<PAGE>
As filed with the Securities and Exchange Commission on March 2, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
MODEM MEDIA . POPPE TYSON, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1464807
---------------- ---------------
(State of Incorporation) (I.R.S. Employer
Identification No.)
228 Saugatuck Avenue
Westport, CT 06880
(Address of Principal Executive Offices, including Zip Code)
________________________________________
MODEM MEDIA ADVERTISING
LIMITED PARTNERSHIP
1996 OPTION PLAN
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
_________________________________________
Gerald M. O'Connell
Chief Executive Officer
228 Saugatuck Avenue
Westport, CT 06880
(203) 341-5200
(Name, address and telephone number of agent for service)
____________________
Copies to:
Brian C. Erb, Esq.
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
===============================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to to be Offering Price Aggregate Registration
be Registered Registered/(1)/ Per Share Offering Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value
to be issued upon exercise of options 339,658 $ 0.64/(2)/ $ 217,381.12 $ 60
granted and outstanding under the
Modem Media Advertising Limited
Partnership 1996 Option Plan
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value
to be issued upon exercise of (i) options 1,687,530 $ 11.24/(3)/ $18,967,837.20 $ 5,273
granted and outstanding under the Amended 1,352,470 27.8125/(4)/ $37,615,571.88 10,457
and Restated 1997 Stock Option Plan and
(ii) options remaining available for grant
under the Amended and Restated 1997 Stock
Option Plan
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value
to be issued under the 1999 Employee 950,000 $ 23.64/(5)/ $22,458,000.00 $ 6,243
Stock Purchase Plan
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL 4,329,658 $79,258,790.20 $22,033
===================================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered pursuant
to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options granted and outstanding, based
on the exercise price of the outstanding options on February 26, 1999,
which price is $0.64.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options granted and outstanding, based
on the weighted average exercise price of the outstanding options as of
February 25, 1999, which average is $11.24.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options remaining available for grant,
based on the average price of the high and low price as reported by the
Nasdaq Stock Market on February 25, 1999, which average is $27.8125.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on 85% of the average price of the
high and low price as reported by the Nasdaq Stock Market on February 25,
1999, which price is $23.64.
-1-
<PAGE>
MODEM MEDIA . POPPE TYSON, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed by Modem
Media . Poppe Tyson, Inc. (the "Registrant") with the Securities and Exchange
Commission (the "Commission"):
1. The Registrant's final prospectus filed pursuant to Rule 424(b)(4)
of the Securities Act, relating to the Registrant's initial public
offering of its Common Stock.
2. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 000-
21935) pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (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) or 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 in this Registration Statement and to be part hereof
from the date of filing of such 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.
The Registrant's Certificate of Incorporation limits the liability
of directors to the maximum extent permitted by Delaware law. Delaware law
provides that directors of a company will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except for liability
(i) for any breach of their duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) for unlawful payments
or dividends or unlawful stock repurchases or redemptions as provided Section
174 of Delaware General Corporation Law or (iv) for transactions from which the
director derived an improper personal benefit.
-2-
<PAGE>
The Registrant's Bylaws provide that the Registrant shall indemnify
its officers and directors and may indemnify its employees and other agents to
the fullest extent provided by Delaware law, including those circumstances where
indemnification would otherwise be discretionary under Delaware law. The
Registrant believes that indemnification under its Bylaws covers at least
negligence on the part of indemnified parties. The Bylaws authorize the use of
indemnification agreements and the Registrant has entered into such agreements
with each of its directors and officers.
The Registrant maintains directors and officers insurance providing
indemnification for certain of the Registrant's directors, officers, affiliates,
partners or employees for certain liabilities.
Delaware Law does not permit a corporation to eliminate a director's
duty of care, and the provisions of the Registrant's Certificate of
Incorporation have no effect on the availability of equitable remedies such as
injunction or rescission, based upon a director's breach of the duty of care.
Insofar as indemnification for liabilities arising under the Exchange Act may be
permitted to foregoing provisions and agreements, the Registrant has been
informed that in the opinion of the staff of the Commission such indemnification
is against public policy as expressed in the Exchange Act and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
-------- -----------------------------------------------
<C> <S>
4.1 Modem Media Advertising Limited Partnership 1996 Stock Option
Plan.
