As filed with the Securities and Exchange Commission on October 23, 2003

Registration No. 333-     

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

Yahoo! Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

(Address, Including  Zip Code, of Registrant’s Principal Executive Offices)

 

 

Overture Services, Inc. 1998 Stock Plan

Cadabra, Inc. 1998 Stock Option Plan

 

(Full Title of the Plan)

 

Susan Decker

Executive Vice President, Finance and Administration

Chief Financial Officer

Yahoo! Inc.

701 First Avenue

Sunnyvale, California 94089

408-349-3300

 

(Name, Address and Telephone Number, Including Area Code, of Agent For Service)

 

 

Copies to:

 

CALCULATION OF REGISTRATION FEE

Title of Securities To Be Registered		Amount To Be Registered (1)		Proposed Maximum Offering Price Per Share (2)		Proposed Maximum Aggregate Offering Price		Amount Of Registration Fee
Overture Services, Inc. 1998 Stock Plan Common Stock, $0.001 par value (3)		9,559,403
Cadabra, Inc. 1998 Stock Option Plan Common Stock, $0.001 par value (3)		3,545
TOTAL		9,562,948		$42.025		$401,882,889.70		$32,512.33

 

(1) This Registration Statement shall also cover any additional shares of Common Stock which may become issuable under the Plans being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock.  In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefits plans described herein.

 

(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act on the basis of the average of the high and low sale prices for a share of Common Stock of Yahoo! Inc. as reported on the Nasdaq National Market on October 16, 2003.

 

(3) Including the associated Preferred Stock Purchase Rights.

 

 

This Registration Statement shall become effective upon filing in accordance with Rule 462(a) under the Securities Act.

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.            Plan Information*

 

Item 2.            Registrant Information and Employee Plan Annual Information*

 

* The document(s) containing the information specified in Part I of Form S-8 have been or will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act.

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.            Incorporation of Documents by Reference

 

This Registration Statement incorporates herein by reference the following documents which have been filed with the Securities and Exchange Commission (the “Commission”) by the Registrant:

1.                                       The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2002, filed on March 21, 2003.

2.                                       The Registrant’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2003, filed on May 15, 2003, and the quarter ended June 30, 2003, filed on August 1, 2003.

3.                                       The Registrant’s Current Reports on Form 8-K filed on January 16, 2003, February 13, 2003, April 7, 2003, April 9, 2003, April 10, 2003, April 18, 2003, May 30, 2003, July 9, 2003, July 17, 2003, September 3, 2003 and October 8, 2003.

4.                                       The Registrant’s Current Reports on Form 8-K, as amended, filed on January 8, 2003, March 24, 2003, May 27, 2003, August 8, 2003 and October 10, 2003.

5.                                       The description of the Registrant’s common stock set forth in its Registration Statement on Form 8-A, filed on March 12, 1996, as updated by the Registrant’s Current Report on Form 8-K, filed on August 11, 2000.

6.                                       The description of the Registrant’s preferred stock purchase rights described in the Registrant’s Registration Statement on Form 8-A, filed on March 19, 2001.

All other documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which de-

 

 

registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a 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

 

                Not Applicable.

 

Item 6.            Indemnification of Directors and Officers

Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) allows for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. Article XII of our amended and restated certificate of incorporation and Article VI of our bylaws authorize indemnification of our directors, officers, employees and other agents to the extent and under the circumstances permitted by the DGCL.

We have entered into agreements with our directors and certain officers that will require us, among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers to the fullest extent not prohibited by law. We maintain liability insurance for the benefit of our officers and directors.

The above discussion of the DGCL and of our amended and restated certificate of incorporation, bylaws and indemnification agreements is not intended to be exhaustive and is qualified in its entirety by such statute, amended and restated certificate of incorporation, bylaws and indemnification agreements.

 

Item 7.            Exemption From Registration Claimed

 

                Not Applicable.

