<PAGE>
As filed with the Securities and Exchange Commission on May 7, 1999
Registration No. 333-________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ADFORCE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 33-0694260
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
10590 NORTH TANTAU AVENUE
CUPERTINO, CALIFORNIA 95014
(Address of Principal Executive Offices, including Zip Code)
1997 STOCK PLAN
STARPOINT SOFTWARE, INC. 1996 STOCK PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 DIRECTORS STOCK OPTION PLAN
NON-PLAN STOCK OPTION GRANTS
(Full Titles of the Plans)
JOHN A. TANNER
CHIEF FINANCIAL OFFICER
ADFORCE, INC.
10590 NORTH TANTAU AVENUE
CUPERTINO, CALIFORNIA 95014
(408) 873-3680
(Name, Address and Telephone Number of Agent for Service)
COPIES TO:
Gordon K. Davidson, Esq.
Laird H. Simons, III, Esq.
Mark A. Leahy, Esq.
Edward M. Urschel, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 2,749,523 (1) $15.00 (2) $41,242,845 (2) $11,466
Common Stock, $0.001 par value 2,720,587 (3) $ 2.375(4) $ 6,461,395 $ 1,797
- --------------------------------------------------------------------------------------------------------------------
TOTAL 5,470,110 13,263
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents the aggregate of 2,249,523 shares available for grant under the
1999 Equity Incentive Plan, 200,000 shares reserved for issuance upon
exercise of stock options under the 1999 Directors Stock Option Plan and
300,000 shares available for grant under the 1999 Employee Stock
Purchase Plan.
(2) Estimated as of May 7, 1999 pursuant to Rule 457(c) solely pursuant for
the purpose of calculating the registration fee.
(3) Represents certain shares subject to options outstanding as of May 7, 1999
under the 1997 Stock Plan and the StarPoint Software, Inc. 1996 Stock
Plan and pursuant to Non-Plan Stock Option Grants.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
which contains audited financial statements of the Registrant for
the years ended December 31, 1997 and 1998.
(b) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of 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 documents subsequently filed by 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 registered hereby
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 hereof from
the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Fenwick & West LLP, Palo Alto, California, will pass upon the validity
of the shares of Common Stock offered hereby. A partnership comprised
of certain partners at Fenwick & West LLP owns 3,640 shares of Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation 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 such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act.
As permitted by Section 145 of the Delaware General Corporation Law,
Registrant's Certificate of Incorporation limits, to the maximum extent
permitted by Delaware law, the personal liability of directors for monetary
damages for their conduct as a director, except for liability (a) for any breach
of the director's duty of loyalty to Registrant or its stockholders; (b) for
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of the law; (c) under Section 174 of the Delaware General
Corporation Law regarding unlawful dividends and stock purchases; or (d) for any
transaction from which the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, Registrant's
Bylaws provide that (a) Registrant must indemnify its directors and officers to
the fullest extent permitted by the Delaware law, provided that each indemnified
officer and director acted in good faith and in a manner that the officer or
director reasonably believed to be in or not opposed to Registrant's best
interests; (b) Registrant may indemnify its other employees and agents to
2
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the same extent that it indemnify its officers and directors, unless
otherwise required by law, Registrant's Certificate of Incorporation or
Bylaws, or any agreements; (c) Registrant must advance expenses, as incurred,
to Registrant's directors and officers in connection with a legal proceeding
to the fullest extent permitted by Delaware law, subject to very limited
exceptions; and (d) the rights conferred in Registrant's Bylaws are not
exclusive.
Registrant has entered into Imdemnity Agreements with each of its current
directors and officers to provide for the indemnification of Registrant's
officers and directors for all expenses and liabilities incurred in connection
with any action or proceeding brought against them by reason of the fact that
they are or were agents of Registrant.
Reference is also made to Section 7 of the Underwriting Agreement
relating to Registrant's initial public offering, effected pursuant to a
registration statement on Form S-1, which provides for the indemnification of
officers, directors and controlling persons of Registrant against certain
liabilities.
Registrant maintains a policy of directors' and officers' liability
insurance which covers certain matters, including matters arising under the
Securities Act.
See also the undertakings set out in response to Item 9.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
------ --------------------------------------------------
<S> <C>
4.1 Registrant's First Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.1 of Registrant's Registration Statement on Form S-1, File
No. 333-73231,originally filed with the Commission on March
2, 1999, as subsequently amended (the "Form S-1")).