4.2* Amended and Restated 1997 Stock Option Plan.
4.3* 1999 Employee Stock Purchase Plan.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Arthur Andersen LLP, independent accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained in signature page).
--------------------------------------------------------
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1, as amended (No. 333-68057), which was declared effective by
the Commission on February 4, 1999.
-3-
<PAGE>
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(i) To file, during any period which offers or sales are being made, a
post-effective amendment to this Registration Statement 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.
(ii) That, for the purpose of determining any liability under the Securities
Act, each 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.
(iii) 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.
(b) 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 Section 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to law, the Registrant's Amended and Restated
Certificate of Incorporation, Bylaws, indemnification agreements, 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 a
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 been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
of 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.
-4-
<PAGE>
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 city of Westport, State of Connecticut, on this 26th day of
February, 1999.
MODEM MEDIA . POPPE TYSON, INC.
By: /s/ Gerald M. O'Connell
-------------------------
Gerald M. O'Connell
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gerald M. O'Connell and Steven C.
Roberts, and each of them, as his attorney-in-fact, with full power of
substitution in each, for him in any and all capacities to sign any amendments
to this registration statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his substitutes, may
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------- ---------------------------- -------------------
<S> <C> <C>
/s/ Gerald M. O'Connell Chief Executive Officer and February 26, 1999
- ----------------------------- Director (Principal
Gerald M. O'Connell Executive Officer)
/s/ Steven C. Roberts Chief Financial Officer and February 26, 1999
- ----------------------------- Secretary (Principal
Steven C. Roberts Financial Officer and
Principal Accounting Officer)
/s/ Robert C. Allen II Director February 26, 1999
- -----------------------------
Robert C. Allen II
/s/ Donald M. Elliman, Jr. Director February 26, 1999
- -----------------------------
Donald M. Elliman, Jr.
/s/ Donald L. Seeley Director February 26, 1999
- -----------------------------
Donald L. Seeley
/s/ Theodore J. Theophilos Director February 26, 1999
- -----------------------------
Theodore J. Theophilos
</TABLE>
-5-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- ---------------------------------------------------
<C> <S>
4.1 Modem Media Advertising Limited Partnership 1996 Stock Option
Plan.
4.2* Amended and Restated 1997 Stock Option Plan.
4.3* 1999 Employee Stock Purchase Plan.
5.1 Opinion of counsel as to legality securities being registered.
23.1 Consent of Arthur Andersen LLP, independent accountants.
23.2 Consent of Wilson Sonsini Goodrich Rosati, P.C.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained in signature page).
- -----------------------
</TABLE>
* Incorporated by reference to the Registrant's Registration
Statement on Form S-1, as amended (No. 333-68057), which was
declared effective by the Commission on February 4, 1999.
<PAGE>
Exhibit 4.1
-----------
================================================================================
MODEM MEDIA ADVERTISING
LIMITED PARTNERSHIP
1996 OPTION PLAN
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS............................................................. 1
ARTICLE II
ADMINISTRATION.......................................................... 2
ARTICLE III
GRANT OF OPTIONS........................................................ 2
3.1 Grant of Options.................................................. 2
----------------
3.2 Number of Units Available for Grant............................... 3
-----------------------------------
ARTICLE IV
EXERCISE................................................................ 3
4.1 Manner of Exercise................................................ 3
------------------
4.2 Expiration........................................................ 3
----------
4.3 Withholding....................................................... 3
-----------
4.4 Certificates...................................................... 3
------------
ARTICLE V
TRANSFER RESTRICTIONS; REPURCHASE............................................ 4
5.1 Restrictions on Transfer.......................................... 4
------------------------
5.2 Repurchase on Termination......................................... 4
-------------------------
ARTICLE VI
MISCELLANEOUS........................................................... 4
6.1 Governing Law..................................................... 4
-------------
6.2 Term.............................................................. 4
----
6.3 Adjustments....................................................... 5
-----------
6.4 Confidentiality................................................... 5
---------------
6.5 Limited Partnership Agreement..................................... 5
-----------------------------
6.6 Amendment of Plan................................................. 5
-----------------
6.7 Notice............................................................ 5
------
6.8 Assumption by Successor Company................................... 5
-------------------------------
6.9 Registration of Units, Etc........................................ 6
---------------------------
6.10 No Guarantee of Employment........................................ 6
--------------------------
6.11 Tax Treatment..................................................... 6
-------------
<PAGE>
MODEM MEDIA ADVERTISING
LIMITED PARTNERSHIP
1996 OPTION PLAN
The purpose of this 1996 Option Plan (the "Plan") of Modem Media
Advertising Limited Partnership, a Connecticut limited partnership (the
"Company"), is to provide officers, directors, key employees and consultants of
the Company with an opportunity to own units of limited partnership interest in
the Company issuable pursuant to the Company's Limited Partnership Agreement
("Units"). Upon exercise of an Option granted under the Plan and execution of
the Company's Limited Partnership Agreement by the Optionholder, such
Optionholder will become a Limited Partner in the Company, subject to and in
accordance with the terms of the Company's Limited Partnership Agreement.
