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As filed with the Securities and Exchange Commission on June 19, 1997
Registration No.333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ACT NETWORKS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0396887
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
188 CAMINO RUIZ
CAMARILLO, CALIFORNIA 93012
(805) 388-2474
(Address of principal executive offices) (Zip Code)
1997 NON-EXECUTIVE OFFICER STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the Plan)
MARTIN SHUM
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ACT NETWORKS, INC.
188 CAMINO RUIZ
CAMARILLO, CALIFORNIA 93012
(805) 388-2474
(Name and address of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ------------
<S> <C> <C> <C> <C>
Options to purchase 250,000 N/A N/A N/A
Common Stock
Common Stock, $0.01 250,000 shares $15.75 $3,937,500 $1,193
par value
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Non-Executive Officer
Stock Option/Stock Issuance Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number
of the outstanding shares of Common Stock of ACT Networks, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling prices per share of Common Stock of ACT Networks,
Inc. on June 13, 1997, as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
ACT Networks, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1996, filed with the SEC on September 27, 1996;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarters ended September 30, 1996, December 31, 1996 and March
31, 1997, filed with the SEC on November 13, 1996, February 14,
1997, and May 15, 1997, respectively;
(c) Amendment to the Registrant's Registration Statement No.
00-25740 on Form 8-A filed with the SEC on May 1, 1995 pursuant
to Section 12 of the Securities and Exchange Act of 1934, as
amended (the "1934 Act"); and
(d) The Registrant's Registration Statement No. 00-25740 on Form 8-A
filed with the SEC on March 23, 1995 pursuant to Section 12 of
the 1934 Act in which there is described the terms, rights and
provisions applicable to the Registrant's outstanding Common
Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "1933 Act"). The Registrant's Bylaws (the "Bylaws")
provide that the Registrant shall indemnify its directors and officers if such
officer or director acted (i) in good faith, (ii) in a manner reasonably
believed to be in or not opposed to the best interests of the Registrant, and
(iii) with respect to any criminal action or proceeding with reasonable cause to
believe such conduct was lawful. The Registrant believes that indemnification
under its Bylaws covers at least negligence and gross negligence, and
II-1.
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requires the Registrant to advance litigation expenses in the case of
stockholder derivative actions or other actions, against an undertaking by the
directors and officers to repay such advances if it is ultimately determined
that the director is not entitled to indemnification. The Bylaws further provide
that rights conferred under such Bylaws shall not be deemed to be exclusive of
any other right such persons may have or acquire under any agreement, vote of
stockholders or disinterested directors, or otherwise.
In addition, the Registrant's Certificate of Incorporation (the
"Certificate of Incorporation") provides that, pursuant to Delaware law, its
directors shall not be liable for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. This provision in
the Certificate of Incorporation does not eliminate the duty of care, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a directors'
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Certificate of Incorporation further
provides that the Registrant shall indemnify its directors and officers to the
fullest extent permitted by law, and requires the Registrant to advance
litigation expenses in the case of stockholder derivative actions or other
actions, against an undertaking by the director to repay such advances if it is
ultimately determined that the director is not entitled to indemnification. The
Certificate of Incorporation also provides that rights conferred under such
Certificate of Incorporation shall not be deemed to be exclusive of any other
right such persons may have or acquire under any statute, the Certificate of
Incorporation, the Bylaws, agreement, vote of stockholders or disinterested
directors, or otherwise.
The Registrant intends to obtain a directors' and officers' liability
insurance policy that, subject to certain limitations, terms and conditions,
will insure the directors and officers of the Registrant against losses arising
from wrongful acts (as defined by the policy) in his or her capacity as a
director or officer.
In addition, the Registrant will enter into agreements to indemnify its
directors and certain of its officers in addition to the indemnification
provided for in the Certificate of Incorporation and Bylaws. These agreements
will, among other things, indemnify the Registrant's directors and certain of
its officers for certain expenses (including attorneys fees), judgments, fines
and settlement amounts incurred by such person in any action or proceeding,
including any action by or in the right of the Registrant, on account of
services as a director or officer of the Registrant or as a director or officer
of any subsidiary of the Registrant, or as a director or officer of any other
company or enterprise that the person provides services to at the request of the
Registrant.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference is made to the Registrant's
Registration Statement No. 00-25740 on Form 8-A which is incorporated herein by reference
pursuant to Item 3(d) of this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1* 1997 Non-Executive Officer Stock Option/Stock Issuance Plan.
