As filed with the Securities and Exchange Commission on December 20, 2001
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CMGI, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-2921333
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
100 BRICKSTONE SQUARE, ANDOVER, MASSACHUSETTS 01810
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1995 EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED
(Full Title of the Plan)
DAVID S. WETHERELL
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
CMGI, INC.
100 BRICKSTONE SQUARE
ANDOVER, MASSACHUSETTS 01810
(Name and Address of Agent for Service)
(978) 684-3600
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
WILLIAM WILLIAMS II, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
CMGI, INC.
100 BRICKSTONE SQUARE
ANDOVER, MASSACHUSETTS 01810
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount Price Offering Registration
Registered to be Registered Per Share Price Fee
----------------------------------------------------------------------------------------------------------
Common Stock, 2,000,000 shares $1.63(1) $3,260,000(1) $779.14
$.01 par value
----------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices of the Common Stock on the
Nasdaq National Market on December 19, 2001 in accordance with Rules 457(c)
and 457(h) under the Securities Act of 1933.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent
or given to participants in the Registrant's Amended and Restated 1995 Employee
Stock Purchase Plan, as amended, pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended (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:
(1) 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.
(2) 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 (1) above.
(3) The description of the common stock of the Registrant, $.01
par value per share (the "Common Stock"), contained in a
registration statement 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 shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
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 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.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The legality of the Common Stock being offered hereby has been
passed upon for the Registrant by Kevin P. Lanouette, Esq., Associate General
Counsel of the Registrant.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law grants the
Registrant the power to 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 a director, officer, employee or agent
of the Registrant, or is or was serving at the request of the Registrant 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 in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Registrant, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, however, no indemnification shall be made in connection with any
proceeding brought by or in the right of the Registrant where the person
involved is adjudged to be liable to the Registrant except to the extent
approved by a court. Article NINTH of the Registrant's Restated Certificate of
Incorporation and Article VII of the Registrant's Restated By-laws provide that
the Registrant shall, to the fullest extent permitted by applicable law,
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 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 at the written 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. The
indemnification provided for in each of Article NINTH and Article VII is
expressly not exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement, or vote of
stockholders or disinterested directors or otherwise, and shall inure to the
benefit of the heirs, executors, and administrators of such persons. Article VII
also provides that the Registrant shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
or agent of the Registrant, or is or was serving at the request of the
Registrant, as a director, trustee, partner, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against any liability asserted against and incurred by such person in any such
capacity.
Pursuant to Section 102(b)(7) of the Delaware General Corporation
Laws, Article EIGHTH of the Registrant's Restated Certificate of Incorporation
eliminates a director's personal liability for monetary damages to the
Registrant and its stockholders for breaches of fiduciary duty as a director,
except in circumstances involving a breach of a director's duty of loyalty to
the Registrant or its stockholders, acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of the law, self-dealing, or
the unlawful payment of dividends or repurchase of stock.
The Registrant maintains an insurance policy on behalf of itself
and certain of its subsidiaries, and on behalf of the directors and officers
thereof, covering certain liabilities which may arise as a result of the actions
of the directors and officers.
The Registrant has entered into agreements with all of its
directors affirming the Registrant's obligation to indemnify them to the fullest
extent permitted by law and providing various other protections.
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
------------
1. 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;
(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 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.
2. 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
3. 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Town of Andover, Commonwealth of Massachusetts on December
20, 2001.
CMGI, INC.
By: /s/ David S. Wetherell
--------------------------
David S. Wetherell
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of CMGI, Inc., hereby severally
constitute David S. Wetherell, George A. McMillan and William Williams II, 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 behalf in our capacities as officers and directors
to enable CMGI, Inc. to comply with all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by said attorneys, or any of them, to said Registration Statement and
any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 20, 2001.
Signature Title
--------- -----
/s/ David S. Wetherell Chairman of the Board of Directors and Chief
----------------------------- Executive Officer (Principal Executive Officer)
David S. Wetherell
/s/ George A. McMillan Chief Financial Officer and Treasurer
----------------------------- (Principal Financial and Accounting Officer)
George A. McMillan
Director
-----------------------------
Barry K. Allen
/s/ Virginia G. Bonker Director
-----------------------------
Virginia G. Bonker
/s/ Jonathan Kraft Director
-----------------------------
Jonathan Kraft
/s/ Peter McDonald Director
-----------------------------
Peter McDonald
EXHIBIT INDEX
Exhibit
Number Description
-------- -----------
4.1 Specimen Certificate of Common Stock, $.01 par value per share, of
the Registrant is incorporated herein by reference to Exhibit 4.1 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
July 31, 1999 (File No. 000-23262)
5 Opinion of Kevin P. Lanouette, Esq.
23.1 Consent of Kevin P. Lanouette, Esq. (included in Exhibit 5)
23.2 Consent of KPMG LLP, independent accountants
24 Power of Attorney (included in the signature pages of this
Registration Statement)