-----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, AOnE+YNrO4LH5JV8jU1qM6PYgiYIiyUoRRoNm73qNXvyBb2XB84ecmt5Pj6xzcs0 nmQt2+esBA+f2lb1872G9w== 0001193125-09-036220.txt : 20090224 0001193125-09-036220.hdr.sgml : 20090224 20090224162315 ACCESSION NUMBER: 0001193125-09-036220 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20090224 DATE AS OF CHANGE: 20090224 EFFECTIVENESS DATE: 20090224 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Riverbed Technology, Inc. CENTRAL INDEX KEY: 0001357326 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 030448754 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-157492 FILM NUMBER: 09631087 BUSINESS ADDRESS: STREET 1: 199 FREMONT STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94105 BUSINESS PHONE: (415) 247-8800 MAIL ADDRESS: STREET 1: 199 FREMONT STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94105 S-8 1 ds8.htm FORM S-8 Form S-8

As filed with the Securities and Exchange Commission on February 24, 2009

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

RIVERBED TECHNOLOGY, INC.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   03-0448754

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification Number)

199 Fremont Street

San Francisco, CA 94105

(Address of principal executive offices)

 

 

2006 Equity Incentive Plan

2006 Director Option Plan

2006 Employee Stock Purchase Plan

2009 Inducement Equity Incentive Plan

(Full title of the plans)

 

 

Jerry M. Kennelly

President and Chief Executive Officer

RIVERBED TECHNOLOGY, INC.

199 Fremont Street

San Francisco, CA 94105

(Name and address of agent for service)

(415) 247-8800

(Telephone number, including area code, of agent for service)

 

 

Copy to:

David J. Segre, Esq.

Richard A. Kline, Esq.

Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, CA 94304-1050

(650) 493-9300

 

 

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  þ    Accelerated filer  ¨   

Non-accelerated filer  ¨

(Do not check if a smaller

reporting company)

    Smaller reporting company  ¨

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, $0.0001 par value

                

— to be issued under the 2006 Equity Incentive Plan

   3,458,282(2)   $10.29(5)   $35,585,722   $1,399

— to be issued under the 2006 Director Option Plan

   250,000(3)   $10.29(5)   $2,572,500   $101

— to be issued under the 2006 Employee Stock Purchase Plan

   691,447(4)   $8.75(6)   $6,050,161   $238

— to be issued under the 2009 Inducement Equity Incentive Plan

   1,500,000   $10.29(5)   $15,435,000   $607

TOTAL

   5,899,729   —     $59,643,383   $2,345
 
 

 

(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2006 Equity Incentive Plan, 2006 Director Option Plan, 2006 Employee Stock Purchase Plan and 2009 Inducement Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of Riverbed Technology, Inc.

 

(2) Includes (i) 1,043 shares available for issuance as a result of repurchases by the Registrant of shares previously awarded and exercised under the 2002 Stock Plan and (ii) an automatic annual increase on January 1, 2009 to the number of shares of the Registrant’s common stock reserved for issuance under the 2006 Equity Incentive Plan of 3,457,239 shares, which annual increase is provided for in the 2006 Equity Incentive Plan.

 

(3) Reflects an automatic annual increase on January 1, 2009 to the number of shares of the Registrant’s common stock reserved for issuance under the 2006 Director Option Plan, which annual increase is provided for in the 2006 Director Option Plan.

 

(4) Reflects an automatic annual increase on January 1, 2009 to the number of shares of the Registrant’s common stock reserved for issuance under the 2006 Employee Stock Purchase Plan, which annual increase is provided for in the 2006 Employee Stock Purchase Plan.

 

(5) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $10.29 per share, which represents the average of the high and low prices reported on the Nasdaq Global Select Market on February 20, 2009.

 

(6) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee based upon 85% of the price of $10.29 per share, which represents the average of the high and low prices per share of the Registrant’s common stock as reported on the Nasdaq Global Select Market on February 20, 2009.

