Document


As filed with the Securities and Exchange Commission on June 3, 2016
Registration No. 333-   
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 
 
 
Washington, D.C. 20549
 
 
 
 
 
 
FORM S‑8
 
 
 
 
 
 
REGISTRATION STATEMENT
 
 
 
 
 
 
Under
The Securities Act of 1933
 
 
 
 
 
 
NETGEAR, Inc.
(Exact name of Registrant as specified in its charter)
 
 
 
Delaware
 
77-0419172
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
 
 
 
350 East Plumeria Drive
San Jose, CA 95134
 
 
 
(Address of principal executive offices, including zip code)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
NETGEAR, Inc. 2016 Equity Incentive Plan
NETGEAR, Inc. 2003 Employee Stock Purchase Plan, as amended
 
 
 
(Full title of the plan)
 
 
 
 
 
 
 
 
 
 
 
 
 
Patrick C.S. Lo
Chairman of the Board and Chief Executive Officer
NETGEAR, Inc.
350 East Plumeria Drive
San Jose, CA 95134
 (408) 907-8000
 
 
 
(Name, address and telephone number, including area code, of agent for service)
 
 
 
 
 
 
 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large Accelerated filer
 
o
 
Accelerated filer
 
þ
Non-Accelerated filer
 
o
(Do not check if a smaller reporting company)
Smaller reporting company
 
o
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
 
Amount to be
Registered(1)
 
Proposed Maximum
Offering Price
Per Share
 
Proposed Maximum
Aggregate
Offering Price
 
Amount of
Registration Fee
Common Stock, $0.001 par value per share, reserved for issuance pursuant to the NETGEAR, Inc. 2016 Equity Incentive Plan
 
3,199,827(2)
 
$ 44.09 (4)
 
$141,080,372.43
 
$14,206.79
Common Stock, $0.001 par value per share, reserved for issuance pursuant to the NETGEAR, Inc. 2003 Employee Stock Purchase Plan, as amended
 
1,000,000(3)
 
$ 37.48 (5)
 
$37,480,000.00
 
$3,774.24
TOTAL:
 
4,199,827
 
 
 
 
 
$17,981.03
(1)
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock of NETGEAR, Inc. (the “Registrant”) that become issuable under the NETGEAR, Inc. 2016 Equity Incentive Plan (the “2016 Plan”) or the NETGEAR, Inc. 2003 Employee Stock Purchase Plan, as amended (the “2003 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
(2)
Shares of common stock reserved for issuance under the 2016 Plan consist of (i) 2,500,000 shares of common stock to be issued pursuant to future awards under the 2016 Plan plus (ii) 699,827 shares of common stock previously reserved but unissued under the NETGEAR, Inc. 2006 Long-Term Incentive Plan (the “2006 Plan”) that are now available for issuance under the 2016 Plan.
(3)
Represents an increase in the number of shares of common stock reserved for issuance under the 2003 ESPP.
(4)
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee. The proposed maximum offering price per share and proposed maximum aggregate offering price are based upon the average of the high and low prices per share of the Registrant’s common stock on May 26, 2016, as reported on The NASDAQ Global Select Market.
(5)
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of 85% of $44.09, the average of the high and low prices per share of the Registrant’s common stock on May 26, 2016, as reported on The NASDAQ Global Select Market. Pursuant to the 2003 ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be 85% of the lower of the fair market value of the common stock on (i) the first trading day of the offering period or (ii) the exercise date.
 
 
 
 
 
 
 






PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S‑8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.  Incorporation of Documents by Reference.
NETGEAR, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
(1) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the Commission on February 19, 2016 (File No. 000-50350) pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(2) All other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (1) above (other than information in any Current Report on Form 8-K deemed to have been furnished and not filed in accordance with the rules of the Commission and, except as may be noted in any such Form 8-K, exhibits filed on such Form 8-K that are related to such information); and
(3) The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on July 25, 2003 (File No. 000-50350), pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference in this Registration Statement. 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 corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents.







