<PAGE> 1
As filed with the Securities and Exchange Commission on September 3, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
QUOKKA SPORTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3250045
(State of Incorporation) (I.R.S. Employer Identification No.)
525 BRANNAN STREET, GROUND FLOOR
SAN FRANCISCO, CA 94107
(Address of principal executive offices)
1997 EQUITY INCENTIVE PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
ALAN S. RAMADAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
525 BRANNAN STREET, GROUND FLOOR
SAN FRANCISCO, CA 94107
(415) 908-3800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
KENNETH L. GUERNSEY, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, 20TH FLOOR
SAN FRANCISCO, CA 94111
(415) 693-2000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price per Share(1) Offering Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 14,767,518 shares $1.6375 - $12.00 $101,754,850 $28,288
value $.0001 per share
===============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price for shares subject to
options previously (i) granted under the Quokka Sports, Inc. (the "Company" or
the "Registrant") 1997 Equity Incentive Plan, pursuant to Rule 457(h) under the
Securities Act of 1933, as amended (the "Act"), (ii) granted under the 1999
Non-Employee Directors Stock Option Plan and (iii) granted outside of the
Company's Plans (defined below) and (b) the average of the high and low prices
of the Company's Common Stock as reported on the Nasdaq National Market on
August 30, 1999 for shares available for grant pursuant to the 1997 Equity
Incentive Plan, the 1999 Non-Employee Directors' Stock Option Plan and the 1999
Employee Stock Purchase Plan (collectively, the "Plans"), pursuant to Rule
457(c) under the Act.
<PAGE> 2
The chart below details the calculation of the registration fee:
<TABLE>
<CAPTION>
=================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED BE REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
=================================================================================================================================
<S> <C> <C> <C> <C>
Shares of Common Stock 8,819,917 $ 6.1389(1)(a) $ 54,144,588.47 $15,052.20
issuable pursuant to
outstanding options under the
1997 Equity Incentive Plan
=================================================================================================================================
Shares of Common Stock 3,980,601 $ 8.5313(1)(b) $ 33,959,701.31 $ 9,440.80
reserved for future grant
under the 1997 Equity
Incentive Plan
=================================================================================================================================
Shares of Common Stock 125,000 $12.0000(1)(a) $ 1,500,000.00 $ 417.00
issuable pursuant to
outstanding options under the
1999 Non-Employee Directors
Stock Option Plan
=================================================================================================================================
Shares of Common Stock 325,000 $ 8.5313(1)(b) $ 2,772,672.50 $ 770.80
reserved for future grant
under the 1999 Non-Employee
Directors Stock Option Plan
=================================================================================================================================
Shares of Common Stock 1,000,000 $ 8.5313(1)(b) $ 8,531,300.00 $ 2,371.70
reserved for future issuance
under the 1999 Employee Stock
Purchase Plan
=================================================================================================================================
Shares of Common Stock 517,000 $ 1.6375(1)(a) $ 846,587.50 $ 235.35
issuable pursuant to
outstanding options granted
outside of the Plans
=================================================================================================================================
Totals 14,767,518 $101,754,849.78 $28,287.85
=================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price for shares subject to
options previously (i) granted under the Quokka Sports, Inc. (the "Company" or
the "Registrant") 1997 Equity Incentive Plan, pursuant to Rule 457(h) under the
Securities Act of 1933, as amended (the "Act"), (ii) granted under the 1999
Non-Employee Directors Stock Option Plan and (iii) granted outside of the
Company's Plans (defined below) and (b) the average of the high and low prices
of the Company's Common Stock as reported on the Nasdaq National Market on
August 30, 1999 for shares available for grant pursuant to the 1997 Equity
Incentive Plan, the 1999 Non-Employee Directors' Stock Option Plan and the 1999
Employee Stock Purchase Plan (collectively, the "Plans"), pursuant to Rule
457(c) under the Act.
2.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Quokka Sports, Inc. (the "Company" or
the "Registrant") with the Securities and Exchange Commission are incorporated
by reference into this Registration Statement:
(a) The Company's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"), on July 28, 1999, that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed.
(b) The description of the Company's Common Stock which is contained
in the registration statement on Form S-1 filed April 23, 1999 (No. 333-76981),
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for
the Company by Cooley Godward LLP, San Francisco, California. As of the date of
this Registration Statement, an investment partnership affiliated with Cooley
Godward LLP owns 127,887 shares of the Company's Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's certificate of incorporation, which will become effective
upon the closing of this offering, contains provisions permitted under Delaware
law relating to the liability of directors. These provisions eliminate a
director's personal liability for monetary damages resulting from a breach of
fiduciary duty, except in circumstances involving wrongful acts, such as:
- any breach of the director's duty of loyalty;
- acts or omissions which involve a lack of good faith,
intentional misconduct or a knowing violation of the law;
- payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law; or
- any transaction from which the director derives an improper
personal benefit.
These provisions do not limit or eliminate the Company's rights or any
stockholder's rights to seek non-monetary relief, such as an injunction or
rescission, in the event of a breach of director's fiduciary duty. These
provisions will not alter a director's liability under federal securities laws.
The Company's bylaws, which will become effective upon the closing of
this offering, require the Company to indemnify its directors and executive
officers to the fullest extent not prohibited by the Delaware law. The Company
may limit the extent of such indemnification by individual contracts with its
directors and executive officers. Further, the Company may decline to indemnify
any director or executive officer in connection with any proceeding initiated by
such person or any proceeding by such person against the Company or its
directors, officers, employees or other agents, unless such indemnification is
expressly required to be made by law or the proceeding was authorized by our
board of directors.
