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As filed with the Securities and Exchange Commission on December 21, 1999
Registration No. 333-_________
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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VIANT CORPORATION
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 7371 77-0427302
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
89 SOUTH STREET
Boston, MA 02111
(617) 531-3700
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
1996 STOCK OPTION PLAN
1999 STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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ROBERT L. GETT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VIANT CORPORATION
89 SOUTH STREET
BOSTON, MA 02111
(617) 531-3700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
ISSAC VAUGHN, Esq.
JASON ALTIERI, Esq.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this Registration Statement.
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, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Amount Offering Maximum
Title of Each Class of Securities to to be Price Aggregate Amount of
be Registered Registered Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
1996 Stock Option Plan
Common Stock, $0.001 par value
(currently outstanding options) (1) ....... 2,674,023 shares $ 1.1026 $ 2,948,470 $ 778.40
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1996 Stock Option Plan
Common Stock, $0.001 par value
(options available for future grant) (2).. 1,058,968 shares $ 48.6875 $ 104,506,904.50 $ 27,589.82
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Total 1996 Stock Option Plan shares
registered 3,732,991 shares $ 107,455,374.50 $ 28,368.22
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1999 Stock Option Plan
Common Stock, $0.001 par value
(currently outstanding options) (3) ....... 3,080,316 shares $ 19.8619 $ 61,180,928.36 $ 16,151.77
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1999 Stock Option Plan
Common Stock, $0.001 par value
(options available for future grant) (4)... 1,771,238 shares $ 98.6875 $ 174,799,050.00 $ 46,146.95
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Total 1999 Stock Option Plan shares
registered 4,851,554 shares $ 235,979,978.36 $ 62,298.72
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1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value (5).......... 200,000 shares $ 83.8843 $ 16,776,860 $ 4,429.09
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Total Registration Fees $ 95,096.03
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(1) The computation is based upon the weighted average exercise price per share
of $1.1026 as to 2,674,023 outstanding but unexercised options as of
December 17, 1999 to purchase Common Stock under the 1996 Stock Option Plan
(the "1996 Plan").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 1,058,968 shares of Common Stock authorized for issuance pursuant
to the 1996 Plan, solely for the purpose of calculating the registration
fee. No options have been granted with respect to such shares. The
computation is based upon the average of the high and low price of the
Common Stock as reported on the Nasdaq National Market on December 16,
1999 because the price at which the options to be granted in the future may
be exercised is not currently determinable.
(3) The computation is based upon the weighted average exercise price per share
of $19.8619 as to 3,080,316 outstanding but unexercised options as of
December 17, 1999 to purchase Common Stock under the 1999 Stock Option Plan
(the "1999 Plan").
(4) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 1,771,238 shares of Common Stock authorized for issuance pursuant
to the 1999 Plan, solely for the purpose of calculating the registration
fee. No options have been granted with respect to such shares. The
computation is based upon the average of the high and low price of the
Common Stock as reported on the Nasdaq National Market on December 16,
1999 because the price at which the options to be granted in the future may
be exercised is not currently determinable.
(5) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
December 16, 1999 because the price at which the options to be granted in
the future may be exercised is not currently determinable. Pursuant to the
1999 Employee Stock Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The audited financial statements of the Registrant for the
three fiscal years in the periods ended December 31, 1997,
December 31, 1998 and January 1, 1999, respectively, contained
in the Registration Statement on Form S-1, dated December 7,
1999, filed under the Securities Act of 1933 on December 8,
1999, of which the Registrant's most recent prospectus filed
pursuant to Rule 424(b)(4), dated December 7, 1999, is a
part thereof.
(b) The description of the Common Stock of the Registrant that is
contained in the Registration Statement on Form 8-A filed
pursuant to Section 12 of the Exchange Act on June 8, 1999 and
Amendment No. 1 to the Registration Statement on Form 8-A filed
pursuant to Section 12 of the Exchange Act on June 14, 1999.
