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As filed with the Securities and Exchange Commission on April 16, 1997
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 issuer as specified in its charter)
CALIFORNIA 77-0307520
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
2770 SAN TOMAS EXPRESSWAY, SANTA CLARA, CALIFORNIA 95051
(Address of principal executive offices) (Zip Code)
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INTERNET MIDDLEWARE CORPORATION
1996 LONG TERM EQUITY INCENTIVE PLAN
SPECIAL OPTION GRANTS PURSUANT TO WRITTEN COMPENSATION AGREEMENTS
(Full title of the plan)
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DANIEL J. WARMENHOVEN
PRESIDENT
NETWORK APPLIANCE, INC.
2770 SAN TOMAS EXPRESSWAY, SANTA CLARA, CALIFORNIA 95051
(Name and address of agent for service)
(408) 367-3000
(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(2) Price(2) Fee
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1996 Long Term Equity Incentive Plan
Options to Purchase Common Stock 14,647 N/A N/A N/A
Common Stock 14,647 shares $2.90 $42,476.30 $12.87
Special Options
Options to Purchase Common Stock 114,501 N/A N/A N/A
Common Stock 114,501 shares $11.79 $1,349,966.79 409.08
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Aggregate Filing Fee $421.95
=========================================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Internet MiddleWare
Corporation 1996 Long Term Equity Incentive Plan or special option
grants by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the 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 weighted
average exercise price of the outstanding options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain 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 26, 1996, as amended on October 29, 1996,
filed with the Commission on July 25, 1996, pursuant to
Section 13 of the Securities Exchange Act of 1934 (the "1934
Act").
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended July 26, 1996, October 25, 1996 and January 24,
1997 filed with the Commission on September 9, 1996, December
9, 1996 and March 7, 1997, respectively.
(c) The Registrant's reports on Form 8-K, filed with the
Commission on September 9, 1996 and March 28, 1997,
respectively, and any amendments thereto.
(d) The Registrant's Registration Statement No. 00-27130 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 outstanding 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 deregisters 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.
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Item 6. Indemnification of Directors and Officers
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit indemnification (including
reimbursement of expenses incurred) under certain circumstances for liabilities
arising under the Securities Act of 1933, as amended, (the "1933 Act"). The
Registrant's Restated Articles of Incorporation, as amended, and Amended and
Restated Bylaws provide for indemnification of its directors, officers,
employees and other agents to the maximum extent permitted by the California
Corporations Code. In addition, the Registrant has entered into Indemnification
Agreements with each of its directors and officers.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
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4.0 Instruments Defining Rights of Shareholders. Reference is made to Registrant's Registration
Statement No. 00-27130 on Form 8-A which is incorporated herein by reference pursuant to
Item 3(d).
5.0 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Independent Auditors - Consent.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24.0 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Netspeed, Inc. (Internet MiddleWare Corporation) 1996 Long Term Equity Incentive Plan.
99.2 Form of Stock Option Agreement.
99.3 Form of Stock Option Assumption Agreement.
99.4 Memorandum re Assumption of Stock Options under the Internet MiddleWare Corporation
1996 Long Term Equity Incentive Plan.
99.5 Form of Notice of Grant (Special Option).
99.6 Form of Stock Option Agreement (Special Option).
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 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, and (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 clauses (1)(i) and (1)(ii) shall 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 Section 15(d) of the 1934 Act that are incorporated by reference
into the 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 Internet MiddleWare Corporation 1996
Long Term Equity Incentive Plan or upon the expiration of the special option
grants.
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
II-2.
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1934 Act that is incorporated by reference into 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 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnity provisions summarized in Item 6 or
otherwise, the Registrant has been informed 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.
II-3.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Santa
Clara, State of California, on this 14th day of April, 1997.
NETWORK APPLIANCE, INC.
By /s/ Daniel J. Warmenhoven
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Daniel J. Warmenhoven
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Daniel J. Warmenhoven and Jeffry R. Allen and each of
them acting individually, as such person's true and lawful attorneys-in-fact and
agents, each with full power of substitution, for such person, 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 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 by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated:
Signatures Title Date
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/s/ Daniel J. Warmenhoven President and Chief Executive April 14, 1997
- ------------------------- Officer (Principal Executive Director)
Daniel J. Warmenhoven
II-4.
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Signatures Title Date
- ---------- ----- ----
/s/ Jeffry R. Allen Vice President Finance and Operations April 14, 1997
- -------------------------- and Chief Financial Officer
Jeffry R. Allen (Principal Financial and
Accounting Officer)
Chairman of the Board of Directors
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Donald T. Valentine
/s/ Carol A. Bartz Director April 14, 1997
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Carol A. Bartz
/s/ Michael R. Hallman Director April 14, 1997
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Michael R. Hallman
/s/ Kurt R. Jaggers Director April 14, 1997
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Kurt R. Jaggers
/s/ Robert T. Wall Director April 14, 1997
- --------------------------
Robert T. Wall
II-5.
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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.
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EXHIBIT INDEX
Exhibit Number Exhibit
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4.0 Instruments Defining Rights of Shareholders. Reference is made to Registrant's Registration
Statement No. 00-27130 on Form 8-A which is incorporated herein by reference pursuant to
Item 3(d).
5.0 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Independent Auditors - Consent.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24.0 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Netspeed, Inc. (Internet MiddleWare Corporation) 1996 Long Term Equity Incentive Plan.
99.2 Form of Stock Option Agreement.
99.3 Form of Stock Option Assumption Agreement.
99.4 Memorandum re Assumption of Stock Options under the Internet MiddleWare Corporation
1996 Stock Option Plan.
99.5 Form of Notice of Grant (Special Option).
99.6 Form of Stock Option Agreement (Special Option).