<PAGE>
As filed with the Securities and Exchange Commission on May 3, 1999
Registration No. 333-71909
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT 7 TO
FORM S-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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FLYCAST COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 7319 77-0431028
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification Number)
Incorporation or Classification Code
Organization) Number)
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181 Fremont Street
San Francisco, California 94105
(415) 977-1000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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George R. Garrick, Chairman of the Board, Chief Executive Officer and President
FLYCAST COMMUNICATIONS CORPORATION
181 Fremont Street
San Francisco, California 94105
(415) 977-1000
(Name, Address Including Zip Code, and Telephone Number Including Area Code, of
Agent for Service)
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Copies to:
Jeffrey Y. Suto Laird H. Simons III
Alissa W. Lee Katherine Tallman Schuda
Scott S. Ring Nicholas S. Khadder
VENTURE LAW GROUP FENWICK & WEST LLP
A Professional Corporation Two Palo Alto Square
2800 Sand Hill Road Palo Alto, CA 94306
Menlo Park, CA 94025 (650) 494-0600
(650) 854-4488
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title Of Each Class Of Securities Proposed Maximum Aggregate
To Be Registered Offering Price (1) Amount Of Registration Fee
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<S> <C> <C>
Common Stock, par value
$0.0001........................ $79,350,000 $22,059(2)
</TABLE>
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(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(o) under the Securities Act.
(2) Previously paid.
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Explanatory Note
This Amendment No. 7 is being filed solely to file a new Exhibit 23.1,
Independent Auditors' Consent.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee, the NASD filing fee and the Nasdaq National
Market listing fee.
<TABLE>
<CAPTION>
Amount
to be Paid
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<S> <C>
SEC registration fee............................................. $ 22,059
NASD filing fee.................................................. 8,435
Nasdaq National Market listing fee............................... 88,500
Printing and engraving expenses.................................. 200,000
Legal fees and expenses.......................................... 325,000
Accounting fees and expenses..................................... 200,000
NASD and Blue Sky qualification fees and expenses................ 1,000
Transfer Agent and Registrar fees................................ 5,000
Miscellaneous fees and expenses.................................. 150,006
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Total......................................................... $1,000,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "Delaware Law")
authorizes a court to award, or a corporation's board of directors to grant,
indemnity to directors and officers in terms sufficiently broad to permit
indemnification under specific circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). The Registrant's Bylaws (Exhibit 3.5 hereto)
provide for indemnification of the Registrant's directors, officers, employees
and other agents to the maximum extent permitted by Delaware Law. In addition,
the Registrant will enter into Indemnification Agreements (Exhibit 10.1 hereto)
with its officers and directors. The Underwriting Agreement (Exhibit 1.1) also
provides for cross-indemnification among the Registrant and the Underwriters.
Item 15. Recent Sales of Unregistered Securities
Since January 1996, the Registrant has sold and issued the following
securities:
(1) In June 1996, the Registrant issued promissory notes in the total principal
amount of $300,000 to a total of five investors. In July 1997, the
principal amounts of these notes were converted into 300,000 shares of
Series A Preferred Stock at a conversion price of $1.00 per share in
connection with the Series A Preferred Stock financing discussed in item
(7).
(2) In February 1997, the Registrant issued to four investors promissory notes
in the total principal amount of $291,633 that were convertible into shares
of Series B Preferred Stock and warrants exercisable to purchase an
additional number of shares of Series B Preferred Stock equal in value to
20% of the notes' total principal amount. In July and August 1997, the
principal amounts of these notes were converted into shares of Series B
Preferred Stock at a conversion price of $1.33 per share and warrants
exercisable at $1.33 per share to purchase shares of Series B Preferred
Stock in connection with the Series B Preferred Stock financing discussed
in item (8).
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<PAGE>
(3) In April 1997, the Registrant issued a promissory note to a bank in the
amount of $300,000 and a warrant to purchase shares of the Registrant's
stock, the class and exercise price of which was contingent upon the value
and timing of the Registrant's next financing. In July 1997, it was
determined that the warrant would be exercisable to purchase 33,834 shares
of Series B Preferred Stock at an exercise price of $1.33 per share.
(4) In June 1997, the Registrant issued a promissory note in the principal
amount of $400,000 and a warrant to purchase 33,333 shares of common stock
at an exercise price per share of $0.01 to an investor.
(5) In June 1997, the Registrant issued a warrant to purchase 7,500 shares of
Series A Preferred Stock at an exercise price per share of $1.00 to an
investor in connection with the investor's agreement to extend the terms
of the note described in item (3) above.
(6) In July 1997, the Registrant issued and sold a total of 2,284,011 shares
of common stock to a total of nine individuals, including five officers
and directors and one consultant, at a purchase price of $0.10 per share.
Sales to officers and directors of the Registrant were made pursuant to
restricted stock purchase agreements which provided for payment to the
Registrant for this stock in the form of promissory notes, with interest,
due upon the earlier of nine months after the closing of an initial public
offering of the Registrant's common stock, July 2002 or termination of the
purchaser's service provider relationship with the Registrant.
