<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): APRIL 25, 1996
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NETSCAPE COMMUNICATIONS CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 0-26310 94-3200270
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification Number)
incorporation)
501 EAST MIDDLEFIELD ROAD, MOUNTAIN VIEW, CALIFORNIA 94043
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 254-1900
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N/A
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(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
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On April 25, 1996 (the "Closing Date"), pursuant to an Agreement and Plan
of Reorganization dated as of January 31, 1996 (the "Reorganization Agreement"),
among Netscape Communications Corporation ("Netscape"), NSCP Corporation, a
California corporation and wholly-owned subsidiary of Netscape ("Merger Sub"),
and InSoft, Inc., a Delaware corporation ("InSoft"), Netscape acquired InSoft by
means of a statutory merger (the "Merger") of Merger Sub into InSoft, with
InSoft remaining as the surviving corporation in the Merger. As a result of the
Merger, InSoft became a wholly-owned subsidiary of Netscape. Merger Sub was
formed solely for the purpose of effecting the Merger. Netscape is a leading
provider of open client and server software, commercial applications and
development tools that link people and information over the Internet and private
transmission control protocol / Internet protocol networks, or so-called
"Intranets." Using Netscape's software, organizations can extend their internal
information systems and enterprise applications to geographically dispersed
facilities including remote offices and mobile employees. In addition,
Netscape's products allow individuals and organizations to execute transactions
across the Internet, such as the buying and selling of information, software,
merchandise and publications.
Pursuant to the Reorganization Agreement, an aggregate of 1,956,229 shares
of Netscape Common Stock were issued in exchange for (i) all of the issued and
outstanding capital stock of InSoft and (ii) all unexpired and unexercised
vested stock options to acquire capital stock of InSoft. Each outstanding share
of InSoft capital stock was converted into the right to receive a number of
shares of Netscape Common Stock equal to 1,956,229 divided by the sum of (i) the
total number of shares of InSoft capital stock outstanding on the Closing Date,
and (ii) the total number of shares of InSoft capital stock subject to unexpired
and unexercised vested options and warrants to purchase InSoft capital stock
outstanding on the Closing Date (the "Exchange Ratio"). All unvested options
to purchase InSoft capital stock outstanding immediately prior to the Merger
were assumed by Netscape. Each such option became exercisable for that number of
shares of Netscape Common Stock equal to the product of (a) the Exchange Ratio
and (b) the number of shares of InSoft capital stock subject to such option
immediately prior to the Merger. The per share exercise price of each such
option was adjusted to equal the quotient of (x) the per share exercise price of
such option immediately prior to the Merger and (y) the Exchange Ratio, such
that the aggregate exercise price of each option assumed by Netscape remained
equal to the aggregate exercise price of each such option warrant immediately
prior to the Merger.
The consideration paid by Netscape for the outstanding capital stock of
InSoft pursuant to the Reorganization Agreement was determined pursuant to arms'
length negotiations and took into account various factors concerning the
valuation of the business of InSoft, including public market valuations of
comparable companies, discounted cash flows for InSoft, and multiples paid in
recent acquisitions of comparable companies.
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InSoft provides network-based communications and collaborative multimedia
software. Netscape intends to integrate InSoft's technology into future
versions of Netscape products.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
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(a) Financial Statements of InSoft.
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The Financial Information required to be filed pursuant to Item 7(a) of
Form 8-K was not available at the time of filing of this Current Report on Form
8-K and will be filed on a Form 8-K/A as soon as practicable, but in no event
later than 60 days after the date this Form 8-K is required to be filed.
(b) Pro Forma Financial Information.
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The Pro Forma Financial Information required to be filed pursuant to
Item 7(b) of Form 8-K was not available at the time of filing of this Current
Report on Form 8-K and will be filed on a Form 8-K/A as soon as practicable, but
in no event later than 60 days after the date this Form 8-K is required to be
filed.
(c) Exhibits.