ARTICLE I
DEFINITIONS
Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Company's Limited Partnership Agreement. The following defined
terms shall have the following meanings:
"Change in Control" means any Successor Company, other than Modem Media,
-----------------
Inc., a Connecticut corporation, becoming, subsequent to the adoption of this
Plan, directly or indirectly, (a) the sole general partner of the Company, (b)
the beneficial owner of securities of the Company and/or securities of Modem
Media, Inc. entitling such Successor Company to 50% or more of the net income of
the Company, or (c) the purchaser of all or substantially all of the Company's
assets.
"Compensation Committee" means a committee comprised of Gerald M.
----------------------
O'Connell, Douglas C. Ahlers and Robert C. Allen, and/or such other substitute
or additional members as may be appointed by the General Partner of the Company
at any time.
"Limited Partnership Agreement" means the Company's First Amended and
-----------------------------
Resated Agreement of Limited Partnership, as the same may be amended,
supplemented or modified from time to time.
"Optionholder" means the holder of an Option issued under this Plan.
------------
"Option" means an option, issued under this Plan, to purchase Units in the
------
Company.
"Permitted Transferee" means a person who is (a) a member of an
--------------------
Optionholder's immediate family (i.e., a spouse, parent, child (including an
adopted child) or grandchild of that individual);
<PAGE>
(b) a partnership of which each partner is a person referred to in clause (a);
(c) a trust of which each beneficiary is a Person referred to in clause (a); or
(d) a trust in which each beneficiary as to the payment of principal is a person
referred to in clause (a) and each beneficiary as to the payment of income is a
person referred to in clause (a).
"Person" shall have the meaning set forth in Section 2(2) of the Securities
------
Act of 1933, as amended.
"Plan Termination Date" means the earliest to occur of (a) September 30,
---------------------
2006, or (b) the liquidation of the Company.
"Successor Company" means any corporation or other Person or entity that,
-----------------
directly or indirectly, succeeds to the ownership of or effective control over
the business and assets of the Company, whether by merger, consolidation,
exchange, sale of assets, contribution of assets, acquisition of stock or
partnership interests, or otherwise.
"Successor Company Shares" means the shares of common stock or other equity
------------------------
interests of any Successor Company.
"Termination" means the termination of an Optionholder's employment with
-----------
the Company or its subsidiaries, whether voluntary or involuntary, including,
without limitation, termination upon death, Permanent Disability or retirement.
"Unit" shall have the meaning assigned in the Company's Limited Partnership
----
Agreement.
ARTICLE II
ADMINISTRATION
The Plan shall be administered by both the board of directors of Modem
Media, Inc. and the Compensation Committee, both of which shall have full power
and authority to interpret the provisions of the Plan and to resolve any and all
questions arising under the Plan, and to render decisions which shall be final
and binding, absent manifest error, on all participants in the Plan.
ARTICLE III
GRANT OF OPTIONS
3.1 Grant of Options. The board of directors of Modem Media, Inc. and the
----------------
Compensation Committee each may grant to officers, directors, employees and
consultants of the Company (and any subsidiaries of the Company) Options to
purchase Units, and such grant may be based upon past, present or anticipated
service or performance of such officer, director, employee or consultant or upon
any other criterion that is relevant. Options shall have such terms and
<PAGE>
conditions (including terms and conditions relating to the exercise price (the
"Exercise Price")), as may be specified by the board of directors of Modem
Media, Inc or the Compensation Committee. Each Option shall be fully vested as
of the date of grant thereof.
