As filed with the Securities and Exchange Commission on April 10, 1998
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NETWORK EQUIPMENT TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-2904044
(State or other jurisdiction of (I.R.S. employer identification No.)
incorporation or organization)
800 Saginaw Drive, Redwood City, CA 94063 (650) 366-4400
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
1998 Employee Stock Purchase Plan
N.E.T. Stock Option Program
1993 Stock Option Plan
(Full title of the plan)
James B. De Golia, Esq.
Vice President and General Counsel
800 Saginaw Drive
Redwood City, CA 94063
(Name and address of agent for service)
(650) 366-4400
(Telephone number, including area code, of agent for service)
With copies of all notices and communications to:
Stephen C. Ferruolo, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, CA 94301
Telephone: (650) 324-7000
Facsimile: (650) 324-0638
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of securities Amount Proposed maximum Proposed maximum Amount of
to be registered to be offering price per aggregate offering price registration fee
registered share (1) (1)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par value 3,600,000 $17.50 $63,000,000 $18,585.00
====================================================================================================================================
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
as amended based on the average of the high and low prices reported of the
Registrant's Common Stock on the New York Stock Exchange on April 6, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by Network Equipment
Technologies, Inc. (the "Registrant") with the Securities and Exchange
Commission (the "Commission"), are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1997;
(b) The Registrant's quarterly reports on Form 10-Q for the fiscal
quarters ended June 29, 1997, September 28, 1997 and December 28,
1997;
(c) The Registrant's current report on Form 8-K filed with the Commission
on April 9, 1998; and
(d) The description of the Registrant's Common Stock contained in its
registration statement filed with the Commission under the Securities
and Exchange Act of 1934, as amended ("Exchange Act"), including any
amendment or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the termination of
the offering of the securities offered hereby shall be deemed to be incorporated
by reference into this registration statement and to be a part hereof from the
respective dates 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 other subsequently
filed document that also is or 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.
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Item 6. Indemnification of Directors and Officers
The Registrant has the power to indemnify its officers and directors
against liability for certain acts pursuant to Section 145 of the General
Corporation Law of the State of Delaware. Section 6 of Article VII of the
Registrant's By-Laws provides:
"INDEMNIFICATION OF OFFICERS AND DIRECTORS
(a) Indemnification in Actions Other Than Those Brought by the
Corporation. The corporation shall indemnify and hold harmless,
to the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended
(but, in the case of such amendment, only to the extent that such
amendment permits the corporation to provide broader
indemnification rights than such law permitted the corporation to
provide prior to such amendment), any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that
he or she is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation
against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding.
Except as provided in paragraph (d) of this Section 6, the
corporation shall be required to indemnify a person in connection
with a proceeding (or part thereof) initiated by such person only
if the proceeding (or part thereof) was authorized by the Board
of Directors of the corporation.
(b) Indemnification in Actions Brought By or on Behalf of the
Corporation. The corporation shall indemnify and hold harmless,
to the fullest extent permitted by the Delaware General
Corporation Law, as the same exists or may hereafter be amended,
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he or she is or was a director
or officer of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or
agent of another corporation, against expenses (including
attorneys' fees) actually and reasonably incurred by him or her
in connection with the defense or settlement of such action or
suit.
(c) Expenses; Prepayment. The corporation shall pay the expenses
(including attorneys' fees) incurred by a director or officer who
has been successful on the merits or otherwise in defending any
action, suit or proceeding referenced in paragraphs (a) and (b)
of
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this Section 6 and shall pay such expenses in advance of the
final disposition of such matter upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is
not entitled to be indemnified under this Article or otherwise.
(d) Indemnification Procedure; Claims. Any indemnification under
paragraphs (a) and (b) of this Section 6 (unless ordered by a
court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the
director of office is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in
paragraphs (a) and (b). If a claim for indemnification or payment
of expenses under Section 6 of this Article is not paid in full
within sixty days after a written claim therefor has been
received by the corporation, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in
whole or in part, shall be entitled to be paid the expense of
prosecuting such claim.
