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As filed with the Securities and Exchange Commission on July 20, 2001
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
NETSILICON, INC.
(Exact Name of Registrant as specified in its charter)
MASSACHUSETTS 04-2826579
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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411 WAVERLEY OAKS ROAD, BLDG. 227
WALTHAM, MA 02452
(781) 647-1234
(Address of Principal Executive Offices) (Zip Code)
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NETSILICON, INC.
2001 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
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CORNELIUS PETERSON, VIII
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
NETSILICON, INC.
411 WAVERLEY OAKS ROAD, SUITE 227
WALTHAM, MA 02452
(Name and Address of Agent for Service of Process)
(781) 647-1234
(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
EDWIN L. MILLER, JR., ESQ.
TESTA, HURWITZ & THIBEAULT, LLP
125 HIGH STREET
BOSTON, MASSACHUSETTS 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Offering Maximum Amount of
Title of Securities Amount to be Price Per Aggregate Registration
to be Registered Registered Share Offering Price Fee(3)
- ------------------- ------------- --------- -------------- -------------
2001 Stock Option and Incentive Plan 40,000 $5.08(1) $203,200.00 $50.80
COMMON STOCK (PAR VALUE $.01 PER SHARE)
3,000 4.95(1) 14,850.00 3.71
3,000 3.63(1) 10,890.00 2.72
1,954,000 3.92(2) 7,647,920.00 1,911.98
Preferred Stock Purchase Rights(4) -- -- -- --
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2,000,000 $7,876,860.00 $1,969.21
(1) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price and
the fee have been calculated upon the basis of the price at which such
options may be exercised.
(2) These shares are not subject to outstanding options. The price of $3.92 per
share, which is the average of the high and low prices reported on the
Nasdaq National Market on July 13, 2001, is set forth solely for purposes
of calculating the filing fee pursuant to Rule 457(c) and (h) and has been
used for shares without a fixed exercise or purchase price.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
(4) Preferred Stock purchase rights will be distributed without charge with
respect to each share of common stock of the Registrant registered hereby.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees as specified by Rule 428(b). In accordance with
the rules and regulations of the Securities and Exchange Commission (the
"Commission") and the instructions to Form S-8, such documents are not being
filed with the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the year ended January 31,
2001, as filed with the Commission pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant's document referred to in (a) above; and
(c) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on
Form 8-A (File No. 000-26761) filed on July 20, 1999 pursuant to
Section 12(g) of the Exchange Act.
All documents subsequently filed with the Commission 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 herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part thereof from the date of filing of such documents.
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Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Articles of Organization, as amended, of the Company
provide for indemnification of the Company's directors and officers unless such
indemnification is prohibited by the Massachusetts Business Corporation Law. The
Massachusetts Business Corporation Law generally permits indemnification of the
Company's directors and officers for liabilities and expenses that they may
incur in such capacities, except with respect to any matter that the indemnified
person shall have been adjudicated in any proceeding not to have acted in good
faith in the reasonable belief that his or her action was in the best interest
of the Company. Reference is made to the Registrant's Restated Articles of
Organization filed as Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (File No. 333-62231).
The underwriting agreement, dated September 15, 1999, by and between
the Registrant and the underwriters listed therein provides that the
underwriters are obligated, under certain circumstances, to indemnify directors,
officers and controlling persons of the Registrant against certain liabilities,
including liabilities under the Securities Act. Reference is made to the Form of
Underwriting Agreement filed as Exhibit 1.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-62231).
The Registrant has in effect a directors' and officers' insurance
policy.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen Certificate for shares of the Registrant's Common Stock
(filed as Exhibit 4 to the Registrant's Registration Statement on
Form S-1 (File No. 333-62231) and incorporated herein by reference)
4.2 Restated Articles of Organization, as amended (filed as Exhibit 3.1
to the Registrant's Registration Statement on Form S-1 (File No.
333-62231) and incorporated herein by reference)
4.3 Amended and Restated By-Laws of the Registrant (filed as Exhibit
3.2 to the Company's Quarterly Report on Form 10-Q filed on
September 12, 2000, and incorporated herein by reference)
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4.4 NetSilicon, Inc. 2001 Stock Option and Incentive Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (included as part of the signature page of this
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 of 1933;
(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 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 a 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 (a)(1)(i) and
(a)(1)(ii) 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 Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
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(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 Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
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 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 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 of 1933, 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 Waltham in the Commonwealth of Massachusetts, on this
20th day of July, 2001.
NetSilicon, Inc.
By: /s/ Cornelius Peterson, VIII
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Cornelius Peterson, VIII
Chairman and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of NetSilicon, Inc., hereby
severally constitute and appoint Cornelius Peterson, VIII and Daniel J.
Sullivan, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in the
capacities indicated below, any amendments to this Registration Statement on
Form S-8 (including post-effective amendments), and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and generally to do all things in our names
and on our behalf in our capacities as officers and directors to enable
NetSilicon, Inc., to comply with the provisions of the Securities Act of 1933,
as amended, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said Registration Statement and all
amendments thereto.
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
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/s/ Cornelius Peterson, VIII Chairman, Chief Executive Officer and July 20, 2001
- ------------------------------------- Director (Principal Executive Officer)
Cornelius Peterson, VIII
/s/ Daniel J. Sullivan Chief Financial Officer July 20, 2001
- ------------------------------------- (Principal Financial and Accounting Officer)
Daniel J. Sullivan
/s/ Michael K. Ballard Director July 20, 2001
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Michael K. Ballard
/s/ Francis E. Girard Director July 20, 2001
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Francis E. Girard
/s/ William Johnson Director July 20, 2001
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William Johnson
/s/ Edward B. Roberts Director July 20, 2001
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Edward B. Roberts
/s/ F. Grant Saviers Director July 20, 2001
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F. Grant Saviers
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen Certificate for shares of the Registrant's Common
Stock (filed as Exhibit 4 to the Registrant's Registration
Statement on Form S-1 (File No. 333-62231) and incorporated
herein by reference)
4.2 Restated Articles of Organization, as amended (filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (File No. 333-62231) and incorporated herein by reference)
4.3 Amended and Restated By-Laws of the Registrant (filed as
Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q
filed on September 12, 2000, and incorporated herein by
reference)
4.4 NetSilicon, Inc. 2001 Stock Option and Incentive Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (included as part of the signature page of
this Registration Statement)
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