<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1998
REGISTRATION NO. 333-44129
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
DELAWARE 94-3200270
(State of incorporation) (I.R.S. Employer Identification No.)
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
JAMES N. STRAWBRIDGE
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. / /
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.
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<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 JANUARY , 1998
6,044,404 SHARES
NETSCAPE COMMUNICATIONS CORPORATION
COMMON STOCK
---------------------
This Prospectus relates to the public offering, which is not being
underwritten, of up to 6,044,404 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 acquisition of KIVA Software
Corporation ("KIVA"), a California corporation by and through a merger of a
wholly-owned subsidiary of Netscape, Knife Acquisition Corporation ("Knife"),
with and into KIVA (the "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 of Regulation D thereunder.
The Shares are being registered by the Company pursuant to the Agreement and
Plan of Reorganization dated November 24, 1997 (the "Agreement") by and among
Netscape, Knife and KIVA.
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 January 27, 1998, the last sale price of the Company's Common
Stock was $16.875 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. 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 , 1998
<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 Current Reports on Form 8-K and 8-K/A, filed with the
Commission on July 23, 1997, November 28, 1997, December 15, 1997,
December 16, 1997, January 5, 1998 and January 28, 1998;
(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 (1) 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.
2
<PAGE>
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.
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. 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.
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
4
<PAGE>
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. 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 OWNED AFTER
SHARES MAY BE SOLD OFFERING(1)(2)
BENEFICIALLY PURSUANT TO ----------------
SELLING STOCKHOLDER OWNED(1) THIS PROSPECTUS NUMBER PERCENT
- ------------------------------------------ ------------ --------------- ------ -------
<S> <C> <C> <C> <C>
Keng S. Lim and Maria R. Lim.............. 1,511,927 1,511,927 -- --
Greylock Equity Limited Partnership(4).... 830,540 830,540 -- --
WPG Enterprise Fund II L.P................ 457,025 457,025 -- --
Weiss, Peck & Greer Venture Associates
III, L.P................................ 380,017 380,017 -- --
Trinity Ventures V, L.P.(5)............... 294,242 294,242 -- --
Alexander Glass........................... 216,956 216,956 -- --
Norwest Venture Partners VI, LP(6)........ 186,863 186,863 -- --
Insik Rhee................................ 179,332 179,332 -- --
Stephen Yen............................... 179,332 179,332 -- --
Discovery Ventures II, LLC(7)............. 195,943 195,943 -- --
Sippl Macdonald Ventures I, L.P.(8)....... 107,908 107,908 -- --
Bob Chamberlain........................... 52,402 52,402 -- --
Amal Johnson.............................. 27,562 27,562 -- --
Trinity V Side-by-Side Fund, L.P.(9)...... 17,195 17,195 -- --
Katherine K. Spencer...................... 16,254 16,254 -- --
Saumitra Das.............................. 19,816 19,816 -- --
Ron DeHoff................................ 13,590 13,590 -- --
Shipway Investment Company................ 11,241 11,241 -- --
Michael Lawrence.......................... 10,917 10,917 -- --
F&W Investments 1996 - II(10)............. 10,723(11) 10,723(11) -- --
Lighthouse Capital Partners............... 8,885 8,885 -- --
Lee-Yi Hsiang Su.......................... 7,539 7,539 -- --
Phil Van Etten............................ 7,177 7,177 -- --
Devine & Vernig, Inc...................... 7,015 7,015 -- --
