Registration No. _________________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
Network Peripherals Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 77-0216135
-------- ----------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1371 McCarthy Boulevard
Milpitas, California 95035
---------------------------------------------------
(Address of principal executive offices) (Zip code)
Network Peripherals Inc.
1997 Stock Plan
------------------------
(Full title of the plan)
Pauline Lo Alker
President and Chief Executive Officer
Network Peripherals Inc.
1371 McCarthy Boulevard
Milpitas, California 95035
---------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/321-7300
This registration statement, including all exhibits and attachments, contains 15
pages. The exhibit index may be found on page 7 of the consecutively numbered
pages of the registration statement.
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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<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered(1) registered per share(2) offering price(2) registration fee
- ---------------------------- --------------------- --------------------- ----------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock 463,000 $9.2500 $4,282,750.00
Par Value $0.001 1,037,000 $7.6875 $7,971,937.50
TOTAL 1,500,000 $12,254,687.50 $3,713.54
<FN>
(1) The securities to be registered include options and rights to acquire such
Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options,
the price is based upon the weighted average exercise price. As to the remaining
shares, the price is based upon the average of the high and low prices of the
Common Stock on July 18, 1997, as reported on the National Association of
Securities Dealers Automated Quotations System.
</FN>
</TABLE>
--------------------------------------------------
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Network Peripherals 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, 1996 as filed with the Commission.
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(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 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
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 the 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 Company has adopted provisions in its Certificate of Incorporation
which eliminate 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. The By-Laws of the Company 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 Company'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.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
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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
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Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
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 Milpitas, State of California, on July 24, 1997.
Network Peripherals Inc.
By: /s/ Pauline Lo Alker
-------------------------------------
Pauline Lo Alker, President and Chief
Executive Officer
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POWER OF ATTORNEY
The officers and directors of Network Peripherals Inc. whose
signatures appear below, hereby constitute and appoint Pauline Lo Alker and
Robert Hersh, 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, her 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 July 24, 1997.
Signature Title
- --------------------------------------------------------------------------------
/s/ Pauline Lo Alker President, Chief Executive Officer and Director
- ----------------------- (Principal Executive Officer)
Pauline Lo Alker
/s/ Robert Hersh Vice President, Finance and Chief Financial Officer
- ----------------------- (Principal Financial and Accounting Officer)
Robert Hersh
/s/ Glenn E. Penisten Chairman of the Board of Directors
- -----------------------
Glenn E. Penisten
Director
- -----------------------
Charles J. Hart
/s/ Kenneth Levy Director
- -----------------------
Kenneth Levy
/s/ Joseph Marengi Director
- -----------------------
Joseph Marengi
/s/ William P. Tai Director
- -----------------------
William P. Tai
6
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<TABLE>
<CAPTION>
EXHIBIT INDEX
Sequentially
Numbered
Page
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company, as filed with the
Secretary of State of Delaware on July 7, 1994 8
4.2 Bylaws of the Company is incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1 filed with the Securities and Exchange Commission on --
April 28, 1994 (File No. 33-78350)
4.3 Fourth Amended and Restated Investor Rights Agreement dated July 15, 1993 is incorporated
by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-1 filed with --
the Securities and Exchange Commission on April 28, 1994 (File No. 33-78350)
5 Opinion re legality 14
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Price Waterhouse LLP 15
24 Power of Attorney (included in signature pages to this registration statement) --
</TABLE>
7
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION OF
NETWORK PERIPHERALS INC.
Pursuant to Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware, Pauline Lo Alker, President, and Darrel R. Scherbarth,
Secretary, of Network Peripherals Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), do hereby certify:
The date of filing of the Corporation's original Certificate of
Incorporation was April 15, 1994. This Amended and Restated Certificate of
Incorporation was duly proposed by the directors and adopted by the stockholders
in the manner and by the vote prescribed by Sections 211, 212 and 242 of the
Delaware General Corporation Law.
