<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1997
REGISTRATION NO. 333-29933
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NETSCAPE COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-3200270
(State of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
501 EAST MIDDLEFIELD ROAD
MOUNTAIN VIEW, CALIFORNIA 94043
(415) 254-1900
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ROBERTA R. KATZ
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
NETSCAPE COMMUNICATIONS CORPORATION
501 EAST MIDDLEFIELD ROAD
MOUNTAIN VIEW, CA 94043
(415) 254-1900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
LARRY W. SONSINI, ESQ.
JAMES N. STRAWBRIDGE, ESQ.
JON C. GONZALES, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(415) 493-9300
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
--------------------------
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 (the Securities Act), other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
- ------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- ------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SECTION
8(a), MAY DETERMINE.
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<PAGE>
PROSPECTUS
1,794,563 SHARES
NETSCAPE COMMUNICATIONS CORPORATION
COMMON STOCK
------------------
This Prospectus relates to the public offering, which is not being
underwritten, of up to 1,710,666 shares of Common Stock, par value $0.0001 per
share (the "Shares"), of Netscape Communications Corporation ("Netscape" or the
"Company"), which may be offered from time to time by certain stockholders of
the Company or by pledgees, donees, transferees or other successors in interest
that receive such shares as a gift, partnership distribution or other non-sale
related transfer (the "Selling Stockholders"). The Company will receive no part
of the proceeds of such sales. All of the Shares were originally issued by the
Company in connection with the Company's acquisitions of (i) Portola
Communications, Inc., a California corporation ("Portola"), by and through a
merger of a wholly-owned subsidiary of Netscape ("PCI Sub") with and into
Portola and (ii) DigitalStyle Corporation, a Delaware corporation
("DigitalStyle"), by and through a merger of a wholly-owned subsidiary of
Netscape ("DSC Sub") with and into DigitalStyle. In each acquisition, the Shares
were issued pursuant to an exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), provided by Rule 506
thereunder. The Shares are being registered by the Company pursuant to the
Agreement and Plan of Reorganization dated April 30, 1997 (the "PCI
Reorganization Agreement") by and among Netscape, PCI Sub and Portola, and the
Agreement and Plan of Reorganization dated April 25, 1997 (the "DSC
Reorganization Agreement," and collectively with the PCI Reorganization
Agreement the "Reorganization Agreements") by and among Netscape, DSC Sub and
DigitalStyle.
The Shares may be offered by the Selling Stockholders from time to time in
one or more transactions in the over-the-counter market at prices prevailing
therein, in negotiated transactions at such prices as may be agreed upon, or in
a combination of such methods of sale. See "Plan of Distribution." The price at
which any of the Shares may be sold, and the commissions, if any, paid in
connection with any such sale, are unknown and may vary from transaction to
transaction. The Company will pay all expenses incident to the offering and sale
of the Shares to the public other than any commissions and discounts of
underwriters, dealers or agents and any transfer taxes. See "Selling
Stockholders" and "Plan of Distribution."
The Company's Common Stock is listed on the Nasdaq National Market under the
symbol "NSCP." On July 22, 1997 the last sale price of the Company's Common
Stock was $44 1/2 per share.
--------------------------
THIS OFFERING INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" ON PAGE 4
HEREOF.
---------------------
The Securities and Exchange Commission (the "Commission") may take the view
that, under certain circumstances, the Selling Stockholders and any
broker-dealers or agents that participate with the Selling Stockholders in the
distribution of the Shares may be deemed to be "underwriters" within the meaning
of the Securities Act. Commissions, discounts or concessions received by any
such broker-dealer or agent may be deemed to be underwriting commissions under
the Securities Act. The Company and the Selling Stockholders have agreed to
certain indemnification arrangements. See "Plan of Distribution."
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS JULY 23, 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements and other information
with the Commission. Such reports, proxy and information statements and other
information may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
NW, Washington, D.C. 20549, and at the following Regional Offices of the
Commission: New York Regional Office, Seven World Trade Center, Suite 1300, New
York, New York 10048 and Chicago Regional Office, Northwest Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material may be obtained by mail at prescribed rates from the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, NW, Washington,
D.C. 20549. The Commission maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of the site is
http://www.sec.gov. The Common Stock of the Company is listed on the Nasdaq
National Market, and such reports, proxy and information statements and other
information concerning the Company may be inspected at the offices of Nasdaq
Operations, 1735 K Street, NW, Washington, D.C. 20006.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Company with the Commission under the
Securities Act. This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the shares of Common Stock offered
hereby, reference is hereby made to the Registration Statement. The Registration
Statement may be inspected at the public reference facilities maintained by the
Commission at the addresses set forth in the preceding paragraph. Statements
contained herein concerning any document filed as an exhibit are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company (File No.
