<PAGE>
As filed with the Securities and Exchange Commission on March 23, 2000
Registration No. 333-96271
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ALLADVANTAGE.COM INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7319 94-3327058
(State or other
jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or
organization) Classification Code Number) Identification Number)
</TABLE>
---------------
4010 Point Eden Way, Hayward, California 94545, (510) 888-3898
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
James Jorgensen
President and Chief Executive Officer
4010 Point Eden Way, Hayward, California 94545, (510) 888-3898
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
<TABLE>
<S> <C>
Laird H. Simons III, Esq. Gregory C. Smith, Esq.
Mark A. Leahy, Esq. Thomas J. Ivey, Esq.
Andrew Y. Luh, Esq. Skadden, Arps, Slate, Meagher & Flom LLP
Fenwick & West LLP 525 University Ave.
Two Palo Alto Square Suite 220
Palo Alto, CA 94306 Palo Alto, CA 94301
(650) 494-0600 (650) 470-4500
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement.
---------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Title of each Class of Maximum Maximum Amount of
Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value................. 17,250,000(1) $10.00(2) $172,500,000 $45,540(3)
- ---------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Includes 2,250,000 shares subject to the underwriters' over-allotment
option.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(a) under the Securities Act of 1933.
(3) $39,600 was paid in connection with the original filing on February 7,
2000 and hence an additional $5,940 is included with this filing.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MARCH 23, 2000.
15,000,000 Shares
[AllAdvantage.com Logo]
Common Stock
--------
Prior to this offering, there has been no public market for our common stock.
The initial public offering price is expected to be between $8.00 and $10.00
per share. We have applied to list our common stock on The Nasdaq Stock
Market's National Market under the symbol "AADV." We anticipate that our
executive officers, our directors and entities affiliated with them and our 5%
stockholders together will beneficially own approximately 63% of our
outstanding common stock following the completion of this offering. These
stockholders will be able to control matters requiring approval by our
stockholders.
The underwriters have an option to purchase a maximum of 2,250,000 additional
shares to cover over-allotments of shares.
Investing in the common stock involves risks. See "Risk Factors" on page 7.
<TABLE>
<CAPTION>
Underwriting
Price to Discounts and Proceeds to
Public Commissions AllAdvantage
-------- ------------- ------------
<S> <C> <C> <C>
Per Share.................................. $ $ $
Total...................................... $ $ $
</TABLE>
Delivery of the shares of common stock will be made on or about ,
2000.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
Joint Book-Running Managers
Credit Suisse First Boston Donaldson, Lufkin & Jenrette
Robertson Stephens
The date of this prospectus is , 2000.
<PAGE>
GRAPHICS AND TEXT ON THE OUTSIDE GATEFOLD INCLUDE:
The following words are centered across the top of the outside gatefold:
"The AllAdvantage Viewbar(TM)"
The following information is centered directly below the initial text:
A horizontal screen shot of the Viewbar.
Across the top of the Viewbar are depictions of buttons containing the
words "Home," "News," "Finance," "Shop," "Entertainment," "Travel," "Sports,"
and "Tech."
On top of the "Shop" button is an expanded pop-up menu, in the form of a
vertical column, containing the following words which read from the top down:
"Auctions" "Autos," "Baby Care," "Books," "Clothing & Accessories," "Computers
& Electronics" which are highlighted, "Department Stores," "Events/Tickets,"
"Flowers & Gifts," "Food and Beverages," "Health & Beauty," "Home & Garden,"
"Music & Video," "Office Supplies, Pets," "Software, Sports & Fitness," "Toys,
Games & Hobbies," "Travel," and "Miscellaneous". To the right and parallel to
the highlighted words "Computers & Electronics" is a drop-down menu, in the
form of a vertical column, containing the following words which read from the
top down: "PCs & Laptops," which are highlighted, "Software," "Audio & Video,"
"Phones & Handhelds" and "Cameras."
The following text connected by lines to functional areas of the Viewbar
surrounds the depiction of the Viewbar, starting above the depiction of the
Viewbar and to the left of the "Shop" button pop-up menu and following anti-
clockwise around the entire screen shot of the Viewbar:
"Check the weather, buy a car or book a vacation. Members select a category
and get direct access to popular sites."
"One click minimizes the Viewbar at any time for ultimate flexibility of
use."
"Use the menu bar to navigate quickly and easily."
"Members choose from seven available search engines. Just enter search
criteria while using any program and launch directly to the search results."
"Banner and tile advertising spaces allow persistent messaging throughout
the user's Internet experience."
"One-to-one targeting makes marketing messages more relevant."
The body of the Viewbar is depicted in three adjoining sections, the
section on the left hand side of the Viewbar depicts a search engine with the
word "Search" presented and an expanded drop-down menu, in the form of a
vertical column, containing the following words, which read from the top down:
"About.com," "Ask Jeeves," "Direct Hit," "Excite," "Go.com," "GoTo.com" and
"LookSmart". The center section of the Viewbar depicts the Viewbar's banner
advertising space with AllAdvantage.com's logo presented and the section on
the right hand side of the Viewbar depicts the Viewbar's tile advertising
space and presents the following text: "ALLPLAY(TM) Channel Advantage(TM)"
At the bottom right hand corner of the page is AllAdvantage.com's logo with
the following text directly below:
"Its time to take advantage of the Internet.(TM)"
<PAGE>
GRAPHICS AND TEXT ON THE INSIDE GATEFOLD INCLUDE:
The following words are centered across the top of the two page inside
gatefold:
"The Infomediary Position"
The AllAdvantage.com logo without the word AllAdvantage.com embedded in the
logo is centered in the middle of the page directly below the initial text.
The following text is centered directly below the logo: "Providing a
platform for e-commerce, and digital products distribution." and the following
text is centered directly above the logo between the logo and the initial text:
"Connecting businesses and consumers through a persistent, one to one channel."
To the right of the logo in the middle of the page is the word "Businesses"
and to the left of the logo in the middle of the page is the word "Consumers."
Four arching arrows surround the logo with text presented in the center of
each arrow. Two arrows point inwards at the logo, one at the top left side of
the logo containing the words "Advertising & Promotional $" and the other at
the right hand side of the logo containing the words "Demographic & Behavioral
Data" and two arrows point away from the logo one from the bottom left hand
side of the logo containing the words "Targeting Capability & Increased ROI"
and one from the bottom right hand side of the logo containing the words
"Functionality, $ and Privacy."
At the bottom right hand corner of the page is AllAdvantage.com's logo with
the following text directly below:
"Its time to take advantage of the Internet.(TM)"
<PAGE>
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary....................................................... 3
Risk Factors............................................................. 7
Special Note Regarding Forward-Looking Statements........................ 22
Use of Proceeds.......................................................... 23
Dividend Policy.......................................................... 23
Capitalization........................................................... 24
Dilution................................................................. 26
Selected Consolidated Financial Data..................................... 27
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 28
Business................................................................. 34
</TABLE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Management................................................................. 50
Related Party Transactions................................................. 62
Principal Stockholders..................................................... 66
Description of Capital Stock............................................... 68
Shares Eligible for Future Sale............................................ 72
Underwriting............................................................... 74
Notice to Canadian Residents............................................... 77
Legal Matters.............................................................. 78
Experts.................................................................... 78
Where You Can Find Additional Information.................................. 78
Index to Consolidated Financial Statements................................. F-1
</TABLE>
----------------
You should rely only on the information contained in this document or to
which we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document.
Dealer Prospectus Delivery Obligations
Until , 2000 (25 days after the commencement of this offering), all
dealers that effect transactions in these securities, whether or not
participating in this offering, may be required to deliver a prospectus. This
is in addition to the dealers' obligation to deliver a prospectus when acting
as underwriters and with respect to unsold allotments or subscriptions.
2
<PAGE>
PROSPECTUS SUMMARY
You should read the following summary together with the more detailed
information and consolidated financial statements and notes thereto appearing
elsewhere in this prospectus. This prospectus contains forward-looking
statements. The outcome of the events described in these forward-looking
statements is subject to risks, and actual results could differ materially.
Please see "Special Note Regarding Forward-Looking Statements" on page 22 for
information on how those results might differ.
AllAdvantage.com Inc.
AllAdvantage has built a new Internet communications platform that connects
businesses and consumers using our proprietary Web interface and extensive
database of member profiles. We provide businesses with an online advertising,
direct marketing and electronic commerce tool to target and reach our member
community. We provide our members cash compensation, as well as simplified
Internet navigation and electronic commerce links that enhance their Internet
experience.
Through our Web interface, and with our members' express permission, we
continuously track and collect data about their Internet behavior and
demographic information in order to develop highly accurate and detailed
personal profiles. While keeping each of our member's personal data private, we
use these profiles to enable businesses to reach their desired audience more
effectively by delivering highly-targeted online advertisements to, and
conducting electronic commerce with, our members. These online advertisements
may be highly targeted by specifically identifying the group of members to whom
advertisements are delivered based on combinations of variables such as
profiled behavior, demographic data, geography, specific Web sites visited or
Web site topics selected, current Internet behavior, keywords searched and
specific times. In this way, we are an Internet-based information intermediary,
or infomediary, acting as the gatekeeper to our members while maintaining their
privacy.
At the core of our service is the AllAdvantage Viewbar, an interactive
communications window that is persistently displayed on our members' computer
screens. The Viewbar is the interface through which we deliver highly-targeted
advertisements and direct marketing messages to, and collect data from, our
members. The Viewbar also facilitates Internet navigation and electronic
commerce through our members' use of the Viewbar's advertising windows, search
field and pop-up menus that contain direct links to over 400 Web sites. We
provide cash compensation to all our members for time, on a per hour basis,
that they and the members whom they have referred spend browsing the Internet
while the Viewbar is active. Our business customers pay us for advertising
delivered on our Viewbar. We sell advertisements through our direct sales force
and under agreements with third party advertising sales organizations, to which
we pay a commission upon their completion of advertising sales.
From our inception in March 1999 to January 31, 2000, over 5.3 million users
have registered to receive, and not subsequently canceled, our service. We
launched our Viewbar service in July 1999. We have made the Viewbar available
for our members in the United States, Australia, Austria, Belgium, Canada,
Denmark, Finland, France, Germany, Ireland, Italy, Japan, New Zealand,
Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United
Kingdom. During the three months ended January 31, 2000, over 1.7 million
members actively used our service and we delivered advertisements for over
1,100 businesses. In the month of January 2000, we delivered over 6 billion
advertising impressions on our Viewbar. We had incurred net losses of
$37.1 million as of December 31, 1999. We expect to incur operating losses and
negative operating cash flow for at least the next two years.
Our objective is to become the leading Internet-based infomediary,
redefining the way businesses and consumers interact on the Internet. Key
elements of our strategy include expanding our database of profiled
3
<PAGE>
members, expanding our business customer base, increasing the features and
functionality of our Viewbar and utilizing our communications platform to
generate new revenue opportunities. Also, we believe that, by increasing the
number of our members and the number of business customers using our
communications channel, we can offer increasing benefits to both businesses and
members.
We anticipate that our executive officers, our directors and entities
affiliated with them and our 5% stockholders together will beneficially own
approximately 63% of our outstanding common stock following the completion of
this offering. These stockholders will be able to control matters requiring
approval by our stockholders.
We were incorporated in California on March 24, 1999, and we intend to
reincorporate in Delaware prior to the completion of this offering. As of
February 29, 2000, we had 473 full-time employees and contractors. Our address
is 4010 Point Eden Way, Hayward, California 94545. Our telephone number is
(510) 888-3898. Our Web site is located at www.alladvantage.com. Information
contained on our Web site does not constitute part of this prospectus.
4
<PAGE>
The Offering
<TABLE>
<C> <S>
Common stock offered by AllAdvantage................ 15,000,000 shares
Common stock to be outstanding after this offering.. 116,200,226 shares
Use of proceeds..................................... For general corporate purposes, including
working capital and capital expenditures. See
"Use of Proceeds."
Proposed Nasdaq National Market symbol.............. AADV
</TABLE>
The number of shares of common stock to be outstanding after this offering
is based on shares outstanding as of December 31, 1999, adjusted for the
issuance of 16,453,926 shares of our Series D preferred stock in February 2000,
which will convert into 20,567,407 shares of common stock upon completion of
this offering at an assumed public offering price of $9.00 per share based upon
the midpoint of the filing range. The number of shares of common stock issuable
upon conversion of the Series D preferred stock increases from 16,453,926
shares as the initial offering price decreases below $12.10 per share, with the
maximum number of additional shares equal to approximately 4,113,481 shares,
which maximum number of additional shares will be issuable at an assumed
offering price of $9.00 per share. This number of shares set forth above
excludes:
. 10,484,233 shares issuable upon the exercise of stock options
outstanding as of December 31, 1999, at a weighted-average exercise
price of $0.69 per share;
. 477,550 shares issuable upon the exercise of warrants for Series C
preferred stock outstanding as of December 31, 1999 at an exercise price
of $0.03 per share, which will become exercisable for 477,550 shares of
common stock upon the completion of this offering;
. 2,762,925 shares issuable upon the exercise of stock options granted
after December 31, 1999 and outstanding on February 29, 2000, at a
weighted-average exercise price of $6.05 per share;
. 75,000 shares issuable upon the exercise of a warrant for Series D
preferred stock issued after December 31, 1999 and outstanding on
February 29, 2000, at an exercise price of $6.05 per share, which will
become exercisable for up to 93,750 shares of common stock upon the
completion of this offering; and
. 25,416,026 shares available for future issuance under the 1999 equity
incentive plan and 2000 equity incentive plan of our California
predecessor on February 29, 2000 and our 2000 equity incentive plan and
2000 employee stock purchase plan on February 29, 2000, subject to
automatic annual increases each January 1 as described under
"Management--Employee Benefit Plans."
----------------
Except as otherwise indicated, all information in this prospectus assumes:
. the conversion of all outstanding shares of preferred stock into
72,702,093 shares of common stock upon the completion of this offering
at an assumed public offering price of $ 9.00 per share based upon the
midpoint of the filing range;
. the reincorporation of AllAdvantage in Delaware;
. the adoption of our 2000 equity incentive plan and 2000 employee stock
purchase plan; and
. no exercise of the underwriters' over-allotment option.
Titles and logos of our products and services appearing in this prospectus,
including AllAdvantage, AllAdvantage.com, It's time to take advantage of the
Internet, and Viewbar, are trademarks or service marks of AllAdvantage.com Inc.
Each trademark or service mark of any other company appearing in this
prospectus belongs to its holder.
5
<PAGE>
Summary Consolidated Financial Data
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Period from Period from
Inception Three Months Inception
(March 24, 1999) Ended (March 24, 1999)
to September 30, December 31, to December 31,
1999 1999 1999
---------------- ------------ ----------------
(unaudited)
<S> <C> <C> <C>
Consolidated Statement of
Operations Data:
Revenues........................ $ 235 $ 5,016 $ 5,251
Loss from operations............ (8,428) (28,214) (36,642)
Net loss........................ (8,988) (28,121) (37,109)
Net loss per share(1):..........
Basic and diluted net loss per
share ....................... $ (1.27) $ (3.52) $ (5.04)
Shares used in per share
calculation ................. 7,050 8,000 7,367
Pro forma basic and diluted
net loss per share
(unaudited) ................. $ (0.97)
Shares used in pro forma per
share calculation
(unaudited) ................. 38,287
</TABLE>
The actual column in the following table presents actual summary
consolidated balance sheet data as of December 31, 1999. The pro forma
consolidated balance sheet data below reflects the sale of 16,453,926 shares of
our Series D preferred stock in February 2000 for net proceeds of approximately
$94.5 million, and the conversion of all outstanding shares of preferred stock
into 72,702,093 shares of common stock upon the completion of the initial
public offering at an assumed public offering price of $9.00 per share. The pro
forma as adjusted consolidated balance sheet data below also reflects the
receipt of the net proceeds from the sale of the 15,000,000 shares of common
stock offered by us at an assumed initial public offering price of $9.00 per
share and after deducting the estimated underwriting discounts and commissions
and estimated offering expenses payable by us.
<TABLE>
<CAPTION>
December 31, 1999
--------------------------------
Pro Forma
Actual Pro Forma As Adjusted
-------- --------- -----------
(unaudited)
<S> <C> <C> <C>
Consolidated Balance Sheet Data:
Cash, cash equivalents and restricted cash
(2)......................................... $ 30,019 $124,563 $249,013
Working capital (deficit).................... (4,476) 90,068 214,518
Total assets................................. 39,871 134,415 258,865
Capital lease obligations, net of current
portion..................................... 254 254 254
Deferred stock compensation.................. (18,572) (18,572) (18,572)
Total stockholders' equity (net capital
deficiency)................................. (25) 94,519 218,969
</TABLE>
- --------
(1) See note 2 of notes to consolidated financial statements for the
determination of the number of shares used in computing net loss per share
and pro forma net loss per share amounts.
(2) Restricted cash was $10.0 million at December 31, 1999 and represented the
portion of a November 1999 $20 million customer advance not available for
our use at December 31, 1999. All of this cash is now unrestricted.
6
<PAGE>
RISK FACTORS
An investment in our common stock is very risky. You should carefully
consider the risks described below, together with the other information in this
prospectus, before buying shares in this offering.
We face risks related to our business.
We cannot predict that our business will be successful, because our business
model is unproven and we have operated our business for only a short period of
time.
We were incorporated in March 1999. We have allowed members to use our
Viewbar only since July 1999 and the current version of our Viewbar was first
released in January 2000. Our limited operating history makes it difficult for
members to evaluate the services we make available to them and for businesses
to evaluate our members' response to advertisements and sponsorships provided
on our Viewbar. Because our business model is unproven, it will be difficult
for you to evaluate our performance.
We just recently began recognizing revenues, have incurred substantial losses
to date and expect to continue to incur losses.
We first recognized revenues only in August 1999. We had incurred net losses
of $37.1 million as of December 31, 1999, and we expect to continue to incur
operating losses for at least the next two years. In the future, we expect our
direct member payment costs, sales and marketing expenses, general and
administrative expenses and product development expenses to increase
significantly. We will also incur substantial non-cash charges relating to the
amortization of deferred stock compensation for issuances of stock options,
which will increase our losses during the periods in which the charges are
incurred. The charges are incurred over the vesting periods of the related
options, which is generally four years. The deferred stock compensation at
December 31, 1999 was $18.6 million, which will be amortized as follows: $9.7
million during the year ending December 31, 2000, $5.1 million during the year
ending December 31, 2001, $2.7 million during the year ending December 31, 2002
and $1.1 million during the year ending December 31, 2003. Thus, our revenues
may never exceed our expenses and we may never achieve profitability.
A number of factors may affect our long-term viability, and cause our quarterly
operating results to fluctuate, which could negatively affect the market price
of your shares.
Our quarterly results of operations are likely to vary significantly from
quarter to quarter. A number of factors may affect our long-term viability and
are likely to cause variations in our results of operations. These factors
include:
. changes in our pricing policies;
. our rate of member acquisition;
. increases in direct member costs, member referral expenditures and other
sales and marketing costs that we incur to attract and retain members;
and
. the introduction of new products and services by us.
Additional factors, which are largely outside of our control, include:
. changes in our revenue levels due to the advertising and marketing
budget cycles of our business customers;
. the level of activity of new and existing members;
. changes in the pricing policies of our direct competitors or the pricing
levels for Internet advertising and marketing generally;
. the introduction of new products and services by our competitors;
. unexpected costs and delays resulting from the expansion of our
operations; and
. the occurrence of technical difficulties or unscheduled system downtime.
7
<PAGE>
Due to these and other factors, we believe that quarter-to-quarter
comparisons of our operating results may not be meaningful, and you should not
rely upon them as an indication of our future performance.
If we fail to generate sufficient advertising and other revenues, we may not
reach profitability.
In 1999, we generated substantially all of our revenues from the sale of
online advertisements on our Viewbar. We also have generated revenues from a
variety of different arrangements including sponsorships, performance-based
arrangements and referrals to third-party Web sites. Advertisers pay us for the
number of impressions, or advertisements displayed, for the number of times
members click on advertisements, or based on other criteria, such as the number
of members who register for a service. Under sponsorship arrangements, we may
receive a fixed fee or a fee based on the usage of the search field, a fee
based upon the selection of the pop-up menu item, a commission based on
purchases by members or a combination of these options. We also have
arrangements with our business customers under which we receive a fee for
directing members to their Web sites. These fees are based upon the number of
times members are directed to our business customers' Web sites via the
Viewbar. We expect to generate revenues in the future from branded product
relationships, sales of digital products and generalized market data.
During 1999, substantially all of the advertisements we sold were not
highly-targeted. Our strategy includes increasing highly-targeted advertising
as a percentage of both the total number of advertisements we sell and of
revenues from all advertising. We have limited experience marketing and pricing
highly-targeted advertisements and these other types of arrangements, and have
limited experience with respect to the performance of these arrangements. Thus,
we cannot be sure that we are appropriately pricing, marketing or structuring
these arrangements, or whether we will perform under these arrangements to the
satisfaction of our business customers. In addition, the success of some of
these arrangements will depend on our ability to target members effectively
based on demographic and other information. We may encounter technical and
other limitations on this ability, including problems associated with the
serving of advertisements, some of which are out of our control. Further, we
believe that we need to increase the size of our internal sales force in order
to sell additional advertising, particularly highly-targeted advertising. In
light of these factors, we may be unable to generate sufficient advertising or
other revenues to reach profitability.
If we are unable to continue to enhance the functionality of our Viewbar, our
business may be harmed.
If we are unable to continue to enhance the functionality of our Viewbar on
a timely and cost-effective basis, or if these enhancements do not achieve
widespread market acceptance, our membership growth may be reduced, we may miss
market opportunities and our business may be harmed. Implementing enhancements
to our Viewbar is costly and requires significant time of our management. Any
delays we experience in implementing enhancements to our Viewbar may result in
lost revenues and may harm our operating results. The life cycles of our
enhancements are difficult to predict because we operate in a new and emerging
market that is characterized by rapid technological change, changing customer
needs and evolving industry standards. The introduction of competing online
advertising delivery mechanisms that provide greater functionality or better
data collection could render our existing Viewbar obsolete and unmarketable.
The current version of the Viewbar, released in January 2000, will be
downloaded by existing members over the next two months. We may experience
technical and customer support issues associated with this introduction. We may
also lose members who have used the prior version of our Viewbar and either
choose not to spend the time, or are unable, to upgrade their Viewbar. In
addition, we may lose existing members who do not like aspects of the current
version of our Viewbar.
If we are unable to provide our members attractive benefits from their
aggregated purchasing power, our business may be harmed.
We have recently begun to work with selected vendors to obtain pricing
discounts, promotional rewards and other benefits for our members based upon
their aggregated purchasing power. However, members might not find any benefits
that we negotiate attractive or may be able to obtain similar benefits from
other sources at
8
<PAGE>
lower costs or otherwise on more favorable terms. Further, our members may
expect greater benefits than we are able to obtain for them. We may lose
existing members or be unable to attract new members if we are unable to make
available attractive benefits from their aggregated purchasing power.
If we fail to retain and grow our member base, we may not be able to generate
revenues.
Membership growth and retention is crucial to our ability to generate
revenues. To date, we have relied on member referral marketing to attract the
vast majority of our new members, and we plan to do so for the foreseeable
future. To date approximately 84% of our new members have come from member
referrals. This type of marketing is outside of our direct control and may not
generate rates of growth in our member base comparable to those experienced to
date. A large percentage of our referrals come from members of our A-Plus
group, which consists of members with 20 or more referrals each. Changes in
our payment policy, or the failure of our payment policy to match that of a
competitor, could have a disproportionate impact on our A-Plus group, which
might result in a disproportionate decrease in future membership growth.
We may also be unable to retain and grow our member base if a significant
number of our current registered members stop using our service. Our members
are not required to use our service. There are a variety of reasons why
members might discontinue using our service, including:
. members might decide they do not like the presence of the Viewbar on
their computer screens or the amount of screen space it consumes;
. members might not like having their online activities tracked;
. members might become dissatisfied because of reliability issues, which
we have experienced in the past and might experience in the future;
. members might forget their passwords;
. the Viewbar software might not be compatible with members' computer
systems;
. our member support group might not respond adequately or in a timely
manner to our members;
. we might reduce the amount we pay our members, or our competitors might
pay more than we do;
. government bodies might impose local taxes on members in connection with
payments made by us; and
. we might not provide the level of aggregated purchasing power or the
functionality that members expect.
We may not be able to address these issues successfully and retain and grow
our existing member base.
If employers or universities prohibit or discourage our members from using the
Viewbar, our business could be seriously harmed.
Some employers and universities have policies prohibiting the use of their
equipment or networks for commercial purposes. For example, the United States
Army's ethics code forbids personnel from using government equipment for
personal gain, and therefore, it has blocked access of its personnel to more
than a dozen Internet sites and services, including our Viewbar technology.
George Mason University maintains a policy that forbids the use of university
resources for commercial activities not approved by its provost, and since
December 1999, it has blocked access to our Viewbar through the university
network. The number of employers and universities prohibiting the use of their
computers in this way may increase, particularly if they become concerned
about employee productivity as well as the use of corporate resources. Even if
employers do not block our members' access to the Viewbar, some legal
commentators believe that employers may assert that amounts paid by us to
members belong to the employer which would discourage our members from using
the Viewbar. If many employers and universities adopt policies that prohibit
or discourage our members from using the Viewbar, our ability to attract
advertisers to generate revenues may be hampered and our membership may
decline significantly, which may harm our business, results of operations and
financial condition.
9
<PAGE>
We may not be able to resolve technological barriers that prevent new members
from downloading the Viewbar.
Members who desire to download our Viewbar may encounter technological
problems which prevent them from doing so. For example, our Viewbar technology
was initially only compatible with Windows and NT operating systems. Recently,
members who utilized the Macintosh operating system were unable to download the
Viewbar, and our Viewbar software is still not compatible with PC users on
Unix-based or Linux operating systems. Additionally, if a member does utilize
operating systems or browser software that are compatible with our Viewbar
software, old versions of such operating systems or browser software still used
by members may prevent download of the Viewbar. For example, our current PC-
compatible Viewbar requires Windows 95, Windows 98, or Windows 4.0, and
Microsoft Internet Explorer 4.02 or higher. Our current Macintosh-compatible
Viewbar requires a PowerPC Processor based Macintosh, Mac OS 8.6 or higher, and
Microsoft Internet Explorer 3.0 or higher or Netscape 3.0 or higher. Further,
even if these compatibility problems are addressed, some firewalls, or network
system barriers can prevent members from downloading the Viewbar.
Our ability to operate our business could be seriously harmed if we lose, or
fail to assimilate, our senior managers and other key employees.
Many of our senior managers have only recently joined us. For example,
Michael A. Depatie, our Chief Financial Officer, joined us in October 1999,
Tobin W. Trevarthen, our Vice President Business Development, joined us in
January 2000 and David C. Martin, our Vice President Business Intelligence,
joined us in January 2000. There can be no assurance that we will successfully
assimilate our recently hired officers or that we can successfully locate,
hire, assimilate and retain other qualified key management personnel. Our
business is largely dependent on the personal efforts and abilities of our
senior management and other key personnel, especially James R. Jorgensen, our
President, Chief Executive Officer and Chairman of the Board. Any of our
officers or employees can terminate his or her employment relationship at any
time. The loss of these key employees or our inability to attract or retain
other qualified employees could seriously harm our business and prospects. We
do not carry key man life insurance on any of our employees.
We may not be able to manage our growth, which could harm our ability to manage
our business.
We have grown our workforce substantially, from our four founders in March
1999 to 473 full-time employees and contractors on February 29, 2000, and we
plan to continue to expand significantly our sales, media strategy and
technology organizations. Our growth has placed, and the anticipated future
growth in our operations will continue to place, a significant strain on our
management systems and resources. Since we typically charge our business
customers based upon the number of advertising impressions delivered, if we
increase our membership then our advertising inventory increases. Due to our
membership growth, the increase in our advertising inventory has exceeded, and
may in the future exceed, our ability to sell advertising on our Viewbar at
reasonable rates. To manage our growth effectively, we must:
. train and manage our employee base;
. enhance our operational and financial systems;
. coordinate our global operations; and
. lease additional facilities.
We may not be able to grow our business if we are not able to hire additional
personnel.
Our future success depends on our ability to attract, retain and motivate
highly skilled technical, managerial, sales and marketing personnel. We plan to
hire substantial numbers of additional personnel in all areas of our business.
Competition for personnel is intense, particularly in our location in Silicon
Valley, California, due to a number of factors, including the high
concentration of established and emerging growth technology companies. As a
result, we may be unable to successfully attract, assimilate or retain
qualified
10
<PAGE>
personnel. We may also be unable to retain the employees whom we currently
employ. We have experienced, and may continue to experience, difficulty in
hiring candidates with appropriate qualifications. If we fail to attract and
retain the necessary personnel, we may not be able to operate and grow our
business. For example, we may not be able to sell additional advertising on our
Viewbar, particularly targeted advertising, if we do not increase our internal
sales force.
We may not be able to grow our base of members and business customers if we are
unsuccessful in establishing or maintaining the AllAdvantage brand.
If we are unsuccessful in establishing or maintaining the AllAdvantage
brand, we may not be able to grow our base of members and business customers.
Promotion of the AllAdvantage brand will depend on our success in providing
high-quality services to our members and business customers. We expect to spend
approximately $5,000,000 to $8,000,000 promoting and maintaining our brand with
business customers during the next 12 months. This success, however, depends in
part on the services and efforts of third parties, over which we have little or
no control. For instance, we currently rely on technology provided by
DoubleClick to deliver substantially all of the advertisements on our Viewbar.
If our members and business customers do not perceive our existing services as
high quality, or if we introduce new services or enter into new business
ventures that are not favorably received by our members and business customers,
then we might be unsuccessful in building brand loyalty in the marketplace. In
addition, we may also need to devote substantial resources to create and
maintain a distinct brand loyalty and to promote and maintain the AllAdvantage
brand in a very competitive market. If we incur significant expenses in
promoting and maintaining our brand, our financial results could be seriously
harmed.
Our revenues might significantly decrease if we were to lose key business
customers.
A significant portion of our revenues to date has been recognized from a
limited number of business customers. For example, 24/7 Media, a third-party
advertising sales organization, sold advertisements that accounted for
approximately 19% of our revenues for the period from our inception, March 24,
1999, to December 31, 1999. We do not have long-term contracts with most of our
business customers and these customers can generally terminate their
relationships with us upon specified notice and without penalties. Our results
of operations would be harmed if key business customers were to cease doing
business with us.
Our advertising revenues will suffer if our members do not actively use our
Viewbar and respond to Viewbar advertisements.
If our members do not actively use our Viewbar and respond to Viewbar
advertisements at levels acceptable to our business customers, our advertising
revenues will suffer. Given our limited history, we are unable to predict
Viewbar use and advertising response rates.
We face significant competition for business customers and members. If we are
unable to compete successfully, our business may fail.
We compete for business customers and members. If we are unable to compete
successfully, our business may fail.
Competition for business customers
The market for online advertising and marketing is extremely competitive. We
may not compete successfully in this environment. Our ability to compete in
this market depends on many factors, some of which are beyond our control. We
believe that the principal competitive factors in the online advertising market
include:
. the ability to target users based on specific demographic and inferred
behavioral criteria;
11
<PAGE>
. brand recognition;
. breadth and depth of reporting and other services;
. reliability and quality of data and technology infrastructure; and
. technical expertise.
Additional competitive factors in the online advertising market which are
largely beyond our control include:
. size and characteristics of membership base; and
. changes in the pricing policies of our direct competitors.
There is substantial competition for Internet-based advertising revenues
generally, and the amount of available advertising space on the Internet is
increasing at a significant rate. We expect competition for online advertising
space to increase due to the lack of significant barriers to entry for online
business generally. These factors are causing some Internet advertising rates
to decline, and it is possible that these rates will continue to decline in the
future, which may cause our advertising rates to decline. We believe our most
direct competitors for Internet advertising and sponsorship revenues will be
providers of targeted online advertisements. We also compete for those revenues
with major Internet service providers, content providers, large Web publishers,
Web search engines and portal companies, Internet advertising providers,
content aggregation companies, and various other companies that facilitate
Internet advertising. We may also face competition from traditional direct
marketing companies that may seek to offer online products or services. We face
significant competition for a share of advertisers' total advertising budgets
from traditional media such as television, radio, cable and print media.
Businesses may be reluctant to devote a significant portion of their
advertising budget to Internet advertising if they perceive the Internet to be
a limited or ineffective advertising medium.
Many of our competitors have longer operating histories, greater name
recognition, larger user bases and significantly greater financial, technical,
sales and marketing resources than we do. This may allow them to respond more
quickly than we can to new or emerging technologies and changes in advertiser
requirements. It may also allow them to devote greater resources than we can to
the development, promotion and sale of their products and services. These
competitors may also engage in more extensive research and development,
undertake more far-reaching marketing campaigns, adopt more aggressive pricing
policies and make more attractive offers to existing and potential employees,
strategic partners and advertisers. In addition, current and potential
competitors have established or may establish cooperative relationships among
themselves or with third parties to increase the ability of their products or
services to address the needs of our prospective business customers. Increased
competition is likely to result in price reductions, reduced gross margins and
loss of market share.
Competition for members
Since space on a computer screen is limited, we believe our most direct
competitors for members are companies that offer Internet services or
compensation to consumers who allow a portion of their computer screen to be
dedicated to the applications or services of those companies. We believe that
over 50 other companies have announced that they offer or will offer users cash
compensation to browse the Internet if they dedicate a portion of their
computer screen. If our competitors were to offer more attractive benefits than
we do, such as higher compensation, better functionality or greater aggregated
purchasing power, then our membership could decline, possibly reducing our
revenues. In addition, current and potential competitors have established or
may establish cooperative relationships among themselves or with third parties
to increase the ability of their services to address the needs of our current
or prospective members.
12
<PAGE>
We may not be able to retain current members or support increased numbers of
members if we experience delays or failures in our network infrastructure.
Our network infrastructure is composed of a complex system including several
servers that collect data about members' Internet browsing behavior, store
member data, determine which and when advertisements are shown, monitor the
time members spend browsing the Internet while the Viewbar is active and
support our Web site. Service interruptions within our network have occurred in
the past and may occur in the future, especially when usage exceeds capacity.
We have experienced degradation and down time in the servers which support our
Web site. Since October 1, 1999, unscheduled system down time for our Web site
occurred seven times for a total of approximately 7.5 hours. In ten other
instances, with an average duration of approximately five hours, we experienced
significant degradations in our network that limited access to our Web site and
information on our Web site and the speed to allow browsing on our Web site.
New members are not able to register for our Viewbar service and current
members are unable to access their account balances if our Web site, or the
applicable portion thereof, is down. In the future, we may encounter unexpected
costs and delays, technical difficulties and unscheduled system downtime if we
expand our network infrastructure. Failures of and significant service
degradations in our networks could result in a variety of additional adverse
consequences, including:
. loss of revenue;
. inaccurate delivery of advertisements or other content that results in
legal liability;
. injury to our brand;
. diversion of development resources; or
. loss of data or privacy of data.
We will need to invest in substantial financial, operational and management
resources to enhance our systems, particularly our database servers and storage
capabilities, to handle a large and growing number of members. We cannot be
certain that we will be able to accomplish this on a timely basis and at a
commercially reasonable cost, or at all. If we fail to do so, our business may
not grow.
Our service could be disrupted, and demand for our service could be reduced, by
a security breach, virus or other problems caused by third parties.
The future success of our business will depend on the security of our
computer systems. An important feature of our service is our ability to develop
and maintain individual member profiles. We also maintain a database of our
members' account balances. Computer viruses or problems caused by third parties
could lead to interruptions, delays or cessation in service to our members or
in serving our advertisements. Third parties could also potentially jeopardize
the security of confidential information stored in our computer systems or our
members' computer systems by their inappropriate use of the Internet, including
breaking into our payment databases and other parts of our computer network.
This could cause losses to us or our members. Unauthorized access by current
and former employees or others could also potentially jeopardize the security
of confidential information stored in our computer systems or those of our
members. Any compromise of security or public perception that we engaged in
unauthorized release of member information would harm our ability to attract
and retain members. Unauthorized access to or use of confidential information
could result in potential liability and damages under privacy laws. Any of
these events could harm our business, results of operations and financial
condition.
Our revenues could be harmed if programs that inaccurately indicate that a
member is browsing the Internet at a given time or that disable the Viewbar
become prevalent.
We provide cash compensation to all members for time, on a per hour basis,
that they and the members whom they have referred spend browsing the Internet
while the Viewbar is active. Various software programs have been developed that
specifically target the Viewbar and that falsely indicate a member is browsing
the Internet at a given time. For instance, software is available that may
simulate a member browsing the Internet.
13
<PAGE>
These programs may result in members accruing fees payable by us when they are
not actively using the Internet. Additionally, third parties have developed
software programs that attempt to blank out, or block, advertisements on the
Viewbar or completely delete the Viewbar from members' computer screens. These
programs may result in members accruing fees payable by us while their Viewbar
is not active. This type of software has become increasingly sophisticated,
difficult to detect and, as a result, effective. Widespread adoption of this
type of software may seriously damage our ability to operate our business and
generate revenues.
Our business could be shut down or severely impacted if a natural disaster,
power loss or telecommunications failure occurs.
Our operations and services, particularly our ability to have advertisements
placed on Viewbars and collect membership data, depend on our computer
equipment being protected against damage from fire, earthquakes, power loss,
telecommunications failures and similar events. Despite precautions taken by
us, a natural disaster or other unanticipated problem could cause interruption
in the services that we provide. For example, if an earthquake damages
equipment at our network operations center, we might have no means of replacing
this equipment on a timely basis or at all and our service might be shut down.
Furthermore, we do not currently have any business disruption insurance. Any
prolonged disruption of our services due to system failure could result in
decreased revenues.
Our operations will be harmed if services and products provided to us by third
parties do not perform satisfactorily or if we are unable to renew our licenses
to use those services or products.
