-----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, Gfhozq+f2T1zb5Q/SZGvD4A2RjLrx8NHe0QB7YrMwKnhwredTAvb3NFRMNb3yamk 5/fknlBG2eyHptR8yy5M8A== 0001047469-97-005053.txt : 19971117 0001047469-97-005053.hdr.sgml : 19971117 ACCESSION NUMBER: 0001047469-97-005053 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971114 EFFECTIVENESS DATE: 19971114 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NETWORK COMPUTING DEVICES INC CENTRAL INDEX KEY: 0000886138 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER TERMINALS [3575] IRS NUMBER: 770177255 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-40299 FILM NUMBER: 97721974 BUSINESS ADDRESS: STREET 1: 350 N BERNARDO AVE CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 BUSINESS PHONE: 4156940650 MAIL ADDRESS: STREET 1: 350 NORTH BERNARDO AVE CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 S-8 1 FORM S-8 Registration No. ____________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- NETWORK COMPUTING DEVICES, INC. ------------------------------- (Exact name of registrant as specified in its charter) California 77-0177255 ----------------------------------- ----------------------------------- (State or other jurisdiction of (I.R.S. employer identification no.) incorporation or organization) 350 North Bernardo Avenue Mountain View, CA 94043 ------------------------- (Address of principal executive offices) (Zip code) NETWORK COMPUTING DEVICES, INC. 1989 STOCK OPTION PLAN 1994 OUTSIDE DIRECTORS STOCK OPTION PLAN 1992 EMPLOYEE STOCK PURCHASE PLAN AND INDIVIDUAL STOCK OPTION AGREEMENT ------------------------------------- (Full Title of the Plan) Robert G. Gilbertson President and Chief Executive Officer Network Computing Devices, Inc. 350 North Bernardo Avenue Mountain View, CA 94043 ----------------------- (Name and address of agent for service) Telephone number, including area code, of agent for service: 650/694-0650. This registration statement shall hereafter become effective in accordance with Rule 462 promulgated under the Securities Act of 1933, as amended. -1-
- ------------------------------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------- Proposed Proposed maximum maximum Title of securities Amount to be offering price aggregate Amount of to be registered (1) registered per share (2) offering price (2) registration fee - ------------------------------------------------------------------------------------------------------------------------------- 1989 STOCK OPTION PLAN Common Stock 233,676 $8.5938 $2,008,164.81 No Par Value 2,466,324 $5.76 $14,206,026.24 1994 OUTSIDE DIRECTORS STOCK OPTION PLAN Common Stock 62,500 $8.5938 $537,112.50 No Par Value 187,500 $6.9350 $1,300,312.50 1992 EMPLOYEE STOCK PURCHASE PLAN Common Stock 215,281 $7.3047 $1,572,563.12 No Par Value INDIVIDUAL OPTION Common Stock 265,000 $3.50 $927,500.00 No Par Value TOTALS 3,430,281 $20,551,679.17 $6,227.78
- ----------------------- (1) The securities to be registered include options and rights to acquire such Common Stock. (2) Estimated pursuant to Rule 457 solely for purposes of calculating the registration fee. As to shares subject to outstanding but unexercised options under the 1989 Stock Option Plan and the 1994 Outside Directors Stock Option Plan, the price is computed on the basis of the weighted average exercise price. As to the remaining shares under the 1989 Stock Option Plan and the 1994 Outside Directors Stock Option Plan, the price is based upon the average of the high and low prices of the Common Stock on November 10, 1997, as reported on the National Association of Securities Dealers Automated Quotations System. The 1992 Employee Stock Purchase Plan establishes a purchase price equal to 85% of the fair market value of the Company's Common Stock and, therefore, the price for purchase rights under this plan is based upon 85% of the average of the high and low prices of the Common Stock on November 10, 1997, as reported on the National Association of Securities Dealers Automated Quotations System. As to the 265,000 shares under the individual stock option agreement, the price is based upon the exercise price. -2- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE Network Computing Devices, Inc. (the "Company") hereby incorporates by reference in this registration statement the following documents: (a) The Company's latest annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), containing audited financial statements for the Company's latest fiscal year ended December 31, 1996, as filed with the Commission. (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 document referred to in (a) above. (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A dated April 25, 1992, filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES The class of securities to be offered is registered under Section 12 of the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Inapplicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Company's Articles of Incorporation provide that the liability of the directors for monetary damages shall be eliminated to the fullest extent permissible under California law. Pursuant to California law, the Company's directors shall not be liable for monetary damages for breach of the directors' fiduciary duty of care to the Company and its shareholders. However, this provision does not eliminate the duty of care, and in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under California law. -3- In addition, each director will continue to be subject to liability for (i) acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) acts or omissions that a director believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the director, (iii) any transaction from which a director derived an improper personal benefit, (iv) acts or omissions that show a reckless disregard for the director's duty to the Company or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Company or its shareholders, (v) acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the Company or its shareholders, (vi) any