<PAGE>
As filed with the Securities and Exchange Commission on December 15, 1999
Registration No. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GRIC COMMUNICATIONS, INC.
(Exact name of the registrant as specified in its charter)
DELAWARE 77-0368092
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
GRIC COMMUNICATIONS, INC.
1421 MCCARTHY BOULEVARD
MILPITAS, CALIFORNIA 95035
(Address of principal executive offices)
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1997 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
(Full title of the plans)
JOSEPH M. ZAELIT
SENIOR VICE PRESIDENT, FINANCE AND ADMINISTRATION
AND CHIEF FINANCIAL OFFICER
GRIC COMMUNICATIONS, INC.
1421 MCCARTHY BOULEVARD
MILPITAS, CALIFORNIA 95035
(408) 955-1920
(Name, address and telephone number of agent for service)
COPIES TO:
Horace L. Nash, Esq.
H. Daniel Kim, Esq.
Thomas J. Hall, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------- ----------------- ---------------------- ---------------------- ---------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED SHARE PRICE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED FEE
- ---------------------------------------- ----------------- ---------------------- ---------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 4,672,199 (1) $ 14.00 (2) $ 65,410,786 (2) $ 17,269
Common Stock, $0.001 par value 2,444,322 (3) $ 6.16 (4) $ 15,057,024 (5) $ 3,975
- ------------------------------------------------------------------------------------------------------------------------
TOTAL $ 21,244
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
(1) Represents the aggregate of 4,172,199 shares authorized and reserved for
issuance upon exercise of stock options under the 1999 Equity Incentive
Plan and 500,000 shares available for grant under the 1999 Employee Stock
Purchase Plan.
(2) Estimated as of December 14, 1999 in accordance with Rule 457(h)(1) and
Rule 457(c) under the Securities Act solely for the purpose of calculating
the registration fee.
(3) Represents 2,116,521 shares subject to options outstanding under the 1995
Stock Option Plan and the 1997 Stock Option Plan and 327,801 shares subject
to options outstanding under the 1999 Equity Incentive Plan, each as of
December 14, 1999.
(4) Weighted average per share exercise price for such outstanding options.
(5) Calculated based on the weighted average per share exercise price pursuant
to Rule 457(h)(1) under the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated into this registration
statement by reference:
(a) The registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, which contains audited financial
statements of the registrant as of December 31, 1997 and 1998
and September 30, 1999 and for each of the three years in the
period ended December 31, 1998 and the nine-month period ended
September 30, 1999.
(b) The description of the registrant's common stock set forth under
the caption "Description of Capital Stock" on pages 64 through 67
of the prospectus included in the registrant's registration
statement on Form S-1, File No. 333-87497, filed with the
Commission on September 21, 1999, and any amendment or report
filed for the purpose of updating such 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 which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the legality of the issuance of
the common stock registered hereby will be passed upon by Fenwick & West LLP. As
of the date of this registration statement, a partnership comprised of partners
of Fenwick & West LLP owns 10,714 shares of the registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
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.
As permitted by the Delaware General Corporation Law, the registrant's
certificate of incorporation includes a provision that eliminates the personal
liability of its directors for monetary damages for breach of fiduciary duty as
a director, except for liability:
- for any breach of the director's duty of loyalty to the
registrant or its stockholders;
- for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
- under Section 174 of the Delaware General Corporation Law
(regarding unlawful dividends and stock purchases); and
- for any transaction from which the director derived an
improper personal benefit.
As permitted by the Delaware General Corporation Law, the registrant's
bylaws also provide that:
2
<PAGE>
- the registrant is required to indemnify its directors and
officers to the fullest extent permitted by the Delaware
General Corporation Law, subject to limited exceptions;
- the registrant may indemnify its agents as set forth in the
Delaware General Corporation Law, unless otherwise required by
law, our certificate of incorporation or agreement;
- the registrant is required to advance expenses, as incurred,
to its directors and officers in connection with a legal
proceeding to the fullest extent permitted by the Delaware
General Corporation Law, subject to limited exceptions;
- the rights conferred in the bylaws are not exclusive; and
- the registrant may not retroactively amend the bylaws
provisions relating to indemnity.
The registrant has entered into indemnity agreements with each of its
current directors and officers to give such directors and officers additional
contractual assurances regarding the scope of the indemnification set forth in
the registrant's certificate of incorporation and to provide additional
procedural protections. At present, there is no pending litigation or proceeding
involving a director, officer or employee of the registrant regarding which
indemnification is sought, nor is the registrant aware of any threatened
litigation that may result in claims for indemnification.
Reference is also made to Section 7 of the Underwriting Agreement
relating to the registrant's initial public offering, effected pursuant to a
registration statement on Form S-1 (File No. 333-87497), which provides for the
indemnification of officers, directors and controlling persons of the registrant
against certain liabilities. The indemnification provision in the registrant's
certificate of incorporation, bylaws and the indemnity agreements entered into
between the registrant and each of its directors and officers may be
sufficiently broad to permit indemnification of the registrant's directors and
officers for liabilities arising under the Securities Act.
