-----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, ImUXNAUK8Xx447LAzPjQzmLRj2Mg7txfCng06x2XHb7PCTPWZM38AnRz6dDDOwvL mRFsC3q8ndnKfeHVG/SDFg== 0000944209-99-000601.txt : 19990421 0000944209-99-000601.hdr.sgml : 19990421 ACCESSION NUMBER: 0000944209-99-000601 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990420 EFFECTIVENESS DATE: 19990420 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XIRCOM INC CENTRAL INDEX KEY: 0000883905 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 954221884 STATE OF INCORPORATION: CA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-76621 FILM NUMBER: 99597460 BUSINESS ADDRESS: STREET 1: 2300 CORPORATE CENTER DR CITY: THOUSAND OAKS STATE: CA ZIP: 91320-1420 BUSINESS PHONE: 8053769300 MAIL ADDRESS: STREET 1: 2300 CORPORATE CENTER DRIVE CITY: THOUSAND OAKS STATE: CA ZIP: 91320-1420 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on April 20, 1999 Registration No. _____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 ---------------------- XIRCOM, INC. (Exact name of issuer as specified in its charter) CALIFORNIA 95-4221884 - ----------------------------------- ---------------------------------- (STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.) 2300 Corporate Center Drive Thousand Oaks, California 91320 (Address of Principal Executive Offices) ---------------------- 1992 DIRECTOR STOCK OPTION PLAN AND 1994 EMPLOYEE STOCK PURCHASE PLAN AND 1995 STOCK OPTION PLAN (Full title of the plan) ---------------------- Steven F. DeGennaro Chief Financial Officer XIRCOM, INC. 2300 Corporate Center Drive Thousand Oaks, California 91320 (Name and address of agent for service) (805) 376-9300 (Telephone number, including area code, of agent for service) ---------------------- Copy to: Howard S. Zeprun, Esq. WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, California 94304 Telephone: (650) 493-9300 CALCULATION OF REGISTRATION FEE
================================================================================================= Title of Proposed Proposed Securities to be Amount to Maximum Offering Maximum Aggregate Amount of Registered be Registered Price Per Share Offering Price Registration Fee ================================================================================================= Common Stock, $0.001 par value Upon exercise of 300,000 shs. $22.34(1) $ 6,702,000(1) $1,863.18 options under 1992 Director Stock Option Plan Upon exercise of 800,000 shs. $22.34(1) $17,872,000(1) $4,968.47 options under 1994 Employee Stock Purchase Plan Upon exercise of 1,700,000 shs. $22.34(1) $37,978,000(1) $10,558.01 options under 1995 Stock Option Plan TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $17,389.66
- ---------------------- (1) Estimated in accordance with Rule 457 solely for the purpose of calculating the registration fee on the basis of the average between the high and low price of the Registrant's Common Stock as reported on the Nasdaq National Market on April 15, 1999. ================================================================================ XIRCOM, INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. --------------------------------------- There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission: 1. The contents of the Registration Statement on Form S-8, file number 33- 49170, filed by the Company with the Securities and Exchange Commission on July 2, 1992. 2. The Company's Annual Report on Form 10-K for the year ended September 30, 1998, filed pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 3. The Company's Quarterly Report on Form 10-Q for the quarter ending December 31, 1998, filed pursuant to Section 13 of the Exchange Act. 4. The Company's Current Report on Form 8-K dated February 18, 1999, filed pursuant to Section 13 of the Exchange Act. 5. The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A dated February 11, 1992, filed pursuant to Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents filed by the Company 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 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 part hereof from the date of filing of such documents. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. ------------------------------------------ Section 204 of the General Corporation Law of the State of California ("California Law") authorizes a corporation to adopt a provision in its articles of incorporation eliminating the personal liability of directors to corporations and their shareholders for monetary damages for breach or alleged breach of directors' "duty of care." Following a California corporation's adoption of such a provision, its directors are not accountable to corporations and their shareholders for monetary damages for conduct constituting negligence (or gross negligence) in the exercise of their fiduciary duties; however, directors continue to be subject to equitable remedies such as injunction or rescission. Under California Law, a director also continues to be liable for (1) a breach of his or her duty of loyalty; (2) acts or omissions not in good faith or involving intentional misconduct or knowing violations of law; (3) illegal payments of dividends; and (4) approval of any transaction from which a director derives an improper personal benefit. The adoption of such a provision in the articles of incorporation also does not limit directors' liability for violations of the federal securities laws. Section 317 of the California Law makes a provision for the indemnification of officers, directors and other corporate agents in terms sufficiently broad to indemnify such persons, under certain circumstances, for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). An amendment to Section 317 provides that the indemnification provided by this section is not exclusive to the extent additional rights are authorized in a corporation's articles of incorporation. The Company has adopted provisions in its Amended Articles of Incorporation which eliminate the liability of its directors for monetary damages and authorize the Company to indemnify its officers, directors and other agents to the fullest extent permitted by law. ITEM 8. EXHIBITS. --------
Exhibit Number Description ------- ----------- 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 24.2 Consent of counsel (contained in Exhibit 5.1). 25.1 Power of Attorney (see page II-4).
