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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1998
REGISTRATION NO. 333-68057
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MODEM MEDIA . POPPE TYSON, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7311 06-1464807
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NUMBER)
INCORPORATION OR CLASSIFICATION CODE NUMBER)
ORGANIZATION)
MODEM MEDIA . POPPE TYSON, INC.
228 SAUGATUCK AVENUE
WESTPORT, CT 06880
(203) 341-5200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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GERALD M. O'CONNELL
CHIEF EXECUTIVE OFFICER
MODEM MEDIA . POPPE TYSON, INC.
228 SAUGATUCK AVENUE
WESTPORT, CT 06880
(203) 341-5200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
ALAN K. AUSTIN, ESQ. ALAN DEAN, ESQ.
BRIAN C. ERB, ESQ. DAVIS POLK & WARDWELL
WILSON SONSINI GOODRICH & ROSATI 450 LEXINGTON AVENUE
PROFESSIONAL CORPORATION NEW YORK, NY 10017
650 PAGE MILL ROAD (212) 450-4000
PALO ALTO, CA 94304
(650) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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EXPLANATORY NOTE
This Amendment No. 1 (this "Amendment") to the Registration Statement on Form
S-1 (File No. 333-68057) (the "Registration Statement") of Modem Media Poppe
Tyson, Inc. is being filed solely for the purpose of including a conformed
signature page to the Registration Statement as originally filed on
November 27, 1998. Accordingly, pages II-1 through II-4 of the Registration
Statement as originally filed have been included as pages II-1A through II-4A
of this Amendment. These pages appear exactly as they did in the Registration
Statement as originally filed, with the exception of the signature page (page
II-4A), which has been conformed. The signature page to this Amendment appears
as page II-1B.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of Class A common stock being registered. All amounts are
estimates except the SEC registration fee, the NASD filing fee and the Nasdaq
National Market listing fee.
<TABLE>
<CAPTION>
AMOUNT TO
BE PAID
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<S> <C>
SEC registration fee............................................... $12,510
NASD filing fee.................................................... 5,000
Nasdaq National Market listing fee................................. *
Printing and engraving expenses.................................... *
Legal fees and expenses............................................ *
Accounting fees and expenses....................................... *
Blue Sky qualification fees and expenses........................... *
Transfer agent and registrar fees.................................. *
Miscellaneous fees................................................. *
-------
Total............................................................ $ *
=======
</TABLE>
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* To be supplied by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Thirteenth of the Registrant's Certificate of Incorporation (Exhibit
3.1 hereto) and Article VI of the Registrant's Bylaws (Exhibit 3.2 hereto)
provide for mandatory indemnification of its directors and officers, and
permissible indemnification of employees and other agents, to the maximum
extent permitted by the Delaware General Corporation Law. In addition, the
Registrant intends to enter into Indemnification Agreements (Exhibit 10.8
hereto) with its officers and directors. Reference is also made to Section of
the Underwriting Agreement contained in Exhibit 1.1 hereto, which provides for
the indemnification of officers and directors of the Registrant against certain
liabilities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
From the Registrant's inception through November 27, 1998, the Registrant has
sold the following securities:
(1) In December 1996, the Registrant issued an aggregate of 2,542,785 shares of
its Class A common stock to Gerald M. O'Connell, Douglas C. Ahlers, Robert
C. Allen, II and Kraft Enterprises LTD, the limited partners of Modem Media
Advertising Limited Partnership ("Modem") and Messrs. O'Connell and Ahlers,
the stockholders of Modem Media, Inc., the general partner of Modem, in
exchange for a portion of their respective limited and general partnership
interests in Modem and all of the capital stock of Modem Media Inc.
(2) In December 1996, the Registrant issued 2,802,114 shares of its Class A
common stock to True North Communications Inc. ("TNC") in exchange for all
of its limited and general partnership interests in Modem.
(3) In December 1996, the Registrant issued 5,093,800 shares of its Class B
common stock to TNC in connection with the transfer and assignment to the
Registrant of substantially all of the assets and properties of TNC's
existing digital marketing communications business (representing 2,291,686
shares of
II-1A
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the Registrant's Class A Common Stock) and the exchange of the Registrant's
Class A Common Stock held by TNC for Class B Common Stock.
(4) From its inception through November 27, 1998, the Registrant has issued
shares of Class A common stock upon the exercise of options as follows:
<TABLE>
<CAPTION>
EXERCISE PRICE
NUMBER OF SHARES PER SHARE
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<S> <C>
496 $ 0.61
8,936 $ 11.00
</TABLE>
The issuances of the securities described in (1) through (3) above were
deemed to be exempt from registration under the Securities Act in reliance on
Section 4(2) of such Act as transactions by an issuer not involving any public
offering. All of the securities were acquired by the recipients for investment
and with no view toward the resale or distribution thereof. In each instance,
the recipient was an employee of the Company or a sophisticated investor, the
offer and sales were made without any public solicitation and the stock
certificates bear restrictive legends. No underwriter was involved in the
transactions and no commissions were paid. All recipients had adequate access,
through their relationships with the Registrant, to information about the
Registrant. The sales of the Securities described in (4) above were deemed to
be exempt from registration under the Securities Act in reliance on Rule 701
under such Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<C> <S>
1.1* Form of Underwriting Agreement.
