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As filed with the Securities and Exchange Commission on March 16, 1999
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FLASHNET COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
TEXAS 4813 75-2614852
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification Number)
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1812 NORTH FOREST PARK BOULEVARD
FORT WORTH, TEXAS 76102
(Address of principal executive offices) (Zip Code)
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FLASHNET COMMUNICATIONS, INC.
1997 STOCK INCENTIVE PLAN
EMPLOYEE STOCK DISCOUNT PURCHASE PLAN
(Full title of the plans)
----------------------------------
MICHAEL SCOTT LESLIE
PRESIDENT AND CHIEF OPERATING OFFICER
FLASHNET COMMUNICATIONS, INC.
1812 NORTH FOREST PARK BOULEVARD
FORT WORTH, TEXAS 76102
(Name and address of agent for service)
(817) 332-8883
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Title of Proposed maximum Proposed maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share price fee
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<S> <C> <C> <C> <C>
1997 STOCK INCENTIVE PLAN
Common stock (no par value) 1,327,231 $17.97(2) $23,856,061 $6,633
EMPLOYEE STOCK DISCOUNT PURCHASE PLAN
Common stock (no par value) 340,000 $40.50(3) $13,770,000 $3,829
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(1) This Registration Statement shall also cover any additional shares of
common stock which become issuable under the 1997 Stock Incentive Plan and
the Employee Stock Discount Purchase 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 FlashNet
Communications, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, and based (a) as to 930,790 shares
purchasable upon exercise of outstanding options, upon the average exercise
price at which such options may be exercised and (b) as to the remaining
396,441 shares issuable upon exercise of options reserved for issuance, on
the opening price per share of common stock of FlashNet Communications,
Inc. as quoted on the Nasdaq National Market on March 16, 1999.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the opening price per
share of common stock of FlashNet Communications, Inc. as quoted on the
Nasdaq National Market on March 16, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTI0N 10(a) PROSPECTUS
Item 1. PLAN INFORMATION
In accordance with Rule 428 under the Securities Act of 1933, as
amended (the "1933 Act"), and the Note to Part I of Form S-8, the
information required by this item has been omitted from this
Registration Statement.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
In accordance with Rule 428 under the 1933 Act and the Note to
Part I of Form S-8, the information required by this item has
been omitted from this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
FlashNet Communications, Inc. hereby incorporates by reference
into this Registration Statement the following documents
previously filed with the Securities and Exchange Commission (the
"SEC"):
(a) Registrant's prospectus filed with the SEC pursuant to Rule
424(b) of the 1933 Act, in connection with the Registration
Statement No. 333-69277 on Form S-1 (the "S-1 Registration
Statement") filed with the SEC on December 18, 1998,
together with all amendments thereto, in which there is set
forth audited financial statements for the registrant's
fiscal years ended December 31, 1996, 1997 and 1998; and
(b) The description of the registrant's outstanding common stock
contained in the S-1 Registration Statement and registrant's
Registration Statement No. 000-25477 on Form 8-A filed with
the SEC on March 2, 1999 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "1934
Act"), including any amendment or report filed for the
purpose of updating such description.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c),14 or 15(d) of the 1934 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 into this Registration Statement and to
be a 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
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant has authority under Articles 2.02A.(16) and 2.02-1
of the Texas
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Business Corporation Act to indemnify its directors and officers
to the extent provided for in such statute. The registrant's
Restated Articles of Incorporation permit indemnification of
directors and officers to the fullest extent permitted by law.
The Texas Business Corporation Act provides in part that a
corporation may indemnify a director or officer or other person
who was, is, or is threatened to be made a named defendant or
respondent in a proceeding because the person is or was a
director, officer, employee or agent of the corporation, if it
is determined that such person:
- Conducted himself in good faith;
- Reasonably believed, in the case of conduct in his official
capacity as a director or officer of the corporation, that
his conduct was in the corporation's best interests, and, in
all other cases, that his conduct was at least not opposed
to the corporation's best interests; and
- In the case of any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful.
A corporation may indemnify a person under the Texas Business
Corporation Act against judgments, penalties (including excise
and similar taxes), fines, settlement, and reasonable expenses
actually incurred by the person in connection with the
proceeding. If the person is found liable to the corporation or
is found liable on the basis that personal benefit was improperly
received by the person, the indemnification is limited to
reasonable expenses actually incurred by the person in connection
with the proceeding, and shall not be made in respect of any
proceeding in which the person shall have been found liable for
willful or intentional misconduct in the performance of his duty
to the corporation.
A corporation may also pay or reimburse expenses incurred by a
person in connection with his appearance as a witness or other
participation in a proceeding at a time when he is not a named
defendant or respondent in the proceeding.
