As filed with the Securities and Exchange Commission on March 21, 2000.
File No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
NetObjects, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-3233791
(State or Other Jurisdiction (I.R.S. Employee Identification No.)
of Incorporation or Organization)
301 Galveston Drive, Redwood City, California 94063
(650) 482-3200
(Address, including ZIP Code and Telephone Number,
of Principal Executive Offices)
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
1999 EXECUTIVE STOCK OPTION AGREEMENTS
(Full Title of the Plan)
Mr. Samir Arora
301 Galveston Drive, Redwood City, California 94063
(Name and Address of Agent For Service)
(650) 482-3200
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
- ---------------------------------------------------------------------------------------------------------------
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Amount Being Offering Price Aggregate Registration
Title of Securities Being Registered Registered (1) Per Unit Offering Price Fee
------------------------------------ -------------- -------- -------------- ---
<S> <C> <C> <C> <C>
1999 Executive Stock Option Agreements
Common Stock (par value $.01 per share)
issuable for option grants 1,400,000 $ 7.125 $ 9,975,000.00 $ 2,633.40
- ---------------------------------------------------------------------------------------------------------------
1997 Stock Option Plan
Common Stock (par value $.01 per share)
issuable for option grants 3,100,000 $34.00(2) $105,400,000.00 $27,825.60
- ---------------------------------------------------------------------------------------------------------------
Total Fee $30,459.00
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents 3,100,000 additional shares reserved for issuance upon exercise
of stock options under the Registrant's Amended and Restated 1997 Stock Option
Plan and 1,400,000 additional shares available for issuance upon exercise of
stock options pursuant to November 1999 Executive Stock Option Agreements with
seven executive officers of the Registrant. Shares issuable upon exercise of
stock options under the Registrant's 1997 Stock Option Plan were originally
registered on a registration statement on Form S-8 (No. 333- 79669) filed May
28, 1999, which registration statement is incorporated by reference. This
registration statement shall also cover any additional shares of common stock
which become issuable 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.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee based on the average of the high and low prices reported for
the common stock on the Nasdaq National Market on March 15, 2000 pursuant to
Rule 457(h)(i) and 457(c).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*The documents containing the information specified in Part 1 of Form S-8 (plan
information and registrant information and employee plan annual information)
will be sent or given to employees as specified by Securities and Exchange
Commission Rule 428(b)(1). Such documents need not be filed with the Securities
and Exchange Commission either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents and
the documents incorporated by reference in this registration statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933.
NetObjects, Inc. (the "Company") will provide a written statement to
participants advising them of the availability without charge, upon written or
oral request, of the documents incorporated by reference in Item 3 of Part II of
this registration statement and including the statement in the preceding
sentence. The written statement to participants will indicate the availability
without charge, upon written or oral request, of other documents required to be
delivered to employees pursuant to Rule 428(b), and will include the address and
telephone number to which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates by reference into this registration statement
the following documents filed with the Securities and Exchange Commission:
(a) The Registrant's annual report on Form 10-K for the fiscal year ended
September 30, 1999, filed with the Commission on December 20, 1999, as amended
on Form 10-K/A filed December 23, 1999.
(b) The Registrant's current reports on Form 8-K filed with the Commission
on October 19, 1999, as amended on Form 8-K/A filed with the Commission on
December 20, 1999.
(c) The Registrant's quarterly report on Form 10-Q for the quarter ended
December 31, 1999, filed with the Commission on February 14, 2000.
(d) The description of capital stock contained in the Form S-1 Registration
Statement filed on February 5, 1999, as amended, and declared effective on May
7, 1999 (Registration No. 333-71893) (the "Registration Statement") and the
prospectus dated May 7, 1999 filed pursuant to Rule 424(b).
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this registration
statement and 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, are deemed to be incorporated by reference into this
registration statement and to be a part hereof from the respective dates of
filing of such documents. Any statement contained in this registration statement
or in a document incorporated by reference shall be deemed modified or
superseded to the extent that a statement contained in any subsequently filed
document which also is or is deemed to be incorporated by reference herein or
therein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof, except as so
modified or superseded.
Item 4. Description of Securities.
Not Applicable.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
A partner of McCutchen, Doyle, Brown & Enersen, LLP, counsel to the Company
in connection with this registration statement, directly or indirectly holds a
beneficial ownership interest in 11,583 shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") authorizes
a court to award, or a corporation's board of directors to grant indemnity to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act").
As permitted by the DGCL, the Registrant's Restated Certificate of
Incorporation and Amended and Restated Bylaws provide that the Registrant shall
indemnify its directors and officers, and may indemnify its employees and other
agents, to the fullest extent permitted by law. The Amended and Restated Bylaws
also permit the Registrant to secure insurance on behalf of any officer,
director, employee or other agent for any liability arising out of his or her
actions in such capacity, regardless of whether the Amended and Restated Bylaws
would permit indemnification. The Registrant has obtained officer and director
liability insurance with respect to liabilities arising out of certain matters,
including matters arising under the Securities Act.
The Registrant also has entered into agreements with its directors and
executive officers that, among other things, indemnify them for certain expenses
(including attorneys' fees), judgments, fines and settlement amounts incurred by
them in any action or proceeding, including any action by or in the right of the
Registrant, arising out of such person's services as a director or officer of
the Registrant, any subsidiary of the Registrant or any other company or
enterprise to which the person provides services at the request of the
Registrant.