0-26310) pursuant to the Exchange Act are hereby incorporated by reference in
this Prospectus:
(1) The Company's Annual Report on Form 10-K for the year ended December 31,
1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997;
(3) The Company's Proxy Statement for its Annual Meeting of Stockholders
held on May 30, 1997;
(4) All other documents filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a) above; and
(5) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Commission on June 23,
1995, as amended by the Company's Registration Statement on Form 8-A/A
filed on August 4, 1995.
All reports and other documents subsequently filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be deemed to be
incorporated by reference into this Prospectus, to the extent required, and to
be a part of this Prospectus from the date of filing of such reports and
documents.
Any statement contained in a document incorporated by reference into this
Prospectus shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
2
<PAGE>
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, upon written or oral request of such person, a copy of any or all of
the foregoing documents incorporated by reference into this Prospectus (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Requests for such documents
should be submitted in writing to Investor Relations, Netscape Communications
Corp., 501 East Middlefield Road, Mountain View, California 94043 or by
telephone at (415) 254-1900.
THE COMPANY
Netscape Communications Corporation ("Netscape" or the "Company") is a
leading provider of open software for linking people and information over
intranets and the Internet. Netscape develops, markets and supports a broad
suite of enterprise server and client software, development tools and commercial
applications to create a single shared communications platform for network-based
solutions. Netscape software is based on industry standard protocols and
therefore can be deployed across a variety of computer operating systems,
platforms and databases and can be interconnected with traditional client/
server applications. Using Netscape solutions, organizations can extend their
internal information systems and applications to geographically dispersed
facilities as well as to third party partners and customers. In addition,
Netscape's products allow individuals and organizations to access information
and to execute transactions across the Internet such as the buying and selling
of information, software, and other merchandise.
Netscape released its first product, Navigator 1.0, in December 1994, which
offered an easy to use graphical user interface for browsing the World Wide Web
(the "Web"). Since that time, the Company has become increasingly focused on
offering user and network services for use in intranet applications, including
features with email and graphics. The Company currently offers a broad suite of
software products and tools, targeted primarily at corporate intranets, for use
in a variety of information sharing, network management and commerce-enabling
applications.
To reach a diverse and worldwide customer base, Netscape delivers its suite
of products and services through multiple distribution channels. The Company
offers its products via a direct sales force, telesales, and the Internet as
well as through resellers such as original equipment manufacturers ("OEMs"),
value-added resellers (together with systems integrators referred to herein as
"VARs") and software retailers (collectively, "Resellers"). To accelerate the
market acceptance of the Company's products, Netscape has entered into reseller
agreements with leading telecommunications and technology companies with
complementary resources. These companies include, among others, Apple Computer,
Inc. ("Apple"), Compaq Computer Corporation ("Compaq"), Digital Equipment
Corporation ("Digital"), Hewlett-Packard Company ("Hewlett-Packard"),
International Business Machines Corporation ("IBM"), Informix Software, Inc.
("Informix"), Novell, Inc. ("Novell"), Olivetti SPA ("Olivetti"), Siemens AG
("Siemens"), Silicon Graphics, Inc. ("Silicon Graphics"), Sybase, Inc.
("Sybase") and Sun Microsystems, Inc. ("Sun").
RECENT EVENTS
On May 16, 1997, the Company announced that Navio Communications, Inc., a
unit of the Company ("Navio") had signed a definitive agreement to merge with
and into Network Computer, Inc., a wholly-owned subsidiary of Oracle Corporation
("NCI"). The new company, NCI, will create software for open standards-based
network computers and other Internet appliances that will be used in homes,
businesses and schools. Oracle will retain majority ownership in NCI and the
Company will retain an equity interest in the new company. Completion of the
merger is subject to governmental approval.
On June 2, 1997, the Company completed the formation of a joint venture,
Novonyx, Inc., with Novell, Inc. ("Novell"). Novell and the Company will
collaborate to integrate their products and networking services for networked
enterprise customers building intranet and extranet applications.
