Conversant, Inc.
VALUECLICK INC/CA (Form: S-8, Received: 05/18/2001 17:23:04)
As filed with the Securities and Exchange Commission on May 18, 2001
Registration No. 333-____________

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


VALUECLICK, INC.
(Exact name of registrant as specified in its charter)

            DELAWARE                                    77-0495335
    (State or other jurisdiction               (IRS Employer Identification No.)
  of incorporation or organization)


4360 PARK TERRACE DRIVE, SUITE 100
WESTLAKE VILLAGE, CALIFORNIA 91361
(Address of principal executive offices) (Zip Code)

1999 STOCK OPTION PLAN
(Full title of the Plans)


JAMES R. ZARLEY
CHIEF EXECUTIVE OFFICER
VALUECLICK, INC.
4360 PARK TERRACE DRIVE, SUITE 100
WESTLAKE VILLAGE, CALIFORNIA 91361
(Name and address of agent for service)

(818) 575-4500
(Telephone number, including area code, of agent for service)


CALCULATION OF REGISTRATION FEE

=================================================================================================================================
                                                                      PROPOSED              PROPOSED
        TITLE OF SECURITIES TO BE            AMOUNT TO BE         MAXIMUM OFFERING     MAXIMUM AGGREGATE         AMOUNT OF
                REGISTERED                   REGISTERED(1)        PRICE PER SHARE        OFFERING PRICE       REGISTRATION FEE
   ----------------------------------       ----------------     -----------------     -----------------      ----------------
   1999 STOCK OPTION PLAN (AS AMENDED
   TO DATE)
   Common Stock, $0.001 par value           1,000,000 shares     $    2.80    (2)      $ 2,800,000.00(2)      $    700.00

=================================================================================================================================

(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 1999 Stock Option Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant's receipt of consideration which results in an increase in the number of the outstanding shares of Registrant's Common Stock.

(2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low selling prices per share of Registrant's Common Stock on May 17, 2001, as reported by the Nasdaq National Market.

Pursuant to General Instruction E to Form S-8, this Registration Statement on Form S-8 registers the offer and sale of an additional 1,000,000 shares of Common Stock of the Registrant for issuance under the 1999 Stock Option Plan. The contents of the prior Registration Statement relating to the 1999 Stock Option Plan, File No. 333-38896, are incorporated herein by reference.


PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE

ValueClick, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission"):

(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed with the Commission on April 2, 2001.

(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2001, filed with the Commission on May 15, 2001.

(c) The Registrant's Current Reports on Form 8-K filed with the Commission on December 5, 2000 (as amended on Form 8-K/A filed with the Commission on February 5, 2001) and December 22, 2000 (as amended on Form 8-K/A filed with the Commission on February 22, 2001).

(d) The Registrant's Registration Statement No. 000-30135 on Form 8-A12G filed with the Commission on March 28, 2000, in which are described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock.

All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act") after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 4. DESCRIPTION OF SECURITIES

Not Applicable.

Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL

Not Applicable.

Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS

Section 145 of the Delaware General Corporation Law permits indemnification of officers and directors of the Registrant under certain conditions and subject to certain limitations. Section 145 of the Delaware General Corporation Law also provides that a corporation has the power to purchase and maintain insurance on behalf of its officers and directors against any liability asserted against such person and incurred by him or her in 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 liability under the provisions of Section 145 of the Delaware General Corporation Law.

Article VII, Section I of the Bylaws of the Registrant provides that the Registrant shall indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law. The rights to indemnity thereunder continue as to a person who has ceased to be a director, officer, employee or agent and inure to the benefit of the heirs, executors and administrators of the person. In addition, expenses incurred by a director or executive officer in defending any civil, criminal, administrative or investigative action, suit or proceeding by reason of the fact that he or she is or was a director or officer of the Registrant (or was serving at the

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Registrant's request as a director or officer of another corporation) shall be paid by the Registrant in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Registrant as authorized by the relevant section of the Delaware General Corporation Law.

