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As filed with the Securities and Exchange Commission on July 28, 2000
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AGENCY.COM LTD.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3808969
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
20 EXCHANGE PLACE, 15TH FLOOR
NEW YORK, NEW YORK 10005
(Address of principal executive offices) (Zip Code)
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AGENCY.COM LTD.
1999 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the Plans)
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CHAN SUH
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
AGENCY.COM LTD.
20 EXCHANGE PLACE, 15TH FLOOR
NEW YORK, NEW YORK 10005
(Name and address of agent for service)
(212) 358-2600
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price(2) Fee
------------ --------------- ----------- ----------- --------------
<S> <C> <C> <C> <C>
1999 STOCK OPTION/STOCK ISSUANCE PLAN 1,045,489 shares $22.22(2) $23,230,765.58 (2) $6,132.93
Common Stock, $0.001 par value
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 1999 Stock
Option/Stock Issuance Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of the Registrant's Common Stock on
July 25, 2000 as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
AGENCY.COM Ltd. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed with the Commission on March 29, 2000,
pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended (the "1934 Act");
(b) The Registrant's Current Report on Form 8-K for period date January
25, 2000 filed with the Commission on February 1, 2000;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000 filed with the Commission on May 15, 2000; and
(d) The Registrant's Registration Statement No. 000-28293 on Form 8-A12G
filed with the Commission on November 29, 1999 pursuant to Section
12(g) of the 1934 Act, in which there is described the terms, rights,
and provisions applicable to the Registrant's outstanding Common
Stock.
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 de-registers 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. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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's Amended and Restated Certificate of Incorporation in
effect as of the date hereof (the "Certificate") provides that, except to the
extent prohibited by the Delaware General Corporation Law, as amended (the
"DGCL"), the Registrant's directors shall not be personally liable to the
Registrant or its stockholders for monetary damages for any breach of fiduciary
duty as directors of the Registrant. Under the DGCL, the directors have a
fiduciary duty to the Registrant which is not eliminated by this provision of
the Certificate and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of nonmonetary relief will remain available. In
addition, each director will continue to be subject to liability under the DGCL
for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are prohibited by
the DGCL. This provision also does not affect the directors' responsibilities
under any other laws, such as the Federal securities laws or state or Federal
environmental laws. The Registrant has obtained liability insurance for its
officers and directors.
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Section 145 of the DGCL empowers a corporation to indemnify its
directors and officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers, provided that
this provision shall not eliminate or limit the liability of a director: (i) for
any breach of the director's 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) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest extent
permitted by Section 102(b)(7) of the DGCL and provides that the Registrant may
fully indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that such person is or was a director or officer of the Registrant, or is or was
serving at the request of the Registrant as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Certificate. The Registrant is not aware of any
threatened litigation or proceeding that may result in a claim for such
indemnification.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No. 000-28293
on Form 8-A12G, together with the exhibits thereto, which
are incorporated herein by reference pursuant to Item 3(d)
to this Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 AGENCY.COM Ltd. 1999 Stock Option/Stock Issuance Plan.
</TABLE>
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 Securities Act of 1933, as amended (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 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 clauses 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 1999 Stock Option/Stock Issuance
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)
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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
Commission, 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.
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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 New York, State of New York on this
5th day of July, 2000.
AGENCY.COM LTD.
By: /s/ Chan Suh
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Chan Suh
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That each person whose signature appears below constitutes and
appoints Chan Suh, President and Chief Executive Officer, and Charles Dickson,
Chief Financial Officer and Treasurer, and each of them, as such person's true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitutes, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Chan Suh President, Chief Executive Officer July 5, 2000
---------------------------- and Chairman of the Board of Directors
Chan Suh (Principal Executive Officer)
/s/ Charles Dickson Executive Vice President, Chief July 5, 2000
---------------------------- Financial Officer and Treasurer
Charles Dickson (Principal Financial Officer)
/s/ Michael Jackson Controller June 23, 2000
---------------------------- (Principal Accounting Officer)
Michael Jackson
/s/ Kyle Shannon Chief People Officer and Director July 5, 2000
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Kyle Shannon
/s/ Kenneth Trush Executive Vice President, Corporate July 5, 2000
---------------------------- Development and Director
Kenneth Trush
/s/ John D. Wren Director July 26, 2000
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John D. Wren
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Gerald Bruce Redditt Director June 26, 2000
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Gerald Bruce Redditt
/s/ Thomas DeLong Director June 22, 2000
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Thomas DeLong
/s/ Jeffrey Rayport Director June 30, 2000
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Jeffrey Rayport
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No. 000-28293
on Form 8-A12G, together with the exhibits thereto, which
are incorporated herein by reference pursuant to Item 3(d)
to this Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Arthur Andersen LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 AGENCY.COM Ltd. 1999 Stock Option/Stock Issuance Plan.
</TABLE>