4.2 Registrant's Second Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.2 of the Form S-1).
4.3 Registrant's Restated Bylaws, as amended (incorporated herein
by reference to Exhibit 3.3 of the Form S-1).
4.4 Specimen Stock Certificate (incorporated herein by reference
to Exhibit 4.1 of the Form S-1).
4.5 Amended and Restated Investors' Rights Agreement by and
between Imgis, Inc. and certain investors dated as of July
15, 1998 (incorporated herein by reference to Exhibit 4.2 of
the Form S-1).
4.6 Amended and Restated Voting Agreement by and between Imgis,
Inc. and certain investors dated as of July 15, 1998
(incorporated herein by reference to Exhibit 4.3 of the Form
S-1).
4.7 Imgis, Inc. 1997 Stock Plan (incorporated herein by reference
to Exhibit 10.3 of the Form S-1).
4.8 Registrant's 1999 Equity Incentive Plan and associated
documents (incorporated herein by reference to Exhibit 10.4
of the Form S-1).
4.9 Registrant's 1999 Directors Stock Option Plan and associated
documents (incorporated herein by reference to Exhibit 10.5
of the Form S-1).
3
<PAGE>
4.10 Registrant's 1999 Employee Stock Purchase Plan and associated
documents (incorporated herein by reference to Exhibit 10.6
of the Form S-1).
5.1 Opinion of Fenwick & West LLP
23.1 Consent of Fenwick & West LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (see page 6).
</TABLE>
ITEM 9. UNDERTAKINGS.
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 Securities Act of 1933;
(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) if, in
the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(4) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the
4
<PAGE>
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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 Act and will be governed by the final adjudication of such
issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Cupertino, State of California, on this 7th day of
May 1999.
ADFORCE, INC.
By: /s/ Charles W. Berger
-------------------------------------
Charles W. Berger
President, Chairman of the Board of
Directors and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Charles W. Berger and John A.
Tanner, and each of them acting individually, as his or her attorney-in-fact,
each with full power of substitution, for him or her in any and all capacities,
to sign any and all 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 and
confirming all that each of said attorneys-in-fact, or any substitute, 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 on May 7, 1999 by the following persons
in the capacities indicated:
Signature Title
/s/ Charles W. Berger President, Chief Executive Officer and
- -------------------------------- Chairman of the Board of Directors
Charles W. Berger
/s/ John A. Tanner Vice President, Finance and Chief Financial
- -------------------------------- Officer
John A. Tanner
/s/ Eric Di Benedetto Director
- --------------------------------
Eric Di Benedetto
/s/ Mark P. Gorenberg Director
- --------------------------------
Mark P. Gorenberg
/s/ J. Neil Weintraut Director
- --------------------------------
J. Neil Weintraut
/s/ Dirk A. Wray Director
- --------------------------------
Dirk A. Wray
6
<PAGE>
ADFORCE, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
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<S> <C>
4.1 Registrant's First Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.1 of Registrant's Registration Statement on Form S-1, File
No. 333-73231,originally filed with the Commission on March
2, 1999, as subsequently amended (the "Form S-1")).
4.2 Registrant's Second Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
3.2 of the Form S-1).
4.3 Registrant's Restated Bylaws, as amended (incorporated herein
by reference to Exhibit 3.3 of the Form S-1).
4.4 Specimen Stock Certificate (incorporated herein by reference
to Exhibit 4.1 of the Form S-1).
4.5 Amended and Restated Investors' Rights Agreement by and
between Imgis, Inc. and certain investors dated as of July
15, 1998 (incorporated herein by reference to Exhibit 4.2 of
the Form S-1).
4.6 Amended and Restated Voting Agreement by and between Imgis,
Inc. and certain investors dated as of July 15, 1998
(incorporated herein by reference to Exhibit 4.3 of the Form
S-1).
4.7 Imgis, Inc. 1997 Stock Plan (incorporated herein by reference
to Exhibit 10.3 of the Form S-1).
4.8 Registrant's 1999 Equity Incentive Plan and associated
documents (incorporated herein by reference to Exhibit 10.4
of the Form S-1).
4.9 Registrant's 1999 Directors Stock Option Plan and associated
documents (incorporated herein by reference to Exhibit 10.5
of the Form S-1).
4.10 Registrant's 1999 Employee Stock Purchase Plan and associated
documents (incorporated herein by reference to Exhibit 10.6
of the Form S-1).
