As filed with the Securities and Exchange Commission on July 28, 2000
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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NETRIX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
54-1345159
(I.R.S. Employer Identification No.)
13595 Dulles Technology Drive
Herndon, Virginia 20171
(Address of Principal Executive Offices, Including Zip Code)
AMENDED AND RESTATED AETHERWORKS CORPORATION 1997 STOCK OPTION PLAN
(Full Title of the Plan)
Peter J. Kendrick
Chief Financial Officer
Netrix Corporation, 13595 Dulles Technology Drive, Herndon, Virginia 20171
(Name and Address of Agent for Service)
(703) 742-6000
(Telephone Number, Including Area Code of Agent For Service)
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COPY TO:
John T. Capetta, Esq.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
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CALCULATION OF REGISTRATION FEE
- ---------------------------- --------------------- ------------------------ -------------------------- -----------------------------
Amount to be Proposed Maximum Proposed Maximum Amount of
Title of Securities Registered(2) Offering Price Per Aggregate Offering Registration Fee
to be Registered Share(3) Price(3)
- ---------------------------- --------------------- ------------------------ -------------------------- -----------------------------
Common Stock,
par value $.05 per share(1) 1,826,372 Shares $7.6875 $14,040,234.75 $3,706.62
- ---------------------------- --------------------- ------------------------ -------------------------- -----------------------------
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Plan being registered pursuant to
this Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction which results in an
increase in the number of the Registrant's outstanding shares of Common
Stock.
(2) The Registrant is registering 1,826,372 shares of its Common Stock, par
value $.05 per share, for issuance pursuant to the Amended and Restated
AetherWorks Corporation 1997 Stock Option Plan.
(3) Estimated in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933, as amended, solely for the purpose of calculating the
registration fee. Computation is based upon the Registrant's good faith
estimate of the value of its Common Stock based upon the average of the
high and low prices of the Registrant's Common Stock as reported on the
Nasdaq National Market on July 27, 2000.
EXPLANATORY NOTE
Pursuant to an Agreement and Plan of Merger, dated December 31, 1999, among
the Registrant, Nx1 Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of the Registrant ("Nx1"), and AetherWorks Corporation, a Minnesota
Corporation ("AetherWorks"), among other things, (i) AetherWorks merged with and
into Nx1 (ii) each share of common stock of AetherWorks, issued and outstanding
immediately prior to the effective time of the merger was converted into the
right to receive 1.377 shares of common stock of Registrant, and (iii) at the
effective time of the merger, all of the issued and outstanding options to
acquire AetherWorks' common stock pursuant to the AetherWorks Corporation 1997
Stock Option Plan (subsequently amended and restated) were converted into the
right to receive that number of options to acquire shares of the common stock,
par value $.05, of Registrant.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part 1 of Form
S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission (the "Commission") Rule 428(b)(1). Such documents need not
be filed with the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Netrix Corporation are hereby incorporated by
reference in this Registration Statement:
(a) Netrix Corporation's Current Report on Form 8-K/A (filed with the
Commission on May 30, 2000);
(b) Netrix Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, as filed with the Commission on March 30, 2000, and the
amendment thereto filed on Form 10-K/A on May 1, 2000;
(c) Netrix Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000 (filed with the Commission on May 15, 2000);
(d) Netrix Corporation's Current Report on Form 8-K (filed with the
Commission on March 31, 2000);
(e) Netrix Corporation's Current Report on Form 8-K (filed with the
Commission on February 23, 2000);
(f) Netrix Corporation's Current Report on Form 8-K (filed with the
Commission on February 7, 2000);
(g) Netrix Corporation's Current Report on Form 8-K (filed with the
Commission on January 14, 2000); and
(h) The description of the Netrix Corporation's common stock, $.05 par
value per share (the "Common Stock"), contained in Netrix's registration
statement on Form S-1, as amended, filed by Netrix Corporation with the
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Commission on September 18, 1992, pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All reports and definitive proxy or information statements documents
filed by Netrix Corporation pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment to this Registration Statement indicating that all
securities offered hereby have been sold or deregistering all such securities
then remaining unsold, shall also be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof, commencing on the
respective dates on which such reports and documents are filed with the
Commission. Any statement incorporated by reference herein shall also be deemed
to be modified or superseded for the purposes of this Registration Statement and
any amendment or supplement hereto to the extent that another 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 statement modified or superseded shall not be deemed, except as
so modified or superseded, to constitute part of this Registration Statement or
any amendment or supplement hereto.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware corporation may indemnify 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 (a "proceeding") (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,
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, partnership, joint venture, trust or other enterprise, 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 if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. A Delaware
corporation may indemnify any person under such Section in connection with a
proceeding by or in the right of the corporation to procure judgment in its
favor, as provided in the preceding sentence, against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action, except that no indemnification
shall be made with respect thereto unless, and then only to the extent that, a
court of competent jurisdiction shall determine upon application that such
person is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper. A Delaware corporation must indemnify present or former
directors and officers who are successful on the merits or otherwise in defense
of any action, suit or proceeding or in defense of any claim, issue or matter in
any proceeding, by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation, against expenses (including attorneys' fees)
3
actually and reasonably incurred by him or her in connection therewith. A
Delaware corporation may pay for the expenses (including attorneys' fees)
incurred by an officer or director in defending a proceeding in advance of the
final disposition upon receipt of an undertaking by or on behalf of such officer
or director to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the corporation. Article XI of the
Registrant's Amended and Restated Bylaws provides for indemnification of
directors and officers to the fullest extent permitted by Section 145 of the
DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable to
the corporation or its stockholders for monetary damages for a 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 any
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) with respect to certain unlawful dividend
payments or stock redemptions or repurchases or (iv) for any transaction from
which the director derived an improper personal benefit. Article Ninth of the
Registrant's Amended and Restated Certificate of Incorporation eliminates the
liability of directors to the fullest extent permitted by Section 102(b)(7) of
the DGCL.