transaction that constitutes an illegal distribution or dividend under California law, and (vii) any transaction involving an unlawful conflict of interest between the director and the Company under California law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. ITEM 8. EXHIBITS See Exhibit Index. ITEM 9. UNDERTAKINGS (a) RULE 415 OFFERING 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; (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; -4- PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the 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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE 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 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. (h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION STATEMENT ON FORM S-8 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. -5- SIGNATURE 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 Mountain View, State of California, on November 13, 1997. Network Computing Devices, Inc. By: /s/ Robert G. Gilbertson ---------------------------------- Robert G. Gilbertson, President and Chief Executive Officer -6- SIGNATURES AND POWER OF ATTORNEY The officers and directors of Network Computing Devices, Inc. whose signatures appear below, hereby constitute and appoint Robert G. Gilbertson and Rudolph G. Morin, and each of them, their true and lawful attorneys and agents, with full power of substitution, each with power to act alone, to sign and execute on behalf of the undersigned any amendment or amendments to this registration statement on Form S-8, and each of the undersigned does hereby ratify and confirm all that each of said attorney and agent, or their or his substitutes, shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on November 13, 1997. Signature Title - ------------------------------------------------------------------------------ /s/ Robert G. Gilbertson President, Chief Executive Officer, and - ----------------------------- Director (Principal Executive Officer) Robert G. Gilbertson /s/ Rudolph G. Morin Executive Vice President, Operations & - ----------------------------- Finance and Chief Financial Officer Rudolph G. Morin (Principal Financial and Accounting Officer) /s/ Peter Preuss Director - ----------------------------- Peter Preuss /s/ Philip Greer Director - ----------------------------- Philip Greer /s/ Paul Low Director - ----------------------------- Paul Low Director - ----------------------------- Stephen A. MacDonald -7- EXHIBIT INDEX 4.1 Amended and Restated Articles of Incorporation of the Company is incorporated by reference to Exhibit 3.1 to the Company's Form 10-K Annual Report for the year ended December 31, 1992, filed with the Securities and Exchange Commission 4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.3 to the Company's Registration Statement on Form S-1 (No. 33-47246) filed with the Securities and Exchange Commission, effective on June 4, 1992 4.3 Amendments to Bylaws of the Company, effective as of August 12, 1997 4.4 Rights Agreement dated as of August 12, 1997, between the Company and ChaseMellon Shareholder Services, L.L.C., which includes as Exhibit B the form of Rights Certificate, is incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form 8-A filed with the Securities and Exchange Commission as of August 14, 1997 (File No. 000-20124) 5 Opinion re legality 23.1 Consent of Counsel (included in Exhibit 5) 23.2 Consent of KPMG Peat Marwick LLP 24 Power of Attorney (included in signature pages to this registration statement) -8- EX-4.3 2 EXHIBIT 4.3 EXHIBIT 4.3 AMENDMENTS TO THE BY-LAWS OF NETWORK COMPUTING DEVICES, INC. Section 2.2 of Article II of the Corporation's By-Laws shall be amended and restated to read in its entirety as follows: SECTION 2.2 ANNUAL MEETINGS. The annual meetings of shareholders shall be held on such day and at such hour as shall be fixed by the Board of Directors. At such meeting, the shareholders shall elect Directors and shall transact such other business as may properly be brought before the meeting. To be properly brought before the annual meeting, business must be either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a shareholder of record. In addition to any other applicable requirements, for business to be properly brought before the annual meeting by a shareholder, the shareholder must have given timely notice thereof in writing to the Secretary of the corporation. To be timely, a shareholder's notice must be delivered by a nationally recognized courier service or mailed by first class United States mail, postage or delivery charges prepaid, and received at the principal executive offices of the corporation, addressed to the attention of the Secretary of the corporation, not less than 60 days nor more than 90 days prior to the scheduled date of the meeting (regardless of any postponements, deferrals or adjournments of that meeting to a later date); provided, however, that in the event that less than 70 days' notice or prior public disclosure of the date of the scheduled meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the earlier of (a) the close of business on the 10th day following the day on which such notice of the date of the scheduled annual meeting was mailed or such public disclosure was made, whichever first occurs, and (b) two days prior to the date of the scheduled meeting. A shareholder's notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of the shareholder proposing such business, (iii) the class, series and number of shares of the corporation that are owned beneficially by the shareholder, and (iv) any material interest of the shareholder in such business. Notwithstanding anything in these By-Laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Section; provided, however, that nothing in this Section shall be deemed to preclude discussion by any shareholder of any business properly brought before the annual meeting. 