As permitted by Section 102(b)(7) of the Delaware General Corporation Law, Article VIII of the Registrant's Amended and Restated Certificate of Incorporation provides that a director of the Registrant shall not be personally liable for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or acts or omissions that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived any improper personal benefit.

The Registrant has entered into indemnification agreements with each of its directors and executive officers. Generally, the indemnification agreements attempt to provide the maximum protection permitted by Delaware law as it may be amended from time to time. Moreover, the indemnification agreements provide for certain additional indemnification. Under such additional indemnification provisions, however, an individual will not receive indemnification for judgments, settlements or expenses if he or she is found liable to the Registrant (except to the extent the court determines he or she is fairly and reasonably entitled to indemnity for expenses). The indemnification agreements provide for the Registrant to advance to the individual any and all reasonable expenses (including legal fees and expenses) incurred in investigating or defending any such action, suit or proceeding. In order to receive an advance of expenses, the individual must submit to the Registrant a statement or statements that reasonably evidences such expenses. Also, the individual must repay such advances upon a final judicial decision that he or she is not entitled to indemnification.

The Registrant has purchased directors' and officers' liability insurance.

Item 7. EXEMPTION FROM REGISTRATION CLAIMED

Not Applicable.

Item 8. EXHIBITS

EXHIBIT NUMBER        EXHIBIT
--------------        -------

          4           Instruments Defining the Rights of Stockholders. Reference
                      is made to Registrant's Registration Statement No.
                      000-30135 on Form 8-A12G, together with any exhibits
                      thereto, which are incorporated herein by reference
                      pursuant to Item 3(c) to this Registration Statement.
          5.1         Opinion and consent of Brobeck, Phleger & Harrison LLP.
         23.1         Consent of PricewaterhouseCoopers LLP, Independent
                      Accountants.
         23.2         Consent of Brobeck, Phleger & Harrison LLP is contained in
                      Exhibit 5.1.
         24           Power of Attorney. Reference is made to the Signature Page
                      of this Registration Statement.
         99.1         Amendment to 1999 Stock Option Plan.

Item 9. UNDERTAKINGS

A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed by the Registrant pursuant to Section 13

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or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the Registrant's 1999 Stock Option Plan granted to certain individuals.

B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Westlake Village, State of California on this 16th day of May 2001.

VALUECLICK, INC.

By: /s/ JAMES R. ZARLEY
    ------------------------
    James R. Zarley
    Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS:

That the undersigned officers and directors of ValueClick, Inc., a Delaware corporation, do hereby constitute and appoint James R. Zarley and Kurt A. Johnson and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.

IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

               SIGNATURE                                      TITLE                                    DATE
-------------------------------------      -----------------------------------------               -------------

/s/ JAMES R. ZARLEY                        Chairman of the Board and Chief Executive               May 16, 2001
-------------------------------------      Officer
James R. Zarley


/s/ EARLE A. MALM II                       Vice Chairman of the Board                              May 16, 2001
-------------------------------------
Earle A. Malm II


/s/ BRIAN CORYAT                           Founder and Director                                    May 16, 2001
-------------------------------------
Brian Coryat

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               SIGNATURE                                      TITLE                                    DATE
-------------------------------------      -----------------------------------------               -------------

/s  KURT A. JOHNSON                        Chief Financial Officer (Principal                      May 16, 2001
-------------------------------------      Financial and Accounting Officer)
Kurt A. Johnson


/s/ DAVID S. BUZBY                         Director                                                May 16, 2001
-------------------------------------
David S. Buzby


/s/ ROBERT D. LEPPO                        Director                                                May 16, 2001
----------------------------------------
Robert D. Leppo


/s/ MARTIN HART                            Director                                                May 16, 2001
----------------------------------------
Martin Hart


/s/ STEVEN J. UMBERGER                     Director                                                May 16, 2001
----------------------------------------
Steven J. Umberger


                                           Director                                                May __, 2001
----------------------------------------
Jeffrey E. Epstein


/s/ BARRY SALZMAN                          Director                                                May 16, 2001
----------------------------------------
Barry Salzman

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SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

EXHIBITS

TO

FORM S-8

UNDER

SECURITIES ACT OF 1933

VALUECLICK, INC.


