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As filed with the Securities and Exchange Commission on July 27, 1998
Registration No. 333-
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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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NETGRAVITY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7372 77-0410283
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
NETGRAVITY, INC.
1700 S. AMPHLETT BLVD., SUITE 350
SAN MATEO, CA 94402
(650) 655-4777
ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1995 STOCK OPTION PLAN
1998 STOCK PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
1998 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLANS)
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JOHN W. DANNER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
NETGRAVITY, INC.
1700 S. AMPHLETT BLVD., SUITE 350
SAN MATEO, CA 94402
(650) 655-4777
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
CHRISTOPHER G. NICHOLSON, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED
AMOUNT TO BE MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF REGISTERED OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED (SHARES)(1) PER SHARE PRICE Registration Fee
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<S> <C> <C> <C> <C>
1995 Stock Option Plan
Common Stock, $0.001 par value
(currently outstanding options) 1,828,834 $2.4033(2) $4,395,236.75 $1,296.59
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1998 Stock Plan
Common Stock, $0.001 par value 12,787 $23.6875(4) $302,892.06 $89.35
(currently outstanding options)
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1998 Stock Plan
Common Stock, $0.001 par value
(options available for future grant) 1,987,213 $22.0937(3) $43,904,887.86 $12,951.94
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TOTAL 1998 STOCK PLAN SHARES
REGISTERED 2,000,000
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1998 Director Option Plan
Common Stock, $0.001 par value
(currently outstanding options) 50,000 $9.00(4) $450,000.00 $132.75
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1998 Director Option Plan
Common Stock, $0.001 par value
(options available for future grant) 125,000 $22.0937(3) $2,761,712.50 $814.71
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TOTAL 1998 DIRECTOR OPTION PLAN
SHARES REGISTERED 175,000
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1998 Employee Stock Purchase Plan
Common Stock, $0.001 par
value 200,000 $18.78(5) $3,755,929.00 $1,108.00
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TOTAL 4,203,834 $55,570,658.17 $16,393.34
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which may become issuable under any of the 1995 Stock Option
Plan, the 1998 Stock Plan, the 1998 Employee Stock Purchase Plan or the
1998 Director Option Plan 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.
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), solely for the purpose of calculating the
registration fee of 1,828,834 shares of Common Stock underlying the
Registrant's outstanding but unexercised options to purchase Common Stock
under the 1995 Stock Option Plan (the "Currently Outstanding Options").
The computation is based on the weighted average exercise price per share
of the Currently Outstanding Options.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(c) under the Securities Act solely for the
purpose of calculating the registration fee. 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 July 23, 1998.
(4) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(c) under the Securities Act solely for the
purpose of calculating the total registration fee. Computation based on
the weighted average exercise price of the granted and outstanding options
covering the indicated shares.
(5) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(c) under the Securities Act solely for the
purpose of calculating the registration fee. 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 July 23, 1998, multiplied by 85%, which is
the percentage of the trading price applicable to purchaser under the 1998
Employee Stock Purchase Plan.
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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 (the "Commission") are hereby incorporated
by reference:
(a) The Registrant's Prospectus filed with the Commission on June 12,
1998, pursuant to Rule 424(b)(4) of the Securities Act, which
contains audited financial statements for the Registrant's fiscal
year ended December 31, 1997.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
filed with the Commission on May 15, 1998.
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
as of the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain members of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California beneficially own an aggregate of 14,016
shares of Common Stock through an investment trust. In addition, a member of
Wilson Sonsini Goodrich & Rosati beneficially owns approximately 98,805
shares which were issued to the spouse of such member in connection with such
spouse's former employment with the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between
the corporation and its directors and officers, provisions expanding the
scope of indemnification beyond that specifically provided by the current law.
Article Nine of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors, officers or
employee benefit plan fiduciaries, to the fullest extent not prohibited by
Delaware Law.
Article VI of the Registrant's Bylaws provides for the indemnification
of directors and officers if such persons acted in good faith and in a manner
reasonably believed to be in and not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, the
indemnified party had no reasonable cause to believe his conduct was
unlawful. Article VI also permits the Registrant to advance expenses incurred
by indemnified directors or officers in connection with the defense of any
action or proceeding arising out of such directors' or officers' status or
service as directors or officers of the Registrant upon an undertaking by such
directors or officers to repay such advances if it is ultimately determined
that such directors or officers are not entitled to such indemnification.
