-----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, LmQJT7vIFCUTN5N9GcqLsJsHV5lrYI4QH4K0zk+B9hiiV4jcSH0NiQYsOGz2xc4f Tbia/eBy6I7nmzs2oD8DKg== 0001047469-99-013388.txt : 19990405 0001047469-99-013388.hdr.sgml : 19990405 ACCESSION NUMBER: 0001047469-99-013388 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 1 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 POS SEC ACT: SEC FILE NUMBER: 333-40299 FILM NUMBER: 99586330 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 POS 1 FORM S-8 Filed with the Securities and Exchange Commission on April 2, 1999 Registration No. 333-40299 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 POST-EFFECTIVE AMENDMENT NUMBER ONE TO 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, CALIFORNIA 94043 --------------------------------------------------- (Address of principal executive offices) (Zip code) NETWORK COMPUTING DEVICES, INC. 1994 OUTSIDE DIRECTOR 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, CALIFORNIA 94043 --------------------------------------- (Name and address of agent for service) Telephone number, including area code, of agent for service: (650) 694-0650 Pursuant to Rule 414 promulgated under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement is hereby expressly adopted by the registrant as the successor to Network Computing Devices, Inc., a California corporation, as its own registration statement for all purposes under the Securities Act and under the Securities Exchange Act of 1934, as amended. 1 CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------ No additional registration fee is due because no additional shares are being registered. - ------------------------------------------------------------------------------ PART II 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 (or its predecessor'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. (b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above. (c) The description of the Company's Common Stock contained in the registration statement on Form 8-A/A filed on January 14, 1999, pursuant to Section 12(g) of 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 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. On April 24, 1998, Network Computing Devices, Inc., a California corporation ("Network Computing Devices California" or "Predecessor"), undertook a reorganization and reincorporation for the purpose of changing its state of domicile from California to Delaware. The reincorporation was accomplished by merging Network Computing Devices California into the Company, which was a wholly-owned subsidiary of Network Computing Devices California. Pursuant to the reincorporation merger, each share of Common Stock of Network Computing Devices California was converted into one share of Common Stock of the Company. Furthermore, the Company 2 assumed all of the obligations of Network Computing Devices California under the 1994 Outside Director Stock Option Plan (the "Plan"). The outstanding options assumed under the Plan are exercisable for shares of the Company's Common Stock. The description of the rights and privileges of Common Stock of the Company is contained in the registration statement on Form 8-A/A filed on January 14, 1999. 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 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. 3 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. 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 sale 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; (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; PROVIDED, HOWEVER, that paragraphs (1)(i) and (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 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. 4 (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 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 arises 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 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 Post-Effective Amendment Number One to the registration statement to be signed by the undersigned, thereunto duly authorized, in the City of Mountain View, State of California, on this 29th day of March, 1999. NETWORK COMPUTING DEVICES, INC. By: /s/ Rudolph G. Morin ----------------------------------- Rudolph G. Morin Executive Vice President, Operations and Finance and Chief Financial Officer 5 Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective Amendment Number One to the registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - ----------------------- ---------------------------------- -------------- President, Chief Executive Officer * and Chairman of the Board March 29, 1999 - ----------------------- (Principal Executive Officer) Robert G. Gilbertson Executive Vice President, Operations and Finance, /s/ Rudolph G. Morin Chief Financial Officer and Director March 29, 1999 - ----------------------- (Principal Financial and Rudolph G. Morin Accounting Officer) * Director March 29, 1999 - ----------------------- Peter Preuss * Director March 29, 1999 - ----------------------- Philip Greer * Director March 29, 1999 - ----------------------- Paul Low Director March ___, 1999 - ----------------------- Stephen A. MacDonald Director March ___, 1999 - ----------------------- Douglas H. Klein
* By: /s/ Rudolph G. Morin ------------------------------------------------ Rudolph G. Morin, Attorney-in-Fact 6 EXHIBIT INDEX OF POST-EFFECTIVE AMENDMENT NUMBER ONE TO FORM S-8
Exhibit Number Exhibit Title - -------------- -------------- 4.1 Restated Certificate of Incorporation of the Company is incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form 8-A/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-A/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-A/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 regarding legality is incorporated by reference to Predecessor's Registration Statement on Form S-8 (File No. 333-40299) filed on November 14, 1997 23.1 Consent of Counsel (included in Exhibit 5) 23.2 Consent of Independent Auditors is incorporated by reference to Predecessor's Registration Statement on Form S-8 (File No. 333-40299) filed on November 14, 1997 24 Power of Attorney is incorporated by reference to Predecessor's Registration Statement on Form S-8 (File No. 333-40299), filed on November 14, 1997
7 -----END PRIVACY-ENHANCED MESSAGE-----