3
<PAGE>
On June 3, 1997 and June 13, 1997, the Company completed the acquisitions of
Portola Communications, Inc., a company with expertise in high-performance
messaging systems, and DigitalStyle Corporation, a Web graphics tool vendor,
respectively. The Company purchased all of the outstanding capital stock of each
of the corporations and assumed all of the outstanding options of such
corporations in exchange for approximately two million shares of the Company's
common stock. Both transactions will be accounted for as purchase transactions.
The Company anticipates that a substantial portion of the purchase price for
each acquisition will be written off as in-process research and development
during the Company's second fiscal quarter ending June 30, 1997.
FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS AND THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE CONTAIN
FORWARD-LOOKING STATEMENTS THAT ARE BASED ON CURRENT EXPECTATIONS, ESTIMATES AND
PROJECTIONS ABOUT THE COMPANY'S INDUSTRY, MANAGEMENT'S BELIEFS, AND ASSUMPTIONS
MADE BY MANAGEMENT. WORDS SUCH AS "ANTICIPATES," "EXPECTS," "INTENDS," "PLANS,"
"BELIEVES," "SEEKS," "ESTIMATES," VARIATIONS OF SUCH WORDS AND SIMILAR
EXPRESSIONS ARE INTENDED TO IDENTIFY SUCH FORWARD-LOOKING STATEMENTS. THESE
STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND ARE SUBJECT TO CERTAIN
RISKS, UNCERTAINTIES AND ASSUMPTIONS THAT ARE DIFFICULT TO PREDICT; THEREFORE,
ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE EXPRESSED OR FORECASTED IN ANY
SUCH FORWARD-LOOKING STATEMENTS. SUCH RISKS AND UNCERTAINTIES INCLUDE THOSE RISK
FACTORS AND SUCH OTHER UNCERTAINTIES NOTED IN THE DOCUMENTS INCORPORATED HEREIN
BY REFERENCE. THE COMPANY UNDERTAKES NO OBLIGATION TO UPDATE PUBLICLY ANY
FORWARD-LOOKING STATEMENTS, WHETHER AS A RESULT OF NEW INFORMATION, FUTURE
EVENTS OR OTHERWISE.
RISK FACTORS
The Shares offered hereby are speculative in nature and involve a high
degree of risk. The risk factors and other information contained in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996
and the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1997 are incorporated by reference herein. See "Incorporation of Certain
Documents by Reference." Such risk factors and other information should be
considered carefully before purchasing the offered Shares.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares. All proceeds from the sale of the Shares will be for the account of the
Selling Stockholders, as described below. See "Selling Stockholders" and "Plan
of Distribution" described below.
SELLING STOCKHOLDERS
The following table sets forth as of June 20, 1997, the name of each of the
Selling Stockholders, the number of shares of Common Stock that each such
Selling Stockholder beneficially owns as of such date, the number of shares of
Common Stock beneficially owned by each Selling Stockholder that may be offered
for sale from time to time by this Prospectus, the number of shares of Common
Stock to be beneficially owned by each such Selling Stockholder assuming the
sale of all the Common Stock offered hereby and the percentage of the
outstanding shares of the Company's Common Stock to be beneficially owned by
each Selling Stockholder after completion of the offering. Except as indicated,
none of the Selling Stockholders has held any position or office or had a
material relationship with the Company or any of its affiliates within the past
three years other than as a result of the ownership of the Company's Common
Stock. The Company may amend or supplement this Prospectus from time to time to
update the disclosure set forth herein.
