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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 22, 1997
REGISTRATION STATEMENT NO. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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NETSCAPE COMMUNICATIONS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 94-3200270
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
501 EAST MIDDLEFIELD ROAD, MOUNTAIN VIEW, CALIFORNIA 94043
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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1995 STOCK PLAN
(FULL TITLE OF THE PLANS)
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ROBERTA R. KATZ
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
NETSCAPE COMMUNICATIONS CORPORATION
501 EAST MIDDLEFIELD ROAD
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 254-1900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
JAMES N. STRAWBRIDGE
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (2) PRICE (2) FEE
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<S> <C> <C> <C> <C>
Newly reserved under the
1995 Stock Plan (the "Plan") (1) 3,517,436 shares $ 34.59 $ 121,668,111.20 $36,869.09
Common Stock, $.0001 par value
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</TABLE>
(1) The Plan provides for an annual increase in the number of shares of the
Registrant's Common Stock reserved and available for issuance under the
Plan equal to 4% of the Registrant's Common Stock outstanding as of the
last business day preceding the first day of such fiscal year. Pursuant
to Rule 416(a), this Registration Statement shall also cover any
additional shares of the Registrant's Common Stock that becomes issuable
under the Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration that increases the number of the Registrant's
outstanding shares of Common Stock.
(2) Estimated solely for the purpose of computing the registration fee
required by Section 6(b) of the Securities Act and computed pursuant to
Rule 457(c) under the Securities Act based upon the average of the high
and low prices of the Common Stock on October 17, 1997, as reported on
the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION.
The Registrant will send or give the documents containing the information
specified in this Item 1 to employees, officers, directors or others as
specified by Rule 428(b)(1). In accordance with the rules and regulations of
the Securities and Exchange Commission (the "Commission") and the
instructions to Form S-8, the Registrant is not filing such documents with
the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Registrant will send or give the documents containing the information
specified in this Item 2 to employees, officers, directors or others as
specified by Rule 428(b)(1). In accordance with the rules and regulations of
the Commission and the instructions to Form S-8, the Registrant is not filing
such documents with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Registrant are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1997 and June 30, 1997 filed pursuant to
the Exchange Act, and the Current Report on Form 8-K filed on July
23, 1997; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on June 23,
1995, as amended by the Registrant's Registration Statement on Form
8-A/A filed on August 4, 1995 (File No. 0-26310).
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All documents subsequently filed with the Commission 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 hereunder have been sold or which deregisters all securities then
remaining unsold under this Registration Statement, 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. Any statement contained
herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such earlier
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Amended and Restated Certificate of Incorporation includes a
provision that eliminates the personal liability of its directors for
monetary damages for breach or alleged breach of their duty of care. In
addition, as permitted by Section 145 of the Delaware General Corporation
Law, the Registrant's Amended and Restated Bylaws provide that: (i) the
Registrant shall indemnify its directors and officers and persons serving in
such capacities in other business enterprises (including, for example, the
Registrant's subsidiaries) at the Registrant's request, to the fullest extent
permitted by Delaware law, including in those circumstances in which
indemnification would otherwise be discretionary; (ii) the Registrant may, in
its discretion, indemnify employees and agents in those circumstances where
indemnification is not required by law; (iii) the Registrant is required to
advance expenses, as incurred, to its directors and officers in connection
with defending a proceeding (except that it is not required to advance
expenses to a person against whom the Registrant brings a claim for breach of
the duty of loyalty, failure to act in good faith, intentional misconduct,
knowing violation of law or deriving an improper personal benefit); (iv) the
rights conferred in the Amended and Restated Bylaws are not exclusive, and
the Registrant is authorized to enter into indemnification agreements with
its directors, officers and employees; and (v) the Registrant may not
retroactively amend the Bylaw provisions in a way that is adverse to such
directors, officers and employees.
