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Filed with the Securities and Exchange Commission on April 2, 1999
Registration No. 333-_________
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.
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(Exact name of registrant as specified in its charter)
Delaware 77-0177255
- ---------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
350 North Bernardo Avenue
Mountain View, CA 94043
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(Address of principal executive offices) (Zip code)
NETWORK COMPUTING DEVICES, INC.
1999 Nonstatutory 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, CA 94303
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(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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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Title of maximum maximum
Securities to be Amount to be offering price aggregate Amount of
registered(1) registered(2) per share(3) offering price(3) registration fee
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<S> <C> <C> <C> <C>
1999 NONSTATUTORY STOCK OPTION PLAN
Common Stock 350,020 $7.00 $2,450,140.00 $681.14
Par Value $0.001 149,980 $5.28125 $792,081.87 $220.20
TOTALS 500,000 $3,242,221.87 $901.34
</TABLE>
- -----------------------------
(1) The securities to be registered include options to acquire 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 1999 Nonstatutory Stock Option Plan, the price is computed on the
basis of the weighted average exercise price. As to the remaining shares under
the 1999 Nonstatutory Stock Option Plan, the price is based upon the average of
the high and low prices of the Common Stock on March 29, 1999, as reported on
the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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 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, 1998 as filed with the
Securities and Exchange Commission on March 31, 1999.
(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-A12G/A filed on January 14,
1999 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
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
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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.
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 of 1933, as
amended (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 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;
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(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; and
(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
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.
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.
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 Mountain View, State
of California, on March 31, 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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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 and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
President, Chief Executive Officer
/s/ Robert G. Gilbertson and Chairman of the Board March 31, 1999
- ------------------------ (Principal Executive Officer)
Robert G. Gilbertson
Executive Vice President,
Operations and Finance,
/s/ Rudolph G. Morin Chief Financial Officer and March 31, 1999
- ------------------------ Director (Principal Financial and
Rudolph G. Morin Accounting Officer)
/s/ Peter Preuss Director March 31, 1999
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Peter Preuss
/s/ Philip Greer Director March 30, 1999
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Philip Greer
Director March ___, 1999
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Paul Low
/s/ Stephen A. MacDonald Director March 30, 1999
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Stephen A. MacDonald
/s/ Douglas H. Klein Director March 31, 1999
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Douglas H. Klein
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is incorporated
by reference to the Company's Registration Statement on Form 8-A12G/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-A12G/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-A12G/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 re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of KPMG LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com
April 1, 1999
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 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 500,000
shares of the Common Stock, $0.001 par value, of the Company which may be issued
pursuant to the exercise of options granted under the Network Computing Devices,
Inc. 1999 Nonstatutory Stock Option Plan (the "Plan").
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 500,000 shares of
Common Stock which may be issued upon exercise of options granted under the Plan
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 Plan, 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 LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
Consent Of Independent Auditors
The Board of Directors and Shareholders
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 February 9,
1999, relating to the consolidated balance sheets of Network Computing
Devices, Inc. and subsidiaries as of December 31, 1998 and December 31, 1997,
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, 1998, and the related schedule, which reports appear in the December 31,
1998 annual report on Form 10-K of Network Computing Devices, Inc.
KPMG LLP
Mountain View, California
April 1, 1999
