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As filed with the Securities and Exchange Commission on December 14, 1999
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
--------------------
McAFEE.COM CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 77-0503003
(State of Incorporation) (I.R.S. Employer Identification Number)
2805 Bowers Avenue
Santa Clara, California 95051
(Address of Principal Executive Offices)
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1999 AMENDED AND RESTATED STOCK PLAN
1999 DIRECTOR OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
--------------------
Srivats Sampath
Chief Executive Officer
McAfee.com Corporation
2805 Bowers Avenue
Santa Clara, California 95051
(Name and address of agent for service)
(408) 572-1500
(Telephone number, including area code, of agent for service)
--------------------
Copy to:
Kurt J. Berney
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE FEE
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock to be issued 5,375,135 $ 4.88 (1) $26,230,659 $ 6,925.00
under the 1999 Amended and 3,012,865 45.50 (2) 137,085,358 36,191.00
Restated Stock Plan
- -------------------------------------------------------------------------------------------------------------
Class A Common Stock to be issued 150,000 $45.50 $6,825,000 $1,802.00
under the 1999 Director Option
Plan
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Class A Common Stock to be issued 500,000 $38.68 (3) $19,340,000 $5,106.00
under the 1999 Employee Stock
Purchase Plan
- -------------------------------------------------------------------------------------------------------------
TOTAL: 9,038,000 $ 189,481,017 $50,024.00
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</TABLE>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the weighted average price of
the outstanding options as of December 10, 1999.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the average of the high and low
prices per share of the Class A Common Stock as reported on The Nasdaq
National Market on December 10, 1999.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on 85% of the average of the high
and low prices per share of the Class A Common Stock as reported on The
Nasdaq National Market on December 10, 1999.
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MCAFEE.COM CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
1. The Company's Registration Statement on Form S-1 (File No. 333-87609)
as amended (the "Registration Statement"), filed pursuant to the Securities Act
of 1933, as amended (the "Securities Act"), relating to the Company's initial
public offering of its Class A Common Stock.
2. The description of the Company's Class A Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 000-28247) filed
pursuant to 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 such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act on or 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 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a company will not be personally liable for monetary damages
for breach of their fiduciary duties as directors, except for liability (i) for
any breach of their duty of loyalty to the company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) for unlawful payments or dividends or unlawful
stock repurchases or redemptions as provided Section 174 of Delaware General
Corporation Law or (iv) for transactions from which the director derived an
improper personal benefit.
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The Company's Bylaws provide that the Company shall indemnify its
officers and directors and may indemnify its employees and other agents to the
fullest extent provided by Delaware law, including those circumstances where
indemnification would otherwise be discretionary under Delaware law. The Company
believes that indemnification under its Bylaws covers at least negligence on the
part of indemnified parties. The Bylaws authorize the use of indemnification
agreements and the Company has entered into such agreements with each of its
directors and officers.
The Company carries officer and director liability insurance with
respect to certain matters, including matters arising under the Securities Act.
Delaware law does not permit a corporation to eliminate a director's
duty of care, and the provisions of the Company's Certificate of Incorporation
have no effect on the availability of equitable remedies such as injunction or
rescission, based upon a director's breach of the duty of care. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to foregoing provisions and agreements, the Company has been informed
that in the opinion of the staff of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- -----------------------------------------------------------------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
10.2* 1999 Amended and Restated Stock Plan and form of agreements
thereunder
10.3* 1999 Director Option Plan and form of agreements thereunder
10.4* 1999 Employee Stock Purchase Plan and form of agreements
thereunder
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained
in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 333-87609) filed with the Commission on September 23, 1999, as
amended.
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.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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.
B. The undersigned registrant hereby 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.
C. 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 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 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 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 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 Santa Clara, State of California, on December 15,
1999.
McAfee.com Corporation
By: /s/ SRIVATS SAMPATH
------------------------------------
Srivats Sampath, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Srivats Sampath and Evan Collins, jointly
and severally, his or her attorneys-in-fact, each with the power of
substitution, 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 substitution or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on December 15, 1999 by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------- ------------------------------------------------------
<S> <C>
/s/ SRIVATS SAMPATH President, Chief Executive Officer and Director
- ------------------------------- (Principal Executive Officer)
Srivats Sampath
/s/ EVAN COLLINS Vice President, Chief Financial Officer and Secretary
- ------------------------------- (Principal Financial and Accounting Officer)
Evan Collins
/s/ WILLIAM LARSON
- -------------------------------
William Larson Chairman of the Board of Directors
/s/ FRANK GILL
- -------------------------------
Frank Gill Director
/s/ PRABHAT GOYAL
- -------------------------------
Prabhat Goyal Director
/s/ RICHARD SCHELL
- -------------------------------
Richard Schell Director
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
10.2* 1999 Amended and Restated Stock Plan and form of agreements
thereunder
10.3* 1999 Director Option Plan and form of agreements thereunder
10.4* 1999 Employee Stock Purchase Plan and form of agreements
thereunder
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained
in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 333-87609) filed with the Commission on September 23, 1999, as
amended.
<PAGE> 1
EXHIBIT 5.1
December 15, 1999
McAfee.com Corporation
2805 Bowers Avenue
Santa Clara, California 95051
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 December 14, 1999
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 8,388,000 shares of your
Class A Common Stock issuable under your 1999 Amended and Restated Stock Plan,
150,000 shares of your Class A Common Stock issuable under your 1999 Director
Option Plan, and 500,000 shares of your Class A Common Stock issuable under
your 1999 Employee Stock Purchase Plan. Such shares of Class A Common Stock are
referred to herein as the "Shares" and the 1999 Amended and Restated Stock Plan,
the 1999 Director Option Plan and the 1999 Employee Stock Purchase Plan are
referred to herein as the "Plans." 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 Plans.
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 Plans 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 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
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated August 20, 1999, relating to the
financial statements of McAfee.com Corporation, a subsidiary of Network
Associates, Inc., which appears in McAfee.com Corporation's Registration
Statement on Form S-1 (File No. 333-87609).
PricewaterhouseCoopers LLP
San Jose, California
December 14, 1999