We rely on third parties to provide us with services and products that are
integral to our ability to serve our members and business customers. Those
services and products include the following:
Advertisement Serving
We deliver substantially all of the advertisements on our Viewbar using
technology provided by DoubleClick. Other companies could provide the
technology needed for us to serve advertisements on our Viewbar, but it would
temporarily disrupt our business to switch to another provider. Our agreement
with DoubleClick expires in November 2002. Technology provided by third parties
for serving Internet advertising occasionally experiences errors in serving
advertisements. If DoubleClick's technology fails to allow us to serve
advertisements properly, or if we are not able to renew our agreement with
DoubleClick, reach agreement with others to provide technology to serve our
advertisements or internally develop advertising serving software in the
future, we may not be able to display advertisements effectively to our
members. In this event, our ability to generate advertising revenues would be
severely limited.
Centralized Software System
Virtually every aspect of our operations, including finance, billing,
accounting, storage and retrieval of member data, and advertisement tracking,
uses or connects to a centralized software system provided by Oracle. We have
only limited experience with the operation of this system. Difficulty with, or
errors, defects or malfunctions in, the operation of this system could result
in loss of data, erroneous overcharges or undercharges to advertising customers
or disruption of operations.
Our Web Site
Our Web site is hosted by GlobalCenter Inc. In the past, our Web site has
become temporarily unavailable due to unpredictable system malfunctions on our
host's system. Since October 1, 1999, unscheduled system downtime for our Web
site occurred seven times for a total of approximately 7.5 hours. New members
are not able to register for our Viewbar service and current members are unable
to access their account balances if our Web site is down. Further, members may
become frustrated with any further difficulties with our Web site and
discontinue using our service as a result.
14
<PAGE>
Other Network Equipment
The equipment and applications that comprise various servers and networks
consist of commercially available computers provided primarily by Sun
Microsystems, Cisco Systems and third-party Intel processor-based
manufacturers. These complex computers may fail periodically, leading to the
possible interruption of service to our members.
Our member referral program could generate negative media attention and damage
our reputation.
We rely primarily on member referrals to add to our membership. This
referral program has in numerous instances previously motivated, and could
continue to motivate, people to send or post bulk unsolicited email messages,
or spam, seeking to encourage other computer users to register as members. We
maintain an anti-spam policy regarding email solicitations for membership
growth and encourage our members to send the sample referral email messages
available on our Web site only to friends, family, business associates and
members of personal opt-in mailing lists. However, it is difficult for us to
monitor the use of email by our members to solicit referrals. This spamming has
caused unfavorable media attention and may damage our reputation. Anti-spam
groups or activists might generate further negative media attention respecting
member referral activities and damage our reputation. Further, anti-spam
legislation, in the United States or elsewhere, could restrict our ability or
the ability of our members to use email to solicit referrals.
Although members do not make any payment to us to participate in our member
referral program, some jurisdictions could assert a claim that the use of email
marketing to add to our membership violates laws restricting multi-level
marketing activities. In addition, our business model requires that we pay our
members cash for their Viewbar usage and that of their referrals. We believe
this program complies with applicable regulation. Any regulatory challenge or
limitation asserted or implied regarding these payments could significantly
harm our business. Any litigation could subject us to significant liability for
damages, attorneys fees and injunctions or other court orders that would
prevent us from using our primary method of membership marketing. These
lawsuits, regardless of their success, would likely be time-consuming and
expensive to resolve.
If we alter the current member payment structure, our business could be harmed.
In the future, we may modify the amount of money paid to members for their
and their referred members' use of the Viewbar. Our membership agreement
specifies that we may alter the member payment structure, and we have altered
the member payment structure three times in the past. These modifications could
include increasing or decreasing the amount paid to members for each hour that
they use the Viewbar, increasing or decreasing the amount paid for each hour
that referred members use the Viewbar, or increasing or decreasing the maximum
number of hours per month of Viewbar use for which a member may receive
payment. Any decreases in the member payment structure could harm our ability
to attract and retain members and expose us to other costs or negative
publicity. Any increases in the member payment structure to attract or retain
members could substantially increase our costs. We may be required to alter our
payment structure for a variety of reasons, including business, tax or
regulatory concerns, and this alteration could significantly harm our business.
Our results of operations may be harmed if our direct member or member referral
expenditures increase.
Our direct member expenditures may increase if the number of active members
increases or if we increase the direct member payment structure. Similarly, our
member referral expenditures may increase if the number of active members
referred by other active members increases or if we increase the member
referral payment structure. Both our direct member expenditures and our member
referral expenditures may increase if our members spend more time browsing the
Internet. The costs we incur from any increases in our direct member or member
referral expenditures will harm our results of operations.
15
<PAGE>
We rely on our intellectual property rights. If we are unable to protect these
rights, we might face increased competition or greater difficulty in
successfully establishing the AllAdvantage brand.
Despite our efforts to protect our proprietary rights, unauthorized parties
have copied, and may attempt to copy in the future or otherwise obtain and use
our intellectual property. Monitoring unauthorized use of our intellectual
property is difficult, and we cannot be certain that the steps we have taken
will prevent unauthorized use of our intellectual property, particularly in
foreign countries where laws or law enforcement practices may not protect our
proprietary rights as fully as in the United States.
We have two U.S. copyright registrations. We have pending U.S. patent and
pending U.S. and foreign trademark applications. We cannot assure you that our
pending patent or trademark applications will be granted. Even if they are
granted, our patents, copyrights and trademarks may be successfully challenged
by others or invalidated. Despite our efforts to protect our proprietary rights
from unauthorized use or disclosure, unauthorized parties may attempt to
obtain, use or disclose our intellectual property. We cannot assure you that
any of our proprietary rights will be viable or of value since the validity,
enforceability and scope of protection of proprietary rights in Internet-
related industries are uncertain and evolving. If our trademark applications
are not approved because third parties successfully challenged our right to use
these trademarks, our use of these trademarks would be restricted unless we
were to enter into arrangements with the third-party owners, which might not be
possible on reasonable terms.
If our proprietary rights are infringed, we learn of the infringement and we
take action to halt or prevent the infringement, those actions, even if
successful, could require that we incur substantial costs and divert
substantial management attention from operating matters, which could harm our
business.
We may incur substantial costs and diversion of management resources if we
infringe upon the proprietary rights of others.
Our business activities may infringe the proprietary rights of others. From
time to time, we have received, and may continue to receive, claims of
infringement against us. Third parties may assert claims against us for
infringement of their proprietary rights and these claims may be successful. As
with other providers of online services, third-parties could assert patent
claims against us based upon our services or technologies.
We have received notices from two third parties regarding their Internet
business model patents. Any litigation filed by these third parties could be
costly and could distract management's attention from operating matters, which
could harm our business. In addition, an adverse judgment in any litigation of
this type could also harm our business.
Any intellectual property litigation initiated against us could subject us
to significant liability for damages and attorneys' fees, invalidation of our
proprietary rights or injunctions or other court orders that would prevent us
from using specific technologies or engaging in specific business activities.
These lawsuits, regardless of their success, would likely be time-consuming and
expensive to resolve and would divert management's time and attention from our
business. Any potential intellectual property litigation could also force us to
do one or more of the following:
. cease using key aspects of our technology that incorporate the
challenged intellectual property;
. make significant changes to the structure and operation of our business;
. create new brands for our services and establish recognition of those
new brands;
. design around a third party's patent; or
. license technology from a third party.
16
<PAGE>
Implementation of any of these alternatives could be costly and time-
consuming and might not be possible at all. Accordingly, an adverse
determination in any litigation to which we are a party would harm our
business, results of operations and financial condition.
We may be subject to banking-related laws.
We currently do not make payments to a member until the member's account has
accrued at least $20. In the future, we may offer members who have accrued over
$20 in their accounts the opportunity to keep those amounts in their accounts.
If we offer new programs, or if a court or governmental agency concluded that
our current or any future services are subject to laws and regulations relating
to banking and currency matters, the cost of compliance could harm our results
of operations. Litigation with members over these issues could require
significant management attention even if we were to succeed on the merits.
We are subject to foreign government regulation and taxation, currency issues,
difficulties in managing foreign operations and foreign political and economic
instability.
Our participation in international markets is subject to a number of risks,
including foreign government regulations, export license requirements, tariffs
and taxes, fluctuations in currency exchange rates, introduction of the
European Union common currency, difficulties in managing foreign operations and
political and economic instability. For instance, laws of foreign countries can
be more restrictive than U.S. laws respecting our collection and use of member
data and respecting advertisement content. To the extent our current or
potential international members are impacted by currency devaluations, general
economic crises or other macroeconomic events, the ability of our members to
utilize our services could be diminished. We cannot assure you that electronic
commerce will develop successfully in international markets. Any failure to
develop our business internationally may harm our competitive position and
consequently our business.
Potential acquisitions may be difficult to assimilate into our operations, use
a significant amount of our available cash, result in dilution to our
stockholders and harm our reported results of operations.
We may acquire or make investments in businesses, products, services or
technologies to implement our business strategy. We do not have any present
understanding regarding, nor are we having any discussions relating to, any
acquisition or investment. We have not made a significant acquisition or
investment to date. If we acquire businesses, products, services or
technologies, we could have difficulty in assimilating them into our
operations. These difficulties could disrupt our ongoing business, distract our
management and employees and increase our expenses. In addition, effecting
acquisitions could require use of a significant amount of our available cash.
Furthermore, we might have to issue equity or equity-linked securities to pay
for future acquisitions, and these issuances could be dilutive to existing and
future stockholders. In addition, acquisitions and investments might harm our
reported results of operations due to acquisition-related charges and
amortization of acquired technology and other intangibles. Any of these
acquisition-related risks or costs could harm our business, financial condition
and operating results.
17
<PAGE>
We face risks related to the Internet industry.
Failure to comply with laws governing our service or material changes in the
regulatory environment relating to the Internet could harm our business.
Because of uncertainties regarding the applicability of foreign, federal
and state laws and regulations to the Internet and, more specifically, to our
business, and considering our business has evolved and expanded in a
relatively short period of time, we may not in the future always be in
compliance with applicable foreign, federal and state laws and regulations.
Failure to comply with the laws and regulatory requirements of regulatory
authorities may result in, among other things, indemnification liability to
business customers and others doing business with us, administrative
enforcement actions and fines, class action lawsuits, cease and desist orders,
and civil and criminal liability. The occurrence of one or more of these
events could materially harm our business, results of operations and financial
condition.
The parties conducting business with us, such as business customers,
similarly may be subject to foreign, federal and state regulation. These
parties act as independent contractors and not as our agents in their
solicitations and transactions with consumers. Consequently, we cannot ensure
that these entities will comply with applicable laws and regulations at all
times. Failure on the part of a business customer to comply with these laws or
regulations could result in, among other things, claims of vicarious liability
or negatively impact our reputation. The occurrence of one or more of these
events could materially harm our business, results of operations and financial
condition.
We may face risks if new laws or government regulations regarding the Internet
are enacted.
The laws relating to our business and operations are evolving and few clear
legal precedents have been established. Few laws governing Internet
transactions have been substantially revised or updated to fully accommodate
electronic commerce. Moreover, it may take years to determine the extent to or
manner in which existing laws relating to issues such as intellectual property
ownership and infringement, unfair competition, advertising and trade
regulation and personal privacy are applicable to the Internet. Many of these
laws were adopted prior to the advent of the Internet and related technologies
and, as a result, do not contemplate or address the unique issues of the
Internet and related technologies. Until these laws, rules and regulations are
revised or interpreted by courts to clarify their applicability to
transactions conducted through electronic commerce, any company providing
services through the Internet or other means of electronic commerce will face
compliance uncertainty. Further, the adoption of new laws or the application
of existing laws may decrease the growth in Internet use. These results could
decrease the demand for our services or increase our cost of doing business,
each of which would cause our revenues to decline and harm our business. In
particular, the following risks could occur:
Regulation of content and access, and our marketing programs, could limit
our ability to generate revenues and expose us to liability.
Prohibition or restriction of Internet content and access could dampen the
growth of Internet use, decrease the acceptance of the Internet as a
communications and commercial medium and expose us to liability. A variety of
restrictions on content and access, such as those that relate to children and
federal and state consumer protection laws prohibiting unfair or deceptive
acts or practices, have been enacted or proposed. Because of these content
restrictions and potential liability to us for materials carried on or
misdirected or disseminated through our systems, we may be required to
implement measures to reduce our exposure to liability. These measures may
require the expenditure of substantial resources or the discontinuation of our
product or service offerings that subject us to this liability. In addition,
our business model requires that we pay our members cash for their Viewbar
usage and that of their referrals. Any regulatory challenge or limitation
asserted or implied regarding these payments could significantly harm our
business. Further, we could incur substantial costs in defending against any
of these claims and we might be required to pay large judgments or settlements
or alter our business practices. Proposed laws could make compliance more
difficult or expensive, restrict our ability to provide services or otherwise
harm our business or prospects.
18
<PAGE>
Our ability to sell targeted advertising may be limited if new laws relating
to member privacy are enacted.
Our ability to sell targeted advertising depends on our ability to use
personal information collected from our members. The Federal Trade Commission
and government agencies in some states have been investigating Internet
companies regarding their use of personal information. The Federal Trade
Commission has recently started a proceeding with an Internet server regarding
the manner in which personal information is collected from users and provided
to third parties. The federal government recently enacted legislation
protecting the privacy of consumer nonpublic personal information collected by
financial institutions. We cannot assure you that our current information
collection procedures and disclosure policies will be found to be in compliance
with existing or future laws or regulations. Our failure to comply with
existing laws, including those of foreign countries, or the adoption of new
laws or regulations that require us to change the way we conduct our business,
could make it cost-prohibitive to operate our business and prevent us from
pursuing our business strategies including the sale of targeted advertising.
Our costs would be increased if our business or the Internet generally
becomes subject to taxation.
The tax treatment of activities on or relating to the Internet is currently
unsettled. A number of proposals have been made at the federal, state and local
levels and by foreign governments that could impose taxes on the online
purchase and sale of services and other Internet activities. The Internet Tax
Freedom Act of 1998 has generally imposed a U.S. moratorium through October
2001 on the imposition of some kinds of consumer-related taxes, other than
sales or use taxes, in connection with Internet access and Internet-related
sales. However, future laws imposing taxes or other regulations on commerce
over the Internet could substantially impair the growth of Internet commerce
and, as a result, decrease our revenues or make it cost-prohibitive to operate
our business.
Seasonal trends in Internet usage and advertising sales may harm our business.
Seasonal trends could affect the advertising revenues we generate from our
business. To the extent that our advertising revenues depend on the amount of
Internet usage by our members, seasonal fluctuations in Internet usage could
affect our advertising revenues during these periods of fluctuation. In
addition, the rate at which new members sign up for our services may be lower
during some seasons and holiday periods. Because our operating history is so
limited, it is difficult for us to predict these trends accurately and plan
accordingly. Since our operating expenses are based on our expectations of
future revenues, it is possible that seasonal fluctuations could materially
harm our revenues and our operating results.
If Internet usage does not continue to increase, we may not be able to grow our
business and increase our revenues.
If our assumption that use of the Internet will continue to increase turns
out to be incorrect, we will not be able to grow our business and increase our
revenues. All of our revenues and current business strategies for growth are
dependent on the continued use and current rates of expansion of the Internet.
Use of the Internet has increased dramatically, but we cannot assure you that
usage of the Internet will continue to increase. A decrease in the use of the
Internet or a reduction in the currently anticipated growth of Internet usage
could cause our member base and our advertising revenues to decrease.
The Internet infrastructure may not be able to accommodate rapid growth, which
could harm our ability to retain our existing customers and to attract new
customers.
The Internet infrastructure may fail to support the growth of the Internet.
If the Internet continues to experience an increase in users, an increase in
frequency of use or an increase in the capacity requirements of users, the
Internet infrastructure may be unable to support the demands placed on it. Any
actual or perceived failure of the Internet could undermine the benefits and
use of our services. In addition, the Internet could lose its viability as a
commercial medium due to delays in the development or adoption of new
technology required to accommodate increased levels of Internet activity or due
to increased government regulation. Changes in, or insufficient availability
of, telecommunications services to support the Internet could result in slower
response times and could hamper use of the Internet. Even if the Internet
infrastructure is able to accommodate rapid growth, we may be required to spend
heavily to adapt to new technologies.
19
<PAGE>
We face risks related to the offering.
We had an accumulated deficit of approximately $37.1 million at December 31,
1999 and we anticipate increasing losses and negative cash flow for the
foreseeable future. These losses and negative cash flow could cause our stock
price to decrease.
At December 31, 1999, we had an accumulated deficit of approximately $37.1
million. We expect that our losses and negative cash flow from operations will
increase for the foreseeable future as we continue to expand our operations.
Our ability to achieve profitability or positive cash flow depends upon a
number of factors, including our ability to increase revenues. We may be unable
to increase revenues, achieve profitability or achieve positive cash flow. If
we do achieve profitability, we may be unable to sustain or increase
profitability on a quarterly or annual basis in the future. If we fail to do
so, the market price for our common stock would likely suffer.
Our common stock has not been publicly traded, and we expect that the price of
our stock may fluctuate substantially.
Recently, the stock prices of technology companies have been quite volatile.
Moreover, prior to this offering, there has been no public market for our
common stock. The initial public offering price has been determined through
negotiations between the underwriters and us. You may not be able to resell
your shares at or above the initial public offering price. The market price of
our common stock may fluctuate significantly in response to a number of
factors, including:
. changes in expectations about our future financial performance;
. the failure of any securities analyst to follow our stock;
. changes in financial estimates of any securities analysts who elect to
follow our stock;
. the operating and stock price performance of other comparable companies;
and
. actual or anticipated changes in economic conditions generally.
Due to these factors, the price of our stock may decline and the value of
your investment might be reduced. In addition, the stock market experiences
extreme volatility that often is unrelated or disproportionate to the
performance of particular companies. These market fluctuations may cause our
stock price to decline regardless of our performance.
Our business may be harmed by class action litigation due to stock price
volatility.
In the past, securities class action litigation often has been brought
against a company following periods of volatility in the market price of its
securities. Companies in the Internet industry and other technology industries
are particularly vulnerable to this kind of litigation due to the high
volatility of their stock prices. Accordingly, we may in the future be the
target of securities litigation. Securities litigation could result in
substantial costs and could divert our management's attention and resources.
We may be unable to obtain the additional capital required to grow our
business.
Our ability to grow depends significantly on our ability to grow our member
base, increase our revenues, hire additional personnel and expand our internal
network infrastructure. These expansion efforts will require significant cash
outlays and substantial capital equipment expenditures and commitments. If the
proceeds from this offering, together with our cash on hand, any cash generated
from operations and the amounts available under bank lines, are not sufficient
to meet our cash requirements, we will need to seek additional capital to fund
our growth. We may not be able to raise needed cash on terms acceptable to us
or at all. Financings may be on terms that are dilutive or potentially dilutive
to our stockholders. The holders of new equity securities may also be granted
rights, preferences or privileges senior to those of existing holders of common
stock. If sources of financing are required, but are insufficient or
unavailable, we will be required to modify our growth and operating plans to
make them consistent with available funding. This would harm our ability to
grow our business.
20
<PAGE>
Shares eligible for public sale after this offering could harm our stock price.
The market price of our common stock could decline as a result of sales by
our existing stockholders of shares of their common stock after this offering,
or the perception that these sales could occur. These sales also might make it
difficult for us to sell securities in the future at a time and at a price that
we deem appropriate. Based on shares outstanding as of February 29, 2000,
following this offering, we will have 117,115,576 shares of common stock
outstanding or 119,365,576 shares if the underwriters' over-allotment option is
exercised in full. Of these, approximately 69,975,072 shares will become
available for sale 181 days after the date of this prospectus upon the
expiration of lock-up agreements, 69,275,072 of which will be subject to the
restrictions imposed by Rule 144 and Rule 701. Credit Suisse First Boston
Corporation and Donaldson Lufkin & Jenrette Securities Corporation, however,
may waive the 180-day lock-up restrictions in their sole discretion without
notice. Credit Suisse First Boston Corporation and Donaldson Lufkin & Jenrette
Securities Corporation may choose to waive the lock-up restrictions based on
the market conditions, the then-current stock price and other factors the
selection of which are based on their sole discretion. In addition, another
32,840,504 shares will be available for sale, subject to the restrictions
imposed by Rule 144 and Rule 701, at various times thereafter.
Provisions in our charter documents, Delaware law and other documents could
prevent or delay a change in control of AllAdvantage and might reduce the
market price of our common stock.
Provisions of our certificate of incorporation and bylaws could discourage,
delay or prevent a merger or acquisition that a stockholder might consider
favorable. These provisions include:
. authorizing the issuance of preferred stock without stockholder
approval;
. providing for a classified board of directors with staggered, three-year
terms;
. prohibiting cumulative voting in the election of directors;
. requiring super-majority voting to amend some provisions in our
certificate of incorporation and bylaws;
. limiting the persons who may call special meetings of stockholders; and
. prohibiting stockholder actions by written consent.
Provisions of Delaware law also may discourage, delay or prevent someone
from acquiring or merging with us. Additionally, the vesting of common stock
owned by members of our management, including James R. Jorgensen, Michael A.
Depatie, Johannes A. Pohle, David W. Johnson and Carl T. Anderson, may
accelerate upon termination of employment following a change in control of
AllAdvantage. This vesting acceleration may discourage someone from acquiring
or merging with us.
You will experience an immediate and substantial dilution in the book value of
your investment.
The initial public offering price of our common stock is substantially
higher than what the net tangible book value per share of the common stock will
be immediately after this offering. If you purchase our common stock in this
offering, you will incur immediate dilution of approximately $7.12 in the net
tangible book value per share of our common stock from the price you pay for
our common stock based upon an assumed initial public offering price of $9.00
per share. The exercise of outstanding options and warrants may result in
further dilution.
Stockholders may not agree with management regarding the use of the net
proceeds of this offering.
Our management has broad discretion as to how to spend the net proceeds from
this offering and may spend those proceeds in ways with which our stockholders
may not agree. We cannot assure you that our investments and use of the net
proceeds of this offering will yield favorable returns or results.
21
<PAGE>
Our officers and directors exert substantial influence over us, which could
limit your ability to influence us and which could delay or prevent a change of
control of us.
We anticipate that our executive officers, our directors and entities
affiliated with them and our 5% stockholders will beneficially own, in the
aggregate, approximately 63% of our outstanding common stock following the
completion of this offering. These stockholders may be able to exercise
substantial influence over all matters requiring approval by our stockholders,
including the election of directors and approval of significant corporate
transactions. This concentration of ownership may also have the effect of
delaying or preventing a change in control of us. We also plan to reserve up to
5% of the shares offered in this offering under a directed share program in
which our executive officers, directors, principal stockholders, employees,
business associates and related persons, which include our contractors and
business partners, may be able to purchase shares in this offering at the
initial public offering price. This program may further increase the amount of
stock held by persons whose interests are closely aligned with management's
interests.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that relate to future
events or our future financial performance. In some cases, you can identify
forward-looking statements by terminology such as "may," "will," "should,"
"expects," "plans," "anticipates," "believes," "estimates," "predicts,"
"intends," "potential" or "continue" or the negative of these terms or other
comparable terminology. These statements are only predictions. We cannot
guarantee future results, levels of activity, performance or achievements. We
undertake no obligation to update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise. Our actual
results could differ materially from those anticipated in these forward-looking
statements as a result of various factors, including new laws and regulations
affecting online content or privacy issues, advertising expenditures over the
Internet and the other risks outlined under "Risk Factors" and elsewhere in
this prospectus.
22
<PAGE>
USE OF PROCEEDS
The net proceeds to us from the sale of the 15,000,000 shares of common
stock offered by us will be approximately $124.5 million, or approximately
$143.3 million if the underwriters' over-allotment option is exercised in full,
at an assumed initial public offering price of $9.00 per share, based upon the
midpoint of the filing range, and after deducting estimated underwriting
discounts and commissions and estimated offering expenses payable by us.
We currently estimate that we will use the net proceeds from this offering
as follows:
. approximately $20-30 million to expand our services in foreign
countries;
. approximately $10-20 million in capital expenditures, including
enhancements to our server and network infrastructure, personal
computers for employees and software for general operations; and
. the balance of the proceeds of this offering for member payments and
other working capital purposes.
We may use a portion of the net proceeds from this offering to acquire or
invest in businesses, technologies or services that are complementary to our
business. However, we have no present plans or commitments, and are not engaged
in any negotiations, with respect to any transactions of this type.
The amounts that we use for working capital purposes will vary significantly
depending on a number of factors. We will retain broad discretion in the
allocation and use of the net proceeds of this offering. Pending their use, we
intend to invest the net proceeds in short-term, interest-bearing, investment-
grade securities.
The principal purposes of this offering are to increase our working capital,
create a public market for our stock, increase our visibility and facilitate
future access by us to public equity markets.
DIVIDEND POLICY
We have never declared or paid cash dividends on shares of our capital
stock. We intend to retain any future earnings to finance future growth and do
not anticipate paying cash dividends in the foreseeable future.
23
<PAGE>
CAPITALIZATION
The following table sets forth our capitalization, and our cash, cash
equivalents and restricted cash, as of December 31, 1999:
. on an actual basis;
. on a pro forma basis to reflect the sale of 16,453,926 shares of our
Series D preferred stock in February 2000 for net proceeds of
approximately $94.5 million, and the conversion of all outstanding
shares of preferred stock into 72,702,093 shares of common stock upon
the completion of this offering assuming an initial public offering
price of $9.00 per share, based upon the midpoint of the filing
range; and
. on a pro forma as adjusted basis to reflect, in addition, the receipt of
the net proceeds from the sale of 15,000,000 shares of common stock
offered by us at an assumed initial public offering price of $9.00
per share, based upon the midpoint of the filing range, and after
deducting estimated underwriting discounts and commissions and estimated
offering expenses payable by us.
<TABLE>
<CAPTION>
December 31, 1999
--------------------------------
Pro Forma
Actual Pro Forma As Adjusted
-------- --------- -----------
(in thousands)
<S> <C> <C> <C>
Cash, cash equivalents and restricted cash
(1)........................................... $ 30,019 $124,563 $249,013
======== ======== ========
Capital lease obligations, net of current
portion....................................... $ 254 $ 254 $ 254
-------- -------- --------
Stockholders' equity (net capital deficiency):
Convertible preferred stock, $0.001 par
value: 22,663,266 shares authorized,
19,567,343 shares issued and outstanding,
actual; 36,335,044 shares authorized, no
shares issued or outstanding, pro forma;
5,000,000 shares authorized, no shares
issued or outstanding, pro forma as
adjusted.................................... 20 -- --
Common stock, $0.001 par value: 116,000,000
shares authorized, 28,498,133 shares issued
and outstanding, actual; 150,000,000 shares
authorized, 101,200,226 shares issued and
outstanding, pro forma; 1,000,000,000 shares
authorized, 116,200,226 shares issued and
outstanding, pro forma as adjusted.......... 28 101 116
Additional paid-in capital................... 55,608 150,099 274,534
Deferred stock compensation.................. (18,572) (18,572) (18,572)
Accumulated deficit.......................... (37,109) (37,109) (37,109)
-------- -------- --------
Total stockholders' equity (net capital
deficiency)............................... (25) 94,519 218,969
-------- -------- --------
Total capitalization..................... $ 229 $ 94,773 $219,223
======== ======== ========
</TABLE>
- --------
(1) Restricted cash was $10.0 million as of December 31, 1999 and represented
the portion of a November 1999 $20 million customer advance not available
for our use at December 31, 1999. All of this cash is now unrestricted.
The number of shares of common stock shown as outstanding in the table above
excludes the following:
. 10,484,233 shares issuable upon the exercise of stock options
outstanding as of December 31, 1999, at a weighted average exercise
price of $0.69 per share;
. 477,550 shares issuable upon the exercise of warrants for Series C
preferred stock outstanding as of December 31, 1999, at an exercise
price of $0.03 per share, which will become exercisable for 477,550
shares of common stock upon the completion of this offering;
. 2,762,925 shares issuable upon the exercise of stock options granted
after December 31, 1999 and outstanding on February 29, 2000, at a
weighted average exercise price of $6.05 per share;
24
<PAGE>
. 75,000 shares issuable upon the exercise of a warrant for Series D
preferred stock issued after December 31, 1999 and outstanding on
February 29, 2000, at an exercise price of $6.05 per share, which will
become exercisable for 93,750 shares of common stock upon the completion
of this offering assuming an initial public offering price of $9.00 per
share;
. 25,416,026 shares available for future issuance under the 1999 equity
incentive plan and 2000 equity incentive plan of our California
predecessor on February 29, 2000 and our 2000 equity incentive plan and
2000 employee stock purchase plan on February 29, 2000, subject to
automatic annual increases each January 1 as described under
"Management--Employee Benefit Plans."
The number of shares of common stock shown as outstanding in the table above
assumes an offering price of $9.00 per share. The ratio at which the Series D
preferred stock will convert into common stock has been adjusted to a ratio of
1.25 shares of common stock for each share of Series D preferred stock. This
represents the most dilutive potential ratio. If the offering price is higher
than $9.68 per share, the conversion ratio of the Series D preferred stock will
be reduced such that, at an offering price of $12.10 per share or above, the
conversion ratio will be 1 for 1.
25
<PAGE>
DILUTION
As of December 31, 1999, our pro forma net tangible book value was
approximately $94.5 million, or $0.93 per share of common stock. Pro forma net
tangible book value per share represents our pro forma stockholders' equity
less intangible assets divided by the pro forma number of shares of common
stock outstanding after giving effect to the sale of 16,453,926 shares of our
Series D preferred stock in February 2000 for net proceeds of approximately
$94.5 million and the conversion of all outstanding shares of preferred stock
into 72,702,093 shares of common stock. Dilution per share represents the
difference between the amount per share paid by purchasers of shares of our
common stock in this offering and the pro forma net tangible book value per
share of our common stock immediately following this offering.
After giving effect to the receipt of the net proceeds from the sale of the
15,000,000 shares of common stock offered by us at an assumed initial public
offering price of $9.00 per share and after deducting estimated underwriting
discounts and commissions and estimated offering expenses, our pro forma net
tangible book value as of December 31, 1999 would have been approximately
$219.0 million, or $1.88 per share. This represents an immediate increase in
pro forma net tangible book value of $0.95 per share to existing stockholders
and an immediate dilution of $7.12 per share to new investors purchasing shares
at the initial public offering price. The following table illustrates the per
share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share.............. $9.00
Pro forma net tangible book value per share as of December
31, 1999.................................................. $0.93
Increase per share attributable to new investors........... 0.95
-----
Pro forma net tangible book value per share after this
offering.................................................... 1.88
-----
Dilution per share to new investors.......................... $7.12
=====
</TABLE>
The following table summarizes as of December 31, 1999, on the pro forma
basis described above, the number of shares of common stock purchased from us,
the total consideration paid to us and the average price per share paid by
existing stockholders and by new investors purchasing shares of common stock in
this offering, before deducting estimated underwriting discounts and
commissions and estimated offering expenses payable by us:
<TABLE>
<CAPTION>
Shares Purchased Total Consideration
------------------- -------------------- Average Price
Number Percent Amount Percent Per Share
----------- ------- ------------ ------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders... 101,200,226 87.1% $134,018,000 49.8% $1.32
New investors........... 15,000,000 12.9 135,000,000 50.2 $9.00
----------- ----- ------------ -----
Total................. 116,200,226 100.0% $269,018,000 100.0%
=========== ===== ============ =====
</TABLE>
The above discussion and tables assume no exercise of any options or
warrants to purchase our capital stock outstanding as of December 31, 1999. As
of December 31, 1999, there were options outstanding to purchase a total of
10,484,233 shares of common stock at a weighted-average exercise price of $0.69
per share and warrants outstanding to purchase a total of 238,775 shares of
Series C preferred stock with an exercise price of $0.06 per share, which will
become exercisable for a total of 477,550 shares of common stock with an
exercise price of $0.03 per share upon completion of this offering. In
addition, between December 31, 1999 and February 29, 2000, we issued options to
purchase a total of 2,762,925 shares of common stock at a weighted-average
exercise price of $6.05 per share, and a warrant to purchase 75,000 shares of
Series D preferred stock at an exercise price of $6.05 per share, which will
become exercisable for 93,750 shares of common stock upon completion of this
offering assuming an initial public offering price of $9.00 per share. There
were also 25,416,026 shares of common stock available for future issuance under
our employee benefit plans as of February 29, 2000. If any of these options or
warrants are exercised, there will be further dilution to new public investors.
Please see "Capitalization," "Management--Employee Benefit Plans," and notes 4,
5, 10 and 11 of notes to consolidated financial statements.
26
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data should be read in
conjunction with, and are qualified by reference to, our consolidated financial
statements and notes thereto and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" appearing elsewhere in this
prospectus. The consolidated statement of operations data for the period from
inception (March 24, 1999) to December 31, 1999, and the consolidated balance
sheet data as of December 31, 1999, are derived from our audited consolidated
financial statements that are included elsewhere in this prospectus. The
consolidated statement of operations data for the period from inception (March
24, 1999) to September 30, 1999 and the three months ended December 31, 1999
are unaudited but in the opinion of management include all adjustments,
consisting only of normal recurring adjustments, that are necessary for a fair
presentation of our results of operations for these periods. The historical
results presented below are not necessarily indicative of future results.
<TABLE>
<CAPTION>
Period from Inception Three Months Period from Inception
(March 24, 1999) Ended (March 24, 1999)
To September 30, 1999 December 31, 1999 To December 31, 1999
--------------------- ----------------- ---------------------
(in thousands, except per share amounts)
<S> <C> <C> <C>
Consolidated Statement
of Operations Data:
Revenues................ $ 235 $ 5,016 $ 5,251
Costs and expenses:
Direct member costs... 2,192 14,949 17,141
Sales and marketing... 1,580 10,022 11,602
General and
administrative....... 3,302 5,042 8,344
Product development... 1,267 1,644 2,911
Depreciation and
amortization......... 78 270 348
Stock-based
compensation......... 244 1,303 1,547
------- -------- --------
Total costs and
expenses........... 8,663 33,230 41,893
------- -------- --------
Loss from operations.... (8,428) (28,214) (36,642)
Interest expense........ (570) (257) (827)
Interest income......... 10 350 360
------- -------- --------
Net loss................ $(8,988) $(28,121) $(37,109)
======= ======== ========
Net loss per share(1):
Basic and diluted net
loss per share....... $ (1.27) $ (3.52) $ (5.04)
Shares used in per
share calculation.... 7,050 8,000 7,367
Pro forma basic and
diluted net loss per
share (unaudited) ... $ (0.97)
Shares used in pro
forma per share
calculation
(unaudited) ......... 38,287
</TABLE>
<TABLE>
<CAPTION>
December 31, 1999
-----------------
<S> <C>
Consolidated Balance Sheet Data:
Cash, cash equivalents and restricted cash(2)................. $ 30,019
Working capital (deficit)..................................... (4,476)
Total assets.................................................. 39,871
Capital lease obligations, net of current portion............. 254
Deferred stock compensation................................... (18,572)
Net capital deficiency........................................ (25)
</TABLE>
- --------
(1) See note 2 of notes to consolidated financial statements for the
determination of the number of shares used in computing net loss per share
and pro forma net loss per share amounts.
(2) Restricted cash was $10.0 million at December 31, 1999 and represented the
portion of a November 1999 $20.0 million customer advance not available for
our use on December 31, 1999. All of this cash is now unrestricted.
27
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the consolidated
financial statements and the notes to the consolidated financial statements
included in this prospectus.
Overview
AllAdvantage is an Internet information intermediary, or infomediary, that
enables businesses to deliver highly-targeted advertisements to, and conduct
electronic commerce with, an aggregated community of profiled members. With our
members' express permission, we utilize our proprietary Viewbar technology to
continuously track and collect data about their Internet activity and
demographics. We use this data to build accurate and detailed member profiles.
While keeping each of our members' personal data private, we use these profiles
to provide businesses with an online advertising, direct marketing and
electronic commerce channel to reach their chosen audience more effectively.
The Viewbar persistently displays advertising, electronic commerce links and
other Internet navigational features, such as search capabilities, pop-up menus
and links.
We were incorporated in March 1999 and released the first version of our
Viewbar in July 1999. The current version of our Viewbar, released in January
2000, will be downloaded by existing members over the next two months. During
1999, substantially all of the advertisements we sold were not highly-targeted.
Revenues
We first recognized revenues in August 1999. In 1999, we generated
substantially all of our revenues from the sale of online advertisements on our
Viewbar. More recently, we have also generated revenues from the sale of
sponsorships on our Viewbar. Advertisers pay us for the number of impressions,
or advertisements displayed, for the number of times members click on
advertisements, or based on other criteria, such as the number of members who
register for a service. In January 2000, we released a substantially upgraded
version of our Viewbar, on which we sell non-exclusive sponsorships of the
Viewbar's pop-up menu buttons and search field. Under these sponsorship
arrangements, we may receive a fixed fee, a fee based on the usage of the
search field, a fee based upon selection of the pop-up menu item, a commission
based on purchases by members or a combination of these options. We also have
arrangements with our business customers under which we receive a fee for
directing members to their Web sites. These fees are based upon the number of
times members are directed to our business customers' Web sites via the
Viewbar.
Online advertising and sponsorship revenues are recognized ratably in the
periods in which the advertisement or sponsorship is displayed, based upon the
total number of impressions delivered, provided that no significant obligations
on our part remain and collection of the related receivable is probable. Our
obligations typically include the guarantee of a minimum number of impressions
or click-throughs. To the extent that minimum guaranteed impressions are not
met, recognition of the corresponding portion of the revenues relating to this
unfulfilled obligation is deferred until the remaining guaranteed impression
levels are achieved. The guaranteed minimum number of impressions is generally
required to be delivered over the term of the commitment, which has typically
ranged from several weeks to two months. Revenues from advertising sold through
third-party sales organizations are recognized net of commissions. Revenues
from performance-based arrangements are recognized as the related performance
criteria are met, provided that no significant obligations on our part remain
and collection of the related receivable is probable. Revenues from commissions
for referring electronic commerce are recognized upon receipt of payment. Fees
paid to us in advance of satisfaction of revenue recognition criteria are
recorded as deferred revenue.
Costs and Expenses
Costs and expenses consist of direct member costs, sales and marketing
expenses, general and administrative expenses, product development expenses,
depreciation and amortization and stock-based compensation expenses.
28
<PAGE>
Direct Member Costs. Direct member costs consist of costs incurred to
compensate each member for their own use of the Internet while our Viewbar is
activated. Members in the United States are currently compensated at a rate of
$0.50 per hour for up to 25 hours per month for using the Internet while our
Viewbar is activated. Members outside the United States are currently
compensated at a comparable rate in their local currency. Our membership
agreement specifies that we may alter the member payment structure at any time.
