As filed with the Securities and Exchange Commission on May 8, 2020
Registration No. 333 ‑___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S‑8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
 
NATIONAL INSTRUMENTS CORPORATION
(Exact name of registrant as specified in its charter)
 
Delaware
 
74-1871327
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification Number)
 
11500 North MoPac Expressway
Austin, Texas 78759
 
(Address, including zip code, of registrant’s principal executive offices)
 
National Instruments Corporation 2020 Equity Incentive Plan
(Full title of the Plan)
 
R. Eddie Dixon, Jr.
Vice President, General Counsel and Secretary
National Instruments Corporation
11500 North Mopac Expressway
Austin, Texas 78759
(512) 683-0100
(Name, address, and telephone number, including area code, of agent for service)
 
 
Copy to:
 
 
J. Robert Suffoletta, Jr.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
900 South Capital of Texas Highway
Las Cimas IV, Fifth Floor
Austin, Texas 78746-5546
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company" and "emerging growth company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
☒
Accelerated filer
☐
Non-accelerated filer
☐
Smaller reporting company
☐
 
 
Emerging growth company
☐
If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐



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, $0.01 par value per share, issuable under the 2020 Equity Incentive Plan
5,067,142
$35.55(2)
$180,136,898.10
$23,383(3)
(1) Amount includes 567,142 shares of common stock that were reserved but not issued under the registrant’s 2005 Incentive Plan, 2010 Incentive Plan, and 2015 Incentive Plan, as of May 5, 2020, the date the National Instruments Corporation 2020 Equity Incentive Plan was approved by the registrant’s stockholders. This registration statement shall also cover any additional shares of common stock that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that results in an increase in the number of the outstanding shares of common stock.
(2) The proposed maximum offering price per share has been estimated in accordance with Rule 457(c) and (h) under the Securities Act of 1933, as amended (the "Securities Act"), as to the shares of common stock authorized for issuance pursuant to the 2020 Equity Incentive Plan, solely for the purpose of calculating the registration fee. The computation is based upon the average of the high ($36.22) and low ($34.87) prices of the common stock as reported on the Nasdaq Global Market on May 4, 2020, because the price at which the securities to be granted in the future may be exercised is not currently determinable.
(3) The amount of the registration fee is calculated pursuant to Section 6(b) of the Securities Act, which currently provides that the filing fee rate shall be "$129.80 per $1 million" of the maximum aggregate price at which such securities are proposed to be offered. The registration fee is therefore calculated by multiplying the proposed maximum aggregate offering price by .0001298.

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.    Incorporation of Documents by Reference.
The following documents and information have been filed by National Instruments Corporation (the "Registrant") with the Securities and Exchange Commission (the "SEC") and are incorporated herein by reference (except to the extent information contained in Current Reports on Form 8-K therein that is furnished and not filed):
a.
The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on February 20, 2020, including the information specifically incorporated by reference therein from our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 24, 2020.
b.
The Registrant’s Quarterly Report on Form 10-Q for the three months ended March 31, 2020, filed with the SEC on May 4, 2020.
c.
The Registrant’s Current Reports on Form 8-K filed with the SEC on January 30, 2020, February 4, 2020, April 20, 2020, April 30, 2020, as amended on May 1, 2020, and May 7, 2020.
d.
The Registrant’s description of authorized capital stock contained in its registration statement filed under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment or report filed for the purpose of updating the description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment 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 SEC shall not be deemed incorporated by reference into 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.

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Item 5.    Interests of Named Experts and Counsel.
Not applicable.
Item 6.    Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because the person is or was a director or officer of the corporation. Such indemnity may be against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect to any criminal action or proceeding, the person did not have reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director or officer of the corporation, against any expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation.
Section 145(g) of the Delaware General Corporation Law provides, in general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation against any liability asserted against the person in any such capacity, or arising out of the person’s status as such, whether or not the corporation would have the power to indemnify the person against such liability under the provisions of the law.
The Registrant’s certificate of incorporation, as amended, provides that, subject to certain limited exceptions, the Registrant may indemnify its directors and officers to the extent authorized or permitted by the Delaware General Corporation Law. The Registrant’s directors and officers are insured under policies of insurance maintained by the Registrant, subject to the limits of the policies, against certain losses arising from any claims made against them by reason of being or having been such directors or officers. In addition, the Registrant has entered into contracts with certain of its directors and officers providing for indemnification of such persons by the Registrant to the full extent authorized or permitted by law, subject to certain limited exceptions.
Item 7.    Exemption From Registration Claimed.
Not applicable.

