As filed with the Securities and Exchange Commission on November 20, 2003.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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DOUBLECLICK INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-3870996
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
450 WEST 33RD STREET
NEW YORK, NEW YORK 10001
(Address of Principal Executive Offices) (Zip Code)
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DOUBLECLICK INC. DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
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KEVIN P. RYAN
CHIEF EXECUTIVE OFFICER
DOUBLECLICK INC.
450 WEST 33RD STREET
NEW YORK, NEW YORK, 10001
(Name and Address of Agent For Service)
(212) 683-0001
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED OBLIGATION PRICE(2) REGISTRATION FEE
- ------------------------------ ------------ ------------------ ------------------ ----------------
Deferred Compensation
Obligations(1) $10,000,000 100% $10,000,000 $809.00
(1) The Deferred Compensation Obligations are unsecured general obligations of
DoubleClick Inc. to pay deferred compensation in the future in accordance
with the terms of the DoubleClick Inc. Deferred Compensation Plan.
(2) Estimated solely for the purpose of calculating the registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information required by Item 1 is included in documents sent or
given to participants in the plan covered by this registration statement
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The written statement required by Item 2 is included in documents sent
or given to participants in the plan covered by this registration statement
pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this registration statement by reference:
(a) The registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act that contains audited financial
statements for the registrant's latest fiscal year for which such statements
have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (a) above.
(c) The description of the securities contained in the
registrant's registration statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Under the DoubleClick Inc. Deferred Compensation Plan (the "Plan"), the
registrant will provide a select group of management and other employees (the
"Eligible Employees") the opportunity to enter into agreements for the deferral
of a flat dollar amount or a specified percentage of their salary and bonus. The
obligations of the registrant under such agreements (the "Obligations") will be
unfunded and unsecured general obligations of the registrant to pay in the
future in accordance with the Plan. The value of the deferred compensation
recordkeeping account of a participant (a "Participant") will be adjusted to
reflect the performance during the deferral period, whether positive or
negative, of the investment measurement options chosen by each Participant from
the investment annual measurement options made available by the Plan, in
accordance with the terms of the Plan.
The Plan will be administered by the 401(k) Administrative Committee of
the registrant (the "Committee"). The amount of compensation to be deferred by
each Participant will be determined in accordance with the Plan based on
elections by the Participant. An Eligible Employee may elect to defer up to 100%
of his or her compensation, subject to a minimum annual deferral amount of
$5,000 and also subject to limits required to make necessary withholdings and to
assure that the participant receives cash compensation at least equal to the
minimum wage. Deferred amounts of compensation deferred by the Participant will
immediately be fully vested. The registrant may, in its discretion, also credit
a Participant's account with employer contributions. Contributions by the
registrant into a Participant's deferral account will vest in full after two
years of service to the registrant by the Participant, or earlier under certain
circumstances.
The Obligations to each Participant will equal the balance in a
recordkeeping account established for such Participant. The investment earnings
credited to such account will be indexed to one or more mutual funds, indices or
investment portfolios, the type of which will be individually chosen by each
Participant from a list of investment measurement options made available under
the Plan. Each Participant's recordkeeping account will be adjusted to reflect
deferrals by the Participant, employer contributions and the investment
performance of the selected mutual fund, index or portfolio, including any
earnings or losses credited to the account. The registrant is not required to
actually invest the deferred compensation in the funds, indices or portfolios
specified by Participants. The registrant may, however, invest in funds, indices
or portfolios specified by Participants or in other securities, and the
registrant has established a trust, which is a grantor trust for federal income
purposes, to make such investments to assist the registrant in meeting the
Obligations. While money in this trust is set aside from the general assets of
the registrant, the money is subject to the claims of the registrant's
creditors in certain circumstances detailed therein.
The Obligations will be distributed by the registrant in accordance
with the elections of the Participants pursuant to the terms of the Plan except
for certain exceptions detailed therein.
A Participant's right or the right of any other person to the
Obligations cannot be assigned or transferred in any manner or be subject to
alienation, anticipation, sale, pledge, transfer, encumbrance or other legal
process. The registrant may at any time amend, modify, suspend or terminate the
Plan, except that no such amendment, modification, suspension or termination may
have the retroactive effect to reduce the amount of deferrals allocated to any
Participant's deferral account.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Hale and Dorr LLP has opined as to the legality of the securities being
offered by this registration statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any person who was or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that the indemnification provided by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the scope of indemnification extends to directors, officers,
employees, or agents of a constituent corporation absorbed in a consolidation or
merger and persons serving in that capacity at the request of the constituent
corporation for another. Section 145 also empowers a corporation to purchase and
maintain insurance on behalf of a director or officer of the corporation against
any liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Section 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to limit the personal liability
of members of its board of directors for violation of a director's fiduciary
duty of care. This section does not, however, limit the liability of a director
for breaching his or her duty of loyalty, failing to act in good faith, engaging
in intentional misconduct or
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knowingly violating a law, or from any transaction in which the director derived
an improper personal benefit. This section also will have no effect on claims
arising under the federal securities laws.
