As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 1/27/06  Traffic.com, Inc.                 S-8         1/27/06    3:82K                                    Merrill Corp-MD/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-8         Securities to Be Offered to Employees Pursuant to   HTML     55K 
                          Employee Benefit Plans                                 
 2: EX-5.1      Opinion Regarding Legality                          HTML     11K 
 3: EX-23.2     Consents of Experts and Counsel                     HTML      7K 

 

As filed with the Securities and Exchange Commission on January 26, 2006

Registration No. 333-                              

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933

 

Traffic.com, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware		25-18223631
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)
851 Duportail Road Wayne, Pennsylvania		19087
(Address of Principal Executive Offices)		(Zip Code)

 

1999 Long-Term Incentive Plan
1999 Non-Employees’ Stock Plan
2005 Long-Term Incentive Plan

(Full Title of the Plan)

 

Robert N. Verratti
Chief Executive Officer
851 Duportail Road

Wayne, Pennsylvania 19087

(Name and Address of Agent For Service)

 

(610) 725-9700

(Telephone Number, Including Area Code, of Agent For Service)

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered(1)		Proposed Maximum Offering Price Per Share			Proposed Maximum Aggregate Offering Price			Amount of Registration Fee
Common Stock, $0.01 par value per share		4,261,372 shares	(2)	$	6.19	(3)	$	26,377,893	(3)	$	2,822.43

 

(1)           In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

 

(2)           Consists of (i) 2,439,279 shares in the aggregate issuable under the 1999 Long-Term Incentive Plan and the 1999 Non-Employees’ Stock Plan and (ii) 1,822,093 shares issuable under the 2005 Long-Term Incentive Plan.

 

(3)           Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended.  The price per share and aggregate offering price are calculated on the basis of (a) $1.84, the weighted average exercise price of the 2,439,279 shares subject to outstanding stock option grants under the 1999 Long-Term Incentive Plan and the 1999 Non-Employees’ Stock Plan and (b) the initial public offering price of $12.00 per share for the 1,822,093 shares issuable under the 2005 Long-Term Incentive Plan, which are not subject to outstanding options or other awards.

 

 

Item 6. Indemnification of Directors and Officers.

 

Section 102 of the General Corporation Law of the State of Delaware permits 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. The registrant’s Fourth Amended and Restated Certificate of Incorporation in effect on the date hereof and the Fifth Amended and Restated Certificate of Incorporation to be effective following the closing of the registrant’s initial public offering, provides that no director of the registrant shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.

 

Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to 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 other adjudicating court determines 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.

 

The registrant’s Fourth Amended and Restated Certificate of Incorporation in effect on the date hereof and the Fifth Amended and Restated Certificate of Incorporation to be effective following the closing of the registrant’s initial public offering provides for the indemnification of directors and officers to the fullest extent permissible under Delaware 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:

 

(i)            To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

3

 

(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.

 

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.

 

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.

 

4