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As filed with the Securities and Exchange Commission on January 31, 2000
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Registration No. 333-______
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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VIDEO NETWORK COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware 54-1707962
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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50 International Drive
Portsmouth, New Hampshire 03801
(Address of Principal Executive Offices)
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Video Network Communications, Inc.
1999 Stock Incentive Plan
(Full Title of the Plan)
----------------------------
Robert H. Emery
Chief Financial Officer and Vice President, Administration
Video Network Communications, Inc.
50 International Drive
Portsmouth, New Hampshire 03801
(Name and Address of Agent for Service)
(603) 334-6741
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(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Ellen C. Grady, Esq.
Shaw Pittman
1676 International Drive
McLean, Virginia 22102
(703) 790-7900
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount Of
Title Of Securities Amount To Be Aggregate Offering Aggregate Offering Registration
To Be Registered Registered Price Per Share Price Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value
per share 2,640,000 shares $4.391(1) $ 11,592,240(1) $3,060.35
- --------------------------------------------------------------------------------------------------------------------------
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(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The
registration fee is calculated based on the average of the high and low prices
of the Registrant's Common Stock as reported on The Nasdaq SmallCap Market on
January 27, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
We are incorporating by this reference the following documents into this
registration statement on Form S-8, all of which are on file with the Securities
and Exchange Commission (the "Commission"). All of the documents listed below
that are incorporated in this registration statement by this reference are
considered part of this Form S-8:
(a) Our Annual Report on Form 10-KSB for the year ended December 31,
1998, as amended by our Amendment No. 1 to the Form 10-KSB on Form
10-KSB/A as filed with the Commission on May 13, 1999, and Amendment
No. 2 to the Form 10-KSB on Form 10-KSB/A filed with the Commission
on July 28, 1999;
(b) The following reports that we have filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since the end of the fiscal year covered by the
documents referred to in (a) above:
(1) Quarterly Report on Form 10-QSB for the quarter ended March
31, 1999, as filed with the Commission on May 13, 1999, and as
amended by our Quarterly Report on Form 10-QSB/A as filed with
the Commission on July 19, 1999;
(2) Current Report on Form 8-K as filed with the Commission on
June 18, 1999;
(3) Quarterly Report on Form 10-QSB for the quarter ended June 30,
1999, as filed with the Commission on August 16, 1999, and as
amended by our Quarterly Report on Form 10-QSB/A-1 as filed
with the Commission on November 22, 1999, and our Quarterly
Report on Form 10-QSB/A-2 as filed with the Commission on
November 23, 1999; and
(4) Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1999 as filed with the Commission on November
22, 1999, as amended by our Quarterly Report on Form
10-QSB/A-2 as filed with the Commission on November 23, 1999.
(c) The description of our Common Stock under the section entitled
"Description of Securities" contained in its Registration Statement
on Form SB-2 (Registration No. 333-20625) filed with the Commission
and incorporated by reference into our registration statement on
Form 8-A filed with the Commission on March 13, 1997, to register
our common stock under Section 12(g) of the Exchange Act.
All documents that we file with the Commission after the date of this
filing pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which de-registers all securities then
remaining unsold, will also be incorporated by reference in this registration
statement on Form S-8, and will be considered a part of this registration
statement from the date of filing of the report or document.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation law (the "DGCL") provides
that a corporation may limit the liability of each director to the corporation
or its stockholders for monetary damages, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders;
(ii) for acts of omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) in respect of certain unlawful
dividend payments or stock redemption or repurchases; and (iv) for any
transaction from which the director derived an improper benefit. Our Fourth
Amended and Restated Certificate of Incorporation provides for the elimination
and limitation of the personal liability of our directors for monetary damages
to the fullest extent permitted by the DGCL, as it may be amended or
supplemented from time to time.
The effect of the provision is to eliminate our right and our
stockholders' right (through stockholders' derivative suits on our behalf ) to
recover monetary damages against a director for breach of the fiduciary duty of
care as a director (including breaches resulting from negligent or grossly
negligent behavior) except in the situations described in clauses (i) through
(iv) above. The provision does not limit or eliminate our rights or the rights
of any stockholder to seek non-monetary relief, such as an injunction or
recission in the event of a breach of a director's duty of care.