 

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed by Riverbed Technology, Inc. (the “Registrant”) with the Commission:

(1) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008 filed with the Commission on February 23, 2009, pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and

(2) The Registrant’s Current Report on Form 8-K filed with the Commission on February 20, 2009, pursuant to Section 13(a) of the Exchange Act;

(3) The Registrant’s Current Report on Form 8-K filed with the Commission on February 19, 2009, pursuant to Section 13(a) of the Exchange Act;

(4) The Registrant’s Current Report on Form 8-K filed with the Commission on January 20, 2009 (to the extent filed and not furnished), pursuant to Section 13(a) of the Exchange Act; and

(5) The description of the Registrant’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed with the Commission on September 15, 2006, as amended on September 19, 2006, 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.

 

Item 4. Description of Securities.

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

The Registrant’s restated certificate of incorporation and amended and restated bylaws contain provisions relating to the limitation of liability and indemnification of directors and officers. The restated certificate of incorporation provides that the Registrant’s directors will not be personally liable to the Registrant or the Registrant’s stockholders for monetary damages for any breach of fiduciary duty as a director, except for liability:

 

  •  

for any breach of the director’s duty of loyalty to the Registrant or the Registrant’s stockholders;

 

  •  

for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;

 

  •  

in respect of unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or

 

II-1

  •  

for any transaction from which the director derives any improper personal benefit.

The Registrant’s restated certificate of incorporation also provides that if Delaware law is amended after the approval by the Registrant’s stockholders of the restated certificate of incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Registrant’s directors will be eliminated or limited to the fullest extent permitted by Delaware law.

The Registrant’s amended and restated bylaws provide that the Registrant will indemnify the Registrant’s directors and officers to the fullest extent permitted by Delaware law, as it now exists or may in the future be amended, against all expenses and liabilities reasonably incurred in connection with their service for or on the Registrant’s behalf. The Registrant’s amended and restated bylaws provide that the Registrant shall advance the expenses incurred by a director or officer in advance of the final disposition of an action or proceeding. The bylaws also authorize the Registrant to indemnify any of the Registrant’s employees or agents and permit the Registrant to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity, whether or not Delaware law would otherwise permit indemnification.

The Registrant has entered into indemnification agreements with each of the Registrant’s directors and executive officers and certain other key employees. The form of agreement provides that the Registrant will indemnify each of the Registrant’s directors, executive officers and such other key employees against any and all expenses incurred by that director, executive officer or other key employee because of his or her status as one of the Registrant’s directors, executive officers or other key employees, to the fullest extent permitted by Delaware law, the Registrant’s restated certificate of incorporation and the Registrant’s amended and restated bylaws (except in a proceeding initiated by such person without board approval). In addition, the form agreement provides that, to the fullest extent permitted by Delaware law, the Registrant will advance all expenses incurred by the Registrant’s directors, executive officers and such other key employees in connection with a legal proceeding.

 

Item 7. Exemption from Registration Claimed.

Not applicable.

 

Item 8. Exhibits.

 

Exhibit
Number

   

Description

  4.1    2006 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to the Registrant’s Form S-1 Registration No. 333-133437 filed September 20, 2006)
  4.2    2006 Director Option Plan (incorporated by reference to Exhibit 10.6 to the Registrant’s Form S-1 Registration No. 333-133437 filed September 20, 2006)
  4.3    Amendment No. 1 to 2006 Director Option Plan, dated March 4, 2008 (incorporated by reference to Exhibit 10.11 to the Registrant’s Annual Report on Form 10-K filed February 23, 2009)
  4.4    2006 Employee Stock Purchase Plan, as amended on April 11, 2007 (incorporated by reference to Exhibit 10.13 to the Registrant’s Annual Report on Form 10-K filed February 23, 2009)
  4.5    2009 Inducement Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed February 20, 2009)
  5.1    Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1    Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
23.2    Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (see Exhibit 5.1)
24.1    Power of Attorney (see page II-4)

 

II-2

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 of 1933;

(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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 (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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 of 1933 and will be governed by the final adjudication of such issue.

