-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E0EkzaE+lavY2CvFOY0ye6wuRlfCwwR66PTEj/6laZ9Sp2joWseX/kjl4rglMTZ3 eFRpK6i7Df6EKaB72aYb8Q== 0000912057-99-006195.txt : 19991117 0000912057-99-006195.hdr.sgml : 19991117 ACCESSION NUMBER: 0000912057-99-006195 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991115 EFFECTIVENESS DATE: 19991115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NETSCOUT SYSTEMS INC CENTRAL INDEX KEY: 0001078075 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 042837575 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-90971 FILM NUMBER: 99756124 BUSINESS ADDRESS: STREET 1: 4 TECHNOLOGY PARK DR CITY: WESTFORD STATE: MA ZIP: 01886 BUSINESS PHONE: 9786144000 MAIL ADDRESS: STREET 1: 4 TECHNOLOGY PARK DRIVE CITY: WESTFORD STATE: MA ZIP: 01886 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 15, 1999 REGISTRATION NO. 333-____ =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NETSCOUT SYSTEMS, INC. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 04-2837575 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 4 TECHNOLOGY PARK DRIVE WESTFORD, MA 01886 (Address of Principal Executive Offices) -------------------- NETSCOUT SYSTEMS, INC. 1999 STOCK OPTION AND INCENTIVE PLAN (Full Title of the Plan) -------------------- ANIL K. SINGHAL, CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER NARENDRA POPAT, PRESIDENT AND CHIEF OPERATING OFFICER NETSCOUT SYSTEMS, INC. 4 TECHNOLOGY PARK DRIVE WESTFORD, MA 01886 (Name and Address of Agent For Service) (978) 614-4000 (Telephone Number, Including Area Code, of Agent For Service) -------------------- Copies to: JOHN A. MELTAUS, ESQ. Testa, Hurwitz & Thibeault, LLP High Street Tower 125 High Street Boston, Massachusetts 02110 (617) 248-7000 =============================================================================== =============================================================================== CALCULATION OF REGISTRATION FEE ===============================================================================
PROPOSED PROPOSED MAXIMUM MAXIMUM TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE - ---------------------- ------------ -------------- -------------- ---------------- NETSCOUT SYSTEMS, INC. 1999 STOCK OPTION AND INCENTIVE PLAN OPTIONS GRANTED - --------------- Common Stock, $.001 par 155,813 shares $10.35 $1,612,665 -- value (1) 287,750 shares $18.90 $5,438,475 -- 30,000 shares $20.50 $615,000 -- 60,000 shares $22.50 $1,350,000 -- OPTIONS RESERVED FOR GRANT - -------------------------- Common Stock, $.001 par 3,966,437 shares $23.875 $94,698,684 -- value (2) TOTAL: 4,500,000 shares -- $103,714,824 $28,833 ========= =========== ======
=============================================================================== (1) Based on options to purchase 533,563 shares of NetScout Systems, Inc.'s Common Stock granted as of November 15, 1999 under the NetScout Systems, Inc. 1999 Stock Option and Incentive Plan (the "Plan"). All of such shares are issuable upon the exercise of outstanding options to purchase the number of shares at the exercise price listed above. Pursuant to Rule 457(h)(1), the aggregate offering price and the fee have been computed upon the basis of the price at which the options may be exercised. (2) None of such shares are subject to outstanding options. The exercise price of such options shall be determined at the time of grant. Accordingly, pursuant to Rule 457(h)(1), the price of $23.875 per share, which is the average of the high and low prices reported on the Nasdaq National Market on November 11, 1999, is set forth solely for purposes of calculating the filing fee. This Registration Statement registers additional securities of the same class as other securities for which a Registration Statement on Form S-8 (No. 333-88131) relating to NetScout's 1999 Employee Stock Purchase Plan is effective. Pursuant to General Instruction E of Form S-8, the contents of the above-listed Registration Statements are hereby incorporated by reference. ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT 4.1 Third Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.3, 4.1 to the Company's Registration Statement on Form S-1 (No. 333-76843) and incorporated herein by reference) 4.2 Amended and Restated By-Laws of the Registrant (filed as Exhibit 3.5, 4.2 to the Company's Registration Statement on Form S-1 (No. 333-76843) and incorporated herein by reference) 4.3 NetScout Systems, Inc. 1999 Stock Option and Incentive Plan, as amended (filed as Exhibit 10.2 to the Company's Registration Statement on Form S-1 (No. 333-76843) and incorporated herein by reference) 5 Opinion of Testa, Hurwitz & Thibeault, LLP 23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5) 23.2 Consent of PricewaterhouseCoopers LLP 24 Power of Attorney (included as part of the signature page of this Registration Statement)