Currently, we pay members the amounts they have earned only after having
accrued a minimum cumulative account balance of $20 at the end of any given
month.
Sales and Marketing. Sales and marketing expenses include personnel and
related costs for our direct sales force and marketing staff, marketing and
promotional program expenses, member referral costs and costs related to the
delivery of advertisements to the Viewbar. Member referral costs consist of
payments to members when new users whom they have referred to us download the
Viewbar and use the Internet while our Viewbar is activated. We currently limit
payment for these referrals to direct referrals and a maximum of four tiers of
indirect referrals. We currently compensate members $0.10 per hour for direct
referrals and $0.05 per hour for indirect referrals, for up to 25 hours of
active Internet use per month. The payment for each given referral is further
limited to the number of hours the original referring member uses the Internet
while our Viewbar is activated. Our membership agreement specifies that we may
alter the member payment structure at any time.
General and Administrative. General and administrative expenses include
personnel and related costs for corporate functions such as accounting and
finance, human resources, facilities, legal and information systems.
Product Development. Product development expenses include personnel and
related costs for the development of our Viewbar and related systems, technical
support and quality assurance.
Depreciation and Amortization. Depreciation and amortization expenses
represent depreciation and amortization of computer software and equipment,
leasehold improvements and furniture and fixtures.
Stock-Based Compensation. Deferred stock compensation represents the
aggregate difference, at the date of grant, between the respective exercise
prices of stock options and the deemed fair market values of the underlying
stock. This deferred stock compensation is amortized as stock-based
compensation expense using the graded amortization method over the vesting
period of the related options, which is generally four years. Stock-based
compensation expense relates to stock options awarded to individuals in all
cost and expense categories.
Results of Operations
Period from Inception (March 24, 1999) to December 31, 1999
Revenues. Revenues for the period from inception, March 24, 1999, to
December 31, 1999 were $5.3 million. We have historically sold a significant
portion of our advertisements through third-party sales organizations. Revenues
from sales of advertisements through third-party advertising sales
organizations accounted for 22% of our total revenues for the period from
inception, March 24, 1999, to December 31, 1999. 24/7 Media, a third-party
advertising sales organization, sold advertisements that accounted for
approximately 19% of those revenues. Substantially all of these advertisements
were not targeted. Our internal sales force generally sells targeted
advertising. We have received and we anticipate that we will continue to
receive higher advertising rates for targeted advertisements and sponsorships
than for non-targeted advertisements. As we grow our sales force, we believe
that we will be able to increase targeted advertising sales as a percentage of
our total advertising sales. To date, substantially all of our revenues have
been derived from United States business customers. A substantial amount of our
revenues were recognized in November and December of 1999 due to an increase in
our sales personnel, which resulted in an accounts receivable balance at
December 31, 1999 equal to 86% of our revenues for 1999.
Direct Member Costs. Direct member costs for the period from inception
(March 24, 1999) to December 31, 1999 were $17.1 million. Although we
anticipate that our direct member costs will decrease as a
29
<PAGE>
percentage of our revenues, we expect our direct member costs will increase
substantially in absolute dollars as our membership base continues to grow.
Sales and Marketing Expenses. Sales and marketing expenses for the period
from inception (March 24, 1999) to December 31, 1999 were $11.6 million. During
that period, member referral costs were $3.0 million and costs related to the
delivery of advertisements to the Viewbar were $2.9 million. We expect our
sales and marketing expenses to continue to increase in absolute dollars as our
membership base continues to grow and as we hire additional sales personnel in
the United States and in other countries.
General and Administrative Expenses. General and administrative expenses for
the period from inception, March 24, 1999, to December 31, 1999 were $8.3
million. We expect that our general and administrative expenses will continue
to increase in absolute dollars as we hire additional personnel and incur costs
associated with being a public company.
Product Development Expenses. Product development expenses for the period
from inception, March 24, 1999, to December 31, 1999 were $2.9 million. We
expect that product development expenses will increase in absolute dollars as
we continue to enhance our Viewbar and related systems.
Depreciation and Amortization Expenses. Depreciation and amortization
expenses for the period from inception, March 24, 1999, to December 31, 1999
were $348,000. We intend to increase our capital expenditures in absolute
dollars to continue to expand our systems infrastructure, which will result in
increased depreciation and amortization expenses associated with these
expenditures.
Stock-Based Compensation Expenses. Stock-based compensation expenses for the
period from inception, March 24, 1999, to December 31, 1999 were $1.5 million.
This compensation related to the following captions: sales and marketing
expenses of $907,000; general and administrative expenses of $280,000; and
product development expenses of $360,000. The remaining deferred stock
compensation at December 31, 1999 was $18.6 million, which will be amortized as
follows: $9.7 million for the year ending December 31, 2000, $5.1 million for
the year ending December 31, 2001, $2.7 million for the year ending December
31, 2002 and $1.1 million for the year ending December 31, 2003. Terminations
of option holders could cause stock-based compensation in future years to be
less than indicated. In February 2000, we granted options to purchase
approximately 2.8 million shares of common stock to our employees at an
exercise price of $6.05 per share. We anticipate that we will record additional
deferred stock compensation of approximately $8.1 million related to these
grants.
Interest expense. Interest expense for the period from inception, March 24,
1999, to December 31, 1999 was $827,000. In connection with the issuance of
convertible notes payable in July 1999, we issued warrants to purchase Series C
preferred stock. We recorded a charge for the fair value of the warrants of
approximately $528,000 for the period from inception to December 31, 1999. We
also incurred interest expense from a $20.0 million customer advance received
in November 1999.
Interest Income. Interest income for the period from inception, March 24,
1999, to December 31, 1999 was $360,000. Interest income was generated from
cash balances resulting from our private equity financings and the cash advance
received from a customer.
Provision for Income Taxes. No provision for federal or state income taxes
was recorded for the period from inception, March 24, 1999, to December 31,
1999 because we incurred losses from inception through that date. As of
December 31, 1999, we had approximately $28.6 million of federal net operating
loss carryforwards, which expire on various dates beginning in 2019. Due to the
uncertainty regarding the ultimate utilization of the net operating loss
carryforwards, we have not recorded any benefit for losses and a valuation
allowance has been recorded for the entire amount of the deferred tax asset. In
addition, specific future changes in our share ownership may restrict our
ability to utilize our net operating loss carryforwards.
30
<PAGE>
Liquidity and Capital Resources
Since our incorporation in March 1999, we have financed our operations
primarily through private placements of preferred and common stock and
convertible notes payable, raising $33.9 million through December 31, 1999. In
February 2000, we raised an additional $94.5 million through the issuance of
Series D convertible preferred stock in a private placement.
Cash and cash equivalents, together with restricted cash, were $30.0 million
at December 31, 1999. Restricted cash was $10.0 million at December 31, 1999,
and represented a portion of a $20.0 million customer advance that we received
in November 1999. All of this cash is now unrestricted.
Net cash used in operating activities was $9.9 million for the period from
inception, March 24, 1999, to December 31, 1999. Net cash used in operating
activities consisted primarily of our net loss, substantially offset by
increases in the unrestricted portion of a customer advance, accrued members
payable and accounts payable and other accrued liabilities.
Net cash used in investing activities was $4.3 million for the period from
inception (March 24, 1999) to December 31, 1999. Net cash used in investing
activities consisted of capital expenditures for computer equipment, leasehold
improvements and furniture and fixtures.
Net cash provided by financing activities was $34.2 million for the period
from inception (March 24, 1999) to December 31, 1999. Net cash provided by
financing activities consisted primarily of the net proceeds from the private
sale of convertible preferred stock and common stock, proceeds from the
issuance of convertible notes payable and proceeds from the exercise of options
to purchase common stock.
As of December 31, 1999, our principal commitments consisted of operating
and capital leases. Future minimum cash payments under these non-cancelable
commitments are $1.5 million through the year 2000. In addition, in January
2000, we entered into several non-cancelable commitments for office leases, and
are obligated to pay a total of $49.3 million through 2010 under these leases.
As a condition of one of the leases, we are required to provide a letter of
credit of $2.0 million, which may increase to as much as $6.3 million, as a
security deposit. In addition, we currently have commitments during the year
ended December 31, 2000 for capital expenditures of approximately $1.1 million.
Our working capital requirements depend on numerous factors, including
market acceptance of our products and services and the resources we allocate to
growing our member base, increasing our revenues, hiring additional personnel
and expanding our internal network infrastructure. We have experienced
substantial increases in our expenditures since our inception consistent with
the growth in our operations and personnel, and we anticipate that our
expenditures will continue to increase significantly for the foreseeable
future.
We believe that our available cash and cash equivalents and cash flows from
operations will be sufficient to meet our anticipated needs for working capital
and capital expenditures for at least the next 12 months. We do not currently
have any plans for a follow-on public offering nor do we have any predetermined
future share price thresholds that would cause us, based on share price alone,
to initiate a follow-on public offering. We will continue to evaluate our needs
for funds based on our assessment of access to public or private capital
markets and the timing of our need for funds. Although we have no present
intention to conduct additional public equity offerings in the near future, we
may need to raise additional funds to fund expansion, including significant
increases in member costs, increases in our sales personnel, other personnel
and office facilities, to develop new or enhance existing services or products,
to respond to competitive pressures or to acquire or invest in complementary
businesses, technologies, services or products. Additional funding may not be
available on favorable terms, on a timely basis or at all.
Year 2000 Compliance
The Year 2000 issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Any computer
programs or hardware that have date-sensitive software may
31
<PAGE>
recognize a date using "00" as the year 1900 rather than the year 2000. Prior
to January 1, 2000, many people were concerned that this could result in system
failures or miscalculations, causing disruptions of operations for any company
using these computer programs or hardware, including, among other things, a
temporary inability to process transactions, send invoices or engage in normal
business activities. Most reports to date indicate that computer systems are
functioning normally and that compliance and remediation work accomplished
before the end of 1999 was effective to prevent any problems. Computer experts
have warned, however, that there still may be residual consequences. We cannot
assure you that Year 2000 problems will not disrupt our service and thereby
result in a decrease in revenue, an increase in allocation of resources to
address Year 2000 problems or an increase in litigation costs.
We designed our Internet-based systems as well as our Web site and related
technology infrastructure to be Year 2000 compliant, and we believe, based on
our initial reports, that these systems are Year 2000 compliant. We have not
incurred any significant expenses, and we do not anticipate that the total
costs associated with Year 2000 remediation efforts, including both expenses
incurred and any to be incurred in the future, will be material. Furthermore,
we have not experienced any significant problems to date relating to the Year
2000 compliance of our major suppliers. It is impossible to determine with
complete certainty, however, that all Year 2000 problems that may affect us
have been identified or corrected. The number of devices that could be affected
and the interactions among these devices are simply too numerous. In addition,
no one can accurately predict how many Year 2000 problem-related failures will
occur or the severity, duration or financial consequences of these perhaps
inevitable failures. Should these failures occur, we might experience, among
other difficulties, operational inconveniences and inefficiencies that may
divert management's time and attention from ordinary business activities. Based
on our initial assessment of our Year 2000 readiness, we do not anticipate
being required to implement any material aspects of a contingency plan to
address Year 2000 readiness of our critical operations.
Recent Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities," or SFAS 133, as amended by SFAS 137, which establishes
accounting and reporting standards for derivative instruments, including
derivative instruments embedded in other contracts, and for hedging activities.
We will be required to implement SFAS 133, as amended, for fiscal year 2001.
Because we do not currently hold any derivative instruments and do not
currently engage in hedging activities, we expect that the adoption of SFAS
133, as amended, will not have a material impact on our financial position or
results of operations.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101, or SAB 101. SAB 101 summarizes some of the Staff's
views in applying generally accepted accounting principles to revenue
recognition in financial statements. We believe that our current revenue
recognition principles comply with SAB 101.
Disclosures about Market Risk
Our exposure to market risk is limited to interest income sensitivity, which
is affected by changes in the general level of interest rates in the United
States, particularly since the majority of our investments are in cash
equivalent debt securities issued by corporations or divisions of the United
States government. We place our investments with high quality issuers and limit
the amount of credit exposure to any one issuer. Due to the nature of our
investments, we believe that we are not subject to any material market risk
exposure.
The functional currency of our United Kingdom subsidiary is the pound
sterling. Our United Kingdom subsidiary's accounts are translated from pounds
to U.S. dollars using the current exchange rate in effect at the balance sheet
date, for balance sheet accounts, and using the average exchange rate during
the period, for revenues and expenses. The effects of translation are recorded
as a separate component of stockholders' equity, and to date, have not been
material, as our subsidiary's activities during 1999 were not significant.
32
<PAGE>
While we have members in various countries throughout the world, we
currently only support memberships, and pay members for their and their
referrals' Internet viewing time with the Viewbar, in 20 countries, including
the United States. Member payments to members in these countries are generally
made in local currency. Consequently, we are subject to foreign currency rate
fluctuations from the time the payments are earned to the time members are
paid. Amounts paid to members in countries outside of the United States during
1999 and accrued member payments in these countries as of December 31, 1999
were not significant. To the extent we expand international membership to
additional countries and our foreign member base increases, we could be subject
to significantly greater foreign currency risk. We have not taken any action to
reduce our exposure to changes in foreign currency exchange rates, such as
options or futures contracts, with respect to transactions with our United
Kingdom subsidiary or transactions with our foreign member base.
Inflation
The impact of inflation on our business has not been material.
33
<PAGE>
BUSINESS
This prospectus contains forward-looking statements that involve risks and
uncertainties. Our actual results may differ significantly from the results
discussed in these forward-looking statements. Factors that may cause such a
difference include, but are not limited to, those discussed in "Risk Factors."
Overview
AllAdvantage is an Internet-based intermediary, or infomediary, that enables
businesses to deliver highly-targeted advertisements to, and conduct electronic
commerce with, a large community of profiled members. We have built an Internet
communications platform that connects businesses and consumers through our
proprietary Web interface, the AllAdvantage Viewbar. The Viewbar is an
interactive communications window that is persistently displayed on each
member's computer screen. The Viewbar is also the channel through which we
deliver highly-targeted advertising, direct marketing messages, electronic
commerce opportunities and digital products. The Viewbar also facilitates
Internet navigation and electronic commerce with our business customers through
our members' use of the Viewbar's search capabilities and pop-up menus that
contain direct links to over 400 Web sites.
With our members' express permission, we continuously track and collect data
about their Internet behavior and demographics with our proprietary Viewbar
technology. We use our proprietary database and profiling technology to develop
detailed personal profiles of our members. We then use these profiles to
specifically identify the group of members to whom advertisements and other
marketing messages are sent, thereby providing businesses with an online
advertising, direct marketing and electronic commerce channel to reach their
chosen audience more effectively while keeping each of our member's personal
data private. To our members, we provide cash compensation for using the
Internet while our Viewbar is active, as well as simplified Internet navigation
and electronic commerce links that enhance their Internet experience. Our
members who used our service in the fourth quarter of 1999 accrued an average
of $4.14 per month through the use of our Viewbar.
We believe that, by increasing our membership, our value to businesses
increases because we can deliver highly-targeted advertising and marketing
messages based on increasingly refined criteria to a large community of
members. We also believe that, as more businesses use our services, we can
offer increasing benefits to consumers, thereby enhancing our ability to
attract new members. The combination of these benefits to businesses and
consumers has the potential to create a self-perpetuating cycle of increasing
membership and increasing value to businesses.
From our inception in March 1999 to January 31, 2000, over 5.3 million users
have registered to receive, and not subsequently canceled, our service. We
launched our Viewbar service in July 1999. We have made the Viewbar available
for our members in the United States, Australia, Austria, Belgium, Canada,
Denmark, Finland, France, Germany, Ireland, Italy, Japan, The Netherlands, New
Zealand, Norway, Portugal, Spain, Sweden, Switzerland, and the United Kingdom.
We have opened sales offices in London, Paris, Sydney and Tokyo. During the
three months ended January 31, 2000, over 1.7 million members actively used our
service. From the introduction of our Viewbar in July 1999 through December
1999, we have delivered advertisements for 148 advertisers obtained by our
direct sales force and 973 additional advertisers obtained through third-party
advertising sales organizations. In January 2000, we delivered over 6 billion
advertising impressions on our Viewbar.
Industry Background
The Growth of the Internet
The Internet has dramatically changed the way that millions of people
worldwide share information, communicate and conduct business. International
Data Corporation, or IDC, an independent technology research organization,
estimates that the total number of Internet users worldwide will grow from
34
<PAGE>
approximately 196 million at the end of 1999 to approximately 502 million by
the end of 2003. IDC further estimates that worldwide electronic commerce over
the Internet will increase from $111 billion in 1999 to $1.3 trillion in 2003.
The Growth of Online Advertising and Direct Marketing
As the Internet has grown, businesses have devoted increasing portions of
their budgets to online advertising and direct marketing. Forrester Research,
an independent technology research organization, projects that online
advertising expenditures worldwide will increase tenfold from $3.3 billion in
1999 to $33.1 billion in 2004. Currently, online advertising consists primarily
of banner advertisements and sponsorships on frequently visited portals and
other Web sites. Although these forms of online advertising have generally
allowed businesses to create an online awareness of their brands and products,
businesses are increasingly demanding the ability to target their desired
audience more effectively.
Limitations of Current Targeted Online Advertising Methods
Targeting online advertisements identifies a specific group of computer
users to whom the advertisements are delivered, which we believe increases the
likelihood that the computer users receiving the advertisements will find them
relevant and, as a result, will positively respond to the advertisements. While
targeted online advertising has a number of advantages over traditional
advertising, there remain significant challenges to realizing its full
potential. The effectiveness of targeted online advertising is currently
limited by the lack of precise demographic and Internet behavioral data about
consumers. To date, online targeting methods have generally used unverifiable
data from surveys and registrations or incomplete Internet behavioral data
derived from a single Web site or limited network of Web sites. Further, the
effectiveness of existing online delivery methods is limited because users
often scroll traditional banner advertisements off of their computer screens or
leave a Web site before an advertisement can be served to that site.
Consumer Online Privacy and Control of Personal Data
Many companies on the Internet are collecting valuable data about consumers
without their knowledge or permission. Online consumers are becoming
increasingly aware of Internet privacy issues and concerned with the need to
control their personal data. According to Forrester Technographics,
approximately 67% of Internet users are extremely or very concerned about
releasing their personal data. To date, online consumers have had limited ways
to control this flow of data or realize any of its value.
Market Opportunity
We believe that a significant market opportunity exists for an Internet-
based infomediary to serve as an effective communication channel between
businesses and online consumers. This infomediary would collect consumers'
demographic and Internet behavioral data, with their permission, and build
detailed profiles from that information. The infomediary would then use these
profiles to enable businesses to deliver highly-targeted, one-to-one marketing
messages and other products and services to specified consumers. The
infomediary, as the trusted custodian of their information, would also empower
consumers to realize value from their data while protecting their privacy.
AllAdvantage
AllAdvantage is an Internet-based infomediary that enables businesses to
deliver highly-targeted advertisements to, and conduct electronic commerce
with, a large community of profiled members. We connect businesses with these
members through our Viewbar, an interactive communications window that is
persistently displayed on our members' computer screens. The Viewbar displays
advertising and also contains features such as a search field and menus of
links that facilitate electronic commerce by connecting our members directly to
Web sites and services of our business customers.
35
<PAGE>
With our members' express permission, we collect their demographic
information upon registration and continuously capture data about their
Internet activity. Using our proprietary database and profiling system, we then
create, and continuously update, an accurate and detailed profile for each of
our members. These profiles enable us to deliver highly-targeted advertisements
and marketing messages on behalf of our business customers. We compensate our
members for time that they, and the members whom they have referred, spend
browsing the Internet while using our Viewbar.
Benefits to Businesses
Accurate and Detailed Member Profiles. We enable businesses to deliver
highly-targeted advertising and marketing messages, based on accurate and
detailed member profiles, to our large community of members. With our members'
express permission, we collect extensive data on their actual browsing behavior
across the entire Internet. Because our members must provide us with accurate
names and addresses in order to receive payment, we are able to validate this
information. With our accurate and continuously updated database of profiles,
we enable businesses to continuously refine and optimize their online marketing
campaigns.
Higher Returns on Their Marketing Investment. Our highly-targeted
advertising and marketing messages are designed to generate higher consumer
response rates and advertising impact and, as a result, to provide businesses
with a higher return on their marketing investments. We offer businesses an
effective means of delivering highly-targeted online advertisements and
marketing messages based on combinations of the following variables:
. profiled behavior, including personal interests and spending habits;
. demographic data, including gender, age, street address and zip code;
. geography, including local, regional, national or international
placement;
. specific Web sites or Web site topics, such as sports or travel;
. current Internet behavior, such as researching or buying;
. keywords searched, such as stocks or golf; and
. specific time, including time of day or week.
Using combinations of these variables, an advertiser can target a very specific
audience. For example, a local car dealership can target its advertising to
males, age 25-40, who live in the zip codes near the dealership when they are
using the Internet to research sport utility vehicles or browsing related
automotive Web sites. Also, a national airline could run a campaign in specific
cities where it has excess capacity. With our detailed member profiles, the
airline could target members who have frequented travel Web sites within the
past month or visited the Web sites of its closest competitors in the same time
period.
Persistent and Rich Media Advertising. When activated, the Viewbar is always
visible on a member's computer screen, regardless of which Web site he or she
is viewing or which desktop application he or she is using. Accordingly,
businesses can have their advertisements viewed on a persistent basis, without
the possibility of their advertisements being scrolled off the screen. In
addition, we designed the Viewbar system to send advertisements to members
between downloads and uploads of data from the Internet, allowing us to
efficiently send more complex and appealing graphics, or rich media, to our
members. The Viewbar remains visible throughout a computing session unless the
member chooses to minimize or close the Viewbar.
Ability to Target Members Viewing Any Web Site. We can deliver
advertisements on the Viewbar while our members are viewing any Web site,
including sites that are sold out of advertising inventory or do not feature
advertising. Rather than separately negotiating for and purchasing advertising
space on a number of Web sites, a business can instead purchase advertising on
the Viewbar that will be displayed when members view any of those selected Web
sites.
36
<PAGE>
Media Strategy Expertise. We work with business customers to evaluate,
develop, execute, analyze and refine their online marketing campaigns. Because
we can collect data on our members' activity across the Internet, we are able
to offer customers information that might otherwise be unavailable. We can
accurately identify the demographic and behavioral characteristics of those
members who have, and those who have not, responded to our advertisers'
campaigns. Our media strategy group uses this information to assist our
business customers to target their future campaigns more effectively.
Platform for Electronic Commerce. Our Viewbar contains features that
facilitate electronic commerce between business customers and our members. For
example, the Viewbar contains a menu bar that provides links to over 400 sites
on which our members may engage in commerce. In addition, each of our active
members holds an AllAdvantage cash account. We have recently begun to allow
members to use their cash accounts for the direct purchase of goods and
services online.
Benefits to Members
Payments for Using the Internet and for Referrals. Our members are paid for
time they spend navigating the Internet while the Viewbar is active on their
computer screens. In this way, members are paid for activities they already
undertake and are able to share in the value that their personal information
has for Internet advertisers and marketers. Members are also paid when other
people they have directly or indirectly referred to us become members and use
the Internet while their Viewbars are active. Members who accrue a minimum
balance can receive the cash they earn in the form of a check we mail to them.
In addition, we have recently begun to enable our members to use the funds in
their accounts to make purchases online.
Simplified Internet Navigation. When the Viewbar is active on a member's
computer screen, it serves as a persistent and private portal that is always
accessible. The Viewbar simplifies navigation of the Internet by featuring a
search field and a menu bar that provides direct links to selected Web sites.
We believe that our members will find these features easier to use and more
convenient than other alternatives.
Increased Purchasing Power. We have recently begun to help our members
capitalize on the value of our large member base by working with selected
vendors to obtain pricing discounts, promotional rewards and other benefits for
our members. We provide a vehicle by which consumers receive the benefit of
their collective purchasing power, which encourages them to participate
actively in the AllAdvantage community and refer other consumers for
membership.
Relevant Advertising and Electronic Commerce Offers. Each of our members has
given us express permission to deliver advertising and marketing messages to
him or her through the Viewbar. Our profiling capabilities enable us to deliver
these messages in a highly targeted fashion, increasing the likelihood that the
member will view and respond to a given message. As we collect additional data
regarding the interests, activities and Internet usage patterns of our members
over time, we believe we can increase the level of personalization and hence
the direct relevance and value of these messages to members. We believe that
receiving these highly-targeted messages can be valuable to our members and
will be viewed by them as useful and informative.
Privacy and Control. We believe we have built a trusted relationship with
our members by rigidly maintaining the privacy of their data. We expressly
state in our membership agreement that we will never sell or disclose to any
third parties our members' personally identifiable information, unless
permitted by our members or required by law. Additionally, members can control
our tracking of their Internet behavior by turning the Viewbar on and off at
any time.
Strategy
It is our objective to be the leading Internet-based infomediary. Key
elements of our strategy include:
Build a Premier and Trusted Brand. We believe that building strong brand
awareness is fundamental to establishing ourselves as the Internet-based
infomediary most trusted by consumers and as the most effective
37
<PAGE>
online marketing channel for businesses. We intend to build a premier and
trusted brand by consistently delivering value to both businesses and
consumers. We also intend to maximize awareness of the AllAdvantage brand by
businesses through traditional marketing channels. In addition, we plan to
utilize multiple points of contact with consumers, including our Viewbar, Web
site, email and direct mail, to increase their brand awareness.
Expand our Community of Profiled Members. We believe that expanding our
membership increases our attractiveness to businesses. We plan to continue to
rely on word-of-mouth referral marketing and may augment this strategy with
other marketing campaigns. We also intend to attract additional members by
improving member benefits with enhancements to the Viewbar and expanded product
and service offerings.
Expand our Business Customer Base. We intend to continue to increase our
sales force domestically and internationally in order to expand our worldwide
business customer base. We also intend to attract and retain business customers
by offering the services of our media strategy group, which assists these
customers in utilizing our extensive database to evaluate, develop, execute,
analyze and refine their marketing campaigns.
Increase Targeted Advertising Sales. Businesses generally pay higher rates
for targeted online advertising than for traditional online advertising. During
1999, substantially all of the advertisements we sold were not highly targeted.
As we grow our sales force and media strategy group, we believe that we will be
able to increase targeted advertising sales as a percentage of our total
advertising sales. We believe that our business customers will experience
higher response rates from our increasingly targeted advertisements and that
these higher response rates will in turn encourage them to buy more targeted
advertising from us.
Pursue New Revenue Opportunities. We intend to aggressively pursue new
revenue opportunities which utilize our large membership base or the
functionality of the Viewbar, including:
. Digital Products. We intend to offer businesses the opportunity to sell
or rent digital products, such as software, music, games and video, that
can be electronically distributed to our members through the Viewbar,
and be paid for by debiting members' accounts;
. Data Products. We intend to offer businesses the opportunity to purchase
reports that will use our extensive, aggregated market data but that
will not personally identify members; and
. Co-branded Products and Services. We intend to offer businesses the
opportunity to sell co-branded products and services, such as
permission-based email, financial services and telecommunication
services, to our large membership community.
We believe that, in the future, advertisements may be delivered through the
Internet to a number of digital devices in addition to computers, including
interactive television, Internet-enabled home appliances, hand-held computers,
cellular phones, pagers and automobile personal computers. Over time, we may
extend our technology to deliver targeted advertisements through some of these
emerging digital devices.
Enhance Viewbar Functionality and Member Experience. We intend to continue
to add functionality to the Viewbar in order to enhance our members'
experience. For instance, we recently added a menu bar and search field to our
Viewbar. These features facilitate more convenient Internet navigation and
electronic commerce. We intend to develop and acquire additional technology and
services that make our members' online experience more relevant and personal.
For instance, we intend to allow members to customize their Viewbars to display
requested information and options.
Enhance our Profiling and Data Analysis Technology. We intend to continue to
enhance our proprietary profiling and data analysis technology. We intend to
maximize the effectiveness of our targeted advertising capabilities by building
increasingly detailed and personalized member profiles. We also intend to
continue to enhance our data analysis capabilities in order to plan and execute
more effective advertising and marketing campaigns for our business customers.
38
<PAGE>
The AllAdvantage Viewbar
At the core of our service is our Viewbar, an interactive communications
window that appears on each member's computer screen. The Viewbar is the
channel through which we gather valuable data about our members' Internet
activity and through which we deliver advertising and facilitate electronic
commerce. The Viewbar contains a search field and pop-up menus of links that
allow members to navigate directly to Web sites and services on the Internet.
The current version of our Viewbar, released in January 2000, is depicted
below:
The following schematic illustrates the Viewbar:
Centered on the page is a horizontal screen shot of the Viewbar. Across the
top of the Viewbar are depictions of buttons containing the words "Home,"
"News," "Finance," "Shop," "Entertainment," "Travel," and "Tech."
On top of the "Finance" button is an expanded pop-up menu, in the form of a
vertical column, containing the following words which read from the top down:
"News," "Stocks & Investing" which are highlighted, "Banking," "Credit Cards,"
"Taxes," "Insurance," and "Loans & Mortgages." To the right and parallel to the
highlighted words "Stocks & Investing" is a drop-down menu, in the form of a
vertical column, containing the following words which read from the top down:
"On-Line Research" and "Research."
The following text connected by lines to functional areas of the Viewbar
surrounds the depiction of the Viewbar, starting above the depiction of the
Viewbar and to the left of the "Finance" button pop-up menu and following anti-
clockwise around the entire screen shot of the Viewbar.
"Minimizer button for control of use."
"Home menu button takes members directly to individual account page,
referral center and other areas of our web site."
"Choice of seven search engines."
"Direct link to our web site homepage www.AllAdvantage.com"
"Banner and tile advertising spaces."
"Menu Bar with eight channels of detailed link menus."
The body of the Viewbar is depicted in three adjoining sections, the section
on the left hand side of the Viewbar depicts a search engine with the word
"Search" presented and an expanded drop-down menu, in the form of a vertical
column, containing the following words, which read from the top down:
"About.com," "Ask Jeeves," "Direct Hit," "Excite," "Go.com," "GoTo.com" and
"LookSmart." The center section of the Viewbar depicts the Viewbar's banner
advertising space with AllAdvantage.com's logo presented and the section on the
right hand side of the Viewbar depicts the Viewbar's tile advertising space and
presents the following text: "ALLPLAY-TM-Channel Advantage-TM-"
The Viewbar can be downloaded from our Web site in Windows 95, Windows 98,
Windows NT 4.x and Macintosh 8.6 and 9.0 formats. Once a member downloads,
installs and launches the Viewbar, it opens a two-way communications channel
between the member's computer and AllAdvantage. The Viewbar appears on the
user's screen automatically when the computer is turned on, and its default
position is at the bottom of the screen. A member can move the Viewbar to any
part of the computer screen, and it remains visible throughout a computing
session unless minimized or closed. We control the type of content and the
frequency with which that content is displayed through the Viewbar, based on a
member's unique profile and Internet browsing behavior.
The Viewbar has the following interactive features:
. The Menu Bar. Along the top of the Viewbar there is a menu bar currently
containing eight category menus. The menu bar may be opened or closed at
the option of the member. Each menu
39
<PAGE>
contains direct links to select Web sites. The current Viewbar features
more than 400 direct links that may be sold to sponsors in the future.
We intend to increase the number of category menus and links on the menu
bar.
. The Search Field. On the left side of the Viewbar is a text box that
members can use to search the Internet. An expandable menu button from
this search text box allows users to choose the search engine of their
choice. We currently offer seven sponsored search engine options.
Members can type in their search criteria or a specific Web site address
in the search text box, even while using a non-Internet application.
This activates the member's Internet browser, which displays the search
results or takes the member to the Web site address entered.
. Advertising Windows. To the right of the search field are spaces to
which we deliver a standard-sized and a tile-sized advertisement, both
of which we change several times a minute.
AllAdvantage Membership Services
Member Payments
Members earn money for time they spend navigating the Internet while the
Viewbar is active on their computer screens. Members are paid only after
reaching a minimum cumulative account balance of at least $20. Time for which a
member is eligible for payment is capped at a maximum number of hours per
month, currently 25 hours per month. In addition to earning money from their
own Internet use, members are paid, at a lesser rate, when other members they
have directly or indirectly referred to us use the Internet while their
Viewbars are active. We currently limit payment for referrals to five levels
removed from the original referring member. The amount paid to a member for his
or her referrals' usage is based on an hourly rate and is also limited by the
Internet usage of the original referring member. As an example, if member A
refers member B, who in turn refers member C, who in turn refers member D, who
in turn refers member E, who in turn refers member F, who refers in turn member
G, then member A will be eligible to accrue payment at the applicable referral
rate for Internet browsing done in a given month by members B through F, but
not member G. If member A actively browses the Internet with the Viewbar active
for five hours in a given month, then member A will accrue payment at the
direct member rate for those five hours. Additionally, if in that month members
B through F each actively browse the Internet with the Viewbar active for 25
hours, then member A will accrue only five hours worth of referral payments for
each such referral.
Our membership agreement specifies that we may alter the member payment
structure at any time. Users register without charge at our Web site by
providing their name, gender, street address, email address and age. Because we
verify name and address information through the payment process, we believe we
have highly accurate personal data.
Web Site
Our Web site, www.alladvantage.com, contains:
. information about AllAdvantage and our Viewbar;
. a download area for new Viewbar versions and digital products;
. password-protected access to member referral and account pages;
. information and tools to aid members in referring new members; and
. specialized community pages for A-Plus members, a designation for
members with 20 or more referrals, which presently allows these members
to communicate with each other using computer message boards, provides
information about members with a high number of referrals and provides
other information about AllAdvantage events.
The member account page, the most frequently visited page on our Web site, is
continuously updated to reflect member earnings and referrals. Many of our
members repeatedly visit their account pages over the course of a
40
<PAGE>
day. In each month of the fourth quarter of 1999, PC Data ranked our Web site
as one of the 20 most visited Web sites, measured by the number of unique
users.
Specialized Member Offers
We have recently begun to provide our members with third-party product and
service offerings that are generally not available elsewhere. For example, we
currently offer our members the ability to rent anti-virus software on a
monthly basis over the Internet, payable through direct deductions from their
individual AllAdvantage accounts. We intend to further leverage the value of
our large membership base and digital distribution channel through the Viewbar
to obtain additional specialized third-party product and service offerings.
Customer Service
We provide customer service to our members through our community and member
services departments. Our community department supports the member community,
communicating with members through email about new features and services. Our
member services department answers email queries from members about topics such
as Viewbar functionality, technology and usage and member accounts.
AllAdvantage Business Services
Advertising
We offer business customers the opportunity to purchase advertising on the
Viewbar. Customers may purchase standard-sized and also tile-sized
advertisements. Business customers may purchase either traditional online
advertisements or highly-targeted advertisements tailored to one or a
combination of the individual member's demographics or Internet behavior. These
variables may include profiled behavior, age, gender, address, geography,
current Web activity or site, keywords, or time of day. To date, traditional
advertising sold by third-party advertising sales organizations has generated a
significant portion of our total advertising revenues and accounted for a
significant portion of the advertising impressions delivered to our Viewbar. As
we increase our internal sales force, we intend to generate an increasing
proportion of our revenues from targeted advertising.
Media Strategy
We offer business customers extensive media strategy services, which include
evaluating, developing, executing and refining online marketing campaigns. We
provide detailed reports that include data valuable to customers for their
online and offline marketing campaigns. Because we collect data about our
members' behavior wherever they go on the Internet, we are able to offer
business customers information that might otherwise be unavailable or might
require time-intensive and inefficient marketing campaigns. Because the Viewbar
provides a persistent one-to-one marketing channel from advertisers to our
members, we provide true one-stop shopping for our business customers' online
media plans.
Digital Products
The Viewbar is designed to serve as a digital distribution channel that our
business customers may use to distribute software, music, games, video and
other digital products directly to our members. For example, we currently offer
our members the opportunity to download and rent anti-virus software from
Network Associates, for which we charge members a monthly fee that is deducted
automatically from their AllAdvantage member account.
Electronic Commerce
The current Viewbar contains over 400 direct links to specific Web sites
which we intend to sell. The menu bar containing these links is organized into
categories such as shopping, news, finance, travel and
41
<PAGE>
technology. Business customers may pay to sponsor these links to their own Web
sites and services. For example, a finance-related Web site can sponsor a link
in the finance menu, so that their Web site is always one click away from our
members. In addition, businesses may sponsor the search field on the Viewbar.
The tile portion of the Viewbar and specific pages on the AllAdvantage Web site
are also available for sponsorship, thereby providing businesses with multiple
channels through which they may communicate with our members. We have entered
into agreements with businesses where we receive fees based on the number of
members who sign up for their services, purchase their products or satisfy
other performance criteria. We generally receive an exclusivity fee or other
advance payment or fee in these arrangements. An example is our agreement with
NetCreations, whereby NetCreations will deliver permission-based email services
to our members. In return for our agreement to grant NetCreations exclusive
rights to provide those services to our customers, NetCreations paid an
exclusivity fee to us at the outset of our contractual relationship. As members
sign up for NetCreations and receive permission-based emails, we also receive
payments for each email that is delivered to our members.
AllAdvantage Business Customers
From the introduction of our Viewbar in July 1999 through December 1999, we
have delivered advertisements for 148 advertisers obtained by our direct sales
force and 973 additional advertisers obtained through third-party advertising
sales organizations. Our agreements with our business customers include
provisions which require us to deliver to the Viewbar specified levels of
advertising for a specified time period. In return, those business customers
pay us for advertising delivered. We have entered into agreements with
DoubleClick and 24/7 Media under which they sell Viewbar advertising on behalf
of AllAdvantage. Our agreement with DoubleClick is non-exclusive and requires
that we provide a minimum amount of monthly advertising to DoubleClick, that we
maintain our Web site at a level of quality no less than the level existing
when the agreement was entered into and that we pay a commission to DoubleClick
for completed sales. This agreement expires after two years or earlier if a
customer advance for future revenues provided by DoubleClick no longer remains
outstanding. This agreement may be terminated earlier by DoubleClick if the
average monthly click-through rate on our advertisements falls below a stated
minimum, if the time our advertisements are displayed on the Viewbar fall below
a stated minimum, if we terminate our agreement to use DoubleClick to serve our
advertisements, if we are acquired by a competitor of DoubleClick, if we breach
the agreement or if we are determined to be insolvent or bankrupt. Our
agreement with 24/7 Media is non-exclusive and requires that we provide
advertising to 24/7 Media at stipulated rates and that we pay a commission to
24/7 Media for their completed sales. This agreement expires after one year,
subject to renewal. This agreement may be terminated earlier by 24/7 Media if
the number of advertising impressions falls below a stated minimum, if the
average monthly click-through rate on our advertisements falls below a stated
minimum or if we breach the agreement. 24/7 Media sold advertisements that
accounted for 19% of our revenues for the period from inception, March 24,
1999, to December 31, 1999, and DoubleClick sold advertisements that accounted
for 3% of our revenues for the period from inception, March 24, 1999, to
December 31, 1999.
