<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 19, 1997
REGISTRATION NO. 333-42401
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT NO. 1
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
(650) 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
(650) 254-1900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
LARRY W. SONSINI, ESQ.
HERBERT P. FOCKLER, ESQ.
JAMES N. STRAWBRIDGE, ESQ.
JON C. GONZALES, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 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. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
ADDITIONAL PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER SHARE(2) OFFERING PRICE(1) REGISTRATION FEE(3)
<S> <C> <C> <C> <C>
Common Stock, par value $0.0001 per share..... 58,245 $25.9375 $1,510,729.69 $446
</TABLE>
(1) The Registrant previously registered 1,874,334 shares of Common Stock at
$26.875 in its initial filing on December 16, 1997.
(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 December 16, 1997, as reported on the Nasdaq National
Market.
(3) Represents the incremental registration fee for 58,245 additional shares of
Common Stock at $25.9375 per share. The Registrant previously paid a
registration fee of $14,860 for the remaining 1,874,334 shares as part of
the Registrant's initial filing on December 16, 1997.
------------------------------
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 OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED DECEMBER 19, 1997
1,932,579 SHARES
NETSCAPE COMMUNICATIONS CORPORATION
COMMON STOCK
------------------
This Prospectus relates to the public offering, which is not being
underwritten, of up to 1,874,334 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 identified under the caption "Selling Stockholders" or by pledgees,
donees, transferees or other successors in interest (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 acquisition of the membership interest of GE Information Services,
Inc. ("GEIS") in Actra Business Systems, L.L.C., a Delaware limited liability
company ("Actra"). 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 Purchase Agreement dated November 6,
1997 (the "Agreement") between Netscape and GEIS.
The Shares may be offered by the Selling Stockholders from time to time in
one or more transactions as described under "Plan of Distribution." To the
extent required, the number of shares to be sold, the name of the Selling
Stockholder(s), the purchase price, the name of any agent or broker-dealer, and
any applicable commissions, discounts or other items constituting a compensation
to such agent or broker-dealer with respect to a particular offering will be set
forth in a supplement or supplements to this Prospectus (each, a "Prospectus
Supplement"). The aggregate proceeds to the Selling Stockholder(s) from the sale
of the shares offered from time to time hereby will be the purchase price of the
shares sold less commissions, discounts and other compensation, if any, paid by
the Selling Stockholder(s) to any agent or broker-dealer. 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 December 18, 1997, the last sale price of the Company's Common
Stock was $26.50 per share.
------------------------
THIS OFFERING INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" ON PAGE 5
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 DECEMBER 19, 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 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. The Company has filed the
Registration Statement electronically with the Commission via the Commission's
Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system. 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. The Company intends to distribute
to its stockholders annual reports containing audited financial statements and
will make available copies of quarterly reports for the first three quarters of
each fiscal year containing unaudited interim financial information.
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 Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997;
(3) The Company's Proxy Statement for its Annual Meeting of Stockholders
held on May 30, 1997;
(4) The Company's Current Reports on Form 8-K, filed with the Commission on
November 28, 1997 and December 15, 1997 and the Company's current Report
on Form 8-K/A filed with the commission on December 16, 1997;
(5) 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
2
<PAGE>
(6) 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 completion or 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.
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
Corporation, 501 East Middlefield Road, Mountain View, California 94043 or by
telephone at (650) 254-1900.
3
<PAGE>
THE COMPANY
Netscape Communications Corporation ("Netscape" or the "Company") is a
premier provider of open software for linking people and information over
enterprise networks 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. 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, value-added resellers and software retailers.
FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS AND THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE CONTAIN
FORWARD-LOOKING STATEMENTS THAT HAVE BEEN MADE PURSUANT TO THE PROVISIONS OF THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. SUCH FORWARD-LOOKING
STATEMENTS 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" AND 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
NOTED IN THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE, INCLUDING THOSE SET
FORTH IN THE ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1996
(THE "FORM 10-K") UNDER "FACTORS AFFECTING THE COMPANY'S BUSINESS, OPERATING
RESULTS AND FINANCIAL CONDITION" ON PAGES 27 THROUGH 42 THEREOF, THE QUARTERLY
REPORT ON FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 1997 (THE "FIRST QUARTER
10-Q REPORT") UNDER "CERTAIN FACTORS AFFECTING OPERATING RESULTS" ON PAGES 8
THROUGH 14 THEREOF, THE QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED JUNE
30, 1997 (THE "SECOND QUARTER 10-Q REPORT") UNDER "MANAGEMENT'S DISCUSSION AND
ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" ON PAGES 9 THROUGH 19
THEREOF AND THE QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER
30, 1997 (THE "THIRD QUARTER 10-Q REPORT") UNDER "SUBSEQUENT EVENTS" ON PAGE 8
AND UNDER "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION" ON PAGES 9 THROUGH 19 THEREOF. UNLESS REQUIRED BY LAW, THE
COMPANY UNDERTAKES NO OBLIGATION TO UPDATE PUBLICLY ANY FORWARD-LOOKING
STATEMENTS, WHETHER AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.