2

Item 8.    Exhibits.
Exhibit
Number
Document
4.1
4.2
4.3
Specimen of Common Stock certificate of the Registrant, incorporated by reference to the Registrant’s Registration Statement on Form S-1 (Reg. No. 33-88386) declared effective March 13, 1995.
4.4
5.1
23.1
23.2
24.1

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 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.
(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)    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 Item 6 of Part II of this registration statement, 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 Securities Act of 1933 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.


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 Austin, State of Texas, on May 8, 2020.

National Instruments Corporation
 
 
By:
/s/ Eric H. Starkloff
 
Eric H. Starkloff
 
Chief Executive Officer and President






4

EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below constitutes and appoints Michael E. McGrath and Eric H. Starkloff, and each of them individually, as his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for the undersigned and in his or her name, place and stead, in any and all capacities to sign the registration statement filed herewith and any or all amendments to said registration statement with exhibits thereto and other documents in connection therewith, with the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes, may 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.
Signature
Title
 
 
 
 
/s/ Michael E. McGrath
Chairman of the Board
May 8, 2020
Michael E. McGrath
 
 
 
 
 
/s/ Eric H. Starkloff
Director and Chief Executive Officer and President (Principal Executive Officer)
May 8, 2020
Eric H. Starkloff
 
 
 
 
/s/ Karen M. Rapp
Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)
May 8, 2020
Karen M. Rapp
 
 
 
 
/s/ James E. Cashman, III
Director
May 8, 2020
James E. Cashman, III
 
 
 
 
 
/s/ Alexander M. Davern
Director
May 8, 2020
Alexander M. Davern
 
 
 
 
 
/s/ Gayla J. Delly
Director
May 8, 2020
Gayla J. Delly
 
 
 
 
 
/s/ Gerhard P. Fettweis
Director
May 8, 2020
Gerhard P. Fettweis
 
 
 
 
 
/s/ Liam K. Griffin
Director
May 8, 2020
Liam K. Griffin
 
 
 
 
 
/s/ Duy-Loan T. Le
Director
May 8, 2020
Duy-Loan T. Le
 
 
 
 
 


5
Exhibit
EXHIBIT 5.1 


OPINION OF WILSON SONSINI GOODRICH & ROSATI


May 8, 2020

National Instruments Corporation
11500 North MoPac Expressway
Austin, Texas 78759
Re:    Registration Statement on Form S‑8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about the date hereof (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 5,067,142 shares of your Common Stock reserved for issuance under the National Instruments Corporation 2020 Equity Incentive Plan. The National Instruments Corporation 2020 Equity Incentive Plan is referred to herein as the "Plan" and the shares of Common Stock reserved for issuance under the Plan are referred to as the "Shares."
It is our opinion that, upon completion of the actions being taken, or contemplated by us as your counsel to be taken by you prior to the issuance of the Shares pursuant to the Registration Statement and the Plan and upon completion of the actions being taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the Shares, when issued and sold in the manner referred to in the Plan and pursuant to the agreements which accompany the Plan, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration Statement and further consent to the use of our name wherever appearing in said Registration Statement, and any amendments thereto.
Very truly yours,

/s/ Wilson Sonsini Goodrich & Rosati
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation




Exhibit
EXHIBIT 23.1


Consent of Independent Registered Public Accounting Firm 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the National Instruments Corporation 2020 Equity Incentive Plan of our reports dated February 20, 2020, with respect to the consolidated financial statements of National Instruments Corporation and the effectiveness of internal control over financial reporting of National Instruments Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2019, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Austin, Texas
May 8, 2020