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As filed with the Securities and Exchange Commission on May 30, 1996
Registration No. 33-48395
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NOVELL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 87-0393339
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1555 NORTH TECHNOLOGY WAY
OREM, UT 84057
(Address, including zip code,
of principal executive offices)
NOVELL, INC. 1989 EMPLOYEE STOCK PURCHASE PLAN
1991 STOCK PLAN
(Full titles of the plans)
DAVID R. BRADFORD, ESQ.
SENIOR VICE PRESIDENT, GENERAL
COUNSEL AND CORPORATE SECRETARY
NOVELL, INC.
1555 NORTH TECHNOLOGY WAY
OREM, UTAH 84057
(801) 222-6000
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
Tor R. Braham, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(2)
- --------------------------------------------------------------------------------------------------------------------------------
Common Stock
par value $0.10:
- - Upon exercise of options under Novell,
Inc. 1989 Employee Stock Purchase Plan 1,316,602 ----- ----- -----
- - Upon exercise of options and stock
purchase rights under 1991 Stock Plan 18,683,398 ----- ----- -----
- ---------------------------------------- ----------------------- ---------------------- --------------------- ---------------
TOTAL 20,000,000 ----- ----- -----
- ---------------------------------------- ----------------------- ---------------------- --------------------- ---------------
(1) The purpose of the filing of this Post-Effective Amendment No. 1 is to
correct the designation of the plans to which it relates and to
properly indicate the allocation of the shares registered in the
original Registration Statement on Form S-8 (File No. 33-48395) between
the plans covered.
(2) All shares were previously registered under the Registration Statement
on Form S-8 (File No. 33-48395) filed with the Securities and Exchange
Commission (the "Commission") on June 5, 1992. A registration fee of
$165,260, calculated according to Rule 457(c), was paid upon the
previous registration of the shares. Accordingly, no fee is included
herewith.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
1. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated April 3, 1985,
and the description of the Registrant's Preferred Shares Rights Plan
and the Series A Junior Participating Preferred Shares issuable
thereunder contained in the Registration Statement on Form 8-A dated
December 12, 1988, filed pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such
descriptions.
2. The Registrant's Annual Report on Form 10-K for the year ended October
28, 1995, filed pursuant to Section 13(a) of the Exchange Act.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 27, 1996, filed pursuant to Section 13 of the Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date of filing of this
Post-Effective Amendment to Registration Statement and prior to the filing of a
post-effective amendment indicating that all securities offered have been sold
or deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Counsel for the Registrant, Wilson Sonsini Goodrich & Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304, has
rendered an opinion to the effect that the Common Stock offered hereby will,
when issued in accordance with the Registrant's 1991 Stock Plan or 1989 Employee
Stock Purchase Plan, be legally and validly issued, fully paid and
nonassessable. Larry W. Sonsini, a member of such law firm, is a director of the
Registrant and owns 6,600 shares of Registrant's Common Stock plus options to
purchase an additional 55,000 shares of Registrant's Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). Further, in accordance with the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation eliminates the liability of a director
of the Registrant to the Registrant and its stockholders for monetary damages
for breaches of such director's fiduciary duty of care in certain instances.
Article VII of the Bylaws of the Registrant provides for indemnification of
certain agents to the maximum extent permitted by the Delaware General
Corporation Law. Persons covered by this indemnification provision include any
current or former directors, officers, employees and other agents of the
Registrant, as well as persons who serve at the request of the Registrant as
directors, officers, employees or agents of another enterprise.
In addition, the Registrant has entered into contractual agreements
with certain directors and officers of the Registrant designated by the Board to
indemnify such individuals to the full extent permitted by law. These agreements
also resolve certain procedural and substantive matters that are not covered, or
are covered in less detail, in the Bylaws or by the Delaware General Corporation
Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Number Document
----- --------
4.1 Novell, Inc. 1989 Employee Stock Purchase Plan, together with forms of Subscription
Agreement and Withdrawal Agreement thereunder.
4.2* Summary memorandum of the Novell, Inc. 1989 Employee Stock Purchase Plan.