                                  EXHIBIT INDEX

EXHIBIT NUMBER        EXHIBIT

          4           Instruments Defining the Rights of Stockholders. Reference
                      is made to Registrant's Registration Statement No.
                      000-30135 on Form 8-A12G, together with any exhibits
                      thereto, which are incorporated herein by reference
                      pursuant to Item 3(c) to this Registration Statement.
          5.1         Opinion and consent of Brobeck, Phleger & Harrison LLP.
         23.1         Consent of PricewaterhouseCoopers LLP, Independent
                      Accountants.
         23.2         Consent of Brobeck, Phleger & Harrison LLP is contained in
                      Exhibit 5.1.
         24           Power of Attorney. Reference is made to the Signature Page
                      of this Registration Statement.
         99.1         Amendment to 1999 Stock Option Plan.


EXHIBIT 5.1

OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP

May 18, 2001

ValueClick, Inc.
4360 Park Terrace Drive, Suite 100
Westlake Village, CA 91361

Re: ValueClick, Inc. Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to ValueClick, Inc., a Delaware corporation (the "Company"), in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of an additional 1,000,000 shares of the Company's Common Stock and related stock options (the "Shares") under the Company's 1999 Stock Option Plan.

This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.

We have reviewed the Company's charter documents and the corporate proceedings taken by the Company in connection with the establishment of the Plan. Based on such review, we are of the opinion that, if, as and when the Shares are issued and sold (and the consideration therefor received) pursuant to (a) the provisions of option agreements duly authorized under the Plan and in accordance with the Registration Statement, or (b) duly authorized direct stock issuances in accordance with the Plan and in accordance with the Registration Statement, such Shares will be duly authorized, legally issued, fully paid and nonassessable.

We consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement.

This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plan or the Shares.

Very truly yours,

BROBECK, PHLEGER & HARRISON LLP


EXHIBIT 23.1

CONSENT OF INDEPENDENT ACCOUNTANTS

We hereby consent to the incorporation by reference in this Registration Statement of ValueClick, Inc. on Form S-8 of our report dated February 22, 2001, relating to the consolidated financial statements of ValueClick, Inc., which appears in ValueClick, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000. We also consent to the incorporation by reference of our report dated February 22, 2001 relating to the financial statement schedule, which appears in such Form 10-K.

PricewaterhouseCoopers LLP

Woodland Hills, California
May 18, 2001


EXHIBIT 99.1

AMENDMENT TO 1999 STOCK OPTION PLAN

VALUECLICK, INC.

1999 STOCK OPTION PLAN

PLAN AMENDMENT

The ValueClick, Inc. 1999 Stock Option Plan (the "Plan") is hereby amended, effective May 10, 2001, as follows:

1. The first sentence of Section 1 is hereby amended to read as follows:

The Company shall reserve FIVE MILLION (5,000,000) shares (the "Shares") of its Common Stock, with a par value $0.001 (the "Common Stock") to be issued upon exercise of the Options which may be granted from time to time under this Plan (the "Options").

2. Except as modified by this Plan Amendment, all the existing terms and provisions of the Plan shall continue in full force and effect.

IN WITNESS WHEREOF, ValueClick, Inc. has caused this Plan Amendment to be executed on its behalf by its duly authorized officer on this 10th day of May, 2001.

VALUECLICK, INC.,
a Delaware corporation

By: /s/ Kurt A. Johnson
    Kurt A. Johnson
    CHIEF FINANCIAL OFFICER