HOWEVER, INVESTORS SHOULD CAREFULLY REVIEW THE RISK FACTORS AND OTHER
INFORMATION SET FORTH IN THE REPORTS AND OTHER DOCUMENTS THE COMPANY FILES FROM
TIME TO TIME WITH THE COMMISSION.
4
<PAGE>
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 REPORTS ON FORM 10-Q FOR THE QUARTERS ENDED MARCH
31, JUNE 30, SEPTEMBER 30, 1997 ARE INCORPORATED BY REFERENCE HEREIN. SEE
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE." MORE SPECIFICALLY, RISK
FACTORS CAN BE FOUND REFERENCED IN THE FOLLOWING: (I) "FACTORS AFFECTING THE
COMPANY'S BUSINESS, OPERATING RESULTS AND FINANCIAL CONDITION" ON PAGES 27
THROUGH 42 OF FORM 10-K, (II) "CERTAIN FACTORS AFFECTING OPERATING RESULTS" ON
PAGES 8 THROUGH 14 OF THE FIRST QUARTER 10-Q REPORT, (III) "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" ON
PAGES 9 THROUGH 19 OF THE SECOND QUARTER 10-Q REPORT, AND (IV) "SUBSEQUENT
EVENTS" ON PAGE 8 AND "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS" ON PAGES 9 THROUGH 19 OF THE THIRD QUARTER
10-Q REPORT. 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 the date of this Prospectus, the name
of each of the Selling Stockholders, the number of Shares that each such Selling
Stockholder owns as of such date, the number of Shares owned by each Selling
Stockholder that may be offered for sale from time to time by this Prospectus,
and the number of Shares to be held by each such Selling Stockholder assuming
the sale of all of the Shares offered hereby. The Selling Stockholders may also
be pledgees, donees, transferees or other successors in interest that receive
shares from the Selling Stockholders listed below as a gift, partnership
distribution or other non-sale related transfer. 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.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
SHARES WHICH MAY OWNED AFTER
SHARES BE SOLD PURSUANT OFFERING(1)(2)
BENEFICIALLY TO ---------------------
SELLING STOCKHOLDER OWNED(1) THIS PROSPECTUS NUMBER PERCENT
- ---------------------------------------------------------- ----------- ------------------ ---------- ---------
<S> <C> <C> <C> <C>
GE Information Services, Inc.(3).......................... 1,932,579 1,932,579 -- --
</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 the
date of this Prospectus through the exercise of any stock option or other
right. 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) Assumes the sale of all Shares offered hereby.
5
<PAGE>
(3) GE Information Services, Inc. ("GEIS") entered into a joint venture with
Netscape pursuant to that certain Formation and Limited Liability Company
Agreement dated March 26, 1996 (the "Joint Venture Agreement"). Pursuant to
the Joint Venture Agreement, Netscape and GEIS formed a limited liability
company, Actra Business Systems, L.L.C. ("Actra"). The Shares to be sold
hereunder were received by GEIS from the Company pursuant to that certain
Purchase Agreement dated as of November 6, 1997 between the Company and GEIS
(the "Agreement"), in exchange for GEIS's membership interest in Actra and
certain other intellectual property rights. To afford GEIS the ability to
freely offer and sell the Shares received pursuant to the Agreement, the
Company agreed to file the Registration Statement of which this Prospectus
constitutes a part pursuant to a Declaration of Registration Rights attached
as an exhibit to the Agreement.
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 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.
6
<PAGE>
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 December 15, 1997, the closing date of the Company's
acquisition of GEIS's membership interest in Actra (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,
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 are incorporated herein by reference in
reliance upon such reports given upon the authority of such firm as experts in
accounting and auditing.