Article Twelve of the registrant's Restated Articles of
Incorporation provides that, to the fullest extent permitted by
the Texas Business Corporation Act as the same exists or as it
may hereafter be amended, no director of the registrant shall be
personally liable to the registrant or its shareholders for
monetary damages for breach of fiduciary duty as a director.
Prior to consummation of the registrant's initial public offering
of shares of its Common Stock, the registrant intends to enter
into indemnification agreements with each of its directors and
executive officers that provide for indemnification
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and expense advancement to the fullest extent permitted under
the Texas Business Corporation Act.
Following consummation of the registrant's initial public
offering of shares of its common stock, the registrant will carry
directors and officers liability insurance with policy limits of
$10,000,000.
Reference is made to Section 8 of the underwriting agreement
filed as Exhibit 1.1 to the S-1 Registration Statement,
indemnifying the officers and directors of the registrant against
certain liabilities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
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<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining Rights of Shareholders. Reference is
made to the S-1 Registration Statement and registrant's
Registration Statement No. 000-25477 on Form 8-A, which are
incorporated herein by reference pursuant to Item 3(b) of
this Registration Statement.
5 Opinion and consent of Cantey & Hanger, L.L.P.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cantey & Hanger, L.L.P. is contained in Exhibit
5.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
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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 1933
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 this Registration
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Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement; provided, however,
that clauses (1) (i) and (1) (ii) shall 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 registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining
any liability under the 1933 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 and (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
registrant's 1997 Stock Incentive Plan and Employee Stock
Discount Purchase Plan.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each
filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the 1934 Act that is incorporated by
reference into this 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.
C. Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers or
controlling persons of the registrant pursuant to the
indemnification provisions summarized in Item 6 or otherwise, the
registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933
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 1933 Act and will be
governed by the final adjudication of such issue.
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 Fort Worth, State of Texas on March
16, 1999.
FLASHNET COMMUNICATIONS, INC.
By: /s/ Michael Scott Leslie
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Michael Scott Leslie
President and Chief Operating Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of FlashNet Communications,
Inc., a Texas corporation, do hereby constitute and appoint Michael Scott
Leslie and Albert Lee Thurburn, and either of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys
and agents, and either one of them, determine may be necessary or advisable
or required to enable said corporation to comply with the Securities Act of
1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and
authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that
said attorneys and agents, or either one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Albert Lee Thurburn Chairman and Chief Executive March 16, 1999
Albert Lee Thurburn Officer (principal executive
officer)
/s/ Michael Scott Leslie President, Chief Operating March 16, 1999
Michael Scott Leslie Officer and Director
/s/ Andrew N. Jent Executive Vice President, Chief March 16, 1999
Andrew N. Jent Financial Officer and Secretary
(Principal financial and
accounting officer)
/s/ John B. Kleinheinz Director March 16, 1999
John B. Kleinheinz
/s/ Kevin A. Stadtler Director March 16, 1999
Kevin A. Stadtler
/s/ James B. Francis, Jr. Director March 16, 1999
James B. Francis, Jr.
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
FLASHNET COMMUNICATIONS, INC.
EXHIBIT LIST
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<CAPTION>
Exhibit Number Exhibit
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4 Instruments Defining Rights of Shareholders. Reference is
made to the S-1 Registration statement and registrant's
Registration Statement No. 000-25477 on Form 8-A, which are
incorporated herein by reference pursuant to Item 3(b) of
this Registration Statement.
5 Opinion and consent of Cantey & Hanger, L.L.P.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cantey & Hanger, L.L.P. is contained in Exhibit
5.
24 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
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EXHIBIT 5
March 16, 1999
FlashNet Communications, Inc.
1812 North Forest Park Boulevard
Fort Worth, Texas 76102
RE: FLASHNET COMMUNICATIONS, INC. REGISTRATION STATEMENT FOR
OFFERING OF 1,667,231 SHARES OF COMMON STOCK
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of (i) 1,327,231 shares of
common stock under your 1997 Stock Incentive Plan, and (ii) 340,000 shares of
common stock under your Employee Stock Discount Purchase Plan. We advise you
that, in our opinion, when such shares have been issued and sold pursuant to
the applicable provisions of the 1997 Stock Incentive Plan and the Employee
Stock Discount Purchase Plan and in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of the Company's common stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Cantey & Hanger, L.L.P.
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CANTEY & HANGER, L.L.P.
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of FlashNet Communications, Inc. (the "Company") on Form S-8 of our report
dated February 23, 1999 (March 11, 1999 as to the last paragraph in Note 12)
on the Company's consolidated financial statements appearing in Amendment No.
4 to Registration Statement No. 333-69277 of Form S-1.
/s/ Deloitte & Touche LLP
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DELOITTE & TOUCHE LLP
Fort Worth, Texas
March 16, 1999