99.2* Form of Notice of Grant of Stock Option to be generally used in connection with the 1997
Non-Executive Officer Stock Option/Stock Issuance Plan.
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II-2.
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99.3* Form of Stock Option Agreement to be generally used in
connection with the Discretionary Option Grant Program of the
1997 Non-Executive Officer Stock Option/Stock Issuance
Plan.
99.4* Form of Addendum to Stock Option Agreement (Involuntary Termination Following Change
in Control).
*Exhibits 99.1 through 99.4 are incorporated by reference to Exhibits 10.28 through 10.31, respectively,
to Registrant's quarterly report for the quarter ended March 31, 1997, filed with the SEC on May 15, 1997.
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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 (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
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 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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; and (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 Registrant's 1997
Non-Executive Officer Stock Option/Stock Issuance Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers, or controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
II-3.
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SIGNATURES
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 Camarillo, State of California on this
13th day of June, 1997.
ACT NETWORKS, INC.
By: /s/ Martin Shum
--------------------------
Martin Shum
President, Chief Executive Officer and Chairman of
of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of ACT Networks,
Inc., a Delaware corporation, do hereby constitute and appoint Martin Shum and
Melvin L. Flowers and each of them, the lawful attorneys-in-fact and agents with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Martin Shum President, Chief Executive Officer June 13, 1997
- ----------------------- and Chairman of the Board
Martin Shum (Principal Executive Officer)
/s/ Melvin L. Flowers Vice President, Finance and June 13, 1997
- ---------------------- Administration
Melvin L. Flowers and Chief Financial Officer
(Principal Financial and Accounting Officer)
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II-4.
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<S> <C> <C>
/s/ Brig. Gen. Howard R. Johnson Director June 13, 1997
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Brig. Gen. Howard R. Johnson
/s/ William Ambrose Director June 13, 1997
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William Ambrose
/s/ Archie J. McGill Director June 13, 1997
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Archie J. McGill
/s/ Frederick Gluck Director June 13, 1997
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Frederick Gluck
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EXHIBIT INDEX
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Exhibit
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Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is made to the Registrant's
Registration Statement No. 00-25740 on Form 8-A which is incorporated herein by reference
pursuant to Item 3(d) of this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1* 1997 Non-Executive Officer Stock Option/Stock Issuance Plan.
99.2* Form of Notice of Grant of Stock Option to be generally used in connection with the 1997
Non-Executive Officer Stock Option/ Stock Issuance Plan.
99.3* Form of Stock Option Agreement to be generally used in
connection with the Discretionary Option Grant Program of the
1997 Non-Executive Officer Stock Option/Stock Issuance
Plan.
99.4* Form of Addendum to Stock Option Agreement (Involuntary Termination Following Change
in Control).
*Exhibits 99.1 through 99.4 are incorporated by reference to Exhibits 10.28 through 10.31, respectively,
to Registrant's quarterly report for the quarter ended March 31, 1997, filed with the SEC on May 15, 1997.
</TABLE>
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Exhibit 5
Opinion and Consent of Brobeck, Phleger & Harrison LLP
June 17, 1997
ACT Networks, Inc.
188 Camino Ruiz
Camarillo, California 93012
Re: ACT Networks, Inc. Registration Statement for
Offering of 250,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of an additional
250,000 shares of Common Stock under the Company's 1997 Non-Executive Officer
Stock Option/Stock Issuance Plan (the "Plan"). We advise you that, in our
opinion, when such shares have been issued and sold pursuant to the applicable
provisions of the Plan and in accordance with the Registration Statement, such
shares will be validly issued, fully paid and nonassessable shares of the
Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
Brobeck, Phleger & Harrison LLP
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the registration of options to purchase 250,000 shares of
common stock and the registration of 250,000 shares of common stock under the
1997 non-executive officer stock option/stock issuance plan of ACT Networks,
Inc. of our report dated July 29, 1996 with respect to the consolidated
financial statements and schedule of ACT Networks, Inc. included in the Annual
Report (Form 10-K) for the year ended June 30, 1996, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Woodland Hills, California
June 17, 1997