1 The Chairman of the Board of the corporation (or such other person presiding at the meeting in accordance with these By-Laws) shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 3.3 of Article III of the Corporation's By-Laws shall be amended and restated to read in its entirety as follows: SECTION 3.3 ELECTION AND TERM OF OFFICE. The Directors shall be elected at each annual meeting of shareholders, but if any such annual meeting is not held, or the Directors are not elected thereat, the Directors may be elected at any special meeting of the shareholders held for that purpose. All Directors shall hold office until the expiration of the term for which elected and until their respective successors are elected, except in the case of the death, resignation or removal of any Director. A Director need not be a shareholder. Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors at the annual meeting, by or at the direction of the Board of Directors, may be made by any nominating committee or person appointed by the Board of Directors; nominations may also be made by any shareholder of record of the corporation entitled to vote for the election of Directors at the meeting who complies with the notice procedures set forth in this Section. Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation. To be timely, a shareholder's notice shall be delivered by a nationally recognized courier service or mailed by first class United States mail, postage or delivery charges prepaid, and received at the principal executive offices of the corporation addressed to the attention of the Secretary of the corporation not less than 60 days nor more than 90 days prior to the scheduled date of the meeting (regardless of any postponements, deferrals or adjournments of that meeting to a later date); provided, however, that, in the case of an annual meeting and in the event that less than 70 days' notice or prior public disclosure of the date of the scheduled meeting is given or made to shareholders, notice by the shareholder to be timely must be so received not later than the earlier of (a) the close of business on the 10th day following the day on which such notice of the date of the scheduled meeting was mailed or such public disclosure was made, whichever first occurs, and (b) two days prior to the date of the scheduled meeting. Such shareholder's notice to the Secretary shall set forth (a) as to each person whom the shareholder proposes to nominate for election or reelection as a Director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class, series and number of shares of capital stock of the corporation that are owned beneficially by the person, (iv) a statement as to the person's citizenship, and (v) any other information relating to the person that is required to be disclosed in solicitations for proxies for election of Directors pursuant to Section 14 of 2 the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; and (b) as to the shareholder giving the notice, (i) the name and record address of the shareholder and (ii) the class, series and number of shares of capital stock of the corporation that are owned beneficially by the shareholder. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility of such proposed nominee to serve as Director of the corporation. No person shall be eligible for election as a Director of the corporation unless nominated in accordance with the procedures set forth herein. In connection with any annual meeting, the Chairman of the Board of Directors (or such other person presiding at such meeting in accordance with these By-Laws) shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. 3 EX-5 3 EXHIBIT 5 [Letterhead of GRAY CARY WARE & FREIDENRICH, A Professional Corporation] ATTORNEYS AT LAW 400 HAMILTON AVENUE PALO ALTO, CA 94301-1825 TEL: (650) 328-6561 FAX: (650) 327-3699 http://www.gcwf.com EXHIBIT 5 November 13, 1997 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: As legal counsel for Network Computing Devices, Inc., a California corporation (the "Company"), we are rendering this opinion in connection with the registration under the Securities Act of 1933, as amended, of up to 3,430,281 shares of the Common Stock, no par value, of the Company which may be issued pursuant to the exercise of options and purchase rights granted under the Network Computing Devices, Inc. 1989 Stock Option Plan, the 1994 Outside Directors Stock Option Plan, and the 1992 Employee Stock Purchase Plan (the "Plans"), and under a stock option granted to Robert G. Gilbertson (the "Individual Option"). We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of California and we express no opinion concerning any law other than the law of the State of California and the federal law of the United States. Based on such examination, we are of the opinion that the 3,430,281 shares of Common Stock which may be issued upon exercise of options and purchase rights granted under the Plans and the Individual Option are duly authorized shares of the Company's Common Stock, and, when issued against receipt of the consideration therefor in accordance with the provisions of the Plans and the Individual Option will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in said Registration Statement. Respectfully submitted, /s/ Gray Cary Ware & Freidenrich GRAY CARY WARE & FREIDENRICH A Professional Corporation EX-23.2 4 EXHIBIT 23.2 EXHIBIT 23.2 The Board of Directors Network Computing Devices, Inc.: We consent to incorporation by reference in the registration statement on Form S-8 of Network Computing Devices, Inc. of our reports dated January 28, 1997, relating to the consolidated balance sheets of Network Computing Devices, Inc. and subsidiaries as of December 31, 1996 and 1995, and the related consolidated statements of operations, shareholder's equity, and cash flows for each of the years in the three-year period ended December 31, 1996, and the related schedule, which reports appear in the December 31, 1996, annual report on Form 10-K of Network Computing Devices, Inc. KPMG Peat Marwick LLP Palo Alto, California November 14, 1997 -----END PRIVACY-ENHANCED MESSAGE-----