The Registrant has entered into agreements to indemnify its directors
and officers, in addition to the indemnification provided for in the
Registrant's Amended and Restated Bylaws. These agreements, among other
things, indemnify the Registrant's directors and officers for certain
expenses (including attorneys' fees and associated legal expenses),
judgements, fines and amounts paid in settlement if such settlement is
approved in advance by the Registrant, which approval shall not be
unreasonably withheld, actually and reasonably incurred by any such person in
any action, suit, proceeding or alternative dispute resolution mechanism
arising out of such person's services as a director or officer of the
Registrant, any subsidiary of the Registrant or any other company or
enterprise to which the person provides services at the request of the
Registrant.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
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Exhibit Number Exhibit Document
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<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being
registered (Counsel to the Registrant)
10.2* 1995 Stock Option Plan
10.3* 1998 Stock Plan
10.4* 1998 Employee Stock Purchase Plan
10.5* 1998 Director Option Plan
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
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* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-51007), effective June 11, 1998.
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:
(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 the 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.
II-2
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(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;
(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
Securities Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities 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 an 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 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, as amended,
the Registrant has duly caused this Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of San Mateo, State of California on the 27th day of July, 1998.
NETGRAVITY, INC.
By: /s/ John W. Danner
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John W. Danner
CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of John W. Danner and
Stephen E. Recht, and each of the acting alone, his true and lawful
attorney-in-fact and agent, each with full power of substitution and
resubstitution, for such person and in his name, place and stead, in any and
all capacities, in connection with this Registration Statement, including to
sign and file in the name and on behalf of the undersigned as director or
officer of the Registrant (i) any and all amendments or supplements
(including any and all stickers and post-effective amendments) to this
Registration Statement, with all exhibits thereto, and other documents in
connection therewith, and (ii) any and all additional registration
statements, and any and all amendments thereto, relating to the same offering
of securities as those that are covered by this Registration Statement that
are filed pursuant to Rule 462(b) under the Securities Act of 1933, with the
Securities and Exchange Commission and any applicable securities exchange or
securities self-regulatory body, granting unto said attorneys-in-fact and
agents, and each of them acting alone, full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents or either 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, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
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SIGNATURE TITLE DATE
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<S> <C> <C>
Chairman of the Board and Chief July 27, 1998
/s/ John W. Danner Executive Officer (principal executive
--------------------------- officer)
John W. Danner
Chief Financial Officer and Secretary July 27, 1998
/s/ Stephen E. Recht (principal financial and accounting
--------------------------- officer)
Stephen E. Recht
/s/ John D. D. Kohler Director July 27, 1998
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John D. D. Kohler
/s/ Jonathan D. Lazarus Director July 27, 1998
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Jonathan D. Lazarus
/s/ Alexander R. Slusky Director July 27, 1998
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Alexander R. Slusky
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INDEX TO EXHIBITS
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Exhibit Number Exhibit Document
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<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being
registered (Counsel to the Registrant)
10.2* 1995 Stock Option Plan
10.3* 1998 Stock Plan
10.4* 1998 Employee Stock Purchase Plan
10.5* 1998 Director Option Plan
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
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* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-51007), effective June 11, 1998.
<PAGE>
[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
EXHIBIT 5.1
July 24, 1998
NetGravity, Inc.
1700 S. Amphlett Blvd., Suite 350
San Mateo, CA 94402
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 July 24, 1998
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the 1995 Stock Option Plan (as to
1,828,834 shares), of the 1998 Stock Plan (as to 2,000,000 shares), of the
1998 Employee Stock Purchase Plan (as to 200,000 shares) and of the 1998
Director Option Plan (as to 175,000 shares) (collectively, the "Plans" and
the "Shares" as appropriate). As your legal counsel, 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. In addition, for purposes of this opinion we have assumed that the
consideration received by the Company in connection with each issuance of the
Shares will include an amount in the form of cash, services rendered
or property that exceeds the greater of (i) the aggregate par value of such
Shares or (ii) the portion of such consideration determined by the
Company's Board of Directors to be "capital" for purposes of the Delaware
General Corporation Law.
Based upon the foregoing, 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,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
NetGravity, Inc.
We consent to incorporation by reference in the registration statement on
Form S-8 of NetGravity, Inc. of our reports dated April 17, 1998, except as
to Note 8, which is as of May 8, 1998, relating to the consolidated balance
sheets of NetGravity, Inc. and subsidiary as of December 31, 1996 and 1997,
and the related consolidated statements of operations, shareholder's equity
(deficit), and cash flows for the period from September 5, 1995 (inception)
to December 31, 1995 and for each of the years in the two-year period ended
December 31, 1997, and the related consolidated financial statement schedule,
which reports appear in the Form S-1 of NetGravity, Inc. dated June 11, 1998.
KPMG Peat Marwick LLP
San Francisco, California
July 27, 1998
