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As filed with the Securities and Exchange Commission on July 29, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW ERA OF NETWORKS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-1234845
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
7400 EAST ORCHARD ROAD, SUITE 230
ENGLEWOOD, COLORADO 80111
(ADDRESS, INCLUDING ZIP CODE OF PRINCIPAL EXECUTIVE OFFICES)
1995 STOCK OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
CONVOY CORPORATION 1997 STOCK OPTION PLAN
MICROSCRIPT, INC. 1997 STOCK OPTION PLAN
(FULL TITLES OF THE PLANS)
GEORGE F. (RICK) ADAM, JR.
CHIEF EXECUTIVE OFFICER
NEW ERA OF NETWORKS, INC.
7400 EAST ORCHARD ROAD, SUITE 230
ENGLEWOOD, CO 80111
(303) 694-3933
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
MARK A. BERTELSEN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
====================================================================================================================================
TITLE OF SECURITIES PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
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Common Stock $.0001 par value:
Newly reserved under the 1995 Stock
Option Plan (the "Option Plan") (1) 700,000 shares $13.56 (3) $ 9,493,750 $2,640
Newly reserved under the 1997
Employee Stock Purchase Plan (the
"Purchase Plan")(2) 200,000 shares $11.53 (4) $ 2,305,625 $ 641
Convoy Corporation 1997 Stock Option
Plan(5) 47,504 shares $13.56 (3) $ 644,155 $ 180
Microscript, Inc. 1997 Stock Option
Plan(6) 110,428 shares $13.56 (3) $ 1,497,680 $ 417
====================================================================================================================================
Total: 1,057,932 shares $13,941,210 $3,878
====================================================================================================================================
(1) The Option Plan provides for an annual increase in the number of shares of
the Registrant's Common Stock reserved and available for issuance under the
Option Plan equal to the lesser of (i) 700,000, (ii) 3% of the Registrant's
Common Stock outstanding as of the last business day preceding the first
day of such fiscal year or (iii) a lesser amount as determined by the Board
of Directors. Pursuant to Rule 416(a) of the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement shall also
cover any additional shares of the Registrant's Common Stock that become
issuable under the Option Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration that increases the number of the Registrant's
outstanding shares of Common Stock.
(2) The Purchase Plan provides for an annual increase in the number of shares
of the Registrant's Common Stock reserved and available for issuance under
the Purchase Plan equal to the lesser of 200,000 shares, or 1.5% of the
Registrant's Common Stock outstanding as of the last business day preceding
the first day of such fiscal year or such lesser number of shares that the
Board of Directors may determine, plus any shares reacquired by the
Registrant during the last fiscal year. Pursuant to Rule 416(a) of the
Securities Act, this Registration Statement shall also cover any additional
shares of the Registrant's Common Stock that become issuable under the
Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration that increases the number of the Registrant's outstanding
shares of Common Stock.
(3) Estimated solely for the purpose of computing the registration fee required
by Section 6(b) of the Securities Act pursuant to Rules 457(h) and 457(c)
under the Securities Act, based upon the average between the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
July 27, 1999.
(4) Estimated solely for the purpose of computing the registration fee required
by Section 6(b) of the Securities Act pursuant to Rules 457(h) and 457(c)
under the Securities Act, based upon 85% of the average between the high
and low prices of the Common Stock as reported on the Nasdaq National
Market on July 27, 1999.
(5) Pursuant to an Agreement and Plan of Reorganization dated as of June 2,
1999 (the "Convoy Agreement") among the Registrant, Cobra Acquisition
Corporation, a Delaware Corporation and wholly owned subsidiary of the
Registrant, and Convoy Corporation, a Delaware corporation ("Convoy"), the
Registrant assumed all of the outstanding options to purchase common stock
of Convoy under its 1997 Stock Option Plan (the "Convoy Assumed Options"),
with appropriate adjustments to the number of shares and exercise price of
each Convoy Assumed Option to reflect the ratio at which the common stock
of Convoy was converted into common stock of the Registrant under the
Agreement.
(6) Pursuant to an Agreement and Plan of Reorganization dated as of June 15,
1999 (the "Microscript Agreement") (as amended effective June 28, 1999)
among the Registrant, NEON Acquisition Corporation, a Delaware Corporation
and wholly owned subsidiary of the Registrant, and Microscript, Inc., a
Massachusetts corporation ("Microscript"), the Registrant assumed all of
the outstanding options to purchase common stock of Microscript under its
1997 Stock Option Plan (the "Microscript Assumed Options"), with
appropriate adjustments to the number of shares and exercise price of each
Microscript Assumed Option to reflect the ratio at which the common stock
of Microscript was converted into common stock of the Registrant under the
Agreement.
