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As filed with the Securities and Exchange Commission on May 14, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
FLYCAST COMMUNICATIONS CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 77-0431028
(State of incorporation) (I.R.S. Employer Identification No.)
181 Fremont Street
San Francisco, California 94105
(Address of principal executive offices)
_______________________
1999 Employee Stock Purchase Plan
1999 Directors' Stock Option Plan
(Full title of the Plans)
_______________________
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 and telephone number, including area code, of agent for service)
_______________________
Copy to:
Jeffrey Y. Suto
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
Page 1 of 9 Pages
Exhibit Index on Page 7
(Calculation of Registration Fee on following page)
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Maximum Amount Offering Maximum Amount of
to be Price Per Aggregate Registration
Title of Securities to be Registered Registered(1) Share Offering Price Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 Employee Stock Purchase Plan
Common Stock,
$0.001 par value.................. 350,000 Shares $22.31(2) $ 7,808,500.00 $2,171
1999 Directors' Stock Option Plan
Common Stock,
$0.001 par value.................. 200,000 Shares $26.25(3) $ 5,250,000 $1,460
TOTAL 550,000 Shares $13,058,500 $3,631
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</TABLE>
_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans 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) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
registration fee. The computation is based upon the average high and low
sale prices of the Common Stock as reported on the Nasdaq National Market
on May 12, 1999, multiplied by 85%, which is the percentage of the trading
purchase price applicable to purchases under the referenced plan.
(3) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on May
12, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
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(a) The Registrant's Prospectus filed on May 5, 1999 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) Not Applicable.
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(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on March
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1, 1999, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant 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 hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing such documents.
Item 4. Description of Securities. Not applicable.
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Item 5. Interests of Named Experts and Counsel.
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As of the date of this Registration Statement, a director of Venture
Law Group own 7,718 shares of the Company's Common Stock and an investment
partnership associated with Venture Law Group own 11,278 shares of the Company's
Common Stock.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers, as well as
other employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, bylaws, disinterested director vote, stockholder vote, agreement or
otherwise.
The Company's Restated Certificate of Incorporation limits the
liability of directors to the full extent permitted by Delaware law. Delaware
law provides that a corporation's certificate of incorporation may contain a
provision eliminating or limiting the personal liability of directors for
monetary damages for breach of their fiduciary duties as directors, except for
liability (i) for any breach of their duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. The Company's Bylaws provide that the
Company shall indemnify its directors and officers and may indemnify its
employees and agents to the fullest extent permitted by law. The Company
believes that indemnification under its Bylaws covers at least negligence and
gross negligence on the part of indemnified parties.
The Company intends to enter into agreements which indemnify its
directors and executive officers. These agreements, among other things,
indemnify the Company's directors and officers for certain expenses (including
attorneys' fees), judgments, fines and settlement amounts incurred by such
persons in any action or proceeding, including any action by or in the right of
the Company, arising out of such person's services as a director or officer of
the Company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company. The Company
believes that these provisions and agreements are necessary to attract and
retain qualified directors and officers.
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At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding that might result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Independent Auditors' Consent (see p. 9).
24.1 Powers of Attorney (see p. 6).
Item 9. Undertakings.
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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 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 purposes 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
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 therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as the 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 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 a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Flycast Communications Corporation, a corporation organized and existing under
the laws of the State of Delaware, 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 May 13, 1999.
Flycast Communications Corporation
By: /s/ George R. Garrick
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George R. Garrick
Chairman of the Board, Chief Executive
Officer and President
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George R. Garrick and Ralph J. Harms,
jointly and severally, his or her attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorney-in-facts and agents,
or his or her 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/ George R. Garrick Chairman of the Board, Chief Executive May 13, 1999
- ------------------------------------- Officer and President (Principal Executive
George R. Garrick Officer)
/s/ Ralph J. Harms Chief Financial Officer and Assistant May 13, 1999
- ------------------------------------- Secretary (Principal Financial and
Ralph J. Harms Accounting Officer)
/s/ David J. Cowan Director May 13, 1999
- -------------------------------------
David J. Cowan
/s/ Ted R. Dintersmith Director May 13, 1999
- -------------------------------------
Ted R. Dintersmith
/s/ Howard Draft Director May 13, 1999
- -------------------------------------
Howard Draft
/s/ Michael D. Solomon Director May 13, 1999
- -------------------------------------
Michael D. Solomon
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number No.
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<C> <S> <C>
5.1 Opinion of Venture Law Group, a Professional Corporation 8
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23.1 Consent of Venture Law Group, a Professional Corporation 8
(included in Exhibit 5.1). ------
23.2 Independent Auditors' Consent (see p. 9). 9
------
24.1 Powers of Attorney (see p. 6). 6
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EXHIBIT 5.1
May 14, 1999
Flycast Communications Corporation
181 Fremont Street
San Francisco, California 94105
Registration Statement on Form S-8
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Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") executed by Flycast Communications Corporation
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(the "Company") and to be filed with the Securities and Exchange Commission (the
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"Commission") in connection with the registration under the Securities Act of
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1933, as amended, of a total of 550,000 shares of the Company's Common Stock
(the "Shares") reserved for issuance under the Company's 1999 Employee Stock
------
Purchase Plan and 1999 Directors' Stock Option Plan. As your counsel in
connection with this transaction, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement 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 in any amendment thereto.
This opinion is solely for your benefit and may not be relied upon by any
other person without our prior written consent.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
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We consent to the incorporation by reference in this Registration Statement of
Flycast Communications Corporation on Form S-8 of our report dated February 3,
1999 (March 30, 1999 as to the last paragraph of Note 8), appearing in the
Registration Statement on Form S-1 (File No. 333-71909) of Flycast
Communications Corporation, and of our report dated February 3, 1999 relating to
the financial statement schedule appearing elsewhere in the Registration
Statement on Form S-1.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
May 13, 1999
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