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As filed with the Securities and Exchange Commission on February 11, 2000
Registration No. 333- ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________
VICINITY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 77-0414631
(State of Incorporation) (I.R.S. Employer Identification No.)
______________________________
1135A San Antonio Road
Palo Alto, California 94303
(Address of Principal Executive Offices including Zip Code)
______________________________
VICINITY CORPORATION
2000 EQUITY PARTICIPATION PLAN
(Full Title of the Plan)
______________________________
Emerick M. Woods Copy to:
Chief Executive Officer Christopher L. Kaufman, Esq.
Vicinity Corporation Anthony J. Richmond, Esq.
1135A San Antonio Road Latham & Watkins
Palo Alto, California 94303 135 Commonwealth Drive
(650) 237-0300 Menlo Park, California 94025
(650) 328-4600
______________________________
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code for Agent for Service)
______________________________
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
Proposed Maximum
Maximum Amount of
Amount Offering Aggregate Amount of
Title of Securities to be Registered to be Price Offering Registration
Registered(1) Per Share(2) Price(2) Fee(2)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value.................... 2,323,900 $27.82 $64,650,898 $17,068
shares
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This registration statement shall also cover any additional shares of common
stock which become issuable under the Vicinity Corporation 2000 Equity
Participation Plan (the "Plan") by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding shares of common stock of Vicinity Corporation (the
"Corporation").
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended
(the "Securities Act"), and is based on (i) the exercise price of ($12.00)
of previously granted options for 1,011,250 shares, and (ii) the average of
the high and low prices per share of Common Stock ($40.00) of the
Corporation as reported on the Nasdaq National Market System on February 9,
2000 for 1,312,650 shares.
Proposed sale to take place as soon after the effective date of the Registration
Statement as options granted under the Plan are exercised.
================================================================================
Total pages 9
Exhibit Index on Page 7
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or
included in this Form S-8 (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents which we filed with the Commission are incorporated by
reference into this registration statement:
(a) Our Prospectus filed pursuant to Rule 424(b) under the Securities Act
as filed with the Commission (File No. 333-90253), together with any
amendments filed with the Commission; and
(b) The description of Common Stock contained in our registration
statement on Form 8-A (File No. 000-29365) filed with the Commission on
February 7, 2000 pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including any subsequent amendment or
report filed for the purpose of amending such description.
The financial statements and financial statement schedule of Vicinity
Corporation as of July 31, 1998 and 1999 and for each of the years in the
three-year period ended July 31, 1999, have been incorporated by reference in
this registration statement in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
In addition, all documents which we file pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part of this registration statement from the date of the filing of
such documents. Any statement contained in a document incorporated 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 in this registration statement, or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference in this registration statement, modifies or supersedes such
statement. Any such 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.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Our Restated Certificate of Incorporation (the "Certificate") provides that,
except to the extent prohibited by the Delaware General Corporation Law, as
amended (the "DGCL"), the Registrant's directors shall not be personally liable
to the Registrant or its stockholders for monetary damages for any breach of
fiduciary duty as directors of the
2
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Registrant. Under the DGCL, the directors have a fiduciary duty to the
Registrant which is not eliminated by this provision of the Certificate and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available. In addition, each director will
continue to be subject to liability under the DGCL for breach of the director's
duty of loyalty to the Registrant, for acts or omissions which are found by a
court of competent jurisdiction to be not in good faith or involving intentional
misconduct, for knowing violations of law, for actions leading to improper
personal benefit to the director, and for payment of dividends or approval of
stock repurchases or redemptions that are prohibited by the DGCL. This provision
also does not affect the directors' responsibilities under any other laws, such
as the Federal securities laws. The Registrant may obtain liability insurance
for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its directors and
officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that this provision
shall not eliminate or limit the liability of a director: (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) arising under Section 174 of the DGCL or (iv)
for any transaction from which the director derived an improper personal
benefit. The DGCL provides further that the indemnification permitted thereunder
shall not be deemed exclusive of any other rights to which the directors and
officers may be entitled under the corporation's bylaws, any agreement, a vote
of stockholders or otherwise. The Certificate eliminates the personal liability
of directors to the fullest extent permitted by Section 102(b)(7) of the DGCL
and provides that the Registrant may fully indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that such person is or was a director or
officer of the Registrant, or is or was serving at the request of the Registrant
as a director or officer of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
We have entered into agreements to indemnify our directors and officers, in
addition to the indemnification provided for in the Bylaws. We believe that
these provisions and agreements are necessary to attract and retain qualified
directors and officers. Our Bylaws also permit us to secure insurance on behalf
of any officer, director, employee or other agent for any liability arising out
of his or her actions, regardless of whether the DGCL would permit
indemnification.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
See Index to Exhibits on Page 7.