Registrant maintains directors' and officers' liability insurance and
expects to obtain a rider to such coverage for securities matters.
See also the undertakings set out in response to Item 10.
Reference is made to the following documents regarding relevant
indemnification provisions described above and elsewhere herein:
DOCUMENT
--------
1. Form of Underwriting Agreement (incorporated by reference to
Exhibit 1.01 to the registrant's registration statement on Form
S-1, File No. 333-87497, filed with the Commission on September
21, 1999).
2. Form of Indemnification Agreement between the registrant and
each of its directors and executive officers (incorporated by
reference to Exhibit 10.01 to the registrant's registration
statement on Form S-1, File No. 333-87497, filed with the
Commission on September 21, 1999).
Reference is also made to the following documents filed as exhibits to
this registration statement regarding relevant indemnification provisions
described above and elsewhere herein:
<TABLE>
<CAPTION>
EXHIBIT DOCUMENT NUMBER
------
<S> <C>
The registrant's First Amended and Restated Certificate of Incorporation .............. 3.03
The registrant's First Amended and Restated Bylaws .................................... 3.02
Fifth Amended and Restated Registration Rights Agreement dated November 12, 1999....... 4.02
</TABLE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
3
<PAGE>
Not applicable.
ITEM 8. CONSULTANTS AND ADVISORS.
Not applicable.
ITEM 9. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER TITLE
- ------- -------
<S> <C>
4.01 The registrant's First Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit 3.03 to the
registrant's registration statement on Form S-1, File No.
333-87497, filed with the Commission on September 21, 1999 (the
"Form S-1")).
4.02 The registrant's Second Amended and Restated Certificate of
Incorporation, to be filed with the Delaware Secretary of State
on or about December 20, 1999 (incorporated by reference to
Exhibit 3.04 of the Form S-1)
4.03 The registrant's First Amended and Restated Bylaws
(incorporated by reference to Exhibit 3.02 to the Form S-1).
4.04 Form of specimen certificate for the registrant's common stock
(incorporated by reference to Exhibit 4.01 to the Form S-1).
4.05 Fifth Amended and Restated Registration Rights Agreement dated
November 12, 1999, among the registrant and the security holders
listed in the agreement (incorporated by reference to Exhibit 4.02
to the Form S-1).
4.06 Aimnet Corporation 1995 Stock Option Plan (incorporated by
reference to Exhibit 10.11 to the Form S-1).
4.07 Aimquest Corporation 1997 Stock Option Plan (incorporated by
reference to Exhibit 10.12 to the Form S-1).
4.08 GRIC Communications, Inc. 1999 Equity Incentive Plan (incorporated
by reference to Exhibit 10.13 to the Form S-1).
4.09 GRIC Communications, Inc. 1999 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.14 to the Form S-1).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of independent auditors.
24.01 Power of Attorney (see page 6).
</TABLE>
ITEM 10. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
4
<PAGE>
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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;
(c) 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, 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) The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, the registrant 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 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 hereby, 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 and will be governed by
the final adjudication of such issue.
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 Milpitas, State of California, on this 15th day of
December, 1999.
GRIC COMMUNICATIONS, INC.
By: /s/ DR. HONG CHEN
-------------------------------------
Dr. Hong Chen
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Joseph M. Zaelit and David L. Teichmann,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him or her and in such person's name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement on Form S-8, and to
file the same with all exhibits thereto and all 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 in
and about the premises, as fully 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 either if them, or his 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ DR. HONG CHEN President, Chief Executive Officer December 15, 1999
- ---------------------------- and Director
Dr. Hong Chen
PRINCIPAL FINANCIAL OFFICER
/s/ JOSEPH M. ZAELIT Senior Vice President, Finance and
- ---------------------------- Administration and Chief Financial December 15, 1999
Joseph M. Zaelit Officer
PRINCIPAL ACCOUNTING OFFICER
/s/ KIM S. SILVERMAN Corporate Controller December 15, 1999
- ----------------------------
Kim S. Silverman
ADDITIONAL DIRECTORS:
/s/ ROGER L. PEIRCE Chairman December 13, 1999
- ----------------------------
Roger L. Peirce
/s/ LYNN Y. LIU Director December 15, 1999
- ----------------------------
Lynn Y. Liu
6
<PAGE>
/s/ DR. TA-LIN HSU Director December 12, 1999
- ----------------------------
Dr. Ta-Lin Hsu
/s/ DR. YEN-SON (PAUL) HUANG Director December 15, 1999
- ----------------------------
Dr. Yen-Son (Paul) Huang
/s/ KHENG NAM LEE Director December 15, 1999
- ----------------------------
Kheng Nam Lee
/s/ JOZEF LERNOUT Director December 13, 1999
- ----------------------------
Jozef Lernout
/s/ STANLEY J. MERESMAN Director December 15, 1999
- ----------------------------
Stanley J. Meresman
</TABLE>
7
<PAGE>
EXHIBIT INDEX
EXHIBIT EXHIBIT
NUMBER TITLE
- ------ -----
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent accountants.
