As filed with the Securities and Exchange Commission on August 13, 1999
File No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
VIDEOSERVER, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-3114212
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
63 Third Avenue, Burlington, MA 01803
(Address of Principal Executive Offices) (Zip Code)
VideoServer, Inc. 1995 Employee Stock Purchase Plan
(Full Title of the Plan)
Khoa D. Nguyen
President and Chief Executive Officer
VIDEOSERVER, INC.
63 Third Avenue
Burlington, MA 01803
(Name and Address of Agent for Service)
(781) 229-2000
Telephone Number, Including Area Code, of Agent for Service
Copies to:
David L. Engel, Esq.
BINGHAM DANA LLP
150 Federal Street
Boston, Massachusetts 02110-1726
(617) 951-8000
CALCULATION OF REGISTRATION FEE
------------------------------------ ------------------ ------------------- ------------------- ------------------
Proposed Proposed
Amount Maximum Maximum Amount Of
Title Of To Be Offering Price Aggregate Registration
Securities To Be Registered Registered Per Share (1) Offering Price (1) Fee
------------------------------------ ------------------ ------------------- ------------------- ------------------
==================================== ================== =================== =================== ==================
Common Stock,
$.01 par value per share......... 300,000 $7.8125 $2,343,750 $651.57
==================================== ================== =================== =================== ==================
(1) The proposed maximum offering price has been estimated pursuant to
Rule 457(h) solely for the purpose of calculating the registration
fee. It is not known how many shares will be purchased under the Plan
or at what price such shares will be purchased. The proposed maximum
offering price per share and the proposed maximum aggregate offering
price have been calculated assuming the issuance of shares of Common
Stock upon exercise of options granted or to be granted under the
Plan, at an assumed exercise price of $7.8125 per share, which was the
average of the high and low prices of the Common Stock reported on
August 10, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by VideoServer, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "SEC") are hereby incorporated
by reference in this Registration Statement: (1) the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998; (2) all reports filed
by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), since the end of the Registrant's
1998 fiscal year; and (3) the description of the Common Stocks contained in the
Registrant's registration statement on Form 8-A filed with the SEC under section
12(g) of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
In addition, 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 of such 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts or Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The Amended and Restated Certificate of Incorporation and the Amended
and Restated By-Laws of the Company provide for advancement of expenses and
indemnification of officers and directors of the Registrant and certain other
persons against liabilities and expenses incurred by any of them in certain
stated proceedings and under certain stated conditions to the fullest extent
permissible under Delaware law.
The Company maintains insurance for the benefit of its directors and
officers insuring such persons against certain liabilities, including
liabilities under the securities laws.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
5 Opinion of Bingham Dana LLP with respect to the legality of
the shares being registered.
10 VideoServer, Inc. 1995 Employee Stock Purchase Plan, as amended.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (included in signature page to Registration
Statement).
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;
(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. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective 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) 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 Securities Exchange Act of 1934, as amended (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 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 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
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.
(C) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Exchange Act; and, where interim
financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
(D) 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
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.
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 Town of Burlington, Commonwealth of Massachusetts, on
this 9th day of August, 1999.
VIDEOSERVER, INC.
By: /s/ Khoa D. Nguyen
-------------------------------------
Khoa D. Nguyen
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Khoa D.
Nyuyen, Stephen J. Nill, Paul L. Criswell and each of them severally, acting
alone and without the other, his/her true and lawful attorney-in-fact with the
authority to execute in the name of each such person, and to file with the
Securities and Exchange Commission, together with any exhibits thereto and other
documents therewith, any and all amendments (including without limitation
post-effective amendments) to this Registration Statement on Form S-8 necessary
or advisable to enable the Registrant to comply with the Securities Act of 1933,
as amended, and any rules, regulations, and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make such other
changes in the Registration Statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
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
/s/ Khoa D. Nguyen Chief Executive Officer, August 9, 1999
--------------------- President and Director
Khoa D. Nguyen (Principal Executive Officer)
/s/ Stephen J. Nill Vice President, Finance August 9, 1999
--------------------- and Chief Financial Officer (Principal
Stephen J. Nill Financial and Accounting Officer)
Chairman
---------------------
Robert L. Castle
/s/ Paul J. Ferri Director August 13, 1999
---------------------
Paul J. Ferri
/s/ William E. Foster Director August 9, 1999
---------------------
William E. Foster
/s/ Steven C. Walske Director August 13, 1999
---------------------
Steven C. Walske
INDEX TO EXHIBITS
Exhibit
Number Description
5 Opinion of Bingham Dana LLP with respect to the legality of the
shares being registered.
10 VideoServer, Inc. 1995 Employee Stock Purchase Plan, as amended.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (included in signature page to Registration
Statement).