The Registrant's policy is to enter into indemnification agreements with
each of its directors and officers that provide the maximum indemnity allowed
by Section 145 of the Delaware General Corporation Law and the Amended and
Restated Bylaws, as well as certain additional procedural protections. In
addition, the indemnification agreements provide that directors and officers
will be
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indemnified to the fullest possible extent not prohibited by law against all
expenses (including attorney's fees), judgments, fines, penalties and
settlement amounts paid or incurred by them in an action or proceeding,
including any action by or in the right of the Registrant, arising out of
such person's services as a director or officer of the Registrant, any
subsidiary of the Registrant or any other company or enterprise to which such
person provides services at the request of the Registrant. The
indemnification agreements do not require the Registrant to indemnify or
advance expenses to an indemnified party with respect to proceedings or
claims initiated by the indemnified party and not by way of defense, except
with respect to proceedings specifically authorized by the Board of Directors
or brought to enforce a right to indemnification under the indemnification
agreements, the Registrants's Amended and Restated Bylaws or any statute or
law. Under the indemnification agreements and Sections 102 and 145 of the
Delaware General Corporation Law, the Registrant is not obligated to
indemnify the indemnified party (i) for any expenses incurred by the
indemnified party with respect to any proceeding instituted by the
indemnified party to enforce or interpret the indemnification agreements, 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; (ii) for any amounts paid in settlement of a
proceeding unless the Registrant consents to such settlement; (iii) for any
expenses incurred by the indemnified party with respect to any proceeding
instituted by the Registrant to enforce or interpret the indemnification
agreements if a court determines that each of such defenses asserted by the
indemnified party in such action was made in bad faith or was frivolous; (iv)
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 Section 16(b) of the Securities Exchange Act and related laws; (v) on
account of the indemnified party's acts or omissions which are finally
adjudged to have been knowingly fraudulent or deliberately dishonest, or to
constitute willful misconduct or a knowing violation of the law; (vi) on
account of any conduct from which the indemnified party derived an improper
personal benefit; (vii) on account of conduct the indemnified party believed
to be contrary to the best interests of the Registrant or its stockholders;
(viii) on account of conduct that constituted a breach of the indemnified
party's duty of loyalty to the Registrant or its stockholders; or (ix) if a
final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful.
The indemnification provisions in the Amended and Restated Bylaws and the
indemnification agreements entered into between the Registrant and its
directors and officers may be sufficiently broad to permit indemnification of
the Registrant's directors and officers for liabilities arising under the
Securities Act of 1933.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. INDEX TO EXHIBITS.
Exhibit
Number Description of Document
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4.1 Specimen Certificate representing the Common Stock of the
Registrant (WHICH IS INCORPORATED HEREIN BY REFERENCE TO
EXHIBIT 4.1 TO REGISTRANT'S REGISTRATION STATEMENT ON FORM S-1
(FILE NO. 33-93862)).
4.2 Amended and Restated Certificate of Incorporation of
Registrant (WHICH IS INCORPORATED HEREIN BY REFERENCE TO
EXHIBIT 3.(i) TO THE REGISTRANT'S ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED 1995).
4.3 Amended and Restated Bylaws of Registrant (WHICH ARE
INCORPORATED HEREIN BY REFERENCE TO EXHIBIT 3.(ii) TO THE
REGISTRANT'S ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR
ENDED 1996).
4.4 1995 Stock Plan and related agreements (WHICH ARE INCORPORATED
HEREIN BY REFERENCE TO EXHIBIT 10.4 OF THE REGISTRANT'S 1995
S-1).
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (WHICH IS CONTAINED IN EXHIBIT 5.1).
24.1 Powers of Attorney (WHICH ARE INCLUDED AS PART OF THE
SIGNATURE PAGE OF THIS REGISTRATION STATEMENT).
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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:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) 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.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed
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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 of 1933 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 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 of 1933 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 Mountain View, State of California,
on this 21st day of October 1997.