3.2 Number of Units Available for Grant. Options to purchase up to 30
-----------------------------------
Units, subject to adjustment in accordance with Section 6.3 of this Plan, may be
granted under this Plan. As of the date of adoption of this Plan, 100 Units in
the Company have been issued and are outstanding.
ARTICLE IV
EXERCISE
4.1 Manner of Exercise. Each Option shall be exercisable upon written
------------------
notice (an "Option Exercise Notice") to the Company, which Option Exercise
Notice shall be effective immediately upon delivery except that no Option shall
be exercisable other than in a manner which complies with all applicable
requirements of law. The Option Exercise Notice shall specify the date thereof,
and the number of Units with respect the Option is being exercised, and shall
be accompanied by (a) a check payable to the Company, or other form of payment
authorized under this Plan or acceptable to the Company, in an amount equal to
the applicable Exercise Price and (b) any and all documents required under the
Limited Partnership Agreement as a condition of the admission of the
Optionholder as a Limited Partner in the Company. Except as otherwise provided
in Section 6.3 or 6.8, no adjustment shall be made to the Exercise Price on
account of distributions or other rights occurring or having effect prior to the
date of the Option Exercise Notice. Upon such Optionholder's payment of the
Exercise Price and (if applicable) admission as a Limited Partner in the
Company, the Optionholder shall be treated as having made a capital contribution
to the Company in an amount equal to such Exercise Price and shall not be
required to make any additional capital contribution to the Company with respect
to the Units thereby purchased. Unless otherwise expressly stated in the
Option, each Option must be exercised in its entirety, if exercised at all, and
may not be exercised only in part.
4.2 Expiration. An Option that has not been exercised pursuant to
----------
Section 4.1 hereof shall automatically and without notice terminate and become
null and void upon the earlier of (a) the Plan Termination Date, or (b)
expiration of the Option pursuant to Section 5.2.
4.3 Withholding. The Company shall be entitled to require, as condition
-----------
to the issuance of any Units or Successor Company Shares purchasable pursuant to
an Option, that the Optionholder remit prior to exercise of such Option, or that
in appropriate cases the Optionholder agree to remit when due, an amount
sufficient to satisfy all current or estimated future federal, state and local
withholding tax requirements imposed on the Company as a result of the exercise
of such Option.
4.4 Certificates. Options granted hereunder shall be evidenced by a
------------
certificate (an "Option Certificate") substantially in the form of Exhibit A
hereto. Each Optionholder who accepts
<PAGE>
an Option (and agrees to be bound by this Plan) must signify such acceptance by
signing the Option Certificate.
ARTICLE V
TRANSFER RESTRICTIONS; REPURCHASE
5.1 Restrictions on Transfer. Options shall not be transferable in whole
------------------------
or in part, other than (a) in a manner which complies with all applicable
requirements of law and (b) either (i) by will or by the laws of descent and
---
distribution, (ii) to a Permitted Transferee, or (iii) as specifically permitted
under this Article V. Upon any such transfer, the transferee shall execute such
documents as the Company may reasonably require in connection therewith
(including, in the case of a transfer pursuant to clause (a) or (b) of this
Section 5.1, an acknowledgment that such transferee agrees to be bound by the
terms of the Plan). For a period of two years following the date of issuance of
any Option pursuant to this Plan, Units or Successor Company Shares purchased
pursuant to such Option shall not be transferable in whole or in part without
the prior written consent of the Company, other than (a) in a manner which
complies with all applicable requirements of law and (b) either (i) by will or
---
by the laws of descent and distribution or (ii) to a Permitted Transferee. The
Company shall have no obligation whatsoever to provide such consent. Each
Optionholder agrees to enter into lock-up agreements reasonably requested by
underwriters in connection with any public offering of Units or other securities
purchasable pursuant to Options.
5.2 Repurchase on Termination. During the 90-day period following the
-------------------------
Termination of an Optionholder, the Company shall have the right to deliver a
notice of repurchase (a "Repurchase Notice") to such Optionholder (or his estate
or legal representative, as the case may be). Upon any date specified by the
Company in the Repurchase Notice (not later than the 90th day following the date
of such Repurchase Notice), the Company shall purchase, and the Optionholder
shall sell, all Options held by such Optionholder for a purchase price equal to
the full fair market value of all unexpired and unexercised Options held by such
Optionholder (determined, by either the board of directors of Modem Media, Inc.
or the Compensation Committee, as of the date of such Repurchase Notice), less
applicable withholding.
