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As filed with the Securities and Exchange Commission on February 9, 2001
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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REALNETWORKS, INC.
(Exact name of Registrant as specified in its charter)
WASHINGTON 91-1628146
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
2601 ELLIOTT AVENUE, SUITE 1000
SEATTLE, WASHINGTON 98121
(206) 674-2700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
REALNETWORKS, INC. 1996 STOCK OPTION PLAN, AS AMENDED AND RESTATED
REALNETWORKS, INC. 2000 STOCK OPTION PLAN, AS AMENDED AND RESTATED
(FULL TITLE OF THE PLAN)
PAUL BIALEK
SENIOR VICE PRESIDENT--FINANCE AND
OPERATIONS AND CHIEF FINANCIAL
OFFICER
REALNETWORKS, INC.
2601 ELLIOTT AVENUE, SUITE 1000
SEATTLE, WASHINGTON 98121
(206) 674-2700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
KELLY JO MACARTHUR PATRICK J. SCHULTHEIS, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL CHRISTIAN E. MONTEGUT, ESQ.
AND CORPORATE SECRETARY WILSON SONSINI GOODRICH & ROSATI
REALNETWORKS, INC. PROFESSIONAL CORPORATION
2601 ELLIOTT AVENUE, SUITE 1000 5300 CARILLON POINT
SEATTLE, WASHINGTON 98121 KIRKLAND, WASHINGTON 98033-7356
(206) 674-2700 (425) 576-5800
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CALCULATION OF REGISTRATION FEE
=================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE MAXIMUM REGISTRATION
PER SHARE AGGREGATE FEE
OFFERING
PRICE
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Common Stock, $.001 par value 15,000,000 $13.65(2) $204,750,000.00(2) $51,188.00
To be issued under the RealNetworks, Inc.
1996 Stock Option Plan, as amended
and restated
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Common Stock, $.001 par value 4,000,000 $23.24(3) $92,960,000.00(3) $23,240.00
To be issued under the RealNetworks, Inc.
2000 Stock Option Plan, as amended
and restated
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Total 19,000,000 $297,710,000 $74,428.00
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(1)Together with (i) an indeterminate number of shares of Common Stock that
may become issuable under the RealNetworks, Inc. 1996 Stock Option Plan,
as amended and restated and the RealNetworks, Inc. 2000 Stock Option
Plan, as amended and restated (collectively, the "Plans"), as a result of
the adjustment provisions therein, and (ii) if any interests in the Plans
constitute separate securities required to be registered under the
Securities Act of 1933, as amended, then, pursuant to Rule 416(c), an
indeterminate amount of such interests to be offered or sold pursuant to
the Plans.
(2)Estimated in part pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"), and in part pursuant to Rule
457(c) under the Securities Act. With respect to 3,872,328 shares
subject to outstanding options to purchase Common Stock under the Plan,
the Proposed Maximum Offering Price Per Share is equal to the weighted
average exercise price of $28.2855 per share pursuant to Rule 457(h)
under the Securities Act. With respect to 11,127,672 shares of Common
Stock available for future grant under the Plan, the estimated Proposed
Maximum Offering Price Per Share was estimated pursuant to Rule 457(c)
under the Securities Act whereby the per share price is the average
between the high and low price reported on the Nasdaq National Market on
February 6, 2001, which average was $8.563. The Proposed Maximum
Offering Price Per Share represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(c) and 457(h) under
the Securities Act.