 

Item 8.            Exhibits

 

Exhibit No.		Description
4.1*		Overture Services, Inc. 1998 Stock Plan.  Incorporated by reference from Exhibit 10.1 of the Registration Statement on Form S-8 (#333-58410) filed by Overture Services, Inc. on April 6, 2001.
4.2*		Cadabra, Inc. 1998 Stock Option Plan.  Incorporated by reference from Exhibit 4.1 of the Registration Statement on Form S-8 (#333-30062) filed by Overture Services, Inc. on February 10, 2000.
4.3*		Amended and Restated Certificate of Incorporation of Yahoo! Inc.  Incorporated by reference from Exhibit 3.1 of the Quarterly Report on Form 10-Q for the period ended June 30, 2000 as filed by the Registrant on July 28, 2000.
4.4*		Amended Bylaws of Yahoo! Inc.  Incorporated by reference from Exhibit 4.9 to the Form S-8 filed by the Registrant on March 5, 2002.

 

 

4.5*		Rights Agreement, dated as of March 15, 2001, by and among, the Registrant, and EquiServe Trust Company, N.A., as Rights Agent, including the form of Rights Certificate as Exhibit B and the Summary of Rights to Purchase Preferred Stock as Exhibit C.  Incorporated by reference from Exhibit 4.1 to the Current Report on Form 8-K filed by the Registrant on March 19, 2001.
4.6*		Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock of the Registrant.  Incorporated by reference from Exhibit 4.8 to the Quarterly Report on Form 10-Q for the quarter ended March 31, 2001 filed by the Registrant on May 4, 2001.
5.1		Opinion of Skadden, Arps, Slate, Meagher and Flom LLP.
23.1		Consent of Skadden, Arps, Slate, Meagher and Flom LLP (included in Exhibit 5.1).
23.2		Consent of PricewaterhouseCoopers LLP, independent accountants of Yahoo! Inc.
23.3		Consent of PricewaterhouseCoopers LLP, independent accountants of Inktomi Corporation.
23.4		Consent of Ernst & Young LLP, independent accountants of Overture Services, Inc.
23.5		Consent of KPMG LLP, independent accountants of AltaVista Company.
23.6		Consent of Deloitte & Touche AS, independent accountants of the Internet Business Unit of Fast Search & Transfer ASA.
24.1		Power of Attorney (included on Signature page hereto).

*              Not filed herewith; previously filed as noted.

 

Item 9.            Undertakings

 

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 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.

 

 

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.

 

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 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.

 

 

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 Sunnyvale, State of California, on this 22nd day of October 2003.

 

 

	YAHOO! INC.
	By:	/s/ SUSAN DECKER
		Susan Decker
		Executive Vice President,
		Finance and Administration and Chief Financial Officer

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Terry Semel and Susan Decker, and each of them, as his or her attorney-in-fact, with full power of substitution in each, 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 attorneys-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, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature		Title		Date
/s/ TERRY SEMEL		Chairman of the Board and Chief Executive Officer		October 22, 2003
Terry Semel		(Principal Executive Officer)
/s/ SUSAN DECKER		Executive Vice President, Finance and Administration		October 22, 2003
Susan Decker		and Chief Financial Officer (Principal Financial Officer)
/s/ PATRICIA CUTHBERT		Vice President and Corporate Controller		October 22, 2003
Patricia Cuthbert		(Principal Accounting Officer)
/s/ ROY BOSTOCK		Director		October 21, 2003
Roy Bostock

 

 

/s/ RONALD BURKLE		Director		October 22, 2003
Ronald Burkle
/s/ ERIC HIPPEAU		Director		October 22, 2003
Eric Hippeau
/s/ ARTHUR KERN		Director		October 22, 2003
Arthur Kern
/s/ ROBERT KOTICK		Director		October 22, 2003
Robert Kotick
/s/ EDWARD KOZEL		Director		October 22, 2003
Edward Kozel
/s/ GARY WILSON		Director		October 22, 2003
Gary Wilson
/s/ JERRY YANG		Director		October 22, 2003
Jerry Yang

 

 

Exhibit Index

 

