As filed with the Securities and Exchange Commission on December 22, 1999
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 54-1345159
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
13595 Dulles Technology Drive
Herndon, Virginia 20171
(Address of Principal Executive Offices, Including Zip Code)
1999 LONG TERM INCENTIVE PLAN
(Full Title of the Plan)
Lynn C. Chapman
President
Netrix Corporation
13595 Dulles Technology Drive
Herndon, Virginia 20171
(703) 742-6000
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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COPY TO:
Jay R. Schifferli, Esq.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
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CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Maximum Registration
to be Registered Offering Aggregate Fee
Price Per Offering
Share(1) Price(1)
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Common Stock,
par value $.05 4,825,000
per share Shares $13.75 $66,343,750 $17,514.75
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended. The price per share is estimated based on the average of the high
and low trading prices for Netrix Corporation's Common Stock on December
15, 1999, as reported by the Nasdaq National Market.
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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 Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, as filed with the Commission on April 15, 1999, and the
amendment thereto filed on June 18, 1999;
(b) Netrix Corporation's quarterly reports on Forms 10-Q for the quarters
ended:
(i) September 30, 1999 (filed with the Commission on November 15,
1999);
(ii) June 30, 1999 (filed with the Commission on August 16,
1999);
(iii) March 31, 1999 (filed with the Commission on May 17,
1999); and
(c) 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
Commission on September 18, 1992, pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All reports and 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
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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)
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.
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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
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 1999 Long-Term Incentive 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).
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*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;
(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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (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, 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, 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
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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 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, Netrix
Corporation 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 December 17,
1999.
NETRIX CORPORATION
By: /s/ Steven T. Francesco
_______________________________________
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 J. Kendrick, 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 Director, Chairman and Chief December 17, 1999
Steven T. Francesco Executive Officer
/s/ Lynn C. Chapman Director, President and Chief December 17, 1999
Lynn C. Chapman Operating Officer
/s/ Peter J. Kendrick Vice President-Finance and December 17, 1999
Peter J. Kendrick Administration, Chief Financial
Officer and Secretary
/s/ John M. Faccibene Director December 17, 1999
John M. Faccibene
- -------------------------- Director December___, 1999
Gregory C. McNulty
/s/ Richard Yalen Director December 17, 1999
Richard Yalen
/s/ Douglas J. Mello Director December 17, 1999
Douglas J. Mello
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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 1999 Long-Term Incentive 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.
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