Deborah Taweel............................ 6,502 6,502 -- --
Sharmila Shahani.......................... 7,209 7,209 -- --
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES WHICH OWNED AFTER
SHARES MAY BE SOLD OFFERING(1)(2)
BENEFICIALLY PURSUANT TO ----------------
SELLING STOCKHOLDER OWNED(1) THIS PROSPECTUS NUMBER PERCENT
- ------------------------------------------ ------------ --------------- ------ -------
<S> <C> <C> <C> <C>
Piper Jaffray Inc......................... 5,190 5,190 -- --
Amos Barzilay............................. 4,876 4,876 -- --
High Tech Ventures........................ 4,876 4,876 -- --
Maneesh Dhir.............................. 7,633 7,633 -- --
Jim Healy................................. 6,086 6,086 -- --
Morgan Hua................................ 5,472 5,472 -- --
GC&H Investments.......................... 3,435 3,435 -- --
Lighthouse Capital Partners, LLP.......... 3,435 3,435 -- --
Maria Mercedes Dy......................... 4,529 4,529 -- --
Robert C Bolt............................. 2,595 2,595 -- --
Ann Peden................................. 2,233 2,233 -- --
George W. Rife and Michelle C. Rife, as
Trustees of the Rife Family Trust....... 2,111 2,111 -- --
Jeff Diller............................... 2,352 2,352 -- --
Rory Ward................................. 2,858 2,858 -- --
Jeremy Brown.............................. 2,270 2,270 -- --
Tejkumar Arora............................ 2,960 2,960 -- --
TSI International(12)..................... 1,038 1,038 -- --
Vishi Natarajan........................... 1,181 1,181 -- --
Saifu Angto............................... 1,183 1,183 -- --
Marshall Smith, III....................... 623 623 -- --
Reef Shafer............................... 974 974 -- --
Derrick DeMotta........................... 419 419 -- --
Joanne C. Knight.......................... 415 415 -- --
Chris Bogart.............................. 839 839 -- --
</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) Does not include an aggregate of 530,366 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 December 1, 1998 for the Shares escrowed under the
Reorganization Agreement, 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.
6
<PAGE>
(4) Subsequent to the date of this Prospectus, the shares held by Greylock
Equity Limited Partnership may be distributed to Henry F. McCance, McCance
Family Limited Partnership, Howard E. Cox, Jr., David N. Strohm, William W.
Helman, William S. Kaiser, Roger L. Evans, Mary H. Murphy, Barbara P.
Murray, Oneonta Properties, Sherman Fairchild Foundation, Inc., Helen C.
Alexander, Emory A. Hamilton, John D. Alexander, Jr., Caroline R. Alexander,
Henrietta A. George, Dorothy A. Matz, Thomas W. Keesee, Jr., Ashbourne
Partners III Limited Partnership, Henry H. Corning, Key Trust Company of
Ohio, N.A., Theodore T. Jones and Latham W. Murfey, III, Trustees of Trust
f/b/o Alison C. Jones u/a established by Edith W. Corning dtd 7/25/46 as
amended, Key Trust Company of Ohio, N.A., Edson Spencer, Jr. David
Warshawsky, Trustees of Trust f/b/o Samuel D. Long u/a established by Edith
W. Corning dtd 7/25/46 as amended, Key Trust Company of Ohio, N.A., Edson
Spencer, Jr. David Warshawsky, Trustees of Trust f/b/o Maud-Alison Long u/a
established by Edith W. Corning dtd 7/25/46 as amended, Key Trust Company of
Ohio, N.A., Edson Spencer, Jr. David Warshawsky, Trustees of Trust f/b/o
Henry H. Corning u/a established by Edith W. Corning dtd 7/25/46 as amended,
Dartmouth College, Field Venture Partners, Gothic Corporation, Poduska
Family Limited Partnership TLP, Michael J. Birck, Robert E. Cook, The
Charles O. Rossotti and Barbara M. Rossotti Qualified Trust, Gabriel
Schmergel, Thomas H. Bruggere, John W. Brown Trust, Grossman Family
Partnership or its nominee Saturn & Co., Peter Preuss, William C. O'Neil,
Jr., Curt A. Rawley, William J. Warner, John M. Connolly, Mone Anathan, III,
Samuel J. Gerson, Ronald J. Friedsam, David C. Mahoney, Tadeusz Witkowicz,
James A. Perakis, Joshua Boger, Malcolm L. Gefter, Dirk I. Gates, Safi U.