(c) The Quarterly Report for the quarterly period ended July 2, 1999
on Form 10-Q filed pursuant to Section 13 and 15(d) of the
Exchange Act on August 12, 1999.
(d) The Quarterly Report for the quarterly period ended October 1,
1999 on Form 10-Q filed pursuant to Section 13 and 15(d) of
the Exchange Act on November 9, 1999.
(e) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing
of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
in the 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.
Issac J. Vaughn, a member of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, is an Assistant Secretary of the Registrant. Wilson
Sonsini Goodrich & Rosati is corporate counsel to the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has adopted provisions in its Certificate of
Incorporation that eliminate the personal liability of its directors and
officers for monetary damages arising from a breach of their fiduciary duties in
certain circumstances to the fullest extent permitted by law and authorizes the
Registrant to indemnify its directors and officers to the fullest extent
permitted by law. Such limitation of liability does not affect the availability
of equitable remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933
(the "Securities Act"). The
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Registrant has entered into indemnification agreements to such effect with its
officers and directors containing provisions which are in some respects broader
than the specific indemnification provisions contained in the General
Corporation Law of Delaware. The indemnification agreements may require the
Company, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers (other than liabilities arising from willful misconduct of
a culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as
part hereof, or incorporated by reference into, this Registration Statement.
(See Exhibit Index below).
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 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 of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 an 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 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 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 the City of Boston, State of Massachusetts on December 21, 1999.
VIANT CORPORATION
By: /s/ M. DWAYNE NESMITH
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M. Dwayne Nesmith
Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert L. Gett and M. Dwayne Nesmith,
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
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, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ ROBERT L. GETT
--------------------------------------- President, Chief Executive Officer December 21, 1999
Robert L. Gett and Director (Principal
Executive Officer)
/s/ M. DWAYNE NESMITH
--------------------------------------- Vice President and Chief December 21, 1999
M. Dwayne Nesmith Financial Officer (Principal
Financial and Accounting
Officer)
WILLIAM H. DAVIDOW
--------------------------------------- Chairman of the Board of December 21, 1999
William H. Davidow Directors
KEVIN W. ENGLISH
--------------------------------------- Director December 21, 1999
Kevin W. English
/s/ VENETIA KONTOGOURIS
--------------------------------------- Director December 21, 1999
Venetia Kontogouris
/s/ WILLIAM E. KELVIE
--------------------------------------- Director December 21, 1999
William E. Kelvie
</TABLE>
* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
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INDEX TO EXHIBITS
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Sequentially
Exhibit Number Exhibit Document Numbered Page
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<S> <C> <C>
3.5* Bylaws of Registrant
4.1* Certificate of Incorporation of Registrant
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of
securities being registered (Counsel to the Registrant)
10.8* 1996 Stock Option Plan
10.9* 1999 Stock Option Plan
10.10* 1999 Employee Stock Purchase Plan
23.1 Consent of PricewaterhouseCoopers LLP (Independent Accountants)
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see page II-3)
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* Incorporated by reference to the Company's Registration Statement
on Form S-1 (File No. 333-76049), effective June 18, 1999.
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[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
EXHIBIT 5.1
December 21, 1999
Viant Corporation
89 South Street
Boston, MA 02111
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about December 21, 1999
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the 1996 Stock Option Plan (as to
3,732,991 shares), the 1999 Stock Option Plan (as to 4,851,554 shares) and of
the 1999 Employee Stock Purchase Plan (as to 200,000 shares) (collectively, the
"Plans" and the "Shares" as appropriate). As legal counsel for Viant
Corporation, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and sale
of the Shares pursuant to the Plans.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, will be legally and 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 and any amendments thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 16, 1999 relating to the
financial statements of Viant Corporation which appears in the Registration
Statement on Form S-1 dated December 7, 1999. We also consent to the
application of such report to the Financial Statement Schedule listed under
Item 16(b) of the Registration Statement on Form S-1 dated December 7, 1999
when such schedule is read in conjunction with the financial statements
referred to in our report.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
December 21, 1999