(7) In July 1997, the Registrant issued 611,295 shares of Series A Preferred
Stock to one director in connection with a stock recapitalization pursuant
to which all shares of common stock held by this individual were exchanged
for 611,295 shares of Series A Preferred Stock.
(8) In July and August 1997, the Registrant issued and sold 5,324,532 shares
of Series B Preferred Stock to 44 investors, including those investors who
converted their notes as described in item (2) above, at a total purchase
price of $7,081,628, of which $291,633 represented conversion of debt and
the remainder was paid in cash. In conjunction with this financing and in
connection with loan arrangements, the Registrant also issued warrants,
including the warrant described in item (3) above, to purchase a total of
77,688 shares of Series B Preferred Stock at an exercise price of $1.33
per share to six investors.
(9) In April 1998, the Registrant entered into a financing agreement with a
preferred stock shareholder and lender for $2,500,000 due in April 2002
with interest at 11% per annum. In May 1998, the Registrant, in connection
with this financing, issued warrants to purchase 55,409 shares of Series C
Preferred Stock at $4.51 per share. In August 1998, the Registrant entered
into a financing agreement with the same preferred stock shareholder and
lender for $5,000,000, due in August 2001 with interest at 14% per annum.
In September 1998, the Registrant, in connection with this financing,
issued warrants to purchase 72,324 shares of Series C Preferred Stock at
$4.42 per share. As of December 31, 1998, $3,000,000 was available for
future borrowing.
(10) In September 1998, the Registrant issued warrants to purchase a total of
7,143 shares of common stock at an exercise price per share of $1.40 to
three entities and individuals in connection with an executive search
agreement.
(11) In December 1998, January 1999 and February 1999, the Registrant issued
and sold a total of 1,996,344 shares of Series C Preferred Stock at a
purchase price of $9.04 per share to a total of 45 investors for a total
purchase price of $18,046,950, of which $4,499,995 represented conversion
of debt and the remainder was paid in cash. In conjunction with this
financing and the issuance of the convertible debt, the Registrant also
issued warrants to purchase a total of 132,840 shares of Series C
Preferred Stock at an exercise price of $9.04 per share to thirty-five
investors.
(12) In January and February 1999, 18,045 shares of Series B Preferred Stock
were issued pursuant to the exercise of warrants by three investors.
II-2
<PAGE>
(13) In March 1999, 33,333 shares of common stock were issued pursuant to the
exercise of a warrant by one investor.
(14) From March 1997, when the 1997 Stock Option Plan was adopted, to March 31,
1999, 869,531 shares of common stock have been issued pursuant to
exercises of options by forty-one employees and consultants at a weighted
average exercise price of $0.71 by cash and promissory notes.
(15) From January 1999, when the 1999 Stock Option Plan was adopted, to March
31, 1999, 30,251 shares of common stock have been issued pursuant to
exercises of options by twelve consultants at a weighted average exercise
price of $9.00.
The issuances of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) or Regulation
D of the Securities Act as transactions by an issuer not involving any public
offering. In addition, issuances described in Items 6 and 12 were deemed exempt
from registration under the Securities Act in reliance upon Rule 701
promulgated under the Securities Act. The recipients of securities in each
transaction represented their intentions to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends were affixed to the share
certificates and warrants issued in these transactions. All recipients had
adequate access, through their relationships with the Registrant, to
information about the Registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Number Description
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<C> <S>
1.1* Form of Underwriting Agreement.
2.1* Form of Agreement and Plan of Merger between the Registrant and Flycast
Communications Corporation, a California corporation.
3.1* Fourth Amended and Restated Articles of Incorporation of Flycast
Communications Corporation, a California corporation, as currently in
effect.
3.2* Certificate of Incorporation of Flycast Communications Corporation, a
Delaware corporation, as currently in effect.
3.3* Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and become effective prior to the effective
date of the offering.
3.4* Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and become effective upon completion of the
offering.
3.5* Bylaws of the Registrant.
4.1* Specimen Stock Certificate.
5.1* Opinion of Venture Law Group, a Professional Corporation.
10.1* Form of Indemnification Agreement between the Registrant and each of
its officers and directors.
10.2* 1997 Stock Option Plan and form of option agreements.
10.3* 1999 Stock Option Plan, as amended, and form of option agreement.
10.4* 1999 Employee Stock Purchase Plan, as amended, and form of subscription
agreement.
10.5* 1999 Directors' Stock Option Plan.
10.7* Amended and Restated Investors' Rights Agreement dated December 30,
1998 between the Registrant and certain holders of the Registrant's
securities.
10.11* Standard Office Lease dated February 1, 1998 between the Registrant and
Ray Corporation.
10.12* Master Lease Agreement dated December 30, 1997, as amended, between the
Registrant and Comdisco, Inc.
10.13* Subordinated Loan and Security Agreement dated May 22, 1998, as
amended, between the Registrant and Comdisco, Inc.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Number Description
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<C> <S>
10.14* Warrant Agreement to Purchase Shares of the Series C Preferred Stock of
Flycast Communications Corporation between the Registrant and
Comdisco, Inc. dated May 22, 1998.