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 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. (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended (the "Securities Act") 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 that 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, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 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 Securities 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 and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act that 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 Thousand Oaks, State of California, on April 20, 1999. XIRCOM, INC. By: /s/ DIRK I. GATES ------------------------------ Dirk I. Gates, Chairman, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Dirk I. Gates and Steven F. DeGennaro, jointly and severally, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8 and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitution or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - -------------------------------- -------------------------------- -------------------------------- /s/ DIRK I. GATES President and Chief Executive April 20, 1999 - -------------------------------- (Dirk I. Gates) Officer and Director (Principal Executive Officer) /s/ STEVEN F. DEGENNARO Vice President, Finance and April 20, 1999 - -------------------------------- (Steven F. DeGennaro) Chief Financial Officer (Principal Accounting Officer) /s/ MICHAEL F. G. ASHBY Director April 20, 1999 - -------------------------------- (Michael F. G. Ashby) /s/ KENNETH J. BIBA Director April 20, 1999 - -------------------------------- (Kenneth J. Biba) /s/ GARY J. BOWEN Director April 20, 1999 - -------------------------------- (Gary J. Bowen) /s/ J. KIRK MATHEWS Director April 20, 1999 - -------------------------------- (J. Kirk Mathews) /s/ CARL E. RUSSO Director April 20, 1999 - -------------------------------- (Carl E. Russo) /s/ WILLIAM J. SCHROEDER Director April 20, 1999 - -------------------------------- (William J. Schroeder) /s/ DELBERT W. YOCAM Director April 20, 1999 - -------------------------------- (Delbert W. Yocam)
INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - -------- ---------------------------------------------------------- 5.1 Opinion of counsel as to legality of securities being registered 23.1 Consent of Ernst & Young LLP, Independent Auditors 24.2 Consent of Counsel (Contained in Exhibit 5.1.) 25.1 Power of Attorney (included in signature pages to this registration statement)
EX-5.1 2 LEGAL OPINION - WILSON SONSINI GOODRICH & ROSATI EXHIBIT 5.1 April 20, 1999 Xircom, Inc. 2300 Corporate Center Drive Thousand Oaks, California 91320 RE: REGISTRATION STATEMENT ON FORM S-8 ---------------------------------- Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about April 20, 1999 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of 300,000 shares of your Common Stock issuable under your 1992 Director Stock Option Plan, 800,000 shares of your Common Stock issuable under your 1994 Employee Stock Purchase Plan and 1,700,000 of your Common Stock issuable under your 1995 Stock Option Plan. Such shares of Common Stock are referred to herein as the "Shares". The 1992 Director Stock Option Plan, the 1994 Employee Stock Purchase Plan and the 1995 Stock Option Plan are collectively referred to herein as the "Plans". As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plans. It is our opinion that, upon completion of the actions being taken, or contemplated by us as your counsel to be taken by you prior to the issuance of the Shares pursuant to the Registration Statement and the Plans and upon completion of the actions being taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the Shares will be legally and validly issued, fully-paid and non- assessable. We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation EX-23.1 3 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to the 1992 Director Stock Option Plan, the 1994 Employee Stock Purchase Plan and the 1995 Stock Option Plan of Xircom, Inc. of our report dated October 19, 1998, with respect to the consolidated financial statements and schedule of Xircom, Inc. included in its Annual Report (Form 10-K) for the year ended September 30, 1998, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Woodland Hills, California April 20, 1999 -----END PRIVACY-ENHANCED MESSAGE-----