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;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or
3
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high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference 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, 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 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.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Vicinity Corporation, a Delaware corporation, 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 Palo Alto, State of
California, on this 7th day of February, 2000.
Vicinity Corporation
By: /s/ Emerick M. Woods
_______________________
Emerick M. Woods
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Emerick M. Woods and David Seltzer and
each of them, with full power of substitution and resubstitutions and full power
to act without the other, his or her true and lawful attorneys-in-fact and
agents to act for him or her in his or her name, place or stead, in any and all
capacities, to sign any amendments to this registration statement on Form S-8
(including post-effective amendments) and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her substitute or substitutes, may lawfully 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 on
February 7, 2000.
Signature Title
- --------- -----
/s/ Emerick M. Woods
____________________________ Chief Executive Officer and Director
Emerick M. Woods (Principal Executive Officer)
/s/ David Seltzer
____________________________ Chief Financial Officer (Principal
David Seltzer Financial and Accounting Officer)
/s/ Herbert M. Dwight, Jr.
_____________________________ Chairman of the Board of Directors
Herbert M. Dwight, Jr.
/s/ Jonathan Callaghan
_____________________________ Director
Jonathan Callaghan
/s/ Jim Geddes
_____________________________ Director
James J. Geddes, Jr.
/s/ Fred Gibbons
_____________________________ Director
Fred Gibbons
/s/ Peter Mills
_____________________________ Director
Peter Mills
/s/ Norman Nie
______________________________ Director
Norman Nie
5
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/s/ Michael Sears
______________________________ Director
Michael Sears
/s/ Peter Ziebelman
______________________________ Director
Peter Ziebelman
6
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number Number
- ------- ------
<S> <C>
5.1 Opinion of Latham & Watkins. 8
23.1 Consent of Latham & Watkins (included in Exhibit 5.1). 8
23.2 Consent of KPMG LLP. 9
24.1 Power of Attorney (included on page 5 of this registration statement). 5
</TABLE>
______________________________
7
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EXHIBIT 5.1
OPINION OF LATHAM & WATKINS
[Letterhead of LATHAM & WATKINS]
February 10, 2000
Vicinity Corporation
1135A San Antonio Road
Palo Alto, California 94303
Re: Registration Statement on Form S-8
----------------------------------
Ladies/Gentlemen:
In connection with the registration under the Securities Act of 1933, as
amended (the "Act"), of an aggregate of 3,009,705 shares (the "Shares") of
common stock, par value $0.001 per share, of Vicinity Corporation (the
"Company") that may become issuable under the Company's 2000 Equity
Participation Plan (the "Plan") by the Company on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission"), you have requested our opinion with respect to the matters set
forth below.
We have made such legal and factual examinations and inquiries, including an
examination of originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments, as we have
deemed necessary or appropriate for purposes of this opinion. In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to authentic
original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only of the
General Corporation Law of the State of Delaware, including statutory and
reported decisional law thereunder, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of any other laws.
Subject to the foregoing, it is our opinion that the Shares to be issued under
the Plan have been duly authorized, and upon the issuance and delivery of the
Shares in the manner contemplated by the Plan, and assuming the Company
completes all actions and proceedings required on its part to be taken prior to
the issuance and delivery of the Shares pursuant to the terms of the Plan,
including, without limitation, collection of required payment for the Shares,
the Shares will be validly issued, fully paid and nonassessable securities of
the Company.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
8
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Vicinity Corporation
We consent to (i) the use of our report dated September 22, 1999, except as
to Notes 9 and 12 for which the date is November 16, 1999, relating to the
balance sheets of Vicinity Corporation as of July 31, 1998 and 1999, and the
related statements of operations, redeemable convertible preferred stock and
stockholders' equity (deficit) and cash flows for each of the years in the
three-year period ended July 31, 1999, and our report dated September 22, 1999
on the related financial statement schedule, which reports appear in the
Registration Statement (No. 333-90253) on Form S-1 of Vicinity Corporation, and
(ii) to the reference to our firm under the heading "Incorporation of Documents
by Reference" in the registration statement on Form S-8.
/s/ KPMG LLP
Mountain View, California
February 10, 2000
9
