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REGISTRATION NO.
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UNITED STATES 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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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
1992 EMPLOYEE STOCK PURCHASE PLAN
(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.
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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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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED(1) REGISTERED(2) SHARE(3) PRICE(3) REGISTRATION FEE
<S> <C> <C> <C> <C>
1989 STOCK OPTION PLAN
Common Stock............................... 111,782 $7.9844 $892,512.20 $263.29
No Par Value............................... 388,218 $7.8125 $3,032,953.12 $894.72
1992 EMPLOYEE STOCK PURCHASE PLAN
Common Stock............................... 200,000 $6.6406 $1,328,120.00 $391.79
No Par Value...............................
TOTALS..................................... 700,000 $5,253,585.32 $1,549.80
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(1) The securities to be registered include options and rights to acquire such
Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(3) 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, the price is computed on the basis
of the weighted average exercise price. As to the remaining shares under the
1989 Stock Option Plan, the price is based upon the average of the high and
low prices of the Common Stock on July 31, 1998, 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 July 31,1998, as reported
on the National Association of Securities Dealers Automated Quotations
System.
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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, 1997, 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.
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
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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;
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 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,
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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 August 6,
1998.
NETWORK COMPUTING DEVICES, INC.
By: /s/ ROBERT G. GILBERTSON
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Robert G. Gilbertson,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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 August 6, 1998.
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SIGNATURE TITLE
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<C> <S>
/s/ ROBERT G. GILBERTSON President, Chief Executive Officer,
- ------------------------------ and Director
Robert G. Gilbertson (Principal Executive Officer)
Executive Vice President,
/s/ RUDOLPH G. MORIN 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
- ------------------------------ Director
Paul Low
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<TABLE>
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SIGNATURE TITLE
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<C> <S>
/s/ STEPHEN A. MACDONALD
- ------------------------------ Director
Stephen A. MacDonald
/s/ DOUGLAS H. KLEIN
- ------------------------------ Director
Douglas H. Klein
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EXHIBIT INDEX
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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 are incorporated by reference to Exhibit
4.3 to the Company's Registration Statement on Form S-8 (No. 33-40299)
filed with the Securities and Exchange Commission, effective on November
14, 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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[LETTERHEAD GRAY CARY WARE & FREIDENRICH, LLP]
EXHIBIT 5
August 6, 1998
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 700,000
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 and the 1992 Employee
Stock Purchase Plan (the "Plans").
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 700,000 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Plans 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 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 LLP
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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 27, 1998,
except as to Note 10 which is as of March 16, 1998, relating to the consolidated
balance sheets of Network Computing Devices, Inc. and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1997, and the related consolidated
financial statement schedule, which reports appear in the December 31, 1997,
annual report on Form 10-K of Network Computing Devices, Inc.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Mountain View, California
August 5, 1998
