As filed with the Securities and Exchange Commission on June 28, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EAGLE RIVER INTERACTIVE, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1320277
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1060 West Beaver Creek Boulevard
Avon, Colorado 81620
(970) 845-8300
(Address of principal executive offices)
Eagle River Interactive, Inc.
1995 Employee Stock Option Plan,
1995 Executive Stock Option Plan and
Employee Stock Purchase Plan
(Full title of the plans)
With a copy to:
Marc Pinto
Executive Vice President Kenneth S. Witt, Esq.
and Chief Financial Officer Freeborn & Peters
Eagle River Interactive, Inc. 950 17th Street, Suite 2600
1060 West Beaver Creek Boulevard Denver, Colorado 80202
Avon, Colorado 81620 (303) 628-4200
(970) 845-8300
(Name, address, including zip code,
and telephone number,including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee
Common Stock
($.001 par value) 3,750,000(2) $19.50 $72,686,250.00 $25,064.22
(1) Pursuant to Rule 457(c), the price per share and aggregate offering
price are based upon the average of the high and low prices of the
Company's Common Stock on June 26, 1996, as reported on the Nasdaq
National Market for the 3,000,000 shares under the 1995 Executive Stock
Option Plan and the 600,000 shares under the 1995 Employee Stock Option
Plan and 85% of such price for the 150,000 shares under the Employee
Stock Purchase Plan.
(2) Consists of 600,000 shares issuable pursuant to the 1995 Employee Stock
Option Plan, 3,000,000 shares issuable pursuant to the 1995 Executive
Stock Option Plan and 150,000 shares issuable pursuant to the Employee
Stock Purchase Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Eagle River Interactive, Inc. (the "Company") hereby
states that the following documents filed with the Securities and
Exchange Commission (the "Commission") are hereby incorporated or
deemed to be incorporated in this Registration Statement by
reference as of their date of filing with the Commission:
(a) The Company's Registration Statement filed on Form
S-1 (No. 333-702), originally filed with the Commission pursuant
to the Securities Act of 1933, as amended (the "Securities Act"),
on January 29, 1996, and all amendments thereto.
(b) The description of the Company's Common Stock
contained in the Company's Registration Statement on Form S-1
(No. 333-702), and all amendments thereto.
(c) The Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996 filed with the Commission on May
15, 1996.
(d) All other documents filed by the Company 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
indicating that all securities offered under the Registration
Statement have been sold, or deregistering all securities then
remaining unsold, are also incorporated herein by reference and
shall be a part hereof from the date of the filing of such
documents.
Any statement contained in a document incorporated by, or
deemed to be 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 which 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 applicable.
Item 5. Interests of Named Experts and Counsel.
Freeborn & Peters has acted as counsel for the Company in
connection with this Registration Statement and has rendered its
opinion in connection therewith. Attorneys employed by this law
firm beneficially own approximately 68,800 shares of the
Company's Common Stock and options to acquire an additional
19,800 shares of Common Stock. Peter I. Mason, a director of the
Company, is a partner of Freeborn & Peters.
Item 6. Indemnification of Directors and Officers.
The Company's By-laws require the Company to indemnify
each of its past, present and future officers and directors
against liabilities and reasonable expenses incurred in any
action or proceeding by reason of such person's being or having
been an officer or director of the Company, or of any other
corporation for which he or she serves as such at the request of
the Company, to the fullest extent permitted by Delaware law,
including those circumstances in which indemnification would
otherwise be discretionary. Indemnification, however, is limited
to officers and directors who have acted in good faith and in a
manner they reasonably believed to be in the best interests of
the Company.
In addition, the Company has entered into Directorship
Agreements with each of its directors. Such agreements require
the Company to indemnify the directors to the fullest extent
permitted by law against all expenses, including attorneys' fees,
judgments, fines and amounts paid or incurred by them for
settlement in any action or proceeding, including any derivative
action, arising out of their service as a director of the Company
or of any subsidiary of the Company or of any other corporation
for which he or she serves as such at the request of the Company.
The Company has no contractual obligation, however, to indemnify
any director on account of liability for any breach of the
director's duty of loyalty to the Company, any act or omission
not in good faith or which involved intentional misconduct or a
knowing violation of laws, or any transaction from which the
director derived an improper personal benefit.
Pursuant to the provisions of the Delaware General
Corporation Law, the Company has adopted provisions in its
Restated Certificate of Incorporation which eliminate the
personal liability of its directors to the Company or its
stockholders for monetary damages incurred as a result of the
breach of their duty of care.
