Laws) shall, if the facts warrant, determine and declare
to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
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[Letterhead of GRAY CARY WARE & FREIDENRICH,
A Professional Corporation]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL: (650) 328-6561
FAX: (650) 327-3699
http://www.gcwf.com
EXHIBIT 5
November 13, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Network Computing Devices, Inc., a California
corporation (the "Company"), we are rendering this opinion in connection with
the registration under the Securities Act of 1933, as amended, of up to
3,430,281 shares of the Common Stock, no par value, of the Company which may
be issued pursuant to the exercise of options and purchase rights granted
under the Network Computing Devices, Inc. 1989 Stock Option Plan, the 1994
Outside Directors Stock Option Plan, and the 1992 Employee Stock Purchase
Plan (the "Plans"), and under a stock option granted to Robert G. Gilbertson
(the "Individual Option").
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 and
the federal law of the United States.
Based on such examination, we are of the opinion that the 3,430,281
shares of Common Stock which may be issued upon exercise of options and
purchase rights granted under the Plans and the Individual Option 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 Plans and the Individual Option 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 in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
The Board of Directors
Network Computing Devices, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of Network Computing Devices, Inc. of our reports dated January 28,
1997, relating to the consolidated balance sheets of Network Computing
Devices, Inc. and subsidiaries as of December 31, 1996 and 1995, and the
related consolidated statements of operations, shareholder's equity, and cash
flows for each of the years in the three-year period ended December 31, 1996,
and the related schedule, which reports appear in the December 31, 1996,
annual report on Form 10-K of Network Computing Devices, Inc.
KPMG Peat Marwick LLP
Palo Alto, California
November 14, 1997
