As filed with the Securities and Exchange Commission on March 20, 2002
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)
2002 Non-Officer Employee Stock Incentive Plan
(Full Title of the Plan)
GEORGE A. MCMILLAN
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:
PETER L. GRAY, ESQ.
Executive Vice President and General Counsel
CMGI, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum Maximum
Securities Offering Aggregate Amount of
to be Amount Price Offering Registration
Registered to be Registered Per Share Price Fee
---------- ---------------- --------- --------- -------------
-----------------------------------------------------------------------------------------------------
Common Stock, 4,150,000 shares $1.57(1) $6,515,500(1) $599.43
$.01 par value
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(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 March 18, 2002 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 2002 Non-Officer Employee
Stock Incentive Plan, 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 or she 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 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 Registrant, and with respect
to any criminal action or proceeding, had no reasonable cause to believe his or
her 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 or she 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 March 20,
2002.
CMGI, INC.
By: /s/ George A. McMillan
----------------------
George A. McMillan
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of CMGI, Inc., hereby
severally constitute George A. McMillan, Thomas Oberdorf and Peter L. Gray, 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 March 20, 2002.
Signature Title
--------- -----
/s/ David S. Wetherell Chairman of the Board of Directors (Principal
------------------------- Executive Officer)
David S. Wetherell
/s/ George A. McMillan Chief Executive Officer and Director (Principal
------------------------- Executive Officer)
George A. McMillan
/s/ Thomas Oberdorf Chief Financial Officer and Treasurer (Principal
------------------------- Financial and Accounting Officer)
Thomas Oberdorf
/s/ Barry K. Allen Director
-------------------------
Barry K. Allen
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 Independent Auditors' Consent of KPMG LLP
24 Power of Attorney (included in the signature pages of this
Registration Statement)