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As filed with the Securities and Exchange Commission on September 29, 1999
Registration No. 333-_____
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UNITED STATES
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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CYBERGOLD, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
California 7311 94-3212392
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
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1330 Broadway, 12th Floor
Oakland, California 94612
(Address of principal executive offices) (Zip Code)
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CYBERGOLD, INC.
1996 STOCK OPTION PLAN
1999 OMNIBUS EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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A. Nathaniel Goldhaber
President and Chief Executive Officer
CYBERGOLD, INC.
1330 Broadway, 12th Floor
Oakland, California 94612
(Name and address of agent for service)
(510) 836-8700
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Securities Amount Proposed Minimum Proposed Maximum Amount of
to be to be Offering Price Aggregate Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
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1996 Stock Option Plan and
1999 Omnibus Equity Incentive Plan
Options 3,095,168 N/A N/A N/A
Common Stock (par value $.0001) 3,095,168 $9.00 $27,856,512 $7,745
1999 Employee Stock Purchase Plan
Rights to Purchase 300,000 N/A N/A N/A
Common Stock (par value $.0001) 300,000 $9.00 $2,700,000 $751
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Omnibus Equity Incentive
Plan, the 1999 Employee Stock Purchase Plan, or the 1996 Stock Option Plan
by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the outstanding shares of Common
Stock of Cybergold, Inc.
(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 fair market value
per share of Common Stock of Cybergold, Inc. on September 22, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Cybergold, Inc. (the "Registrant") hereby incorporates by reference into
this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "SEC"):
(a) The Registrant's prospectus filed with the SEC pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "1933 Act"), in
connection with Registration Statement No. 333-79067 on Form S-1 filed
with the SEC on May 21, 1999, together with any and all amendments
thereto, in which there are set forth audited financial statements for
the Registrant's fiscal years ended December 31, 1997 and 1998, and
(b) The description of the Registrant's outstanding Common Stock contained
in the Registrant's Registration Statement No. 333-79067 on Form
8-A12G filed with the SEC on September 14, 1999, pursuant to Section
12 of the 1934 Act, including any amendment or report filed for the
purpose of updating such description.
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
deregisters 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.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
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 indemnification 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 1933 Act. The
Registrant's Bylaws provide for mandatory indemnification of its directors and
permissible indemnification of officers, employees and other agents to the
maximum extent permitted by the Delaware General Corporation Law. The
Registrant's Certificate of Incorporation provides that, pursuant to Delaware
law, its directors shall not be liable for monetary damages for breach of their
fiduciary duty as directors to the Registrant and its stockholders. This
provision in the Certificate of Incorporation does not eliminate the fiduciary
duty of the directors, and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Registrant for
acts or omissions 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 unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Registrant has
entered into Indemnification Agreements with its directors. The Indemnification
Agreements provide the Registrant's directors with further indemnification to
the maximum extent permitted by the Delaware General Corporation Law.
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Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 333-79067 on Form 8-A12G,
which is incorporated herein by reference pursuant to Item 3(b)
of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
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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 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 paragraphs is contained in periodic reports filed with or
furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in 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 Omnibus Equity Incentive Plan, 1999
Employee Stock Purchase Plan, and 1996 Stock Option 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) of the 1934 Act that is
incorporated by reference in 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 SEC, 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 Berkeley, State of California on this 29th day of
September, 1999.
CYBERGOLD, INC.
By: /s/ A. NATHANIEL GOLDHABER
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A. Nathaniel Goldhaber
President, Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Cybergold, Inc., a Delaware
corporation, do hereby constitute and appoint A. Nathaniel Goldhaber and John D.
Steuart, and either of them, the lawful attorneys-in-fact and agents with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and either one of them, determine
may be necessary or advisable or required to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents, or either one of them, shall do or cause to be done by
virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
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/s/ A. NATHANIEL GOLDHABER President, Chief Executive Officer September 29, 1999
- --------------------------- and Chairman of the Board
A. Nathaniel Goldhaber (Principal Executive Officer)
/s/ JOHN D. STEUART Chief Financial Officer (Principal September 29, 1999
- --------------------------- Financial and Accounting Officer)
John D. Steuart
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Signature Title Date
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/s/ CHRISTOPHER D. ALAFI, PH.D. Director September 29, 1999
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Christopher D. Alafi, Ph.D.
/s/ JAY CHIAT Director September 29, 1999
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Jay Chiat
/s/ GARRETT P. GRUENER Director September 29, 1999
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Garrett P. Gruener
/s/ REGIS P. MCKENNA Director September 29, 1999
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Regis P. McKenna
/s/ ALAN SALZMAN Director September 29, 1999
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Alan Salzman
/s/ PETER S. SEALEY, PH.D. Director September 29, 1999
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Peter S. Sealey, Ph.D.
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EXHIBIT INDEX
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Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 333-79067 on Form 8-A12G,
which is incorporated herein by reference pursuant to Item 3(b)
of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
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Exhibit 5
September 29, 1999
Cybergold, Inc.
2921 Adeline Street
Berkeley, California 94703
Re: Cybergold, Inc. Registration Statement
for Offering of 3,395,168 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of (i) 3,095,168 shares of Common
Stock under the Company's 1999 Omnibus Equity Incentive Plan and 1996 Stock
Option Plan; and (ii) 300,000 shares of Common Stock under the Company's 1999
Employee Stock Purchase Plan. We advise you that, in our opinion, when such
shares have been issued and sold pursuant to the applicable provisions of the
1999 Omnibus Equity Incentive Plan, the 1999 Employee Stock Purchase Plan, and
the 1996 Stock Option Plan and in accordance with the Registration Statement,
such shares will be validly issued, fully paid and nonassessable shares of the
Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ GUNDERSON DETTMER STOUGH
VILLENEUVE FRANKLIN & HACHIGIAN
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Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
September 13, 1999 included in Cybergold, Inc.'s Registration Statement on Form
S-1 and to all references to our Firm included in this Registration Statement.
San Francisco, California,
September 28, 1999 /s/ ARTHUR ANDERSEN LLP
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Arthur Andersen LLP
