<PAGE> 1
As filed with the Securities and Exchange Commission on June 29, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
MESSAGEMEDIA, INC.
(Exact name of Registrant as specified in its charter)
----------
<TABLE>
<S> <C>
DELAWARE 33-0612860
(State or other jurisdiction of incorporation or organization) (I.R.S. employer identification No.)
</TABLE>
----------
6060 SPINE ROAD
BOULDER, COLORADO 80301
(303) 440-7550
(Address of principal executive offices)
----------
MESSAGEMEDIA, INC. 1995 STOCK PLAN
MESSAGEMEDIA, INC. 1999 NON-OFFICER STOCK OPTION PLAN
RANDY BACHMEYER AGREEMENT
STUART OBERMANN AGREEMENT
KELLY WOOD AGREEMENT
MESSAGEMEDIA, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
----------
A. LAURENCE JONES
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MESSAGEMEDIA, INC.
6060 SPINE ROAD
BOULDER, COLORADO 80301
(303) 440-7550
(Name and address of agent for service)
----------
COPIES TO:
MICHAEL PLATT, ESQ.
MICHAEL CYRAN, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUITE 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
----------
<PAGE> 2
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED SHARE(1) PRICE(1) FEE(2)
------------------------------------------------ ---------- ------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock to be issued under the
MessageMedia, Inc. 1995 Stock Plan
(the "1995 Plan")............................... 2,006,850 $ 4.875(3) $ 9,783,394(3) $ 2,583
Common Stock to be issued under the
MessageMedia, Inc. 1999 Non-Officer
Stock Option Plan (the "1999 Plan")............. 1,158,000 $ 12.61(4) $ 14,602,380(4) $ 3,856
Common Stock to be issued under the
Randy Bachmeyer Agreement....................... 203,000 $ 11.625(5) $ 2,359,875(5) $ 624
Common Stock to be issued under the
Stuart Obermann Agreement....................... 335,000 $ 11.625(5) $ 3,894,375(5) $ 1,029
Common Stock to be issued under the
Kelly Wood Agreement............................ 100,000 $ 11.625(5) $ 1,162,500(5) $ 307
Common Stock to be issued under the
Message Media, Inc. Employee Stock
Purchase Plan (the "Purchase Plan")............. 400,000 $ 4.875(6) $ 1,950,000(6) $ 515
--------- -------- ------------ --------
Total......................... 4,202,850 $ -- $ 33,752,524 $ 8,914
========= ======== ============ ========
</TABLE>
================================================================================
(1) Estimated in accordance with Rule 457(h) of Regulation C solely for the
purpose of calculating the registration fee.
(2) Amount of registration fee was calculated pursuant to Section 6(b) of the
Securities Act of 1933, which requires that the fee be calculated by
multiplying the proposed maximum aggregate offering price amount by
0.000264.
(3) With respect to the Common Stock to be issued under the 1995 Plan, the
proposed maximum offering price per share and the proposed maximum
aggregate offering price is computed based upon the weighted average
exercise price of the outstanding options exercisable for up to an
aggregate of 640,583 shares of Common Stock as of June 23, 2000, which was
$4.875, and, with respect to the 1,366,267 shares of Common Stock reserved
for issuance thereunder, upon the average of the high and low price of the
Common Stock on the Nasdaq National Market on June 23, 2000, which was
$4.875.
(4) With respect to the Common Stock to be issued under the 1999 Plan, the
proposed maximum offering price per share and the proposed maximum
aggregate offering price is computed based upon the weighted average
exercise price of the outstanding options exercisable for up to an
aggregate of 1,104,500 shares of Common Stock as of June 23, 2000, which
was $12.98, and, with respect to the 53,500 shares of Common Stock reserved
for issuance thereunder, upon the average of the high and low price of the
Common Stock on the Nasdaq National Market on June 23, 2000, which was
$4.875.
(5) With respect to the Common Stock to be issued pursuant to the Randy
Bachmeyer Agreement, the Stuart Obermann Agreement and the Kelly Wood
Agreement (collectively, the "Performance Options"), the proposed maximum
offering price per share and the proposed maximum aggregate offering price
is computed based upon the $11.625 exercise price per share of each
outstanding option.