The foregoing description of certain provisions of the
Company's Restated Certificate of Incorporation, By-laws and
Directorship Agreements is qualified in its entirety by reference
to the Company's Restated Certificate of Incorporation, By-laws
and Directorship Agreements, filed as exhibits to the Company's
Registration Statement on Form S-1 (No. 333-702), as amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
4.1 The Company's Restated Certificate of
Incorporation (incorporated by reference to
Exhibit 3.1 to the Registration Statement on Form
S-1 (File No. 333-702)).
4.2 The Company's By-Laws (incorporated by reference
to Exhibit 3.2 to the Registration Statement on
Form S-1 (File No. 333-702)).
4.3 Specimen Certificate for Common Stock
(incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-1 (File No. 333-702)).
4.4 The Company's Executive Stock Option Plan
(incorporated by reference to Exhibit 10.1 to the
Registration Statement on Form S-1 (File No. 333-702)).
4.5 The Company's Employee Stock Option Plan
(incorporated by reference to Exhibit 10.3 to the
Registration Statement on Form S-1 (File No. 333-702)).
4.6 The Company's Amended and Restated Employee Stock
Purchase Plan (incorporated by reference to
Exhibit 10.13 to the Registration Statement on
Form S-1 (File No. 333-702).
4.7 Form of Directorship Agreement (incorporated by
reference to Exhibit 10.10 to the Registration
Statement on Form S-1 (File No. 333-702)).
5.1 Opinion of Freeborn & Peters as to the
legality of the issuance of the Shares.
23.1 Consent of Freeborn & Peters (contained in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (contained on signature pages).
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 herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; and (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 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 Company 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 Avon, State of
Colorado, on this 28th day of June, 1996.
Eagle River Interactive, Inc.
By: /s/ Marc Pinto
Marc Pinto
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
NOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Terence M.
Graunke and Marc Pinto and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to
file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them or their or his substitute or
substitutes, may lawfully 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/ Terence M. Graunke
Terence M. Graunke Chairman of the Board,
President and Chief
Executive Officer June 27, 1996
/s/ Marc Pinto
Marc Pinto Executive Vice
President and Chief
Financial Officer June 27, 1996
/s/ Paul D. Carbery
Paul D. Carbery Director June 27, 1996
/s/ Casey G. Cowell
Casey G. Cowell Director June 27, 1996
/s/ Andrew J. Filipowski
Andrew J. Filipowski Director June 27, 1996
/s/ Rodney L. Goldstein
Rodney L. Goldstein Director June 27, 1996
/s/ Peter I. Mason
Peter I. Mason Director June 27, 1996
/s/ Steven Ness
Steven Ness Director June 27, 1996
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
5.1 Opinion of Freeborn & Peters as to the legality of the
issuance of the Shares.
23.1 Consent of Freeborn & Peters (contained in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on the Signature Page of
this Registration Statement)
June 28, 1996
Eagle River Interactive, Inc.
1060 West Beaver Creek Boulevard
Avon, Colorado 81620
Gentlemen:
We have acted as counsel to Eagle River Interactive, Inc., a
Delaware corporation (the "Company"), in connection with the
preparation and filing of the Registration Statement on Form S-8
(the "Registration Statement"), pertaining to the registration by
the Company of the 3,750,000 shares of its Common Stock, par
value $0.001 per share, pursuant to the Company's 1995 Employee
Stock Option Plan, 1995 Executive Stock Option Plan and Employee
Stock Purchase Plan (collectively, the "Plans"). Terms not
otherwise defined herein shall have the same meaning ascribed to
them in the Registration Statement.
In that connection, we have examined the originals, or
copies certified or otherwise authenticated to our satisfaction,
of such documents, corporate records and other instruments as we
have deemed necessary for the purposes of this opinion, including
the Company's Certificate of Incorporation and Bylaws in effect
on the date hereof and the resolutions of the Board of Directors
of the Company relating to the proposed offering of Common Stock
pursuant to the Registration Statement.
For purposes of this opinion, we have assumed the
authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as
copies, and the authenticity of the originals of all documents
submitted to us as copies. We have also assumed the genuineness
of the signatures of persons signing all documents in connection
with which this opinion is rendered.
Based on the foregoing, we are of the opinion that the
shares of Common Stock under the Plans, the issuance of which is
being registered by the Company, if and when sold and delivered
as described in the Registration Statement, will have been duly
authorized and validly issued, and will constitute fully paid and
nonassessable shares of Common Stock.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to
this firm in the Registration Statement.
We render no opinion as to the laws of any jurisdiction
other than the internal laws of the United States of America and
the internal corporate law of the State of Delaware.
This opinion is furnished to you in connection with the
filing of the Registration Statement and is not to be used,
circulated, quoted or otherwise relied upon for any other
purpose.
Very truly yours,
FREEBORN & PETERS
/s/ Freeborn & Peters
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use
of our reports (and to all references to our Firm) included in or
made a part of this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Denver, Colorado
June 28, 1996
