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
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(Address of principal executive offices) (Zip code)
Network Peripherals Inc.
1997 Stock Plan
------------------------
(Full title of the plan)
William Rosenberger
President and Chief Executive Officer
Network Peripherals Inc.
1371 McCarthy Boulevard
Milpitas, California 95035
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/321-7300
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
<PAGE>
<TABLE>
- -------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered1 registered2 per share3 offering price2 registration fee
- ---------------------------- --------------------- --------------------- ----------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $3.375 $3,375,000
Par Value $0.001
TOTAL 1,000,000 $3,375,000 $995.63
</TABLE>
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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, 1997 as filed with the Commission.
- ----------------------
1 The securities to be registered include options and rights to acquire such
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,
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 29, 1998, as reported on the National Association of
Securities Dealers Automated Quotations System.
<PAGE>
(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
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 the 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 indemnification 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.
<PAGE>
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.
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 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; 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 (l)(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 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.
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
<PAGE>
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 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 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 31, 1998.
Network Peripherals Inc.
By: /s/ William Rosenberger
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William Rosenberger,
President and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
The officers and directors of Network Peripherals Inc. whose signatures
appear below, hereby constitute and appoint William Rosenberger 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 31, 1998.
Signature Title
- --------------------------------------------------------------------------------
/s/ William Rosenberger President, Chief Executive Officer
- --------------------------------- and Director (Principal Executive
William Rosenberger Officer)
/s/ Robert Hersh Vice President, Operations and Chief
- --------------------------------- Financial Officer
Robert Hersh (Principal Financial and Accounting
Officer)
/s/ Glenn E. Penisten Chairman of the Board of Directors
- ---------------------------------
Glenn E. Penisten
Director
- ---------------------------------
Charles J. Hart
/s/ Michael Gardner Director
- ---------------------------------
Michael Gardner
/s/ Joseph Marengi Director
- ---------------------------------
Joseph Marengi
<PAGE>
EXHIBIT INDEX
4.1 Amended and Restated Certificate of Incorporation of the Company is
incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange Commission on July 25, 1997 (File No. 333-32067)
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)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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
July 29, 1998
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 1,000,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Network
Peripherals Inc. 1997 Stock Plan (the "Plan") and certain individual employee
stock option agreements (the "Agreements").
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 1,000,000 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Plan and the Agreements 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 and Agreements, 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
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, 1998, which appears on
page 18 of Network Peripherals Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
July 29, 1998
9
