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As filed with the Securities and Exchange Commission on August 4, 2000
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)
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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)
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:
JASON ALTIERI
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>
1999 Stock Option Plan
Common Stock, $0.001 par value 6,378,180 shares (1) $33.3464 (2) $212,689,341.50 $ 56,149.99
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1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value 400,000 shares (3) $28.3444 (4) $ 11,337,760 $ 2,993.17
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Total Registration Fees $ 59,143.16
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(1) This number represents the shares of common stock which have become
available for issuance under the registrants 1999 Stock Option Plan as a
result of (i) a previously approved automatic increase feature in the plan
which increased the number of shares for issuance under the plan from
9,737,858 to 11,616,038 on the anniversary of the plan and (ii) 4,500,000
shares approved for issuance under the plan at the registrant's 2000 Annual
Meeting of Stockholders.
(2) Calculated in accordance with Rule 457(h) under the Securities Act of
1933 (the "Act") solely for the purpose of calculating the total registration
fee. The calculation is based upon the average of the high and low prices of
the Common Stock as reported on the Nasdaq National Market on August 2, 2000
because the price at which the options to be granted in the future may be
exercised is not currently determinable.
(3) This number represents the shares of common stock which have become
available for issuance under the registrants 1999 Employee Stock Purchase
Plan as a result of a previously approved automatic increase feature in the
plan which increased the number of shares for issuance under the plan from
400,000 to 800,000 on the anniversary of the adoption of the plan.
(4) Calculated in accordance with Rule 457(h) under the Act 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
August 2, 2000, 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, 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 Annual Report for the fiscal year ended December 31, 1999
on Form 10-K filed pursuant to Section 13 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on March 28, 2000.
(b) The Quarterly Report for the quarterly period ended March 31,
2000 on Form 10-Q filed pursuant to Section 13 and 15(d) of the
Exchange Act on May 12, 2000.
(c) 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.
(d) 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. Mr.
Vaughn owns 70 shares of Viant Corporation common stock. 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 August 4, 2000.
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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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ ROBERT L. GETT
--------------------------------------- President, Chief Executive Officer August 4, 2000
Robert L. Gett and Director (Principal
Executive Officer)
/s/ M. DWAYNE NESMITH
--------------------------------------- Vice President and Chief August 4, 2000
M. Dwayne Nesmith Financial Officer (Principal
Financial and Accounting
Officer)
/s/ WILLIAM H. DAVIDOW
--------------------------------------- Chairman of the Board of August 4, 2000
William H. Davidow Directors
/s/ KEVIN W. ENGLISH
--------------------------------------- Director August 4, 2000
Kevin W. English
/s/ VENETIA KONTOGOURIS
--------------------------------------- Director August 4, 2000
Venetia Kontogouris
/s/ WILLIAM E. KELVIE
--------------------------------------- Director August 4, 2000
William E. Kelvie
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* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant or a committee thereof.
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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>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of
securities being registered (Counsel to the Registrant)
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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