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2.1* Agreement and Plan of Reorganization dated as of January 31,
1996, with exhibits.
2.2 Agreement of Merger dated April 25, 1996, filed with the
Secretaries of State of the States of Delaware and California on
April 25, 1996.
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* Incorporated by reference to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: May 7, 1996 NETSCAPE COMMUNICATIONS CORPORATION
/s/ Peter L. S. Currie
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Peter L. S. Currie
Vice President and Chief Financial Officer
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<PAGE>
Index to Exhibits
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<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Document Page
- ------- ---------------------------------------- ------------
<C> <S> <C>
2.1* Agreement and Plan of Reorganization
dated as of January 31, 1996, with
exhibits.
2.2 Agreement of Merger dated April 25,
1996, filed with the Secretary of State
of California on April 25, 1996.
</TABLE>
___________________
* Incorporated by reference to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995.
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<PAGE>
AGREEMENT OF MERGER
OF
NSCP CORPORATION
AND
INSOFT, INC.
THIS AGREEMENT OF MERGER is dated April 25, 1996 ("MERGER AGREEMENT"), by
and among NSCP CORPORATION ("SUB"), a California corporation and a wholly owned
subsidiary of NETSCAPE COMMUNICATIONS CORPORATION, a Delaware corporation
("NETSCAPE"), and INSOFT, INC., a Delaware corporation ("INSOFT" or the
"SURVIVING CORPORATION"). Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the Agreement and
Plan of Reorganization (as defined below).
RECITALS
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A. InSoft was incorporated in the State of Delaware on September 4, 1991
and on the date hereof has (i) 1,283,526 shares of its Common Stock outstanding
and (ii) 499,683 shares of its Series A Preferred Stock outstanding, 500,000
shares of its Series B Preferred Stock outstanding and 166,667 shares of its
Series C Preferred Stock outstanding ("INSOFT COMMON"). All outstanding shares
of InSoft's Series A, Series B and Series C Preferred Stock will convert into
shares of Common Stock immediately prior to the filing of the Merger Agreement.
B. Sub was incorporated in the State of California on January 25, 1996 and
on the date hereof has 1,000 shares of its Common Stock outstanding, all of
which are owned by Netscape.
C. Netscape, Sub and InSoft have entered into an Agreement and Plan of
Reorganization dated January 31, 1996 (the "AGREEMENT AND PLAN OF
REORGANIZATION") providing for certain representations, warranties, covenants
and agreements in connection with the transactions contemplated hereby. This
Merger Agreement and the Agreement and Plan of Reorganization are intended to be
construed together to effectuate their purpose.
D. The Boards of Directors of InSoft, Netscape and Sub deem it advisable
and in their mutual best interests and in the best interests of the shareholders
of InSoft and Sub, respectively, that InSoft be acquired by Netscape through a
merger ("MERGER") of Sub with and into InSoft.
E. The Boards of Directors of Netscape, Sub and InSoft and the shareholders
of Sub and InSoft have approved the Merger.
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AGREEMENTS
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The parties hereto hereby agree as follows:
1. Sub shall be merged with and into InSoft, and InSoft shall be the
surviving corporation (the "SURVIVING CORPORATION").
2. The Merger shall become effective at such time (the "EFFECTIVE TIME" of
the Merger) as this Merger Agreement and the officers' certificates of InSoft
and Sub are filed with the Secretary of State of the State of Delaware pursuant
to Section 252 of the General Corporation Law of the State of Delaware ("DGCL").
3. Upon the Effective Time of the Merger, each outstanding share of InSoft
Common shall be converted automatically into and exchanged for .753808871 of a
share of Netscape Common Stock. All shares of InSoft Common that are owned
directly or indirectly by InSoft, Netscape, Sub or any other subsidiary of
Netscape shall be canceled, and no securities of Netscape or other consideration
shall be delivered in exchange therefor. Those shares of Netscape Common Stock
to be issued as a result of the Merger are referred to herein as the "NETSCAPE
SHARES."
