<PAGE>
As filed with the Securities and Exchange Commission on September 20, 2000
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MODEM MEDIA, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 06-1464807
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification Number)
230 East Avenue
Norwalk, Connecticut 06855
(Address of principal executive offices, including zip code)
________________
MODEM MEDIA 2000 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Sloane Levy, Esq.
MODEM MEDIA, INC.
230 East Avenue
Norwalk, Connecticut 06855
(Name and address of agent for service of process)
(203) 299-7000
(Telephone number, including area code, of agent for service)
_________________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed
Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Per Aggregate Amount of
of Securities to be Registered Registered (1) Share (2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value per
share ............................................... 400,000 shares $6.8438 $2,737,520 $722.70
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</TABLE>
(1) Excludes such indeterminate number of shares as may be offered and issued
to prevent dilutions resulting from stock splits, stock dividends,
recapitalizations or other similar transactions. This amount represents
400,000 shares of Common Stock reserved for issuance pursuant to options,
SARs, restricted stock, performance awards and other stock based awards
granted or which may be granted under the Modem Media 2000 Stock Incentive
Plan (the "Plan").
(2) Estimated solely for the purpose of computing the amount of the
registration fee. Pursuant to Rule 457(c) and Rule 457(h) under the
Securities Act of 1933, as amended, the proposed maximum offering price per
share and the proposed maximum aggregate offering price of shares subject
to outstanding options have been determined based on the average of the
high and low price of the Common Stock on September 18, 2000, as reported
by the NASDAQ National Market.
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PART II
Item 3. Incorporation of Documents by Reference
This Registration Statement incorporates herein by reference the
following documents which have been filed with the Securities and Exchange
Commission (the "Commission") by Modem Media, Inc. (the "Company" or "Modem
Media") as Registrant:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) All reports filed pursuant to Section 13(a) or 15(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange
Act") since December 31, 1999; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, filed pursuant to
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description that was filed
on February 1, 1999.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of
the 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 hereof from the
date of filing of such documents (such documents, and the documents enumerated
above, being hereinafter referred to collectively as the "Incorporated
Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained therein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statements
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
Not Applicable.
Item 6. Indemnification of Directors and Officers
Modem Media's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. The Delaware General
Corporation Law provides that a corporation's certificate of incorporation may
contain a provision eliminating or limiting the personal liability of a director
for monetary damages for breach of his or her fiduciary duties as a director,
except for liability for:
. any breach of the duty of loyalty to the corporation or its
stockholders;
. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law; or
. any transaction from which the director derives an improper personal
benefit.
Modem Media's Bylaws provide that Modem Media shall indemnify its
directors and officers and may indemnify its employees and agents to the fullest
extent permitted by Delaware law, including those circumstances where
indemnification would otherwise be discretionary under Delaware law.
<PAGE>
The Registrant maintains directors and officers insurance providing
indemnification for certain of the Registrant's directors, officers, affiliates,
partners or employees for certain liabilities.
Modem Media has entered into agreements to indemnify its directors and
officers in addition to the indemnification provided for in its Certificate of
Incorporation and Bylaws. Under these agreements, Modem Media is obligated to
indemnify its directors and officers for expenses, attorneys' fees, judgments,
fines and settlement amounts incurred by any such person in any action or
proceeding arising out of such person's services as a director or officer of
Modem Media, any subsidiary of Modem Media or any other company or enterprise to
which the person provides services at the request of Modem Media. Modem Media
believes that these provisions and agreements are necessary to attract and
retain qualified individuals to serve as directors and officers. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officer or persons controlling Modem Media pursuant to
the foregoing provisions, Modem Media has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, (the "Securities Act") and is therefore
unenforceable.
Item 7. Exemption for Registration Claimed
Not Applicable
Item 8. Exhibits
The following documents are filed as a part of this Registration
Statement:
Exhibit
Number Description
------ -----------
4.1 Amended and Restated Certificate of Incorporation of the Registrant,
effective June 5, 2000 (included as an exhibit to the quarterly report
on Form 10-Q for the quarter ended June 30, 2000)
4.2 Amended and Restated Bylaws of the Registrant, effective June 5, 2000
(included as an exhibit to the quarterly report on Form 10-Q for the
quarter ended June 30, 2000)
5.1 Opinion of Sloane Levy, Esq., General Counsel of the Company, as to
the legality of the securities to be registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG LLP
23.3 Consent of Sloane Levy, Esq., (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature pages hereof)
99.1 Modem Media 2000 Stock Incentive Plan
<PAGE>
Item 9. Undertakings
(a) 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
(a)(1)(i) and (a)(1)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or
Section 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 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.
(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 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.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Gerald M. O'Connell, Robert C. Allen, II and Sloane
Levy acting severally, his or her true and lawful attorney-in-fact and agent,
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 to such Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent 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 attorney-in-fact and agent, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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 Norwalk, State of Connecticut, on September 20, 2000.
MODEM MEDIA, INC.
By: /s/ Gerald M. O'Connell
----------------------------
Name: Gerald M. O'Connell
Title: Chairman of the Board
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Chairman of the Board September 20, 2000
------------------------------------
(Gerald M. O'Connell) Chief Executive Officer
Director
/s/ Robert C. Allen, II President September 20, 2000
------------------------------------
(Robert C. Allen, II) Chief Operating Officer
Director
/s/ Keryn Cerbone Acting Chief Financial Officer September 20, 2000
------------------------------------
(Keryn Cerbone) (Principal Financial and
Accounting Officer)
/s/ Robert H. Beeby Director September 20, 2000
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(Robert H. Beeby)
/s/ Terry D. Peigh Director September 20, 2000
------------------------------------
(Terry D. Peigh)
/s/ Donald L. Seeley Director September 20, 2000
------------------------------------
(Donald L. Seeley)
/s/ Donald M. Elliman, Jr. Director September 20, 2000
------------------------------------
(Donald M. Elliman, Jr.)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Don Peppers Director September 20, 2000
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(Don Peppers)
/s/ Joseph R. Zimmel Director September 20, 2000
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(Joseph R. Zimmel)
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EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4.1 Amended and Restated Certificate of Incorporation of the Registrant,
effective June 5, 2000 (included as an exhibit to the quarterly report
on Form 10-Q for the quarter ended June 30, 2000)
4.2 Amended and Restated Bylaws of the Registrant, effective June 5, 2000
(included as an exhibit to the quarterly report on Form 10-Q for the
quarter ended June 30, 2000)
5.1 Opinion of Sloane Levy, Esq., General Counsel of the Company, as to
the legality of the securities to be registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of KPMG LLP
23.3 Consent of Sloane Levy, Esq., (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature pages hereof)
99.1 Modem Media 2000 Stock Incentive Plan