5.1 Opinion of Fenwick & West LLP
23.1 Consent of Fenwick & West LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (see page 6).
</TABLE>
7
<PAGE>
EXHIBIT 5.1
May 7, 1999
AdForce, Inc.
10590 North Tantau Avenue
Cupertino, California 95014
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission (the "COMMISSION") on or about May 7, 1999 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 5,470,110 shares of your Common Stock (the "STOCK") subject to
issuance by you upon the exercise of: (1) options to purchase up to 2,003,989
shares of Stock granted under the Company's 1997 Stock Plan (the "1997 PLAN");
(2) options to purchase 6,598 shares of Stock granted by you under the StarPoint
Software, Inc. 1996 Stock Plan (the "STARPOINT PLAN"); (3) options to purchase
up to 2,249,523 shares of Stock granted or to be granted under the Company's
1999 Equity Incentive Plan (the "1999 OPTION PLAN"); (4) options to purchase up
to 200,000 shares of Stock granted or to be granted under the Company's 1999
Directors Stock Option Plan (the "1999 DIRECTORS PLAN"); (5) purchase rights for
up to 300,000 shares of Stock granted or to be granted under the Company's 1999
Employee Stock Purchase Plan (the "1999 PURCHASE PLAN"); and (6) options to
purchase up to 710,000 shares of Stock granted pursuant to non-plan option
agreements (the "NON-PLAN AGREEMENTS"). The plans referred to in clauses
(1) through (6) above are collectively referred to in this letter as the
"PLANS." In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File No. 333-73231) filed
with, and declared effective by, the Commission on May 7, 1999,
together with the Exhibits filed as a part thereof, including without
limitation, each of the Plans and related stock option grant or
purchase and exercise agreements;
(2) your registration statement on Form 8-A (File No. 000-25497), filed
with the Commission on May 4, 1999, together with the order of
effectiveness issued by the Commission therefor on May 7, 1999;
(3) the Registration Statement, together with the Exhibits filed as a part
thereof;
(4) the Prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
books and the minute books of your predecessor, Imgis, Inc., a
California corporation ("IMGIS CALIFORNIA"), that are in our
possession;
<PAGE>
AdForce, Inc.
May 7, 1999
Page 2
(6) the stock records that you have provided to us (consisting of a list
of stockholders of even date herewith and a list of option and warrant
holders of even date herewith respecting your capital and of any
rights to purchase capital stock, which you have represented to us
are true and complete as of their dates); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
We have also confirmed the continued effectiveness of your registration
under the Securities Exchange Act of 1934, as amended, by telephone call to
the offices of the Commission and have confirmed your eligibility to use Form
S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the
lack of any undisclosed terminations, modifications, waivers or amendments to
any documents reviewed by us and the due authorization, execution and
delivery of all documents where due authorization, execution and delivery are
prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials and
records referred to above. We have made no independent investigation or other
attempt to verify the accuracy of any of such information or to determine the
existence or non-existence of any other factual matters; HOWEVER, we are not
aware of any facts that would cause us to believe that the opinion expressed
herein is not accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to case law or secondary sources)
the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Stock, the Registration
Statement will have become effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 5,470,110 shares of
Stock that may be issued and sold by you upon the exercise of: (1) stock options
granted under the 1997 Plan; (2) stock options granted under the StarPoint Plan;
(3) stock options granted or to be granted under the 1999 Option Plan; (4) stock
options granted or to be granted under the 1999 Directors
<PAGE>
AdForce, Inc.
May 7, 1999
Page 3
Plan; (5) purchase rights granted or to be granted under the 1999 Purchase
Plan; and (6) stock options granted under Non-Plan Agreements, when issued
and sold in accordance with the applicable plan and stock option grant and
exercise agreements or stock purchase agreements entered into or to be
entered into thereunder, and in the manner referred to in the relevant
Prospectus associated with the Registration Statement, will be validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8, pertaining to the 1997 Stock Plan, StarPoint Software,
Inc. 1996 Stock Plan, 1999 Equity Incentive Plan, 1999 Employee Stock
Purchase Plan, 1999 Directors Stock Option Plan, and Non-Plan Stock Option
Grants of AdForce, Inc. and to the incorporation by reference of our report
dated February 5, 1999, except for Note 11, as to which the date is April 30,
1999, with respect to the financial statements and schedule of AdForce, Inc.
included in its Registration Statement on Form S-1, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
May 7, 1999
