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As filed with the Securities and Exchange Commission on April 26, 1996
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
NOVELL, INC.
(Exact Name of Registrant as specified in its charter)
DELAWARE 87-0393339
(State of Incorporation) (I.R.S. Employer
Identification Number)
1555 NORTH TECHNOLOGY WAY
OREM, UT 84057
(Address, including zip code, of
Registrant's principal executive offices)
NOVELL, INC. 1989 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
DAVID R. BRADFORD, ESQ.
SENIOR VICE PRESIDENT, GENERAL
COUNSEL AND CORPORATE SECRETARY
NOVELL, INC.
1555 NORTH TECHNOLOGY WAY
OREM, UT 84057
(801) 222-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
Tor R. Braham Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Title of Amount Maximum Proposed Maximum Amount of
Securities to To Be Offering Price Aggregate Registration
Be Registered Registered Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $0.10 par value
- - Upon exercise of options
under Novell, Inc. 1989
Employee Stock Purchase
Plan 2,683,398 $12,875(1) $34,548,749.25(1) $11,914.00
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c), on the basis of the average of
the high and low prices reported in the Nasdaq National Market System on
April 23, 1996, which average was $12.875.
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PART II
INFORMATION REQUIRED IN THE 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 (the "Commission"):
1. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated April 3,
1985, and the description of the Registrant's Preferred Shares
Rights Plan and the Series A Junior Participating Preferred Shares
issuable thereunder contained in the Registration Statement on
Form 8-A dated December 12, 1988, 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 descriptions.
2. The Registrant's Annual Report on Form 10-K for the year ended
October 28, 1995, filed pursuant to Section 13(a) of the Exchange
Act.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended January 27, 1996, filed pursuant to Section 13 of the
Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act 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.
Counsel for the Registrant, Wilson Sonsini Goodrich & Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304, has
rendered an opinion to the effect that the Common Stock offered hereby will,
when issued in accordance with the Registrant's 1989 Employee Stock Purchase
Plan, be legally and validly issued, fully paid and nonassessable. Larry W.
Sonsini, a member of such law firm, is a director of the Registrant and
benificially owns 46,600 shares of common stock (including exercisable options)
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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 "Securities
Act"). Further, in accordance with the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation eliminates the liability of a director
of the Registrant to the Registrant and its stockholders for monetary damages
for breaches of such director's fiduciary duty of care in certain instances.
Article VII of the Bylaws of the Registrant provides for indemnification of
certain agents to the maximum extent permitted by the Delaware General
Corporation Law. Persons covered by this indemnification provision include any
current or former directors, officers, employees and other agents of the
Registrant, as well as persons who serve at the request of the Registrant as
directors, officers, employees or agents of another enterprise.
In addition, the Registrant has entered into contractual agreements
with certain directors and officers of the Registrant designated by the Board to
indemnify such individuals to the full extent permitted by law. These agreements
also resolve certain procedural and substantive matters that are not covered, or
are covered in less detail, in the Bylaws or by the Delaware General Corporation
Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Number Document
- -------- ----------------------
<S> <C>
4.1* Novell, Inc. 1989 Employee Stock Purchase Plan, together with forms of Subscription Agreement
and withdrawal Agreement thereunder.
4.2* Summary memorandum of the Novell, Inc. 1989 Employee Stock Purchase Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati with respect to the securities being registered.
23.1.1 Consent of Independent Auditors (see page II-7).
23.1.2 Consent of Independent Auditors (see page II-8).
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
</TABLE>
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* Incorporated by reference to exhibit filed with the Registrant's
Registration Statement on Form S-8 (File No. 33-31299) filed on
September 28, 1989.
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.
(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.
(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 provisions described in Item 6 hereof, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification
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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 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 Provo, State of Utah, on April 26, 1996.
NOVELL, INC.
By: /s/ Robert J. Frankenberg
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Robert J. Frankenberg
Chairman of the Board, President,
Chief Executive Officer and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Frankenberg and David R.
Bradford, 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 attorney-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, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------- --------------------------------------- ---------------
<S> <C> <C>
/s/ Robert J. Frankenberg Chairman of the Board, President, April 26, 1996
- --------------------------------------- Chief Executive Officer and Director
Robert J. Frankenberg (Principal Executive Officer)
/s/ James R. Tolonen Executive Vice President and Chief April 26, 1996
- --------------------------------------- Financial Officer (Principal Financial
James R. Tolonen Officer)
/s/ Stephen C. Wise Senior Vice President, Finance (Chief April 26, 1996
- --------------------------------------- Accounting Officer)
Stephen C. Wise
/s/ Alan C. Ashton Director April 26, 1996
- ---------------------------------------
Alan C. Ashton
/s/ Elaine R. Bond Director April 26, 1996
- ---------------------------------------
Elaine R. Bond
/s/ Hans-Werner Hector Director April 26, 1996
- ---------------------------------------
Hans-Werner Hector
/s/ Jack L. Messman Director April 26, 1996
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Jack L. Messman
/s/ Larry W. Sonsini Director April 26, 1996
- ---------------------------------------
Larry W. Sonsini
/s/ Ian R. Wilson Director April 26, 1996
- ---------------------------------------
Ian R. Wilson
/s/ John A. Young Director April 26, 1996
- ---------------------------------------
John A. Young
</TABLE>
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EXHIBIT 23.1.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Employee Stock Purchase Plan of Novell, Inc. of
our reports dated December 12, 1995 with respect to the consolidated financial
statements of Novell, Inc. incorporated by reference in the Annual Report (Form
10-K) for the year ended October 28, 1995 and the related financial statement
schedule included therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
April 26, 1996
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Exhibit 23.1.2
CONSENT OF Price Waterhouse LLP
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-8 of Novell, Inc.
of our report dated March 22, 1994 appearing on page 17 of the Form 10-K for
the year ended October 28, 1995.
Price Waterhouse LLP
Salt Lake City, Utah
April 26, 1996
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ----------- ----------------------------------------------------------------------
<S> <C> <C>
4.1* Novell, Inc. 1989 Employee Stock Purchase Plan, together with forms of
Subscription Agreement and Withdrawal Agreement thereunder.
4.2* Summary Memorandum of the Novell, Inc. 1989 Employee Stock
Purchase Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati with respect to the
securities being registered.
23.1.1 Consent of Ernst & Young LLP, and Price Waterhouse LLP, Independent Auditors (see page II-7).
23.1.2 Consent of Price Waterhouse LLP, Independent Auditors (see page II-8).
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
</TABLE>
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* Incorporated by reference to exhibit filed with the Registrant's
Registration Statement on Form S-8 (File No. 33-31299) filed on
September 28, 1989.
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EXHIBIT 5.1
April 26, 1996
Novell, Inc.
1555 North Technology Way
Orem, Utah, 84057
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 April 26, 1996, in
connection with the registration under the Securities Act of 1933, as amended,
of 2,683,398 shares of your Common Stock (the "Shares") reserved for issuance
under the 1989 Novell, Inc. Employee Stock Purchase Plan (the "Plan"). As your
legal counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and
issuance of said shares.
It is our opinion that the Shares, when issued and sold in the manner
referred to in the Plan and the agreements that accompany the Plan, and in
accordance with the Company's Restated Certificate of Incorporation, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said
Registration Statement and further consent to the use of our name wherever
appearing in said Registration Statement, including the Prospectus constituting
a part thereof, and amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
