As filed with the Securities and Exchange Commission on May 27, 1997
Registration No. 33-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under the
Securities Act of 1933
DIGITAL LINK CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
California 77-0067742
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
217 Humboldt Court
Sunnyvale, California 94089
(Address of Principal Executive Offices)
1992 Equity Incentive Plan
(Full Title of the Plan)
Stanley E. Kazmierczak
Digital Link Corporation
217 Humboldt Court
Sunnyvale, California 94089
(Name and Address of Agent For Service)
(408) 745-6200
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Eileen Duffy Robinett, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
Proposed
Title of Securities Amount Proposed Maximum Amount of
to be Registered to be Maximum Offering Aggregate Registration
Registered Price Per Share Offering Price Fee
Common Stock,
no par value 800,000(1) $17.6875(2) $14,150,000(2) $4,287.88
(1) Additional shares available for grant and not yet subject to outstanding
options as of May 21, 1997 under the 1992 Equity Incentive Plan, as
amended.
(2) Estimated as of May 23, 1997 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
DIGITAL LINK CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's annual report on Form 10-K for the year ended
December 31, 1996 filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act") on March 28, 1997
(Commission File No. 0-23110);
(b) The Registrant's quarterly report on Form 10-Q for the quarter
ended March 31, 1997 filed under the Exchange Act on May 15,
1997 (Commission File No. 0-23110);
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A (Commission
File No. 0-23110) filed on December 20, 1993 with the Commission
under Section 12(g) of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 incorporated by reference herein and to be a part hereof
from the date of the 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.
The Registrant's Articles of Incorporation include a provision that
eliminates the personal liability of its directors to the Registrant and its
shareholders for monetary damages for breach of the directors' fiduciary
duties in certain circumstances. This limitation has no effect on a
director's liability (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that a director believes to be contrary to the best interests of
the Registrant or its shareholders or that involve the absence of good faith
on the part of the director, (iii) for any transaction from which a director
derived an improper personal benefit, (iv) for acts or omissions that show a
reckless disregard for the director's duty to the Registrant or its
shareholders in circumstances in which the director was aware, or should
have been aware, in the ordinary course of performing a director's duties,
of a risk of a serious injury to the Registrant or its shareholders, (v) for
acts or omissions that constitute an unexcused pattern of inattention that
amounts to an abdication of the director's duty to the Registrant or its
shareholders, (vi) under Section 310 of the California Corporations Code
(the "California Code") (concerning contracts or transactions between the
Registrant and a director) or (vii) under Section 316 of the California Code
(concerning directors' liability for improper dividends, loans and
guarantees). The provision does not extend to acts or ommissions of a
director in his capacity as an officer. Further, the provision has no effect
on claims arising under federal or state securities laws and will not affect
the availability of injunctions and other equitable remedies available to
the Registrant's shareholders for any violation of a director's fiduciary
duty to the Registrant or its shareholders.
The Registrant's Articles of Incorporation also include an
authorization for the Registrant to indemnify its agents (as defined in
Section 317 of the California Code), through bylaws provisions, by agreement
or otherwise, to the fullest extent permitted by law. Pursuant to this
latter provision, the Registrant's Bylaws provide for indemnification of the
Registrant's directors, officers and employees. In addition, the Registrant,
at its discretion, may provide indemnification to persons whom the Registrant
is not obligated to indemnify. The Bylaws also allow the Registrant to enter
into indemnity agreements with individual directors, officers, employees
and other agents. These indemnity agreements have been entered into with all
directors and provide the maximum indemnification permitted by law. These
agreements, together with the Registrant's Bylaws and Articles of
Incorporation, may require the Registrant, among other things, to indemnify
such directors against certain liabilities that may arise by reason of their
status or service as directors (other than liabilities resulting from willful
misconduct of a culpable nature), to advance expenses to them as they are
incurred, provided that they undertake to repay the amount advanced if it is
ultimately determined by a court that they are not entitled to
indemnification, and to obtain directors' and officers' insurance if
available on reasonable terms.
Section 317 of the California Code and the Registrant's Bylaws make
provision for the indemnification of officers, directors and other corporate
agents in terms sufficiently broad to indemnify such persons, under certain
circumstances, for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act.
The Registrant carries directors' and officers' insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.01 Registrant's Amended and Restated Articles of Incorporation
filed on February 7, 1994 (incorporated herein by reference to
Exhibit 3.01 of the Registrant's Form 10-K for the year ended
December 31, 1994 (the "1994 Form 10-K"), Commission File No.
0-23110).
4.02 Registrant's Certificate of Correction of Amended and Restated
Articles of Incorporation filed on April 7, 1994 (incorporated
herein by reference to Exhibit 3.02 of the 1994 Form 10-K,
Commission File No. 0-23110).
