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As filed with the Securities and Exchange Commission on December 19, 1995
Registration No. ________
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
Incorporation or Organization) Identification No.)
800 Saginaw Drive, Redwood City, California 94063
(Address of Principal Executive Offices)
1993 Stock Option Plan
1988 Restricted Stock Award Plan
1988 U.K. Stock Option Scheme
1989 U.K. Stock Option Plan
(Full Title of the Plan)
James B. DeGolia, Esq.
Vice President and General Counsel
800 Saginaw Drive
Redwood City, California 94063
(Name and Address of Agent For Service)
(415) 366-4400
(Telephone Number, Including Area Code, of Agent For Service)
Copy to: Matthew P. Quilter, Esq.
Heller, Ehrman, White & McAuliffe
525 University Avenue
Palo Alto, California 94301-1908
(415) 324-7000
CALCULATION OF REGISTRATION FEE
==================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share (1) price fee
- ----------------------------------------------------------------------------------
Common Stock,
par value $.001 2,000,000 $29.50 $59,000,000 $20,345
==================================================================================
(1) Estimated solely for the purpose of computing the amount of
registration fee pursuant to Rule 457(c) under the Securities Act, 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
December 15, 1995.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the
Commission by the registrant are incorporated by reference in this registration
statement:
(a) The registrant's latest Annual Report on Form 10-K for
the fiscal year ended March 31, 1995 filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The registrant's Quarterly Reports on Form 10-Q for
the quarters ended June 25, 1995 and September 24, 1995;
(c) The description of the Common Stock of the registrant
contained in the registration statement filed under the Exchange Act registering
such Common Stock under Section 12 of the Exchange Act; and
(d) 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 hereby have been sold or which deregisters all securities then remaining
unsold.
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:
(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
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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 attorney's 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 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.
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(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 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 to 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.
ITEM 8. EXHIBITS
3.1 Registrant's Bylaws, as amended
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5)
23.2 Independent Auditors' Consent
24 Power of Attorney (see pages 7 and 8)
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99.1 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.
(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 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 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
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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
Pursuant to the requirements of the Securities Act, 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 this 18th day
of December, 1995.
NETWORK EQUIPMENT TECHNOLOGIES, INC.
By: /s/ Joseph J. Francesconi
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Joseph J. Francesconi,
President, Chief Executive Officer, and Director
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Joseph J. Francesconi
and Craig M. Gentner, or either of them, with full power of substitution, such
person's true and lawful attorneys-in-fact and agents for such person in such
person's name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8 and to file the 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 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 in order to effectuate the same as fully, to all intents and
purposes, as he or such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
/s/ Joseph J. Francesconi President, Chief Executive December 18, 1995
- ----------------------------- Officer, and Director
Joseph J. Francesconi (Principal Executive Officer)
/s/ Craig M. Gentner Senior Vice President, Chief December 18, 1995
- ----------------------------- Financial Officer and
Craig M. Gentner Corporate Secretary (Principal
Financial and Accounting
Officer)
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/s/ John B. Arnold Chairman of the Board December 18, 1995
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John B. Arnold
/s/ Robert H.B. Baldwin Director December 18, 1995
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Robert H.B. Baldwin
/s/ Dixon R. Doll Director December 18, 1995
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Dixon R. Doll
/s/ Walter J. Gill Director December 18, 1995
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Walter J. Gill
/s/ Frank S. Vigilante Director December 18, 1995
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Frank S. Vigilante
/s/ Hans A. Wolf Director December 18, 1995
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Hans A. Wolf
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Index to Exhibits
Sequentially
Item No. Description of Item Numbered Page
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3.1 Registrant's Bylaws, as amended . . . . . . . . . . . .
5 Opinion of Heller Ehrman White & McAuliffe . . . . . . .
23.1 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5) . . . . . . . . . . . . . .
23.2 Independent Auditors' Consent . . . . . . . . . . . . .
24 Power of Attorney (see pages 7 and 8). . . . . . . . . .
99.1 1993 Stock Option Plan . . . . . . . . . . . . . . . . .