3.
<PAGE> 4
The Company has entered into indemnity agreements with each of its
current directors and certain of its executive officers to give such directors
and officers additional contractual assurances regarding the scope of the
indemnification set forth in our certificate of incorporation and bylaws and to
provide additional procedural protections. At present, there is no pending
litigation or proceeding involving a director, officer or employee of the
Company for which indemnification is sought, nor is the Company aware of any
threatened litigation that may result in claims for indemnification.
The Company has the power to indemnify its other officers, employees and
other agents, as permitted by Delaware law, but it is not required to do so. The
Company plans to obtain directors' and officers' liability insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
CONSULTANTS AND ADVISORS
Not applicable.
4.
<PAGE> 5
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 1997 Equity Incentive Plan and forms of grant thereunder(1)
99.2 1999 Non-Employee Directors' Stock Option Plan and forms of grant
thereunder(2)
99.3 1999 Employee Stock Purchase Plan and form of offering thereunder.
(3)
(1) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-76981) on May 28, 1999, and incorporated herein
by reference.
(2) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-76981) on April 23, 1999, and incorporated herein by reference.
(3) 1999 Employee Stock Purchase Plan filed as an exhibit to the Form S-1
Registration Statement (Registration No. 333-76981) on April 23, 1999, and
incorporated herein by reference. Form of offering thereunder filed as an
exhibit to Amendment No. 5 to the Form S-1 Registration Statement (Registration
No. 333-76981) on July 20, 1999, and incorporated herein by reference.
UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) 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. 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 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) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
5.
<PAGE> 6
(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)(i) and (a)(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 by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(a) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(b) 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.
1. 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 herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
2. 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
Securities Act and will be governed by the final adjudication of such
issue.
6.
<PAGE> 7
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 Francisco, State of California, on September
3, 1999.
QUOKKA SPORTS, INC.
By: /s/ Les Schmidt
-----------------------------------------
Les Schmidt
Executive Vice President, Chief Financial
Officer and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Alan
Ramadan and Les Schmidt, and each or any one of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Alan S. Ramadan President, Chief Executive September 3, 1999
------------------- Officer and Director
(Alan S. Ramadan) (Principal Executive Officer)
/s/ Les Schmidt Executive Vice President, September 3, 1999
--------------- Chief Financial Officer and
(Les Schmidt) Secretary (Principal
Financial and Accounting
Officer)
/s/ Richard H. Williams Director (Chairman of the September 3, 1999
----------------------- Board of Directors)
(Richard H. Williams)
/s/ John Bertrand A.M. Director (Vice-Chairman of September 3, 1999
---------------------- the Board of Directors)
(John Bertrand A.M.)
</TABLE>
7.
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ Walter W. Bregman Director September 3, 1999
---------------------
(Walter W. Bregman)
/s/ Roel Pieper Director September 3, 1999
---------------
(Roel Pieper)
/s/ James G. Shennan, Jr. Director September 3, 1999
- -------------------------
(James G. Shennan, Jr.)
/s/ Barry M. Weinman Director September 3, 1999
--------------------
(Barry M. Weinman)
</TABLE>
8.
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBERS
- ------ ----------- ------------
<S> <C> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 1997 Equity Incentive Plan and forms of grant thereunder(1)
99.2 1999 Non-Employee Directors' Stock Option Plan and forms of grant
thereunder(2)
99.3 1999 Employee Stock Purchase Plan and form of offering thereunder.
(3)
</TABLE>
(1) Filed as an exhibit to Amendment No. 1 to the Form S-1 Registration
Statement (Registration No. 333-76981) on May 28, 1999, and incorporated herein
by reference.
(2) Filed as an exhibit to the Form S-1 Registration Statement (Registration
No. 333-76981) on April 23, 1999, and incorporated herein by reference.
(3) 1999 Employee Stock Purchase Plan filed as an exhibit to the Form S-1
Registration Statement (Registration No. 333-76981) on April 23, 1999, and
incorporated herein by reference. Form of offering thereunder filed as an
exhibit to Amendment No. 5 to the Form S-1 Registration Statement (Registration
No. 333-76981) on July 20, 1999, and incorporated herein by reference.
9.
<PAGE> 1
EXHIBIT 5.1
September 1, 1999
Quokka Sports, Inc.
525 Brannan Street, Ground Floor
San Francisco, CA 94107
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Quokka Sports, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an aggregate of 14,767,518
shares of the Company's Common Stock, $.0001 par value, (the "Shares"), with
respect to (a) 12,800,518 of the Shares issuable or reserved for issuance
pursuant to its 1997 Equity Incentive Plan, 450,000 of the Shares issuable or
reserved for issuance pursuant to its 1999 Non-Employee Directors' Stock Option
Plan and 1,000,000 of the Shares issuable or reserved for issuance pursuant to
its 1999 Employee Stock Purchase Plan (collectively, the "Plans") and (b)
517,000 of the Shares issuable pursuant to options granted outside of the Plans
(the "Non-Plan Option Agreements").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and Bylaws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the Non-Plan
Option Agreements, the Registration Statement and related Prospectus, will be
validly issued, fully paid, and nonassessable (except as to shares issued
pursuant to certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Kenneth L. Guernsey
--------------------------------
Kenneth L. Guernsey
KLG:djp
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 22, 1999 (except as to Note 12
of the Notes to Consolidated Financial Statements for which the date is July 1,
1999) relating to the financial statements, which appear in Quokka Sports,
Inc.'s Form S-1/A as filed on July 27, 1999 (Registration No. 333-76981),
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
San Francisco, California
August 28, 1999
