<PAGE>
As filed with the Securities and Exchange Commission on June 2, 2000
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
______________________
NUANCE COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
______________________
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<S> <C> <C>
Delaware 94-3238130
(State of incorporation) 1005 Hamilton Court (I.R.S. Employer Identification Number)
Menlo Park, CA 94025
(Address of principal executive offices)
______________________
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1994 FLEXIBLE STOCK INCENTIVE PLAN
1998 STOCK PLAN
2000 STOCK PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
-----------------------------
Ronald A. Croen
President and Chief Executive Officer
Nuance Communications, Inc.
1005 Hamilton Court
Menlo Park, CA 94025
(650) 847-0000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________
Copy to:
STEVEN E. BOCHNER, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per share
Subject to outstanding options under the 1994 Flexible Stock
Incentive Plan.............................................. 624,733 shares $ .98 (2) $ 612,238 $ 161.63
Subject to outstanding options under the 1998 Stock Plan.... 4,765,507 shares $ 9.40 (3) $ 44,795,766 $11,826.08
Subject to outstanding options under the 2000 Stock Plan.... 29,000 shares $42.19 (4) $ 1,223,510 $ 323.01
Reserved under the 2000 Stock Plan.......................... 2,452,242 shares $36.0 (5) $ 88,280,712 $23,306.11
Reserved under the 2000 Employee Stock Purchase Plan........ 1,000,000 shares $30.6 (6) $ 30,600,000 $ 8,078.40
TOTAL 8,871,482 shares $165,512,226 $43,695.23
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(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into five subtotals.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average
exercise price of $0.98 per share for outstanding options to purchase a
total of 624,733 shares of Common Stock under the 1994 Flexible Stock
Incentive Plan.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average
exercise price of $9.40 per share for outstanding options to purchase a
total of 4,765,507 shares of Common Stock under the 1998 Stock Plan.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of the weighted average
exercise price of $42.19 per share for outstanding options to purchase a
total of 29,000 shares of Common Stock under the 2000 Stock Plan.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $36.0 per share, the
average of the high and low prices of the Registrant's Common Stock as
reported on the Nasdaq National Market on May 26, 2000.
(6) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $30.6 per share (85% of
the average of the high and the low prices of the Registrant's Common Stock
as reported on the Nasdaq National Market on May 26, 2000). Pursuant to the
2000 Employee Stock Purchase Plan, shares are sold at 85% of the lesser of
the fair market value of such shares on the first day of an offering period
or the last day of the applicable purchase period.
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NUANCE COMMUNICATIONS
REGISTRATION STATEMENT ON FORM S-8
PART II
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed by Nuance
Communications (the "Registrant") with the Securities and Exchange Commission
(the "Commission"):
(a) The Registrant's Prospectus dated April 12, 2000 as filed by the
Registrant pursuant to Rule 424(b) promulgated under the Securities Act of 1933,
as amended (the "Securities Act").
(b) The Registrant's Prospectus Supplement dated April 26, 2000 as
filed by the Registrant pursuant to Rule 424(b) and (c) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
(c) The Registrant's Form 10-Q for the period ended March 31, 2000 as
filed on May 25, 2000 pursuant to Section 13 of the Securities Exchange Act of
1934 (the "Exchange Act").
(d) The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on April 3, 2000 pursuant
to Section 12(g) of the Exchange Act, including 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 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.
As permitted by Section 145 of 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 their fiduciary duty as a director. In addition, as permitted by
Section 145 of the Delaware General Corporation Law, the Bylaws of the
Registrant provide that: (1) the Registrant is required to indemnify its
directors and executive officers and persons serving in these capacities in
other business enterprises (including, for example, subsidiaries of the
Registrant) at the Registrant's request, to the fullest extent permitted by
Delaware law, including in those circumstances in which indemnification would
otherwise be discretionary; (2) the Registrant may, in its discretion, indemnify
employees and agents in those circumstances where indemnification
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is not required by law; (3) the rights conferred in the Bylaws are not
exclusive, and the Registrant is authorized to enter into indemnification
agreements with its directors, executive officers and employees; and (4) the
Registrant may not retroactively amend the Bylaw provisions in a way that is
adverse to the directors, executive officers and employees who benefit from
these protections.
