As filed with the Securities and Exchange Commission on December 4, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEON SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0345839
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14100 SOUTHWEST FREEWAY, SUITE 500
SUGAR LAND, TEXAS 77478
(Address of Principal Executive Offices)
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NEON SYSTEMS, INC. 2002 STOCK PLAN
NEON SYSTEMS, INC. 2002 DIRECTOR OPTION PLAN
(Full Titles of the Plans)
LOUIS R. WOODHILL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
NEON SYSTEMS, INC.
14100 SOUTHWEST FREEWAY, SUITE 500
SUGAR LAND, TEXAS 77478
(281) 491-4200
(Name, address and telephone number,
including area code, of agent for service)
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With copies to:
Shelby R. Fike, Esq.
Corporate Counsel
Neon Systems, Inc.
14100 Southwest Freeway, Suite 500
Sugar Land, Texas 77478
(281) 491-4200
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered(1) per share(2) offering price(2) fee
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Common Stock to be Issued under the 2002
Stock Plan.................................. 2,292,829 shares $2.60 $5,961,355 $548.44
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Common Stock to be Issued under the 2002
Director Option Plan........................ 305,000 shares $2.60 $ 793,000 $ 72.96
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TOTAL 2,597,829 shares $2.60 $6,754,355 $621.40
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers any additional shares of common stock
of the registrant which become issuable under the antidilution provisions
of the plans being registered pursuant to the registration statement by
reason of any stock splits, stock dividends or similar transactions
effected without the receipt of consideration, which results in an
increase in the number of the registrant's outstanding shares of common
stock.
(2) Estimated in accordance with Rule 457(c) and (h) under the Securities Act
of 1933, as amended, solely for purposes of calculating the registration
fee, based on the average of the high and low prices reported on the
Nasdaq National Market on December 2, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 (Plan Information) and Item 2
(Registrant Information and Employee Plan Annual Information) of Part I of Form
S-8 is omitted from this filing 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents set forth below are incorporated by reference in this
Registration Statement. All documents subsequently filed by NEON Systems, Inc.
("NEON") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters 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 a statement contained herein or in any other
subsequently filed document which also is or 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.
(a) NEON's annual report on Form 10-K for the year ended March 31,
2002;
(b) All other reports filed with the Securities and Exchange
Commission ("Commission") pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
report described in (a) above; and
(c) The description of the Common Stock which is contained in NEON's
Registration Statement on Form 8-A filed with the Commission on
March 1, 1999 pursuant to Section 12 of the Exchange Act, and
all amendments thereto and reports that have been filed for the
purpose of updating such description.
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 (the "DGCL")
provides, in effect, that any person made a party to any action by reason of the
fact that he is or was a director, officer, employee or agent of NEON may and,
in certain cases, must be indemnified by NEON against, in the case of a
non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorney's fees) incurred by him as a result of
such action, and in the case of a derivative action, against expenses (including
attorney's fees), if in either type of action he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
NEON. This indemnification does not apply, in a derivative action, to matters as
to which it is adjudged that the director, officer, employee or agent is liable
to NEON, unless upon court order it is determined that, despite such
adjudication of liability but in view of all the circumstances of the case, he
is fairly and reasonably entitled to indemnity for expenses, and, in a
non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Article 15 of NEON's Amended and Restated Certificate of Incorporation
provides that no director of NEON shall be liable to NEON or its stockholders
for monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by the DGCL.
Article 16 of NEON's Amended and Restated Certificate of Incorporation
provides that NEON may indemnify to the fullest extent by Delaware law any and
all of its directors and officers, or former directors and officers, or any
person who may have served at NEON's request as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise.
Reference is made to the form of Indemnification Agreement by and
between NEON and its directors and executive officers filed as Exhibit 10.14 to
NEON's Registration Statement on Form S-1 (File No. 333-69651) declared
effective on March 4, 1999, pursuant to which NEON will be obligated to the
extent permitted by applicable law, to indemnify such directors against all
expenses, judgments, fines and penalties, incurred in connection with the
defense or settlement of any actions brought against them by reason of the fact
that they were directors of NEON or assumed certain responsibilities at the
direction of NEON. NEON has purchased directors' and officers' liability
insurance in order to limit its exposure to liability for indemnification of
directors and officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Amended and Restated Certificate of Incorporation of NEON Systems, Inc.