4. Any Dissenting Shares shall not be converted into Netscape Common Stock
but shall be converted into the right to receive such consideration as may be
determined to be due with respect to such Dissenting Shares pursuant to Section
262 of the DGCL. If after the Effective Time any Dissenting Shares shall lose
their status as Dissenting Shares, then as of the occurrence of the event which
causes the loss of such status, such shares shall be converted into Netscape
Common Stock in accordance with Section 3.
5. Notwithstanding any other term or provision hereof but subject to the
proviso in the first sentence of Section 3, no fractional shares of Netscape
Common Stock shall be issued, but in lieu thereof each holder of shares of
InSoft Common who would otherwise, but for rounding as provided herein, be
entitled to receive a fraction of a share of Netscape Common Stock shall receive
from Netscape an amount of cash equal to the per share market value of Netscape
Common Stock (based on the average of the closing sales prices of Netscape
Common Stock for the ten business days immediately preceding the Effective Time
of the Merger, as quoted on the Nasdaq National Market on the Closing Date and
as reported in The Wall Street Journal) multiplied by the fraction of a share of
Netscape Common Stock to which such holder would otherwise be entitled. The
fractional share interests of each InSoft shareholder shall be aggregated, so
that no InSoft shareholder shall receive cash in an amount greater than the
value of one full share of Netscape Common Stock.
6. The conversion of InSoft Common as provided by this Merger Agreement
shall occur automatically at the Effective Time of the Merger without action by
the holders thereof. Each holder of InSoft Common shall thereupon be entitled
to receive shares of Netscape Common Stock in accordance with Section 3. Such
shareholder shall receive certificates that represent that number of shares of
Netscape Common Stock in accordance with the following procedures:
(a) As soon as practicable after the Effective Time of the Merger,
Netscape shall make available for exchange in accordance with Section 3, through
such reasonable procedures as Netscape may adopt, the shares of Netscape Common
Stock issuable pursuant to Section 3 in exchange for outstanding shares of
InSoft Common Stock or InSoft Preferred Stock.
(b) Within 15 days after the Effective Time of the Merger, the
Exchange Agent (as defined in Section 2.2 of the Agreement and Plan of
Reorganization) shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time of the Merger
represented outstanding shares of InSoft Capital Stock (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the certificates shall pass, only upon delivery of the
certificates to the Exchange Agent and
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<PAGE>
shall be in such form and have such other provisions as Netscape may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
certificates in exchange for certificates evidencing Netscape Common Stock.
Upon surrender of a certificate for cancellation to the Exchange Agent or to
such other agent or agents as may be appointed by Netscape, together with such
letter of transmittal, duly executed, the holder of such certificate shall be
entitled to receive in exchange therefor the number of shares of Netscape Common
Stock to which the holder of InSoft Capital Stock is entitled pursuant to
Section 3 hereof and is represented by the certificate so surrendered, along
with a check representing the value of any fractional shares as defined pursuant
to Section 5 hereof, less such number of shares to be deposited in an escrow
fund on such holder's behalf pursuant to Article VIII of the Agreement and Plan
of Reorganization. The certificate so surrendered shall forthwith be canceled.
As soon as practicable after the Effective Time, and subject to and in
accordance with the provisions of Article VIII of the Agreement and Plan of
Reorganization, Netscape shall cause to be distributed to the Escrow Agent (as
defined in Article VIII of the Agreement and Plan of Reorganization) a
certificate or certificates representing 184,654 shares of Netscape Common Stock
which shall be registered in the name of the Escrow Agent as nominee for the
holders of Certificates canceled pursuant to this Section 6(b). Such shares
shall be beneficially owned by such holders and shall be held in escrow and
shall be available to compensate Netscape for certain damages as provided in
Article VIII of the Agreement and Plan of Reorganization. To the extent not
used for such purposes, such shares shall be released, all as provided in
Article VIII of the Agreement and Plan of Reorganization. In the event of a
transfer of ownership of InSoft Capital Stock which is not registered in the
transfer records of InSoft, Netscape Common Stock may be delivered to a
transferee if the certificate representing such InSoft Capital Stock is
presented to Netscape and accompanied by all documents required to evidence and
effect such transfer and to evidence that any applicable stock transfer taxes
have been paid. Until surrendered as contemplated by this Section 6, each
certificate shall be deemed at any time after the Effective Time of Merger, for
all corporate purposes, other than the payment of dividends, to evidence the
ownership of the number of full shares of Netscape Common Stock into which such
shares of InSoft Capital Stock shall have been so converted and the right to
receive an amount in cash in lieu of the issuance of any fractional shares in
accordance with Section 5 hereof.