The Registrant's policy is to enter into indemnification agreements
with each of its directors and executive officers that provide the maximum
indemnity allowed to directors and executive officers by Section 145 of the
Delaware General Corporation Law and the Bylaws, as well as certain additional
procedural protections. In addition, these indemnity agreements provide that
parties to the indemnification agreements will be indemnified to the fullest
possible extent not prohibited by law against any and all expenses (including
any federal, state, local or foreign taxes imposed on the indemnitee as a result
of the actual or deemed receipt of any payments under the indemnification
agreement), judgments, fines, penalties and amounts paid in settlement (if such
settlement is approved in advance by the Registrant, which approval shall not be
unreasonably withheld), actually and reasonably incurred in relation to the
indemnitee's position as a director, officer, employee, agent or fiduciary of
the Registrant, or any subsidiary of the Registrant, or in relation to the
indemnitee's service at the request of the Registrant as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise or in relation to indemnitee's action or inaction
while serving in such a capacity. The Registrant will not be obligated pursuant
to the indemnity agreements or advance expenses to an indemnified party with
respect to proceedings or claims initiated by the indemnified party and not by
way of defense, counterclaim or crossclaim, except with respect to proceedings
specifically authorized by its Board of Directors or brought to enforce a right
to indemnification under the indemnity agreement, its Bylaws or any statute or
law. Under the agreements, the Registrant is not obligated to indemnify the
indemnified party (1) for any expenses incurred by the indemnified party with
respect to any proceeding instituted by the indemnified party to enforce or
interpret the agreement, if a court of competent jurisdiction determines that
each of the material assertions made by the indemnified party in such proceeding
was not made in good faith or was frivolous; (2) for any amounts paid in
settlement of a proceeding unless the Registrant consents to such settlement;
(3) with respect to any proceeding brought by the Registrant against the
indemnified party for willful misconduct, unless a court determines that each of
such claims was not made in good faith or was frivolous; (4) on account of any
suit in which judgment is rendered against the indemnified party for an
accounting of profits made from the purchase or sale by the indemnified party of
securities of the Registrant pursuant to the provisions of (S) 16(b) of the
Securities Exchange Act of 1934 and related laws; (5) on account of the
indemnified party's conduct which is finally adjudged to have been knowingly
fraudulent or deliberately dishonest, or to constitute willful misconduct or a
knowing violation of the law; (6) an account of any conduct from which the
indemnified party derived an improper personal benefit; (7) on account of
conduct the indemnified party believed to be contrary to the best interests of
the Registrant or its stockholders; (8) on account of conduct that constituted a
breach of the indemnified party's duty of loyalty to the Registrant or its
stockholders; or (9) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
The indemnification provision in the Certificate of Incorporations,
Bylaws and the indemnification agreements entered into between the Registrant
and its directors and executive officers, may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liabilities
arising under the 1933 Act.
The Registrant has obtained directors and officers insurance providing
indemnification for certain of its directors, officers, affiliates, partners or
employees for certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
Exhibit
Number Description
------- -------------------------------------------------------
3.3* Restated Certificate of Incorporation of Registrant.
3.5* Bylaws of Registrant.
5.1 Opinion of counsel as to legality of securities being
registered.
10.2* 1994 Flexible Incentive Stock Plan.
10.3* 1998 Stock Plan.
10.4* 2000 Stock Plan.
10.5 2000 Employee Stock Purchase Plan, as amended, and
related subscription agreement.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Auditors.
24.1 Power of Attorney (see page II-5).
--------------------
* Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (File No. 333-96217), filed with the
Securities and Exchange Commission on February 4, 2000.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(i) To file, during any period 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.
(ii) That, for the purpose of determining any liability under
the Securities Act, each 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.
(iii) 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 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.
II-3
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(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 law, the
Registrant's Restated Certificate of Incorporation, Bylaws or
indemnification agreements, 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 a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered
hereunder, 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 and will be governed by the final
adjudication of such issue.
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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 Menlo Park, State of California, on this 2nd day of
June, 2000.
NUANCE COMMUNICATIONS, INC.
By: /s/ Graham Smith
-----------------------------------------------
Graham Smith
Vice President,
Chief Financial Officer and
Assistant Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald A. Croen and Graham Smith, and
each of them, as his attorney-in-fact, with full power of substitution in each,
for him 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 said attorney-in-fact, or his
substitutes, may 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.
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Signature Title Date
---------------------------------------- ------------------------------------------ ---------------
<S> <C> <C>
/s/ Ronald Croen President and Chief Executive Officer June 2, 2000
----------------------------------------- (Principal Executive Officer)
Ronald Croen
/s/ Graham Smith Vice President, Finance, Chief Financial June 2, 2000
----------------------------------------- Officer and Assistant Secretary (Principal
Graham Smith Financial Officer and Accounting Officer)
/s/ Yogen Dalal Director and Chairman of the Board June 2, 2000
-----------------------------------------
Dr. Yogen Dalal
/s/ Curtis Carlson Director June 2, 2000
-----------------------------------------
Dr. Curtis Carlson
/s/ Vinton Cerf Director June 2, 2000
-----------------------------------------
Dr. Vinton Cerf
/s/ Irwin Federman Director June 2, 2000
-----------------------------------------
Irwin Federman
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Signature Title Date
----------------------------------------- ----------------- ----------------
<S> <C> <C>
/s/ Alan Herzig Director June 2, 2000
-----------------------------------------
Alan Herzig
/s/ Gary Morgenthaler Director June 2, 2000
-----------------------------------------
Gary Morgenthaler
/s/ Philip Quigley Director June 2, 2000
-----------------------------------------
Philip Quigley
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INDEX TO EXHIBITS
Exhibit
Number Description
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3.3* Restated Certificate of Incorporation of Registrant.
3.5* Bylaws of Registrant.
5.1 Opinion of counsel as to legality of securities being
registered.
10.2* 1994 Flexible Incentive Stock Plan.
10.3* 1998 Stock Plan.
10.4* 2000 Stock Plan.
10.5 2000 Employee Stock Purchase Plan, as amended, and related
subscription agreement.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Auditors.
24.1 Power of Attorney (see page II-4).
___________________________________
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-96217), filed with the Securities and Exchange
Commission on February 4, 2000.