Article VIII of the registrant's Amended and Restated By-laws specifies
that the registrant shall indemnify each of its directors and officers because
he or she was or is a director or officer of the registrant or was or is serving
at the request of the registrant as a director or officer of another entity to
the full extent that such right of indemnity is permitted by the laws of the
State of Delaware. This provision of the By-laws is deemed to be a contract
between the registrant and each director and officer who serves in such capacity
at any time while such provision and the relevant provisions of the Delaware
General Corporation Law are in effect, and any repeal or modification thereof
shall not offset any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
The affirmative vote of the holders of at least 66 2/3% of the voting power of
all outstanding shares of the capital stock of the registrant is required to
adopt, amend or repeal such provision of the registrant's By-laws. In addition,
in accordance with the registrant's Amended and Restated Certificate of
Incorporation, as amended, the registrant's board of directors may repeal,
alter, amend or rescind any provision of the By-laws by vote of 66 2/3% of the
board of directors.
The registrant's Amended and Restated Certificate of Incorporation, as
amended: (i) limits the liability of its directors as authorized by Section
102(b)(7); and (ii) specifies that the registrant may, to the fullest extent
permitted by Section 145 of the Delaware General Corporation Law, as amended
from time to time, indemnify each person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was, or has agreed to become, a director or officer of
the registrant, or is or was serving, or has agreed to serve, at the request of
the registrant, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to
have been taken or omitted in such capacity. The affirmative vote of the holders
of at least 66 2/3% of the voting power of all outstanding shares of the capital
stock of the registrant is required to amend such provisions.
The registrant has obtained liability insurance for the benefit of its
directors and officers which provides coverage for losses of directors and
officers for liabilities arising out of claims against such persons acting as
directors or officers of the registrant (or any subsidiary thereof) due to any
breach of duty, neglect, error, misstatement, misleading statement, omission or
act done by such directors and officers, except as prohibited by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
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(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, state of New York, on this 20th day of
November, 2003.
DOUBLECLICK INC.
By: /s/ Kevin P. Ryan
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Kevin P. Ryan
Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of DoubleClick Inc., hereby
severally constitute and appoint Kevin P. Ryan and Bruce Dalziel, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
the registration statement on Form S-8 filed herewith and any and all subsequent
amendments to said registration statement, and generally to do all such things
in our names and on our behalf in our capacities as officers and directors to
enable DoubleClick Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said registration statement and any
and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ----------------------------------------- ---------------------------------- ----------------
/s/ Kevin P. Ryan
- -----------------------------------------
Kevin P. Ryan Chief Executive Officer (principal November 20, 2003
executive officer) and Director
/s/ Bruce Dalziel
- ----------------------------------------- Chief Financial Officer (principal November 20, 2003
Bruce Dalziel financial officer)
/s/ Kevin J. O'Connor
- ----------------------------------------- Chairman of the Board November 20, 2003
Kevin J. O'Connor
/s/ Dwight A. Merriman
- ----------------------------------------- Director November 20, 2003
Dwight A. Merriman
/s/ David M. Strohm
- ----------------------------------------- Director November 20, 2003
David N. Strohm
/s/ Mark E. Nunnelly
- ----------------------------------------- Director November 20, 2003
Mark E. Nunnelly
/s/ W. Grant Gregory
- ----------------------------------------- Director November 20, 2003
W. Grant Gregory
/s/ Don Peppers
- ----------------------------------------- Director November 20, 2003
Don Peppers
/s/ Thomas S. Murphy
- ----------------------------------------- Director November 20, 2003
Thomas S. Murphy
INDEX TO EXHIBITS
Number Description
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4.1 Amended and Restated Certificate of Incorporation, as amended
(Incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form S-3 (Registration No. 333-108789))
4.2 Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.5
of the Registrant's Registration Statement on Form S-1 (Registration
No. 333-4232))
5.1 Opinion of Hale and Dorr LLP, counsel to the Registrant
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 Power of attorney (included on the signature pages of this registration
statement)