Sales and Marketing
Customer Acquisition
We acquire business customers through our direct sales force and through
third-party advertising sales organizations. As of February 29, 2000, our sales
and marketing organization included 191 employees located in the following
metropolitan areas: Atlanta, Boston, Charlotte, Chicago, Dallas, Detroit,
London, Los Angeles, Louisville, New York, San Francisco, Seattle, Sydney and
Washington, D.C. Our sales organization develops and maintains relationships
with leading advertisers and advertising agencies globally. We also have
entered into relationships with third-party advertising sales organizations in
order to augment the efforts of our sales personnel and accelerate the
expansion of our business internationally.
We use a variety of methods to build awareness of the AllAdvantage brand and
our service offerings within our target market and to establish credibility and
leadership in the marketplace. These methods include
42
<PAGE>
marketing materials, advertising, press coverage and other public relations
efforts, direct marketing, trade shows, seminars and conferences, relationships
with recognized industry analysts and the AllAdvantage Web site. We expect to
increase our business marketing activities in the future.
Member Acquisition
Since our inception, we have relied on word-of-mouth marketing to attract
the vast majority of our members. We employ a referral marketing system that
rewards members for referring other members to our service. Members derive
increased benefits from our service, such as referral payments and greater
purchasing power, as more members join, thereby motivating members to work to
further increase our membership base. Between the launch of our Web site in
March 1999 and January 31, 2000, over 5.3 million users have registered to
receive, and not subsequently canceled, our service. In addition, as of
February 29, 2000, over 1,000,000 of our members had successfully referred at
least one new member to our service, and our over 100,000 A-Plus members had
each referred 20 or more members to our service. We may supplement our word-of-
mouth member marketing efforts in the future with more traditional marketing
campaigns.
Technology
As of February 29, 2000, our technology organization included 139 employees
and contractors. We have developed and continue to expand our proprietary
software architecture that enables us to detect and catalogue our members'
Internet-usage behavior, create member profiles based on their browsing
behavior, improve the delivery of dynamic, targeted advertisements, and update
and maintain members' online accounts. This software architecture includes the
following components:
Viewbar. The Viewbar, which is downloaded by each member from our Web site,
runs on the member's computer and displays advertisements supplied by the
advertising server. The Viewbar communicates continuously with our central
servers, keeping member earnings and profile information current and enabling
customization of advertising displayed on the Viewbar based on the most recent
profiles. The Viewbar is a client application programmed in C++ and designed to
be portable between operating systems. The Viewbar currently operates on the
Windows 95, Windows 98, Windows NT 4.x and Macintosh 8.6 and 9.0 operating
systems.
Profiling Server. The profiling server collects data about each member's
actual Internet browsing behavior. This server gathers data describing the
sites visited, and the frequency and duration of these visits. This server is
also used to infer additional Internet behavior data regarding each member.
This information is transmitted to the member profile server and subsequently
used to target advertising on the Viewbar.
Member Profile Server. The member profile server stores the member data we
use to target advertisements and marketing messages. The member data consists
of demographic and Internet behavioral information. The member profile server
enables members to authenticate themselves to our system and transmit their
data through the Viewbar. The member profile server also maintains the
information about each of our members' referrals.
Advertising Server. The advertising server determines which advertisements
are shown to a particular member at a particular moment. Advertisements can be
served based on targeting information provided to the advertising server by the
member's Viewbar and the member profile server, as well as the specific
targeting criteria associated with a particular marketing campaign. This server
maintains data regarding available advertising inventory and provides reports
on the delivery of advertisements. The server technology is licensed to us by
DoubleClick.
Payment Server. The payment server monitors the time members spend browsing
the Internet while the Viewbar is active. Based on this information, the
payment server computes each member's earnings, maintains an account for each
member, and computes the amount to be paid to each member based on the member's
browsing time and that of the members whom they have referred.
43
<PAGE>
Web Server. The Web server supports the AllAdvantage Web site.
We have designed and constructed our software and related technology
infrastructure to comply with industry-standard security specifications, and we
utilize a broad range of monitoring and assessment tools to ensure the security
of our systems. We have designed our system to be reliable and to permit our
technology infrastructure to be expanded to meet increased usage demands, and
we believe the various components of our technology architecture have the
ability to scale well beyond their current configuration. We actively monitor
our systems to ensure that we have substantial available capacity. We house our
technology within the GlobalCenter facilities located in Sunnyvale, California,
and by the second quarter of 2000 we intend to have a second hosting site
located at GlobalCenter's facilities in Herndon, Virginia.
Our information technology infrastructure is built upon a number of hardware
and software components from well-known technology vendors, including:
. Intel-based servers for our Web site, running Microsoft's NT operating
system;
. Sun Microsystems servers for our other servers, running Sun's Solaris
operating system;
. high-availability storage equipment from EMC;
. firewalls and network routing equipment from Cisco; and
. Oracle database software to manage the large amounts of data we collect
about our members' Internet usage activities.
Product Development
We consider our product functionality and architecture to be one of our
competitive advantages. An integral part of our strategy is to continue to make
our service more attractive to new and current members. We believe that, in
order to meet this goal, we will need to regularly improve and extend the
functionality of our Viewbar and related systems, which include a profiling
server, a payment server and a Web server. To this end, we currently have
software developers and engineers working in a number of areas, including:
. database and server systems development;
. Web development;
. client software development;
. software testing; and
. systems support.
Our software developers rely on state-of-the-art development tools and
development environments.
The January 2000 release of our Viewbar was enhanced to include search
capability, electronic commerce menus and an auto-update feature, which allows
the Viewbar to update itself automatically with new or upgraded components. The
auto-update capability enables us to update members' Viewbars transparently
without disrupting online activity. We believe that this capability, when
combined with the Viewbar's modular design and ability to support several
operating systems, enables us to deploy rapidly to our members new products and
software components that may be created by third-party developers. Our ability
to centrally update the Viewbar and the server-side Web and database systems
facilitates rapid adjustments to all product components based on consumer
demand and business needs.
Privacy Policy
We believe that concerns regarding online privacy raised by consumer
advocates, legislatures and the media will increase as commercial usage of the
Internet increases. Foreign, federal and state laws increasingly may regulate
our use of personal information regarding our members. We have a stringent
privacy policy
44
<PAGE>
concerning how we use information about our members and the extent to which
others may have access to this information. We have a chief privacy officer who
oversees the creation and implementation of and compliance with our privacy
policy. We use information about our members for internal purposes, such as to
target advertisements and other communications to our members, to improve our
marketing and promotional efforts and to improve our service and Web site. We
do not give, sell, rent, share or trade any identifiable personal information
regarding our members to any third party, except as required by law or
expressly permitted by a member. We do, however, sell summaries of generalized
market data to our advertisers and other interested parties, but we do not
disclose indentifiable personal information to these parties. In contrast to
other companies on the Web that collect personal data without the knowledge or
permission of the Internet user, we have a permission-based relationship with
every one of our members.
Competition
We compete for business customers and members.
Competition for business customers
The market for online advertising and marketing is extremely competitive. We
believe that the principal competitive factors in the online advertising market
are:
. the ability to target users based on specific demographic and inferred
behavioral criteria;
. brand recognition;
. size and characteristics of membership base;
. breadth and depth of reporting and other services;
. reliability and quality of data and technology infrastructure;
. pricing; and
. technical expertise.
There is substantial competition for Internet-based advertising revenues
generally, and the amount of available advertising space on the Internet is
increasing at a significant rate. We believe our most direct competitors for
Internet advertising and sponsorship revenues will be providers of targeted
online advertisements. We will also compete for those revenues with major
Internet service providers, content providers, large Web publishers, Web search
engines and portal companies, Internet advertising providers, content
aggregation companies, and various other companies that facilitate Internet
advertising. We may also face competition from traditional direct marketing
companies that may seek to offer online products or services. Many of these
companies have longer operating histories, greater name recognition, larger
user bases and significantly greater financial, technical, sales and marketing
resources than we do. This may allow them to respond more quickly than we can
to new or emerging technologies and changes in advertiser requirements. It may
also allow them to devote greater resources than we can to the development,
promotion and sale of their products and services. These competitors may also
engage in more extensive research and development, undertake more far-reaching
marketing campaigns, adopt more aggressive pricing policies and make more
attractive offers to existing and potential employees, strategic partners and
advertisers. In addition, current and potential competitors have established or
may establish cooperative relationships among themselves or with third parties
to increase the ability of their products or services to address the needs of
our prospective business customers. Increased competition is likely to result
in price reductions, reduced gross margins and loss of market share. We face
significant competition from traditional media, such as television, radio,
cable and print, for a share of advertisers' total advertising budgets.
Businesses may be reluctant to devote a significant portion of their
advertising budgets to Internet advertising if they perceive the Internet to be
a limited or ineffective advertising medium.
45
<PAGE>
Competition for members
Since space on a computer screen is limited, we believe our most direct
competitors for members are companies that offer Internet services or
compensation to consumers who allow a portion of their computer screen to be
dedicated to the applications or services of those companies. We believe that
over 50 other companies have announced that they offer or will offer users cash
compensation to browse the Internet if they dedicate a portion of their
computer screen. If our competitors were to offer more attractive benefits than
we do, such as higher compensation, better functionality or greater aggregated
purchasing power, then our membership could decline, possibly reducing our
revenues. In addition, current and potential competitors have established or
may establish cooperative relationships among themselves or with third parties
to increase the ability of their services to address the needs of our current
or prospective members. If we are unable to compete successfully, our business
may fail.
Intellectual Property
We rely on a combination of patent, copyright, trademark, trade secret and
contract law to protect our intellectual property rights. Despite our efforts
to protect our proprietary rights, unauthorized parties have copied, and may
attempt to copy in the future or otherwise obtain and use our intellectual
property. Monitoring unauthorized use of our intellectual property is
difficult, and we cannot be certain that the steps we have taken will prevent
unauthorized use of our intellectual property in the future.
We have two U.S. copyright registrations. We have pending U.S. patent and
pending U.S. and foreign trademark applications. We cannot assure you that our
pending patent or trademark applications will be granted. Even if they are
granted, our patents, copyrights and trademarks may be successfully challenged
by others or invalidated. We cannot assure you that any of our proprietary
rights will be viable or of value since the validity, enforceability and scope
of protection of proprietary rights in Internet-related industries are
uncertain and evolving. If our trademark applications are not approved because
third parties successfully challenge our right to use these trademarks, our use
of these trademarks would be restricted unless we were to enter into
arrangements with the third-party owners, which might not be possible on
reasonable terms.
We also seek to protect our proprietary rights through trade secret and
contract law. We generally enter into confidentiality or license agreements
with our employees and consultants, and control access to and distribution of
our technologies, documentation and other proprietary information. Despite our
efforts to protect our proprietary rights from unauthorized use or disclosure,
unauthorized parties may attempt to obtain, use or disclose our technologies.
We cannot assure you that the steps we have taken will prevent misappropriation
of our technologies, particularly in foreign countries where laws or law
enforcement practices may not protect our proprietary rights as fully as in the
United States.
Our business activities may infringe the proprietary rights of others, and,
from time to time, we have received, and may continue to receive, claims of
infringement against us. We have received notices from two third parties
regarding their Internet business model patents. Third parties may assert
claims against us for infringement of their proprietary rights and these claims
may be successful. In addition, a number of third-party owners of patents claim
to hold patents that cover various forms of online transactions or online
technology generally. As with other online service providers, third parties
could assert patent claims against us based upon our services or technologies.
Litigation may be necessary to determine the validity and scope of the
proprietary rights of others. Any litigation could subject us to significant
liability for damages and attorneys' fees, invalidation of our proprietary
rights, or injunctions or other court orders that would prevent us from using
specific technologies or engaging in specific business activities. These
lawsuits, regardless of their success, would likely be time-consuming and
expensive to resolve and would divert management's time and attention from our
business. Any potential intellectual property litigation could also force us to
do one or more of the following:
. cease using key aspects of our technology that incorporate the
challenged intellectual property;
. make significant changes to the structure and operation of our business;
46
<PAGE>
. create new brands for our services and establish recognition of those
new brands;
. design around a third party's patent; or
. license technology from a third party.
Implementation of any of these alternatives could be costly and time-
consuming and might not be possible at all. Accordingly, an adverse
determination in any litigation to which we are a party would harm our
business.
Governmental Regulation
Overview
The services we provide are subject to regulation by various federal, state
and foreign governmental authorities. Federal and state laws may, for example,
mandate protection of consumer privacy and regulate online content generally.
The laws relating to our business and operations are evolving. A number of
legislative and regulatory proposals under consideration by federal, state,
local and foreign governments may lead to additional laws or regulations
concerning online content, user privacy, taxation, parental consent for access
by their minor children, access charges, liability for third-party activities,
bulk e-mail, or spam, encryption standards, online sales of goods and services,
domain name registration and use, copyright infringement and other intellectual
property issues. The adoption of new laws or the application of existing laws
may decrease the growth in the use of the Internet. As Internet financial
services activities grow, new laws and regulations adopted to cover these
activities could affect our operations. These results could decrease the demand
for our services or increase our cost of doing business, either of which would
harm our business.
Foreign Laws and Jurisdiction.
It is not clear the extent to which we are, or may in the future be, subject
to regulatory activity of foreign jurisdictions. We could be held to be subject
to the laws or regulations of foreign jurisdictions because of the location of
our members, our presence on the Internet or the impact or effects of our
operations. We could also be held subject to foreign laws or regulations
because of possible future activities that specifically target or are based in
other countries. The possible application of foreign laws and regulations could
include a wide range of subjects. The application of foreign laws and
regulations to Internet and online activity has only limited precedents abroad
and is an evolving area of law. It is not clear how existing foreign laws and
regulations might be applied to our activities.
Regulation of Content and Access; Membership Program
Prohibition and restriction of Internet content and access could dampen the
growth of Internet use, decrease the acceptance of the Internet as a
communications and commercial medium or expose us to liability. A variety of
restrictions on content and access, primarily relating to children, have been
enacted or proposed. The Children's Online Protection Act of 1998, for example,
prohibits, and imposes criminal penalties and civil liability on anyone engaged
in the business of, selling or transferring, by means of the World Wide Web,
material that is harmful to minors, unless access to this material is blocked
to persons under 17 years of age. However, some courts have found portions of
this act to be unconstitutional. In addition, the Federal Telecommunications
Act of 1996 imposes fines on any entity that knowingly permits any
telecommunications facility under its control to be used to make obscene or
indecent material available to minors via an interactive computer service.
Numerous states have adopted or are currently considering similar types of
legislation. In addition, laws have been proposed that would require Internet
service providers to supply, at cost, filtering technologies to limit or block
the ability of minors to access unsuitable materials on the Internet. Federal
and state consumer protection laws, including the Federal Trade Commission Act,
generally prohibit unfair or deceptive acts or practices and impose civil and
criminal liability for violations.
Because of these content restrictions and potential liability to us for
materials carried on or disseminated through our systems, we may be required to
implement measures to reduce our exposure to liability. These
47
<PAGE>
measures might require the expenditure of substantial resources or the
discontinuation of our product or service offerings that subject us to this
liability. In addition, our business model requires that we pay our members
cash for their Viewbar usage and that of their referrals. Any regulatory
challenge or limitation asserted or implied regarding these payments could
significantly harm our business. Further, we could incur substantial costs in
defending against any of these claims and we might be required to pay large
judgments or settlements or alter our business practices. In addition, our
liability insurance might not cover potential claims relating to the services
we provide or might not be adequate to indemnify us for all liabilities that
could be imposed on us.
User Privacy Issues
Internet user privacy has become an issue both in the United States and
abroad. The Federal Trade Commission has recently started a proceeding against
an Internet server regarding the manner in which personal information is
collected from users and provided to third parties. Some commentators, privacy
advocates and government bodies have recommended limitations on, or taken
actions to limit, the use of personal information by those collecting this
information. For example, the Children's Online Privacy Protection Act of 1998
and the regulations published by the Federal Trade Commission require, among
other things, that online operators obtain verifiable parental consent for the
collection, use or disclosure of personal information from children. We cannot
predict how courts and the Federal Trade Commission will interpret and apply
these new rules or whether we may need to make changes to our operations to
comply with them.
Congress has recently enacted the Gramm-Leach-Bliley Act, which contains
provisions protecting the privacy of consumer non-public personal information
collected by financial institutions. We may be deemed a financial institution
under the Gramm-Leach-Bliley Act. If so, we may be required to amend our
privacy policy and consumer authorizations and disclosures to comply with this
or other laws or regulations. Federal regulations implementing the statute are
being developed.
Rights in Member Data
Our ability to sell targeted advertising depends on our ability to use
personal information collected from our members. We collect, with member
consent, various forms of data from and about our members, and market or
otherwise use that data. Although we attempt to protect, based on trade secret
law, copyright law and license agreements, among other means, the information
we collect, we cannot be certain that these means will be sufficient to
maintain the integrity or value of information collected. Also, some of the
data that we obtain and use may be derived in part from information contained
on Web sites operated by other parties. Although we endeavor not to violate any
of the proprietary rights of others in collecting or obtaining this
information, the law relating to ownership of information contained on Web
sites and in electronic and online databases is still developing, and third
parties may assert claims against us based on this data acquisition. New laws
relating to the protection of information contained in databases have been
proposed and are under consideration in the United States and in foreign
countries. A new law could impose obstacles to our rights to collect data or
give rise to claims by third-party owners of data. It is not possible to
predict whether legislation will pass, what provisions it might contain, or the
scope of its possible impact on our business activities. We cannot assure you
that our current information collection procedures and disclosure policies will
be found to be in compliance with existing or future laws or regulations. Our
failure to comply with existing laws, including those of foreign countries, or
the adoption of new laws or regulations that require us to change the way we
conduct our business, could make it cost-prohibitive to operate our business,
and prevent us from pursuing our business strategies including the sale of
targeted advertising.
Internet Taxation
The tax treatment of activities on or relating to the Internet is currently
unsettled. A number of proposals have been made at the federal, state and local
levels, and by foreign governments, that could impose taxes on the online
purchase and sale of services and other Internet activities. The Internet Tax
Freedom Act of 1998 has generally imposed a moratorium through October 2001 on
the imposition of some kinds of consumer-related
48
<PAGE>
taxes, other than sales or use taxes, in connection with Internet access and
Internet-related sales in the United States. Future laws imposing taxes or
other regulations on commerce over the Internet could, however, substantially
impair the growth of Internet commerce and as a result make it cost-prohibitive
to operate our business.
The Workforce Investment Act of 1998
Section 508 of the Workforce Investment Act of 1998 requires that all Web
sites operated by a federal agency, as well as those operated by anyone doing
business with the federal government, modify their Web sites to make them
accessible to those who are handicapped. There are proposals to extend this act
to all Web sites, which could increase our costs and make our service less
attractive to the non-handicapped.
Employees
As of February 29, 2000, we had 473 employees, contract-to-hire personnel
and independent contractors--191 in sales and marketing, 68 in member services
and community, 139 in product development and information systems and
operations, and 75 in finance and administration. We have never had a work
stoppage, and no employees are represented under any collective bargaining
agreement. Our business and future success depend on the efforts and abilities
of our senior management and other key personnel and our ability to attract,
retain and motivate highly skilled technical, managerial, sales and marketing
personnel. Competition for qualified personnel is intense, particularly in our
location in Silicon Valley, California, due to a number of factors, including
the high concentration of established and emerging growth technology companies.
As a result, we may be unable to attract qualified personnel. We may also be
unable to retain the employees we currently employ.
Facilities
Our principal administrative, marketing and technology operations are
located in two facilities comprising 63,000 square feet in Hayward, California.
The lease for one of these spaces expires on December 31, 2000 and the lease
for the other space expires on December 31, 2001. As of February 29, 2000, we
also had leased facilities in Atlanta, Boston, Chicago, Dallas, Detroit,
London, Los Angeles, New York, Paris, San Francisco, Seattle and Washington
D.C. We have entered into a lease agreement for a 135,000 square foot facility
in South San Francisco, California, which will replace our current facilities
in Hayward, California. We expect to occupy the new facility in the first
quarter of 2001. We continually evaluate our facilities requirements, and
believe that we must lease additional facilities in the next 12 months to
accommodate our plans to expand our sales, marketing, media strategy and
technology organizations. We cannot assure you that these facilities will be
available on reasonable terms or at all.
Legal Proceedings
We are not a party to any material legal proceedings.
49
<PAGE>
MANAGEMENT
Executive Officers, Directors and Key Employees
Our executive officers, directors and key employees, and their ages and
positions as of February 29, 2000, were as follows:
<TABLE>
<CAPTION>
Name Age Position
---- --- --------
<C> <C> <S>
James R. Jorgensen.......... 51 President, Chief Executive Officer and
Chairman
Michael A. Depatie.......... 42 Chief Financial Officer
Oliver Brock................ 30 Chief Technology Officer
Johannes A. Pohle........... 30 Vice President Product Management and
Director
David W. Johnson............ 41 General Counsel
Carl T. Anderson............ 27 Vice President Corporate Development
David Beckman-Robertson..... 44 Vice President Sales
Tobin W. Trevarthen......... 39 Vice President Business Development
Mauro Calvi................. 44 Vice President International
Chad D. Balch............... 41 Vice President Product Development
Joseph M. Feliu............. 49 Chief Information Officer and Vice President
Operations
Raymond Everett-Church...... 30 Chief Privacy Officer and Vice President
Public Policy
Nicola C. Barrett........... 40 Vice President Media Strategy
David C. Martin............. 36 Vice President Business Intelligence
Nancy Myers Booth........... 48 Vice President Product Marketing
Bernie J. Murphy............ 34 Vice President Finance, Treasurer
David W. Pidwell............ 52 Director
John F. Shoch .............. 50 Director
Thomas Unterman............. 55 Director
Richard A. LeFurgy.......... 43 Director
William L. Burnham.......... 28 Director
Leslie G. Denend............ 59 Director
</TABLE>
James R. Jorgensen is a co-founder of AllAdvantage and has served as our
Chief Executive Officer and director of AllAdvantage since March 1999. From
August 1997 to September 1998, Mr. Jorgensen co-founded and served as Chief
Executive Officer and Chairman of the Board of Challenger Sports Corporation, a
children's sports training company where he continues to serve as Chairman of
the Board. From February 1995 to May 1996, Mr. Jorgensen co-founded and served
as Chairman of Qualtos Computer Corporation, a provider of 24/7 telephone
helpdesk services for individual and small business personal computer users.
From 1989 to 1992, Mr. Jorgensen co-founded and served as Chairman and CEO of
Discovery Zone, Inc., an indoor play center for children, until it merged
operations with Blockbuster Entertainment. Since its founding in 1978, Mr.
Jorgensen has served as Chief Executive Officer of Nottingham Financial
Corporation, a management consulting company instrumental in the creation and
management of start-ups in direct mail, advertising agencies, magazine
publishing, accounting, insurance and personal computer software, sales and
service. Mr. Jorgensen is a certified public accountant and holds a B.B.A. in
accounting and finance from the University of Wisconsin and an M.B.A. from
Stanford University.
Michael A. Depatie has served as our Chief Financial Officer since October
1999. From November 1996 to January 1999, he served as Executive Vice President
and Chief Financial Officer of Sunterra Corporation, a resort hotel developer
and operator and from October 1997 to December 1999 he served on the company's
Board of Directors. From July 1992 to August 1996, Mr. Depatie was Senior Vice
President of Finance and Chief Financing Officer of La Quinta Inns, Inc., a
hotel development and operating company. From 1989 to 1992, Mr. Depatie was co-
founder and Senior Vice President of Finance of Summerfield Hotel Corporation,
a hotel development and operating company. From 1988 to 1989, Mr. Depatie was
founder and Managing General
50
<PAGE>
Partner of Pacwest Capital Partners, a venture capital partnership. From 1984
to 1988, Mr. Depatie served as Senior Vice President of Finance and Development
of The Residence Inn Company, a division of Marriott International, Inc., which
is a hotel operating and development company. Mr. Depatie holds a B.A. in
business from Michigan State University and an M.B.A. from Harvard Business
School.
Oliver Brock is a co-founder of AllAdvantage, served as our Chief Technology
Officer since March 1999 and served as a director of AllAdvantage from March
1999 to June 1999. From September 1993 to November 1999, Dr. Brock continuously
was engaged in post-graduate and doctoral work in the computer science
department at Stanford University, where he was involved in the development of
robotic motion technologies as well as algorithmic robotics and geometric
problems related to motion. From 1988 to 1993, Dr. Brock attended the Technical
University of Berlin. From 1984 to 1989, Dr. Brock served as general manager at
a billing management firm and at Rasta's Delight, a snowboard manufacturing
company. Dr. Brock holds a Diploma in computer science from the Technical
University of Berlin, an M.S. in computer science from Stanford University and
a Ph.D. in computer science from Stanford University.
Johannes A. Pohle is a co-founder of AllAdvantage and has served as our Vice
President Product Management and as a director since March 1999. From September
1996 to June 1998, Mr. Pohle attended the Graduate School of Business at
Stanford University. From December 1995 to September 1996, Pohle served as
Deputy CEO and Vice Chairman of the Board for Grupo Frio, a frozen foods
distributor in Mexico. From August 1994 to December 1995, Mr. Pohle served as
lead consultant for Booz, Allen & Hamilton, a management consulting company.
Mr. Pohle holds a B.S. in mechanical engineering from Northwestern University,
an M.S. in mechanical engineering from Stanford University and an M.B.A. from
Stanford University.
David W. Johnson has served as our General Counsel since September 1999.
From November 1996 to August 1999, Mr. Johnson was of counsel to Fenwick & West
LLP, a technology law firm. From September 1991 to October 1996, Mr. Johnson
did post doctoral work and taught at Stanford Law School. Mr. Johnson holds an
A.B. in political science from Carleton College, a J.D. from the University of
Miami, and is a J.S.D. candidate at Stanford Law School.
Carl T. Anderson is a co-founder of AllAdvantage and has served as our Vice
President Corporate Development since December 1999, as Vice President Business
Development from March 1999 to December 1999, and served as a director of
AllAdvantage from March 1999 to June 1999. From September 1997 to June 1999,
Mr. Anderson attended the Graduate School of Business at Stanford University.
From July 1995 to February 1997, Mr. Anderson worked as an Analyst in the
Mergers and Acquisitions Department for Gleacher & Co., an investment banking
firm. Mr. Anderson holds an A.B. in economics from Princeton University and an
M.B.A. from Stanford University.
David Beckman-Robertson has served as our Vice President Sales since August
1999. From August 1998 to August 1999, Mr. Beckman-Robertson served as Vice
President of CNN Interactive Sales for Time Warner, an entertainment,
communications and media company. From January 1992 to July 1998, Mr. Beckman-
Robertson served as sales manager for Turner Broadcasting, an entertainment,
communications and media company. From 1990 to 1992, Mr. Beckman-Robertson
worked in promotions for Valassis Inserts, a marketing and promotional company.
From 1984 to 1990, Mr. Beckman-Robertson worked on network and cable sports
sales for Capital Cities/ABC, an entertainment, communications and media
company. From 1979 to 1984, Mr. Beckman-Robertson worked in sales for Cox
Broadcasting, an entertainment, communications and media company. Mr. Beckman-
Robertson holds a B.A. in television and film from Northwestern University.
Tobin W. Trevarthen has served as our Vice President Business Development
since January 2000. From June 1993 to December 1999, Mr. Trevarthen served as
Corporate Sales Director for the Time Inc. division of Time Warner. From 1991
to 1993, Mr. Trevarthen served as Senior Marketing Manager for Meredith
Corporation, a publishing company. From 1987 to 1991, Mr. Trevarthen served as
Midwest Sales Manager for USA Weekend, a division of Gannet Corporation, a
media company. In May 1994, Mr. Trevarthen co-founded The Paradigm Network, a
technology, media and entertainment convergence group in Los Angeles.
Mr. Trevarthen holds a B.A. in advertising from Michigan State University.
51
<PAGE>
Mauro Calvi has served as our Vice President International since December
1999. From 1998 to 1999, Mr. Calvi served as President of Telecom Italia
Ventures, a foreign branch office of Telecom Italia, a telecommuncations
company, and served on the boards of Stream SpA, Italy's second largest pay
television network, Protozoa Inc., a developer of live character animation
software for Web publishers, and Cygent Inc., a developer of electronic
commerce applications for the telecommunications industry. From 1991 to 1997,
Mr. Calvi worked at Microsoft Corporation, a computer software company. During
his tenure there, Mr. Calvi served from 1993 to 1997 as Lead Product Manager
where he was responsible for the international strategy, product planning and
marketing of The Microsoft Network from its inception and, from 1991 to 1993,
as Program Manager for the Product Support Services Division. From 1990 to
1991, Mr. Calvi served as International Product Manager for Ashton-Tate, a
developer of database language compilers. Mr. Calvi holds an M.S. in electrical
engineering from the Politecnico di Milano, Italy.
Chad D. Balch has served as our Vice President Product Development since May
1999. From December 1997 to April 1999, Dr. Balch was a self-employed technical
consultant in software development, working with start-up companies. From
February 1996 to October 1996, Dr. Balch worked as Manager of Motion Technology
for Parametric Technology Corporation, a developer of software products, where
he was in charge of core development for mechanism simulation software. From
September 1992 to February 1996, Dr. Balch served as Manager, Product
Development for Rasna Corporation, a producer of design and analysis software
for engineers. From July 1980 to February 1983, Dr. Balch worked as a research
associate at the GWU/NASA Joint Institute for the Advancement of Flight
Sciences at NASA-Langley Research Center, an aerospace technology government
facility. Dr. Balch holds a B.A. in physics from Harvard University, an M.S. in
mechanical engineering from George Washington University, and a Ph.D. in
aeronautical sciences from Stanford University.
Joseph M. Feliu has served as our Chief Information Officer and Vice
President Operations since May 1999. From August 1997 to August 1999, Mr. Feliu
served as Director of Information Technology at Integrated Device Technology, a
semiconductor manufacturer. From March 1996 to August 1997, Mr. Feliu served as
Senior Director of Information Technology at Applied Materials, Inc., a
semiconductor equipment manufacturer. In these positions, Mr. Feliu was
responsible for the operations of these companies' global information
technology infrastructure. From May 1981 to February 1996, Mr. Feliu held
several director-level positions in operations and information technology for
the United States Postal Service. In January 1994, Mr. Feliu was elected as
Chairman of the Northern California Chapter of the Society for Information
Management an association of senior information technology executives. Mr.
Feliu holds a B.S. in mathematics from Manhattan College and an M.S. in
operations research from George Washington University.
Raymond B. Everett-Church has served as our Chief Privacy Officer and Vice
President Public Policy since August 1999. From November 1998 to August 1999,
Mr. Everett-Church served as an Associate with Haley Bader & Potts, a
technology law firm. Since 1996, Mr. Everett-Church has served as a technology
policy advocate and lobbyist on issues of privacy and anti-spam. Mr. Everett-
Church serves as an ad hoc advisor to the Internet Service Provider Security
Consortium of the International Computer Security Association, a computer
security research organization, as a member of the Congressional Internet
Caucus' Advisory Committee for the 106th U.S. Congress, and as a Fellow with
the Internet Telecommunications Project, an association advocating greater
involvement by Internet service providers in the political process. In April
1999, Mr. Everett-Church was a founding board member of Whitehat.com, a
permission-based email marketing service bureau. In March 1997, Mr. Everett-
Church was a founding board member of the Coalition Against Unsolicited
Commercial Email, a coalition of businesses advocating laws against unsolicited
email. From August 1994 to November 1998, Mr. Everett-Church was a self-
employed technology management and Internet consultant and attended George
Washington School of Law from August 1994 to May 1997. From November 1992 to
June 1994, Mr. Everett-Church served as an Information Specialist with the
American Immigration Lawyers Association, a society for immigration lawyers.
Mr. Everett-Church holds a B.A. from George Mason University and a J.D. from
George Washington University School of Law.
Nicola C. Barrett has served as our Vice President Media Strategy since
November 1999. From July 1995 to November 1999, Ms. Barrett worked at Ernst &
Young LLP, an accounting firm. During her tenure there,
52
<PAGE>
Ms. Barrett served from October 1997 to November 1999 as Senior Manager,
Strategic Services Development, where she focused on developing new service and
business opportunities. From July 1995 to October 1997, Ms. Barrett served as
Manager, National Planning where she advised executive management on strategic
business issues. From 1994 to 1995, Ms. Barrett was a management consultant at
Bankers Trust, a bank, and from 1981 to 1992 worked at IBM Australia, a
computer technology company, where she held a number of sales, marketing and
management positions. Ms. Barrett holds a B.Ru.Sci. honors degree from the
University of New England, Australia and a M.M. from the Kellogg Graduate
School of Management at Northwestern University.
David C. Martin has served as our Vice President Business Intelligence since
January 2000. From April 1995 to December 1999, Mr. Martin worked for
International Business Machines Corporation, a computer technology company,
where he most recently served as development executive for global business
intelligence solutions. During his tenure at International Business Machines
Corporation, Mr. Martin also served as a senior development manager for
net.Mining Solutions and as an information technology specialist. From
September 1992 to April 1995, Mr. Martin worked as assistant director for
innovative software systems for University of California at San Francisco
Library and Center for Knowledge Management. From 1991 to 1992, Mr. Martin
worked as senior systems scientist for Molecular Simulations, Inc., a
computational science company. Mr. Martin holds a B.A. in interdisciplinary
science from the University of California at Berkeley and an M.S. in computer
science from the University of Wisconsin at Madison.
Nancy Myers Booth has served as our Vice President Product Marketing since
July 1999. From September 1996 to July 1999, Ms. Booth served as a marketing
and advertising consultant with Kensington Technology Group, a computer
accessories company, specializing in product positioning and new product
development. From January 1996 to August 1996, Ms. Booth was self-employed as a
consultant. From January 1992 to December 1995, Ms. Booth lived outside the
United States and was not employed. From 1990 to 1991, Ms. Booth served as Vice
President at Young & Rubicam, an advertising agency. From 1983 to 1989, Ms.
Booth worked at Foote Cone & Belding, an advertising agency where she served as
Vice President, Management Supervisor from 1987 to 1989, as Account Supervisor
from 1985 to 1987 and as Account Executive from 1983 to 1985. In addition, Ms.
Booth has held marketing positions at General Mills. Ms. Booth holds a B.S. in
Consumer Food Science from the University of California at Davis and an M.B.A.
from the University of California at Berkeley.
Bernie J. Murphy has served as our Vice President Finance, Treasurer since
December 1999. From June 1996 to December 1999, Mr. Murphy held various
positions at QuadraMed Corporation, a health care information systems company.
From February 1998 to December 1999, he served as QuadraMed's Vice President,
Finance and Chief Accounting Officer and, from June 1996 to February 1998, as
Corporate Controller. From July 1988 to June 1996, Mr. Murphy worked at Arthur
Andersen LLP, an accounting firm, where he served in various positions from
July 1988 to August 1993 and as manager in the business advisory practice from
September 1993 until June 1996. Mr. Murphy holds a B.S. in Business
Administration from the University of San Francisco and is a certified public
accountant.
David W. Pidwell has served as a director of AllAdvantage since June 1999.
Since January 1996, Mr. Pidwell has served as a venture partner with Alloy
Ventures, a venture capital firm. Mr. Pidwell serves on the boards of directors
of Informatica Corporation and several private companies, including eTranslate,
RAINfinity and Made To Order.com. From January 1987 to January 1996, Mr.
Pidwell served as Chief Executive Officer and President of Rasna Corp, a
mechanical design automation software company that he founded. Mr. Pidwell
holds a B.S. in electrical engineering and a M.S.I.S.E. in computer systems
engineering from Ohio University.
John F. Shoch has served as a director of AllAdvantage since June 1999. Dr.
Shoch serves as a general partner with Alloy Ventures, a venture capital firm.
From October 1985 until December 1995, Dr. Shoch was a general partner with
Asset Management Company, a venture capital firm. From 1971 until 1985, Dr.
Shoch held various positions with Xerox Corporation, a document production
company, initially at the Palo Alto Research Center and ultimately as President
of Xerox's Office Systems Division. Dr. Shoch is a director of Remedy,
Conductus and several private companies, including BoldFish, InterSurvey,
Kasenna, MontaVista,
53
<PAGE>
Network Elements, PostX, UpShot and Zing. Dr. Shoch holds a B.A. in political
science from Stanford University, an M.S. in computer science from Stanford
University, and a Ph.D. in computer science from Stanford University. Dr. Shoch
is the designated representative of entities associated with Alloy Ventures
1998, LLC, which have a contractual right to nominate one member of the board
of directors under a voting agreement with holders of a majority of our capital
stock. This voting agreement will terminate upon the closing of this offering.
Thomas Unterman has served as a director of AllAvantage since September
1999. Mr. Unterman serves as the Chief Executive Officer and a Partner of the
Rustic Canyon Group, the general partner and the Manager of TMCT Ventures, a
venture capital investment firm, both of which are affiliated with Times
Mirror, a media and publications company. Mr. Unterman held various other
positions at Times Mirror including Vice President and General Counsel from
1992 to 1994, Senior Vice President and General Counsel in 1995, then Senior
Vice President and Chief Financial Officer in 1995, and Executive Vice
President and Chief Financial Officer from January 1998 to December 1999. Prior
to Times Mirror, Mr. Unterman was a partner at two law firms, Morrison &
Foerester and Orrick, Herrington and Sutcliffe. Mr. Unterman is a member of the
board of directors of Ticketmaster Online-City Search, Big Entertainment and
several privately-held companies. Mr. Unterman holds a A.B. in public affairs
from Princeton University and a J.D. from the University of Chicago. Mr.