 

II-3

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 Francisco, State of California, on this 24th day of February, 2009.

 

RIVERBED TECHNOLOGY, INC.
By:   /s/ JERRY M. KENNELLY
  Jerry M. Kennelly
  President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints Jerry M. Kennelly and Randy S. Gottfried, or either of them, as his lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and his name, place and stead, in any and all capacities, to sign any and all 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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature

   

Title

  

Date

/s/ JERRY M. KENNELLY

Jerry M. Kennelly

    President, Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)   February 24, 2009

/s/ RANDY S. GOTTFRIED

Randy S. Gottfried

    Chief Financial Officer and Senior Vice President of Business Services (Principal Accounting and Financial Officer)   February 24, 2009

/s/ MARK A. FLOYD

Mark A. Floyd

    Director   February 24, 2009

/s/ MICHAEL R. KOUREY

Michael R. Kourey

    Director   February 18, 2009

/s/ STEVEN MCCANNE

Steven McCanne, Ph.D.

    Director   February 13, 2009

/s/ STANLEY J. MERESMAN

Stanley J. Meresman

    Director   February 24, 2009

/s/ CHRISTOPHER J. SCHAEPE

Christopher J. Schaepe

    Director   February 17, 2009

/s/ JAMES R. SWARTZ

James R. Swartz

    Director   February 17, 2009

 

II-4

INDEX TO EXHIBITS

 

Exhibit
Number

   

Description

  4.1    2006 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to the Registrant’s Form S-1 Registration No. 333-133437 filed September 20, 2006)
  4.2    2006 Director Option Plan (incorporated by reference to Exhibit 10.6 to the Registrant’s Form S-1 Registration No. 333-133437 filed September 20, 2006)
  4.3    Amendment No. 1 to 2006 Director Option Plan, dated March 4, 2008 (incorporated by reference to Exhibit 10.11 to the Registrant’s Annual Report on Form 10-K filed February 23, 2009)
  4.4    2006 Employee Stock Purchase Plan, as amended on April 11, 2007 (incorporated by reference to Exhibit 10.13 to the Registrant’s Annual Report on Form 10-K filed February 23, 2009)
  4.5    2009 Inducement Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed February 20, 2009)
  5.1    Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1    Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
23.2    Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (see Exhibit 5.1)
24.1    Power of Attorney (see page II-4)
 EX-5.1 2 dex51.htm OPINION OF WILSON SONSINI GOODRICH & ROSATI Opinion of Wilson Sonsini Goodrich & Rosati

Exhibit 5.1

OPINION OF WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION

February 24, 2009

Riverbed Technology, Inc.

199 Fremont Street

San Francisco, California 94105

 

  Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Riverbed Technology, Inc., a Delaware corporation, with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 5,899,729 shares of your common stock, par value $0.0001 per share (the “Shares”), reserved for issuance under the 2006 Equity Incentive Plan, 2006 Director Option Plan, 2006 Employee Stock Purchase Plan and 2009 Inducement Equity Incentive Plan (the “Plans”). As your legal counsel, we have reviewed the actions proposed to be taken by you in connection with the issuance and sale of the Shares to be issued under the Plans.

It is our opinion that the Shares, when issued and sold in the manner referred to in the Plans and pursuant to the agreements which accompany the Plans, will be legally and validly issued, fully paid and nonassessable.

We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.

 

Very truly yours,
WILSON SONSINI GOODRICH & ROSATI Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
 EX-23.1 3 dex231.htm CONSENT OF ERNST & YOUNG Consent of Ernst & Young

Exhibit 23.1

Consent of Ernst & Young LLP

Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2006 Equity Incentive Plan, the 2006 Director Option Plan, the 2006 Employee Stock Purchase Plan, and the 2009 Inducement Equity Incentive Plan of Riverbed Technology, Inc., of our reports dated February 20, 2009, with respect to the consolidated financial statements and schedule of Riverbed Technology, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2008, and the effectiveness of internal control over financial reporting of Riverbed Technology, Inc. filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Francisco, California

February 20, 2009

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