4.3 Novell, Inc. 1991 Stock Plan and forms of Option Agreement currently used thereunder.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati with respect to the securities being
registered (1991 Stock Plan).
5.2 Opinion of Wilson Sonsini Goodrich & Rosati with respect to the securities being
registered (1989 Employee Stock Purchase Plan).
23.1*** Consent of Independent Auditors (Ernst & Young LLP).
23.2*** Consent of Independent Auditors (Price Waterhouse LLP).
23.3 Consent of Counsel (contained in Exhibits 5.1 and 5.2).
24.1 Power of Attorney (See page II-6).
* Incorporated by reference to exhibit filed with the Registrant's
Registration Statement on Form S-8 (File No. 33-31299) filed on
September 28, 1989.
** Incorporated by reference to exhibit filed with the Registrant's
Registration Statement on Form S-8 (File No. 33-48395) filed on June
5, 1992.
*** Incorporated by reference to exhibit filed with the Registrant's Form
10-K for the fiscal year ended October 28, 1995 (File No. 0-13351)
filed on January 26, 1996.
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 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
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securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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.
(h) 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 provisions described in Item 6 hereof, 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in San Jose, California on May 29, 1996.
NOVELL, INC.
By: /s/ Robert J. Frankenberg
------------------------------------
Robert J. Frankenberg
Chairman of the Board, President,
Chief Executive Officer and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Frankenberg and David R.
Bradford, jointly and severally, his or her attorneys-in-fact, each with the
power of substitution, for him or her in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorney-in-fact, or his substitute or substitutes, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------------------------------- -------------------------------------- ----------------
/s/ Robert J. Frankenberg Chairman of the Board, President, May 29, 1996
- --------------------------------------------------
Robert J. Frankenberg Chief Executive Officer and Director
(Principal Executive Officer)
/s/ James R. Tolonen Executive Vice President and Chief May 29, 1996
- --------------------------------------------------
James R. Tolonen Financial Officer (Principal Financial
Officer)
/s/ Stephen C. Wise Senior Vice President, Finance May 29, 1996
- --------------------------------------------------
Stephen C. Wise (Chief Accounting Officer)
/s/ Alan C. Ashton Director May 29, 1996
- --------------------------------------------------
Alan C. Ashton
/s/ Elaine R. Bond Director May 29, 1996
- --------------------------------------------------
Elaine R. Bond
/s/ Hans-Werner Hector Director May 29, 1996
- --------------------------------------------------
Hans-Werner Hector
/s/ Jack L. Messman Director May 29, 1996
- --------------------------------------------------
Jack L. Messman
Director
- --------------------------------------------------
Larry W. Sonsini
/s/ Ian R. Wilson Director May 29, 1996
- --------------------------------------------------
Ian R. Wilson
/s/ John A. Young Director May 29, 1996
- -------------------------------------
John A. Young
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INDEX TO EXHIBITS
Exhibit
Number Description
- -------------- ----------------------------------------------------------------------------------------------
4.1 Novell, Inc. 1989 Employee Stock Purchase Plan, together with forms of Subscription
Agreement and Withdrawal Agreement thereunder.
4.2* Summary memorandum of the Novell, Inc. 1989 Employee Stock Purchase Plan.
4.3 Novell, Inc. 1991 Stock Plan and forms of Option Agreement currently used thereunder.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati with respect to the securities being registered
(1991 Stock Plan).
5.2 Opinion of Wilson Sonsini Goodrich & Rosati with respect to
the securities being registered (1989 Employee Stock Purchase
Plan).
23.1*** Consent of Independent Auditors (Ernst & Young LLP).
23.2*** Consent of Independent Auditors (Price Waterhouse LLP).
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (See page II-6).
- ---------------------
* Incorporated by reference to exhibit filed with the
Registrant's Registration Statement on Form S-8 (File No.
33-3129) filed on September 28, 1989.
** Incorporated by reference to exhibit filed with the Registrant's
Registration Statement on Form S-8 (File No. 33-48395) filed on June 5,
1992.
*** Incorporated by reference to exhibits filed with the Registrant's Form
10-K for the fiscal year ended October 28, 1995 (File No. 0-13351)
filed on January 26, 1996.