sv8
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NETWORK APPLIANCE, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State of Incorporation)
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77-0307520
(I.R.S. Employer Identification No.) |
495 East Java Drive,
Sunnyvale, California 94089
(Address of principal executive offices)
NETWORK APPLIANCE, INC. EMPLOYEE STOCK PURCHASE PLAN
NETWORK APPLIANCE, INC. 1999 STOCK OPTION PLAN
(Full title of the plans)
Daniel J. Warmenhoven
Chief Executive Officer and Director
Network Appliance, Inc.
495 East Java Drive,
Sunnyvale, California 94089
(408) 822-6000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Steven E. Bochner, Esq.
Wilson Sonsini Goodrich & Rosati, P. C.
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Securities |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Amount of |
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to be Registered |
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Registered |
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Share (1) |
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Price (1) |
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Registration Fee |
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Stock Options and
Common Stock (par
value $0.001)
reserved under the
1999 Stock Option
Plan
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7,200,000 |
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$ |
30.46 |
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$ |
219,312,000 |
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$ |
6,732.88 |
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Common Stock (par
value $0.001)
issuable upon
purchase of Shares
granted under the
Employee Stock
Purchase Plan
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1,600,000 |
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$ |
30.46 |
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$ |
48,736,000 |
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$ |
1,496.20 |
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(1) |
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant
to Rule 457(h). The price per share and aggregate offering price are based upon the average
of the high and low prices of Registrants Common Stock on October 29, 2007 as reported on the
Nasdaq National Market. |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be sent or given to
employees, officers, directors or others as specified by Rule 428(b)(1). In accordance with the
rules and regulations of the Securities and Exchange Commission (the Commission) and the
instructions to Form S-8, such documents are not being filed with the Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registration Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be sent or given to
employees, officers, directors or others as specified by Rule 428(b)(1). In accordance with the
rules and regulations of the Commission and the instructions to Form S-8, such documents are not
being filed with the Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. Such documents, together with the documents
incorporated by reference herein pursuant to Item 3 of Part II of this Registration Statement on
Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of the Securities
Act,
and are available upon written or oral request: Network Appliance, Inc., Attn: General
Counsel, 495 East Java Drive, Sunnyvale, CA 94089, Tel: 408.822.6000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Network Appliance, Inc. (the Registrant) hereby incorporates by reference
into this Registration Statement the following documents previously filed with the Commission:
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(a) |
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The Registrants Annual Report on Form 10-K for the fiscal year ended April 27, 2007, filed
with the Commission on June 26, 2007, pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the 1934 Act); |
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(b) |
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The Registrants Current Report on Form 8-K, filed with the Commission on July 20, 2007; |
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(c) |
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The Registrants Current Report on Form 8-K, filed with the Commission on August 17, 2007; |
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(d) |
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The Registrants Current Report on Form 8-K, filed with the Commission on August 23, 2007; |
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(e) |
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The Registrants Current Reports on Form 8-K, filed with the Commission on October 12, 2007; |
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(f) |
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The Registrants Quarterly Report on Form 10-Q for the quarter ended July 27, 2007, filed
with the Commission on September 5, 2007, pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended (the 1934 Act); and |
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(g) |
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The Registrants Registration Statement No. 000-27130 on Form 8-A filed with the Commission
on November 1, 1995, in which there is described the terms, rights and provisions
applicable to the Registrants Common Stock. |
All reports and definitive proxy or information statements filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to
be incorporated by reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
[Not applicable.]
Item 5. Interests of Named Experts and Counsel
[Not applicable.]
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to award
or a corporations board of directors to grant indemnification to directors and officers in terms
sufficiently broad to permit the indemnification under some circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities Act of 1933, as
amended. Article IX of the Certificate of Incorporation of the Registrant provides that, subject to
Delaware law, its directors will not be personally liable for monetary damages for breach of
their fiduciary duties to the Registrant and its stockholders. This provision does not eliminate
any directors fiduciary duties and in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under Delaware law. The
provision also does not affect a directors responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
Item 7. Exemption from Registration Claimed
[Not applicable.]
