<PAGE>
As filed with the Securities and Exchange Commission on November 23, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
COBALT NETWORKS, INC.
(Exact name of Registrant as specified in its charter)
__________________
Delaware 77-0440751
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
555 Ellis Street
Mountain View, CA 94043
(650) 623-2500
(Address, including zip code, of Registrant's principal executive offices)
__________________
1997 Stock Plan (as amended September 1, 1999)
1999 Director Option Plan
1999 Employee Stock Purchase Plan
(Full title of the plan)
__________________
KENTON D. CHOW
Chief Financial Officer
555 Ellis Street
Mountain View, CA 94043
(650) 623-2500
(Name, address, and telephone number, including area code, of agent for service)
__________________
Copies to:
ROBERT P. LATTA
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 per share par value: To
be issued under the 1997 Stock Plan (as
amended September 1, 1999) (1)............... 8,138,479 shares 109.97/(2)/ 894,988,535.60/(2)/ $248,806.81
===========================================================================================================================
Common Stock, $0.001 per share par value: To
be issued under the 1999 Director Option
Plan (1)..................................... 500,000 shares 109.97/(2)/ 54,985,000/(2)/ $15,285.83
===========================================================================================================================
Common Stock, $0.001 per share par value: To
be issued under the 1999 Employee Stock
Purchase Plan (1)............................ 3,750,000 shares 93.48/(3)/ 350,550,000/(3)/ $97,452.90
==================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 1997 Stock Plan
(as amended September 1, 1999), 1999 Director Option Plan, and 1999
Employee Stock Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction affected without the receipt
of consideration that increases the number of the Registrant's outstanding
shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee based upon the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
November 18, 1999.
(3) The exercise price of $93.48 per share, computed in accordance with Rule
457(h), is 85% of the opening price of a share of Common Stock of the
Company as reported on the Nasdaq National Market on November 18, 1999, the
current enrollment date. Pursuant to the 1999 Employee Stock Purchase
Plan, shares are sold at 85% of the lesser of the fair market value of such
shares on the start date of the offering period or at the end of the
purchase period.
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PART II: INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
Cobalt Networks, Inc. hereby incorporates by reference in this
registration statement the following documents:
1. The Registrant's prospectus filed pursuant to Rule 424(b) on or
about November 5, 1999; and
2. The description of the common stock contained in the Registrant's
Registration Statement on Form 8-A (Registration No. 000-27661)
filed on October 14, 1999 under the Securities Exchange Act of
1934, as amended, including any amendment or report subsequently
filed by the Registrant for the purpose of updating that
description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
a 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
-----------------------------------------
Section 145 of the Delaware General Corporation Law 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 Registrant's
Certificate of Incorporation and Bylaws provide that the Registrant shall
indemnify its directors, officers, employees and other agents to the fullest
extent permitted by Delaware law, including circumstances in which
indemnification is otherwise discretionary under Delaware law.
The Registrant has entered into indemnity agreements with certain
directors and executive officers. These agreements, among other things,
indemnify the directors and executive officers for certain expenses (including
attorneys' fees), judgments, fines, and settlement payments incurred by such
persons in any action, including any action by or in the right of the
Registrant, in connection with the good faith performance of their duties as a
director or officer. The indemnification agreements also provide for the advance
payment by the Registrant of defense expenses incurred by the director or
officer; however, the affected director or officer must undertake to repay such
amounts advanced if it is ultimately determined that such director or officer is
not entitled to be indemnified.
II-3
<PAGE>
Item 7. Exemption From Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit
Number Documents
---------------------------------------------------------------------
4.1* Cobalt Networks, Inc. 1997 Stock Plan (as amended September
1, 1999) and form of agreement thereunder
4.2* Cobalt Networks, Inc. 1999 Employee Stock Purchase Plan and
form of agreement thereunder
4.3* Cobalt Networks, Inc. 1999 Director Option Plan and form of
agreement thereunder
5.1 Opinion of counsel as to legality of securities being
registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (see page II-7)
* Incorporated by reference to the Exhibits filed with Cobalt
Networks, Inc.'s Registration statement on Form S-1 (Registration
No. 333-86759) as declared effective by the SEC on November 4,
1999.
Item 9. Undertakings
------------
(a) Rule 415 offering
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, as amended, 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.
II-4
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 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.
(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 Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
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 Mountain View, State of California, on this 23rd day
of November, 1999.
COBALT NETWORKS, INC.
By: /s/ Stephen W. DeWitt
----------------------------------------
Stephen W. DeWitt
President and Chief Executive Officer
II-6
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen W. DeWitt and Kenton D. Chow, and
each of them, as his or her attorney-in-fact, with full power of substitution in
each, for him or her in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------------- --------------------------------------- -------------------
<S> <C> <C>
/s/ Stephen W. DeWitt President, Chief Executive Officer and November 23, 1999
- -----------------------------------------
Stephen W. DeWitt Director (Principal Executive Officer)
/s/ Kenton D. Chow Vice President Finance and Chief November 23, 1999
- -----------------------------------------
Kenton D. Chow Financial Officer (Principal Financial
and Accounting Officer)
/s/ Gordon A. Campbell Chairman of the Board of Directors November 23, 1999
- -----------------------------------------
Gordon A. Campbell
/s/ Jordan A. Levy Director November 23, 1999
- -----------------------------------------
Jordan A. Levy
/s/ Gary F. Bengier Director November 23, 1999
- ------------------------------------------
Gary F. Bengier
/s/ Stephen J. Luczo Director November 23, 1999
- -----------------------------------------
Stephen J. Luczo
/s/ Carl F. Pascarella Director November 23, 1999
- -----------------------------------------
Carl F. Pascarella
/s/ Mark Spagnolo Director November 23, 1999
- -----------------------------------------
Mark Spagnolo
</TABLE>
II-7
<PAGE>
COBALT NETWORKS, INC.
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
INDEX TO EXHIBITS
Exhibit
Number Documents
- ----------- -----------------------------------------------------------------
4.1* Cobalt Networks, Inc. 1997 Stock Plan (as amended September 1,
1999) and form of agreement thereunder
4.2* Cobalt Networks, Inc. 1999 Employee Stock Purchase Plan and form
of agreement thereunder
4.3* Cobalt Networks, Inc. 1999 Director Option Plan and form of
agreement thereunder
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (see page II-7)
* Incorporated by reference to the Exhibits filed with Cobalt Networks, Inc.'s
Registration statement on Form S-1 (Registration No. 333-86759) as declared
effective by the SEC on November 4, 1999.
II-8
<PAGE>
Exhibit 5.1
-----------
November 23, 1999
Cobalt Networks, Inc.
555 Ellis Street
Mountain View, CA 94043
Re: Registration Statement on Form S-8
----------------------------------
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 November 23, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 12,388,479 shares of your
Common Stock (the "Shares") under your 1997 Stock Plan (as amended September 1,
1999), 1999 Director Option Plan and 1999 Employee Stock Purchase Plan
(collectively, the "Option Programs"). As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and sale
of the Shares pursuant to the Option Programs.
It is our opinion that, when issued and sold in the manner described in the
Option Programs and pursuant to the agreements which accompany each grant under
the Option Programs, the Shares will be legally and validly issued, fully-paid
and non-assessable.
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
<PAGE>
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 11, 1999, except as to Note
12, which is as of October 26, 1999, relating to the consolidated financial
statements Cobalt Networks, Inc. which appears in the Company's Registration
Statement on Form S-1 (No. 333-86759).
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
November 18, 1999