(c) No dividends on the Netscape Shares shall be paid to the holder of
any unsurrendered certificate until the holder of record of such certificate
shall surrender such certificate. Subject to the effect, if any, of applicable
escheat and other laws, following surrender of any certificate, there shall be
delivered to the person entitled thereto, without interest, the amount of
dividends theretofore paid with respect to the Netscape Shares so withheld as of
any date subsequent to the Effective Time of the Merger and prior to such date
of delivery.
(d) All Netscape Shares delivered upon the surrender for exchange of
shares of InSoft Capital Stock in accordance with the terms hereof shall be
deemed to have been delivered in full satisfaction of all rights pertaining to
such InSoft Capital Stock. There shall be no further registration of transfers
on the stock transfer books of the Surviving Corporation of the shares of InSoft
Capital Stock that were outstanding immediately prior to the Effective Time of
the Merger. If, after the Effective Time of the Merger, certificates are
presented to Netscape for any reason, they shall be canceled and exchanged as
provided in this Section 6.
7. At the Effective Time of the Merger, the separate existence of Sub
shall cease, and InSoft shall succeed, without other transfer, to all of the
rights and properties of Sub and shall be subject to all the debts and
liabilities thereof in the same manner as if InSoft had itself incurred them.
All rights of creditors and all liens upon the property of each corporation
shall be preserved unimpaired, provided that such liens upon property of Sub
shall be limited to the property affected thereby immediately prior to the
Effective Time of the Merger.
8. At the Effective Time of the Merger, each share of Sub stock that is
outstanding immediately prior to the Effective Time of the Merger shall be
converted into one share of common stock of the Surviving Corporation.
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9. This Merger Agreement is intended as a plan of reorganization within the
meaning of Section 368 of the Internal Revenue Code of 1986, as amended.
10. The Bylaws of InSoft in effect immediately prior to the Effective Time
shall be the Bylaws of the Surviving Corporation unless and until amended or
repealed as provided by applicable law, the Certificate of Incorporation of the
Surviving Corporation and such Bylaws.
11. (a) Notwithstanding the approval of this Merger Agreement by the
shareholders of InSoft and Sub, this Merger Agreement may be terminated at any
time prior to the Effective Time of the Merger by mutual agreement of the Boards
of Directors of Netscape, InSoft and Sub.
(b) Notwithstanding the approval of this Merger Agreement by the
shareholders of InSoft and Sub, this Merger Agreement shall terminate forthwith
in the event that the Agreement and Plan of Reorganization shall be terminated
as therein provided.
(c) In the event of the termination of this Merger Agreement as
provided above, this Merger Agreement shall forthwith become void and there
shall be no liability on the part of InSoft, Netscape or Sub or their respective
officers or directors, except as otherwise provided in the Agreement and Plan of
Reorganization.
(d) This Merger Agreement may be signed in one or more counterparts,
each of which shall be deemed an original and all of which shall constitute one
agreement.
(e) This Merger Agreement may be amended by the parties hereto at any
time before or after approval hereof by the shareholders of InSoft and Sub, but,
after such approval, no amendments shall be made which by law require the
further approval of such shareholders without obtaining such approval. This
Merger Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Merger Agreement as of
the date first written above.
