As filed with the Securities and Exchange Commission on November 26, 2001
Registration No. 333-_______________
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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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NETWORK APPLIANCE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0307520
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
495 EAST JAVA DRIVE, SUNNYVALE, CA 94089
(Address of principal executive offices) (Zip Code)
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NETWORK APPLIANCE, INC. 1999 STOCK OPTION PLAN
NETWORK APPLIANCE, INC. EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the Plans)
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DANIEL J. WARMENHOVEN
CHIEF EXECUTIVE OFFICER AND DIRECTOR
NETWORK APPLIANCE, INC.
495 EAST JAVA DRIVE, SUNNYVALE, CA 94089
(Name and address of agent for service)
(408) 822-6000
(Telephone number, including area code, 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 Price Fee
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Network Appliance, Inc.
1999 Stock Option Plan 13,400,000 shares $14.895(2) $199,593,000.00(2) $49,898.25
Common Stock, $0.001 par value
Network Appliance, Inc.
Employee Stock Purchase Plan 3,000,000 shares $14.895(2) $ 44,685,000.00(2) $11,171.25
Common Stock, $0.001 par value
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Total: 16,400,000 shares Aggregate Registration Fee: $61,069.50
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(1) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock which become issuable under the Network
Appliance, Inc. 1999 Stock Option Plan or Network Appliance, Inc.
Employee Stock Purchase Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the Registrant's receipt of consideration which results in an increase
in the number of the Registrant's outstanding shares of Common Stock.
(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 Network
Appliance, Inc. on November 21, 2001, as reported by the Nasdaq National
Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Network Appliance, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended April 27, 2001, filed with the Commission on July 26, 2001,
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended July 27, 2001, filed with the Commission on
September 10, 2001; and
(c) The Registrant's Registration Statement No. 000-27130 on Form 8-A
filed with the Commission on November 1, 1995, in which there is
described the terms, rights and provisions applicable to the
Registrant's 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 de-registers 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
Section 145 of the Delaware General Corporation Law authorizes a
court to award or a corporation's board of directors to grant indemnification to
directors and officers in terms sufficiently broad to permit the indemnification
under some circumstances for liabilities (including reimbursement for expenses
incurred) arising under the 1933 Act. Article IX of the Certificate of
Incorporation of the Registrant provides that, subject to Delaware law, its
directors will not be personally liable for monetary damages for breach of their
fiduciary duties to the Registrant and its stockholders. This provision does not
eliminate any director's fiduciary duties and in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. The provision also does not affect a
director's responsibilities under any other law, such as the federal securities
laws or state or federal environmental laws.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No.
000-27130 on Form 8-A, together with the amendments and
exhibits thereto, which are incorporated herein by
reference pursuant to Items 3(c).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
99.1 Network Appliance, Inc. 1999 Stock Option Plan (As Amended
and Restated Through October 18, 2001).
99.2 Network Appliance, Inc. Employee Stock Purchase Plan (As
Amended and Restated Effective October 18, 2001).
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 clauses 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 Network
Appliance, Inc. 1999 Stock Option Plan or the Network Appliance, Inc. Employee
Stock Purchase 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 indemnification provisions summarized 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
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.
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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 Sunnyvale, State of California on this
19th day of November, 2001.
NETWORK APPLIANCE, INC.
By: /s/ Daniel J. Warmenhoven
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Daniel J. Warmenhoven
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Daniel J. Warmenhoven and
Jeffry R. Allen, and each of them, as such person's true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file same, with all exhibits
thereto, and other 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 connection therewith, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitutes, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
Signature Title Date
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/s/ Daniel J. Warmenhoven Chief Executive Officer November 19, 2001
- ------------------------------ and Director
Daniel J. Warmenhoven (Principal Executive Officer)
/s/ Jeffry R. Allen Executive Vice President, Finance November 19, 2001
- ------------------------------ and Operations, Chief Financial
Jeffry R. Allen Officer
(Principal Financial and Accounting
Officer)
/s/ Donald T. Valentine Chairman of the Board and Director November 19, 2001
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Donald T. Valentine
/s/ Sanjiv Ahuja Director November 19, 2001
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Sanjiv Ahuja
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/s/ Carol A. Bartz Director November 19, 2001
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Carol A. Bartz
Director November , 2001
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Michael R. Hallman
/s/ Dr. Sachio Semmoto Director November 19, 2001
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Dr. Sachio Semmoto
/s/ Robert T. Wall Director November 19, 2001
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Robert T. Wall
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
NETWORK APPLIANCE, INC.
EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No.
000-27130 on Form 8-A, together with the amendments and
exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(c).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
99.1 Network Appliance, Inc. 1999 Stock Option Plan (As Amended
and Restated Through October 18, 2001).
99.2 Network Appliance, Inc. Employee Stock Purchase Plan (As
Amended and Restated Effective October 18, 2001).