The Certificate of Incorporation of the Corporation was amended and
restated to read in its entirety as follows:
FIRST: The name of the Corporation is Network Peripherals
Inc. (hereinafter sometimes referred to as the
"Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is The
Prentice-Hall Corporation System, Inc., 32 Loockerman
Square, Suite L-100, in the City of Dover, County of
Kent. The name of the registered agent at that
address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which a corporation may be
organized under the General Corporation Law of
Delaware.
FOURTH:
(A) Classes of Stock. The Corporation is authorized to
issue two classes of stock to be designated,
respectively, "Common Stock" and "Preferred Stock."
The total number of shares which the Corporation is
authorized to issue is Twenty Two Million
(22,000,000) shares. Twenty Million (20,000,000)
shares shall be Common Stock, $0.001 par value per
share, and Two Million (2,000,000) shares shall be
Preferred Stock, $0.001 par value per share.
8
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(B) Rights, Preferences and Restrictions of Preferred
Stock. The Preferred Stock authorized by this
Certificate of Incorporation may be issued from time
to time in series. The Board of Directors is
authorized to determine, alter or eliminate any or
all of the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly
unissued series of Preferred shares, and to fix,
increase or decrease the number of shares comprising
any such series and the designation thereof, or any
of them, and to provide for the rights and terms of
redemption or conversion of the shares of any such
series.
(C) Common Stock.
1. Dividend Rights. Subject to the prior rights of
holders of all classes of stock at the time
outstanding having prior rights as to dividends, the
holders of the Common Stock shall be entitled to
receive, when and as declared by the Board of
Directors, out of any assets of the Corporation
legally available therefor, such dividends as may be
declared from time to time by the Board of Directors.
2. Liquidation Rights. Subject to the prior rights of
holders of all classes of stock at the time
outstanding, upon the liquidation, dissolution or
winding up of the Corporation, the assets of the
Corporation shall be distributed pro rata among the
holders of Common Stock.
3. Redemption. The Common Stock is not redeemable.
4. Voting Rights. The holder of each share of Common
Stock shall have the right to one vote, and shall be
entitled to notice of any stockholders' meeting in
accordance with the Bylaws of the Corporation, and
shall be entitled to vote upon such matters and in
such manner as may be provided by law.
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the
affairs of the Corporation, and for further
definition, limitation and regulation of the powers
of the Corporation and of its directors and
stockholders:
A. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of
Directors. In addition to the powers and authority
expressly conferred upon them by statute or by this
Certificate of Incorporation or the By-Laws of the
Corporation, the directors are hereby empowered to
exercise all such powers and do all such acts and
things as may be exercised or done by the
Corporation.
9
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B. The directors of the Corporation need not be elected
by written ballot unless the By-Laws so provide.
C. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a
duly called annual or special meeting of stockholders
of the Corporation and may not be effected by any
consent in writing by such stockholders.
D. Special meetings of stockholders of the Corporation
may be called only (1) by the Board of Directors
pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not
there exist any vacancies in previously authorized
directorships at the time any such resolution is
presented to the Board for adoption) or (2) by the
holders of not less than ten percent (10%) of all of
the shares entitled to cast votes at the meeting.
SIXTH:
A. The number of directors shall initially be set at
five (5) and, thereafter, shall be fixed from time to
time exclusively by the Board of Directors pursuant
to a resolution adopted by a majority of the total
number of authorized directors (whether or not there
exist any vacancies in previously authorized
directorships at the time any such resolution is
presented to the Board for adoption). The directors
shall be divided into three classes with the term of
office of the first class (Class I) to expire at the
annual meeting of the stockholders held in 1995; the
term of office of the second class (Class II) to
expire at the annual meeting of stockholders held in
1996; the term of office of the third class (Class
III) to expire at the annual meeting of stockholders
held in 1997; and thereafter for each such term to
expire at each third succeeding annual meeting of
stockholders after such election. Subject to the
rights of the holders of any series of Preferred
Stock then outstanding, a vacancy resulting from the
removal of a director by the stockholders as provided
in Article SIXTH, Section C below may be filled at a
special meeting of the stockholders held for that
purpose. All directors shall hold office until the
expiration of the term for which elected, and until
their respective successors are elected, except in
the case of the death, resignation, or removal of any
director.
B. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created
directorships resulting from any increase in the
authorized number of directors or any vacancies in
the Board of Directors resulting from death,
resignation or other cause (other than removal from
office by a vote of the stockholders) may be filled
only by a majority vote of the directors then in
office, though less than a quorum, and directors so
chosen shall hold office for a term expiring at the
next annual meeting of
10
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stockholders at which the term of office of the class
to which they have been elected expires, and until
their respective successors are elected, except in
the case of the death, resignation, or removal of any
director. No decrease in the number of directors
constituting the Board of Directors shall shorten the
term of any incumbent director.
C. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any directors, or
the entire Board of Directors, may be removed from
office at any time, with or without cause, but only
by the affirmative vote of the holders of at least a
majority of the voting power of all of the then
outstanding shares of capital stock of the
Corporation entitled to vote generally in the
election of directors, voting together as a single
class. Vacancies in the Board of Directors resulting
from such removal may be filled by a majority of the
directors then in office, though less than a quorum,
or by the stockholders as provided in Article SIXTH,
Section A above. Directors so chosen shall hold
office for a term expiring at the next annual meeting
of stockholders at which the term of office of the
class to which they have been elected expires, and
until their respective successors are elected, except
in the case of the death, resignation, or removal of
any director.
SEVENTH: The Board of Directors is expressly empowered to
adopt, amend or repeal By-Laws of the Corporation.
Any adoption, amendment or repeal of By-Laws of the
Corporation by the Board of Directors shall require
the approval of a majority of the total number of
authorized directors (whether or not there exist any
vacancies in previously authorized directorships at
the time any resolution providing for adoption,
amendment or repeal is presented to the Board). The
stockholders shall also have power to adopt, amend or
repeal the By-Laws of the Corporation. Any adoption,
amendment or repeal of By-Laws of the Corporation by
the stockholders shall require, in addition to any
vote of the holders of any class or series of stock
of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of
the holders of at least sixty-six and two-thirds
percent (66-2/3%) of the voting power of all of the
then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the
election of directors, voting together as a single
class.
EIGHTH: A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in
good faith or which involved intentional misconduct
or a knowing violation of law, (iii) under Section
174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived
an improper personal benefit.
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If the Delaware General Corporation Law is hereafter
amended to authorize the further elimination or
limitation of the liability of a director, then the
liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so
amended.
Any repeal or modification of the foregoing
provisions of this Article EIGHTH by the stockholders
of the Corporation shall not adversely affect any
right or protection of a director of the Corporation
existing at the time of such repeal or modification.
NINTH: The Corporation reserves the right to amend or repeal
any provision contained in this Certificate of
Incorporation in the manner prescribed by the laws of
the State of Delaware and all rights conferred upon
stockholders are granted subject to this reservation;
provided, however, that, notwithstanding any other
provision of this Certificate of Incorporation or any
provision of law which might otherwise permit a
lesser vote or no vote, but in addition to any vote
of the holders of any class or series of the stock of
this Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of
the holders of at least 66-2/3% of the voting power
of all of the then outstanding shares of the capital
stock of the Corporation entitled to vote generally
in the election of directors, voting together as a
single class, shall be required to amend or repeal
this Article NINTH, Article FIFTH, Article SIXTH,
Article SEVENTH or Article EIGHTH.
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IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by its President and attested
by its Secretary this 6th day of July 1994.
/s/ Pauline Lo Alker
---------------------------
Pauline Lo Alker, President
Attest:
/s/ Darrell R. Scherbarth
- --------------------------------
Darrell R. Scherbarth, Secretary
13
[Letterhead of GRAY CARY WARE & FREIDENRICH]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (415) 328-6561
FAX (415) 327-3699
EXHIBIT 5
OUR FILE NO.
1140384-903900
July 24, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Network Peripherals 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 1,500,000
shares of the Common Stock, $0.001 par value, of the Company which may be issued
pursuant to the terms of the Network Peripherals Inc. 1997 Stock 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 1,500,000
shares of Common Stock which may be issued 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
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
14
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on form S-8 of our report dated January 21, 1997, which appears on
page 19 of Network Peripherals Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1996.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
July 24, 1997
15
