As filed with the Securities and Exchange Commission on January 31, 2000
Registration Statement No. 333-93013
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1 to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AltaVista Company
(Exact name of Registrant as specified in its charter)
Delaware 7379 04-3479713
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
529 Bryant Street
Palo Alto, California 94301
(650) 617-3400
(Address, including zip code, and telephone number
Including area code, of Registrant's principal executive offices)
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Stephanie A. Lucie, Esq.
Vice President, General Counsel and Secretary
AltaVista Company
529 Bryant Street
Palo Alto, California 94301
(650) 617-3400
(Name, Address, Including Zip Code, and Telephone Number
Including Area Code, of Agent for Service)
Copies to:
Michael V. Gisser, Esq. Bruce K. Dallas, Esq.
Kenton J. King, Esq. Davis Polk & Wardwell
Skadden, Arps, Slate, Meagher & Flom LLP 1600 El Camino Real
525 University Avenue, Suite 220 Menlo Park, California 94025
Palo Alto, California 94301 (650) 752-2000
(650) 470-4500
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of 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, please 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, 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, 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. [_]
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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 an 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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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Explanatory Note
The purpose of this Amendment No. 1 to the Registration Statement is to
file certain exhibits to the Registration Statement, as set forth in Item
16(a) of Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in connection
with the offering described in this Registration Statement, all of which will
be paid by AltaVista. All amounts are estimates, other than the registration
fee, the NASD fee, and the Nasdaq National Market listing fee.
SEC Registration fee.............................................. 79,200
NASD Filing fee................................................... 30,500
Nasdaq National Market listing fee................................ *
Accounting fees and expenses...................................... *
Legal fees and expenses........................................... *
Director and officer insurance expenses........................... *
Printing and engraving expenses................................... *
Transfer agent fees and expenses.................................. *
Blue sky fees and expenses........................................ *
Miscellaneous fees and expense.................................... *
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Total .......................................................... $
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* To be completed by amendment.
Item 14. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law ("DGCL"), as amended,
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend
or approved a stock repurchase in violation of Delaware corporate law or
obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that the Company may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the Company) by reason of the fact that the
person is or was a director, officer, agent or employee of the Company or is
or was serving at the Company's request as a director, officer, agent, or
employee of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgment, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding. The power to indemnify
applies (a) if such person is successful on the merits or otherwise in defense
of any action, suit or proceeding, or (b) if such person acted in good faith
and in a manner he reasonably believed to be in the best interest, or not
opposed to the best interest, of the Company, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The power to indemnify applies to actions brought by or in the right
of the Company as well, but only to the extent of defense expenses (including
attorneys' fees but excluding amounts paid in settlement) actually and
reasonably incurred and not to any satisfaction of judgment or settlement of
the claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence
or misconduct in the performance of his duties to the Company, unless the
court believes that in light of all the circumstances indemnification should
apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the
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time, may avoid liability by causing his or her dissent to such actions to be
entered in the books containing the minutes of the meetings of the board of
directors at the time such action occurred or immediately after such absent
director receives notice of the unlawful acts.
Our Amended and Restated Certificate of Incorporation includes a provision
that eliminates the personal liability of its directors for monetary damages
for breach of fiduciary duty as a director, except for liability:
. for any breach of the director's duty of loyalty to AltaVista or its
stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under the 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.
These provisions are permitted under Delaware law.
Our Amended and Restated Bylaws provide that:
. we must indemnify our directors and officers to the fullest extent
permitted by Delaware law;
. we may indemnify our other employees and agents to the same extent that
we indemnified our officers and directors, unless otherwise determined by
our Board of Directors; and
. we must advance expenses, as incurred, to our directors and executive
officers in connection with a legal proceeding to the fullest extent
permitted by Delaware Law.
The indemnification provisions contained in the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws are not
exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise. In
addition, the Company maintains insurance on behalf of its directors and
executive officers insuring them against any liability asserted against them
in their capacities as directors or officers or arising out of such status.
Item 15. Recent Sales of Unregistered Securities.
In the three fiscal years preceding the filing of this registration
statement, AltaVista has issued the following securities that were not
registered under the Securities Act:
(a) Issuances of Capital Stock
(b) Grants and Exercises of Stock Options
As of November 30, 1999, AltaVista had granted options to purchase an
aggregate of 340,000 shares of common stock, with a weighted average exercise
price of $ per share, to its non-employee directors.
As of November 30, 1999, AltaVista had granted options to purchase an
aggregate of shares of common stock, with a weighted average exercise
price of $ per share, to its employees under its stock option plans.