(6) With respect to the Common Stock to be issued pursuant to the Purchase
Plan, the proposed maximum offering price per share and the proposed
maximum aggregate offering price is computed based upon the average of the
high and low price of the Common Stock on the Nasdaq National Market on
June 23, 2000, which was $4.875.
2.
<PAGE> 3
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by MessageMedia, Inc. (the "Registrant") with
the Securities and Exchange Commission are incorporated by reference into this
registration statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(c) The description of the Registrant's common stock set forth in the
registration statement on Form 8-A, dated November 19, 1996; and
(d) The Registrant's Definitive Proxy Statement dated March 29, 2000, for
the 2000 annual meeting of stockholders held on April 27, 2000.
All reports and other 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 securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
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(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation shall have the power to
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, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation 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 the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have the power to indemnify any person who was or is a
party or is threatened
3.
<PAGE> 4
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor...[by reason
of the person's service in one of the capacities specified in the preceding
sentence] against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of 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 the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expense which the Court of Chancery and such other court shall deem proper."
The Registrant's Certificate of Incorporation, as amended, states that to
the fullest extent permitted by the DGCL, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director.
The Registrant's Bylaws, as amended, provide that the Registrant shall
indemnify each person who is or was a director or officer of the Registrant to
the full extent permitted by the DGCL. Such Bylaws, as amended, also provide
that the Registrant may, but is not required to, indemnify its employees and
agents (other than directors and officers) to the extent and in the manner
permitted by the DGCL.
The Registrant has entered into an indemnification agreement with each of
its directors and intends to maintain insurance for the benefit of its directors
and officers insuring such persons against certain liabilities, including
liabilities under the securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1 MessageMedia, Inc. 1995 Stock Plan
4.2 MessageMedia, Inc. 1999 Non-Officer Stock Option Plan
4.3 Randy Bachmeyer Agreement
4.4 Stuart Obermann Agreement
4.5 Kelly Wood Agreement
4.6 MessageMedia, Inc. Employee Stock Purchase Plan
4.
<PAGE> 5
EXHIBIT
NUMBER DESCRIPTION
------- -----------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
registration statement
24 Power of Attorney is contained in the signature pages hereto
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
(a) 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 of 1933;
(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;
(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 (a)(i) and (a)(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
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(c) 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.
5.
<PAGE> 6
The 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 of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant, 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.
6.
<PAGE> 7
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 City of Boulder, State of Colorado, on the 29th day of June,
2000.
MESSAGEMEDIA, INC.
By: /s/ A. LAURENCE JONES
-------------------------------------
A. Laurence Jones
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints A. Laurence Jones and Martin T. Johnson
his or her true and lawful attorneys-in-fact each acting alone, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead in any and all capacities to sign any or all amendments (including
post-effective amendments) to this registration statement, and any registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933 in
connection with the registration under the Securities Act of 1933 of equity
securities of MessageMedia, Inc. and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitutes, each acting
alone, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of the
Registrant in the capacities indicated on this 29th day of June 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Bradley A. Feld Co-Chairman of the Board of Directors
---------------------------
Bradley A. Feld
/s/ Gerald A. Poch Co-Chairman of the Board of Directors
---------------------------
Gerald A. Poch
/s/ A Laurence Jones President, Chief Executive Officer
--------------------------- and Director
A. Laurence Jones (Principal Executive Officer)
</TABLE>
7.
<PAGE> 8
<TABLE>
<S> <C>
/s/ Martin T. Johnson Senior Vice President, Chief Financing
--------------------------- Officer and Secretary (Principal Financial
Martin T. Johnson and Accounting Officer)
/s/ Dennis J. Cagan Director
---------------------------
Dennis J. Cagan
/s/ R. Terry Duryea Director
---------------------------
Terry Duryea
/s/ Pamela H. Patsley Director
---------------------------
Pamela H. Patsley
</TABLE>
8.
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1 MessageMedia, Inc. 1995 Stock Plan
4.2 MessageMedia, Inc. 1999 Non-Officer Stock Option Plan
4.3 Randy Bachmeyer Agreement
4.4 Stuart Obermann Agreement
4.5 Kelly Wood Agreement
4.6 MessageMedia, Inc. Employee Stock Purchase Plan
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this registration statement
24 Power of Attorney is contained in the signature pages hereto
</TABLE>