4.03 Registrant's Bylaws, as amended (incorporated herein by
reference to Exhibit 4.03 of Registrant's Registration
Statement on Form S-8 (No. 33-95176) filed with the Commission
on July 31, 1995.
4.04 Registrant's 1992 Equity Incentive Plan, as amended.
4.05 Form of Agreement for Registrant's 1992 Equity Incentive Plan,
as amended (incorporated herein by reference to Exhibit 10.06
of the 1994 Form 10-K, Commission File No. 0-23110).
4.06 Form of specimen certificate for Registrant's Common Stock
(incorporated herein by reference to Exhibit 4.01 of the
Registrant's Registration Statement on Form S-1 (No. 33-72642)
originally filed on December 8, 1993 (the "Form S-1")).
4.07 Registration Rights Agreement among Registrant, Vinita Gupta,
Summit Ventures, L.P., SV Eurofund C.V. and Summit Investors,
L.P. dated December 23, 1987 and certain exhibits thereto
(incorporated herein by reference to Exhibit 4.02 of the
Form S-1).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
24.01 Power of Attorney (see page 7).
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;
(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 (1)(i) and (1)(ii) above do not
apply if 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
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, 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, each filing
of the Registrant's annual report pursuant to Section 13(a) or 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions discussed in Item 6,
above, or otherwise, the Registrant has been advised that in the opinion of
the 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 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 Securities Act and will be governed by the final
adjudication of such issue.
EXPERTS
The consolidated balance sheets as of December 31, 1995 and 1996 and the
consolidated statements of income, shareholders' equity and cash flows for
each of the three years in the period ended December 31, 1996, incorporated
by reference in this Registration Statement, have been audited by Coopers &
Lybrand L.L.P, Independent Accountants, as set forth in their report thereon,
and are incorporated by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
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 Sunnyvale, State of California,
on the 27th day of May, 1997.
DIGITAL LINK CORPORATION
By: /s/ Stanley E. Kazmierczak
Stanley E. Kazmierczak,
Vice President, Finance and Andministration,
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints Vinita Gupta and Stanley E.
Kazmierczak, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and
to file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he
or it might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or his or their substitute
or substitutes, may lawfully 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.
Signature Title Date
Principal Executive Officer:
/s/ Alan I. Fraser Chief Executive Officer and May 27, 1997
Alan I. Fraser President
Principal Financial Officer
and Principal Accounting
Officer:
/s/ Stanley E. Kazmierczak Vice President, Finance and May 27, 1997
Stanley E. Kazmierczak Administration , Chief Financial
Officer and Secretary
Additional Directors:
/s/ Richard Alberding Director May 27, 1997
Richard C. Alberding
/s/ Gregory Avis Director May 27, 1997
Gregory Avis
/s/ Narendra K. Gupta Director May 27, 1997
Narendra K. Gupta
/s/ Vinita Gupta Director May 27, 1997
Vinita Gupta
Exhibit Index
Sequentially
Numbered
Exhibit No. Description Page
4.01 Registrant's Amended and Restated Articles of
Incorporation filed on February 7, 1994 (incorporated
herein by reference to Exhibit 3.01 of the Registrant's
Form 10-K for the year ended December 31, 1994 (the
"1994 Form 10-K"), Commission File No. 0-23110).
4.02 Registrant's Certificate of Correction of Amended
and Restated Articles of Incorporation filed on
April 7, 1994 (incorporated herein by reference to
Exhibit 3.02 of the 1994 Form 10-K, Commission File
No. 0-23110).
4.03 Registrant's Bylaws, as amended (incorporated herein by
reference to Exhibit 4.03 of Registrant's Registration
Statement on Form S-8 (No. 33-95176) filed with the
Commission on July 31, 1995.
4.04 Registrant's 1992 Equity Incentive Plan, as amended. 9
4.05 Form of Agreement for Registrant's 1992 Equity Incentive
Plan, as amended (incorporated herein by reference to
Exhibit 10.06 of the 1994 Form 10-K, Commission File
No. 0-23110).
4.06 Form of specimen certificate for Registrant's Common
Stock (incorporated herein by reference to Exhibit
4.01 of this Registrant's Registration Statement on
Form S-1 (No. 33-72642) originally filed on December 8,
1993 (the "Form S-1")).
4.07 Registration Rights Agreement among Registrant,
Vinita Gupta, Summit Ventures, L.P., SV Eurofund C.V.
and Summit Investors, L.P. dated December 23, 1987 and
certain exhibits thereto (incorporated herein by reference
to Exhibit 4.02 of the Form S-1).
5.01 Opinion of Fenwick & West LLP. 10
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Coopers & Lybrand L.L.P., Independent Accountants. 11
24.01 Power of Attorney (see page 7).