ARTICLE VI
MISCELLANEOUS
6.1 Governing Law. The Plan shall be governed by and construed in
-------------
accordance with the laws of the State of Connecticut.
6.2 Term. This Plan, and all Options issued pursuant to this Plan, will
----
expire on the Plan Termination Date.
<PAGE>
6.3 Adjustments. In the event that the Units shall be changed into or
-----------
exchanged for a different number or kind of equity interests of the Company
(whether by reason of merger, consolidation, exchange, recapitalization,
reclassification, split, combination of interests or otherwise), or if the
number of such Units shall be increased through the distribution of additional
Units in respect of each outstanding Unit, then there shall be substituted for
or added to each Unit available under the Plan and each Unit subject to an
Option, the number and kind of Units or other Company securities into which each
outstanding Unit shall be so changed or for which each such Unit shall be
entitled, as the case may be. In the event there shall be any other change in
the number or kind of Units, or any other Company securities into which the
Units shall have been changed or for which the Units shall have been exchanged,
then if either the board of directors of Modem Media, Inc. or the Compensation
Committee shall determine that such change equitably requires an adjustment in
the Units or other Company securities available under the Plan or subject to
Options, such adjustments shall be made in accordance with such determination.
6.4 Confidentiality. The Company may from time to time deliver to the
---------------
Optionholders financial information regarding the Company. Each Optionholder
shall hold all such information confidential and not disclose it to any third
party without the consent of the Company.
6.5 Limited Partnership Agreement. The Optionholders acknowledge and
-----------------------------
agree that certain provisions of the Limited Partnership Agreement are for the
benefit of the Optionholders, and that the Limited Partnership Agreement may be
amended in the manner provided therein.
6.6 Amendment of Plan. The board of directors of Modem Media, Inc. may
-----------------
make such amendments to the Plan as it shall deem advisable. Except in the case
of any amendment required under law or to reasonably required to ensure
compliance with applicable law, no amendment shall in any way adversely affect
any Options previously granted by the Company and accepted by the Optionholder
without the consent of the Optionholders thereby adversely affected.
6.7 Notice. Notices hereunder shall be given only by personal delivery,
------
registered or certified mail, return receipt requested, overnight courier
service, or telex, telegram or other form of electronic mail or by telecopy (and
subsequently confirmed by any other permitted means hereunder) and shall be
deemed transmitted when personally delivered or deposited in the mail or
delivered to a courier service or a carrier for electronic transmittal (as the
case may be), postage or charges prepaid, and addressed (i) in the case of the
Company, to 228 Saugatuck Avenue, Westport, CT 06880 and (ii) in the case of an
Optionholder, to such Optionholder's address as set forth on the books and
records of the Company.
6.8 Assumption by Successor Company. In the event of a Change in Control,
-------------------------------
each Option shall automatically entitle the Optionholder to purchase, in lieu of
Units otherwise purchasable pursuant to such Option, for an amount equal to the
Exercise Price of such Option, Successor Company Shares having a fair market
value (determined as of the date immediately prior to the date on which such
Successor Company became the Successor Company) not less than the excess of the
fair market value of the Units purchasable pursuant to such Option (determined
as of
<PAGE>
the date immediately prior to date on which such Successor Company became the
Successor Company) over the Exercise Price of such Option. The preceding
sentence shall not apply, however, if in connection with the Change in Control
the Successor Company offers in exchange for each outstanding Option an option
to purchase Successor Company Shares (a) having a value (as of the date of
issuance of such Successor Company option) not less than the fair market value
of the Units purchasable pursuant to the Option (as of such date), and (b) on
terms and conditions subtantially similar to the terms and conditions of the
Option exchanged therefor except that the terms of such Successor Company option
may include provisions reasonably designed to prevent the application of Section
280G of the Internal Revenue Code to the Successor Company as a result of any
exercise of such Successor Company option. The difference between the exercise
price of options issued by the Successor Company in exchange for Options granted
under the Plan and the fair market value of the Successor Company Shares on the
date of such issuance shall be not less than the difference between the Exercise
Price of such Options and the fair market value of the Units purchasable
pursuant to such Options immediately prior to date on which such Successor
Company became the Successor Company. In the event that the Company enters into
an agreement (or series of agreements) which are intended to effectuate a Change
in Control, any Units purchased pursuant to an Optionholder's exercise of an
Option during the time period between the signing and closing of such
agreement(s) shall, to the extent possible, be treated for purposes of such
agreement(s) in the same manner as the Option would have been treated if such
exercise had not occurred.