24.01 Power of Attorney (see page 6).
<PAGE>
Exhibit 5.01
[Fenwick & West LLP letterhead]
December 14, 1999
GRIC Communications, Inc.
1421 McCarthy Blvd.
Milpitas, CA 95035
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-8 to be filed by you with the Securities and Exchange Commission (the "SEC")
on or about December 15, 1999 (the "REGISTRATION STATEMENT") in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
of 7,116,521 shares of your common stock (the "STOCK") subject to issuance by
you upon the exercise of: (1) options to purchase 2,116,521 shares of Stock
granted by you under your 1995 Stock Option Plan and 1997 Stock Option Plan (the
"OPTION PLANS"); (2) options to purchase 4,500,000 shares of Stock granted or to
be granted by you under your 1999 Equity Incentive Plan (the "EQUITY INCENTIVE
PLAN"); and (3) purchase rights for up to 500,000 shares of Stock granted or to
be granted by you under your 1999 Employee Stock Purchase Plan (the "PURCHASE
PLAN"). The plans referred to in clauses (1), (2), and (3) above are
collectively referred to in this letter as the "PLANS."
In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File No. 333-87497),
declared effective by the SEC on December 14, 1999 (the "FORM
S-1"), together with the exhibits filed therewith, including
without limitation, each of the Plans and related stock option
grant and exercise agreements and stock purchase agreements;
(2) your registration statement on Form 8-A (File No. 000-27871),
filed with the SEC on October 29, 1999 and declared effective
on December 14, 1999;
(3) the Registration Statement, together with the exhibits filed
as a part thereof;
(4) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your
minute books and in the minute books of your predecessor, GRIC
Communications, Inc., a California corporation ("GRIC
CALIFORNIA") that are in our possession;
(5) your First Amended and Restated Certificate of Incorporation,
as amended (the "CERTIFICATE OF INCORPORATION"), and First
Amended and Restated Bylaws (the "BYLAWS"), both of which were
filed as exhibits to the Form S-1, as such
<PAGE>
GRIC Communications, Inc.
December 14, 1999
Page 2
registration statement was subsequently amended, and the
Articles of Incorporation and Bylaws of GRIC California;
(6) the stock records for both you and GRIC California that you
have provided to us (consisting of a list of stockholders,
option holders and warrant holders as of December 14, 1999
which we compiled based on the stock records of the Company
and GRIC California, each of which you have represented to us
are true and complete as of their dates and which we have
updated based upon information provided by you); and
(7) a Management Certificate executed by you, addressed to us and
dated of even date herewith, which contains certain factual
and other representations (the "MANAGEMENT CERTIFICATE").
By telephone call to the offices of the SEC, we have also confirmed
both the continued effectiveness of the Company's registration under the
Securities Exchange Act of 1934, as amended and your eligibility to use Form
S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all natural persons
executing the same, the lack of any undisclosed termination, modification,
waiver or amendment to any document reviewed by us and the due authorization,
execution and delivery of all documents where due authorization, execution and
delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such information
or to determine the existence or non-existence of any other factual matters;
HOWEVER, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of the laws
of any jurisdiction other than the existing laws of the United States of America
and the State of California and (without reference to case law or secondary
sources) the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that,
at or prior to the time of the delivery of any shares of Stock, the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
<PAGE>
GRIC Communications, Inc.
December 14, 1999
Page 3
Based upon the foregoing, it is our opinion that the 7,116,521 shares
of Stock that may be issued and sold by you upon the exercise of: (1) stock
options granted under the Option Plans and Equity Incentive Plan, and (2)
purchase rights granted or to be granted under the Purchase Plan, when issued
and sold in accordance with the Registration Statement and the applicable Plan
and stock option grant and exercise agreements or stock purchase agreements
entered into or to be entered into thereunder, and in the manner referred to in
the relevant prospectus associated with the Registration Statement, will be
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 all references to us, if any, in the
Registration Statement, the prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ David W. Healy
-------------------------------
David W. Healy, Esq., a Partner
<PAGE>
Exhibit 23.02
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1999 Equity Incentive Plan, the 1999 Employee
Stock Purchase Plan, the 1997 Stock Option Plan and the 1995 Stock Option
Plan of GRIC Communications, Inc. of our report dated October 25, 1999 with
respect to the consolidated financial statements of GRIC Communications, Inc.
included in its Registration Statement (Form S-1 No. 333-87497) for the
nine-month period ended September 30, 1999, and the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
San Jose, California /s/ Ernst & Young LLP
December 15, 1999