3.1(a)* Certificate of Incorporation of Registrant.
3.1(b)* Form of Certificate of Incorporation of Registrant to be effective
upon consummation of the offering.
3.2(a)* Bylaws of Registrant.
3.2(b)* Form of Bylaws of Registrant to be effective upon consummation of
the offering.
4.1* Form of Registrant's Class A common stock certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, regarding legality of the securities being issued.
10.1(a)* Administrative Services Agreement between Registrant and True
North Communications, Inc.
10.1(b)* Form of Intercompany Demand Note.
10.1(c)* Form of Working Capital Agreement.
10.1(d)* Form of Brazil Affiliation Agreement.
10.1(e)* Form of Sublease.
10.1(f)* Form of Tax Matters Agreement.
10.5(a)* Employment Agreement between Registrant and Gerald M. O'Connell.
</TABLE>
II-2A
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<C> <S>
10.5(b)* Employment Agreement between Registrant and Douglas C. Ahlers.
10.5(c)* Employment Agreement between Registrant and Robert C. Allen, II.
10.6(a)* Covenant Not to Compete or Solicit Business between Registrant and
Gerald M. O'Connell.
10.6(b)* Covenant Not to Compete or Solicit Business between Registrant and
Douglas C. Ahlers.
10.6(c)* Covenant Not to Compete or Solicit Business between Registrant and
Robert C. Allen, II.
10.7* Letter Agreement between Registrant and Steven C. Roberts Dated
December 2, 1996, as amended.
10.8* Form of Indemnification Agreement.
10.9* 1997 Stock Option Plan.
10.10* 1999 Employee Stock Purchase Plan.
11.1* Statement re: computation of per share earnings.
21.1* List of subsidiaries.
23.1* Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants
(see page II-5).
24.1 Power of Attorney (included on page II-4).
27.1 Financial Data Schedule.
</TABLE>
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* To be filed by amendment.
(b) FINANCIAL STATEMENT SCHEDULES
Not applicable.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has had 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
hereunder, the Registrant will, unless in the opinion of its counsel the matter
has had 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:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus 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.
II-3A
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS HAD DULY CAUSED THIS REGISTRATION STATEMENT ON FORM S-1 TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF WESTPORT,
STATE OF CONNECTICUT, ON THIS 25TH DAY OF NOVEMBER, 1998.
Modem Media . Poppe Tyson, Inc.
By: /s/ Gerald M. O'Connell
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Gerald M. O'Connell
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Gerald M.
O'Connell and Steven C. Roberts, and each of them, as attorneys-in-fact, each
with the power of substitution, for him or her in any and all capacities, to
sign any amendment to this Registration Statement (including posteffective
amendments and registration statements filed pursuant to Rule 462 and
otherwise), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting to
said attorneys-in-fact, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, 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 either of them, or their or his substitute or substitutes, 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 IN THE CAPACITIES AND ON THE
DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Gerald M. O'Connell Chief Executive Officer November 25, 1998
______________________________________ and Director
GERALD M. O'CONNELL (Principal Executive
Officer)
/s/ Steven C. Roberts Chief Financial Officer November 25, 1998
______________________________________ (Principal Financial and
STEVEN C. ROBERTS Accounting Officer)
/s/ Robert C. Allen, II Director November 25, 1998
______________________________________
ROBERT C. ALLEN, II
/s/ Donald M. Elliman, Jr. Director November 25, 1998
______________________________________
DONALD M. ELLIMAN, JR.
/s/ Donald L. Seeley Director November 25, 1998
______________________________________
DONALD L. SEELEY
/s/ Theodore J. Theophilos Director November 25, 1998
______________________________________
THEODORE J. THEOPHILOS
</TABLE>
II-4A
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS HAD DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT ON FORM
S-1 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED,
IN THE CITY OF WESTPORT, STATE OF CONNECTICUT, ON THIS 23RD DAY OF DECEMBER,
1998.
Modem Media . Poppe Tyson, Inc.
By: /s/ Gerald M. O'Connell
---------------------------------
Gerald M. O'Connell
Chief Executive Officer
(Principal Executive Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Gerald M. O'Connell Chief Executive Officer December 23, 1998
______________________________________ and Director
GERALD M. O'CONNELL (Principal Executive
Officer)
Steven C. Roberts* Chief Financial Officer December 23, 1998
______________________________________ (Principal Financial and
STEVEN C. ROBERTS Accounting Officer)
Robert C. Allen, II* Director December 23, 1998
______________________________________
ROBERT C. ALLEN, II
Donald M. Elliman, Jr.* Director December 23, 1998
______________________________________
DONALD M. ELLIMAN, JR.
Donald L. Seeley* Director December 23, 1998
______________________________________
DONALD L. SEELEY
Theodore J. Theophilos* Director December 23, 1998
______________________________________
THEODORE J. THEOPHILOS
</TABLE>
*By: /s/ Gerald M. O'Connell
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GERALD M. O'CONNELL
Attorney-in-fact
II-1B