6.9 Registration of Units, Etc. The Company hereby agrees that if the
--------------------------
Company shall hereafter become subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended, the Company shall undertake the
registration of the Units purchasable pursuant to Options, under the Securities
Act of 1933, as amended, pursuant to Form S-8 or any successor form.
6.10 No Guarantee of Employment. This Plan shall not confer upon any
--------------------------
Optionholder any right with respect to continuing the Optionholder's employment
or other relationship with the Company, nor shall this Plan interfere in any way
with the Company's right to terminate such relationship at any time.
6.11 Tax Treatment. The Options granted under this Plan may be granted at
-------------
an Exercise Price substantially less than the fair market value of Units
purchasable pursuant to such Options. Each Optionholder is advised to consult a
tax advisor regarding the federal, state and local tax consequences of the
receipt, exercise and/or transfer of any Option or any Units purchasable
pursuant thereto.
<PAGE>
Exhibit A Certificate No. _____
- ---------
THE OPTION REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS. THE TRANSFER OF THE OPTION
REPRESENTED BY THIS CERTIFICATE, OR OF THE UNITS PURCHASABLE PURSUANT TO THE
OPTION REPRESENTED BY THIS CERTIFICATE, IS RESTRICTED BY THE TERMS OF THE 1996
OPTION PLAN OF MODEM MEDIA ADVERTISING LIMITED PARTNERSHIP DESCRIBED BELOW.
OPTION CERTIFICATE
Units* Exercise Price
---------- ----------
This is to certify that ------------------------ is the holder of an option (the
"Option") to purchase --------------- Units* in Modem Media Advertising Limited
Partnership, a Connecticut limited partnership, for an aggregate purchase price
of ------------. This Option has been issued by Modem Media Advertising Limited
Partnership pursuant to the 1996 Option Plan of Modem Media Advertising Limited
Partnership (the "Plan"), and shall be governed by the terms thereof. This
Option [may][may not] be exercised in incremental portions.
MODEM MEDIA ADVERTISING LIMITED PARTNERSHIP
By: Modem Media, Inc., General Partner
By: Issue Date:_________
------------------------------
The undersigned accepts the Option represented by this Certificate and (i)
acknowledges that he or she has been given a copy of the Plan and has had an
opportunity to read it in its entirety and is thoroughly familiar with its
terms, and (ii) agrees to be bound by the terms of the Plan and any and all
rules, regulations, resolutions and interpretations of the Compensation
Committee of Modem Media Advertising Limited Partnership thereunder. The Plan
and this Option represent the entire agreement of the parties with respect to
this Option, and may be amended only by a writing signed by the parties hereto.
Dated: Holder:
------------------- ----------------------------
* Subject to adjustment in accordance with the terms of the Plan
<PAGE>
EXHIBIT 5.1
-----------
March 1, 1999
Modem Media . Poppe Tyson, Inc.
228 Saugatuck Avenue
Westport, CT 06880
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about March 1, 1999
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 4,329,658 shares of
Common Stock, par value $0.001 (the "Shares"), reserved for issuance pursuant to
the Modem Media Advertising Limited Partnership 1996 Option Plan, the Amended
and Restated 1997 Stock Option Plan and the 1999 Employee Stock Purchase Plan
(collectively, the "Plans"). As your legal counsel, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the sale and issuance of the Shares under the Plans.
It is our opinion that the Shares will be, when issued and sold in the
manner referred to in the Plans, legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement and any subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati P.C
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated November 16, 1998
(except with respect to certain matters discussed in Notes 2 and 15, as to which
the date is January 11, 1999) and March 6, 1997 included in the Form S-1 (No.
333-68057) of Modem Media.Poppe Tyson, Inc. and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
- -------------------------
ARTHUR ANDERSEN LLP
February 25, 1999
