-----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, IHpV+8xi0KX8rsNvNAV13YsqBIZQ3BkrrmFETh0W4KfNQ6Eiou4TAbBWPacK2dDJ hKQnQcL7PKPyeo09b/cKNQ== 0001047469-99-013387.txt : 19990405 0001047469-99-013387.hdr.sgml : 19990405 ACCESSION NUMBER: 0001047469-99-013387 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990402 EFFECTIVENESS DATE: 19990402 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: 333-75519 FILM NUMBER: 99586327 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 Filed with the Securities and Exchange Commission on April 2, 1999 Registration No. 333-_________ 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) Delaware 77-0177255 - ---------------------------------- ------------------------------------ (State or other jurisdiction (I.R.S. employer identification no.) of incorporation or organization) 350 North Bernardo Avenue Mountain View, CA 94043 --------------------------------------------------------------- (Address of principal executive offices) (Zip code) NETWORK COMPUTING DEVICES, INC. 1999 Nonstatutory Stock Option Plan --------------------------------------------------------------- (Full title of the plan) Rudolph G. Morin Executive Vice President, Operations and Finance and Chief Financial Officer Network Computing Devices, Inc. 350 North Bernardo Avenue Mountain View, CA 94303 --------------------------------------------------------------- (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 Title of maximum maximum Securities to be Amount to be offering price aggregate Amount of registered(1) registered(2) per share(3) offering price(3) registration fee - ------------------------------------------------------------------------------------------------------- 1999 NONSTATUTORY STOCK OPTION PLAN Common Stock 350,020 $7.00 $2,450,140.00 $681.14 Par Value $0.001 149,980 $5.28125 $792,081.87 $220.20 TOTALS 500,000 $3,242,221.87 $901.34
- ----------------------------- (1) The securities to be registered include options to acquire Common Stock. (2) Pursuant to Rule 416(a), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction. (3) Estimated pursuant to Rule 457 solely for purposes of calculating the registration fee. As to shares subject to outstanding but unexercised options under the 1999 Nonstatutory Stock Option Plan, the price is computed on the basis of the weighted average exercise price. As to the remaining shares under the 1999 Nonstatutory Stock Option Plan, the price is based upon the average of the high and low prices of the Common Stock on March 29, 1999, as reported on the Nasdaq National Market. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE Network Computing Devices, Inc., a Delaware corporation (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, 1998 as filed with the Securities and Exchange Commission on March 31, 1999. (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-A12G/A filed on January 14, 1999 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 Section 102(b) of the Delaware General Corporation Law authorizes a corporation to provide in its Certificate of Incorporation that a director of the corporation shall not be personally liable to corporation or its stockholders for monetary damages for breach or alleged breach of the director's "duty of care." While this statute does not change directors' duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. The statute has no effect on a director's duty of loyalty or liability for acts or 3 omissions not in good faith or involving intentional misconduct or knowing violations of law, illegal payment of dividends or stock redemptions or repurchases, or for any transaction from which the director derives an improper personal benefit. As permitted by the statute, the Company has adopted provisions in its Certificate of Incorporation which eliminate to the fullest extent permissible under Delaware law the personal liability of its directors to the Company and its stockholders for monetary damages for breach or alleged breach of their duty of care. Section 145 of the General Corporation Law of the State of Delaware provides for the indemnification of officers, directors, employees and agents of a corporation. The Bylaws of the Company provide for indemnification of its directors, officers, employees and agents to the full extent permitted by under Delaware law, including those circumstances in which indemnification would otherwise be discretionary under Delaware law. The Company's Bylaws also empower it to enter into indemnification agreements with its directors and officers and to purchase insurance on behalf of any person whom it is required or permitted to indemnify. The Company has entered into agreements with its directors and certain of its executive officers that require the Company to indemnify such persons to the fullest extent permitted under Delaware law against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or an executive officer of the Company or any of its affiliated enterprises. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. Section 145 of the General Corporation Law of the State of Delaware provides for indemnification in terms sufficiently broad to indemnify such individuals, under certain circumstances, for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Item 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. Item 8. EXHIBITS See Exhibit Index. Item 9. UNDERTAKINGS 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; 4 (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; and (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 (1)(i) and (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 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, 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. 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. 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. 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 March 31, 1999. NETWORK COMPUTING DEVICES, INC. By: /s/ Rudolph G. Morin ---------------------------- Rudolph G. Morin Executive Vice President, Operations and Finance and Chief Financial 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 and on the dates indicated.