(e) Indemnification of Others. The Board of Directors, in its
discretion, shall have the power on behalf of the corporation to
indemnify any person, other than a director or officer, made a
party to any action, suit or proceeding by reason of the fact
that he or she, or his or her testator or intestate, is or was an
employee or agent of the corporation and to pay the expenses
incurred by any such person in defending such action, suit or
proceeding in advance of its final disposition.
(f) Non-exclusivity of Rights. The indemnification and advancement of
expenses provided by or granted pursuant to Section 6 of this
Article VII shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders,
or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity
while holding such office.
(g) Other Indemnification. The corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity
shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
(h) Insurance. The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation against any
liability
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asserted against him or her and incurred by him or her in such
capacity, or arising out of his or her status as such, whether or
not the corporation would have the power to indemnify him or her
against such liability under the provisions of this Section 6.
(i) Successor Entities. For purposes of Section 6 of this Article
VII, references to "the corporation" shall include, in addition
to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, employees and agents so that any person who
is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or
agent of another corporation shall stand in the same position
under the provisions of this Section 6 of Article VII with
respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its
separate existence had continued.
(j) Survival of Rights; Amendment or Repeal. The indemnification and
advancement of expenses provided by or granted pursuant to this
Article VII shall, unless otherwise provided when authorized or
ratified, continue as a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Any repeal
or modification of the foregoing provisions of Section 6 of this
Article VII shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.
In addition, the Article IX of the Registrant's Restated Certificate of
Incorporation provides as follows:
"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
involve 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 any improper personal
benefit. If the Delaware General Corporation Law is hereafter amended
to authorize, with the approval of a corporation's stockholders,
further reductions in the liability of the corporation's directors for
breach of fiduciary duty, then a director of the corporation shall not
be liable for any such breach 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 IX by the
stockholders of the corporation shall
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not adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or modification."
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Independent Auditors' Consent
23.2 Consent of Heller Ehrman White & McAuliffe (filed as part of
Exhibit 5)
24 Power of Attorney (see page 8)
99.1 1998 Employee Stock Purchase Plan
99.2 N.E.T. Stock Option Program
99.3 1993 Stock Option Plan
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 Securities Act of 1933, as amended (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 A(1)(i) and A(1)(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 15(d) of the Exchange Act that are incorporated by reference
in the registration statement.
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(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.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 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.
C. 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
described in Item 6, 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.
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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 Redwood City, state of California, on April 10, 1998.
NETWORK EQUIPMENT
TECHNOLOGIES, INC.
By: /s/ Joseph J. Francesconi
--------------------------------------
Joseph J. Francesconi
Chief Executive Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Joseph
J. Francesconi and Craig M. Gentner his true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to the Registration
Statement, and to sign any registration statement for the same offering covered
by this Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective
amendments thereto, 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, 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 might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his 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 below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Joseph J. Francesconi Chief Executive Officer and Director April 10, 1998
- -------------------------------- (Principal Executive Officer)
Joseph J. Francesconi
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/s/ Craig M. Gentner Senior Vice President, Chief April 10, 1998
- -------------------------------- Financial Officer and Corporate
Craig M. Gentner Secretary (Principal Financial and
Accounting Officer)
/s/ Dixon R. Doll Director April 10, 1998
- --------------------------------
Dixon R. Doll
/s/ James K. Dutton Director April 10, 1998
- --------------------------------
James K. Dutton
/s/ Walter J. Gill Director April 10, 1998
- --------------------------------
Walter J. Gill
/s/ George M. Scalise Director April 10, 1998
- --------------------------------
George M. Scalise
/s/ Hans A. Wolf Director April 10, 1998
- --------------------------------
Hans A. Wolf
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INDEX TO EXHIBITS
Item No. Description of Item Page
- -------- -------------------------------------------------------------- ----
5 Opinion of Heller Ehrman White & McAuliffe........................
23.1 Independent Auditors' Consent.....................................
23.2 Consent of Heller Ehrman White & McAuliffe (filed as part
of Exhibit 5)...................................................
24 Power of Attorney (see page 8)....................................
99.1 1998 Employee Stock Purchase Plan.................................
99.2 N.E.T. Stock Option Program.......................................
99.3 1993 Stock Option Plan............................................
10