Item 8. Exhibits
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Exhibit |
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Number |
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Documents |
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4.1
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The Registrants Registration Statement No. 000-27130 on Form 8-A, filed with the Commission
on November 1, 1995, in which there is described the terms, rights and provisions applicable
to the Registrants Common Stock. |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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23.1
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Consent of Deloitte and Touche LLP |
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, P.C. is contained in Exhibit 5.1 to this
Registration Statement. |
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Power of Attorney is contained on the signature page |
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99.1
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Network Appliance, Inc. 1999 Stock Option Plan previously filed with the Commission as an
Exhibit with the Companys Proxy Statement dated July 25, 2007. |
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99.2
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Network Appliance, Inc. Employee Stock Purchase Plan previously filed with the Commission as
an Exhibit with the Companys Proxy Statement dated July 25, 2007. |
In accordance with the requirements of Item 8(b) of Part II of Form S-8, the Registrant will submit
or has submitted the Network Appliance, Inc. 1999 Stock Option Plan and the Network Appliance, Inc.
Employee Stock Purchase Plan (together, the Plans), and any amendments thereto, to the Internal
Revenue Service (the IRS) in a timely manner and has made or will make all changes required by
the IRS to qualify the Plans.
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, 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) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plans annual report pursuant to
Section 15(d) of the Exchange Act of 1934) that is incorporated by reference in this 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 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
Commission such indemnification is against public policy as expressed in the Securities Act of 1933
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 of 1933 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 Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on
October 30, 2007.
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Network Appliance, Inc. |
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By:
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/s/ DANIEL J. WARMENHOVEN |
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Daniel J. Warmenhoven |
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Title:
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Chief Executive Officer and Director |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below
constitutes and appoints Daniel J. Warmenhoven and Steven J. Gomo, and each of them, as his true
and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-8, and to file the
same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them,
or their or his substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons on behalf of the Company and in the capacities and
on the dates indicated:
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Signatures |
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Title |
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/s/ DANIEL J. WARMENHOVEN
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Chief Executive Officer, Director
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October 30, 2007 |
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(Principal Executive Officer) |
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/s/ DONALD T. VALENTINE
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Chairman of the Board, Director
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October 30, 2007 |
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/s/ STEVEN J. GOMO
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Executive Vice President of Finance
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October 30, 2007 |
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and Chief Financial Officer |
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Signatures |
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/s/ MARK LESLIE
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Director
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October 30, 2007 |
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/s/ CAROL A. BARTZ
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Director
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October 30, 2007 |
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/s/ NICHOLAS G. MOORE
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Director
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October 30, 2007 |
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/s/ GEORGE T. SHAHEEN
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Director
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October 30, 2007 |
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/s/ ROBERT T. WALL
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Director
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October 30, 2007 |
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/s/ JEFFRY R. ALLEN
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Director
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October 30, 2007 |
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/s/ ALAN EARHART
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Director
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October 30, 2007 |
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/s/ EDWARD KOZEL
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Director
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October 30, 2007 |
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EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
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4.1
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The Registrants Registration Statement No. 000-27130 on Form 8-A,
filed with the Commission on November 1, 1995, in which there is
described the terms, rights and provisions applicable to the
Registrants Common Stock. |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, P.C. |
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23.1
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Consent of Deloitte and Touche LLP |
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, P. C., is
contained in Exhibit 5.1 to this Registration Statement |
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Power of Attorney is contained on the signature page |
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99.1
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Network Appliance, Inc. 1999 Stock Option Plan previously filed
with the Commission as an Exhibit with the Companys Proxy
Statement dated July 25, 2007 |
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99.2
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Network Appliance, Inc. Employee Stock Purchase Plan previously
filed with the Commission as an Exhibit with the Companys Proxy
Statement dated July 25, 2007 |