As filed with the Securities and Exchange Commission on July XX, 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
NOVELL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 87-0393339
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1800 SOUTH NOVELL PLACE
PROVO, UT 84606
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
NONQUALIFIED STOCK OPTION PLAN
NOVELL, INC. 2000 STOCK PLAN
RYAN L. RICHARDS, ESQ.
ACTING GENERAL COUNSEL
NOVELL, INC.
1800 SOUTH NOVELL PLACE
PROVO, UT 84057
(801) 222-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copies to:
AARON J. ALTER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE REGISTERED SHARE PRICE REGISTRATION FEE
========================================= ========================= ====================== ====================== ==================
Common Stock
$0.10 par value issuable under:
----------------------------------------- ------------------------- ---------------------- ---------------------- ------------------
-Upon exercise of options under Novell,
Inc. 2000 Nonqualified Stock Option Plan 16,000,000 $9.188(1) $147,008,000.00(1) $40,868.08
----------------------------------------- ------------------------- ---------------------- ---------------------- ------------------
-Upon exercise of options under Novell,
Inc. 2000 Stock Plan 16,000,000 $9.188(1) $147,008,000.00(1) $40,868.08
========================================= ========================= ====================== ====================== ==================
Total 32,000,000 $294,016,000.00 $81,736.16
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(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 sale prices reported in the Nasdaq National Market
System on July 11, 2000, which average was $9.188.
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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 into 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 31, 1999, filed pursuant to Section 13(a) of the Exchange Act.
3. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended January 31, 2000 and April 30, 2000 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 indicating that
all securities offered have been sold or deregistering 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 2000 Nonqualified Stock Option
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 owns
6,600 shares of Registrant's Common Stock plus options to purchase an additional
205,000 shares of Registrant's Common Stock.
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
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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.
ITEM 8. EXHIBITS.
<TABLE>
<S> <C>
NUMBER DOCUMENT
4.1 Novell, Inc. 2000 Nonqualified Stock Option Plan and forms of agreement currently used
thereunder.
4.2 Novell, Inc. 2000 Stock Plan and forms of agreement currently used thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati with respect to the securities being registered.
23.1 Consent of Independent Auditors (Ernst & Young LLP).
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
</TABLE>
ITEM 9. UNDERTAKINGS.
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(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
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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 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 San Jose, California on July 12, 2000.
NOVELL, INC.
By: /S/ ERIC E. SCHMIDT
Eric E. Schmidt
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 hereby constitutes and appoints Eric E. Schmidt and Ryan L.
Richards and each of them acting individually, as his attorneys-in-fact, each
with full power of substitution, for him in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to any and all amendments
said Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<S> <C> <C>
SIGNATURE TITLE DATE
/S/ ERIC E. SCHMIDT Chairman of the Board, President, Chief July 12, 2000
-------------------- Executive Officer and Director (Principal
Eric E. Schmidt Executive Officer)
Senior Vice President and Chief Financial
/S/ DENNIS R. RANEY Officer (Principal Financial Officer and July 12, 2000
-------------------- Principal Accounting Officer)
Dennis R. Raney
/S/ JOHN A. YOUNG Vice Chairman of the Board and Director July 12, 2000
------------------
John A. Young
/S/ ELAINE R. BOND Director July 12, 2000
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Elaine R. Bond
/S/ HANS-WERNER HECTOR Director July 12, 2000
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Hans-Werner Hector
/S/ REED E. HUNDT Director July 12, 2000
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Reed E. Hundt
Director July 12, 2000
-------------------
William N. Joy
/S/ JACK L. MESSMAN Director July 12, 2000
--------------------
Jack L. Messman
/S/ RICHARD L. NOLAN Director July 12, 2000
---------------------
Richard L. Nolan
Director July 12, 2000
--------------------
Larry W. Sonsini
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT INDEX
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<S> <C>
EXHIBIT
NUMBER DESCRIPTION
4.1 Novell, Inc. 2000 Nonqualified Stock Option Plan and forms of agreement
currently used thereunder.
4.2 Novell, Inc. 2000 Stock Option Plan and forms of agreement currently used
thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati with respect to the securities
being registered.
23.1 Consent of Independent Auditors (Ernst & Young LLP) (see page II-7).
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
</TABLE>
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