Qureshey, Trustee of Safi U. Qureshey Family Trust dtd 5/21/84, Goel Family
Partnership, William M. Gibson, Alexander V. d'Arbeloff, Irwin F. Smith,
Donald K. Miller, Robert A. Lawrence, Hill and Company, Neil L. Thompson,
Amos B. Hostetter, Frechette Fund, Inc., PCW Fund, Inc., Scaup & Co., Edward
H. Ladd, Trustee u/a/d 12/15/78 or its nominee, Freya Fanning & Co., M-C
Partners I Limited Partnership or its nominees, A. A. Welsh & Co. and Atwell
& Co., Massachusetts Institute of Technology, Fleet National Bank, Trustee
of Orchard Trust u/a/d 5/1/73, Phemus Corporation, John Lillard Family
Limited Partnership, Lillard Partners, Louis F. Polk, Jr., Trustee of Louis
F. Polk, Sr. Rev. Trust dtd 1/22/69, Paula P. Lillard, Trustee of Louis F.
Polk, Sr. Rev Trust dtd 1/22/69, Louis F. Polk, Jr., Polk Family
Partnership, Board of Trustees of Leland Stanford Junior University,
Standish Ventures III Limited Partnership, L. Thorne Trust u/a 9/29/65,
Edwin Thorne Sole Trustee, Edwin Thorne, Gordon G. Thorne, Brinkley S.
Thorne, Peter A. Thorne, Wink Thorne, Jennifer Hislop, Benjamin Thorne,
Brooks Walker, Jr. Trustee of M.K. Walker Trust dtd 9/1/89, Brooks Walker,
Jr., Wellington S. Henderson, Trustee of Welling S. Henderson, Jr. Revocable
Trust dtd 3/9/93, Harriett W. Henderson Trust u/a/d 8/14/73 fbo Charles C.
Henderson, Joanne Miller, Trustee of Walker Trust dtd 12/24/74, Harriett W.
Henderson Trust u/a/d 8/14/73 fbo James A. Henderson, Harriett W. Henderson
Trust u/a/d 8/14/73 fbo Joan H. Henderson, Harriett W. Henderson Trust u/a/d
8/14/73 fbo Elena D. Henderson, Harriett W. Henderson Trust u/a/d 8/14/73
fbo Mark W. Henderson, Ann M. Hatch Revocable Trust No. 2, Ann M. Hatch ACF
Francis Timothy Hatch u/ca/utma, David Ayer, Susanna B. Place, Trustee SMBP
Trust u/a/d 2/28/85, Essex Equity Limited Partnership V, Frederick H.
Bruenner, David E. Place, Richard M. Place, Daniel S. Gregory and Richard N.
Hoehn, Trustees, U/I Place/ Greylock Trust dtd 12/27/78, William Elfers,
Roger L. Evans, Trustee of Roger and Jacqueline Evans Family Trust u/a/d
3/8/89, Stephen Bochner, Trustee Evans Children's Trust u/a 12/20/93,
Bradford C. Koenig, Trustee u/i/d 2/2/94 Helman Children's Trust fbo
Beatrice Page Helman, Bradford C. Koenig, Trustee u/i/d 2/2/94 Helman
Children's Trust fbo William Wilson Helman V, Robert N. Shapiro, Trustee of
Robert P. Henderson 1994 Irrevocable Trust dtd 1/19/94, Charles and Angela
Waite, Allison J. McCance, Thomas McCance, Jr. and Keith Jennings, Trustees
u/a/d 11/16/76 f/b/o Ellen L. McCance, Elizabeth F. McCance, Henry F.
McCance, Allison J. McCance and Keith S. Jennings u/I dtd 12/22/93 Trustees
of McCance Family Trust f/b/o Ellen Lee McCance, Henry F. McCance, Allison
J. McCance and Keith S. Jennings u/I dtd 12/22/93 Trustees of McCance Family
Trust f/b/o Elizabeth Ferguson McCance, Thomas J. Watson, III, Daniel
Moseley, Trustee u/a Blodgett 1989 Family Trust, Miriam A. Gilpatric, John
B. Jessup, Trustee of Julia Thorne Trust dtd 9/29/65, and Yale University.
7
<PAGE>
(5) Subsequent to the date of this Prospectus, the shares held by Trinity
Ventures V, L.P. may be distributed to The Fremont Group, Crescent
International Holdings Limited, Montgomery Ward & Co., Inc. Retirement and
Savings Plans Trust, Bradley Holdings, Ltd., Miami Corp, Big Trees Partners,
Montgomery Ward Life Insurance Company, Capital Asia International Limited,
Carrara Venture Fund, Ltd., Arthur A. Ciocca Living Trust VTD 9/25/97, CI
Venture Caital Itochu Corporation, Hallco, Inc., W.W. Henry Living Trust,
Hitachi, Ltd., Suwannukul Family Trust, The Bank of Tokyo, Ltd., Ohawine
Trust, Thanksgiving Foundation, W. Andrew Beckstoffer, Donald Chase
Doolittle, Rod & Connie Georgiu, Edith R. Stern Trust 7/6/53, Peter W.