As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation contains provisions that limit the liability of its directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, the Registrant’s directors will not be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for (i) any breach of their duty of loyalty to the Registrant or its stockholders, (ii) any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, (iii) unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law, and/or (iv) any transaction from which they derived an improper personal benefit.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide that:

•
The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrant’s request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful.
•
The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
•
The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
•
The Registrant will not be obligated pursuant to its amended and restated bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s board of directors or brought to enforce a right to indemnification.
•
The rights conferred in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons.
•
The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees, and agents.
In addition, the Registrant’s practice is to enter into separate indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and officers by Section 145 of the Delaware General Corporation Law and also to provide for certain additional procedural protections. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.
These indemnification obligations described above may be sufficiently broad to permit the indemnification of the Registrant’s directors and officers for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
See also the undertakings set out in response to Item 9 herein.
Item 7.  Exemption from Registration Claimed.
Not applicable
Item 8.  Exhibits.
See Exhibit Index immediately following the Signature Page hereto.
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:
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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.
B. 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.
C. 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 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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on June 3, 2016.

NETGEAR, INC.
By:    /s/ Patrick C.S. Lo    
Patrick C.S. Lo
Chairman of the Board and Chief Executive Officer

POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Patrick C.S. Lo and Christine M. Gorjanc, and each of them, as his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign the Registration Statement on Form S-8 of NETGEAR, Inc., and any and all amendments thereto (including post-effective amendments), 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 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 for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
Signature
 
Title
 
Date
 
 
 
 
 
/s/ Patrick C.S. Lo
 
Chairman of the Board and Chief Executive Officer (Principal Executive Officer)
 
June 3, 2016
Patrick C.S. Lo
 
 
 
 
/s/ Christine M. Gorjanc
 
Chief Financial Officer (Principal Accounting and Financial Officer)
 
June 3, 2016
Christine M. Gorjanc
 
 
 
 
/s/ Jocelyn E. Carter-Miller
 
Director
 
June 3, 2016
Jocelyn E. Carter-Miller
 
 
 
 
/s/ Ralph E. Faison
 
Director
 
June 3, 2016
Ralph E. Faison
 
 
 
 
/s/ A. Timothy Godwin
 
Director
 
June 3, 2016
A. Timothy Godwin
 
 
 
 
/s/ Jef Graham
 
Director
 
June 3, 2016
Jef Graham
 
 
 
 
/s/ Gregory J. Rossmann
 
Director
 
June 3, 2016
Gregory J. Rossmann
 
 
 
 
/s/ Barbara V. Scherer
 
Director
 
June 3, 2016
Barbara V. Scherer
 
 
 
 
/s/ Julie A. Shimer
 
Director
 
June 3, 2016
Julie A. Shimer
 
 
 
 
/s/ Grady K. Summers
 
Director
 
June 3, 2016
Grady K. Summers
 
 
 
 
/s/ Thomas H. Waechter
 
Director
 
June 3, 2016
Thomas H. Waechter
 
 
 
 





INDEX TO EXHIBITS
 
 
 
 
Incorporated by Reference
Exhibit Number
 
Description
 
Form
 
File No.
 
Exhibit
 
Filing Date
4.1
 
Form of common stock certificate of Registrant.
 
S-1/A
 
333-104419
 
4.1
 
July 14, 2003
5.1
 
Opinion of NETGEAR, Inc. Senior Vice President of Corporate Development and General Counsel, as to legality of securities being registered
 
 
 
 
 
 
 
 
23.1
 
Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
 
 
 
 
 
 
 
 
23.2
 
Consent of Counsel (contained in Exhibit 5.1 hereto).
 
 
 
 
 
 
 
 
24.1
 
Power of Attorney (contained on signature page hereto).
 
 
 
 
 
 
 
 
99.1
 
2016 Equity Incentive Plan and form agreements thereunder.
 
 
 
 
 
 
 
 
99.2
 
2003 Employee Stock Purchase Plan, as amended, and form agreements thereunder.