NETSCAPE COMMUNICATIONS CORPORATION
By : /s/ PETER L.S. CURRIE
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Peter L.S. Currie,
Executive Vice President and
Chief Administrative Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James L. Barksdale, Roberta R. Katz
and Peter L.S. Currie jointly and severally, as such person's
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 or
her substitute or substitutes, may lawfully 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 date indicated.
Signatures Title Date
---------- ----- -----
/s/ JAMES L. BARKSDALE President, Chief Executive October 21, 1997
- ----------------------- Officer (PRINCIPAL EXECUTIVE
James L. Barksdale OFFICER) and Director
/s/ PETER L.S. CURRIE Executive Vice President and October 21, 1997
- ----------------------- Chief Administrative Officer
Peter L.S. Currie (PRINCIPAL FINANCIAL OFFICER)
/s/ NOREEN G. BERGIN Vice President and Corporate October 21, 1997
- ----------------------- Controller (PRINCIPAL
Noreen G. Bergin ACCOUNTING OFFICER)
/s/ JAMES H. CLARK Chairman of the Board of October 21, 1997
- ----------------------- Directors
James H. Clark
/s/ MARC L. ANDREESSEN Executive Vice President, October 21, 1997
- ----------------------- Products and Director
Marc L. Andreessen
Director October __, 1997
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Eric A. Benhamou
/s/ L. JOHN DOERR Director October 21, 1997
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L. John Doerr
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<PAGE>
/s/ JOHN E. WARNOCK Director October 21, 1997
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John E. Warnock
INDEX TO EXHIBITS
Exhibit
Number Description of Document
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4.1 Specimen Certificate representing the Common Stock of the
Registrant (WHICH IS INCORPORATED HEREIN BY REFERENCE TO
EXHIBIT 4.1 TO REGISTRANT'S REGISTRATION STATEMENT ON FORM S-1
(FILE NO. 33-93862)).
4.2 Amended and Restated Certificate of Incorporation of
Registrant (WHICH IS INCORPORATED HEREIN BY REFERENCE TO
EXHIBIT 3.(i) TO THE REGISTRANT'S ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED 1995).
4.3 Amended and Restated Bylaws of Registrant (WHICH ARE
INCORPORATED HEREIN BY REFERENCE TO EXHIBIT 3.(ii) TO THE
REGISTRANT'S ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR
ENDED 1996).
4.4 1995 Stock Plan and related agreements (WHICH ARE INCORPORATED
HEREIN BY REFERENCE TO EXHIBIT 10.4 OF THE REGISTRANT'S 1995
S-1).
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (WHICH IS CONTAINED IN EXHIBIT 5.1).
24.1 Powers of Attorney (WHICH ARE INCLUDED AS PART OF THE
SIGNATURE PAGE OF THIS REGISTRATION STATEMENT).
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EXHIBIT 5.1
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October 21, 1997
Netscape Communications Corporation
501 East Middlefield Road
Mountain View, California 94043
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Netscape Communications Corporation,
a Delaware corporation (the "Registrant"or "you"), with the Securities and
Exchange Commission on or about October 21, 1997, in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
3,517,436 shares of your Common Stock, $.0001 par value (the "Shares"),
reserved for issuance pursuant to the Registrant's 1995 Stock Plan (the
"Plan"). As your legal counsel, we have reviewed the actions proposed to be
taken by you in connection with the proposed sale and issuance of the Shares
by the Registrant under the Plan.
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 Plan, 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
nonassessable.
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 subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.1
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1995 Stock Plan of Netscape Communications
Corporation of our report dated January 24, 1997 with respect to the
consolidated financial statements of Netscape Communications Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
We also consent to the incorporation by reference therein of our report dated
March 27, 1997, with respect to the financial statement schedule of Netscape
Communications Corporation for the year ended December 31, 1996 included in
the Annual Report (Form 10-K) for 1996 filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
October 20, 1997
