<PAGE>
As filed with the Securities and Exchange Commission on April 30, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NETGRAVITY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 77-0410283
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
NETGRAVITY, INC.
1900 S. NORFOLK STREET, SUITE 150
SAN MATEO, CA 94403
(650) 425-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------------
1998 STOCK PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
1998 DIRECTOR OPTION PLAN
(Full title of the plans)
---------------------
ERIC W. SPIVEY
CHIEF EXECUTIVE OFFICER
NETGRAVITY, INC.
1900 S. NORFOLK STREET, SUITE 150
SAN MATEO, CA 94403
(650) 425-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
---------------------
COPY TO:
CHRISTOPHER G. NICHOLSON, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
---------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO TO BE PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1998 Stock Plan
Common Stock, $0.001 par value per
share 679,494 36.66 (2) $ 24,907,871.81 $ 6,924
- ----------------------------------------------------------------------------------------------------------------------------------
1998 Employee Stock Purchase Plan
Common Stock, $0.001 par value per
share 543,595 31.16 (3) $ 16,937,346.60 $ 4,709
- ----------------------------------------------------------------------------------------------------------------------------------
1998 Director Option Plan
Common Stock, $0.001 par value per
Share 150,000 36.66 (2) $ 5,498,475.00 $ 1,529
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL 1,373,089 $ 13,162
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which may become issuable under any of the 1998 Stock Plan,
1998 Employee Stock Purchase Plan and 1998 Director Option Plan being
registered pursuant to this Registration Statement by reason of any stock
dividend, stocks 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 Rules 457(c) and 457(h) under the Securities Act of 1933,
as amended, (the "SECURITIES ACT") solely for the purpose of calculating
the registration fee. The computation is based upon the average of the
high and low sale prices of the Common Stock as reported on The Nasdaq
National Market on April 29, 1999.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rules 457(c) and 457(h) 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 April 29, 1999, multiplied by
85%, which is the percentage of the trading price applicable to purchases
under the 1998 Employee Stock Purchase Plan.
<PAGE>
STATEMENT UNDER GENERAL INSTRUCTION E - REGISTRATION OF ADDITIONAL SECURITIES.
The Registrant previously filed a Registration Statement on Form S-8
with the Securities and Exchange Commission (SEC File No. 333-59983) (the
"PREVIOUS FORM S-8"). The Previous Form S-8 was filed in connection with the
1995 Stock Option Plan, 1998 Stock Plan, 1998 Employee Stock Purchase Plan
and 1998 Director Option Plan. This Registration Statement registers
additional shares of the Registrant's Common Stock to be issued pursuant to
the 1998 Stock Plan, 1998 Employee Stock Purchase Plan and 1998 Director
Option Plan. The contents of the Previous Form S-8, including periodic
reports that the Registrant filed after the Previous Form S-8 to maintain
current information about the Registrant, are hereby incorporated by
reference into this Registration Statement pursuant to General Instruction E
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
- --------------- ---------------------------------------------------------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DOCUMENT
- ------------------ ------------------------------------------------------------
<S> <C>
4.1 * 1998 Stock Plan
4.2 * 1998 Employee Stock Purchase Plan
4.3 * 1998 Director Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being
registered (Counsel of Registrant)
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1, as amended (file No. 333-51007).
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 San Mateo, State of California, on this 30th day
of April 1999.
NETGRAVITY, INC.
By: /S/ ERIC W. SPIVEY
----------------------------------------
Eric W. Spivey,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John W. Danner and Stephen E. Recht,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him 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 then 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 dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- ----------------------------------------------------- ------------------
<S> <C> <C>
/s/ ERIC W. SPIVEY Chief Executive Officer
- -------------------------------------- (principal executive officer) April 30, 1999
Eric W. Spivey
/s/ STEPHEN E. RECHT Chief Financial Officer and Secretary
- -------------------------------------- (principal financial and accounting officer) April 30, 1999
Stephen E. Recht
/s/ JOHN W. DANNER Chairman of the Board April 30, 1999
- --------------------------------------
John W. Danner
/s/ J. SCOTT BRIGGS Director April 30, 1999
- --------------------------------------
J. Scott Briggs
/s/ JOHN D.D. KOHLER Director April 30, 1999
- --------------------------------------
John D.D. Kohler
/s/ AMNON LANDAN Director April 30, 1999
- --------------------------------------
Amnon Landan
/s/ JONATHAN D. LAZARUS Director April 30, 1999
- --------------------------------------
Jonathan D. Lazarus
/s/ ALEXANDER R. SLUSKY Director April 30, 1999
- --------------------------------------
Alexander R. Slusky
</TABLE>
II-2
<PAGE>
REGISTRATION STATEMENT ON FORM S-8
NETGRAVITY, INC.
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DOCUMENT
- ------------------- ----------------------------------------------------------
<S> <C>
4.1 * 1998 Stock Plan
4.2 * 1998 Employee Stock Purchase Plan
4.3 * 1998 Director Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being
registered (Counsel of Registrant)
23.1 Consent of KPMG LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1, as amended (file No. 333-51007).
II-3
<PAGE>
EXHIBIT 5.1
April 30, 1999
NetGravity, Inc.
1900 S. Norfolk Street, Suite 150
San Mateo, California 94403
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
NetGravity, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission on or about April 30, 1999 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, of (i) an additional 679,494 shares of Common Stock for
issuance pursuant to the 1998 Stock Plan, (ii) an additional 543,595 shares of
Common Stock for issuance pursuant to the 1998 Employee Stock Purchase Plan and
(iii) an additional 150,000 shares of Common Stock for issuance pursuant to the
1998 Director Option Plan (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 AUDITORS
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 January 27, 1999, relating to the
consolidated balance sheets of NetGravity, Inc. and subsidiaries as of December
31, 1997 and 1998, and the related consolidated statements of operations,
stockholder's equity (deficit), and cash flows for each of the years in the
three-year period ended December 31, 1998, and the related consolidated
financial statement schedule, which reports appear in the December 31, 1998,
annual report on Form 10-K of NetGravity, Inc.
/s/ KPMG LLP
San Francisco, California
April 29, 1999
