S-8 1 a07-31432_1s8.htm S-8

 

As filed with the Securities and Exchange Commission on December 14, 2007

Registration No. 333-          

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

 

NETWORK ENGINES, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware
(State or Other Jurisdiction of
Incorporation or Organization)

 

04-3064173
(I.R.S. Employer
Identification Number)

 

 

 

25 Dan Road, Canton, Massachusetts
(Address of Principal Executive Offices)

 

02021-2817
(Zip Code)

 

2000 Employee Stock Purchase Plan, as amended

1999 Stock Incentive Plan, as amended

(Full Title of the Plans)

 

Gregory A. Shortell

Network Engines, Inc.

25 Dan Road

Canton, Massachusetts 02021-2817

(Name and Address of Agent for Service)

 

(781) 332-1000

(Telephone Number, Including Area Code, of Agent for Service)

 

Title of securities
 to be registered

 

Amount to be Registered(1)

 

Proposed maximum
offering price
per share(2)

 

Proposed maximum
aggregate offering
price

 

Amount of
registration fee

 

Common Stock $.01 par value

 

2,301,450

(3)

$

1.595

 

$

3,670,813

 

$

112.69

 

 

(1)

Pursuant to Rule 416(a) of the Securities Act, this Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Plans being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock.

 

 

(2)

Computed in accordance with Rule 457 (c) and (h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, based upon the average of the high and low prices of the Common Stock on the Nasdaq Global Market on December 10, 2007

 

 

(3)

Consists of 250,000 shares issuable under the 2000 Employee Stock Purchase Plan, as amended and 2,051,450 shares issuable under the 1999 Stock Incentive Plan, as amended.

 


 

EXPLANATORY NOTE

 

                Included in this Registration Statement on Form S-8 is an additional 2,051,450 shares of Common Stock of Network Engines, Inc. (the “Company”) authorized for issuance under the 1999 Stock Incentive Plan, as amended (the “1999 Plan”). These additional shares have become authorized for issuance as a result of the operation of the “evergreen” provision contained in the 1999 Plan.  This provision provides that on October 1 of each year, the number of shares authorized for issuance under the 1999 Plan shall be automatically increased by the lesser of (a) 4,000,000, (b) 5% of the outstanding shares of the Company on such date, or (c) an amount determined by the Board of Directors.  The Board of Directors determined that the increase in the number of shares authorized for issuance under the 1999 Plan on October 1, 2007 shall be 2,051,450, which represents 5% of the outstanding common shares of the Company on October 1, 2007.

 

                The additional 250,000 shares included in this Registration Statement on Form S-8 relate to the Company’s 2000 Employee Stock Purchase Plan and were approved by the Company’s stockholders in the Company’s 2007 Annual Meeting of Stockholders on March 14, 2007.

 

STATEMENT OF INCORPORATION BY REFERENCE

 

                This registration statement incorporates by reference the Registration Statement on Form S-8, File No. 333-41374, filed by the Registrant on July 13, 2000, relating to the Registrant’s 1999 Plan and 2000 Employee Stock Purchase Plan.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, 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 Canton, Massachusetts on December 14, 2007.

 

 

NETWORK ENGINES, INC.

 

 

 

 

 

By:

 /s/ Gregory A. Shortell

 

 

Gregory A. Shortell

 

 

President and Chief Executive Officer

 

POWER OF ATTORNEY AND SIGNATURES

 

We, the undersigned officers and directors of Network Engines, Inc., hereby severally constitute and appoint Gregory A. Shortell, Douglas G. Bryant and Philip P. Rossetti and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and behalf in our capacities as officers and directors to enable Network Engines Inc. to comply with all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.

 

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/ Gregory A. Shortell

 

 

 

 

Gregory A. Shortell

 

President and Chief Executive
Officer (Principal Executive
Officer)and Director

 

December 14, 2007

 

 

 

 

 

 

 

 

 

 

/s/ Douglas G. Bryant

 

 

 

 

Douglas G. Bryant

 

Chief Financial Officer,
Treasurer and Secretary
(Principal Financial and
Accounting Officer)

 

December 14, 2007

 

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/s/ John A. Blaeser

 

 

 

 

John A. Blaeser

 

Director

 

December 14, 2007

 

 

 

 

 

 

 

 

 

 

/s/ Charles A. Foley

 

 

 

 

Charles A. Foley

 

Director

 

December 14, 2007

 

 

 

 

 

 

 

 

 

 

/s/ Gary E. Haroian

 

 

 

 

Gary E. Haroian

 

Director

 

December 14, 2007

 

 

 

 

 

 

 

 

 

 

/s/ Dennis A. Kirshy

 

 

 

 

Dennis A. Kirshy

 

Director

 

December 14, 2007

 

 

 

 

 

 

 

 

 

 

/s/ Fontaine K. Richardson

 

 

 

 

Fontaine K. Richardson

 

Director

 

December 14, 2007

 

 

 

 

 

 

 

 

 

 

/s/ Robert M. Wadsworth

 

 

 

 

Robert M. Wadsworth

 

Director

 

December 14, 2007

 

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EXHIBIT INDEX

 

Exhibit

 

 

Number

 

Description

 

 

 

5 

 

Opinion of Wilmer Cutler Pickering Hale and Dorr LLP

 

 

 

23.1

 

Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5)

 

 

 

23.2

 

Consent of PricewaterhouseCoopers LLP, independent accountants

 

 

 

24  

 

Power of Attorney (included in the signature pages of this Registration Statement)

 

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