Section 145 of the DGCL permits a corporation 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, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in such capacity, or arising out of
their status as such, whether or not the corporation would have the power to
indemnify directors and officers against such liability. The Registrant has
obtained officers' and directors' liability insurance of $50 million for members
of its Board of Directors and executive officers. In addition, the Registrant
has entered into indemnification agreements with the directors and officers of
the Registrant, indemnifying each such person against losses, liabilities and
expenses arising out of any claims made against such person by reason of his or
her being a director or officer of the Registrant. Among other exclusions, the
Registrant shall not indemnify any person with respect to claims involving
receipt of a personal benefit to which the recipient is not entitled; the return
of profits from the sale of securities as contemplated by Section 16 of the
Exchange Act; or knowingly fraudulent, dishonest or willful misconduct.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to Netrix's
registration statement on Form S-1, filed on September 18,
1992, as amended).
4.2 Amendment to Certificate of Incorporation, dated August 26,
1999 (incorporated by reference to Exhibit 4.8 to Netrix's
registration statement on Form S-3, filed on June 18, 1999,
as amended).
4
4.3 Amended and Restated By-laws (incorporated by reference to
Exhibit 3.2 of Netrix's registration statement on Form S-1,
filed on September 18, 1992, as amended).
4.4 Specimen certificate of common stock (incorporated by
reference to Exhibit 4.2 to Netrix's registration statement
on Form S-1, filed on September 18, 1992, as amended).
*4.5 Amended and Restated AetherWorks Corporation 1997 Stock
Option Plan.
*5 Opinion of Kelley Drye & Warren LLP regarding the legality
of the Common Stock being registered.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Kelley Drye & Warren LLP (included in their
opinion filed as Exhibit 5 hereto).
*24 Power of Attorney (incorporated by reference to the
signature page of this Registration Statement).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned 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;
(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 hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in the 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 end 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 this Registration Statement or
any material change to such information in this Registration Statement; that
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paragraphs (a)(1)(i) and PROVIDED, HOWEVER, (a)(1)(ii) above do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference into this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, as amended, each filing of Netrix
Corporation's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
Netrix Corporation 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 of 1933, as amended, 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 of 1933, as amended, 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
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 Herndon, State of Virginia, on this 27th day of July,
2000.
NETRIX CORPORATION
By: /S/ STEVEN T. FRANCESCO
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Name: Steven T. Francesco
Title: Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Steven T. Francesco and Peter Kendrich, and each of them, as attorneys-in-fact,
with full power of substitution, to execute in the name and on behalf of such
person, individually and in each capacity stated below, and to file any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
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/ STEVEN T. FRANCESCO Chairman, Chief Executive July 27, 2000
- ------------------------- (Principal Executive Officer)
STEVEN T. FRANCESCO
/s/ PETER J. KENDRICK Vice President of Finance July 27, 2000
- ------------------------- and Administration and
PETER J. KENDRICK Chief Financial Officer
(Principal Financial Officer)
/s/ JENNIFER BELL-GORDON Controller July 27, 2000
- ------------------------- (Principal Accounting Officer)
JENNIFER BELL-GORDON
7
/s/ DOUGLAS J. MELLO Director July 27, 2000
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DOUGLAS J. MELLO
/s/ RICHARD YALEN Director July 27, 2000
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RICHARD YALEN
/s/ ROBERT M. GLORIOSO Director July 27, 2000
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ROBERT M. GLORIOSO
/s/ THOMAS LIEBERMAN Director July 27, 2000
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THOMAS LIEBERMAN
/s/ BILL YUNDT Director July 27, 2000
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BILL YUNDT
/s/ JOHN M. FACCIBENE Director July 27, 2000
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JOHN M. FACCIBENE
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Amended and restated certificate of incorporation (incorporated
by reference to Exhibit 3.1 to Netrix's registration statement on
Form S-1, filed on September 18, 1992, as amended).
4.2 Amendment to certificate of incorporation, dated August 26, 1999
(incorporated by reference to Exhibit 4.8 to Netrix's
registration statement on Form S-3, filed on June 18, 1999, as
amended).
4.3 Amended and restated by-laws (incorporated by reference to
Exhibit 3.2 of Netrix's registration statement on Form S-1, filed
on September 18, 1992, as amended).
4.4 Specimen certificate of common stock (incorporated by reference
to Exhibit 4.2 to Netrix's registration statement on Form S-1,
filed on September 18, 1992, as amended).
*4.5 Amended and Restated AetherWorks Corporation 1997 Stock Option
Plan.
*5 Opinion of Kelley Drye & Warren LLP regarding the legality of the
Common Stock being registered.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Kelley Drye & Warren LLP (included in their opinion
filed as Exhibit 5 hereto).
*24 Power of Attorney (incorporated by reference to the signature
page of this Registration Statement).
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* Filed herewith.