NSCP CORPORATION
By: /s/ Peter L.S. Currie
----------------------
Peter L.S. Currie, Vice President
and Chief Financial Officer
By: /s/ James N. Strawbridge
-------------------------
James N. Strawbridge, Asst. Secretary
INSOFT, INC.
By: /s/ Daniel L. Harple, Jr.
--------------------------
Daniel L. Harple, Jr., President and Chief
Executive Officer
By: /s/ Scott J. Mumma
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Scott J. Mumma, Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
<PAGE>
OFFICERS' CERTIFICATE
OF
INSOFT, INC.
Daniel L. Harple, Jr., President, and Scott J. Mumma, Secretary, of InSoft,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware (the "CORPORATION"), do hereby certify:
1. That they are the duly elected, acting and qualified President and the
Secretary, respectively, of the Corporation.
2. There are two authorized classes of shares, consisting of 3,087,500
shares of Common Stock and 1,246,667 shares of Preferred Stock, of which 580,000
are designated "SERIES A PREFERRED STOCK," 500,000 are designated "SERIES B
PREFERRED STOCK" and 166,667 are designated "SERIES C PREFERRED STOCK." There
were 1,283,526 shares of Common Stock, 499,683 shares of Series A Preferred
Stock, 500,000 shares of Series B Preferred Stock and 166,667 shares of Series C
Preferred Stock outstanding and entitled to vote on the Agreement of Merger in
the form attached. Subsequent to the vote of the stockholders of the
Corporation referred to in paragraph 4 below and prior to the filing of the
Agreement of Merger, all of the outstanding shares of the Corporation's
Preferred Stock were converted into Common Stock of the Corporation.
3. The Agreement of Merger in the form attached was duly approved by the
board of directors of the Corporation in accordance with the General Corporation
Law of the State of Delaware.
4. Approval of the Agreement of Merger by the holders of at least 51% of
the outstanding shares of the Common Stock and 51% of the outstanding shares of
Preferred Stock was required. The percentage of the outstanding shares of each
class of the Corporation's shares entitled to vote on the Agreement of Merger
which voted to approve the Agreement of Merger equaled or exceeded the vote
required.
Each of the undersigned declares under penalty of perjury that the
statements contained in the foregoing certificate are true of their own
knowledge. Executed in Palo Alto, California on April 25, 1996.
/s/ Daniel L. Harple, Jr.
--------------------------
Daniel L. Harple, Jr., President and Chief Executive
Officer
/s/ Scott J. Mumma
-------------------
Scott J. Mumma, Secretary
<PAGE>
OFFICERS' CERTIFICATE
OF
NSCP CORPORATION
Peter L.S. Currie, Vice President and Chief Financial Officer, and James N.
Strawbridge, Assistant Secretary, of NSCP Corporation, a corporation duly
organized and existing under the laws of the State of California (the
"CORPORATION"), do hereby certify:
1. That they are the duly elected, acting and qualified Vice President and
Chief Financial Officer, and the Assistant Secretary, respectively, of the
Corporation.
2. There is only one authorized class of shares, consisting of 1,000
shares of Common Stock, and the total number of issued and outstanding shares is
1,000.
3. The Agreement of Merger in the form attached was approved by the board
of directors and the shareholder of the Corporation in accordance with the
General Corporation Law of State of California.
4. The shareholder approval was by the holder of 100% of the outstanding
shares of the Corporation.
5. No vote of the stockholders of Netscape Communications Corporation (the
sole shareholder of the Corporation and the parent of the Corporation) was
required.
Each of the undersigned declares under penalty of perjury that the
statements contained in the foregoing certificate are true of their own
knowledge. Executed in Mountain View, California, on April 17, 1996.
/s/ Peter L.S. Currie
----------------------
Peter L.S. Currie, Vice President and Chief
Financial Officer
/s/ James N. Strawbridge
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James N. Strawbridge, Assistant Secretary