Exhibit No.		Description
4.1*		Overture Services, Inc. 1998 Stock Plan.  Incorporated by reference from Exhibit 10.1 of the Registration Statement on Form S-8 (#333-58410) filed by Overture Services, Inc. on April 6, 2001.
4.2*		Cadabra, Inc. 1998 Stock Option Plan.  Incorporated by reference from Exhibit 4.1 of the Registration Statement on Form S-8 (#333-30062) filed by Overture Services, Inc. on February 10, 2000.
4.3*		Amended and Restated Certificate of Incorporation of Yahoo! Inc.  Incorporated by reference from Exhibit 3.1 of the Quarterly Report on Form 10-Q for the period ended June 30, 2000 as filed by the Registrant on July 28, 2000.
4.4*		Amended Bylaws of Yahoo! Inc.  Incorporated by reference from Exhibit 4.9 to the Form S-8 filed by the Registrant on March 5, 2002.
4.5*		Rights Agreement, dated as of March 15, 2001, by and among, the Registrant, and EquiServe Trust Company, N.A., as Rights Agent, including the form of Rights Certificate as Exhibit B and the Summary of Rights to Purchase Preferred Stock as Exhibit C.  Incorporated by reference from Exhibit 4.1 to the Current Report on Form 8-K filed by the Registrant on March 19, 2001.
4.6*		Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock of the Registrant.  Incorporated by reference from Exhibit 4.8 to the Quarterly Report on Form 10-Q for the quarter ended March 31, 2001 filed by the Registrant on May 4, 2001.
5.1		Opinion of Skadden, Arps, Slate, Meagher and Flom LLP.
23.1		Consent of Skadden, Arps, Slate, Meagher and Flom LLP (included in Exhibit 5.1).
23.2		Consent of PricewaterhouseCoopers LLP, independent accountants of Yahoo! Inc.
23.3		Consent of PricewaterhouseCoopers LLP, independent accountants of Inktomi Corporation.
23.4		Consent of Ernst & Young LLP, independent accountants of Overture Services, Inc.
23.5		Consent of KPMG LLP, independent accountants of AltaVista Company.
23.6		Consent of Deloitte & Touche AS, independent accountants of the Internet Business Unit of Fast Search & Transfer ASA.
24.1		Power of Attorney (included on Signature page hereto).

*              Not filed herewith; previously filed as noted.

 

Exhibit 5.1

 

 

October 23, 2003

 

 

Yahoo! Inc.

701 First Avenue

Sunnyvale, California 94089

 

Re:	Yahoo! Inc.
	Form S-8 Registration Statement

 

Ladies and Gentlemen:

 

We have acted as special counsel to Yahoo! Inc., a Delaware corporation (the “Company”), in connection with the registration of 9,562,948 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable pursuant to the following plans: (1) the Overture Services, Inc. 1998 Stock Plan and (2) the Cadabra, Inc. 1998 Stock Option Plan (collectively, the “Plans”).

 

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Act”).

 

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Company’s Registration Statement on Form S-8 (the “Registration Statement”) as filed with the Securities and Exchange Commission (the “Commission”) on October 23, 2003 under the Act relating to the sale of the Shares; (ii) a specimen certificate representing the Common Stock; (iii) the Amended and Restated Certificate of Incorporation of the Company, as presently in effect; (iv) the Amended Bylaws of the Company, as presently in effect; (v) the Plans; and (vi) certain resolutions of the Board of Directors of the Company relating to the issuance and sale of the Shares and related matters.  We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein.

 

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents.  In making our examination of documents executed or to be executed by parties other than the Company, we have assumed that such parties had or will have the power, corporate or other, to enter into and perform all obligations thereunder, and we have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof.  As to any facts material to the opinions expressed herein that we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others.

 

 

We have also assumed that each award agreement setting forth the terms of each grant of options or other awards under the applicable Plan is consistent with such Plan and has been duly authorized and validly executed and delivered by the parties thereto.

 

We do not express any opinion as to the laws of any jurisdiction other than the corporate laws of the State of Delaware, and we do not express any opinion as to the effect of any other laws on the opinion stated herein.

