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Filed with the Securities and Exchange Commission on April 2, 1999
Registration No. 333-40299
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NUMBER ONE
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NETWORK COMPUTING DEVICES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 77-0177255
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
350 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
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(Address of principal executive offices) (Zip code)
NETWORK COMPUTING DEVICES, INC.
1994 OUTSIDE DIRECTOR STOCK OPTION PLAN
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(Full title of the plan)
RUDOLPH G. MORIN
EXECUTIVE VICE PRESIDENT,
OPERATIONS AND FINANCE, AND
CHIEF FINANCIAL OFFICER
NETWORK COMPUTING DEVICES, INC.
350 NORTH BERNARDO AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 694-0650
Pursuant to Rule 414 promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), this registration statement is hereby expressly adopted
by the registrant as the successor to Network Computing Devices, Inc., a
California corporation, as its own registration statement for all purposes under
the Securities Act and under the Securities Exchange Act of 1934, as amended.
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CALCULATION OF REGISTRATION FEE
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No additional registration fee is due because no additional shares are being
registered.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Network Computing Devices, Inc., a Delaware corporation (the
"Company"), hereby incorporates by reference in this registration statement the
following documents:
(a) The Company's (or its predecessor'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.
(b) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
document referred to in (a) above.
(c) The description of the Company's Common Stock contained in
the registration statement on Form 8-A/A filed on January 14, 1999, pursuant to
Section 12(g) 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 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.
On April 24, 1998, Network Computing Devices, Inc., a California
corporation ("Network Computing Devices California" or "Predecessor"), undertook
a reorganization and reincorporation for the purpose of changing its state of
domicile from California to Delaware. The reincorporation was accomplished by
merging Network Computing Devices California into the Company, which was a
wholly-owned subsidiary of Network Computing Devices California. Pursuant to the
reincorporation merger, each share of Common Stock of Network Computing Devices
California was converted into one share of Common Stock of the Company.
Furthermore, the Company
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assumed all of the obligations of Network Computing Devices California under the
1994 Outside Director Stock Option Plan (the "Plan"). The outstanding options
assumed under the Plan are exercisable for shares of the Company's Common Stock.
The description of the rights and privileges of Common Stock of the Company is
contained in the registration statement on Form 8-A/A filed on January 14, 1999.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b) of the Delaware General Corporation Law
authorizes a corporation to provide in its Certificate of Incorporation that a
director of the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, illegal payment of
dividends or stock redemptions or repurchases, or for any transaction from which
the director derives an improper personal benefit. As permitted by the statute,
the Company has adopted provisions in its Certificate of Incorporation which
eliminate to the fullest extent permissible under Delaware law the personal
liability of its directors to the Company and its stockholders for monetary
damages for breach or alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of
Delaware provides for the indemnification of officers, directors, employees and
agents of a corporation. The Bylaws of the Company provide for indemnification
of its directors, officers, employees and agents to the full extent permitted by
under Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's Bylaws also empower
it to enter into indemnification agreements with its directors and officers and
to purchase insurance on behalf of any person whom it is required or permitted
to indemnify. The Company has entered into agreements with its directors and
certain of its executive officers that require the Company to indemnify such
persons to the fullest extent permitted under Delaware law against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an executive officer
of the Company or any of its affiliated enterprises. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
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Section 145 of the General Corporation Law of the State of
Delaware provides for indemnification in terms sufficiently broad to indemnify
such individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
See Exhibit Index.
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which
offers or sale 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 (1)(i) and (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 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.
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(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.
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 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.
Insofar as indemnification for liabilities arises
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.
SIGNATURES
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
Post-Effective Amendment Number One to the registration statement to be signed
by the undersigned, thereunto duly authorized, in the City of Mountain View,
State of California, on this 29th day of March, 1999.
NETWORK COMPUTING DEVICES, INC.
By: /s/ Rudolph G. Morin
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Rudolph G. Morin
Executive Vice President,
Operations and Finance
and Chief Financial Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment Number One to the registration statement has been
signed by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
President, Chief Executive Officer
* and Chairman of the Board March 29, 1999
- ----------------------- (Principal Executive Officer)
Robert G. Gilbertson
Executive Vice President,
Operations and Finance,
/s/ Rudolph G. Morin Chief Financial Officer and Director March 29, 1999
- ----------------------- (Principal Financial and
Rudolph G. Morin Accounting Officer)
* Director March 29, 1999
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Peter Preuss
* Director March 29, 1999
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Philip Greer
* Director March 29, 1999
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Paul Low
Director March ___, 1999
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Stephen A. MacDonald
Director March ___, 1999
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Douglas H. Klein
</TABLE>
* By: /s/ Rudolph G. Morin
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Rudolph G. Morin, Attorney-in-Fact
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EXHIBIT INDEX OF
POST-EFFECTIVE AMENDMENT NUMBER ONE
TO FORM S-8
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<CAPTION>
Exhibit Number Exhibit Title
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<S> <C>
4.1 Restated Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
8-A/A filed with the Securities and Exchange Commission on January 14, 1999
4.2 Amended and Restated Bylaws of the Company are incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form 8-A/A filed
with the Securities and Exchange Commission on January 14, 1999
4.3 Rights Agreements dated August 12, 1997 and December 31, 1998 are
incorporated by reference to Exhibits 4.1 and 4.2 to the Company's
Registration Statement on Form 8-A/A filed with the Securities and Exchange
Commission on January 14, 1999
4.4 Agreement and Plan of Merger dated April 24, 1998 between Network Computing
Devices, Inc., a California corporation, and the Company, is incorporated
by reference to Exhibit 2.1 to the Company's Registration Statement on Form
8-K filed with the Securities and Exchange Commission on January 14, 1999
5 Opinion regarding legality is incorporated by reference to Predecessor's
Registration Statement on Form S-8 (File No. 333-40299) filed on November
14, 1997
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Auditors is incorporated by reference to
Predecessor's Registration Statement on Form S-8 (File No. 333-40299) filed
on November 14, 1997
24 Power of Attorney is incorporated by reference to Predecessor's
Registration Statement on Form S-8 (File No. 333-40299), filed on November
14, 1997
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