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 Westford, in the Commonwealth of Massachusetts, on this 15th day of November, 1999. NETSCOUT SYSTEMS, INC. By: /s/ Charles W. Tillett ------------------------------------------ Charles W. Tillett Vice President, Finance and Administration and Chief Financial Officer POWER OF ATTORNEY AND SIGNATURES We, the undersigned officers and directors of NetScout Systems, Inc., hereby severally constitute and appoint Anil K. Singhal, Narendra Popat and Charles W. Tillett, 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 NetScout Systems, 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 /s/ Anil K. Singhal - ---------------------- Chief Executive Officer and Chairman of the Board November 15, 1999 Anil K. Singhal (Principal Executive Officer) /s/ Narendra Popat - ---------------------- President, Chief Operating Officer and Director November 15, 1999 Narendra Popat /s/ Charles W. Tillett - ---------------------- Vice President, Finance and Administration and November 15, 1999 Charles W. Tillett Chief Financial Officer (Principal Financial and Accounting Officer) /s/ Joseph G. Hadzima, Jr. - ---------------------- Director November 8, 1999 Joseph G. Hadzima, Jr. /s/ Kenneth T. Schiciano - ---------------------- Director November 15, 1999 Kenneth T. Schiciano /s/ Richard J. Egan - ---------------------- Director November 15, 1999 Richard J. Egan
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT 4.1 Third Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3.3, 4.1 to the Company's Registration Statement on Form S-1 (No. 333-76843) and incorporated herein by reference) 4.2 Amended and Restated By-Laws of the Registrant (filed as Exhibit 3.5, 4.2 to the Company's Registration Statement on Form S-1 (No. 333-76843) and incorporated herein by reference) 4.3 NetScout Systems, Inc. 1999 Stock Option and Incentive Plan, as amended (filed as Exhibit 10.2 to the Company's Registration Statement on Form S-1 (No. 333-76843) and incorporated herein by reference) 5 Opinion of Testa, Hurwitz & Thibeault, LLP 23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5) 23.2 Consent of PricewaterhouseCoopers LLP 24 Power of Attorney (included as part of the signature page of this Registration Statement)
EX-5 2 EXHIBIT 5 EXHIBIT 5 Testa, Hurwitz & Thibeault, LLP 125 High Street Boston, MA 02110 November 15, 1999 NetScout Systems, Inc. 4 Technology Park Drive Westford, MA 01886 Re: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We are acting as counsel for NetScout Systems, Inc., a Delaware corporation (the "COMPANY"), in connection with the registration on a Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") under the Securities Act of 1933, as amended, of the offer and sale of up to 4,500,000 shares (the "SHARES") of Common Stock, par value $.001 per share, of the Company under the 1999 Stock Option and Incentive Plan (the "1999 PLAN"). In rendering our opinion, we have examined, and are familiar with, and have relied as to factual matters solely upon, originals or copies certified, or otherwise identified to our satisfaction, of such documents, corporate records or other instruments as we have deemed necessary or appropriate for the purposes of the opinion set forth herein, including, without limitation, (a) the 1999 Plan, (b) the Company's Third Amended and Restated Certificate of Incorporation, (c) the Company's Amended and Restated By-laws, (d) a specimen of the form of Certificate evidencing the Shares and (e) the minute books of the Company. Based upon and subject to the foregoing, we are of the opinion that the Shares are duly authorized and, when issued and delivered pursuant to the terms of the 1999 Plan and the terms of any agreement relating to any of the options granted thereunder, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Testa, Hurwitz & Thibeault, LLP TESTA, HURWITZ & THIBEAULT, LLP EX-23.2 3 EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated July 14, 1999 relating to the consolidated financial statements and financial statement schedules for the year ended March 31, 1999 of NetScout Systems, Inc., which appears in NetScout Systems, Inc.'s Registration Statement on Form S-1 (No. 333-76843), as amended, as filed with the Securities and Exchange Commission on August 11, 1999. PricewaterhouseCoopers LLP Boston, MA November 15, 1999 -----END PRIVACY-ENHANCED MESSAGE-----