Unterman is the designated representative of TMCT Ventures, which has a
contractual right to nominate one member of the board of directors under a
voting agreement with holders of a majority of our capital stock. This voting
agreement will terminate upon the closing of this offering.
Richard A. LeFurgy has served as a director of AllAdvantage since September
1999. Mr. LeFurgy is a Partner with WaldenVC, a venture capital firm. From June
1995 to August 1998, Mr. LeFurgy was a Senior Vice President of Sales at
Starwave, an online media company that was acquired by Disney in 1998. From
June 1978 to May 1995, Mr. LeFurgy was a director and an Executive Vice
President and Senior Partner of NW Ayer & Partners, an advertising agency. Mr.
LeFurgy was a Founder of the Internet Advertising Bureau, a non-profit
association, and is its Chairman. Mr. LeFurgy also serves on the board of the
Advertising Research Foundation and the Advertising Educational Foundation. Mr.
LeFurgy is a director of Snowball.com, an Internet media company, and Lot 21,
an online advertising agency. He received his B.S. in advertising from Syracuse
University. Mr. LeFurgy is the designated representative of Walden Media and
Information Technology Fund L.P., which has a contractual right to nominate one
member of the board of directors under a voting agreement with holders of a
majority of our capital stock. This voting agreement will terminate upon the
closing of this offering.
William L. Burnham has served as a director of AllAdvantage since February
2000. Since August 1999, Mr. Burnham has been managing director of SOFTBANK
Capital Partners L.P., a venture capital investment partnership. From July 1998
to August 1999, Mr. Burnham was a Vice President of Credit Suisse First Boston
Corporation, an investment bank. From May 1998 to July 1998, Mr. Burnham served
as a Vice President at Deutsche Morgan Grenfell, an investment bank, and from
April 1997 to May 1998, he served as a Vice President at US Bancorp Piper
Jaffray, an investment bank. From August 1993 to March 1997, Mr. Burnham served
as a Senior Associate at Booz Allen & Hamilton, a management consulting
company. Mr. Burnham is a director of Buy.com Inc., an Internet retailer. Mr.
Burnham holds an A.B. in political science from Washington University. Mr.
Burnham is the designated representative of SOFTBANK Capital Partners L.P.,
which has a contractual right to nominate one member of the board of directors
under a voting agreement with holders of a majority of our capital stock. This
voting agreement will terminate upon the closing of this offering.
Leslie G. Denend has served as a director of AllAdvantage since March 2000.
Mr. Denend also serves as a Director of Rational Software Corporation, Proxim
Corporation, Network Associates Corporation, Informix Corporation, United
States Automobile Association (USAA) and Adaptive Broadband Corporation. From
December 1997 to May 1998, Denend served as President of Network Associates
Corporation, a software company created upon the merger of Network General
Corporation and McAfee Associates, Inc. From June 1993 to December 1997, Mr.
Denend served as President and Chief Executive Officer of Network General
Corporation, a network software company. Mr. Denend holds a B.S. in engineering
from the U.S. Air Force Academy, an M.B.A from Stanford University and a Ph.D.
in Economics from Stanford University.
54
<PAGE>
Board Composition
Our bylaws currently provide for a board of directors consisting of eight
members. The term of each of our current directors will expire at the next
annual meeting of stockholders. Commencing at the first annual meeting of
stockholders following the date on which we first have at least 800
stockholders, the board of directors will be divided into three classes,
serving staggered three-year terms: Class I, whose term will expire at the
first annual meeting of stockholders following the annual meeting of
stockholders when we first have at least 800 stockholders; Class II, whose term
will expire at the second annual meeting of stockholders following the annual
meeting of stockholders when we first have at least 800 stockholders; and Class
III, whose term will expire at the third annual meeting of stockholders
following the annual meeting of stockholders when we first have at least 800
stockholders. As a result, only one class of directors will be elected at each
annual meeting of stockholders, with the other classes continuing for the
remainder of their respective terms. Messrs. Shoch and Unterman have been
designated as Class I directors; Messrs. Burnham, Denend and Pohle have been
designated as Class II directors; and Messrs. Jorgensen, Pidwell and LeFurgy
have been designated as Class III directors. We do not expect to have 800 or
more stockholders immediately after this offering.
Board Committees
The audit committee consists of Messrs. Shoch, Unterman and Burnham. The
audit committee:
. reviews our financial statements and accounting practices;
. makes recommendations to the board of directors regarding the selection
of independent auditors; and
. reviews the results and scope of the audit and other services provided
by our independent auditors.
The compensation committee consists of Messrs. LeFurgy and Pidwell. The
compensation committee:
. reviews and recommends to the board of directors the compensation and
benefits of all officers, directors and consultants of AllAdvantage; and
. reviews general policy relating to compensation and benefits.
The board of directors currently administers the issuance of stock options
and other awards under the 1999 equity incentive plan and 2000 equity incentive
plan of our California predecessor and our 2000 equity incentive plan and our
2000 employee stock purchase plan.
Compensation Committee Interlocks and Insider Participation
None of the members of our compensation committee has at any time been an
officer or employee of AllAdvantage. For a description of transactions between
AllAdvantage and members of the compensation committee or entities affiliated
with them, see "Related Party Transactions." None of our executive officers
serves as a member of the board of directors or compensation committee of any
entity that has one or more executive officers serving as a member of our board
of directors or compensation committee.
Change of Control Arrangements
Mr. Jorgensen and Messrs. Depatie, Johnson, Pohle and Anderson, whom we
anticipate will be executive officers named in our summary compensation table
in future years, have each purchased shares of common stock or received options
to purchase common stock subject to agreements providing for accelerated
vesting under specified circumstances following a change in control of
AllAdvantage. With respect to Mr. Jorgensen, upon a change in control
transaction followed within nine months by a termination of employment meeting
specified conditions, vesting will accelerate as to any unvested portion of the
7,333,336 shares of common stock that he holds. With respect to Mr. Pohle, upon
a change in control transaction followed within nine months by a termination of
employment meeting specified conditions, vesting will accelerate as to any
unvested portion of the 7,333,332 shares of common stock that he holds. With
respect to Mr. Anderson, upon a change
55
<PAGE>
in control transaction followed within nine months by a termination of
employment meeting specified conditions, vesting will accelerate as to any
unvested portion of the 6,435,017 shares of common stock that he holds. With
respect to Mr. Depatie, upon a change in control transaction followed within 12
months by a termination of employment meeting specified conditions, vesting
will accelerate as to an additional 175,000 shares subject to the stock option
granted to him. With respect to Mr. Johnson, upon a change in control
transaction followed within 12 months by a termination of employment meeting
specified conditions, vesting will accelerate as to an additional 50,000 shares
subject to the stock option granted to him. However, this acceleration in
vesting for Mr. Johnson will not occur, subject to limited exceptions, if
AllAdvantage undergoes, or agrees to undergo, a change in control transaction
on or before May 15, 2000.
Director Compensation
Directors of AllAdvantage do not receive cash compensation for their
services as directors, but are reimbursed for their reasonable and necessary
expenses for attending board and board committee meetings. All board members
are eligible to receive stock options pursuant to the discretionary option
grant program in effect under the 1999 equity incentive plan and 2000 equity
incentive plan of our California predecessor and under our 2000 equity
incentive plan.
In July 1999, David W. Pidwell was granted an option to purchase 200,000
shares of common stock under the 1999 equity incentive plan of our California
predecessor. This option was exercised in full in November 1999, but the shares
purchased are subject to our right of repurchase, which lapses with respect to
25% of the shares in July 2000 and 2.083% of the shares each month thereafter.
In February 2000, Richard LeFurgy was granted an option to purchase 15,000
shares of common stock at an exercise price per share of $6.05 under the 2000
Equity Incentive plan of our California predecessor. This option becomes
exercisable with respect to 25% of the shares in February 2001 and with respect
to 2.083% of the shares each month thereafter. In March 2000, Leslie G. Denend
was granted an option to purchase 15,000 shares of common stock at an exercise
price per share of $9.00 under the 2000 equity incentive plan of our California
predecessor. This option becomes exercisable with respect to 25% of the shares
in March 2001 and with respect to 2.083% of the shares each month thereafter.
Each eligible director who is not our employee and who is or becomes a
member of our board will be automatically granted an option to purchase 10,000
shares of common stock under our 2000 equity incentive plan, unless that
director has previously received an option grant. Immediately following each
annual meeting of stockholders, each eligible director will automatically be
granted an option to purchase 10,000 shares of common stock under our 2000
equity incentive plan, provided that the director is a member of the board on
that date and has served continuously as a member of the board for a period of
at least one year since the date of the director's initial grant. All options
will have an exercise price equal to the fair market value of our common stock
on the date of grant. The options will have ten-year terms and will terminate
three months after the date the director ceases to be one of our directors or
consultants or 12 months after any termination due to death or disability.
Options granted under the plan will generally vest over four years. Any
unvested shares subject to these options will become fully vested and
exercisable upon a transaction that results in a change in our control.
56
<PAGE>
Executive Compensation
The following table shows all compensation awarded to, earned by or paid for
services rendered to AllAdvantage by our chief executive officer in 1999. None
of our executive officers or former executive officers earned compensation in
excess of $100,000 in 1999.
Summary Compensation Table
<TABLE>
<CAPTION>
Name and Principal Position Annual Compensation
- --------------------------- -------------------
Salary
------
<S> <C>
James R. Jorgensen......................................... $65,000(1)
Chief Executive Officer, President and Chairman
</TABLE>
- --------
(1) Represents salary from the formation of AllAdvantage in March 1999 through
December 1999. Mr. Jorgensen's salary for 2000 is $175,000.
We currently employ the following executive officers who we anticipate will
be named in the summary compensation table in future years. Those executives
are Michael A. Depatie, with an annual salary of $175,000 in 2000, David W.
Johnson, with an annual salary of $150,000 in 2000, Johannes A. Pohle, with an
annual salary of $120,000 in 2000 and Carl T. Anderson, with an annual salary
of $120,000 in 2000.
Option Grants
The following table shows information about each stock option granted from
our inception in March 1999 through February 2000 to our chief executive
officer and the executive officers who we anticipate will be named in the
summary compensation table in future years.
<TABLE>
<CAPTION>
Potential Realizable
Value of Assumed
Number of Annual Rates of Stock
Securities Percentage Exercise Price Appreciation for
Underlying of Total Price Option Term(2)
Options Options Per Expiration ----------------------
Name Granted Granted(1) Share Date 5% 10%
---- ---------- ---------- -------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C>
James R. Jorgensen...... -- -- -- -- -- --
Michael A. Depatie...... 700,000(3) 3.8% $0.75 Nov. 2009 $9,737,036 $15,815,578
David W. Johnson........ 170,000(3) 0.9 0.18 Sep. 2009 2,461,609 3,937,826
David W. Johnson........ 30,000(4) 0.2 6.05 Feb. 2010 258,302 518,810
Johannes A. Pohle....... -- -- -- -- -- --
Carl T. Anderson........ -- -- -- -- -- --
</TABLE>
- --------
(1) Represents percentage of the 18,306,291 options granted from inception in
March 1999 through February 2000.
(2) Potential realizable values are computed by (a) multiplying the number of
shares of common stock subject to a given option by an assumed initial
public offering price of $9.00 per share, (b) assuming that the aggregate
stock value derived from that calculation compounds at the annual 5% or 10%
rates shown in the table for the entire ten year term of the option, and
(c) subtracting from that result the aggregate option exercise price. The
5% and 10% assumed annual rates of compounded stock price appreciation in
the table above are required by the rules of the Securities and Exchange
Commission and do not represent our estimates or projections of our future
stock prices.
(3) This option is immediately exercisable, but the shares issued upon exercise
are subject to our right of repurchase, which lapses with respect to 25% of
the shares after one year and 2.083% of the shares each month thereafter.
(4) This option becomes exercisable with respect to 25% of the shares after one
year and 2.083% of the shares each month thereafter.
57
<PAGE>
Option Exercises in Last Fiscal Year
The following table presents the number of shares acquired and the value
realized upon exercise of stock options during the fiscal year ended December
31, 1999 and the number of shares of our common stock subject to "exercisable"
and "unexercisable" stock options held as of December 31, 1999 by our chief
executive officer and each of our other executive officers who we anticipate
will be named in the summary compensation table in future years. Also presented
are values of "in-the-money" options, which represent the positive difference
between the exercise price of each outstanding stock option and an assumed
initial public offering price of $9.00 per share. Each of the options granted
to Messrs. Depatie and Johnson in the fiscal year ended December 31, 1999 and
discussed below was immediately exercisable, but the shares issued upon
exercise are subject to our right of repurchase, which lapses with respect to
25% of the shares after one year and 2.083% of the shares each month
thereafter.
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised In-
Number of Underlying Unexercised the-Money Options at
Shares Options at December 31, 1999 December 31, 1999
Acquired on Value ---------------------------- -------------------------
Name Exercise(1) Realized(2) Exercisable(3) Unexercisable Exercisable Unexercisable
- ---- ----------- ----------- -------------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
James R. Jorgensen...... -- $ -- -- -- $ -- $ --
Michael A. Depatie...... 133,333 1,099,997 566,667 -- 4,675,003 --
David W. Johnson........ 170,000 1,499,400 -- -- -- --
Johannes A. Pohle....... -- -- -- -- -- --
Carl T. Anderson........ -- -- -- -- -- --
</TABLE>
- --------
(1) Of these shares the following numbers were vested as of December 31, 1999:
Michael A. Depatie -- no shares; David W. Johnson -- no shares.
(2) The amount set forth represents the difference between the fair market
value of the underlying common stock at December 31, 1999, using an assumed
initial public offering price of $9.00 per share as the fair market value,
and the exercise price of the option.
(3) Of the shares issuable upon exercise of these options, the following
numbers were vested as of December 31, 1999: Michael A. Depatie -- no
shares.
Employee Benefit Plans
1999 Equity Incentive Plan of our California Predecessor
The 1999 equity incentive plan of our California predecessor was adopted by
its board of directors in April 1999. As of December 31, 1999, 4,498,133 shares
of common stock had been purchased pursuant to the exercise of options granted
under this plan, options to purchase a total of 10,484,233 shares of common
stock with a weighted-average exercise price of $0.69 were outstanding under
this plan, and 217,634 shares remained available for future grants of options
under this plan. From January 1, 2000 through February 29, 2000, 915,350 shares
of common stock were purchased pursuant to the exercise of options granted
under this plan and options to purchase 25,175 shares of common stock with a
weighted-average exercise price of $6.05 were granted under this plan, leaving
192,459 shares available for future grants under this plan. No further options
will be granted under this plan following this offering. All outstanding
options granted under this plan will remain outstanding and subject to the
terms of this plan and relevant stock option agreements until they are
exercised, or until they terminate or expire by their terms. Under this plan,
upon a change in control of AllAdvantage though a merger or sale of assets, if
stock options and restricted stock awards are not assumed or substituted with
similar consideration by the successor or acquiring corporation, then the stock
options and restricted stock awards will terminate.
2000 Equity Incentive Plan of our California Predecessor
The 2000 equity incentive plan of our California predecessor was adopted by
its board of directors in January 2000. As of February 29, 2000, no shares of
common stock had been purchased pursuant to the
58
<PAGE>
exercise of options granted under this plan, options to purchase a total of
2,737,750 shares of common stock with a weighted-average exercise price of
$6.05 were outstanding under this plan, and 4,623,567 shares remained available
for future grants under this plan. No further options will be granted under
this plan following this offering. All outstanding options granted under this
plan will remain outstanding and subject to the terms of this plan and relevant
stock option agreements until they are exercised, or until they terminate or
expire by their terms. Under this plan, upon a change in control of
AllAdvantage though a merger or sale of assets, if stock options and restricted
stock awards are not assumed or substituted with similar consideration by the
successor or acquiring corporation, then the stock options and restricted stock
awards will terminate.
2000 Equity Incentive Plan
Our 2000 equity incentive plan will become effective on the date of this
prospectus and will serve as the successor to the 1999 equity incentive plan
and 2000 equity incentive plan of our California predecessor. We have reserved
20,000,000 shares of common stock for issuance under this plan. Our 2000 equity
incentive plan authorizes the award of options, restricted stock awards and
stock bonuses. The number of shares reserved for issuance under this plan will
be increased to include:
. any shares reserved under the 1999 equity incentive plan or 2000 equity
incentive plan of our California predecessor not issued or subject to
outstanding grants on the date of this prospectus;
. any shares issued under the 1999 equity incentive plan or 2000 equity
incentive plan of our California predecessor that are repurchased by us
at the original purchase price; and
. any shares issuable upon exercise of options granted under the 1999
equity incentive plan or 2000 equity incentive plan of our California
predecessor that expire or become unexercisable without having been
exercised in full.
The number of shares reserved under this plan will be increased
automatically on January 1 of each year by an amount equal to 5% of our total
outstanding shares on the day before.
The following shares will again become available for grant and issuance
under our 2000 equity incentive plan:
. shares issuable upon exercise of an option granted under this plan that
is terminated or cancelled before it is exercised;
. shares issued upon exercise of an option granted under this plan that
are subsequently repurchased by us at the original purchase price;
. shares subject to awards granted under this plan that are subsequently
forfeited or repurchased by us at the original issue price; and
. shares subject to stock bonuses granted under this plan that otherwise
terminate without shares being issued.
No person will be eligible to receive more than 10,000,000 shares in any
calendar year under this plan. This plan is administered by the compensation
committee of our board of directors, all members of which are "outside
directors" as defined under applicable federal tax laws. The committee has the
authority to interpret this plan and any agreement made under the plan, grant
options, awards and stock bonuses and make all other determinations for the
administration of this plan. Also, our non-employee directors are entitled to
receive automatic annual grants of options to purchase shares of our common
stock, as described under "Management--Director Compensation."
Our 2000 equity incentive plan provides for the grant of both incentive
stock options that qualify under Section 422 of the Internal Revenue Code and
nonqualified stock options. Incentive stock options may be granted only to
employees. Nonqualified stock options, and all other awards other than
incentive stock options,
59
<PAGE>
may be granted to employees, officers, directors, consultants, independent
contractors and advisors of AllAdvantage or a parent or subsidiary of
AllAdvantage. However, consultants, independent contractors and advisors are
only eligible to receive awards if they render bona fide services not in
connection with the offer and sale of securities in a capital-raising
transaction.
The exercise price of incentive stock options must be at least equal to the
fair market value of the underlying common stock on the date of grant. The
exercise price of incentive stock options granted to 10% stockholders must be
at least equal to 110% of that value, and the exercise price of nonqualified
stock options must be at least equal to 85% of that value. Options may be
granted that are exercisable only as they vest or may be immediately
exercisable with the shares issued subject to our right of repurchase that
lapses as the shares vest. In general, options will vest over a four-year
period. The maximum term of options granted under our 2000 equity incentive
plan is ten years. Awards granted under this plan may not be transferred in any
manner other than by will or by the laws of descent and distribution and may be
exercised during the lifetime of the optionee only by the optionee. The
compensation committee may allow exceptions to this restriction with respect to
awards that are not incentive stock options. Options granted under our 2000
equity incentive plan generally expire three months after the termination of
the optionee's service to AllAdvantage or a parent or subsidiary of
AllAdvantage. In the event of a dissolution, liquidation or change in control
of AllAdvantage, if the successor does not assume the options, they will expire
upon conditions determined by the compensation committee. Alternatively, the
compensation committee may accelerate the vesting of awards upon a change in
control of AllAdvantage. This plan will terminate in 2010, unless it is
terminated earlier pursuant to its terms.
2000 Employee Stock Purchase Plan
Our 2000 employee stock purchase plan will become effective on the first day
on which price quotations are available for our common stock on the Nasdaq
National Market. We have initially reserved 600,000 shares of common stock for
issuance under this plan. The number of shares reserved for issuance under our
2000 employee stock purchase plan will be increased automatically on January 1
of each year by an amount equal to 1% of our total outstanding shares on the
day before. Our board of directors or compensation committee may reduce the
amount of the increase in any particular year.
Our compensation committee will administer our 2000 employee stock purchase
plan. Employees generally will be eligible to participate in our 2000 employee
stock purchase plan if they are employed by AllAdvantage, or any subsidiaries
that AllAdvantage designates, for more than 20 hours per week and more than
five months in a calendar year. Employees are not eligible to participate in
our 2000 employee stock purchase plan if they are 5% stockholders, or would
become 5% stockholders as a result of their participation in this plan. Under
our 2000 employee stock purchase plan, eligible employees may acquire shares of
our common stock through payroll deductions. Eligible employees may select a
rate of payroll deduction between 1% and 15% of their cash compensation and are
subject to maximum purchase limitations. Participation in this plan will end
automatically upon termination of employment for any reason. A participant will
not be able to purchase shares having a fair market value of more than $25,000,
determined as of the first day of the applicable offering period, for each
calendar year in which the employee participates in this plan.
Each offering period under this plan will be for two years and will consist
of four six-month purchase periods. The first offering period is expected to
begin on the first business day on which price quotations for our common stock
are available on the Nasdaq National Market. The first purchase period may be
more or less than six months long. Offering periods thereafter will begin on
February 1 and August 1. The purchase price for common stock purchased under
this plan will be 85% of the lesser of the fair market value of our common
stock on the first day of the applicable offering period or the last day of
each purchase period. The compensation committee will have the power to change
the offering dates, the purchase dates and the duration of offering periods.
Our 2000 employee stock purchase plan is intended to qualify as an employee
stock purchase plan under Section 423 of the Internal Revenue Code. This plan
will terminate in 2010, unless it is terminated earlier pursuant to its terms.
60
<PAGE>
401(k) Plan
We sponsor a defined contribution plan intended to qualify under Section 401
of the Internal Revenue Code. Participants may make pre-tax contributions to
the plan of up to 25% of their eligible earnings, subject to a statutorily
prescribed annual limit, which is $10,500 in 2000. Contributions by the
participants to the 401(k) plan, and the earnings on these contributions, are
generally not taxable to the participants until withdrawn. Participants are
fully vested in their contributions and the earnings on these contributions.
Contributions are held in trust as required by law. Individual participants may
direct the trustee to invest their accounts in authorized investment
alternatives.
Limitation of Liability and Indemnification of Directors and Executive Officers
Our certificate of incorporation includes a provision that eliminates the
personal liability of a director for monetary damages resulting from breach of
his fiduciary duty as a director, except for liability:
. for any breach of the director's duty of loyalty to AllAdvantage or its
stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
. for any transaction from which the director derived an improper personal
benefit.
Our bylaws provide that:
. we are required to indemnify our directors and officers to the fullest
extent permitted by the Delaware General Corporation Law, subject to
limited exceptions where indemnification is not permitted by applicable
law;
. we are required to advance expenses, as incurred, to our directors and
executive officers in connection with a legal proceeding to the fullest
extent permitted by the Delaware General Corporation Law, subject to
limited exceptions; and
. the rights conferred in the bylaws are not exclusive.
In addition to the indemnification required in our certificate of
incorporation and bylaws, before the completion of this offering, we intend to
enter into indemnity agreements with each of our current directors and
officers. These agreements will provide for the indemnification of our 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 AllAdvantage. We also intend to obtain directors' and
officers' insurance to cover our directors, officers and some of our employees
for liabilities, including liabilities under securities laws. We believe that
these indemnification provisions and agreements and this insurance are
necessary to attract and retain qualified directors and officers.
The limitation of liability and indemnification provisions in our
certificate of incorporation and bylaws may discourage stockholders from
bringing a lawsuit against directors for breach of their fiduciary duty. They
may also reduce the likelihood of derivative litigation against directors and
officers, even though an action, if successful, might benefit us and other
stockholders. Furthermore, a stockholder's investment may be adversely affected
to the extent we pay the costs of settlement and damage awards against
directors and officers as required by these indemnification provisions. At
present, there is no pending litigation or proceeding involving any of our
directors, officers or employees regarding which indemnification by
AllAdvantage is sought, nor are we aware of any threatened litigation that may
result in claims for indemnification.
61
<PAGE>
RELATED PARTY TRANSACTIONS
Since we incorporated in March 1999, there has not been, nor is there
currently proposed, any transaction or series of similar transactions to which
we were or are to be a party in which the amount involved exceeds $60,000 and
in which any director, executive officer or holder of more than 5% of our
common stock or any member of their immediate family had or will have a direct
or indirect interest, other than compensation arrangements which are described
where required under "Management" and the transactions described below. Share
numbers and per share prices for the transactions described below are presented
on an as-converted to common stock basis and reflect the two-for-one common
stock splits effected on July 1, 1999 and October 13, 1999.
Issuances of Common Stock and Preferred Stock
The following table summarizes the shares of common stock and preferred
stock purchased in private placement transactions by directors, executive
officers, 5% stockholders and other stockholders of AllAdvantage since its
incorporation in March 1999. All references to outstanding shares of our
preferred stock and outstanding warrants to purchase our preferred stock are
made on an as-converted to common stock basis since all shares of preferred
stock and warrants to purchase preferred stock will convert into shares of our
common stock and warrants to purchase our common stock, respectively, upon
completion of this offering.
Issuance of Founders Stock and Series A Preferred Stock
In April 1999, we also sold a total of 24,000,000 shares of common stock at
a price per share of $0.00104175, for a total purchase price of $25,002, to
James R. Jorgensen, Johannes A. Pohle, Carl T. Anderson and Oliver Brock, the
founders of AllAdvantage, pursuant to restricted stock purchase agreements. In
April 1999, we also sold a total of 16,000,000 shares of Series A preferred
stock at a price per share of $0.0125, for a total purchase price of $200,000,
to Messrs. Jorgensen, Pohle, Anderson and Brock. The consideration paid was the
cancellation of indebtedness of AllAdvantage to the purchasers.
<TABLE>
<CAPTION>
Aggregate Shares of Aggregate
Common Purchase Value of Series A Purchase Value of
Stock(1) Price(2) Shares(3) Preferred Price Shares(3)
Stockholder --------- --------- ----------- --------- --------- -----------
<S> <C> <C> <C> <C> <C> <C>
James Jorgensen......... 7,333,336 $7,640 $66,000,024 8,000,000 $100,000 $72,000,000
Johannes Pohle.......... 7,333,332 7,639 65,999,988 2,000,000 25,000 18,000,000
Carl Anderson........... 6,533,332 6,806 58,699,988 4,000,000 50,000 36,000,000
Oliver Brock............ 2,800,000 2,917 25,200,000 2,000,000 25,000 18,000,000
</TABLE>
- ----------------
(1) At the time of issuance, 4,933,332 of the shares held by Mr. Jorgensen,
4,933,332 of the shares held by Mr. Pohle, 4,933,332 of the shares held by
Mr. Anderson and 1,200,000 of the shares held by Mr. Brock were unvested
and subject to our right of repurchase upon termination of employment.
This right of repurchase will expire as to 25% of the shares one year
after the date of issuance and 2.083% of the shares each month thereafter.
Upon a change in control transaction followed within nine months by a
termination of employment meeting specified conditions, vesting will
accelerate as to all of the then unvested shares.
(2) The per share consideration paid represented $0.00104167 in cash and
$0.00000008 for the assignment to AllAdvantage of technology for the
Viewbar and related systems developed by the founders. Messrs. Jorgensen,
Pohle, Anderson and Brock collectively made the valuation of this
technology.
(3) Based on an assumed initial public offering price per share of $9.00.
62
<PAGE>
Issuance of Series B Preferred Stock
In June 1999, we sold a total of 10,000,000 shares of Series B preferred
stock at a price per share of $0.18 to several investors pursuant to a
preferred stock purchase agreement, including to the following directors,
executive officers, 5% stockholders and entities associated with them:
<TABLE>
<CAPTION>
Shares of Aggregate
Series B Purchase Value of
Preferred Price Shares(1)
Stockholder --------- ---------- -----------
<S> <C> <C> <C>
Entities affiliated with Alloy Ventures 1998,
LLC (2)..................................... 8,333,336 $1,500,000 $75,000,024
Pidwell Investments LLC (3).................. 555,556 100,000 5,000,004
</TABLE>
- ----------------
(1) Based on an assumed initial public offering price per share of $9.00.
(2) John F. Shoch is a managing member of Alloy Ventures 1998, LLC, which is
the general partner of the purchasers of these shares--each of AMA98
Corporate, L.P., AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98
Ventures, L.P. Alloy Ventures 1998, LLC is therefore deemed to exercise
voting and investment power over all of the shares held by AMA98 Corporate,
L.P., AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98 Ventures, L.P.
(3) David W. Pidwell is a managing member of Pidwell Investments LLC and is
therefore deemed to exercise voting and investment power over all of the
shares held by Pidwell Investments LLC. Shares of Series B preferred stock
were purchased by a trust of which Mr. Pidwell is the trustee and
subsequently transferred to Pidwell Investments LLC.
Issuance of Series C Preferred Stock
In September, October and December 1999, we sold a total of 26,122,442
shares of Series C preferred stock at a price per share of $1.225 to several
investors pursuant to a preferred stock purchase agreement, including to the
following directors, executive officers, 5% stockholders and entities
associated with them:
<TABLE>
<CAPTION>
Shares of Aggregate
Series C Purchase Value of
Preferred Price Shares(1)
Stockholder --------- ---------- -----------
<S> <C> <C> <C>
Entities affiliated with
Alloy Ventures 1998, LLC(2)................. 4,081,632 $4,999,999 $36,734,688
Pidwell Investments LLC(3)................... 122,448 149,999 1,102,032
John Anderson Trust u/d/d July 16, 1999(4)... 81,632 99,999 734,688
Entities affiliated with
J. & W. Seligman & Co. Incorporated(5)...... 4,081,634 5,000,002 36,734,706
Entities affiliated with
Partech International(6).................... 4,081,632 4,999,999 36,734,688
Technology Partners Fund, L.P................ 4,081,632 4,999,999 36,734,688
TMCT Ventures, L.P.(7)....................... 4,081,632 4,999,999 36,734,688
Walden Media and Information Technology Fund
L.P......................................... 4,081,632 4,999,999 36,734,688
Michael A. Depatie Trust U/A DTD 7/18/91(8).. 816,326 999,999 7,346,934
</TABLE>
- ----------------
(1) Based on an assumed initial public offering price per share of $9.00.
(2) John F. Shoch is a managing member of Alloy Ventures 1998, LLC, which is
the general partner of the purchasers of these shares--each of AMA98
Corporate, L.P., AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98
Ventures, L.P. Alloy Ventures 1998, LLC is therefore deemed to exercise
voting and investment power over all of the shares held by AMA98 Corporate,
L.P., AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98 Ventures, L.P.
(3) David W. Pidwell is a managing member of Pidwell Investments LLC and is
therefore deemed to exercise voting and investment power over all of the
shares held by Pidwell Investments LLC. Shares of Series C preferred stock
were purchased by a trust of which Mr. Pidwell is the trustee and
subsequently transferred to Pidwell Investments LLC.
(4) John Anderson, the trustee of The John M. Anderson Trust u/d/d July 16,
1999, as amended, is the father of Carl T. Anderson, the Vice President
Corporate Development and a stockholder of AllAdvantage.
(5) J. & W. Seligman & Co. Incorporated is the investment advisor to Seligman
New Technologies Fund, Inc., Seligman Communications and Information Fund,
Inc. and Seligman Investment Opportunities (Master) Fund--NTV Portfolio,
and is therefore deemed to exercise voting and investment power over all of
the shares held by these entities.
(6) Vincent Worms is the managing member of Axa U.S. Growth Fund, LLC, Parallel
I, LLC, Parallel II, LLC, Double Black Diamond II, LLC, 45th Parallel, LLC,
and Multinvest, LLC, the investment general partner of Partech U.S.
Partners III C.V., and the attorney-in-fact for Almanori Limited, and is
therefore deemed to exercise voting and investment power over all of the
shares held by these entities.
(7) Thomas Unterman is managing partner of Rustic Canyon Partners, LLC, which
is the general partner of TMCT Ventures, L.P. Rustic Canyon Partners, LLC
is therefore deemed to exercise voting and investment power over all of the
shares held by TMCT Ventures, L.P.
(8) In October 1999, Michael Depatie was granted an option for 700,000 shares
of common stock, which was exercised with respect to 133,333 shares in
November 1999, as described under "Management--Option Grants and Exercises
in Last Fiscal Year."
63
<PAGE>
Issuance of Series C Warrants
In September 1999, in connection with a bridge financing of convertible
notes, we issued warrants to purchase shares of our Series C preferred stock
with an exercise price of $0.03 per share to the following directors, executive
officers, 5% stockholders and entities associated with them. Unless exercised,
these warrants will remain outstanding after the completion of this offering at
which time they will each become exercisable for common stock. They will expire
in September 2009.
<TABLE>
<CAPTION>
Warrants
for
Series C Value of
Warrantholder Preferred Shares (1)
------------- --------- ----------
<S> <C> <C>
Entities affiliated with Alloy Ventures 1998, LLC (2) .... 232,654 $2,086,906
Pidwell Investments LLC (3) .............................. 12,244 109,829
TMCT Ventures, L.P. (4) .................................. 122,448 1,098,359
Walden Media and Information Technology Fund L.P. ........ 122,448 1,098,359
</TABLE>
- --------
(1) Based on an assumed initial public offering price per share of $9.00 net of
the warrant exercise price.
(2) John F. Schoch is a managing member of Alloy Ventures 1998, which is the
general partner of the purchasers of these shares--each of AMA98 Corporate
L.P., AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98 Ventures, L.P.
Alloy Ventures 1998, LLC is therefore deemed to exercise voting and
investment power over all of the shares held by AMA98 Corporate, L.P.,
AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98 Ventures, L.P.
(3) David W. Pidwell is a managing member of Pidwell Investments LLC and is
therefore deemed to exercise voting and investment power over all of the
shares held by Pidwell Investments LLC. Mr. Pidwell exercised his warrant
in full in November 1999.
(4) Thomas Unterman is managing partner of Rustic Canyon Partners, LLC, which
is the general partner of TMCT Ventures, L.P. Rustic Canyon Partners, LLC
is therefore deemed to exercise voting and investment power over all of the
shares held by TMCT Ventures, L.P.
Issuance of Series D Preferred Stock
In February 2000, we sold a total of 16,453,926 shares of Series D preferred
stock at price per share of $6.05, which shares are convertible into 20,567,407
shares of common stock assuming an intial public offering price per share of
$9.00, to several investors pursuant to a preferred stock purchase agreement,
including to the following directors, executive officers, 5% stockholders and
entities associated with them:
<TABLE>
<CAPTION>
Shares of Aggregate
Series D Purchase Value of
Preferred Price Shares(1)
Stockholder ---------- ---------- -----------
<S> <C> <C> <C>
Entities affiliated with
Alloy Ventures 1998, LLC(2)................ 206,609 $ 999,998 $ 1,859,481
Pidwell Investments LLC(3).................. 20,661 100,000 185,949
Entities affiliated with
J. & W. Seligman & Co. Incorporated(4)..... 206,610 999,998 1,859,490
Entities affiliated with
Partech International(5)................... 206,609 999,998 1,859,481
Technology Partners Fund, L.P............... 206,611 999,998 1,859,499
TMCT Ventures, L.P.(6)...................... 206,611 999,998 1,859,499
Walden Media and Information Technology Fund
L.P........................................ 206,611 999,998 1,859,499
Entities affiliated with SOFTBANK Capital
Partners L.P.(7)........................... 14,462,809 70,000,000 130,165,281
Putnam OTC & Emerging Growth Fund........... 1,239,670 6,000,002 11,157,030
Putnam Emerging Information Sciences Trust.. 309,917 1,500,001 2,789,253
T. Rowe Price............................... 1,549,587 7,500,003 13,946,283
</TABLE>
- ----------------
(1) Based on an assumed initial public offering price per share of $9.00.
(2) John F. Shoch is a managing member of Alloy Ventures 1998, LLC, which is
the general partner of the purchasers of these shares--each of AMA98
Corporate, L.P., AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98
Ventures, L.P. Alloy Ventures 1998, LLC is therefore deemed to exercise
voting and investment power over all of the shares held by AMA98 Corporate,
L.P., AMA98 Investors, L.P., AMA98 Partners, L.P. and AMA98 Ventures, L.P.
(3) David W. Pidwell is a managing member of Pidwell Investments LLC and is
therefore deemed to exercise voting and investment power over all of the
shares held by Pidwell Investments LLC.
64
<PAGE>
(4) J. & W. Seligman & Co. Incorporated is the investment advisor to Seligman
New Technologies Fund, Inc., Seligman Communications and Information Fund,
Inc. and Seligman Investment Opportunities (Master) Fund--NTV Portfolio,
and is therefore deemed to exercise voting and investment power over all of
the shares held by these entities.
(5) Vincent Worms is the managing member of Axa U.S. Growth Fund, LLC, Parallel
I, LLC, Parallel II, LLC, Double Black Diamond II, LLC, 45th Parallel, LLC,
and Multinvest, LLC, the investment general partner of Partech U.S.
Partners III C.V., and the attorney-in-fact for Almanori Limited, and is
therefore deemed to exercise voting and investment power over all of the
shares held by these entities.
(6) Thomas Unterman is managing partner of Rustic Canyon Partners, LLC, which
is the general partner of TMCT Ventures, L.P. Rustic Canyon Partners, LLC
is therefore deemed to exercise voting and investment power over all of the
shares held by TMCT Ventures, L.P.
(7) William L. Burnham is a managing director of the general partner of
SOFTBANK Capital Partners L.P. and SOFTBANK Capital Advisors Fund L.P. The
general partner is therefore deemed to exercise voting and investment power
over all of the shares held by SOFTBANK Capital Partners L.P. and SOFTBANK
Capital Advisors Fund L.P.
Investors Rights Agreement
In connection with our issuances of Series B preferred stock, Series C
preferred stock and Series D preferred stock, we have entered into an investors
rights agreement granting the holders of the preferred stock registration
rights with respect to the common stock issuable upon conversion of their
preferred stock. Their registration rights are described in more detail under
"Description of Capital Stock--Registration Rights."
Contract with Summit Group Consulting
During 1999 and 2000, Summit Group Consulting supplied recruiting and
contract labor services to us. During 1999 and 2000, Summit Group Consulting
recruited 38 employees for us and was paid by us a total of $310,003 for those
services. Summit Group Consulting is owned by Bridget Jorgensen, the wife of
James R. Jorgensen, our President, Chief Executive Officer and Chairman.
