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Filed with the Securities and Exchange Commission on September 28, 2000
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
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
301 Ravendale Avenue
Mountain View, CA 94043
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(Address of principal executive offices) (Zip code)
NETWORK COMPUTING DEVICES, INC.
1999 Stock Option Plan
1999 Nonstatutory Stock Option Plan
1992 Employee Stock Purchase Plan, and
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(Full title of the plan)
Rudolph G. Morin
President and Chief Executive Officer
Network Computing Devices, Inc.
301 Ravendale 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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Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price aggregate offering Amount of
be registered(1) registered(2) per share(3) price(3) registration fee
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<S> <C> <C> <C> <C>
1999 STOCK OPTION PLAN
Common Stock 500,000 $1.06 $530,000 $139.92
Par Value $0.001
1999 NONSTATUTORY STOCK OPTION PLAN
Commons Stock 300,000 $1.06 $318,000 $83.95
Par Value $0.001
1992 EMPLOYEE STOCK PURCHASE PLAN
Common Stock 200,000 $0.90 $180,625 $47.68
Par Value $0.001
TOTALS 1,000,000 $1,028,625 $271.55
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(1) The securities to be registered include options and rights 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. 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 September 22,
2000, as reported on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 2. INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Recent Developments:
On March 30, 2000 we secured a working capital line of credit with
Wells Fargo Bank's Foothill Capital subsidiary. Our line is secured by
substantially all of our assets. Under the terms of the agreement borrowings
bear interest at a rate of prime plus 0.75%. The amount that can be borrowed at
any given time is determined by the balance of our accounts receivable as well
as our compliance with specified financial covenants. As of September 21, 2000
we owed Foothill Capital approximately $3.8 million and we were in breach of the
tangible net worth covenant set forth in our agreement with Foothill Capital. As
a result Foothill Capital has the right to declare an event of default and
demand immediate repayment of the loan. Foothill Capital continues to advance
funds under the line of credit, however we would not be able to repay the line
should Foothill Capital demand repayment.
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, 1999 as filed with the Securities and
Exchange Commission on April 14, 2000.
(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.
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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 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.
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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;
(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
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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.
SIGNATURE
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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 September
22, 2000.
NETWORK COMPUTING DEVICES, INC.
By: /s/ Gregory S. Wood
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Gregory S. Wood
Vice President
and Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
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The officers and directors of Network Computing Devices, Inc. whose
signatures appear below, hereby constitute and appoint Rudolph G. Morin and
Gregory S. Wood, 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 September 22, 2000.
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Signature Title
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<S> <C>
President, Chief Executive Officer and Director
/s/ Rudolph G. Morin (Principal Executive Officer)
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Vice President and
/s/ Gregory S. Wood Chief Financial Officer
----------------------------- (Principal Financial and
Accounting Officer)
/s/ Robert G. Gilbertson Chairman of the Board
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/s/ Stephen A. Macdonald Director
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/s/ Douglas H. Klein Director
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EXHIBIT INDEX
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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 September 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 Current
Report 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)