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NEW ERA OF NETWORKS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). 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. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). 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 and information previously filed with the
Securities and Exchange Commission (the "Commission") by New Era of Networks,
Inc. (the "Registrant") are hereby incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998 filed with the Commission on
March 30, 1999 pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act");
2. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999 filed pursuant to the Exchange
Act;
3. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated June 4,
1997, filed pursuant to Section 12(g) of the Exchange Act
which was declared effective on June 17, 1997, including any
amendment or report filed for the purpose of updating such
description;
4. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on August 14, 1998, as amended by the Company's
Registration Statement on Form 8-A/A, filed with the
Commission on August 17, 1998, pursuant to Section 12(g) of
the Exchange Act, including any amendment or report filed for
the purpose of updating such description;
5. The Registrant's Current Report on Form 8-K filed on June 24,
1999;
6. The Registrant's Current Report on Form 8-K filed on July 13,
1999; and
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In addition, 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 on or after the date of this Registration Statement and prior to the filing
of a post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters all securities then remaining
unsold under this Registration Statement, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents. Any statement contained herein or 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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such earlier statement. Any 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
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 such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. Article
VII of the Registrant's Certificate of Incorporation and Article VI of the
Registrant's Bylaws provide for mandatory indemnifications of its directors and
officers and permissible indemnifications of employees and other agents to the
maximum extent permitted by the General Corporation Law of the State of
Delaware. In addition, the Registrant has entered into indemnification
agreements with its officers and directors. Reference is also made to Section 11
of the Registration Rights Agreement between the Registrant and certain parties
named therein dated May 9, 1995, which provides for the cross indemnification of
certain of the Company's stockholders and the Company, its officers and
directors against certain liabilities under the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1 1995 Stock Option Plan, as amended.
4.2 1997 Employee Stock Purchase Plan, as amended.
4.3 Convoy Corporation 1997 Stock Option Plan.
4.4 Microscript, Inc. 1997 Stock Option Plan.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (see page 5).
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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% 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 information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commissioner by the Registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in 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 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 Securities
Act of 1933 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, 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 City of Englewood, State of Colorado, on this 29th day
of July 1999.
NEW ERA OF NETWORKS, INC.
By: /s/ Leonard M. Goldstein
----------------------------------------
Leonard M. Goldstein
Senior Vice President and Senior Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints George F. (Rick) Adam, Jr. and
Leonard M. Goldstein, and each of them, his or her true and lawful agent, proxy
and attorney-in-fact, with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to (i) act on, sign and file with the Securities and Exchange Commission any and
all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 together with all schedules and exhibits thereto (ii) act
on, sign and file such certificates, instruments, agreements and other documents
as may be necessary or appropriate in connection therewith, and (iii) take any
and all actions that may be necessary or appropriate to be done, as fully for
all intents and purposes as he or she might or could do in person, hereby
approving, ratifying and confirming all that such agent, proxy and
attorney-in-fact or any of his substitutes may lawfully do or cause to be done
by virtue thereof.
IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED ON THIS 29TH DAY OF JULY
1999 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED:
SIGNATURES TITLE
---------- -----
/s/ George F. Adam, Jr.
--------------------------------- Chairman of the Board, Chief Executive Officer and Director (principal
George F. Adam, Jr. executive officer)
/s/ Patrick J. Fortune
--------------------------------- President, Chief Operating Officer and Director
Patrick J. Fortune
/s/ Stephen E. Webb
--------------------------------- Senior Vice President and Chief Financial Officer (principal financial
Stephen E. Webb officer)
/s/ Thomas P. Wilkes
--------------------------------- Vice President and Corporate Controller (principal accounting officer)
Thomas P. Wilkas
/s/ Harold A. Piskiel
--------------------------------- Executive Vice President, Chief Technology Officer and Director
Harold A. Piskiel
/s/ Steven Lazarus
--------------------------------- Director
Steven Lazarus
/s/ Mark L. Gordon
--------------------------------- Director
Mark L. Gordon
/s/ Elisabeth W. Ireland
--------------------------------- Director
Elisabeth W. Ireland
/s/ Joseph E. Kasputys
--------------------------------- Director
Joseph E. Kasputys
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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4.1 1995 Stock Option Plan, as amended.
4.2 1997 Employee Stock Purchase Plan, as amended.
4.3 Convoy Corporation 1997 Stock Option Plan.
4.4 Microscript, Inc. 1997 Stock Option Plan.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (see page 5).
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