(filed with the Commission as Exhibit 3.1 to NEON's Registration Statement
on Form S-1 (No. 333-69651) filed December 23, 1998 and incorporated herein
by reference)
4.2 Amendment to the Amended and Restated Certificate of Incorporation of NEON
Systems, Inc. dated May 15, 2002 (filed with the Commission as Exhibit 3.3
to NEON's Annual Report on Form 10-K filed June 28, 2002 and incorporated
herein by reference)
4.3 Amended and Restated Bylaws of NEON Systems, Inc. (filed with the
Commission as Exhibit 3.2 to NEON's Registration Statement on Form S-1 (No.
333-69651) filed December 23, 1998 and incorporated herein by reference)
4.4 Specimen Common Stock certificate (filed with the Commission as Exhibit 4.1
to NEON's Registration Statement on Form S-1/A (No. 333-69651) filed
February 10, 1999 and incorporated herein by reference)
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of KPMG LLP 23.2 Consent of Vinson & Elkins L.L.P (included in
opinion filed as Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages of this Registration
Statement)
99.1 2002 Stock Plan (filed with the Commission as Exhibit A to NEON's
definitive proxy statement on Schedule 14A filed on March 5, 2002 and
incorporated herein by reference)
99.2 2002 Director Option Plan (filed with the Commission as Exhibit B to NEON's
definitive proxy statement on Schedule 14A filed on March 5, 2002 and
incorporated herein by reference)
Item 9. Undertakings.
NEON 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;
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(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i)
and (1)(ii) above 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 NEON
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, 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;
(4) That, for purposes of determining any liability under the
Securities Act, each filing of NEON's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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; and
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of NEON pursuant to the foregoing provisions,
or otherwise, NEON 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 NEON of expenses incurred
or paid by a director, officer or controlling person of NEON 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, NEON 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 of 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.
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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 Houston, State of Texas, on December 4, 2002.
NEON Systems, Inc.
/s/ Brian D. Helman
By:____________________________
Brian D. Helman
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints each of Louis R.
Woodhill and Brian D. Helman, and each of them, 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, and to file the same, with all exhibits thereto,
and all 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 on and about the premises as fully and 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
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 by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
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/s/ John J. Moores
____________________________________________ Chairman of the Board December 4, 2002
John J. Moores
/s/ Louis R. Woodhill
____________________________________________ President and Chief Executive Officer December 4, 2002
Louis R. Woodhill (Principal Executive Officer) and Director
/s/ Brian D. Helman
____________________________________________ Chief Financial Officer (Principal December 4, 2002
Brian D. Helman Financial and Accounting Officer) and
Secretary
/s/ Peter Schaeffer
____________________________________________ Director December 4, 2002
Peter Schaeffer
/s/ Charles E. Noell III
____________________________________________ Director December 4, 2002
Charles E. Noell III
/s/ Norris van den Berg
____________________________________________ Director December 4, 2002
Norris van den Berg
/s/ Richard Holcomb
____________________________________________ Director December 4, 2002
Richard Holcomb
/s/ James R. Woodhill
____________________________________________ Director December 4, 2002
James R. Woodhill
/s/ George H. Ellis
____________________________________________ Director December 4, 2002
George H. Ellis
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
4.1 Amended and Restated Certificate of Incorporation of NEON Systems,
Inc. (filed with the Commission as Exhibit 3.1 to NEON's
Registration Statement on Form S-1 (No. 333-69651) filed December
23, 1998 and incorporated herein by reference)
4.2 Amendment to the Amended and Restated Certificate of Incorporation
of NEON Systems, Inc. dated May 15, 2002 (filed with the
Commission as Exhibit 3.3 to NEON's Annual Report on Form 10-K
filed June 28, 2002 and incorporated herein by reference)
4.3 Amended and Restated Bylaws of NEON Systems, Inc. (filed with the
Commission as Exhibit 3.2 to NEON's Registration Statement on Form
S-1 (No. 333-69651) filed December 23, 1998 and incorporated
herein by reference)
4.4 Specimen Common Stock certificate (filed with the Commission as
Exhibit 4.1 to NEON's Registration Statement on Form S-1/A (No.
333-69651) filed February 10, 1999 and incorporated herein by
reference)
5.1 Opinion of Vinson & Elkins L.L.P.
23.1 Consent of KPMG LLP
23.2 Consent of Vinson & Elkins L.L.P. (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages of this
Registration Statement)
99.1 2002 Stock Plan (filed with the Commission as Exhibit A to NEON's
definitive proxy statement on Schedule 14A filed on March 5, 2002
and incorporated herein by reference)
99.2 2002 Director Option Plan (filed with the Commission as Exhibit B
to NEON's definitive proxy statement on Schedule 14A filed on
March 5, 2002 and incorporated herein by reference)
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