4
<PAGE>
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
SHARES WHICH MAY OWNED
SHARES BE SOLD PURSUANT AFTER OFFERING(3)
BENEFICIALLY TO ------------------------
SELLING STOCKHOLDER OWNED(1) THIS PROSPECTUS(2) NUMBER PERCENT
- ---------------------------------------------------------- ----------- ------------------ ---------- ------------
<S> <C> <C> <C> <C>
Asset Management Associates 1996, L.P..................... 314,438 314,438 -- --
Abhay K. Bhushan.......................................... 94,023 94,023 -- --
Robert Carr............................................... 4,837 4,837 -- --
David H. Crocker.......................................... 18,543 18,543 -- --
GCW&F Partners II......................................... 4,031 4,031 -- --
Ram Paul Gupta............................................ 20,156 20,156 -- --
Naren & Vinita Gupta Living Trust......................... 4,837 4,837 -- --
Integral Capital Partners III, L.P........................ 3,928 3,928 -- --
Integral Capita Partners International III L.P............ 909 909 -- --
Raman Khanna.............................................. 8,062 8,062 -- --
Kevin L. Kluge............................................ 8,062 8,062 -- --
Andy M. Maas.............................................. 15,318 15,318 -- --
Raj Mohindra.............................................. 20,156 20,156 -- --
John Gardiner Myers....................................... 18,543 18,543 -- --
NEA Presidents Fund, L.P.................................. 6,772 6,772 -- --
NEA Ventures 1996, L.P.................................... 483 483 -- --
New Enterprise Associates VII, L.P........................ 193,500 193,500 -- --
Satish Ramachandran....................................... 96,924 96,924 -- --
Todd F. Richmond.......................................... 3,628 3,628 -- --
Roland J. Schemers III.................................... 12,093 12,093 -- --
Roy Shaibal............................................... 4,031 4,031 -- --
Stanford University....................................... 7,256 7,256 -- --
Greg Stikeleather......................................... 69,645 69,645 -- --
Bryan Yamamoto............................................ 31,733 31,733 -- --
Sz-hung Yang.............................................. 14,512 14,512 -- --
James R. Hamerly.......................................... 44,692 44,692 -- --
Richard K. Gessner........................................ 44,692 44,692 -- --
Peter S. Linss............................................ 44,692 44,692 -- --
Gregory P. Kostello....................................... 44,692 44,692 -- --
John F. Curry............................................. 44,736 44,736 -- --
Robert F. Kibble.......................................... 20,271 20,271 -- --
Keven Baxter.............................................. 750 750 -- --
John F. Nicholson......................................... 1,500 1,500 -- --
Enterprise Partners III, L.P.............................. 371,623 371,623 -- --
Enterprise Partners III Associates L.P.................... 32,315 32,315 -- --
Andreessen 1996 Charitable Remainder Trust Dated
2/1/96(4)............................................... 1,521,600 8,937 1,512,663 1.7%
Craig S. Andrews.......................................... 1,588 1,588 -- --
John A. Denniston......................................... 1,588 1,588 -- --
Michael S. Kagnoff........................................ 1,059 1,059 -- --
Comdisco Inc.............................................. 2,251 2,251 -- --
</TABLE>
- ------------------------
(1) The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Exchange Act, and the information is not
necessarily indicative of beneficial ownership for any other purpose. Under
such rule, beneficial ownership includes any shares as to which the
individual has sole or shared voting power or investment power and also any
shares which the individual has the right to acquire within 60 days of June
20, 1997 through the exercise of any stock option or other right.
5
<PAGE>
Unless otherwise indicated in the footnotes, each person has sole voting and
investment power (or shares such powers with his or her spouse) with respect
to the shares shown as beneficially owned.
(2) Does not include an aggregate of 152,757 shares of Common Stock beneficially
owned by the Selling Stockholders that have been deposited in escrow funds
pursuant to the Reorganization Agreements to secure the respective
indemnification obligations of the Selling Stockholders thereunder (the
"Escrowed Shares"). The Escrowed Shares will be released from the escrow
funds prior to June 3, 1998 for the Shares escrowed under the PCI
Reorganization Agreement and on or prior to June 13, 1998 for the Shares
escrowed under the DSC Reorganization Agreement, in each case only to the
extent that no claims have been made against the escrow funds. A number of
shares equivalent to the Escrowed Shares have been included in this
Registration Statement, but they are not included in this column of the
table. An amended prospectus will be filed to reflect any change in the
number of shares offered by the individual Selling Stockholders as a result
of the release of the Escrowed Shares.
(3) Assumes the sale of all Shares offered hereby, including the Escrowed
Shares, if any.
(4) Includes 1,512,663 (520,000 shares of which are subject to a repurchase
right of the Company upon cessation of Mr. Andreessen's service to the
Company and 4,998 shares of which are issuable upon the exercise of options
that are exercisable within 60 days of June 20, 1997) shares held by Marc L.
Andreessen, grantor of the Andreessen 1996 Charitable Remainder Trust Dated
2/1/96 (the "Trust"), who is the Senior Vice President, Technology and a
Director of the Company. The Trust disclaims beneficial ownership of Mr.
Andreessen's shares.