(3)Estimated in part pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"), and in part pursuant to Rule
457(c) under the Securities Act. With respect to 3,661,347 shares subject
to outstanding options to purchase Common Stock under the Plan, the
Proposed Maximum Offering Price Per Share is equal to the weighted
average exercise price of $24.5962 per share pursuant to Rule 457(h)
under the Securities Act. With respect to 338,653 shares of Common Stock
available for future grant under the Plan, the estimated Proposed
Maximum Offering Price Per Share was estimated pursuant to Rule 457(c)
under the Securities Act whereby the per share price is the average
between the high and low price reported on the Nasdaq National Market on
February 6, 2001, which average was $8.563. The Proposed Maximum
Offering Price Per Share represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(c)) and 457(h) under
the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1999, filed by the Registrant with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2000, June 30, 2000 and September 30, 2000;
(c) The Registrant's Current Reports on Form 8-K dated January
26, 2000, February 8, 2000 and January 12, 2001;
(d) The Registrant's Current Report on Form 8-K/A dated February
8, 2000;
(e) The Registrant's Current Report on Form 8-K/A dated February
7, 2001;
(f) The description of the Registrant's Common Stock set forth in
the Registration Statement on Form 8-A filed by the Registrant with the
Securities and Exchange Commission on September 26, 1997, including any
amendments or reports filed for the purpose of updating such description; and
(g) The description of the Registrant's preferred stock purchase
rights set forth in the Registration Statement on Form 8-A filed by the
Registrant with the Securities and Exchange Commission on December 14, 1998, as
amended on June 16, 1999 and February 7, 2000, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by the Registrant with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date hereof and prior to the filing of a post-effective amendment
which indicates that all of the securities offered hereby have been sold or
which deregisters all of the securities covered hereby then remaining unsold,
shall also be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof commencing on the respective dates on which
such documents are filed.
Any statement incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
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
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). The registrant's Restated Articles of Incorporation and
Amended and Restated Bylaws provide for indemnification of the registrant's
directors, officers, employees and agents to the maximum extent permitted by
Washington law. The directors and officers of the registrant also may be
indemnified against liability they may incur for serving in that capacity
pursuant to a liability insurance policy maintained by the registrant for such
purpose. Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, knowing violations of law or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. The registrant's Amended and Restated Articles of Incorporation
contain provisions implementing, to the fullest extent permitted by Washington
law, such limitations on a director's liability to the registrant and its
shareholders. The registrant has entered into certain indemnification agreements
with its officers and directors. The indemnification agreements provide the
registrant's officers and directors with indemnification to the maximum extent
permitted by the WBCA.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
Exhibit
Number Description
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4.1 RealNetworks, Inc. 1996 Stock Option Plan, as amended and restated
4.2 RealNetworks, Inc. 2000 Stock Option Plan, as amended and restated
4.3 Form of Stock Option Agreement under 1996 Stock Option Plan, as amended and
restated
4.4 Form of Stock Option Agreement under 2000 Stock Option Plan, as amended and
restated
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in opinion
filed as Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on signature page)
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefits
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this 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. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against
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such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Seattle, State of Washington, on February 7,
2001.
REALNETWORKS, INC.
By: /s/ Robert Glaser
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Robert Glaser
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Robert Glaser and Paul Bialek, and each of them severally, as such
person's attorneys-in-fact, with full power of substitution and resubstitution,
to execute in the name and on behalf of such person, individually and in each
capacity stated below, and to file, any and all amendments to this Registration
Statement, including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on February 7, 2001.
SIGNATURE TITLE DATE
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/s/ Robert Glaser Chairman of the Board and Chief February 7, 2001
- ------------------------------- Executive Officer (Principal Executive
Robert Glaser Officer)
/s/ Paul Bialek Senior Vice President, Finance and February 7, 2001
- ------------------------------- Operations, Chief Financial Officer
Paul Bialek and Treasurer
(Principal Financial and Accounting
Officer)
/s/ Edward Bleier Director February 7, 2001
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Edward Bleier
/s/ James W. Breyer Director February 7, 2001
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James W. Breyer
/s/ Bruce Jacobsen Director February 7, 2001
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Bruce Jacobsen
/s/ Mitchell Kapor Director February 7, 2001
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Mitchell Kapor
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 RealNetworks, Inc. 1996 Stock Option Plan, as amended and restated
4.2 RealNetworks, Inc. 2000 Stock Option Plan, as amended and restated
4.3 Form of Stock Option Agreement under 1996 Stock Option Plan, as amended and
restated
4.4 Form of Stock Option Agreement under 2000 Stock Option Plan, as amended and
restated
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati, P.C. (included in opinion filed
as Exhibit 5.1)
23.2 Consent of KPMG LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on signature page)