(c) Exemptions
No underwriters were involved in the foregoing sales of securities. These
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by
an issuer not involving any public offering or the rules and regulations
thereunder or, in the case of options to purchase common stock, Rule 701 under
the Securities Act. All of the foregoing securities are deemed restricted
securities for purposes of the Securities Act.
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Item 16. Exhibits and Financial Statement Schedules.
a. Exhibits
Exhibit
Number Description
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1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Certificate of Incorporation**
3.2 Amended and Restated By-Laws**
4.1 Form of common stock certificate*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP*
10.1 1999 Stock Option Plan**
10.2 1999 Stock Option Plan Agreement**
10.3 1999 Equity Incentive Plan**
10.4 1999 Equity Incentive Plan Agreement**
10.5 1999 Stock Option Plan for Non-Employee Directors**
10.6 Amended and Restated 1999 Stock Option Plan for Non-Employee
Directors**
10.7 1999 Stock Option Plan for Non-Employee Directors Agreement**
10.8 Form of Severance Agreement**
10.9 Forms of Indemnity Agreements**
10.10 Deferred Compensation Plan**
10.11 Trust Agreement under Deferred Compensation Plan**
10.12 Investor Rights Agreement by and between AltaVista and CMGI, Inc.**
10.13 1999 Employee Stock Purchase Plan
10.14+ Advertising Services Agreement, between DoubleClick, Inc. and
AltaVista, dated as of November 1, 1999
10.15+ Advertising Services Agreement, between DoubleClick, Inc. and Compaq
Computer Corporation, dated as of January 1, 1999
10.16+ Relevant portions of the Strategic Business Agreement, between Compaq
Computer Corporation and CMGI, Inc., dated as of June 29, 1999
10.17+ Strategic Alliance Agreement, between 1stUp.Com Corporation and
AltaVista, dated as of June 25, 1999
16.1 Letter Regarding Change in Accountants**
21.1 Subsidiary of the Registrant**
23.1 Consent and Report of KPMG LLP**
23.2 Consent of Singer Lewak Greenbaum & Goldstein LLP**
23.3 Consent of PricewaterhouseCoopers LLP**
23.4 Report of PricewaterhouseCoopers LLP**
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1)*
24.1 Power of Attorney**
27.1 Financial Data Schedule**
27.2 Financial Data Schedule**
27.3 Financial Data Schedule**
27.4 Financial Data Schedule**
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* To be filed by amendment.
** Previously filed.
+ We have sought confidential treatment from the Commission for selected
portions of this exhibit. The omitted portions will be separately filed
with the Commission.
b. Financial Statement Schedules
Schedule II -- Valuation and Qualifying Accounts
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Item 17. Undertakings.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing 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
of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions described in Item 14, or otherwise,
the registrant has been informed 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 by the registrant 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 maser 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
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a 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 of 1933, 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 bonafide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Palo Alto, State of
California, on January 28, 2000.
AltaVista Company
/s/ Kenneth R. Barber
By: ________________________________
Name: Kenneth R. Barber
Title: Vice President and Chief
Financial Officer
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
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* President, Chief Executive January 28, 2000
____________________________________ Officer and Director
Rodney W. Schrock
* Vice President and Chief January 28, 2000
____________________________________ Financial Officer
Kenneth R. Barber
* Vice President, Corporate January 28, 2000
____________________________________ Controller and Treasurer
Mary S. Yuschak
* Chairman January 28, 2000
____________________________________
David S. Wetherell
* Director January 28, 2000
____________________________________
Flint J. Brenton
* Director January 28, 2000
____________________________________
John G. McDonald
* Director January 28, 2000
____________________________________
Avram Miller
* Director January 28, 2000
____________________________________
Robert J. Ranalli
/s/ Kenneth R. Barber
*By:_________________________
Name:
Kenneth R. Barber
(Attorney-in-fact)
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EXHIBIT INDEX
Exhibit Description
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10.13 1999 Employee Stock Purchase Plan
10.14 Advertising Services Agreement, between DoubleClick, Inc. and
AltaVista, dated as of November 1, 1999
10.15 Advertising Services Agreement, between DoubleClick, Inc. and Compaq
Computer Corporation, dated as of January 1, 1999
10.16 Relevant portions of the Strategic Business Agreement, between Compaq
Computer Corporation and CMGI, Inc., dated as of June 29, 1999
10.17 Strategic Alliance Agreement, between 1stUp.Com Corporation and
AltaVista, dated as of June 25, 1999