PLAN OF DISTRIBUTION
The Shares covered by this Prospectus may be offered and sold from time to
time by the Selling Stockholders. The Selling Stockholders will act
independently of the Company in making decisions with respect to the timing,
manner and size of each sale. The Selling Stockholders may sell the Shares being
offered hereby on the Nasdaq National Market, or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price or
at negotiated prices. The Shares may be sold by one or more of the following
means of distribution: (a) a block trade in which the broker-dealer so engaged
will attempt to sell Shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction; (b) purchases by a
broker-dealer as principal and resale by such broker-dealer for its own account
pursuant to this Prospectus; (c) an over-the-counter distribution in accordance
with the rules of the Nasdaq National Market; (d) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; and (e)
in privately negotiated transactions. To the extent required, this Prospectus
may be amended and supplemented from time to time to describe a specific plan of
distribution. In connection with distributions of the Shares or otherwise, the
Selling Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions. In connection with such transactions,
broker-dealers or other financial institutions may engage in short sales of the
Company's Common Stock in the course of hedging the positions they assume with
Selling Stockholders. The Selling Stockholders may also sell the Company's
Common Stock short and redeliver the shares to close out such short positions.
The Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealer or other financial institution of Shares offered hereby,
which Shares such broker-dealer or other financial institution may resell
pursuant to this Prospectus (as supplemented or amended to reflect such
transaction). The Selling Stockholders may also pledge Shares to a broker-dealer
or other financial institution, and, upon a default, such broker-dealer or other
financial institution may effect sales of the pledged Shares pursuant to this
Prospectus (as supplemented or amended to reflect such transaction). In
addition, any Shares that qualify for sale pursuant to Rule 144 may be sold
under Rule 144 rather than pursuant to this Prospectus.
In effecting sales, brokers, dealers or agents engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate. Brokers,
dealers or agents may receive commissions, discounts or concessions from the
Selling Stockholders in amounts to be negotiated prior to the sale. Such brokers
or
6
<PAGE>
dealers and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales, and any such commissions, discounts or concessions may be deemed to be
underwriting discounts or commissions under the Securities Act. The Company will
pay all expenses incident to the offering and sale of the Shares to the public
other than any commissions and discounts of underwriters, dealers or agents and
any transfer taxes.
In order to comply with the securities laws of certain states, if
applicable, the Shares must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The Company has advised the Selling Stockholders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of Shares in the
market and to the activities of the Selling Stockholders and their affiliates.
In addition, the Company will make copies of this Prospectus available to the
Selling Stockholders and has informed them of the need for delivery of copies of
this Prospectus to purchasers at or prior to the time of any sale of the Shares
offered hereby. The Selling Stockholders may indemnify any broker-dealer that
participates in transactions involving the sale of the Shares against certain
liabilities, including liabilities arising under the Securities Act.
At the time a particular offer of Shares is made, if required, a Prospectus
Supplement will be distributed that will set forth the number of Shares being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount, commission or
concession allowed or reallowed or paid to any dealer, and the proposed selling
price to the public.
The sale of Shares by the Selling Stockholders is subject to compliance by
the Selling Stockholders with certain contractual restrictions with the Company.
There can be no assurance that the Selling Stockholders will sell all or any of
the Shares.
The Company has agreed to indemnify the Selling Stockholders and any person
controlling a Selling Stockholder against certain liabilities, including
liabilities under the Securities Act. The Selling Stockholders have agreed to
indemnify the Company and certain related persons against certain liabilities,
including liabilities under the Securities Act.
The Company has agreed with certain of the Selling Stockholders to keep the
Registration Statement of which this Prospectus constitutes a part effective for
up to one year following June 13, 1997, the closing date of the acquisition of
DigitalStyle (which period may be shortened or extended under certain
circumstances). The Company intends to de-register any of the Shares not sold by
the Selling Stockholders at the end of such one year period; however, it is
anticipated that at such time any unsold Shares may be freely tradable subject
to compliance with Rule 144 of the Securities Act.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon by Wilson
Sonsini Goodrich & Rosati, Professional Corporation, Palo Alto, California,
counsel to the Company.