 

Based upon and subject to the foregoing, we are of the opinion that when (i) the Registration Statement becomes effective under the Act; (ii) certificates representing the Shares to be issued under the Plans in the form of the specimen certificate examined by us have been manually signed by an authorized officer of the transfer agent and registrar for the Common Stock and registered by such transfer agent and registrar, and such certificates have been delivered and paid for in accordance with the terms and conditions of the applicable Plan at a price per share not less than the per share par value of the Common Stock, the issuance and sale of such Shares will have been duly authorized, and such Shares will be validly issued, fully paid and nonassessable.

 

We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement.  In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.

	Very truly yours,
	/s/ Skadden, Arps, Slate, Meagher & Flom LLP

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT ACCOUNTANTS

 

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 15, 2003, except for Note 14, which is as of March 19, 2003, relating to the consolidated financial statements and financial statement schedule, which appears in Yahoo! Inc.’s Annual Report on Form 10-K for the year ended December 31, 2002.

 

 

/s/ PricewaterhouseCoopers

 

 

 

San Jose, California

October 22, 2003

 

 

 

Exhibit 23.3

 

CONSENT OF INDEPENDENT ACCOUNTANTS

 

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated October 23, 2002 (except as to recently issued accounting pronouncements in Note 2, discontinued operations in Note 3, and subsequent events listed in Note 1 and 19, which are as of December 27, 2002) relating to the consolidated financial statements of Inktomi Corporation, which appears in Exhibit 99.3 of the Current Report on Form 8-K/A of Yahoo! Inc. filed May 27, 2003. We also consent to the incorporation by reference of our report dated October 23, 2002 (except as to recently issued accounting pronouncements in Note 2 and as to the subsequent events listed in Note 19, which are as of December 27, 2002) relating to the financial statement schedule of Inktomi Corporation, which appears in Inktomi Corporation’s Annual Report on Form 10-K for the year ended September 30, 2002, which is incorporated by reference in the Current Report on Form 8-K of Yahoo! Inc. filed February 13, 2003.

 

 

/s/ PricewaterhouseCoopers

 

 

San Jose, California

October 22, 2003

 

 

Exhibit 23.4

 

Consent of Independent Auditors

 

 

We consent to the use of our report dated January 30, 2003, with respect to the financial statements of Overture Services, Inc. included in the Form 8-K/A of Yahoo! Inc., dated August 8, 2003 which is incorporated by reference in the Registration Statement on Form S-8 of Yahoo!, Inc. pertaining to the Overture Services, Inc. 1998 Stock Plan and Cadabra, Inc. 1998 Stock Option Plan, filed with the Securities and Exchange Commission.

 

 

/s/ Ernst & Young LLP

 

Los Angeles, California

October 22, 2003

 

Exhibit 23.5

 

Independent Auditors’ Consent

 

We consent to the use of our report dated April 16, 2003, with respect to the consolidated balance sheets of AltaVista Company and subsidiaries as of July 31, 2002 and July 31, 2001, and the related consolidated statements of operations, changes in owners’ equity (deficit), and cash flows for the years ended July 31, 2002 and July 31, 2001 and for the period from August 19, 1999 to July 31, 2000, incorporated herein by reference.

 

Our report dated April 16, 2003 contains an explanatory paragraph that states that the Company has suffered recurring losses from operations and has a net capital deficiency, which raise substantial doubt about its ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.

 

/s/ KPMG LLP

 

Mountain View, CA

October 20, 2003

 

Exhibit 23.6

Consent of Independent Auditor

 

We consent to the incorporation by reference in this Registration Statement of Yahoo! Inc. on Form S-8 pertaining to the Overture Services, Inc. 1998 Stock Plan and the Cadabra, Inc. 1998 Stock Option Plan of our report dated March 25, 2003 (except for Note 10 which is as of April 21, 2003), with respect to the combined financial statements of the Internet Business Unit of Fast Search and Transfer ASA for the year ended December 31, 2002, appearing in the Current Report on Form 8-K/A of Yahoo! Inc.

 

 

/s/ Deloitte & Touche AS

 

 

Oslo, Norway

October 22, 2003