Signature Title Date - ------------------------- ---------------------------------- --------------- President, Chief Executive Officer /s/ Robert G. Gilbertson and Chairman of the Board March 31, 1999 - ------------------------ (Principal Executive Officer) Robert G. Gilbertson Executive Vice President, Operations and Finance, /s/ Rudolph G. Morin Chief Financial Officer and March 31, 1999 - ------------------------ Director (Principal Financial and Rudolph G. Morin Accounting Officer) /s/ Peter Preuss Director March 31, 1999 - ------------------------ Peter Preuss /s/ Philip Greer Director March 30, 1999 - ------------------------ Philip Greer Director March ___, 1999 - ------------------------ Paul Low /s/ Stephen A. MacDonald Director March 30, 1999 - ------------------------ Stephen A. MacDonald /s/ Douglas H. Klein Director March 31, 1999 - ------------------------ Douglas H. Klein
EXHIBIT INDEX 4.1 Restated Certificate of Incorporation of the Company is incorporated by reference to the Company's Registration Statement on Form 8-A12G/A filed with the Securities and Exchange Commission on January 14, 1999 4.2 Amended and Restated Bylaws of the Company are incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form 8-A12G/A filed with the Securities and Exchange Commission on January 14, 1999 4.3 Rights Agreements dated August 12, 1997 and December 31, 1998 are incorporated by reference to Exhibits 4.1 and 4.2 to the Company's Registration Statement on Form 8-A12G/A filed with the Securities and Exchange Commission on January 14, 1999 4.4 Agreement and Plan of Merger dated April 24, 1998 between Network Computing Devices, Inc., a California corporation, and the Company, is incorporated by reference to Exhibit 2.1 to the Company's Registration Statement on Form 8-K filed with the Securities and Exchange Commission on January 14, 1999 5 Opinion re legality 23.1 Consent of Counsel (included in Exhibit 5) 23.2 Consent of KPMG LLP 24 Power of Attorney (included in signature pages to this registration statement) EX-5 2 EXHIBIT 5 EXHIBIT 5 [LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP] 400 Hamilton Avenue, Palo Alto, CA 94301-1825 Phone: 650-328-6561 Fax: 650-327-3699 www.gcwf.com April 1, 1999 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 Delaware corporation (the "Company"), we are rendering this opinion in connection with the registration under the Securities Act of 1933, as amended, of up to 500,000 shares of the Common Stock, $0.001 par value, of the Company which may be issued pursuant to the exercise of options granted under the Network Computing Devices, Inc. 1999 Nonstatutory Stock Option Plan (the "Plan"). 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, the corporation laws of the State of Delaware and the federal law of the United States. As to matters of Delaware corporation law, we have based our opinion solely upon our examination of such laws and the rules and regulations of the authorities administering such laws, all as reported in standard, unofficial compilations. We have not obtained opinions of counsel licensed to practice in jurisdictions other than the State of California. Based on such examination, we are of the opinion that the 500,000 shares of Common Stock which may be issued upon exercise of options granted under the Plan 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 Plan, 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 LLP GRAY CARY WARE & FREIDENRICH LLP EX-23.2 3 EXHIBIT 23.2 EXHIBIT 23.2 Consent Of Independent Auditors The Board of Directors and Shareholders 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 February 9, 1999, relating to the consolidated balance sheets of Network Computing Devices, Inc. and subsidiaries as of December 31, 1998 and December 31, 1997, and the related consolidated statements of operations, shareholders' equity and cash flows for each of the years in the three-year period ended December 31, 1998, and the related schedule, which reports appear in the December 31, 1998 annual report on Form 10-K of Network Computing Devices, Inc. KPMG LLP Mountain View, California April 1, 1999 -----END PRIVACY-ENHANCED MESSAGE-----