7
<PAGE>
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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 OR ANY PROSPECTUS SUPPLEMENT, 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>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Incorporation of Certain Documents By Reference........................... 2
The Company............................................................... 4
Forward-Looking Statements................................................ 4
Risk Factors.............................................................. 5
Use of Proceeds........................................................... 5
Selling Stockholders...................................................... 5
Plan of Distribution...................................................... 6
Legal Matters............................................................. 7
Experts................................................................... 7
</TABLE>
NETSCAPE COMMUNICATIONS CORPORATION
1,932,579 SHARES
OF
COMMON STOCK
---------------------
PROSPECTUS
---------------------
December 19, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<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.............................................. $15,306
NASDAQ National Market listing fee................................ 17,500
Legal fees and expenses........................................... 15,000
Accounting fees and expenses...................................... 10,000
Miscellaneous expenses............................................ 20,000
---------
Total......................................................... $77,806
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's and Restated Certificate of Incorporation, as amended, 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
II-1
<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* Purchase Agreement dated as of November 6, 1997 between Netscape
Communications Corporation and GE Information Services, Inc.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1** Power of Attorney.
</TABLE>
- ------------------------
* Filed with the Registrant's Form 8-K dated December 15, 1997. Filed with the
Commission on December 15, 1997, and incorporated by reference herein.
** 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)
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
II-2
<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;
(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 PURSUANT TO RULE 430A
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of the 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 purposes of determining any liability under the
Securities Act, 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.
II-3
<PAGE>
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-3 and has duly caused this Amendment No. 1 to
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 19th day of December, 1997.
<TABLE>
<S> <C> <C>
NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ PETER L.S. CURRIE
-----------------------------------------
Peter L.S. Currie, EXECUTIVE VICE
PRESIDENT AND CHIEF ADMINISTRATIVE OFFICER
</TABLE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement on Form S-3 has been signed below by the
following persons on the 19th day of December, 1997 in the capacities indicated.
SIGNATURE TITLE
- ------------------------------ --------------------------
President, Chief Executive
/s/ JAMES L. BARKSDALE* Officer and Director
- ------------------------------ (PRINCIPAL EXECUTIVE
James L. Barksdale OFFICER)
Executive Vice President
/s/ PETER L.S. CURRIE and Chief Administrative
- ------------------------------ Officer (PRINCIPAL
Peter L.S. Currie FINANCIAL OFFICER)
Vice President, Finance
/s/ NOREEN G. BERGIN* and Corporate Controller
- ------------------------------ (PRINCIPAL ACCOUNTING
Noreen G. Bergin OFFICER)
/s/ JAMES H. CLARK*
- ------------------------------ Chairman of the Board of
James H. Clark Directors
- ------------------------------ Executive Vice President,
Marc L. Andreessen Products and Director
/s/ ERIC A. BENHAMOU*
- ------------------------------ Director
Eric A. Benhamou
/s/ L. JOHN DOERR*
- ------------------------------ Director
L. John Doerr
/s/ JOHN E. WARNOCK*
- ------------------------------ Director
John E. Warnock
*By: /s/ PETER L.S. CURRIE
-------------------------
Peter L.S. Currie
ATTORNEY-IN-FACT
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------------
<C> <S>
2.1* Purchase Agreement dated as of November 6, 1997 between Netscape Communications Corporation and GE
Information Services, Inc.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1** Power of Attorney.
</TABLE>
- ------------------------
* Filed with the Registrant's Form 8-K dated December 15, 1997. Filed with the
Commission on December 15, 1997, and incorporated by reference herein.
** Previously Filed
<PAGE>
EXHIBIT 5.1
December 19, 1997
Netscape Communications Corporation
501 East Middlefield Road
Mountain View, CA 94043-2232
RE: REGISTRATION STATEMENT ON FORM S-3 (REGISTRATION NO. 333-42401)
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (Registration No.
333-42401) as amended by Amendment No. 1 thereto to be filed by you with the
Securities and Exchange Commission on the date hereof (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, of up to 1,932,579 shares of your Common Stock (the "Shares").
All of the Shares are issued and outstanding and may be offered for sale for the
benefit of the selling stockholders named in the Registration Statement. We
understand that the Shares are to be sold from time to time in the over-the-
counter-market at prevailing prices or as otherwise described in the
Registration Statement. As your legal counsel, we have also examined the
proceedings taken by you in connection with the issuance of the Shares.
It is our opinion that the Shares are validly issued, fully paid and
non-assessable.
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, including the Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG, LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3) and related Prospectus
of Netscape Communications Corporation and to the incorporation by reference
therein 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 the year ended December 31, 1996
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG, LLP
Palo Alto, California
December 19, 1997