We also have obtained officers' and directors' liability insurance with
respect to liabilities arising out of certain matters, including matters arising
under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Description of Exhibit
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4.1 Form of Warrant for the purchase of shares of common stock,
issued in connection with the private placement of
$2,000,000 aggregate principal amount of Bridge Notes
(Incorporated by reference to Exhibit 3.4 to our
Registration Statement on Form SB-2 (File No. 333-20625)
filed with the Securities and Exchange Commission under the
Securities Act of 1933 (the "1997 SB-2")).
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4.2 Form of Warrant for the purchase of shares of common stock,
issued in connection with the private placement of units in
June 1995 and August 1996 (incorporated by reference to
Exhibit 3.5 to the 1997 SB-2).
4.3 Form of Warrant for the purchase of 100,000 shares of
common stock, issued in connection with the private
placement of Series A Convertible Preferred Stock and
warrants in December 1996 and January 1997 (Incorporated by
reference to Exhibit 3.7 to the 1997 SB-2).
4.4 Form of Option for the purchase of 180,000 shares of common
stock, issued to Barington Capital Group, L.P. (Incorporated
by reference to Exhibit 3.8 to the 1997 SB-2).
4.5 Specimen certificate evidencing shares of our common stock
(incorporated by reference to Exhibit 4.5 forming a part of
our Registration Statement on Form SB-2 (File No. 333-72429)
filed with the Securities and Exchange Commission under the
Securities Act of 1933 (the "1999 SB-2")).
4.6 Senior Note that we issued to Sanmina Corporation with an
original principal amount of $4,300,000 (incorporated by
reference to Exhibit 4.10 forming a part of our Annual
Report on Form 10-KSB for the year ended December 31, 1998,
as amended (the "1998 Form 10-KSB")).
4.7 Note that we issued to Shaw Pittman with an original
principal amount of $375,000 (incorporated by reference to
Exhibit 4.11 forming a part of the 1998 Form 10-KSB).
4.8 Form of Warrant for the purchase of 275,000 shares of
common stock issued to Sanmina Corporation (incorporated by
reference to Exhibit 4.12 forming a part of the 1998 Form
10-KSB).
4.9 Form of Warrant for the purchase of 40,000 shares of common
stock, issued to Shaw Pittman (incorporated by reference to
Exhibit 4.13 forming a part of the 1998 Form 10-KSB).
4.10 Form of Representative's Purchase Option that we issued to
the representative of the underwriters of our June 1999
public offering of units (incorporated by reference to
Exhibit 4.15 to the 1999 SB-2).
4.11 Specimen certificate evidencing Redeemable Common Stock
Purchase Warrant (incorporated by reference to Exhibit 4.16
to the 1999 SB-2).
4.12 Form of Warrant Agreement (incorporated by reference to
Exhibit 4.17 to the 1999 SB-2).
4.13 Specimen certificate evidencing unit (incorporated by
reference to Exhibit 4.18 to the 1999 SB-2).
5.1* Opinion of Shaw Pittman as to the legality of the
securities being registered.
23.1* Consent of Shaw Pittman (filed herewith as part of Exhibit 5).
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23.2* Consent of PricewaterhouseCoopers LLP.
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) 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 there) which, individually or the
aggregate, represents 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 statements,
provided, however, that paragraphs (a)(1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 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 securities which remain unsold at the
termination of the offering.
(b) Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report filed pursuant to Section 13(a) or 15(d) (relating to employers
which have registered stock under the 1933 Act) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit
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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
the 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 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.
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SIGNATURES
The Registrant. 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 New York, New York, on this 18th day of January,
2000.
VIDEO NETWORK COMMUNICATIONS, INC.
(Registrant)
/s/ Carl Muscari
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Carl Muscari
President and Chief Executive Officer
Pursuant to the requirements on the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Name Title Date
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<S> <C> <C>
President and Chief
Executive Officer and
Director (Principal
/s/ Carl Muscari Executive Officer) January 18, 2000
- -----------------------------
Carl Muscari
Chief Financial Officer
and Vice President,
/s/ Robert H. Emery Administration January 18, 2000
- ----------------------------- (Principal Financial
Robert H. Emery and Accounting Officer)
/s/ James F. Bunker Chairman of the Board January 18, 2000
- ----------------------------- of Directors
James F. Bunker
/s/ Eugene Cacciamani Director January 18, 2000
- -----------------------------
Eugene Cacciamani
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/s/ Marc S. Cooper Director January 18, 2000
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Marc S. Cooper
/s/ Richard Friedland Director January 18, 2000
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Richard Friedland
/s/ Steven A. Rogers Director January 18, 2000
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Steven A. Rogers
/s/ Cheryl Snyder Director January 18, 2000
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Cheryl Snyder
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January 28, 2000
Video Network Communications, Inc.
