As filed with the Securities and Exchange Commission on July 5, 2002
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VIDEO NETWORK COMMUNICATIONS, INC.
(Exact name of Registrant as Specified in Its Charter)
Delaware 54-1707962
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
50 International Drive 03801
Portsmouth, New Hampshire (Zip Code)
(Address of Principal Executive Offices)
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VIDEO NETWORK COMMUNICATIONS, INC.
1999 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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Robert H. Emery
Chief Financial Officer, Vice President of Administration and Secretary
Video Network Communications, Inc.
50 International Drive
Portsmouth, New Hampshire 03801
(Name and Address of Agent For Service)
(603) 334-6741
(Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
Joseph A. Coco
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212)735-3000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered Security (1) Price (1) Fee
------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 per 2,000,000 $2.40 $4,800,000 $470.40
share
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(1) Estimated solely for purposes of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended (the "Securities Act"), on the basis of the average of the high and low sale prices for common stock of Video Network Communications, Inc. as reported on the OTC Bulletin Board on July 3, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participating employees as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Act"). In accordance with Rule 428 and the requirements of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. The registrant shall maintain a file of such documents in accordance with the provisions of Rule 428. Upon request, the registrant shall furnish to the Commission or its staff a copy or copies of any or all of the documents included in such file. Such documents, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Act.
PART II
REGISTRATION OF ADDITIONAL SECURITIES
INCORPORATION OF EARLIER REGISTRATION STATEMENT BY REFERENCE
This registration statement is being filed solely to register the issuance of up to 2,000,000 additional shares of common stock, par value $0.01 per share ("Common Stock"), of Video Network Communications, Inc., a Delaware corporation ("VNCI"), pursuant to the Video Network Communications, Inc. 1999 Stock Incentive Plan (the "Plan"). VNCI previously filed a registration statement on Form S-8 (File No. 333-95799) on January 31, 2000, covering 528,000 shares of its Common Stock initially authorized for issuance under the Plan. Except as supplemented by the information set forth below, the contents of the earlier registration statement are incorporated herein by reference.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
4.1 Specimen certificate evidencing shares of VNCI Common Stock
(filed as Exhibit 4.5 to the Registration Statement on Form
SB-2 (File No. 333-72429) and incorporated herein by
reference).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
regarding the validity of the Common Stock to be issued 23.1
Consent of Ernst & Young LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1)
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 New York, State of New York, on July 5, 2002.
VIDEO NETWORK COMMUNICATIONS, INC.
By: /s/ Carl Muscari
-----------------------
Carl Muscari
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated on July 5, 2002.
NAME TITLE DATE
Chairman, President and
/s/ Carl Muscari Chief Executive Officer July 5, 2002
------------------------------------ (Principal Executive Officer)
Carl Muscari
Chief Financial Officer, Vice President
/s/ Robert H. Emery Administration and Secretary July 5, 2002
------------------------------------ (Principal Financial and Accounting Officer)
Robert H. Emery
------------------------------------ Director
Eugene R. Cacciamani
------------------------------------ Director
Richard S. Friedland
/s/ David A. Walsh
------------------------------------ Director July 5, 2002
David A. Walsh
/s/ Jonathan Robson
----------------------------------- Director July 5, 2002
Jonathan Robson
/s/ Alexander Russo
---------------------------------- Director July 5, 2002
Alexander Russo
/s/ Charles Auster
--------------------------------- Director July 5, 2002
Charles Auster
LIST OF EXHIBITS
Exhibit No. Description of Exhibit
4.1 Specimen certificate evidencing shares of VNCI Common Stock
(filed as Exhibit 4.5 to the Registration Statement on Form
SB-2 (File No. 333-72429) and incorporated herein by
reference).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
regarding the validity of the Common Stock to be issued
23.1 Consent of Ernst & Young LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1)
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Exhibit 5.1
July 5, 2002
Video Network Communications, Inc.
50 International Drive
Portsmouth, New Hampshire 03801
Re: Video Network Communications, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Video Network Communications, Inc., a Delaware corporation (the "Company"), in connection with the registration of an additional 2,000,000 shares (the "Shares") of the Company's common stock, par value $0.01 per share ("Common Stock"), issuable pursuant to the Video Network Communications, Inc. 1999 Stock Incentive Plan, as amended (the "Plan"). As amended, the Plan provides for the discretionary grant of shares of Common Stock ("Stock Awards"), stock options ("Options") and stock appreciation rights ("SARs") with respect to an aggregate of 1,600,000 shares of Common Stock.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Act").
In rendering the opinions set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement on Form S-8 (File No. 333-95799) as filed with the Securities and Exchange Commission (the "Commission") on on January 31, 2000 under the Act; (ii) the Registration Statement on Form S-8 as filed with the Commission on the date hereof under the Act (the "Registration Statement"); (iii) a specimen certificate representing the Common Stock; (iv) the Fourth Amended and Restated Certificate of Incorporation, as amended, of the Company, as presently in effect; (v) the Amended and Restated By-Laws of the Company, as presently in effect; (vi) the Plan; (vii) certain resolutions of the Board of Directors of the Company relating to the Plan and related matters; (viii) the proxy statement on Schedule 14A as filed with the Commission on January 14, 2002 and mailed to the stockholders of the Company in connection with the Special Meeting of Stockholders of the Company held on February 4, 2002 (the "Special Meeting"), relating to, among other things, an amendment of the Plan; and (ix) the Inspector of Election Report relating the adoption of the amendment to the Plan by the Company's stockholders at the Special Meeting.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. In making our examination of documents executed or to be executed by parties other than the Company, we have assumed that such parties had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others. We have assumed that the certificates representing the Common Stock will be manually signed by an authorized officer of the transfer agent and registrar for the Common Stock and registered by such transfer agent and registrar and will conform to the specimen thereof examined by us. We have also assumed that each award agreement setting forth the terms of each grant of Options, SARs or other awards under the Plan will be consistent with the Plan, and will be duly authorized and validly executed and delivered by the parties thereto, and that the consideration received by the Company for the Common Stock delivered pursuant to the Plan will be in an amount at least equal to the par value of such Common Stock.
We express no opinion as to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized for issuance by the Company and, when Stock Awards are issued, or Shares are issued upon exercise of Options or SARs pursuant to the terms and conditions of the Plan, such Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
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Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on Form S-8 pertaining to the 1999 Stock Incentive Plan of Video Network Communications, Inc. of our report dated April 4, 2002 (except for Note 16, as to which the date is May 17, 2002) with respect to the financial statements of Video Network Communications, Inc., included in its Annual Report (Form 10-KSB) for the year ended December 31, 2001, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Manchester, New Hampshire
July 2, 2002
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (No. 333-_______) of our report dated March 6, 2001, relating to the financial statements of Video Network Communications, Inc., which appears in Video Network Communications Inc's Annual Report on Form 10-KSB/A for the year ended December 31, 2001.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, MA
July 5, 2002
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End of Filing
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