65
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table presents information with respect to beneficial
ownership of our common stock as of February 29, 2000 by:
. each stockholder known by us to be the beneficial owner of more than 5%
of our common stock;
. other significant stockholders;
. each of our directors;
. the executive officer listed in the summary compensation table; and
. all current executive officers and directors as a group.
The percentage of beneficial ownership for the following table is based on
102,115,576 shares of common stock outstanding as of February 29, 2000,
assuming conversion of all outstanding shares of preferred stock into common
stock and an assumed initial public offering price per share of $9.00.
Unless otherwise indicated, the address for each listed 5% stockholder is:
c/o AllAdvantage.com Inc., 4010 Point Eden Way, Hayward, California 94545. To
our knowledge, except as indicated in the footnotes to this table and under
applicable community property laws, the persons named in the table have sole
voting and investment power with respect to all shares of common stock.
<TABLE>
<CAPTION>
Percentage of
Outstanding
Shares
Beneficially
Owned
-----------------
Number of Shares Before After
Name of Beneficial Owner Beneficially Owned Offering Offering
------------------------ ------------------ -------- --------
<S> <C> <C> <C>
James R. Jorgensen (1)................... 15,333,336 15.0% 13.1%
William L. Burnham
Entities affiliated with SOFTBANK
Capital Partners L.P. (2)............... 14,462,809 14.2 12.3
John F. Shoch
Entities affiliated with Alloy Ventures
1998, LLC (3)........................... 12,854,231 12.5 11.0
Carl T. Anderson (4)..................... 10,435,017 10.2 8.9
Johannes A. Pohle (5).................... 9,333,332 9.1 8.0
Oliver Brock (6)......................... 4,800,000 4.7 4.1
Thomas Unterman
TMCT Ventures, L.P. (7)................. 4,410,691 4.3 3.8
Richard A. LeFurgy
Walden Media and Information Technology
Fund L.P. (8)........................... 4,410,691 4.3 3.8
Entities affiliated with J. & W. Seligman
& Co. Incorporated (9).................. 4,288,244 4.2 3.7
Entities affiliated with Partech
International (10)...................... 4,288,241 4.2 3.7
Technology Partners Fund, L.P. .......... 4,288,241 4.2 3.7
T. Rowe Price ........................... 1,549,587 1.5 1.3
Putnam OTC & Emerging Growth Fund ....... 1,239,670 1.2 1.1
David W. Pidwell
Pidwell Investments LLC (11)............ 910,909 * *
Putnam Emerging Information Sciences
Trust................................... 309,917 * *
Leslie G. Denend......................... -- -- --
All directors and executive officers as a
group (12 persons)(12).................. 74,226,651 72.0 62.9
</TABLE>
- --------
*Less than 1%.
(1) Includes 4,933,332 shares subject to a right of repurchase held by us as of
February 29, 2000, which right of repurchase expires as to 25% of the
shares in April 2000 and 2.083% of the shares each month thereafter.
(2) Includes 14,255,991 shares held by SOFTBANK Capital Partners L.P. and
206,818 shares held by SOFTBANK Capital Advisors Fund L.P. William Burnham
is a managing director of the general partner
66
<PAGE>
of SOFTBANK Capital Partners L.P. and SOFTBANK Capital Advisors Fund L.P.
The address of Mr. Burnham and these entities is 10 Langley Road, Suite
403, Newton Center, MA 02159.
(3) Includes 9,485,150 shares held by AMA98 Ventures, L.P., 1,424,148 shares
held by AMA98 Investors, L.P., 1,138,220 shares held by AMA98 Corporate,
L.P., and 574,059 shares held by AMA98 Partners, L.P. Includes 232,654
shares subject to warrants held by these entities that are immediately
exercisable John F. Shoch is a managing member of Alloy Ventures 1998, LLC,
which is the general partner of each of AMA98 Corporate, L.P., AMA98
Investors, L.P., AMA98 Partners, L.P. and AMA98 Ventures, L.P. The address
of Mr. Shoch and Alloy Ventures 1998, LLC is 480 Cowper Street, Palo Alto,
CA 94301.
(4) Includes 4,933,332 shares subject to a right of repurchase held by us as of
February 29, 2000, which right of repurchase expires as to 25% of the
shares in April 2000 and 2.083% of the shares each month thereafter.
(5) Includes 4,933,332 shares subject to a right of repurchase held by us as of
February 29, 2000, which right of repurchase expires as to 25% of the
shares in April 2000 and 2.083% of the shares each month thereafter.
(6) Includes 1,200,000 shares subject to a right of repurchase held by us as of
February 29, 2000, which right of repurchase expires as to 25% of the
shares in April 2000 and 2.083% of the shares each month thereafter.
(7) Includes 122,448 shares subject to a warrant held by TMCT Ventures, L.P.
that is immediately exercisable. Mr. Unterman is managing partner of Rustic
Canyon Partners, LLC, which is the general partner of TMCT Ventures, L.P.
(8) Includes 122,448 shares subject to a warrant that is immediately
exercisable. Richard A. LeFurgy, a representative of WaldenVC is one of our
directors, although he does not have voting power or investment power with
respect to the shares held by Walden Media and Information Technology Fund
L.P.
(9) Represents 2,813,914 shares held by Seligman New Technologies Fund, Inc.,
857,648 shares held by Seligman Communications and Information Fund, Inc.
and 616,682 shares held by Seligman Investment Opportunities (Master) Fund
NTV Portfolio. J. & W. Seligman & Co. Incorporated is the investment
advisor to Seligman New Technologies Fund, Inc., Seligman Communications
and Information Fund, Inc. and Seligman Investment Opportunities (Master)
Fund-NTV Portfolio.
(10) Represents 1,972,593 shares held by Partech U.S. Partners III C.V.,
870,513 shares held by Parallel Capital II, LLC, 726,428 shares held by
Parallel Capital I, LLC, 461,413 shares held by Axa U.S. Growth Fund, LLC,
128,648 shares held by Double Black Diamond II, LLC, 42,882 shares held by
45th Parallel, LLC, 42,882 shares held by Almanori Limited and 42,882
shares held by Multinvest, LLC. Vincent Worms is the investment general
partner of Partech U.S. Partners III C.V., the managing member of Parallel
Capital II, LLC, Parallel Capital I, LLC, Axa U.S. Growth Fund, LLC,
Double Black Diamond II, 45th Parallel, LLC and Multinvest, LLC, and the
attorney-in-fact for Almanori Limited.
(11) Represents 710,909 shares held by Pidwell Investments LLC and 200,000
shares held by David Pidwell. The 200,000 shares held by Mr. Pidwell are
subject to our right of repurchase as of February 4, 2000, which right of
repurchase expires as to 25% of the shares in July 2000 and 2.083% of the
shares each month thereafter. David Pidwell is a managing member of
Pidwell Investments LLC.
(12) Includes 16,503,329 shares subject to our right of repurchase as of
February 29, 2000. Includes 566,667 shares subject to an immediately
exercisable option and 355,102 shares subject to immediately exercisable
warrants. Does not include shares or warrants held by Walden Media and
Information Technology Fund L.P.
The shares included in the preceding table as beneficially owned by some of
our executive officers and directors include outstanding shares that we have
the right to repurchase upon termination of their employment or status as a
director or consultant. This repurchase right entitles us to repurchase the
shares at a price equal to the initial purchase price paid by the stockholder
for the shares. Our repurchase right generally lapses over a four-year period.
In addition, the shares included in the preceding table as beneficially
owned by some of our executive officers, directors and 5% stockholders include
shares that are issuable under stock options or warrants that are exercisable
on or before April 29, 2000. These shares are deemed outstanding for purposes
of computing the percentage held by the person holding the options or warrants
but are not deemed outstanding for purposes of computing the percentage of any
other person.
67
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Immediately following the closing of this offering, our authorized capital
stock will consist of 1,000,000,000 shares of common stock, $0.001 par value
per share, and 5,000,000 shares of preferred stock, $0.001 par value per share.
As of February 29, 2000, and assuming the conversion of all outstanding
preferred stock into 72,702,093 shares of common stock at the assumed initial
public offering price of $9.00 per share and conversion of all warrants for
preferred stock into warrants for common stock, there were 102,115,576 shares
of common stock outstanding, options to purchase 12,331,808 shares of common
stock and warrants to purchase 552,550 shares of common stock.
Common Stock
Dividend Rights. Subject to preferences that may apply to shares of
preferred stock outstanding at the time, the holders of outstanding shares of
common stock are entitled to receive dividends out of assets legally available
at the times and in the amounts that the board of directors may determine from
time to time.
Voting Rights. Each holder of common stock is entitled to one vote for each
share of common stock held on all matters submitted to a vote of stockholders.
We have not provided for cumulative voting for the election of directors in our
certificate of incorporation. This means that, commencing at the first annual
meeting of stockholders following the date on which we first have at least 800
stockholders, the holders of a majority of the shares voted can elect all of
the directors then standing for election. Prior to that time, however,
cumulative voting in the election of directors will be in effect, meaning that
each share of voting stock will be entitled to a number of votes equal to the
number of votes to which that share would normally be entitled multiplied by
the number of directors to be elected. A stockholder may then cast all of these
votes for a single candidate or may allocate them among as many candidates as
the stockholder may choose. In addition, our certificate of incorporation and
bylaws require the approval of two-thirds, rather than a majority, of the
shares entitled to vote for some matters. For a description of these matters,
see "Description of Capital Stock--Anti-Takeover Provisions."
No Preemptive or Similar Rights. Our common stock is not entitled to
preemptive rights and is not subject to conversion or redemption.
Right to Receive Liquidation Distributions. Upon a liquidation, dissolution
or winding-up of AllAdvantage, the holders of common stock are entitled to
share ratably with holders of any participating preferred stock in all assets
remaining after payment of all liabilities and the liquidation preferences of
any outstanding preferred stock. Each outstanding share of common stock is, and
all shares of common stock to be outstanding upon completion of this offering
will be, fully paid and nonassessable.
Preferred Stock
Upon the closing of this offering, each outstanding share of preferred stock
will be converted into shares of common stock. See note 4 to the notes our
consolidated financial statements for a description of our preferred stock.
Upon the closing of this offering, each outstanding share of Series D preferred
stock will automatically convert into as many as 1.25 shares or as little as
one share of common stock. This conversion ratio is determined by the initial
public offering price of the shares in this offering. If the initial public
offering price per share is equal to or greater than $12.10, then each
outstanding share of Series D preferred stock will automatically convert into
one share of common stock. However, if the initial public offering price per
share is less than $12.10, then each outstanding share of Series D preferred
stock will automatically convert into that number of shares of common stock
equal to the result obtained by dividing $12.10 by the greater of the offering
price or $9.68.
Following the offering, we will be authorized, subject to limitations
imposed by Delaware law, to issue preferred stock in one or more series, to
establish from time to time the number of shares to be included in each series,
and to fix the rights, preferences and privileges of the shares of each wholly
unissued series and
68
<PAGE>
any of its qualifications, limitations or restrictions. The board of directors
can also increase or decrease the number of shares of any series, but not below
the number of shares of that series then outstanding, without any further vote
or action by the stockholders.
The board may authorize the issuance of preferred stock with voting or
conversion rights that could harm the voting power or other rights of the
holders of the common stock. The issuance of preferred stock, while providing
flexibility in connection with possible acquisitions and other corporate
purposes, could, among other things, have the effect of delaying, deferring or
preventing a change in control of AllAdvantage and might harm the market price
of our common stock and the voting and other rights of the holders of common
stock. We have no current plans to issue any shares of preferred stock.
Warrants
As of February 29, 2000, we had outstanding the following warrants to
purchase our stock.
<TABLE>
<CAPTION>
Total Number of Shares Exercise Price
Type of Stock Subject to Warrants Per Share Expiration Date
------------- ---------------------- -------------- ---------------
<S> <C> <C> <C>
Series C Preferred
Stock.................. 238,775(1) $0.06(1) 9/22/09
Series D Preferred
Stock.................. 75,000(2) 6.05(2) 12/31/09
</TABLE>
- --------
(1) Unless exercised, these warrants will remain outstanding after the
completion of this offering, at which time they will become exercisable for
a total of 477,550 shares of common stock at an exercise price per share of
$0.03.
(2) Unless exercised, this warrant will remain outstanding after the completion
of this offering, at which time it will become exercisable for a total of
93,750 shares of common stock at an exercise price per share of $4.84.
Registration Rights
The holders of approximately 56,702,093 shares of common stock issuable upon
conversion of Series B, Series C and Series D preferred stock have the right to
require us to register their shares with the Securities and Exchange Commission
so that those shares may be publicly resold or to include their shares in any
registration statement we file.
Demand Registration Rights
At any time six months after the closing of this offering, the holders of at
least 40% of the shares having registration rights have the right to demand
that we register all or a portion of their shares. We are only obligated to
file three registration statements in response to these demand registration
rights. If neither the first nor the second demand registration right exercised
covers the sale of securities with a total public offering price of at least
$25 million, then the third demand registration right exercised must cover a
sale of at least $25 million of securities. We may postpone the filing of a
registration statement for up to 90 days once in a 12-month period if we
determine that the filing would be seriously detrimental to AllAdvantage and
its stockholders. The underwriters of any underwritten offering will have the
right to limit the number of shares to be included in a registration statement
filed in response to the exercise of these demand registration rights due to
marketing reasons.
Form S-3 Registration Rights
If we are eligible to file a registration statement on Form S-3, any holder
of shares having registration rights has the right to demand that we file a
registration statement on Form S-3, as long as the amount of securities to be
sold under the registration statement exceeds $1 million. We may postpone the
filing of a registration statement for up to 90 days once in a 12 month period
if we determine that the filing would be seriously detrimental to AllAdvantage
and its stockholders.
69
<PAGE>
Piggyback Registration Rights
If we register any securities for public sale, holders of shares with
registration rights will have the right to include their shares in the
registration statement. However, this right does not apply to a registration
statement filed pursuant to the exercise of demand registration rights or Form
S-3 registration rights. The underwriters of any underwritten offering will
have the right to limit the number of shares registered by these holders to 30%
of the total shares covered by the registration statement due to marketing
reasons.
Expenses of Registration
We will pay all expenses relating to any demand registration and the first
four piggyback registrations. However, we will not pay for the expenses of any
demand registration if the request is subsequently withdrawn by the holders of
a majority of the shares having registration rights, subject to very limited
exceptions.
Expiration of Registration Rights
The registration rights described above will expire five years after this
offering is completed.
Anti-Takeover Provisions
The provisions of Delaware law, our certificate of incorporation and our
bylaws may have the effect of delaying, deferring or discouraging another
person from acquiring control of us.
Delaware Law
We will be subject to the provisions of Section 203 of the Delaware General
Corporation Law regulating corporate takeovers. This section prevents some
Delaware corporations from engaging, under some circumstances, in a business
combination, which includes a merger or sale of more than 10% of the
corporation's assets with any interested stockholder, which is a stockholder
who owns 15% or more of the corporation's outstanding voting stock, as well as
affiliates and associates of the stockholder, for three years following the
date that the stockholder became an "interested stockholder" unless:
. the transaction is approved by the board of directors prior to the date
the interested stockholder attained that status;
. upon consummation of the transaction that resulted in the stockholder's
becoming an interested stockholder, the interested stockholder owned at
least 85% of the voting stock of the corporation outstanding at the time
the transaction commenced; or
. on or subsequent to that date the business combination is approved by
the board and authorized at an annual or special meeting of stockholders
by at least two-thirds of the outstanding voting stock that is not owned
by the interested stockholder.
A Delaware corporation may opt out of this provision with an express
provision in its original certificate of incorporation or an express provision
in its certificate or incorporation or bylaws resulting from a stockholders'
amendment approved by at least a majority of the outstanding voting shares.
However, we have not opted out of this provision. The statute could prohibit or
delay mergers or other takeover or change-in-control attempts and, accordingly,
may discourage attempts to acquire us.
Charter and Bylaws
Our certificate of incorporation and bylaws provide that:
. following the completion of this offering, no action can be taken by
stockholders except at an annual or special meeting of the stockholders
called in accordance with our bylaws and that stockholders may not act
by written consent;
70
<PAGE>
. following the completion of this offering, the approval of holders of
two-thirds of the shares entitled to vote at an election of directors
will be required to adopt, amend or repeal our bylaws or amend or repeal
the provisions of our certificate of incorporation regarding the
election and removal of directors and ability of stockholders to take
action;
. stockholders may not call special meetings of the stockholders or fill
vacancies on the board;
. commencing at the first annual meeting of stockholders following the
date on which we first have at least 800 stockholders, our board of
directors will be divided into three classes, each serving staggered
three-year terms. This means that only one class of directors will be
elected at each annual meeting of stockholders, with the other classes
continuing for the remainder of their respective terms. Directors may
only be removed for cause by the holders of two-thirds of the shares
entitled to vote at an election of directors (we do not expect to have
800 stockholders as a result of this offering, and we may not have this
many stockholders for some time, if at all); and
. we will indemnify officers and directors against losses that they may
incur in investigations and legal proceedings resulting from their
services to us, which may include services in connection with takeover
defense measures.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is ChaseMellon
Shareholder Services.
Listing
We have applied to list our common stock on The Nasdaq Stock Market's
National Market under the trading symbol "AADV."
71
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of our common stock, including shares issued
upon exercise of outstanding warrants or options, in the public market after
this offering could adversely affect market prices prevailing from time to time
and could impair our ability to raise capital through the sale of our equity
securities. Furthermore, as described below, no shares currently outstanding
will be available for sale immediately after this offering due to contractual
restrictions on resale. Sales of substantial amounts of our common stock in the
public market after these restrictions lapse could adversely affect the
prevailing market price and our ability to raise equity capital in the future.
Upon completion of this offering, based on shares outstanding at February
29, 2000, we will have outstanding 117,115,576 shares of common stock, assuming
no exercise of the underwriters' over-allotment option and no exercise of
outstanding options and warrants. Shares held by our affiliates, which are
persons that directly or indirectly control, or are controlled by, or are under
common control with us, may generally only be sold in compliance with the
limitations of Rule 144 of the Securities Act. Of the outstanding shares, the
15,000,000 shares sold in this offering, 17,250,000 shares of the underwriters'
over-allotment option is exercised in full, will be freely tradable without
restriction under the Securities Act, other than the 700,000 shares reserved
for our employees, officers, directors and other persons associated with us,
which will be subject to a 180-day lock-up period. The remaining shares will be
restricted securities as defined in Rule 144. We issued and sold these
restricted securities in private transactions in reliance on exemptions from
registration under the Securities Act. Restricted securities may be sold in the
public market only if they are registered or if they qualify for an exemption
from registration under Rule 144 or Rule 701 under the Securities Act, as
summarized below. The remaining shares will become eligible for public sale as
follows:
<TABLE>
<CAPTION>
Approximate
Number of
Shares
Eligible
for Future
Date Sale Comment
---- ----------- -------
<C> <C> <S>
181 days after the date of 69,975,072 Underwriters' lock-up released.
this prospectus 700,000 of these shares will be freely
tradable, and the remainder may be
sold under Rule 144 or Rule 701
At various times thereafter 32,840,504 These shares may be sold under Rule
144, Rule 144(k) or Rule 701
</TABLE>
Lock-Up Agreements
All of our officers and directors and substantially all of our stockholders
have signed lock-up agreements under which they agreed not to sell, dispose of,
loan, pledge or grant any rights with respect to any shares of common stock or
any securities convertible into or exercisable or exchangeable for shares of
common stock without the prior written consent of Credit Suisse First Boston
Corporation and Donaldson, Lufkin & Jenrette Securities Corporation for a
period of 180 days after the date of this prospectus, subject to limited
exceptions.
Credit Suisse First Boston Corporation and Donaldson, Lufkin & Jenrette
Securities Corporation may in their sole discretion, at any time without
notice, choose to release some or all of these shares from these restrictions
prior to the expiration of this 180-day period based on market conditions, the
then-current stock price and other factors, the selection of which are based on
their sole discretion.
Rule 144
In general, under Rule 144 as currently in effect, beginning 90 days after
the date of this prospectus, a person who has beneficially owned shares of our
common stock for at least one year would be entitled to sell within any three-
month period a number of shares that does not exceed the greater of:
. 1% of the number of shares of common stock then outstanding, which will
equal approximately 1,171,156 shares immediately after this offering; or
. the average weekly trading volume of the common stock on the Nasdaq
National Market during the four calendar weeks preceding the filing of a
notice on Form 144 with respect to the sale.
72
<PAGE>
Sales under Rule 144 are also subject to manner of sale provisions and
notice requirements and to the availability of current public information about
us. Shares otherwise eligible for sale under Rule 144 are still subject to
lock-up agreements and will only become eligible for sale when the 180-day
lock-up agreements expire.
Rule 144 (k)
Under Rule 144(k), a person who has not been one of our affiliates at any
time during the 90 days preceding a sale, and who has beneficially owned the
shares proposed to be sold for at least two years, is entitled to sell those
shares without complying with the manner of sale, public information, volume
limitation or notice provisions of Rule 144.
Rule 701
Any of our employees, officers, directors or consultants who purchased his
or her shares under a written compensatory plan or contract may be entitled to
sell his or her shares in reliance on Rule 701. Rule 701 permits affiliates to
sell their Rule 701 shares under Rule 144 without complying with the holding
period requirements of Rule 144. Rule 701 further provides that non-affiliates
may sell these shares in reliance on Rule 144 without having to comply with the
holding period, public information, volume limitation or notice provisions of
Rule 144. All holders of Rule 701 shares are required to wait until 90 days
after the date of this prospectus before selling those shares. However, all
shares issued under Rule 701 are subject to lock-up agreements and will only
become eligible for sale when the 180-day lock-up agreements expire.
Registration Rights
Upon completion of this offering, the holders of 56,702,093 shares of common
stock, or their transferees, will be entitled to rights with respect to the
registration of those shares under the Securities Act. After these shares are
registered, they will be freely tradable without restriction under the
Securities Act.
Stock Options
Immediately after this offering, we intend to file a registration statement
under the Securities Act covering approximately 37,747,834 shares of common
stock subject to outstanding options and reserved for issuance under our stock
option and employee stock purchase plans. As of December 31, 1999, options to
purchase 10,484,233 shares of common stock were issued and outstanding. Between
December 31, 1999 and February 29, 2000, we granted options to purchase
approximately 2,762,925 shares of common stock. Upon the expiration of the
lock-up agreements described above, 3,184,578 shares of common stock will be
subject to vested options, based on options outstanding as of February 29,
2000.
This registration statement is expected to be filed and become effective as
soon as practicable after the effective date of this offering. Accordingly,
shares registered under this registration statement will, subject to vesting
provisions and Rule 144 volume limitations applicable to our affiliates, be
freely tradeable immediately after the 180-day lock-up agreements expire.
Warrants
As of January 31, 2000, we had outstanding warrants to purchase 238,775
shares of Series C preferred stock and 75,000 shares of Series D preferred
stock, which will become exercisable for 477,550 and 93,750 shares,
respectively, of common stock upon the completion of this offering. When these
warrants are exercised and the exercise price is paid in cash, the shares must
be held for one year before they can be sold under Rule 144. Upon the
completion of this offering, these warrants to purchase up to 552,550 shares of
common stock will contain net exercise provisions. These provisions allow a
holder to exercise the warrant for a lesser number of shares of common stock in
lieu of paying cash. The number of shares that would be issued in this case
would be based upon the market price of the common stock at the time of the net
exercise. If the warrant had been held for at least one year, the shares of
commons stock could be publicly sold under Rule 144. After the lock-up
agreements described above expire, warrants to purchase 477,550 shares of our
common stock, which also contain net exercise provisions, will have been
outstanding for at least one year.
73
<PAGE>
UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting
agreement dated , 2000, we have agreed to sell to the underwriters named
below, for whom Credit Suisse First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation and FleetBoston Robertson Stephens Inc. are
acting as representatives the following respective numbers of shares of common
stock:
<TABLE>
<CAPTION>
Number
Underwriter of Shares
----------- ---------
<S> <C>
Credit Suisse First Boston Corporation.............................
Donaldson, Lufkin & Jenrette Securities Corporation................
FleetBoston Robertson Stephens Inc. ...............................
-----
Total............................................................
=====
</TABLE>
The underwriting agreement provides that the underwriters are obligated to
purchase all the shares of common stock in the offering if any are purchased,
other than those shares covered by the over-allotment option described below.
The underwriting agreement also provides that if an underwriter defaults the
purchase commitments of non-defaulting underwriters may be increased or the
offering of common stock may be terminated.
We have granted to the underwriters a 30-day option to purchase on a pro
rata basis up to 2,250,000 additional shares at the initial public offering
price less the underwriting discounts and commissions. The option may be
exercised only to cover any over-allotments of common stock.
The underwriters propose to offer the shares of common stock initially at
the public offering price on the cover page of this prospectus and to selling
group members at that price less a concession of $ per share. The
underwriters and selling group members may allow a discount of $ per share
on sales to other broker/dealers. After the initial public offering, the public
offering price and concession and discount to broker/dealers may be changed by
the representatives.
The following table summarizes the compensation and estimated expenses we
will pay. The underwriting fee will be determined based on our negotiations
with the underwriters at the time the initial public offering price of our
common stock is determined. We do not expect the underwriting discounts and
commissions paid by us to exceed 7% of the initial public offering price per
share of common stock.
<TABLE>
<CAPTION>
Per Share Total
----------------------------- -----------------------------
Without With Without With
Over-allotment Over-allotment Over-allotment Over-allotment
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Underwriting Discounts
and Commissions paid by
us..................... $ $ $ $
Expenses payable by us.. $ $ $ $
Other deemed
Underwriting Discounts
and Commissions paid by
us..................... $ $ $ $
</TABLE>
DLJ ESC II LP, DLJ Fund Investment Partners II, L.P., DLJ Private Equity
Employees Fund, L.P. and DLJ Private Equity Partners Fund, L.P. (who are
affiliates of Donaldson, Lufkin & Jenrette Securities Corporation) have
purchased 49,587, 54,187, 4,959 and 139,201 shares of Series D preferred stock,
respectively, at $6.05 per share. Employees of Fleet Boston Robertson Stephens
have purchased 8,264 shares of
74
<PAGE>
Series D preferred stock at $6.05 per share. Credit Suisse First Boston Venture
Fund I L.P. has purchased 330,578 shares of Series D preferred stock at a price
of $6.05 per share. Under NASD Rules of Fair Practice, the difference between
the initial offering price of our common stock and the purchase price could be
deemed underwriting compensation.
The underwriters have informed us that they do not expect discretionary
sales to exceed 5% of the shares of common stock being offered.
We have agreed that we will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Securities and
Exchange Commission a registration statement under the Securities Act of 1933,
as amended, relating to, any shares of our common stock or securities
convertible into or exchangeable or exercisable for any shares of our common
stock, in each case acquired prior to the date of this prospectus, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of Credit Suisse First Boston
Corporation and Donaldson, Lufkin & Jenrette Securities Corporation for a
period of 180 days after the date of this prospectus, except in our case
issuances pursuant to the exercise of stock options outstanding on the date
hereof, grants of employee stock options or the issuance of other common stock
pursuant to the 1999 equity incentive plan and 2000 equity incentive plan of
our California predecessor, 2000 equity incentive plan or 2000 employee stock
purchase plan in effect on the date hereof, and issuances of common stock
pursuant to the exercise of those options.
Our executive officers and directors, and stockholders and holders of
options to purchase our common stock have agreed that they will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any shares of our common stock, other than shares purchased in the open market,
including in this offering, or securities convertible into or exchangeable or
exercisable for any shares of our common stock, enter into a transaction which
would have the same effect, or enter into any swap, hedge or other arrangement
that transfers, in whole or in part, any of the economic consequences of
ownership of our common stock, whether any such aforementioned transaction is
to be settled by delivery of our common stock or such other securities, in cash
or otherwise, or publicly disclose the intention to make any such offer, sale,
pledge or disposition, or to enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent of Credit
Suisse First Boston Corporation and Donaldson, Lufkin & Jenrette Securities
Corporation for a period of 180 days after the date of this prospectus.
The underwriters have reserved for sale, at the initial offering price, up
to 700,000 shares of common stock for employees, officers, directors and other
persons associated with us, including contractors and business partners, who
have expressed an interest in purchasing common stock in the offering and up to
800,000 shares of common stock for our members. The shares reserved for our
employees, officers and directors and other persons associated with us will be
subject to a 180-day lock-up period, which lock-up restriction may be waived
with our prior written consent. The number of shares available for sale to the
general public in this offering will be reduced to the extent those persons
purchase the reserved shares. Any reserved shares not so purchased will be
offered by the underwriters to the general public on the same terms as the
other shares.
We have agreed to indemnify the underwriters against liabilities under the
Securities Act, or contribute to payments that the underwriters may be required
to make in that respect.
Credit Suisse First Boston Corporation acted as placement agent in
connection with the sale of the Series D preferred stock for which it received
customary compensation.
We have made application to list the shares of common stock on The Nasdaq
Stock Market's National Market under the symbol "AADV."
Prior to the offering, there has been no public market for the common stock.
The initial public offering price for the common stock will be determined by
negotiation between us and the representatives, and may not reflect the market
price for the common stock following this offering. Among the principal factors
to be considered in determining the initial public offering price of our common
stock will be:
. the information in this prospectus or otherwise available to the
representatives;
75
<PAGE>
. market conditions for initial public offerings;
. the history of and prospects for the industry in which we compete;
. the ability of our management;
. our prospects for future earnings, the present state of our development
and our current financial condition;
. the recent market prices of, and the demand for, publicly traded common
stock of generally comparable companies; and
. the general condition of the securities markets at the time of this
offering.
We can offer no assurances that the initial public offering price will
correspond to the price at which our common stock will trade in the public
market following this offering or that an active trading market for the common
stock will develop and continue after this offering.
The representatives may engage in over-allotment, stabilizing transactions,
syndicate covering transactions and penalty bids in accordance with Regulation
M under the Securities Exchange Act of 1934.
. Over-allotment involves syndicate sales in excess of the offering size,
which creates a syndicate short position.
. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum.
. Syndicate covering transactions involve purchases of the common stock in
the open market after the distribution has been completed in order to
cover syndicate short positions.
. Penalty bids permit the representatives to reclaim a selling concession
from a syndicate member when the common stock originally sold by that
syndicate member is purchased in a stabilizing transaction or a
syndicate covering transaction to cover syndicate short positions.
These stabilizing transactions, syndicate covering transactions and penalty
bids may cause the price of the common stock to be higher than it would
otherwise be in the absence of these transactions. These transactions may be
effected on The Nasdaq National Market or otherwise and, if commenced, may be
discontinued at any time.
76
<PAGE>
NOTICE TO CANADIAN RESIDENTS
Resale Restrictions
The distribution of the common stock in Canada is being made only on a
private placement basis exempt from the requirement that we prepare and file a
prospectus with the securities regulatory authorities in each province where
trades of common stock are effected. Accordingly, any resale of the common
stock in Canada must be made in accordance with applicable securities laws,
which will vary depending on the relevant jurisdiction and which may require
resales to be made in accordance with available statutory exemptions or
pursuant to a discretionary exemption granted by the applicable Canadian
securities regulatory authority. Purchasers are advised to seek legal advice
prior to any resale of the common stock.
Representations of Purchasers
Each purchaser of common stock in Canada who receives a purchase
confirmation will be deemed to represent to us and the dealer from which that
purchase confirmation is received that (i) the purchaser is entitled under
applicable provincial securities laws to purchase the common stock without the
benefit of a prospectus qualified under those securities laws, (ii) where
required by law, the purchaser is purchasing as principal and not as agent, and
(iii) the purchaser has reviewed the text above under "Resale Restrictions."
Rights of Action (Ontario Purchasers)
The securities being offered are those of a foreign issuer, and Ontario
purchasers will not receive the contractual right of action prescribed by
Ontario securities law. As a result, Ontario purchasers must rely on other
remedies that may be available, including common law rights of action for
damages or rescission or rights of action under the civil liability provisions
of the U.S. federal securities laws.
Enforcement of Legal Rights
All of the issuer's directors and officers as well as the experts named in
this prospectus may be located outside of Canada and, as a result, it may not
be possible for Canadian purchasers to effect service of process within Canada
upon the issuer or those persons. All or a substantial portion of the assets of
the issuer and those persons may be located outside of Canada and, as a result,
it may not be possible to satisfy a judgment against the issuer or those
persons in Canada or to enforce a judgment obtained in Canadian courts against
the issuer or persons outside of Canada.
Notice to British Columbia Residents
A purchaser of common stock to whom the Securities Act (British Columbia)
applies is advised that he or she is required to file with the British Columbia
Securities Commission a report within ten days of the sale of any common stock
acquired by him or her in this offering. That report must be in the form
attached to British Columbia Securities Commission Blanket Order BOR #95/17, a
copy of which may be obtained from us. Only one report must be filed in respect
of common stock acquired on the same date and under the same prospectus
exemption.
Taxation and Eligibility for Investment
Canadian purchasers of common stock should consult their own legal and tax
advisors with respect to the tax consequences of an investment in the common
stock in their particular circumstances and with respect to the eligibility of
the common stock for investment by the purchaser under relevant Canadian
legislation.
77
<PAGE>
LEGAL MATTERS
Fenwick & West LLP, Palo Alto, California, will pass upon the validity of
the issuance of the shares of common stock offered by this prospectus for
AllAdvantage. Skadden, Arps, Slate, Meagher & Flom LLP, Palo Alto, California,
will pass upon legal matters in connection with this offering for the
underwriters. Entities affiliated with Fenwick & West LLP hold 223,365 shares
of our common stock. In addition, Fenwick & West LLP or an affiliated entity
may purchase up to of the shares reserved by the underwriters for sale to
our employees and directors and other persons associated with us, as described
under "Underwriting."
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements at December 31, 1999 and for the period from inception
(March 24, 1999) to December 31, 1999, as set forth in their report. We have
included our financial statements in the prospectus and elsewhere in the
registration statement in reliance on Ernst & Young LLP's report, given on
their authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission, a registration
statement on Form S-1 under the Securities Act with respect to the common stock
offered by this prospectus. This prospectus does not contain all of the
information contained in the registration statement and the exhibits to the
registration statement. For further information with respect to AllAdvantage
and our common stock, we refer you to the registration statement and the
exhibits filed as a part of the registration statement. Statements contained in
this prospectus concerning the contents of any contract or any other document
to which reference is made are not necessarily complete; we refer you to the
copy of each contract or document filed as an exhibit to the registration
statement. Each statement is qualified in all respects by reference to that
exhibit. The registration statement, including exhibits, may be inspected
without charge at the public reference facilities maintained by the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of the
SEC located at Seven World Trade Center, 13th Floor, New York, New York 10048,
and the Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies may be obtained from the SEC upon payment of
fees prescribed by the SEC. Information on the operation of the public
reference room may be obtained by calling the SEC at 1-800-SEC-0330. These
reports and other information may also be inspected without charge at a Web
site maintained by the SEC at http://www.sec.gov.
78
<PAGE>
AllAdvantage.com Inc.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Report of Ernst & Young LLP, Independent Auditors........................ F-2
Consolidated Balance Sheet............................................... F-3
Consolidated Statement of Operations..................................... F-4
Consolidated Statement of Net Capital Deficiency......................... F-5
Consolidated Statement of Cash Flows..................................... F-6
Notes to Consolidated Financial Statements............................... F-7
</TABLE>
F-1
<PAGE>
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
AllAdvantage.com Inc.
We have audited the accompanying consolidated balance sheet of
AllAdvantage.com Inc. as of December 31, 1999, and the related consolidated
statements of operations, net capital deficiency, and cash flows for the period
from inception (March 24, 1999) to December 31, 1999. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of
AllAdvantage.com Inc. at December 31, 1999, and the results of its operations
and its cash flows for the period from inception (March 24, 1999) to December
31, 1999, in conformity with accounting principles generally accepted in the
United States.
Ernst & Young LLP
Palo Alto, California
February 3, 2000 except for note 11, as to which the date is March , 2000
- --------------------------------------------------------------------------------
The foregoing report is in the form that will be signed upon the completion
of the reincorporation and other matters described in Note 11 to the
consolidated financial statements.
/s/ Ernst & Young LLP
Palo Alto, California
March 22, 2000
F-2
<PAGE>
AllAdvantage.com Inc.
CONSOLIDATED BALANCE SHEET
(in thousands, except share and per share amounts)
<TABLE>
<CAPTION>
Pro Forma Net
December 31, Capital Deficiency
1999 at December 31, 1999
------------ --------------------
(Unaudited)
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents.................. $ 20,019
Restricted cash............................ 10,000
Accounts receivable, net of allowance of
$235...................................... 4,523
Prepaid expenses and other assets.......... 624
--------
Total current assets..................... 35,166
Property and equipment, net.................. 4,705
--------
Total assets............................. $ 39,871
========
Liabilities and net capital deficiency
Current liabilities:
Accounts payable........................... $ 1,753
Accrued member payables.................... 12,239
Other accrued liabilities.................. 5,362
Customer advance........................... 19,830
Deferred revenue........................... 75
Current portion of capital lease
obligations............................... 383
--------
Total current liabilities................ 39,642
Capital lease obligations, net of current
portion..................................... 254
Commitments
Net capital deficiency:
Convertible preferred stock, $0.001 par
value, issuable in series: 22,663,266
shares authorized; 19,567,343 shares
issued and outstanding at December 31,
1999, aggregate liquidation preference of
$34,014,990, pro forma--36,335,044 shares
authorized, no shares issued and
outstanding............................... 20 $ --
Common stock, $0.001 par value: 116,000,000
shares authorized, 28,498,133 shares
issued and outstanding at December 31,
1999, pro forma--150,000,000 shares
authorized, 80,632,819 shares issued and
outstanding............................... 28 81
Additional paid-in capital................. 55,608 55,575
Deferred stock compensation................ (18,572) (18,572)
Accumulated deficit........................ (37,109) (37,109)
-------- --------
Total net capital deficiency............. (25) $ (25)
-------- ========
Total liabilities and net capital
deficiency.............................. $ 39,871
========
</TABLE>
See accompanying notes.
F-3
<PAGE>
AllAdvantage.com Inc.
