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As filed with the Securities and Exchange Commission on December 18, 1997
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REALNETWORKS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
WASHINGTON 7371 91-1628146
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
1111 Third Avenue, Suite 2900
Seattle, Washington 98101
(206) 674-2700
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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RealNetworks, Inc.
1998 Employee Stock Purchase Plan
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Robert Glaser, Chief Executive Officer
1111 Third Avenue, Suite 2900
Seattle, Washington 98101
(206) 674-2700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities Amount to be Aggregate Offering Amount of
to Be Registered Registered (1) Price (2) Registration Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock 1,000,000 shares $16,250,000 $4,794
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(1) Plus (i) an indeterminate number of shares of Common Stock that may become
issuable under the Plan as a result of the adjustment provisions therein,
and (ii) if any interests in the Plan constitute separate securities
required to be registered under the Securities Act of 1933, then, pursuant
to Rule 416(c), an indeterminate amount of such interests to be offered or
sold pursuant to the Plan.
(2) Computed pursuant to Rule 457(c) and (h) based on the average of the high
and low sales prices reported by the Nasdaq Stock Market on December 15,
1997, which was $16.25.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated in this Registration Statement by
reference:
1. The Prospectus filed by the Registrant with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 424(b)(4) under
the Securities Act of 1933, as amended (the "Securities Act") on November
21, 1997 as part of its Registration Statement on Form S-1 (File No.
333-36553);
2. The description of the Registrant's Common Stock set forth in
the Registration Statement on Form 8-A under Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), filed by
the Registrant with the Commission on September 26, 1997, under Section
12(g) of the Exchange Act.
All documents filed by the Registrant with the Commission after the date
of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, before the filing of a post-effective amendment that
indicates that all securities offered pursuant to this Registration Statement
have been sold or that deregisters all securities then remaining unsold, shall
also be deemed to be incorporated by reference in this Registration Statement
and to be part hereof from the respective dates of filing of such documents.
Any statement 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 other subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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 required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Articles of Incorporation (the
"Articles") contain provisions entitling directors and executive officers to be
indemnified by the Registrant against claims arising out of their actions in
such capacities to the fullest extent permitted by law, and the Registrant has
entered into Indemnification Agreements with each of its directors and executive
officers that contractually entitle such persons to similar protection. In
addition, the Articles contain provisions limiting the personal liability of
directors to the Registrant or its shareholders to the fullest extent permitted
by law. The Registrant has also secured insurance on behalf of its executive
officers and directors for certain liabilities arising out of their actions in
such capacities.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
5 Opinion of Graham & James LLP/Riddell Williams P.S.
23.1 Consent of Graham & James LLP/Riddell Williams P.S.
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors
24 Powers of Attorney
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) that, individually or in
the aggregate, represent a fundamental change in the information set
forth in the 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 periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act 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 the 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 that 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 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.
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(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 Securities Act of 1933 and is, therefore, unenforceable. If 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 of 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe it meets all 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 Seattle, State of Washington, on this 18th day of
December, 1997.
REALNETWORKS, INC.
By /s/ Robert Glaser
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Robert Glaser, Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Robert Glaser and Bruce Jacobsen and each of them severally, his true and lawful
attorneys-in-fact and agents, with full power to act without the other and with
full power of substitution and resubstitution, to execute in his name and on his
behalf, individually and in each capacity stated below, any and all amendments
and post-effective amendments to this Registration Statement, any and all
supplements hereto, and any and all other instruments necessary or incidental in
connection herewith, and to file the same with the Commission.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
below.
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<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert Glaser Chairman of the Board, December 18, 1997
- ----------------------------- Chief Executive Officer,
Robert Glaser Secretary and Treasurer
(Principal Executive Officer)
/s/ Bruce Jacobsen President, Chief Operating December 18, 1997
- ----------------------------- Officer and Director
Bruce Jacobsen
/s/ Mark Klebanoff Chief Financial Officer December 18, 1997
- ----------------------------- (Principal Financial and
Mark Klebanoff Accounting Officer)
/s/ James Breyer Director December 18, 1997
- -----------------------------
James Breyer
/s/ Mitchell Kapor
- ------------------------------ Director December 18, 1997
Mitchell Kapor
</TABLE>
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EXHIBIT
NUMBER DESCRIPTION
- ------- ------------
5 Opinion of Graham & James LLP/Riddell Williams P.S.
23.1 Consent of Graham & James LLP/Riddell Williams P.S. (included in
Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors
24 Powers of Attorney (included on signature page)
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EXHIBITS 5 AND 23.1
December 18, 1997
RealNetworks, Inc.
1111 Third Avenue, Suite 2900
Seattle, WA 98101
RE: FORM S-8 REGISTRATION STATEMENT
Ladies and Gentlemen:
We have acted as counsel to you (the "Company") in connection with the
preparation of its Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
which the Company will file with the Securities and Exchange Commission, with
respect to an aggregate of 1,000,000 shares of Common Stock of the Company (the
"Shares") issuable under the Company's 1998 Employee Stock Purchase Plan (the
"Plan").
We have examined the Registration Statement and such other documents and records
as we have deemed relevant and necessary for the purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the Shares
issuable under the Plan will, upon due execution by the Company and the
registration by its registrars of the certificates for the Shares and issuance
thereof by the Company and receipt by the Company of the consideration therefor
in accordance with the terms of the Plan, be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
GRAHAM & JAMES LLP/RIDDELL WILLIAMS P.S.
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CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
RealNetworks, Inc.:
We consent to incorporation by reference in the registration statement dated
December 18, 1997 on Form S-8 of RealNetworks, Inc. of our reports dated October
10, 1997, except as to note 9, which is as of October 30, 1997, relating to the
consolidated balance sheets of RealNetworks, Inc. and subsidiaries as of
December 31, 1995 and 1996 and September 30, 1997, and the related consolidated
statements of operations, shareholders' equity (deficit), and cash flows for the
period from February 9, 1994 (inception) to December 31, 1994, the years ended
December 31, 1995 and 1996 and the nine months ended September 30, 1997, and
related financial statement schedule, which reports appear in RealNetworks,
Inc.'s registration statement (No. 333-36553) on Amendment No. 4 to Form S-1.
KPMG Peat Marwick LLP
Seattle, Washington
December 17, 1997