10.15* Warrant Agreement to Purchase Shares of the Series C Preferred Stock of
Flycast Communications Corporation between the Registrant and
Comdisco, Inc. dated September 29, 1998.
16.1* Letter re Change in Certifying Accountant.
23.1 Independent Auditors' Consent.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1* Power of Attorney (see page II-5).
27.1* Financial Data Schedule.
</TABLE>
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* Represents exhibits previously filed.
(b) Financial Statement Schedules
(i) Schedule II. Valuation and Qualifying Accounts.
Schedules not listed above have been omitted because the information required
to be set forth therein is not applicable or is shown in the financial
statements or notes to the financial statements.
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement certificates in
denominations as required by the underwriters and registered in names as
required by the underwriters to permit prompt delivery to each purchaser.
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
indemnification is against public policy as expressed in the Securities Act,
and is, therefore, unenforceable. In the event that a claim for indemnification
against 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 a 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 indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of this issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and this offering of these securities at that time shall be deemed
to be the initial bona fide offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of San
Francisco, State of California on May 3, 1999.
FLYCAST COMMUNICATIONS CORPORATION
/s/ George R. Garrick
By: __________________________________
George R. Garrick
Chairman of the Board, Chief
Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this Amendment to
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/ George R. Garrick Chairman of the May 3, 1999
- ------------------------------------ Board, Chief
George R. Garrick Executive Officer
and President
(Principal
Executive Officer)
* Chief Financial May 3, 1999
- ------------------------------------ Officer and
Ralph J. Harms Assistant
Secretary
(Principal
Financial and
Accounting
Officer)
* Director May 3, 1999
- ------------------------------------
David J. Cowan
* Director May 3, 1999
- ------------------------------------
Ted R. Dintersmith
* Director May 3, 1999
- ------------------------------------
Howard Draft
* Director May 3, 1999
- ------------------------------------
Gary Prophitt
* Director May 3, 1999
- ------------------------------------
Michael D. Solomon
/s/ George R. Garrick May 3, 1999
*By:________________________________
George R. Garrick
Attorney-in-fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
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<C> <S>
1.1* Form of Underwriting Agreement.
2.1* Form of Agreement and Plan of Merger between the Registrant and Flycast
Communications Corporation, a California corporation.
3.1* Fourth Amended and Restated Articles of Incorporation of Flycast
Communications Corporation, a California corporation, as currently in
effect.
3.2* Certificate of Incorporation of Flycast Communications Corporation, a
Delaware corporation, as currently in effect.
3.3* Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and become effective prior to the effective
date of the offering.
3.4* Form of Amended and Restated Certificate of Incorporation of the
Registrant, to be filed and become effective upon completion of the
offering.
3.5* Bylaws of the Registrant.
4.1* Specimen Stock Certificate.
5.1* Opinion of Venture Law Group, a Professional Corporation.
10.1* Form of Indemnification Agreement between the Registrant and each of
its officers and directors.
10.2* 1997 Stock Option Plan and form of option agreements.
10.3* 1999 Stock Option Plan, as amended, and form of option agreement.
10.4* 1999 Employee Stock Purchase Plan, as amended, and form of subscription
agreement.
10.5* 1999 Directors' Stock Option Plan.
10.7* Amended and Restated Investors' Rights Agreement dated December 30,
1998 between the Registrant and certain holders of the Registrant's
securities.
10.11* Standard Office Lease dated February 1, 1998 between the Registrant and
Ray Corporation.
10.12* Master Lease Agreement dated December 30, 1997, as amended, between the
Registrant and Comdisco, Inc.
10.13* Subordinated Loan and Security Agreement dated May 22, 1998, as
amended, between the Registrant and Comdisco, Inc.
10.14* Warrant Agreement to Purchase Shares of the Series C Preferred Stock of
Flycast Communications Corporation between the Registrant and
Comdisco, Inc. dated May 22, 1998.
10.15* Warrant Agreement to Purchase Shares of the Series C Preferred Stock of
Flycast Communications Corporation between the Registrant and
Comdisco, Inc. dated September 29, 1998.
16.1* Letter re Change in Certifying Accountant.
23.1 Independent Auditors' Consent.
23.2* Consent of Counsel (included in Exhibit 5.1).
24.1* Power of Attorney (see page II-5).
27.1* Financial Data Schedule.
</TABLE>
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* Represents exhibits previously filed.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment 7 to Registration Statement No. 333-
71909 of Flycast Communications Corporation of our report dated February 3,
1999 (March 30, 1999 as to the last paragraph of Note 8), appearing in the
Prospectus, which is part of this Registration Statement, and of our report
dated February 3, 1999 relating to the financial statement schedule appearing
elsewhere in this Registration Statement.
We also consent to the references to us under the headings "Experts" and
"Change in Accountants" in such Prospectus.
/s/ Deloitte & Touche LLP
San Jose, California
May 3, 1999