50 International Drive
Portsmouth, New Hampshire 03801
RE: VIDEO NETWORK COMMUNICATIONS, INC. (FORMERLY OBJECTIVE
COMMUNICATIONS, INC.)-- REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel for Video Network Communications Inc., a
Delaware corporation (the "Company"), in connection with the registration of
2,640,000 shares of common stock, par value $.01 per share (the "Common Stock"),
that may be issued by the Company under its 1999 Stock Incentive Plan (the
"Plan"), pursuant to a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"). The
2,640,000 shares of Common Stock that may be issued under the Plan are
collectively referred to herein as the "Shares."
We have participated in the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") under the Act and the
rules and regulations promulgated thereunder (the "Regulations"). In rendering
our opinion, we have also examined the following:
(1) the Fourth Amended and Restated Certificate of Incorporation of the
Company, as filed with the Secretary of State of the State of Delaware
on September 9, 1999, as certified by the Secretary of the Company on
the date hereof (the "Certificate of Incorporation");
(2) the Bylaws of the Company, as adopted by the Company on December
15, 1993, as amended by the Board of Directors of the Company (the
"Board") on October 4, 1994, as amended by the majority stockholder of
the Company on January 1, 1996, as amended and restated by the Board on
February 1, 1996 and February 18, 1997, and as further amended by the
Board on June 8, 1999, as in effect on the date hereof, as certified by
the Secretary of the Company on the date hereof (the "Bylaws");
(3) the Plan;
(4) the Registration Statement;
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Video Network Communications, Inc.
January 28, 2000
Page 2 of 4
(5) the Information Statement of the Company as of the date hereof
relating to the Plan (the "Information Statement");
(6) Resolutions of the Board of Directors of the Company adopted at
meetings held on June 24, 1999 and January 18, 2000, and resolutions of
the stockholders of the Company adopted at a meeting held on September
9, 1999, all as in effect as of the date hereof (collectively, the
"Resolutions"); and
(7) the certificate of the Secretary of the Company dated today
certifying as to (A) the Certificate of Incorporation, (B) the Bylaws,
and (C) the Resolutions (the "Secretary's Certificate").
In our examination of the foregoing, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified, photostatic or facsimile copies and the authenticity of the originals
of such latter documents, and the legal capacity of natural persons.
In rendering this opinion, we have assumed that each party (other than
the Company) that has executed or will execute an agreement to which the Company
is a party has all requisite power and authority and has taken all necessary
action to execute and deliver such agreement and to perform the transactions
contemplated thereby, and that each such agreement is the legal, valid and
binding obligation of such parties (other than the Company) enforceable against
such parties in accordance with its terms.
Based upon and in reliance upon the foregoing and subject to the
limitations and qualifications hereinafter set forth, we are of the opinion that
the Shares have been duly authorized for issuance and sale by the Company by all
requisite corporate action by the Company. When the Shares are issued and
delivered by the Company in accordance with the terms of the Plan, against
payment of the consideration required to be paid in connection therewith, the
Shares will be validly issued, fully paid and non-assessable.
The foregoing opinions are, with your concurrence, predicated upon and
qualified by the following:
a. Our opinions are based upon and are limited to the published
compilations of the General Corporation Law of the State of Delaware excluding
the choice of law provisions thereof and the relevant laws of the United States
of America. We render no opinion with respect to the laws of any other
jurisdiction.
b. Our opinions are based upon and limited to laws and
regulations as in effect on the date of this letter, and our knowledge of the
facts relevant to such opinions as of the date of this letter. We assume no
obligation to update the opinions set forth herein.
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Video Network Communications, Inc.
January 28, 2000
Page 3 of 4
c. Our opinions are limited to the matters set forth in this
letter, and no other opinions should be inferred beyond the matters expressly
stated.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Shaw Pittman
cc: Continental Stock Transfer and Trust Company
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 26, 1999, except for Note 14,
as to which the date is April 14, 1999, relating to the financial statements,
which appears in the 1998 Annual Report to Shareholders of Video Network
Communications, Inc. (a development stage enterprise), which is incorporated by
reference in Video Network Communications Inc's Annual Report on Form 10-KSB/A
for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
Boston, MA
January 25, 2000
