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As filed with the Securities and Exchange Commission on June 14, 2000
Registration No. 333-
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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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NETMANAGE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7372 77-025226
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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10725 NORTH DEANZA BOULEVARD
CUPERTINO, CA 95014-2030
(408) 973-7171
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1992 STOCK OPTION PLAN
1993 EMPLOYEE STOCK PURCHASE PLAN
1999 NONSTATUTORY STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
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ZVI ALON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NETMANAGE, INC.
10725 NORTH DEANZA BOULEVARD
CUPERTINO, CA 95014-2030
(408) 973-7171
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(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
MICHAEL J. DANAHER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
1992 Stock Option Plan
Common Stock, $0.01 par value
(options available for future grant)(1).... 2,200,000 shares $2.81 $6,182,000.00 $1,632.05
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1993 Employee Stock Purchase Plan
Common Stock, $0.01 par value(2)......... 1,000,000 shares $2.39 $2,390,000.00 $ 630.96
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1999 Nonstatutory Stock Option Plan
Common Stock, $0.01 par value
(options granted and outstanding)(3)....... 3,361,617 shares $3.70 $12,437,982.90 $3,283.63
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1999 Nonstatutory Stock Option Plan
Common Stock, $0.01 par value
(options available for future grant)(1)... 638,383 shares $2.81 $1,793,856.23 $ 473.58
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TOTAL REGISTRATION FEES $6,020.22
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(1) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. No options have been granted
with respect to such shares. The computation is based upon the average of
the high and low price of the Common Stock as reported on the Nasdaq
National Market on June 1, 2000 because the price at which the options to
be granted in the future may be exercised is not currently determinable.
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
June 1, 2000 because the price at which the stock will be issued is not
currently determinable. Pursuant to the 1993 Employee Stock Purchase Plan,
which plan is incorporated by reference herein, the Purchase Price of a
share of Common Stock shall mean an amount equal to 85% of the Fair Market
Value of the Common Stock on the Subscription Date or the Purchase Date,
whichever is lower. The Fair Market Value is defined as the closing price
each day the market is open on either the Subscription Date or the Purchase
Date, whichever price is lower.
(3) This computation is based upon the weighted average exercise price per
share of $3.70 as to 3,361,617 outstanding but unexercised options to
purchase Common Stock under the 1999 Nonstatutory Stock Option Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
Dec. 31, 1999 dated March 30, 2000, filed pursuant to Rule 424(b)(4) under the
Securities Act of 1933 on February 9, 2000.
(b) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange
Act on August 2, 1993.
(c) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware law authorizes corporations to eliminate the personal liability of
directors to corporations and their stockholders for monetary damages for breach
or alleged breach of the directors' "duty of care." While the relevant 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 directors' duty of loyalty, acts or omissions not in
good faith or involving intentional misconduct or knowing violations of law,
illegal payment of dividends and approval of any transaction from which a
director derives an improper personal benefit.
The Registrant has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Registrant and
its stockholders for monetary damages for breach or alleged breach of their duty
of care. The Bylaws of the Registrant provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by the
General Corporation Law of the State of Delaware, the Registrant's state of
incorporation, including those circumstances in which indemnification would
otherwise be discretionary under Delaware Law. 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.
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The Registrant has entered into agreements with each of its directors and
executive officers to indemnify such persons 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 officer of the Registrant or
any of its affiliated enterprises, provided such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Exhibit Index below).
ITEM 9. UNDERTAKINGS.
(a) 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 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.
(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 that remain unsold at the
termination of the offering.
(b) 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 an initial bona fide offering thereof.
(c) 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 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
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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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Cupertino, State of California on June 14, 2000.
NETMANAGE, INC.
By: /s/ ZVI ALON
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Zvi Alon
President, Chief Executive Officer
and Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Zvi Alon, Michael Peckham, and Kevin
Vitale, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ ZVI ALON President, Chief Executive Officer June 14, 2000
--------------------------- and Chairman
Zvi Alon
/s/ MICHAEL PECKHAM Chief Financial Officer and Senior June 14, 2000
--------------------------- Vice President
Michael Peckham
/s/ KEVIN VITALE Executive Vice President, Chief June 14, 2000
--------------------------- Operating Officer
Kevin Vitale
/s/ WILLIAM FEICHTMANN Corporate Controller June 14, 2000
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William Feichtmann
/s/ JOHN BOSCH Director June 14, 2000
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John Bosch
Director
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Uzia Galil
/s/ SHELLEY HARRISON, PH.D. DIRECTOR June 14, 2000
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Shelley Harrison, Ph.D.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ DARRELL MILLER Director June 14, 2000
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Darrell Miller
/s/ ABRAHAM OSTROVSKY Director June 14, 2000
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Abraham Ostrovsky
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INDEX TO EXHIBITS
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EXHIBIT NUMBER EXHIBIT DOCUMENT
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4.1* Certificate of Amendment of Certificate of Incorporation of
NetManage, Inc.
4.2** Bylaws of Registrant
4.3** 1992 Stock Option Plan
4.4** 1993 Employee Stock Purchase Plan
4.5*** 1999 Nonstatutory Stock Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Arthur Andersen LLP (Independent Accountants)
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (Contained in Page II-4)
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* Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form S-4 (No. 333-59101) dated July 17, 1998.
** Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form S-1 (No. 33-66460) dated July 24, 1993, as
amended.
*** Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form 10-K (No. 000-22158) dated March 30, 2000.
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