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As filed with the Securities and Exchange Commission on April 10, 2000
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
Netcentives Inc.
(Exact name of Registrant as specified in its charter)
Delaware 93-1213291
(State of incorporation) (I.R.S. Employer Identification No.)
475 Brannan Street
San Francisco, CA 94107
(Address of principal executive offices)
_______________________
1998 MaxMiles, Inc. Key Employee Option Plan
1997 Post Communications Stock Plan
1999 Employee Stock Purchase Plan
1996 Stock Option Plan
1999 Directors' Stock Option Plan
(Full title of the Plans)
_______________________
West Shell, III
Chairman and Chief Executive Officer
Netcentives Inc.
475 Brannan Street
San Francisco, CA 94107
(415) 538-1888
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Sanjay Khare
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
(Calculation of Registration Fee on following page)
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
1998 MaxMiles, Inc. Key Employee Option Plan
Common Stock,
$.001 par value................................ 21,922 Shares (2) $ 5.42 (8) $ 118,817.24 $ 31.37
1997 Post Communications Stock Plan
Common Stock,
$.001 par value................................ 316,704 Shares (3) $ 0.41 (8) $ 129,848.64 $ 34.28
1999 Employee Stock Purchase Plan
Common Stock,
$.001 par value................................ 375,000 Shares (4) $ 17.90 (7) $ 6,712,500.00 $ 1,772.10
1996 Stock Option Plan
Common Stock,
$.001 par value................................ 6,250,000 Shares (5) $ 5.389 (8) $33,681,250.00 $ 8,891.85
1999 Directors' Stock Option Plan
Common Stock,
$.001 par value................................ 250,000 Shares (6) $ 27.50 (8) $ 6,875,000.00 $ 1,815.00
TOTAL 7,213,626 Shares $47,517,415.80 $ 12,544.60
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_______________________
(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) This total represents shares reserved for issuance for employees under the
1998 MaxMiles, Inc. Key Employee Option Plan (the "Maxmiles Assumed Plan"),
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which was assumed by the Registrant's acquisition of MaxMiles, Inc. (the
"MaxMiles Merger").
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(3) This total represents shares reserved for issuance for employees under the
1997 Post Communications Stock Plan (the "Post Assumed Plan"), which was
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assumed by the Registrant's acquisition of Post Communications (the "Post
----
Merger").
------
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(4) This total represents the 75,000 share annual increase on the first day of
each of the Registrant's fiscal years beginning in 2000, 2001, 2002, 2003
and 2004 to the number of shares reserved for issuance under the Purchase
Plan.
(5) This total represents the 1,250,000 share annual increase on the first day
of each of the Registrant's fiscal years beginning in 2000, 2001, 2002,
2003 and 2004 to the number of shares reserved for issuance under the
Purchase Plan.
(6) This total represents the 50,000 share annual increase on the first day of
each of the Registrant's fiscal years beginning in 2000, 2001, 2002, 2003
and 2004 to the number of shares reserved for issuance under the Purchase
Plan.
(7) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
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registration fee. The computation is based upon the average of the bid and
asked price of the Common Stock as reported on The Nasdaq National Market
on April 7, 2000, multiplied by 85%, which is the percentage of the trading
purchase price applicable to purchases under the referenced Plan.
(8) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest cent) of
outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
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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 Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 filed on March 30, 2000, pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which contains
------------
audited financial statements for the Registrant's latest fiscal year for which
such statements have been filed.
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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The validity of the common stock offered hereby was passed upon the
Registrant by Venture Law Group, A Professional Corporation, Menlo Park,
California. Craig W. Johnson and Elias J. Blawie, each a director of Venture
Law Group, are the Secretary and Assistant Secretary of the Registrant,
respectively. VLG Investments 1996, an entity affiliated with Venture Law
Group, holds an aggregate of 69,538 shares of the Registrant's common stock.
Mr. Johnson and Mr. Blawie, hold an aggregate of 20,385 shares and 12,692
shares, respectively, of the Registrant's common stock and each has a pecuniary
interest in the shares owned by VLG Investments 1996.
Item 6. Indemnification of Directors and Officers.
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The Registrant's Certificate of Incorporation reduces the liability of
a director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
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 Consent of Deloitte & Touche LLP, Independent Auditors.
24.1 Powers of Attorney (see p.6).
_______________
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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,
Netcentives Inc., 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 this 10th
day of April, 2000.
Netcentives Inc.
By: /s/ John F. Longinotti
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John F. Longinotti
Executive Vice President, Operations and
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints West Shell, III and John F. Longinotti,
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 attorneys-in-fact 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
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<S> <C> <C>
/s/ West Shell, III Chairman and Chief Executive Officer April 10, 2000
- --------------------------------
West Shell, III (Principal Executive Officer)
/s/ John F. Longinotti Executive Vice President, Finance and April 10, 2000
- -------------------------------- Operations and Chief Financial Officer
John F. Longinotti (Principal Financial and Accounting Officer)
/s/ Stewart Alsop Director April 10, 2000
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Stewart Alsop
/s/ Tom Byers Director April 10, 2000
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Tom Byers, Ph.D.
/s/ Eric W. Tilenius Director April 10, 2000
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Eric W. Tilenius
/s/ Virgina M. Turezyn Director April 10, 2000
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Virginia M. Turezyn
/s/ Wendell G. Van Auken Director April 10, 2000
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Wendell G. Van Auken
/s/ Sergio Zyman Director April 10, 2000
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Sergio Zyman
</TABLE>
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EXHIBIT 5.1
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VENTURE LAW GROUP
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
(650) 854-4488 (tel)
(650) 233-8386 (fax)
April 10, 2000
Netcentives Inc.
475 Brannan Street
San Francisco, CA 94107
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
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Statement") filed by you with the Securities and Exchange Commission (the
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"Commission") on April 10, 2000, in connection with the registration under the
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Securities Act of 1933, as amended, of a total of 7,213,626 shares of your
Common Stock (the "Shares") reserved for issuance under the 1998 MaxMiles, Inc.
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Key Employee Option Plan, 1997 Post Communications Stock Plan, 1999 Employee
Stock Purchase Plan, 1996 Stock Option 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, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ VENTURE LAW GROUP
EJB
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EXHIBIT 23.2
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CONSENT OF DELOITTE & TOUCHE, LLP, INDEPENDENT AUDITORS
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We consent to the incorporation by reference in this Registration Statement of
Netcentives Inc. on Form S-8 of our reports dated February 3, 2000 (March 3,
2000 as to the last two paragraphs of Note 16), appearing in the Annual Report
on Form 10-K of Netcentives Inc. for the year ended December 31, 1999.
Deloitte & Touche LLP
San Jose, California
April 7, 2000