EXPERTS
The consolidated financial statements and the related financial statement
schedule of Netscape Communications Corporation at December 31, 1996 and 1995
and for each of the three years in the period ended December 31, 1996, included
or incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their reports thereon included or
incorporated by reference therein and incorporated herein by reference. Such
consolidated financial statements and schedule are incorporated by reference
herein in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
7
<PAGE>
- -------------------------------------------
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- -------------------------------------------
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NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE BY THIS
PROSPECTUS TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED
IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, ANY SELLING
STOCKHOLDER OR BY ANY OTHER PERSON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THE SHARES
OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SHARES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION
IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE OF OR OFFER TO SELL THE SHARES MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
Available Information.......................... 2
Incorporation of Certain Documents By
Reference.................................... 2
The Company.................................... 3
Recent Events.................................. 3
Forward-Looking Statements..................... 4
Risk Factors................................... 4
Use of Proceeds................................ 4
Selling Stockholders........................... 4
Plan of Distribution........................... 6
Legal Matters.................................. 7
Experts........................................ 7
</TABLE>
NETSCAPE
COMMUNICATIONS
CORPORATION
1,794,563 SHARES
OF
COMMON STOCK
---------------------
PROSPECTUS
---------------------
July 23, 1997
- -------------------------------------------
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- -------------------------------------------
-------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Company will pay all expenses incident to the offering and sale to the
public of the Shares being registered other than any commissions and discounts
of underwriters, dealers or agents and any transfer taxes. Such expenses are set
forth in the following table. All of the amounts shown are estimates except the
Securities and Exchange Commission "SEC" registration fee.
<TABLE>
<S> <C>
SEC registration fee............................................... $ 18,150
NASDAQ National Market listing fee................................. 35,000
Legal fees and expenses............................................ 15,000
Accounting fees and expenses....................................... 10,000
Miscellaneous expenses............................................. 20,000
---------
Total............................................................ $ 98,150
---------
---------
</TABLE>
ITEM 15. 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, Article VI of
the Amended and Restated Bylaws of the Registrant provides that: (i) the
Registrant is required to indemnify its directors and officers and persons
serving in such 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; (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 executive officers, a form of which was filed as
Exhibit 10.1 to Registration Statement No. 33-93862, that provide the maximum
indemnity allowed to directors and officers 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 indemnified to the fullest possible
extent not prohibited by law against all expenses (including attorney's fees)
and settlement amounts paid or incurred by them in any 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 Registrant will not be obligated
pursuant to the indemnification agreements 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 agreement, the Registrant's Amended
and Restated Bylaws or any statute or law. Under the agreements, the Registrant
is not obligated to indemnify the indemnified party (i) for
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<PAGE>
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; (ii) for any amounts paid in settlement of a proceeding unless
the Registrant consents to such settlement; (iii) 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; (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 of 1934 and related
laws; (v) 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; (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.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
2.1* Agreement and Plan of Reorganization dated as of April 30, 1997 by
and among Netscape Communications Corporation, PCI Acquisition
Corporation and Portola Communications, Inc.
2.2* Agreement and Plan of Reorganization dated as of April 25, 1997 by
and among Netscape Communications Corporation, DSC Acquisition
Corporation and DigitalStyle Corporation.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1* Consent of Independent Auditors.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1* Power of Attorney (included on page II-4).
</TABLE>
- ------------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
A. UNDERTAKING PURSUANT TO RULE 415.
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 (the "Securities Act");
(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 SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume
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<PAGE>
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(l)(i) and A(l)(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 (the "Exchange Act") that are
incorporated by reference 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 this offering.
B. UNDERTAKING REGARDING FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT
DOCUMENTS BY REFERENCE.
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. UNDERTAKING IN RESPECT OF INDEMNIFICATION.
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 foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC 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.
D. UNDERTAKING REGARDING THE FORM OF PROSPECTUS.
The undersigned registrant hereby undertakes that.
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Amendment No. 2 to the Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Mountain View, State of California, on this 22nd
day of July 1997.
NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ PETER L.S. CURRIE
------------------------------------------
Peter L.S. Currie
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities indicated.
SIGNATURE TITLE
- ------------------------------ --------------------------
President, Chief Executive
* Officer and Director
- ------------------------------ (PRINCIPAL EXECUTIVE
James L. Barksdale OFFICER)
Senior Vice President and
/s/ PETER L.S. CURRIE Chief Financial Officer
- ------------------------------ (PRINCIPAL FINANCIAL
Peter L.S. Currie OFFICER)
Vice President and
* Corporate Controller
- ------------------------------ (PRINCIPAL ACCOUNTING
Noreen G. Bergin OFFICER)
*
- ------------------------------ Chairman of the Board of
James H. Clark Directors
*
- ------------------------------ Senior Vice President,
Marc L. Andreessen Technology and Director
- ------------------------------ Director
Eric A. Benhamou
- ------------------------------ Director
L. John Doerr
*
- ------------------------------ Director
John E. Warnock
<TABLE>
<CAPTION>
<S> <C>
*By: /s/ PETER L.S. CURRIE
------------------------------------
(Peter L.S. Currie, Attorney-in-Fact)
</TABLE>
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