CONSOLIDATED STATEMENT OF OPERATIONS
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Period from
Inception
(March 24, 1999) to
December 31, 1999
-------------------
<S> <C>
Revenues.................................................. $ 5,251
Costs and expenses:
Direct member costs..................................... 17,141
Sales and marketing..................................... 11,602
General and administrative.............................. 8,344
Product development..................................... 2,911
Depreciation and amortization........................... 348
Stock-based compensation(1)............................. 1,547
--------
Total costs and expenses.............................. 41,893
--------
Loss from operations...................................... (36,642)
Interest expense.......................................... (827)
Interest income........................................... 360
--------
Net loss.................................................. $(37,109)
========
Basic and diluted net loss per share...................... $ (5.04)
========
Shares used in per share calculation...................... 7,367
========
Pro forma basic and diluted net loss per share
(unaudited).............................................. $ (0.97)
========
Shares used in pro forma per share calculation
(unaudited).............................................. 38,287
========
- --------
(1) Stock-based compensation related to the following in 1999:
Sales and marketing....................................... $ 907
General and administrative................................ 280
Product development....................................... 360
--------
$ 1,547
========
</TABLE>
See accompanying notes.
F-4
<PAGE>
AllAdvantage.com Inc.
CONSOLIDATED STATEMENT OF NET CAPITAL DEFICIENCY
Period from Inception (March 24, 1999) to December 31, 1999
(in thousands, except share amounts)
<TABLE>
<CAPTION>
Convertible
Preferred Stock Common Stock Additional Deferred Total Net
----------------- ----------------- Paid-in Stock Accumulated Capital
Shares Amount Shares Amount Capital Compensation Deficit Deficiency
---------- ------ ---------- ------ ---------- ------------ ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at inception
(March 24, 1999) ...... -- $-- -- $-- $ -- $ -- $ -- $ --
Issuance of common stock
to founders............ -- -- 24,000,000 24 1 -- -- 25
Issuance of Series A
preferred stock at
$0.05 per share
to founders, net of
issuance costs of $1... 4,000,000 4 -- -- 195 -- -- 199
Issuance of Series B
preferred stock at
$0.72 per share for
cash and exchange of
convertible notes
payable, net of
issuance costs of $34.. 2,500,000 3 -- -- 1,763 -- -- 1,766
Issuance of Series C
preferred stock at
$2.45 per share for
cash and exchange of
convertible notes
payable, net of
issuance costs of $88.. 13,067,343 13 -- -- 31,899 -- 31,912
Issuance of common stock
to employees upon
exercise of
stock options.......... -- -- 4,498,133 4 443 -- -- 447
Issuance of options to
purchase common stock
to non-employees....... -- -- -- -- 660 -- -- 660
Issuance of warrants to
purchase Series C
preferred stock in
connection with
issuance of notes
payable................ -- -- -- -- 528 -- -- 528
Deferred stock
compensation from the
issuance of stock
options................ -- -- -- -- 20,119 (20,119) -- --
Amortization of deferred
stock compensation..... -- -- -- -- -- 1,547 -- 1,547
Net loss................ -- -- -- -- -- -- (37,109) (37,109)
---------- --- ---------- --- ------- -------- -------- --------
Balance at December 31,
1999................... 19,567,343 $20 28,498,133 $28 $55,608 $(18,572) $(37,109) $ (25)
========== === ========== === ======= ======== ======== ========
</TABLE>
See accompanying notes.
F-5
<PAGE>
AllAdvantage.com Inc.
CONSOLIDATED STATEMENT OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
Period from
Inception
(March 24, 1999) to
December 31, 1999
-------------------
<S> <C>
Operating activities:
Net loss.................................................. $(37,109)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization........................... 348
Amortization of deferred stock compensation............. 1,547
Interest expense from issuance of warrants.............. 528
Other non-cash expense.................................. 660
Changes in assets and liabilities:
Restricted cash....................................... (10,000)
Accounts receivable................................... (4,523)
Prepaid expenses and other assets..................... (624)
Accounts payable and other accrued liabilities........ 7,115
Accrued member payables............................... 12,239
Customer advance...................................... 19,830
Deferred revenue...................................... 75
--------
Net cash used in operating activities..................... (9,914)
--------
Investing activities:
Purchase of equipment..................................... (4,290)
--------
Net cash used in investing activities..................... (4,290)
--------
Financing activities:
Proceeds from issuance of common and preferred stock,
net...................................................... 30,352
Proceeds from issuance of convertible notes payable....... 3,550
Proceeds from exercise of common stock options............ 447
Payments under capital lease obligations.................. (126)
--------
Net cash provided by financing activities................. 34,223
--------
Net increase in cash and cash equivalents................. 20,019
Cash and cash equivalents at beginning of period.......... --
--------
Cash and cash equivalents at end of period................ $ 20,019
========
Schedule of noncash investing and financing activities:
Conversion of notes payable to Series B Preferred Stock... $ 1,550
========
Conversion of notes payable to Series C Preferred Stock... $ 2,000
========
Equipment acquired under capital lease obligations........ $ 763
========
</TABLE>
See accompanying notes.
F-6
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BUSINESS
AllAdvantage.com Inc. (AllAdvantage or the Company) was incorporated on
March 24, 1999 and launched its service in July 1999. AllAdvantage provides
businesses with an online advertising, direct marketing and electronic commerce
tool to target and reach AllAdvantage's community of members through
AllAdvantage's proprietary Viewbar targeting technology. In turn, AllAdvantage
provides its members with cash compensation, as well as Internet navigation and
electronic commerce links, for actively using the Viewbar.
AllAdvantage has incurred net losses and negative cash flows from operations
since inception. AllAdvantage's ability to meet obligations in the ordinary
course of business is dependent on its ability to establish profitable
operations and raise additional funds through public or private equity
financings, collaborative or other arrangements with corporate sources, or
other sources of financing. In the period from inception (March 24, 1999) to
December 31, 1999, AllAdvantage has received financing of approximately
$33,900,000 through the issuance of common stock, Series A, B and C convertible
preferred stock and convertible notes payable (see Note 4). Management believes
that these funds, together with the Series D convertible preferred stock
financing, that closed in February 2000 (see Note 10), will be sufficient to
enable AllAdvantage to meet its planned expenditures through December 31, 2000.
If anticipated operating results are not achieved, management has the ability
and intends to delay or reduce expenditures so as not to require additional
financial resources, if those resources are not available on terms acceptable
to AllAdvantage.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The consolidated financial statements include the accounts of AllAdvantage
and its wholly-owned subsidiaries. All significant inter-company balances and
transactions have been eliminated.
Use of Estimates
The preparation of financial statements in accordance with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets, liabilities, revenues
and expenses and disclosures of contingent liabilities. Actual results could
differ from those estimates.
Cash Equivalents
AllAdvantage considers all highly liquid investments with a maturity of
three months or less from the date of purchase to be cash equivalents. Cash
equivalents consist of money market funds, commercial paper and government
agency instruments.
AllAdvantage accounts for marketable investments under Statement of
Financial Accounting Standards No. 115, "Accounting for Certain Investments in
Debt and Equity Securities," (SFAS No. 115). Under SFAS No. 115, management
determines the appropriate classification of debt securities at the time of
purchase and re-evaluates such designation as of each balance sheet date. To
date, all marketable securities have been classified as available-for-sale and
are carried at fair value at quoted market prices. Unrealized gains and losses
are reported as a separate component of accumulated comprehensive income. The
amortized cost of debt securities in this category is adjusted for amortization
of premiums and accretion of discounts to maturity. Such amortization or
accretion is included in interest income or interest expense respectively. The
cost of securities sold is based on the specific identification method.
Interest earned on securities classified as available-for-sale is included in
interest income.
F-7
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
At December 31, 1999, AllAdvantage had U.S. Government securities and
commercial paper available for sale at fair market values of $249,000 and
$19,482,000, respectively, with fair values approximating amortized cost. As of
December 31, 1999, all available-for-sale securities were recorded as cash
equivalents since the maturities of the instruments at the date of purchase
were less than 90 days. By policy, the Company limits similar types of
investments and diversifies investing activities utilizing multiple investment
agencies.
Certain Risks and Concentrations
AllAdvantage has a limited operating history and its prospects are subject
to the risks, expenses and difficulties frequently encountered by companies in
their early stages of development, particularly companies in new and rapidly
evolving markets such as Internet services. These risks include the failure to
develop and extend online service brands, the rejection of services by
AllAdvantage's members, vendors and/or advertisers and the inability of
AllAdvantage to maintain and increase its member base, as well as other risks
and uncertainties.
AllAdvantage's revenue is principally derived from the sale of
advertisements, the market for which is highly competitive and rapidly
changing. Significant changes in the industry or changes in customer buying
behavior could adversely affect operating results.
Financial instruments that potentially subject AllAdvantage to
concentrations of credit risk consist principally of investments in debt
securities and trade receivables. AllAdvantage is exposed to credit risks in
the event of default by the financial institutions or issuers of investments to
the extent those investments are recorded on the balance sheet. AllAdvantage
generally does not require collateral. From inception (March 24, 1999) to
December 31, 1999, one customer represented 19% of AllAdvantage's revenues.
AllAdvantage had no credit losses in the period from inception (March 24, 1999)
to December 31, 1999.
Fair Value of Financial Instruments
The Company's financial instruments, including cash and cash equivalents,
accounts receivable, accrued member payables and accounts payable, are carried
at historical cost, which approximates their fair value because of the short-
term maturities of these instruments. The fair value of capital lease
obligations is estimated based on current interest rates available to
AllAdvantage for debt instruments with similar terms, degrees of risk, and
remaining maturities. The carrying value of these obligations approximate their
fair values as of December 31, 1999.
Property and Equipment
Property and equipment are stated at historical cost. Depreciation and
amortization are computed using the straight-line method over the estimated
useful lives of the assets, generally three to five years. Leasehold
improvements are amortized using the straight-line method over the estimated
useful lives of the assets or terms of the leases, whichever are shorter.
Revenue Recognition
AllAdvantage's revenues were substantially derived from the sale of
advertisements, which includes arrangements for the delivery of impressions or
click-throughs and sponsorships. The foregoing may include additional
performance-based revenues based on arrangements with individual sponsors or
advertisers. Advertising and sponsorship revenues are recognized ratably in the
period in which the advertisement or sponsorship placement is displayed, based
upon the total number of impressions delivered, provided that no significant
obligations remain and collection of the related receivable is probable.
AllAdvantage's obligations typically include the guarantee of a minimum number
of impressions or click-throughs, and to the extent that minimum guaranteed
impressions are not met, recognition of the corresponding portion of the
revenues relating to this unfulfilled obligation is deferred until the
remaining guaranteed impression levels are achieved.
F-8
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The guaranteed minimum number of impressions is generally required to be
delivered over the term of the commitment, which has generally ranged from
several weeks to two months. Revenues from performance-based arrangements,
including click-throughs, are recognized as the related performance criteria
are met. Click-through arrangements require members to click on the
advertisement as it is displayed. AllAdvantage earns revenue based on the
number of click-throughs occurring during the period. Revenues from advertising
sold through third-party sales organizations are recognized net of commissions.
Revenues from commissions for referring electronic commerce are recognized upon
receipt of payment. Fees paid to us in advance of satisfaction of revenue
recognition criteria are recorded as deferred revenues.
To date, AllAdvantage has not entered into any transactions related to the
nonmonetary exchange of advertising for advertising or other services.
Direct Member Costs
Direct member costs consist of costs incurred to compensate members for
using the Internet while the Viewbar is activated. These costs are expensed as
incurred.
Sales and Marketing
Sales and marketing expenses include personnel and related costs for the
direct sales force and marketing staff, marketing and promotional programs
fees, member referral costs and costs related to the delivery of advertisements
to the Viewbar. These costs are expensed as incurred. Member referral costs and
costs related to the delivery of advertisements to the Viewbar included in
sales and marketing expenses totaled $2,981,000 and $2,913,000 respectively,
for the period from inception to December 31, 1999. Advertising expenses, which
consist primarily of advertising to business customers, were $1,074,000 for the
period from inception to December 31, 1999. Advertising costs are expensed as
incurred in accordance with Statement of Position No. 93-7, "Reporting on
Advertising Costs."
Research and Development
Research and development expenditures are generally charged to operations as
incurred. Statement of Financial Accounting Standards (SFAS) No. 86,
"Accounting for the Costs of Computer Software to Be Sold, Leased or Otherwise
Marketed," requires the capitalization of certain software development costs
subsequent to the establishment of technological feasibility. Based on
AllAdvantage's product development process, technological feasibility is
established upon the completion of a working model. Through December 31, 1999,
capitalizable costs incurred after achieving technological feasibility have not
been significant for any development project. Accordingly, AllAdvantage has
charged all costs to research and development expense in the periods they were
incurred.
AllAdvantage adopted SOP 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use" during 1999, which requires
capitalization of certain costs incurred during the development of internal use
software. Through December 31, 1999 capitalizable costs incurred have not been
significant for any development project. Accordingly, AllAdvantage has charged
all costs to research and development expense in the periods they were
incurred.
F-9
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Segment Reporting
Effective March 24, 1999, AllAdvantage adopted the provisions of SFAS No.
131, "Disclosures about Segments of an Enterprise and Related Information."
SFAS No. 131 establishes standards for the way companies report information
about operating segments in annual financial statements. It also establishes
standards for related disclosures about products and services, geographic areas
and major customers. AllAdvantage has determined that it did not have any
separately reportable business segments as of December 31, 1999.
Stock-Based Compensation
AllAdvantage accounts for its stock options and equity awards in accordance
with the provisions of Accounting Principles Board Opinion No. 25, "Accounting
for Stock Issued to Employees," and has elected to follow the "disclosure only"
alternative prescribed by Financial Accounting Standards Board's Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" (SFAS No. 123). AllAdvantage accounts for stock options issued to
non-employees in accordance with the provisions of SFAS No. 123 and Emerging
Issues Task Force 96-18.
Comprehensive Loss
AllAdvantage has adopted Statement of Financial Accounting Standards No.
130, "Reporting Comprehensive Income," which establishes standards for
reporting comprehensive loss and its components in the financial statements. To
date, AllAdvantage's comprehensive loss has equaled its net loss.
Unaudited Pro Forma Balance Sheet
If the initial public offering discussed in Note 11 is consummated, all of
the convertible preferred stock outstanding will automatially be converted into
common stock upon the closing of the offering. The conversion of the
convertible preferred stock that was outstanding as of December 31, 1999 has
been reflected in the accompanying unaudited pro forma balance sheet.
Net Loss Per Share
Basic net loss per share and diluted net loss per share are presented in
conformity with Statement of Financial Accounting Standards No. 128, "Earnings
Per Share" (SFAS No. 128), for the period presented. Pursuant to the Securities
and Exchange Commission Staff Accounting Bulletin No. 98, common stock and
convertible preferred stock issued or granted for nominal consideration prior
to the anticipated effective date of the initial public offering must be
included in the calculation of basic and diluted net loss per share as if they
had been outstanding for all periods presented. Through December 31, 1999,
AllAdvantage had not had any issuances or grants for nominal consideration.
In accordance with SFAS No. 128, basic and diluted net loss per share have
been computed using the weighted-average number of shares outstanding during
the period, less the weighted-average number of shares of common stock issued
to founders, investors and employees that are subject to repurchase. Basic and
diluted pro forma net loss per share, as presented in the statement of
operations, has been computed as described above and also gives effect, under
Securities and Exchange Commission ("SEC") guidance, to the conversion of the
convertible preferred stock (using the if-converted method) as though it had
happened on the original date of issuance. The following table presents the
calculations of basic and diluted and pro forma basic and diluted net loss per
share:
F-10
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
<TABLE>
<CAPTION>
Period from Inception
(March 24, 1999) to
December 31, 1999
---------------------
<S> <C>
Net loss................................................. $ 37,109,000
============
Basic and diluted:
Weighted-average shares of common stock outstanding.... 23,344,138
Less: weighted-average shares subject to repurchase.... (15,977,627)
------------
Weighted-average shares used in computing basic and
diluted net loss per share.............................. 7,366,511
============
Basic and diluted net loss per share..................... $ (5.04)
============
Pro forma:
Shares used above...................................... 7,366,511
Pro forma adjustment to reflect weighted effect of
assumed conversion of convertible preferred stock..... 31,006,461
Less: weighted-average shares of convertible preferred
stock subject to repurchase........................... (85,773)
------------
Shares used in computing pro forma basic and diluted
net loss per share (unaudited)...................... 38,287,199
============
Pro forma basic and diluted net loss per share
(unaudited)......................................... $ (0.97)
============
</TABLE>
AllAdvantage has excluded all convertible preferred stock, warrants for
convertible preferred stock, outstanding stock options and shares subject to
repurchase from the calculation of diluted net loss per share because all these
securities are antidilutive for the period presented. If the offering
contemplated by this prospectus is consummated, all of the convertible
preferred stock outstanding will automatically be converted into common stock.
Unaudited pro forma stockholders' equity at December 31, 1999, as adjusted for
the assumed conversion of convertible preferred stock based on the shares of
convertible preferred stock outstanding at December 31, 1999, is disclosed on
the accompanying consolidated balance sheet. In February 2000, AllAdvantage
completed a private placement of 16,453,926 shares of Series D convertible
preferred stock (See Note 10). Had this transaction occurred prior to December
31, 1999, the pro forma weighted average shares calculated above would have
been higher. The total number of shares excluded from the calculations of
diluted net loss per share were as follows:
<TABLE>
<CAPTION>
Total
Shares
----------
<S> <C>
Common stock, subject to repurchase............................. 20,498,129
Preferred stock (prior to conversion to common stock)........... 19,567,343
Common stock options outstanding................................ 10,484,233
Warrants to purchase preferred stock (prior to conversion to
common stock).................................................. 238,775
----------
50,788,480
==========
</TABLE>
Income Taxes
Since incorporation, AllAdvantage has recognized income taxes under the
liability method. Deferred income taxes are recognized for differences between
the financial statement and tax basis of assets and liabilities at enacted
statutory tax rates in effect for the years in which the differences are
expected to reverse. The effect on deferred taxes of a change in tax rates is
recognized in income in the period that includes the enactment date. In
addition, valuation allowances are established when necessary to reduce
deferred tax assets to the amounts expected to be realized.
F-11
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" ("SFAS No. 133"). SFAS No. 133 requires AllAdvantage to
recognize all derivatives on the balance sheet at fair value. Derivatives that
are not hedges must be adjusted to fair value through net income. If the
derivative is a hedge, depending on the nature of the hedge, changes in the
fair value of the derivative are either offset against the change in fair value
of assets, liabilities, or firm commitments through earnings or recognized in
other comprehensive income until the hedged item is recognized in earnings. The
ineffective portion of the derivative's change in fair value will be
immediately recognized in earnings. SFAS No. 133 is effective for years
beginning after June 15, 2000. AllAdvantage does not currently hold any
derivatives and does not expect this pronouncement to materially impact the
results of its operations.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 ("SAB 101"). SAB 101 summarizes certain areas of
the Staff's views in applying generally accepted accounting principles to
revenue recognition in financial statements. AllAdvantage believes that its
current revenue recognition principles comply with SAB 101.
3. PROPERTY AND EQUIPMENT
Property and equipment consists of the following (in thousands):
<TABLE>
<CAPTION>
December 31,
1999
------------
<S> <C>
Computer software and equipment............................... $4,660
Leasehold improvements........................................ 241
Furniture and fixtures........................................ 152
------
Total....................................................... 5,053
Less: accumulated depreciation and amortization............... (348)
------
$4,705
======
</TABLE>
4. STOCKHOLDERS' EQUITY
Convertible Preferred Stock:
<TABLE>
<CAPTION>
Shares Issued and
Shares Outstanding at Liquidation
Authorized December 31, 1999 Preference
---------- ----------------- -----------
<S> <C> <C> <C>
Series A........................ 4,000,000 4,000,000 $ 200,000
Series B........................ 2,500,000 2,500,000 1,800,000
Series C........................ 16,163,266 13,067,343 32,014,990
---------- ---------- -----------
Total convertible preferred
stock........................ 22,663,266 19,567,343 $34,014,990
========== ========== ===========
</TABLE>
Holders of AllAdvantage's Series A, B and C preferred stock are entitled to
one vote for each share of common stock into which the preferred stock is
convertible. Holders of AllAdvantage's preferred stock are also entitled to
vote separately as a class with regard to customary protective provisions.
The holders of Series A, B and C preferred stock are entitled to annual
noncumulative dividends per share of $0.005, $0.072 and $0.245, respectively,
when and if declared by the board of directors. In the event of any voluntary
or involuntary liquidation of AllAdvantage, Series A, B and C stockholders are
entitled to a
F-12
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
liquidation preference of $0.05, $0.72 and $2.45 per share, respectively, all
in preference to the holders of the common stock. After payment to the Series
A, B and C stockholders of all preferential amounts in the event of
liquidation, the holders of the common stock will receive any and all
remaining assets of AllAdvantage.
The holders of Series A, B and C preferred stock have the right at any time
to convert their shares into common stock. Series A and B preferred stock will
convert into four shares of common stock, while Series C preferred stock will
convert into two shares of common stock. Each share of preferred stock will be
automatically converted into common stock upon the closing of a firm
commitment of a public offering of AllAdvantage common stock with aggregate
proceeds in excess of $10,000,000.
In May and June 1999, AllAdvantage issued $1,550,000 of convertible notes
payable. In June 1999, the convertible notes payable were converted into
2,152,777 shares of Series B preferred stock.
In July 1999, AllAdvantage issued $2,000,000 of convertible notes payable.
In September 1999, the convertible notes payable were converted into 816,327
shares of Series C preferred stock.
Warrants
In connection with the issuance of convertible notes payable of $2,000,000
in July 1999, AllAdvantage issued warrants to purchase 244,897 shares of
Series C Preferred Stock at $0.06 per share, of which warrants to purchase
6,122 shares were exercised in 1999. AllAdvantage valued the warrants using
the Black-Scholes option model. The following assumptions were used in the
option pricing model: stock price of $2.45, exercise price of $0.06, warrant
term of 10 years, risk-free rate of interest of 6.1%, 100% volatility, and a
dividend yield of 0%. The value of the warrants (approximately $528,000) was
expensed as additional interest expense during the period for which the notes
remained outstanding.
Common Stock
On April 26, 1999, AllAdvantage issued 24,000,000 shares of common stock to
its founders. The shares issued were sold pursuant to restricted stock
purchase agreements. According to the agreements, AllAdvantage has the right
to repurchase 15,999,996 shares of common stock. This repurchase right expires
at the rate of 25% after one year and 2.08% each month thereafter, provided
the founders remain employees of AllAdvantage. At December 31, 1999,
15,999,996 shares of common stock remained subject to repurchase. None of the
shares subject to repurchase are subject to forfeiture for any reason other
than termination of employment.
As of December 31, 1999, shares of common stock reserved for future
issuance consisted of the following:
<TABLE>
<S> <C>
Stock options..................................................... 10,701,867
Series A, B and C convertible preferred stock..................... 52,134,686
Series C warrants................................................. 477,550
----------
63,314,103
==========
</TABLE>
Stock Splits
AllAdvantage effected a two-for-one stock split of common stock in both
July and October 1999. The common share information and preferred stock
conversion ratios in the accompanying financial statements have been
retroactively restated to reflect the effect of the stock splits.
F-13
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
5. EQUITY INCENTIVE PLAN
In April 1999, the board of directors approved the 1999 Equity Incentive
Plan (the "Plan"). Under the Plan, AllAdvantage has reserved 15,200,000 shares
for issuance to eligible participants. The Plan provides for option grants at
an option price no less than 85% of the fair market value of the stock subject
to the option on the date the option is granted. The options vest at a rate of
25% after one year of service and ratably over 36 months thereafter, and are
immediately exercisable in full, with the unvested portion of the shares
remaining subject to repurchase by AllAdvantage at the exercise price until the
shares become vested.
AllAdvantage had 4,498,133 unvested shares of common stock issued and
outstanding under the Plan at December 31, 1999, which were subject to
repurchase by the Company at the original exercise price. All options under the
Plan expire ten years after their grant.
The Plan also provides for restricted stock awards. The purchase price of
restricted stock under these awards must not be less than 85% of the fair
market value of the stock on the date the award is made or the purchase is
consummated. No restricted stock had been awarded at December 31, 1999.
Aggregate activity under the Plan is summarized as follows:
<TABLE>
<CAPTION>
Options Outstanding
-----------------------
Shares Weighted-
Available Number of Price per Average
for Grant Shares Share Exercise Price
----------- ---------- ------------- --------------
<S> <C> <C> <C> <C>
Authorized.............. 15,200,000 -- -- --
Options granted......... (15,543,366) 15,543,366 $0.03 - $1.25 $0.50
Options canceled........ 561,000 (561,000) $0.03 - $0.18 $0.04
Options exercised....... -- (4,498,133) $0.03 - $0.75 $0.10
----------- ----------
Balance at December 31,
1999................... 217,634 10,484,233 $0.03 - $1.25 $0.69
=========== ==========
</TABLE>
The following table summarizes information regarding options outstanding and
exercisable at December 31, 1999:
<TABLE>
<CAPTION>
Weighted-
Number Weighted- Average
Outstanding Average Remaining
Exercise and Exercise Contractual
Prices Exercisable Price Age (Years)
-------- ----------- --------- -----------
<S> <C> <C> <C>
$0.03.................................... 2,250,000 $0.03 9.56
0.18.................................... 2,017,000 0.18 9.68
0.75.................................... 1,843,367 0.75 9.78
1.25.................................... 4,373,866 1.25 9.97
----------
10,484,233 $0.69 9.79
==========
</TABLE>
In the period from inception (March 24, 1999) to December 31, 1999,
AllAdvantage recorded deferred stock compensation of approximately $20,119,000,
representing the aggregate difference between the exercise prices and the
deemed fair values of the AllAdvantage common stock on the dates these stock
options were granted. This amount is included as a reduction in stockholders'
equity and is being amortized by charges to operations on a graded vesting
method. AllAdvantage recorded amortization of deferred stock compensation of
approximately $1,547,000 for the period from inception (March 24, 1999) to
December 31, 1999. At December 31, 1999, AllAdvantage had a total of
$18,572,000 remaining to be amortized over the corresponding vesting periods of
the options, generally four years. The remaining deferred stock compensation
F-14
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
at December 31, 1999 will be amortized as follows: $9.7 million for the year
ending December 31, 2000, $5.1 million for the year ending December 31, 2001,
$2.7 million for the year ending December 31, 2002 and $1.1 million for the
year ending December 31, 2003. Stock-based compensation expense relates to
stock options awarded to individuals in all cost and expense categories.
In 1999, AllAdvantage issued options to purchase 159,323 shares of common
stock to several third party consultants in exchange for services rendered. In
connection with these options to purchase common stock, AllAdvantage recorded a
non-cash charge of $660,000 in its statement of operations for the period from
inception (March 24, 1999) to December 31, 1999.
Stock-Based Compensation
AllAdvantage has elected to follow APB 25 and related interpretations in
accounting for its employee stock-based compensation plans. Because the
exercise price of the employee stock options equals the market price of the
underlying stock on the date of grant, no compensation expense is generally
recognized. Pro forma information regarding net loss has been determined as if
AllAdvantage accounted for its employee stock options under the fair value
method prescribed by SFAS 123. The resulting effect on pro forma net loss
disclosed is not likely to be representative of the effects on net loss on a
pro forma basis in future years, due to additional grants and years of vesting
in subsequent years. The fair value of each option granted through December 31,
1999 was estimated on the date of grant using the minimum value method, with
the following weighted-average assumptions:
<TABLE>
<CAPTION>
Period from Inception
(March 24, 1999) to
December 31, 1999
---------------------
<S> <C>
Dividend yield....................................... 0
Risk-free interest rate.............................. 6%
Expected life........................................ 4 years
Weighted-average fair value of options granted....... $ 1.46
</TABLE>
For the purposes of pro forma disclosures, the estimated fair value of the
options is amortized to pro forma expense over the options' vesting period, and
results in a pro forma net loss of approximately $37,237,000 for the period
from inception (March 24, 1999) to December 31, 1999 and pro forma basic and
diluted net loss per share of $5.05 ($0.97 assuming conversion of the
convertible preferred stock that was outstanding at December 31, 1999).
6. PROVISION FOR INCOME TAXES
Due to operating losses and the inability to recognize the benefits
therefrom, there is no provision for income taxes for the period from inception
(March 24, 1999) to December 31, 1999.
As of December 31, 1999, AllAdvantage had federal net operating loss
carryforwards of approximately $28,600,000. The net operating loss
carryforwards will expire beginning in 2019, if not utilized.
Utilization of the net operating losses and credits may be subject to a
substantial limitation due to the "change in ownership" provisions of the
Internal Revenue Code of 1986 and similar state provisions. The annual
limitation may result in the expiration of net operating losses and credits
before utilization.
Deferred tax assets and liabilities reflect the net tax effects of net
operating loss and credit carryforwards and of temporary differences between
the carrying amounts of assets and liabilities for financial reporting and
F-15
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
the amounts used for income tax purposes. Significant components of
AllAdvantage's deferred tax assets are as follows (in thousands):
<TABLE>
<CAPTION>
As of
December 31,
1999
------------
<S> <C>
Deferred tax assets:
Net operating loss carryforwards............................ $ 11,700
Accrued member payouts...................................... 2,700
Other individually immaterial items......................... 300
--------
Total deferred tax assets................................. 14,700
Valuation allowance for deferred tax assets................... (14,700)
--------
Net deferred tax assets....................................... $ --
========
</TABLE>
FASB No. 109 provides for the recognition of deferred tax assets if
realization of these assets is more likely than not. Based upon the weight of
available evidence, which includes AllAdvantage's historical operating
performance, the Company has provided a full valuation allowance against its
total deferred tax assets.
7. CUSTOMER ADVANCE
In November 1999, AllAdvantage entered into an arrangement with a company,
whereby AllAdvantage is required to provide the other company with a certain
amount of advertising impressions on a monthly basis. In return, AllAdvantage
received an advance of $20,000,000. The advance accrues interest at 10% and is
secured by the advance itself. Under the terms of the arrangement, AllAdvantage
may use $5,000,000 per month for general corporate uses, with all restrictions
expiring on February 12, 2000. AllAdvantage has classified $10,000,000 as
restricted cash at December 31, 1999. Revenue earned by Alladvantage for
providing monthly advertising impressions is reduced from the cash advance on a
monthly basis. In addition, in November 1999, AllAdvantage entered into a
three-year arrangement with this company for that company to provide ad serving
services. AllAdvantage pays the company based on the number of impressions
served during each month, with a guaranteed minimum monthly fee.
8. COMMITMENTS
At December 31, 1999, AllAdvantage's aggregate commitments under
noncancelable lease arrangements for office space and computer equipment were
as follows (in thousands):
<TABLE>
<CAPTION>
Capital Operating
Leases Leases
------- ---------
<S> <C> <C>
Year ending December 31,
2000..................................................... $ 444 $1,085
2001..................................................... 255 894
2002..................................................... -- 927
2003..................................................... -- 183
2004..................................................... -- 189
Thereafter............................................... -- 344
----- ------
Total minimum payments required.......................... 699 $3,622
======
Less amount representing interest........................ (62)
-----
Present value of future payments......................... 637
Less current portion..................................... (383)
-----
$ 254
=====
</TABLE>
F-16
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Rent expense, principally for leased office space under operating lease
commitments, was approximately $365,000 for the period from inception (March
24, 1999) to December 31, 1999. AllAdvantage acquired $763,000 of equipment
under capital lease obligations for the period from inception (March 24, 1999)
to December 31, 1999. Accumulated depreciation for this equipment was $56,000
at December 31, 1999.
9. RELATED PARTY TRANSACTIONS
During 1999, one of the founders' spouses, through their placement firm
supplied recruiting and contract labor services to AllAdvantage. AllAdvantage
paid the placement firm $206,000 for such services rendered during 1999.
Management believes such services were rendered at fair value.
10. PRIVATE PLACEMENT EQUITY OFFERING OF SERIES D CONVERTIBLE PREFERRED STOCK
In February 2000, AllAdvantage completed a private placement of 16,453,926
shares of Series D convertible preferred stock at $6.05 per share, resulting in
net cash proceeds of $94,544,000. Holders of Series D preferred stock are
entitled to annual noncumulative dividends of $0.605 per share when and if
declared by the board of directors. In the event of voluntary or involuntary
liquidation of AllAdvantage, holders of Series D Convertible Preferred Stock
are entitled to a liquidation preference of $6.05 per share plus all declared
and unpaid dividends. Holders of Series D preferred stock are entitled to one
vote for each share of common stock into which the preferred stock is
convertible. Each share of preferred stock will be automatically converted into
one share of common stock upon the closing of a firm commitment of a public
offering of AllAdvantage common stock with aggregate proceeds in excess of
$10,000,000. This conversion ratio is impacted by the initial public offering
price of the shares in this offering. If the initial public offering price is
equal to or greater than $12.10, then each outstanding share of Series D
preferred stock will automatically convert into one share of common stock.
However, if the initial public offering price is less than $12.10, then each
outstanding share of Series D preferred stock will automatically convert into
that number of shares of common stock equal to the result obtained by dividing
$12.10 by the greater of the offering price or $9.68.
11. SUBSEQUENT EVENTS (unaudited)
Initial Public Offering
In January 2000, the board of directors authorized AllAdvantage to file a
registration statement with the SEC for an initial public offering of
AllAdvantage's common stock.
Amended Articles of Incorporation
In January 2000, the board of directors approved the reincorporation of
AllAdvantage in the State of Delaware, and an increase in the number of
authorized shares, which will be effected prior to the closing of the initial
public offering.
Lease Commitment
In January 1999, AllAdvantage entered into a ten-year lease arrangement for
its yet to be constructed headquarters. Under the terms and conditions of the
lease arrangement, AllAdvantage will commence making lease payments in December
2000, the approximate completion date of construction. Aggregate lease payments
under the term of the lease will be approximately $46,428,000 over the 10 year
term of the lease. As a condition of the lease agreement, AllAdvantage is
required to provide a letter of credit of $2 million (which may increase to as
much as $6.3 million) as a security deposit. In connection with the lease
arrangement,
F-17
<PAGE>
AllAdvantage.com Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
AllAdvantage issued a warrant to the lessor to purchase 75,000 shares of Series
D Preferred Stock at $6.05 per share. The value of the warrant will be
capitalized as deferred rental expense and expensed over the period of the
lease arrangement, commencing with occupation of the building.
2000 Equity Incentive Plans
The 2000 equity incentive plan of our California predecessor was adopted by
AllAdvantage's board of directors in January, 2000. As of December 31, 1999, no
options had been granted under this plan.
In February, 2000, AllAdvantage's board of directors approved the adoption
of the 2000 Equity Incentive Plan. A total of 20,000,000 shares of common stock
have been reserved for issuance under this plan. The number of shares reserved
under this plan will be increased automatically on January 1, of each year by
an amount equal to 5% of AllAdvantage's total outstanding shares on the
previous day. This plan will serve as the successor to the 1999 equity
incentive plan and 2000 equity incentive plan of our California predecessor.
2000 Employee Stock Purchase Plan
In February, 2000, the board of directors approved the adoption of the 2000
Employee Stock Purchase Plan. A total of 600,000 shares of common stock has
been reserved for issuance under this plan, plus, commencing on January 1,
2001, annual increases equal to 1% of the outstanding common shares on the
previous day or a lesser amount determined by the board of directors. The plan
enables eligible employees to acquire shares of AllAdvantage common stock
through periodic payroll deductions of up to 15% of their cash compensation,
subject to maximum purchase limitations. The purchase plan will be implemented
in a series of offering periods, each approximately two years in duration,
consisting of four six-month purchase periods. The price at which the common
stock may be purchased is 85% of the lesser of the fair market value of
AllAdvantage's common stock on the first day of the applicable offering period
or on the last day of the respective purchase period. The initial offering
period will commence on the effectiveness of the initial public offering.
Deferred Stock Compensation
From January through February 2000, we granted options to purchase
approximately 2.8 million shares of common stock to our employees at an
exercise price of $6.05 per share. We anticipate that we will record additional
deferred stock compensation of approximately $8.1 million related to these
grants.
F-18
<PAGE>
GRAPHICS AND TEXT ON THE INSIDE BACK COVER INCLUDE:
The following words are centered across the top of the inside back cover:
"Self-Perpetuating Cycle"
The AllAdvantage.com logo without the word AllAdvantage.com embedded in the
logo is centered in the middle of the page directly below the initial text.
Surrounding the logo is a circle comprised of four curved arrows each arrow
constituting a quadrant of the circumference of the circle. The following text
is presented in the center of each arrow, starting with the arrow above the
logo and following clockwise around the circle: "More Advertisers, More Value
to Members," "More Value to Members, More Incentive to Refer Members," "More
Members, Larger Profiled Audience,""More Attractive Advertising Channel Growth
to Advertiser Base."
At the bottom right hand corner of the page is Alladvantage.com's logo.
<PAGE>
[AllAdvantage Logo]
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses to be paid by
AllAdvantage in connection with the sale of the shares of common stock being
registered hereby. All amounts are estimates except for the SEC registration
fee, the NASD filing fee and the Nasdaq National Market filing fee.
<TABLE>
<S> <C>
SEC registration fee............................................. $45,540
NASD filing fee.................................................. 15,750
Nasdaq National Market filing fee................................ 95,000
Printing and engraving........................................... 150,000
Legal fees and expenses of the Registrant........................ 350,000
Accounting fees and expenses..................................... 350,000
Road show costs.................................................. 50,000
Blue sky fees and expenses....................................... 600
Transfer agent and registrar fees and expenses................... 1,000
Miscellaneous.................................................... 42,360
----------
Total.......................................................... $1,100,000
==========
</TABLE>
- --------
*To be filed by amendment
ITEM 14. 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 under certain circumstances and subject to certain limitations.
The terms of Section 145 of the Delaware General Corporation Law are
sufficiently broad to permit indemnification under certain circumstances for
liabilities, including reimbursement of expenses incurred, arising under the
Securities Act of 1933 (the "Securities Act").
As permitted by the Delaware General Corporation Law, the Registrant's
certificate of incorporation includes a provision that eliminates the personal
liability of a director for monetary damages resulting from breach of his
fiduciary duty as a director, except for liability:
. for any breach of the director's duty of loyalty to the Registrant or
its stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
. for any transaction from which the director derived an improper personal
benefit.
As permitted by the Delaware General Corporation Law, the Registrant's
bylaws provide that:
. the Registrant is required to indemnify its directors and officers to
the fullest extent permitted by the Delaware General Corporation Law,
subject to certain very limited exceptions;
. the Registrant is required to advance expenses, as incurred, to its
directors and officers in connection with a legal proceeding to the
fullest extent permitted by the Delaware General Corporation Law,
subject to certain very limited exceptions; and
. the rights conferred in the Bylaws are not exclusive.