Reference is also made to Section 8 of the Underwriting Agreement filed as
Exhibit 1.1 to the Registration Statement on Form S-1, as amended, filed with
the Commission on February 5, 1999, for certain provisions regarding the
indemnification of officers and directors of the Registrant by the underwriters
of the transaction registered.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index which is incorporated herein by reference.
Item 9. Undertakings.
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;
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<PAGE>
(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 subparagraphs (i) and (ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
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 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.
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 Act and will be governed by the final adjudication of
such issue.
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 Redwood City, State of California on March 21, 2000.
NETOBJECTS, INC.
By: /s/ Samir Arora
-----------------------------------
Samir Arora
Chief Executive Officer and President
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes and
appoints Samir Arora and Russell F. Surmanek, and each of them, with full power
of substitution and resubstitution and full power to act without the other, as
his or her true and lawful attorney-in-fact and agent to act in his or her name,
place and stead and to execute in the name and on behalf of each person,
individually and in each capacity stated below, and to file, any and all
Statement that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents or amendments to this Registration Statement,
including any and all
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<PAGE>
post-effective amendments and amendments thereto and any registration statement
relating to the same offering as this Registration 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, ratifying and confirming all that said attorneys-in-fact
and agents or any of them or their and his substitute or substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated, effective March 21, 2000.
Signature Title
- ---------------------- -------------------------------------------------
/s/ Samir Arora Chief Executive Officer, President and Director
- ----------------------
Samir Arora
/s/ Russell F. Surmanek Executive Vice President, Finance and Operations,
- ----------------------- and Chief Financial Officer (Principal Financial
Russell F. Surmanek and Accounting Officer)
/s/ Lee A. Dayton Director
- ----------------------
Lee A. Dayton
/s/ Michael D. Zisman Director
- ----------------------
Michael D. Zisman
/s/ Robert G. Anderegg Director
- ----------------------
Robert G. Anderegg
/s/ Blake Modersitzki Director
- ----------------------
Blake Modersitzki
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<PAGE>
Exhibit Index
Exhibit Number Exhibit Description
- -------------- -------------------
4.1(1) Amended and Restated 1997 Stock Option Plan
4.2(2) Form of Executive Stock Option Agreement
5.1 Opinion of McCutchen, Doyle, Brown & Enersen, LLP
23.1 Consent of McCutchen, Doyle, Brown & Enersen, LLP
(included in Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of KPMG LLP
24.1 Power of Attorney (See page II-3)
- ------------
1 Incorporated by reference to the Registrant's Registration Statement on
Form S-1, as amended, filed with the Securities and Exchange Commission on
February 5, 1999, as amended and declared effective on May 7, 1999 (No.
333-71893).
2 Incorporated by reference to the form of Executive Option Agreement filed
as Exhibit A to the Registrant's preliminary proxy statement, filed with
the Securities and Exchange Commission on January 28, 2000 (No. 000-25427).
II-5
EXHIBIT 5.1
March 21, 2000 Direct: (650) 849-4816
NetObjects, Inc.
301 Galveston Drive
Redwood City, CA 94063
REGISTRATION ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to NetObjects, Inc., a Delaware corporation (the
"Company"), in connection with its registration statement on SEC Form S-8 of the
public offering of up to 3,100,000 shares of common stock, par value $.01 per
share (the "Common Stock"), under the Company's Amended and Restated 1997 Stock
Option Plan and up to 1,400,000 shares under certain Executive Stock Option
Agreements for officers of the Company (the "Plans").
In this regard, we have examined the Company's Restated Certificate of
Incorporation and Bylaws, each as amended to date, and records of meetings of
and written consents by the stockholders and the directors of the Company. In
addition, we have made such examinations of matters of law as we deemed
appropriate for purposes of this opinion. As to certain factual matters we deem
relevant to this opinion, we have relied upon a certificate of officers of the
Company and have not sought to independently verify the matters stated therein.
Based upon the foregoing, it is our opinion that the 4,500,000 shares of
Common Stock when issued under the Plans, will be validly issued, fully paid and
non-assessable, and no personal liability will attach to the holders of such
shares by reason of the ownership thereof.
This opinion is rendered solely to you in connection with the registration
of the shares of Common Stock under the Registration Statement. We consent to
being named as counsel to the Company in the registration statement and to the
inclusion of a copy of this opinion letter as an exhibit to the registration
statement. In giving this consent, however, we do not thereby admit that we are
an "expert" within the meaning of the Securities Act of 1933, as amended.
Sincerely yours,
By: Alan B. Kalin
McCutchen, Doyle, Brown & Enersen, LLP
Consent of Independent Auditors
The Board of Directors
NetObjects, Inc. and Subsidiaries:
We consent to incorporation herein by reference of our report dated November 5,
1999, relating to the consolidated balance sheets of NetObjects, Inc. and
subsidiaries as of September 30, 1999 and 1998, and the related consolidated
statements of operations and comprehensive loss, stockholders' equity (deficit),
and cash flows for each of the years in the three-year period ended September
30, 1999, and related financial statement schedule, which report appears in the
September 30, 1999 annual report on Form 10-K/A of NetObjects, Inc.
Mountain View, California
March 21, 2000
Consent of Independent Auditors
The Board of Directors
NetObjects, Inc. and Subsidiaries:
We consent to incorporation herein by reference of our report dated October 22,
1999, relating to the balance sheet of Sitematic, Inc. as of September 30, 1999,
and the related statements of operations, stockholders' deficit, and cash flows
for the year then ended, which report appears in the September 30, 1999 annual
report on Form 10-K/A of NetObjects, Inc.
San Diego, California
March 21, 2000