Stott, The Sutro Group, Frnak Rees, Trustee Rees Family Trust UTD 5/30/92,
Pente Venture Trust, Cameron Trust, Brian Aspland, Michael E. & Yvonne B.
Deggelman, Community Property, Herbert M. Dwight, Jr., Trustee UTD 5/12/74,
Richard N. Frank Living Trust Dated 1/21/88, Kevin E. Grant, Douglas J.
Herst, Co-Trustee Herst Family Revocable Trust UTD 10/20/93, The Claude C.
Laval, III, and Betty Lou Laval Family Trust UTD 3/20/92, Claude C. Laval,
III, and Betty Lou Laval, Trustees, Paul G. Lego, Harold Naparst, John A.
O'Donnell IRA Rollover, Quinn Family Trust, A. Horton Shapiro & Elizabeth
Shapiro Trustees, Shapiro Family Revocable Trust UTD 1/12/95, George O.
Sheldon Trustee U/D/T dated 8/10/94, James Simpson, Maurice Werdegar, Wayne
L. Earl & Judith V. Earl, Trustees The Wayne L. and Judity V. Earl Trust UTD
7/31/79, and the Woodside Electronics Corp. Pension and Profit Sharing
Trust.
(6) Subsequent to the date of this Prospectus, the shares held by Norwest
Venture Partners VI, LP may be distributed to Itasca VC partners VI, Norwest
Limited, Inc., Daniel Haggerty, John E. Lindahl, John P. Whaley, Promod
Haque, Charles Lannin, Erik Torgerson, George Still, Jr., and John L.
Thomson.
(7) Subsequent to the date of this Prospectus, the shares held by Discovery
Ventures II LLC may be distributed to Mr. Arnold N. Silverman, Mr. Gerald C.
Down, Mr. Albert A. Eisenstat, Eisensat Family Trust U/T/D April 30, 1986,
Mr. Bernard Goldstein, Lisa Ann Sobrato 1987 Revocable Trust, Oster Family
Revocable Trust dated October 5, 1976, Sheri Jean Sobrato 1987 Revocable
Trust, Sobrato 1979 Revocable Trust, Silverman Family Trust dated June 22,
1988, and the Zaffaroni Revocable Trust UTD 1/24/86, as amended.
(8) Subsequent to the date of this Prospectus, the shares held by Sippl
MacDonald Ventures I, L.P. may be distributed to The Baxter Family Trust
Nicholas Baxter, Trustee, Cristina M. Morgan, Richard C. Blass, Bundy
Associates, Carroll Ventures, Richard J. Cote, deBeneditti Family Trust John
L. deBenedetti, Trustee, Larry M. DeDonato, Richard L. Gerould, Linda Grais,
Mark D. Hanson, Roy V. Harrington, Tommy Hawkins, Steve Hill, Richard
Holcomb, PENSCO Pension Services, Inc. fbo George H. Hohnsbeen, Margaret H.
Kavalaris, Robert J. MacDonald, Jacqueline A. MacDonald, William E. Morton,
The Glenn C. Myers Family Trust Glenn C. Myers, Trustee, Paul Pringle,
Kenneth A. Putney, Scott Putney, Elizabeth G. Salmon, Roger J. Sippl, The
Laura King Sobell Revocable Trust, UTA 2/24/87, Laura Sobell Trustee, Steven
R. Sommer, and E. Scott Swimley.
(9) Subsequent to the date of this Prospectus, the shares held by Trinity
Side-by-Side Fund, L.P. may be distributed to Fremont TVL V Parnters, L.P.,
Lederer-Orr Family Turst UTD June 6, 1997, Shennan Family Partnership I, The
Fenton Family 1994 Trust, The Nierendberg Family 1993 Living Trust, Tod H.
Francis, Judith B. Boyd, Michele A. Valentine, and Augustus O. Tai.