II-1
<PAGE>
In addition, the Registrant intends to enter into indemnity agreements with
each of its current directors and officers. These agreements will provide for
the indemnification of 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 the Registrant.
The Registrant intends to obtain directors' and officers' insurance to cover
its directors, officers and some of its employees for certain liabilities,
including public securities matters.
The Underwriting Agreement filed as Exhibit 1.01 to this Registration
Statement provides for indemnification by the underwriters of the Registrant
and its directors and officers for certain liabilities under the Securities Act
of 1933, or otherwise.
Reference is made to the following documents filed as exhibits to this
Registration Statement regarding relevant indemnification provisions described
above and elsewhere herein:
<TABLE>
<CAPTION>
Exhibit Document Number
---------------- ------
<S> <C>
Form of Underwriting Agreement...................................... 1.01
Form of Second Amended and Restated Certificate of Incorporation of
the Registrant..................................................... 3.03
Restated Bylaws of the Registrant................................... 3.05
Form of Indemnity Agreement......................................... 10.01
</TABLE>
ITEM 15. Recent Sales of Unregistered Securities.
Since our inception in March 1999, we have issued and sold the following
unregistered securities:
1. In April 1999, 24,000,000 shares of common stock were issued to our
founders pursuant to restricted stock purchase agreements. The sale of this
common stock was made in reliance on Section 4(2) of the Securities Act.
2. In April 1999, we issued and sold a total of 4,000,000 shares of
Series A preferred stock to our founders for a total purchase price of
$200,000 paid through cancellation of indebtedness. The sale of preferred
stock was made in reliance on Section 4(2) and/or Rule 506 of Regulation D
under the Securities Act.
3. In June 1999, we issued and sold a total of 2,500,000 shares of
Series B preferred stock to a group of six individual investors, consisting
of a trust controlled by one of our directors, the father of one of our
officers and four unrelated individual investors, and four venture capital
funds for a total purchase price of $1,800,000, $1,550,000 of which was
paid through conversion of promissory notes and the remainder of which was
paid in cash. The sale of preferred stock was made in reliance on Section
4(2) and/or Rule 506 of Regulation D under the Securities Act.
4. In September, October and December 1999, we issued and sold a total
of 13,061,221 shares of Series C preferred stock to a group of 13
individual investors, consisting of a trust controlled by one of our
directors, a trust controlled by the father of one of our officers, one of
our officers and ten unrelated individual investors, and 18 venture capital
funds for a total purchase price of $31,999,991, $2,000,000 of which was
paid through conversion of promissory notes and the remainder of which was
paid in cash. The sale of preferred stock was made in reliance on Section
4(2) and/or Rule 506 of Regulation D under the Securities Act.
5. In September 1999, we issued warrants to purchase a total of 244,897
shares of Series C preferred stock with an exercise price of $0.06 per
share to one of our directors and six venture capital funds. In November
1999, a warrant to purchase 6,122 shares of Series C preferred stock was
exercised.
II-2
<PAGE>
As of December 31, 1999, warrants to purchase a total of 238,775 shares of
Series C preferred stock remained outstanding. The issuance and exercise of
these warrants was made in reliance on Section 4(2) and/or 506 of
Regulation D under the Securities Act.
6. In February 2000, we issued and sold a total of 16,453,926 shares of
Series D preferred stock to a group of 28 individual investors, consisting
of a limited liability company controlled by one of our directors, 15 of
our employees, a trust controlled by one of our employees, five individuals
affiliated with a landlord and six unrelated individual investors, and 29
venture capital funds for a total purchase price of $99,546,252 in cash.
This sale of preferred stock was made in reliance on Section 4(2) and/or
Rule 506 of Regulation D under the Securities Act.
7. In February 2000, we issued a warrant to purchase a total of 75,000
shares of our Series D preferred stock with an exercise price of $6.05 per
share for a purchase price of $750 to a landlord. The issuance of this
warrant was made in reliance on Section 4(2) and/or Rule 506 of Regulation
D under the Securities Act.
8. Since March 1999, 5,413,483 shares of common stock have been issued
to our employees, consultants and other service providers upon exercise of
options, and as of February 29, 2000, 12,331,808 shares of common stock
were issuable upon exercise of outstanding options. All sales of common
stock made pursuant to the exercise of stock options were made in reliance
on Rule 701 under the Securities Act.
The 4,000,000 shares of Series A preferred stock will automatically convert
on a four-for-one basis into 16,000,000 shares of common stock upon the
consummation of this offering as a result of two-for-one common stock splits
effected on July 1, 1999 and October 13, 1999. The 2,500,000 shares of Series B
preferred stock will automatically convert on a four-for-one basis into
10,000,000 shares of common stock upon the consummation of this offering as a
result of two-for-one common stock splits effected on July 1, 1999 and October
13, 1999. The 13,067,343 shares of Series C preferred stock will automatically
convert on a two-for-one basis into 26,134,686 shares of common stock upon the
consummation of this offering as a result of a two-for-one common stock split
effected on October 13, 1999.
The 16,453,926 shares of Series D preferred stock will automatically convert
on a 1.25-for-one basis into 20,567,407 shares of common stock upon the
consummation of this offering assuming an initial public offering price of
$9.00 per share. The ratio at which the Series D preferred stock will convert
into common stock has been adjusted to a ratio of 1.25 shares of common for
each share of preferred stock. This represents the most dilutive potential
ratio. If the offering price is higher than $9.68 per share, the conversion
ratio will be reduced such that, at an offering price of $12.10 per share or
above, the conversion ratio will be 1 for 1.
The sales of the above securities were made without general solicitation or
advertising. The recipients of securities in each transaction listed above
represented their intentions to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution and
appropriate legends were affixed to the share certificates issued in these
transactions. All recipients had adequate access, through their relationship
with us, to information about us.
II-3
<PAGE>
ITEM 16. Exhibits and Financial Statement Schedules.
(a) The following exhibits are filed herewith:
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
------- -------------
<C> <S>
1.01 Form of Underwriting Agreement.
2.01+ Form of Agreement and Plan of Merger between the Registrant and the
Registrant's California predecessor.
3.01+ Certificate of Incorporation of the Registrant, filed with the
Delaware Secretary of State on January 4, 2000.
3.02+ Form of First Amended and Restated Certificate of Incorporation of
the Registrant to be filed and effective prior to completion of this
offering.
3.03+ Form of Second Amended and Restated Certificate of Incorporation of
the Registrant to be filed and effective upon the completion of this
offering.
3.04+ Bylaws of the Registrant.
3.05+ Restated Bylaws of the Registrant to be effective prior to completion
of this offering.
4.01 Form of Specimen Certificate for Registrant's common stock.
4.02+ Second Amended and Restated Investors' Rights Agreement.
5.01 Form of Opinion of Fenwick & West LLP regarding legality of the
securities being registered.
10.01+ Form of Indemnity Agreement entered into between the Registrant and
its directors and executive officers.
10.02+ 1999 equity incentive plan of Registrant's California predecessor and
related forms of stock option agreements and stock option exercise
agreements.
10.03+ 2000 equity incentive plan of Registrant's California predecessor and
related forms of stock option agreements and stock option exercise
agreements.
10.04+ 2000 equity incentive plan and related forms of stock option
agreements and stock option exercise agreements.
10.05+ 2000 employee stock purchase plan and related enrollment form, notice
of suspension and notice of withdrawal.
Form of Restricted Stock Purchase Agreement entered into between
10.06+ Registrant and its founders.
Network Affiliate Agreement entered into between Registrant and
10.07**+ DoubleClick Inc.
DART Services Agreement for Publishers entered into between
10.08**+ Registrant and DoubleClick Inc.
Network Affiliation Agreement entered into between Registrant and
10.09**+ 24/7 Media Inc.
Lease Agreement entered into between Registrant and Hayward Point
10.10+ Eden I Limited Partnership.
Office Building Lease entered into between Registrant and HMS Gateway
10.11+ Office, L.P.
10.12+ Series D Preferred Stock Purchase Agreement.
10.13+ Viewbar Agreement.
21.01+ List of subsidiaries.
23.01 Form of Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01+ Power of Attorney.
27.01+ Financial Data Schedule.
</TABLE>
- --------
+Previously filed.
**Confidential treatment has been requested with respect to certain portions of
this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
(b) Financial statement schedules are omitted because the information called
for is not required or is shown either in the financial statements or the notes
thereto.
II-4
<PAGE>
ITEM 17. Undertakings.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 14 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange 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 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 Securities Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 2 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Hayward, State of California, on the 23rd day of March, 2000.
AllAdvantage.com Inc.
/s/ James Jorgensen
By: _________________________________
James Jorgensen
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints James Jorgensen, Michael Depatie and
David Johnson, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his 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 sign any
registration statements for the same offering covered by the Registration
Statement that is to be effective upon filing pursuant to Rule 462(b)
promulgated under the Securities Act of 1933, as amended, and all post-
effective amendments thereto, and to file the same, with all exhibits thereto
and all 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 and about in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or his or their substitute or substitutes, may lawfully do or cause to be
done or by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to the Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/s/ James Jorgensen President, Chief Executive March 23, 2000
_______________________________ Officer and Chairman of the
James R. Jorgensen Board of Directors (Principal
Executive Officer)
* Chief Financial Officer March 23, 2000
_______________________________ (Principal Financial Officer)
Michael A. Depatie
* Vice President Finance, March 23, 2000
_______________________________ Treasurer (Principal
Bernie Murphy Accounting Officer)
* Director March 23, 2000
_______________________________
William L. Burnham
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director March 23, 2000
_______________________________
Richard LeFurgy
* Director March 23, 2000
_______________________________
David Pidwell
* Director March 23, 2000
_______________________________
Johannes Pohle
* Director March 23, 2000
_______________________________
John Shoch
* Director March 23, 2000
_______________________________
Thomas Unterman
/s/ Leslie G. Denand Director March 23, 2000
_______________________________
Leslie G. Denand
</TABLE>
*By: /s/ James Jorgensen Attorney-in-fact March 23, 2000
_________________
James Jorgensen
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
------- -------------
<C> <S>
1.01 Form of Underwriting Agreement.
2.01+ Form of Agreement and Plan of Merger between the Registrant and the
Registrant's California predecessor.
3.01+ Certificate of Incorporation of the Registrant, filed with the
Delaware Secretary of State on January 4, 2000.
3.02+ Form of First Amended and Restated Certificate of Incorporation of
the Registrant to be filed and effective prior to completion of this
offering.
3.03+ Form of Second Amended and Restated Certificate of Incorporation of
the Registrant to be filed and effective upon the completion of this
offering.
3.04+ Bylaws of the Registrant.
3.05+ Restated Bylaws of the Registrant to be effective prior to completion
of this offering.
4.01 Form of Specimen Certificate for Registrant's common stock.
4.02+ Second Amended and Restated Investors' Rights Agreement.
5.01 Form of Opinion of Fenwick & West LLP regarding legality of the
securities being registered.
10.01+ Form of Indemnity Agreement entered into between the Registrant and
its directors and executive officers.
10.02+ 1999 equity incentive plan of Registrant's California predecessor and
related forms of stock option agreements and stock option exercise
agreements.
10.03+ 2000 equity incentive plan of Registrant's California predecessor and
related forms of stock option agreements and stock option exercise
agreements.
10.04+ 2000 equity incentive plan and related forms of stock option
agreements and stock option exercise agreements.
10.05+ 2000 employee stock purchase plan and related enrollment form, notice
of suspension and notice of withdrawal.
10.06+ Form of Restricted Stock Purchase Agreement entered into between
Registrant and its founders.
10.07**+ Network Affiliate Agreement entered into between Registrant and
DoubleClick Inc.
10.08**+ DART Services Agreement for Publishers entered into between
Registrant and DoubleClick Inc.
10.09**+ Network Affiliation Agreement entered into between Registrant and
24/7 Media Inc.
10.10+ Lease Agreement entered into between Registrant and Hayward Point
Eden I Limited Partnership.
10.11+ Office Building Lease entered into between Registrant and HMS Gateway
Office, L.P.
10.12+ Series D Preferred Stock Purchase Agreement.
10.13+ Viewbar Agreement.
21.01+ List of subsidiaries.
23.01 Form of Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01+ Power of Attorney.
27.01+ Financial Data Schedule.
</TABLE>
- --------
+Previously filed.
** Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
<PAGE>
Exhibit 1.01
_______________ Shares
AllAdvantage.com Inc.
Common Stock
UNDERWRITING AGREEMENT
----------------------
March __, 2000
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
FleetBoston Robertson Stephens Inc.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. AllAdvantage.com Inc., a Delaware corporation
("Company"), proposes to issue and sell __________ shares ("Firm Securities") of
its common stock, par value $.001 per share ("Securities"), and also proposes to
issue and sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than __________ additional shares ("Optional Securities")
of its Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "Offered Securities". As part of
the offering contemplated by this Agreement, Credit Suisse First Boston
Corporation (the "Designated Underwriter") has agreed to reserve out of the Firm
Securities purchased by it under this Agreement, up to
shares, for sale to the Company's directors, officers, employees and other
parties associated with the Company (collectively, "Participants"), as set forth
in the Prospectus (as defined herein) under the heading "Underwriting" (the
"Directed Share Program"). The Firm Securities to be sold by the Designated
Underwriter pursuant to the Directed Share Program (the "Directed Shares") will
be sold by the Designated Underwriter pursuant to this Agreement at the public
offering price. Any Directed Shares not subscribed for by the end of the
business day on which this Agreement is executed will be offered to the public
by the Underwriters as set forth in the Prospectus. The Company hereby agrees
with the several Underwriters named in Schedule A hereto ("Underwriters") as
follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
a. A registration statement (No. 333-96271) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and either (i) has been
declared effective under the Securities Act of 1933, as amended ("Act"),
and is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("initial registration statement") has been declared effective, either (i)
an additional registration statement ("additional registration statement")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (ii) such
<PAGE>
an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities will all
have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If the
Company does not propose to amend the initial registration statement or if
an additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment (if
any) to each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or, if
filed prior to the execution and delivery of this Agreement, the additional
registration statement means (i) if the Company has advised the
Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c), or
(ii) if the Company has advised the Representatives that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement, as
amended by such amendment or post-effective amendment, as the case may be,
is declared effective by the Commission. If an additional registration
statement has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it proposes
to file one, "Effective Time" with respect to such additional registration
statement means the date and time as of which such registration statement
is filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective
Time, including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as
the "Additional Registration Statement". The Initial Registration
Statement and the Additional Registration Statement are herein referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, is hereinafter
referred to as the "Prospectus". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
b. If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement: (i) on the Effective Date
of the Initial Registration Statement, the Initial Registration Statement
conformed in all respects to the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will conform,
in all respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery of
this Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration Statement
and the Prospectus will conform, in all respects to the
2
<PAGE>
requirements of the Act and the Rules and Regulations, and none of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
If the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement and
the Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b) hereof.
c. The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business of the
Company.
d. Each subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the business of the Company; all of the
issued and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
e. The Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Offered Securities have
been delivered and paid for in accordance with this Agreement on each
Closing Date (as defined below), such Offered Securities will have been,
validly issued, fully paid and nonassessable and will conform in all
material respects to the description thereof contained in the Prospectus;
and the stockholders of the Company and other third parties have no
preemptive rights with respect to the Offered Securities that have not been
waived or terminated prior to the Closing Date.
f. Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
this offering or any other arrangements, agreements, understandings,
payments or issuance with respect to the Company or any of its officers,
directors, shareholders, partners, employees, subsidiaries or affiliates
that may affect the Underwriters' compensation as determined by the
National Association of Securities Dealers, Inc. ("NASD").
g. Except as disclosed in the Prospectus and except for such rights
which have been waived with respect to the filing of the Registration
Statements, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the
Act.
3
<PAGE>
h. The Offered Securities have been approved for listing on the Nasdaq
Stock Market's National Market, subject to notice of issuance.
i. No consent, approval, authorization, or order of, or filing with, any
governmental agency or governmental body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of
the Offered Securities by the Company, except such as have been obtained
and made under the Act and the Securities Exchange Act of 1934, as amended
("Exchange Act") and such as may be required under state securities laws or
the bylaws or rules and regulations of the NASD.
j. The execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities, will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is subject, or
the charter or bylaws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
k. This Agreement has been duly authorized, executed and delivered by
the Company.
l. Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case, free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
m. The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
governmental bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("Material
Adverse Effect").
n. No labor dispute with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent that might have a
Material Adverse Effect.
o. Except as disclosed in the Prospectus, the Company owns, possesses or
licenses from third parties adequate trademarks, trade names and other
rights to inventions, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), patents, copyrights and other intellectual property
(collectively, "intellectual property rights") necessary to conduct the
business now operated by it or presently employed by it.
p. Neither the Company nor any of its subsidiaries is in violation of
any statute, rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate
4
<PAGE>
have a Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
q. There are no pending actions, suits or proceedings against or
affecting the Company or any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered Securities;
and no such actions, suits or proceedings are existing, threatened or, to
the Company's knowledge, contemplated.
r. The financial statements included in each Registration Statement and
the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis
and the schedule included in each Registration Statement presents fairly
the information required to be stated therein; and the assumptions used in
preparing the pro forma financial statements included in each Registration
Statement and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
s. Except as disclosed in the Prospectus, since the date of the latest
audited financial statements included in the Prospectus there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
t. The Company is not and, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940.
u. The Company represents and warrants to the Underwriters that (i) the
Registration Statement, the Prospectus and any preliminary prospectus
comply, and any further amendments or supplements thereto will comply, with
any applicable laws or regulations of foreign jurisdictions in which the
Prospectus or any preliminary prospectus, as amended or supplemented, if
applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is
necessary under the securities law and regulations of foreign jurisdictions
in which the Directed Shares are offered outside the United States.
v. The Company has not offered, or caused the Underwriters to offer, any
Offered Securities to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products.
w. The Agreement and Plan of Merger, dated _________, 2000 ("Merger
Agreement") by and between the Company and AllAdvantage.com, a California
corporation ("AllAdvantage"), has been duly authorized by all necessary
board of directors and stockholder action on the part of the Company and
AllAdvantage and has been duly executed and delivered by each of the
parties thereto. The execution and delivery of the Merger Agreement and
the consummation of the merger contemplated thereby does not contravene any
provision of
5
<PAGE>
applicable Federal, California or Delaware corporate law or the certificate
or articles of incorporation or bylaws of the Company or the certificate of
incorporation or bylaws of AllAdvantage, or, to the knowledge of the
Company, any judgment or decree of any governmental body, governmental
agency or court having jurisdiction over the Company or AllAdvantage, and
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company
and AllAdvantage of its obligations under the Merger Agreement except such
as have been obtained. The merger contemplated by the Merger Agreement is
effective under the laws of the State of California and the State of
Delaware.
x. All material Tax returns required to be filed by the Company have
been filed and all such returns are true, complete, and correct in all
material respects. All material Taxes that are due or claimed to be due
from the Company have been paid other than those (i) currently payable
without penalty or interest or (ii) being con tested in good faith and by
appropriate proceedings and for which, in the case of both clauses (i) and
(ii), ade quate reserves have been established on the books and records of
the Company in accordance with GAAP. There are no proposed, material Tax
assessments against the Company. To the best knowledge and belief of the
Company, the accruals and reserves on the books and records of the Company
in respect of any material Tax liability for any Taxable period not finally
determined are adequate to meet any assessments of Tax for any such period.
For purposes of this Agreement, the term "Tax" and "Taxes" shall mean all
Federal, state, local, and foreign taxes, and other assessments of a
similar nature (whether imposed directly or through with holding),
including any interest, additions to tax, or penalties applicable thereto.
(y) Neither the Company, nor any of its affiliates, has taken, directly
or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of the Securities
to facilitate the sale or resale of the Offered Securities.
(z) To the knowledge of the Company, Ernst & Young LLP, who have
certified the financial statements filed with the Commission as part of
each Registration Statement, are independent public auditors as required by
the Act and the Rules and Regulations. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
and (C) access to assets is permitted only in accordance with management's
general or specific authorization.
(aa) The Company carries, or is covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of its business and the
value of its properties and as is customary for companies engaged in
similar industries.
(bb) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus under the heading "Actual" under the
caption "Capitalization", and, after giving effect to the conversion of
preferred stock into common stock and the issuance of the Series D
Preferred Stock will be as set forth "Pro Forma", and after giving effect
to the offering and the conversion of preferred stock and the issuance of
the Series D Preferred Stock will be as set forth under the heading "Pro
Forma As Adjusted", in each case under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus) and the number of authorized, issued and
outstanding options and other rights is set forth in the footnotes under
such caption. The shares of issued and outstanding capital stock of the
Company have been issued in compliance, in all material respects, with all
federal and state securities laws. Except as disclosed in the Prospectus
and as described in this and the following sentence, there are no
outstanding options to purchase, or any preemptive rights or other rights
to subscribe for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of the
Company's capital stock or any such options, rights, convertible securities
or
6
<PAGE>
obligations, other than options issued pursuant to the Company's equity
incentive plans in the ordinary course of business. Since December 31,
1999, the Company has not issued any securities other than (i) Common Stock
of the Company pursuant to the exercise of previously outstanding and
privately granted options pursuant to the 1999 Equity Incentive Plan, and
(ii) options granted pursuant to the 1999 Equity Incentive Plan and the
2000 Equity Incentive Plan (collectively, the "Plans"). The description of
the Company's Plans and purchase plans and the options or other rights
granted and exercised thereunder set forth in the Prospectus accurately and
fairly describe, in all material respects, the information required to be
shown with respect to such plans, arrangements, options and rights.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements contained herein, but subject to the
terms and conditions set forth herein, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $ per share, the respective
numbers of shares of Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for the
accounts of the Underwriters, against payment of the purchase price in Federal
(same day) funds by official bank check or checks or wire transfer to an account
at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC") drawn
to the order of the Company at the office of Fenwick & West LLP, Two Palo Alto
Square, Palo Alto, California 94306, at 10:00 A.M., New York time, on
, or at such other time not later than seven full business days thereafter as
CSFBC and the Company determine, such time being herein referred to as the
"First Closing Date". For purposes of Rule 15c6-1 under the Exchange Act, the
First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests, and will be made
available for checking and packaging at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company from time
to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per share to be paid for the Firm Securities. The Company agrees
to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities being
herein referred to as an "Optional Closing Date", which may be the First Closing
Date (the First Closing Date and each Optional Closing Date, if any, being
sometimes referred to as a "Closing Date"), shall be determined by CSFBC but
shall be not later than five full business days after written notice of election
to purchase Optional Securities is given. The Company will deliver the Optional
Securities being purchased on each Optional Closing Date to the Representatives
for the accounts of the several Underwriters, against payment of the purchase
price therefor in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company, at the above office of Fenwick & West LLP. The certificates for
the Optional Securities being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as CSFBC
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at a reasonable time in advance of
such Optional Closing Date.
7
<PAGE>
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
a. If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as
of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later date
as shall have been consented to by CSFBC.
b. The Company will advise CSFBC promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or
the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
c. If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify CSFBC
of such event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither CSFBC's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
d. As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
e. The Company will furnish to the Representatives copies of each
Registration Statement, four of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus
8
<PAGE>
relating to the Offered Securities is required to be delivered under the
Act in connection with sales by any Underwriter or dealer, the Prospectus
and all amendments and supplements to such documents, in each case in such
quantities as CSFBC requests. The Prospectus shall be so furnished on or
prior to 6:00 P.M., New York time, on the business day following the later
of the execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement. All other documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
f. The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Company will not
be required to arrange for the qualification of the Offered Securities in
any jurisdiction in which the Company would be required to qualify to do
business as a foreign corporation or to execute a general consent to
service of process in order to effect such qualification.
g. During the period of five years hereafter, the Company will furnish
to the Representatives and, upon request, to each of the other
Underwriters, (i) as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (ii) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (iii)
from time to time, such other public information concerning the Company as
CSFBC may reasonably request.
h. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, for any filing fees and other expenses
(including the fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities for sale and determination of
their eligibility for investment under the laws of such jurisdictions as
CSFBC designates and the printing of memoranda relating thereto, for the
filing fee incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the NASD of
the Offered Securities, for any travel expenses of the Company's officers
and employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
i. For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its Securities or securities convertible into
or exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC, except
issuances of Securities pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date hereof, grants of employee
stock options pursuant to the terms of a plan in effect on the date hereof,
issuances of Securities pursuant to the exercise of such options, other
than (i) the Company's issuance of Securities upon the exercise of warrants
and stock options that are presently outstanding and described as such in
the Prospectus or which may be issued hereafter under the option plans in
effect on the date hereof, (ii) the Company's grants of options pursuant to
the option plans in effect on the date hereof, (iii) the Company's issuance
of Securities under the employee stock purchase plan in effect on the date
hereof and (iv) the Company's issuance of Securities in an acquisition of
another corporation or entity provided that (1) such Securities represent
less than 10% of the Company's then outstanding Securities and (2) the
Company has taken steps to ensure that such Securities may not be resold
during the 180 days following the first date that any of the Offered
Securities are released by the Underwriters for sale to the public.
9
<PAGE>
j. In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required
by the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
k. The Company will pay all fees and disbursements of counsel incurred
by the Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the
Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the
Directed Shares are offered, if any, in connection with the Directed Share
Program.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
a. The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the Initial Registration Statement to be
filed shortly prior to such Effective Time), of Ernst & Young LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
i. in their opinion the financial statements and schedule examined
by them and included in the Registration Statements comply as to form in
all material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
ii. on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that caused
them to believe that:
(A) at the date of the latest available balance sheet read by such
accountants, or at a subsequent specified date not more than three
business days prior to the date of this Agreement, there was any
change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or and its consolidated this Agreement, at the date of
the latest available balance sheet read by such accountants, there
was any decrease in consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the Prospectus; or
(B) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there were
any decreases, as compared with the corresponding period of the
previous year and with the period of corresponding length ended the
date of the latest income statement included in the Prospectus, in
consolidated net sales or net operating income or in the total or per
share amounts of consolidated income before extraordinary items or
net income,
10
<PAGE>
except in all cases set forth in clauses (A) and (B) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
iii they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the Initial Registration
Statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the Additional Registration
Statement as proposed to be filed or as proposed to be amended by the post-
effective amendment to be filed shortly prior to its Effective Time, and (iii)
"Prospectus" shall mean the prospectus included in the Registration Statements.
b. If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by
CSFBC. If the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Prospectus
is printed and distributed to any Underwriter, or shall have occurred at
such later date as shall have been consented to by CSFBC. If the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of
this Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated by
the Commission.
c. Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any exchange or in the over-
the-counter market; (iii) any banking moratorium declared by U.S. Federal
or New York authorities; or (iv) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
d. The Representatives shall have received an opinion, dated such
Closing Date, of Fenwick & West LLP, counsel for the Company, to the effect
that:
11
<PAGE>
i. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and corporate authority to own its properties and
conduct its business as described in the Prospectus; and the Company
is duly qualified to do business as a foreign corporation in good
standing in all other United States jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification;
ii. The Offered Securities have been duly authorized and validly
issued, are nonassessable and are fully paid and conform in all
material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company and other third
parties have no preemptive rights with respect to the Offered
Securities;
iii There are no contracts, agreements or understandings known to
such counsel between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act, except for
such rights which have been waived with respect to the filing of the
Registration Statements;
iv. The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
v. No consent, approval, authorization or order of, or filing
with, any United States governmental agency or governmental body or
any United States court is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and the Exchange Act and
such as may be required under state or foreign securities laws or the
bylaws or rules and regulations of the NASD;
vi. The execution, delivery and performance of this Agreement and
the issuance and sale of the Offered Securities will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any United States governmental agency or governmental body or any
court having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company is bound or to which any of the properties of the Company or
any such subsidiary is subject and in all cases, which the Company has
filed as an exhibit to the Registration Statements, except where such
breach, violation or default would not individually or in the
aggregate have a Material Adverse Effect, or the charter or bylaws of
the Company or any such subsidiary, and the Company has full corporate
power and corporate authority to authorize, issue and sell the Offered
Securities as set forth in this Agreement;
vii Based solely upon such advice from the Staff of the
Commission, the Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates,
12
<PAGE>
complied as to form in all material respects with the requirements of
the Act and the Rules and Regulations; the descriptions in the
Registration Statements and Prospectus in the sections entitled "Risk
Factors-We rely on our intellectual property rights. If we are unable
to protect these rights, we might face increased competition or
greater difficulty in successfully establishing the AllAdvantage
brand", "-We are subject to foreign government regulation and
taxation, currency issues, difficulties in managing foreign operations
and foreign political and economic instability", "-Failure to comply
with laws governing our service or material changes in the regulatory
environment relating to the Internet could harm our business", "-We
may face risks if new laws or government regulations regarding the
Internet are enacted", "-Provisions in our charter documents, Delaware
law and other documents could prevent or delay a change in control of
AllAdvantage and might reduce the market price of our common stock",
"Capitalization", "Business- Intellectual Property", "-Governmental
Regulation", "-Legal Proceedings", "Related Party Transactions",
"Description of Capital Stock", "____________" and "____________" of
statutes, legal and governmental proceedings and contracts and other
documents, insofar as such descriptions constitute a summary of legal
matters, documents or proceedings referred to therein, are accurate
and fairly present the information required to be shown in all
material respects by the Act and the Rules and Regulations; and such
counsel do not know of any legal or governmental proceedings required
to be described in a Registration Statement or the Prospectus which
are not described as required or of any contracts or documents
required to be described in a Registration Statement or the Prospectus
or to be filed as exhibits to a Registration Statement which are not
described or filed as required; it being understood that such counsel
need express no opinion as to the financial statements and the notes
and schedules thereto or other financial data contained in the
Registration Statements or the Prospectus; and
vii This Agreement was duly authorized, executed and delivered by
the Company.
ix. The Merger Agreement has been duly authorized by all
necessary board of directors and stockholder action on the part of the
Company and AllAdvantage and duly executed and delivered by each of
the parties thereto. The execution and delivery of the Merger
Agreement and the consummation of the merger contemplated thereby did
not contravene any provision of applicable federal, California or
Delaware corporate law or the articles of incorporation or bylaws of
the Company or the certificate of incorporation or bylaws of
AllAdvantage, or, to the knowledge of such counsel, any judgment or
decree of any governmental body, agency or court having jurisdiction
over the Company or AllAdvantage, and, to the knowledge of such
counsel, no consent, approval, authorization or order of or
qualification with any governmental body or agency was required for
the performance by the Company and AllAdvantage of its obligations
under the Merger Agreement except such as have been obtained. The
merger contemplated by the Merger Agreement was effective under the
laws of the State of California and the State of Delaware.
x. To our knowledge, all holders of securities of the Company
having rights to register shares of common stock, or other securities,
have waived such rights.
xi. To our knowledge, the Company has not received any notice of
infringement of or conflict with asserted rights of any third party's
material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, system or
procedures), trademarks, service marks and trade names that, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse effect on the business,
properties, operations, conditions (financial or otherwise) or results
of operations on the Company, except such as are described in the
Registration Statements and Prospectus.
xii The authorized, issued and outstanding capital stock of the
Company as of December 31, 1999 is as set forth under the heading
"Actual" under the caption "Capitalization" in the Prospectus. The
Plans and the stock options granted by the Company in accordance with
the Plans conforms in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus.
13
<PAGE>
In addition to the matters set forth above, counsel rendering the
foregoing opinion shall also include a statement to the effect that nothing has
come to the attention of such counsel that causes it to believe that the
Registration Statement (except as to the financial statements and other
financial and statistical data derived therefrom, as to which such counsel need
not express any opinion or belief) at the date the Registration Statement became
effective or as of such Closing Date contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto (except as to the financial
statements and other financial and statistical data derived therefrom, as to
which such counsel need not express any opinion or belief) as of its date or as
of such Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
e. The Representatives shall have received an opinion, dated such
Closing Date, of Blakely Sokoloff Taylor & Zafman LLP, special patent
counsel for the Company, in the form attached hereto as Annex A.
f. The Representatives shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
g. The Representatives shall have received a certificate, dated such
Closing Date, of the Chief Executive Officer or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation on
behalf of the Company, shall state that: the representations and warranties
of the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; no stop
order suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any
Underwriter; and, subsequent to the dates of the most recent financial
statements in the Prospectus, there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described in
such certificate.
h. The Representatives shall have received a letter, dated such Closing
Date, of Ernst & Young LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
i. On or prior to the date of this Agreement, the Representatives shall
have received lockup letters from each of the executive officers and
directors and shareholders and holders of options to purchase securities of
the Company who in the aggregate own at least 95% of the outstanding shares
of the Company.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
14
<PAGE>
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless, each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus or Prospectus, as
then amended or supplemented, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Offered Securities concerned, to the extent that a prospectus relating to such
Offered Securities was required to be delivered by such Underwriter under the
Act in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Offered Securities to such person, a copy of the Prospectus (as amended or
supplemented) if the Company had previously furnished copies thereof to such
Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "Designated Entities"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
b. Each Underwriter will severally and not jointly indemnify and hold
harmless, the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph
15
<PAGE>
under the caption "Underwriting" and the information contained in the seventh
paragraph regarding sales to discretionary accounts and the sixteenth paragraph
relating to stabilization under the caption "Underwriting".
c. Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the last paragraph in
Section 7(a) hereof in respect of such action or proceeding, then in addition to
such separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act of Section 20 of
the Exchange Act. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
d. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
16
<PAGE>
e. The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or an Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8, the occurrence of
any event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder must be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department--
Transactions Advisory Group, with a copy to Skadden, Arps, Slate, Meagher & Flom
LLP, 525 University Avenue, Palo Alto, California 94131, Attention: Gregory C.
Smith, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 4010 Point Eden Way, Hayward, California 94545, Attention:
James Jorgensen, with a copy to Fenwick & West, Two Palo Alto Square, Palo Alto,
California 94131, Attention: Mark A. Leahy; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
17
<PAGE>
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of law.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
18
<PAGE>
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
ALLADVANTAGE.COM INC.
By_______________________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written.
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
FleetBoston Robertson Stephens Inc.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By Credit Suisse First Boston Corporation
By_________________________________________
Name:
Title:
19
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Shares of
Underwriter Firm Securities
- ----------------------------------------------------- ---------------
<S> <C>
Credit Suisse First Boston Corporation
Donaldson, Lufkin & Jenrette Securities Corporation
FleetBoston Robertson Stephens Inc.
____________
Total
============
</TABLE>
20
<PAGE>
EXHIBIT 4.01
NUMBER alladvantage.com (Logo) SHARES
ALL
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 016708 10 9
This Certifies that
is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK, $.001 PAR VALUE, OF
ALL ADVANTAGE.COM INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
<TABLE>
<S> <C> <C>
/s/ David W. Johnson [AllAdvantage.com Inc. /s/James R. Jorgensen
SECRETARY Corporate Seal] PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN
</TABLE>
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT AND REGISTRAR
BY:
AUTHORIZED SIGNATURE
<PAGE>
The Corporation shall furnish without charge to each stockholder who
so requests a statement of the powers, designations, preferences and relative,
participating, optional, or other special rights of each class of stock of the
Corporation or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights. Such requests shall be made to
the Corporation's Secretary at the principal office of the Corporation.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT- _____________ Custodian______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act ____________________________
in common (State)
UNIF TRF MIN ACT- ___________ Custodian (until age__)
(Cust)
___________ under Uniform Transfers
(Minor)
to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________________________ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------
- ------------------------------------
_______________________________________________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________Shares
of the common stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
__________________________________________________________________________________________________ Attorney to transfer
the said stock on the books of the within named Corporation with full power of substitution in the premises.
Dated ____________________
X ________________________________________________________________________________________
X ________________________________________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE
OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
Signature(s) Guaranteed
By ___________________________________________________________________________________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
</TABLE>
2
<PAGE>
EXHIBIT 5.01
------------
________ __, 2000
AllAdvantage.com Inc.
4010 Point Eden Way
Hayward, CA 94545
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-1
(File Number 333-96271) (the "Registration Statement") filed by AllAdvantage.
com Inc., a Delaware corporation (the "Company"), with the Securities and
Exchange Commission (the "Commission") on February 7, 2000, as subsequently
amended, in connection with the registration under the Securities Act of 1933,
as amended, of an aggregate of ______________ shares of the Company's Common
Stock (the "Stock").
In rendering this opinion, we have examined the following:
(1) the Company's registration statement on Form 8-A filed with the
Commission on March 23, 2000;
(2) the Registration Statement, together with the Exhibits filed as a part
thereof;
(3) the Prospectus prepared in connection with the Registration Statement;
(4) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in the
Company's minute books and the minute books of your predecessor,
AllAdvantage.com, a California corporation ("AllAdvantage.com
California"), that are in our possession;
(5) the stock records for both the Company and AllAdvantage.com
California that we have maintained in the course of our representation
of you (consisting of a list of stockholders and a list of option and
warrant holders respecting the Company's capital and of any rights to
purchase capital stock that the Company has verified in connection
with the preparation of its Management Certificate described in the
following paragraph); and
(6) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
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 and completeness of all documents submitted
to us as originals, the conformity to originals and completeness of all
documents submitted to us as copies, the legal capacity of all persons executing
the same, the lack of any undisclosed termination, modification, waiver or
<PAGE>
_________ __, 2000
Page 2
amendment to any document 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. We have also assumed that the
certificates representing the Stock have been, or will be when issued, properly
signed by authorized officers of the Company or their agents.
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 records and documents
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 render
this opinion only with respect to, and 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 States of California and
Delaware.
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 been declared 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 up to ______________
shares of Stock to be issued and sold by the Company, when issued, sold and
delivered in the manner and for the consideration stated in the Registration
Statement and the Prospectus, 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 use in connection with issuance and
sale of shares subject to the Registration Statement and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: _______________________
<PAGE>
Exhibit 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated February 3, 2000 (except for Note 11, as to which
the date is March , 2000), in the Registration Statement (Form S-1) and
related Prospectus of AllAdvantage.com Inc.
Ernst & Young LLP
Palo Alto, California
March , 2000
- --------------------------------------------------------------------------------
The foregoing consent is in the form that will be signed upon the completion
of the reincorporation and other matters described in Note 11 to the
consolidated financial statements.
/s/ Ernst & Young LLP
Palo Alto, California
March 22, 2000