(10) Subsequent to the date of this Prospectus, the shares held by F&W
Investment 1996-II may be distributed to Frederick R. Chilton, Jr.,
Jacqueline A. Daunt, Gordon K. Davidson, Dennis R. DeBroeck, William A.
Fenwick, John C. Fox, James C. Garahan, Roger M. Golden , Fred M. Greguras,
Joel D. Kellman, Barry J. Kramer, Edwin N. Lowe, Kenneth A. Linhares, I.
Joel Riff, Paul H. Roskoph, Laird H. Simons, III, David W. Slaby, Albert C.
Smith, Mark C. Stevens, Patricia Nicely Kopf, Scott P. Spector, and Edward
J. Radlo.
(11) Includes shares held by F&W Investments 1996.
(12) Subsequent to the date of this Prospectus, the shares held by TSI
International may be distributed to Alan Shapiro.
8
<PAGE>
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.
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,
9
<PAGE>
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 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 1, 1997, the closing date of the Acquisition.
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.
10
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Incorporation of Certain Documents By Reference........................... 2
The Company............................................................... 4
Forward-Looking Statements................................................ 4
Risk Factors.............................................................. 4
Use of Proceeds........................................................... 5
Selling Stockholders...................................................... 5
Plan of Distribution...................................................... 9
Legal Matters............................................................. 10
Experts................................................................... 10
</TABLE>
NETSCAPE COMMUNICATIONS
CORPORATION
6,044,404 SHARES
OF
COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<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............................................... $ 32,486
NASDAQ National Market listing fee................................. 17,500
Legal fees and expenses............................................ 15,000
Accounting fees and expenses....................................... 10,000
Miscellaneous expenses............................................. 20,000
---------
Total.......................................................... $ 94,986
---------
---------
</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, 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 an indemnification agreement having
the form filed as Exhibit 10.1 to Registration Statement No. 33-93862 with each
of its directors and executive officers, 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>
<S> <C>
2.1* Agreement and Plan of Reorganization by and among Netscape Communications
Corporation, Knife Acquisition Corporation and KIVA Software Corporation.
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 1, 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
II-2
<PAGE>
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 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 28th day of January 1998.
<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 has been signed below by the following persons
on the 28th day of January 1998 in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- ------------------------------------------------------------------
<C> <S>
/s/ JAMES L. BARKSDALE*
------------------------------------ President, Chief Executive Officer and Director
James L. Barksdale (PRINCIPAL EXECUTIVE OFFICER)
/s/ PETER L.S. CURRIE
------------------------------------ Executive Vice President and Chief Administrative Officer
Peter L.S. Currie (PRINCIPAL FINANCIAL OFFICER)
/s/ NOREEN G. BERGIN*
------------------------------------ Vice President, Finance and Corporate Controller
Noreen G. Bergin (PRINCIPAL ACCOUNTING OFFICER)
/s/ JAMES H. CLARK*
------------------------------------ Chairman of the Board of Directors
James H. Clark
/s/ MARC L. ANDREESSEN*
------------------------------------ Executive Vice President, Products and Director
Marc L. Andreessen
/s/ ERIC A. BENHAMOU*
------------------------------------ Director
Eric A. Benhamou
/s/ L. JOHN DOERR*
------------------------------------ Director
L. John Doerr
/s/ JOHN E. WARNOCK*
------------------------------------ Director
John E. Warnock
</TABLE>
*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* Agreement and Plan of Reorganization by and among Netscape Communications Corporation, Knife Acquisition
Corporation and KIVA Software Corporation.
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 1, 1997. Filed with the
Commission on December 15, 1997, and incorporated by reference herein.
** Previously Filed
<PAGE>
EXHIBIT 5.1
JANUARY 12, 1998
NETSCAPE COMMUNICATIONS CORPORATION
501 EAST MIDDLEFIELD ROAD
MOUNTAIN VIEW, CA 94043-2232
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by you
with the Securities and Exchange Commission on or about the date hereof (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of up to 6,044,404 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. We assume that the consideration received by you in connection with each
issuance of Shares will include an amount in the form of cash, services rendered
or property that exceeds the greater of (i) the aggregate par value of such
Shares or (ii) the portion of such consideration determined by the Company's
Board of Directors to be "capital" for purposes of the Delaware General
Corporation Law.
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 the
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
January 28, 1998
