As filed with the Securities and Exchange Commission on November 9, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
1988 Stock Incentive Plan
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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24/7 Media, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-3995672
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
1250 Broadway
New York, New York 10001
(212) 231-7100
(Address of principal executive offices) (Zip code)
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DAVID J. MOORE
Chief Executive Officer
24/7 Media, Inc.
1250 Broadway
New York, New York 10001
(212) 231-7100
Fax (212) 760-1774
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies of all communications to:
Ronald R. Papa, Esq,
Proskauer Rose LLP
1585 Broadway
New York, New York 10036-8299
(212) 969-3000
Fax (212) 969-2900
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<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered(1) offering price aggregate offering Registration
per share(2) price(2) Fee
Common Stock,
par value $.01 per
share 3,000,000 shares $13.25 $39,750,000 $11,726.25
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(1) The maximum number of shares as to which awards may be granted
under the 1998 Stock Incentive Plan (the "Plan"). Pursuant to
Rule 416, there are also being registered such additional
indeterminate number of shares as may be required to cover
possible adjustments under such Plan.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) calculated on the
basis of the high and low sale prices of the Common Stock as
reported on the NASDAQ National Market on November 2, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities and Exchange Commission
by 24/7 Media, Inc., a Delaware corporation (the "Corporation" or the
"Registrant"), are incorporated herein by reference:
(a) The Corporation's Registration Statement filed on Form S-1
(Registration No. 333-56085) registering the Corporation's common stock.
(b) The Corporation's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998.
(c) The description of the Corporation's Common Stock, par value $.01
per share, contained in the Corporation's Registration Statement filed on
Form S-1(Registration No. 333-56085).
All documents subsequently filed by the Corporation pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment
which indicated that all remaining securities offered have been sold or
which de-registers all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be part
thereof from the date of filing such documents.
Any statement in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for the
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.
See Item 1 above.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The Corporation's Certificate of Incorporation provides that the
Corporation shall, to the full extent permitted by law, indemnify any person who
is or was a director, officer, incorporator, employee or agent of the
Corporation against liability arising by reason of the fact that such person is
or was a director, officer, incorporator, employee or agent of the Corporation,
provided that such person acted in good faith and in a manner he or she
reasonably believed was not opposed to the best interests of the Corporation.
Article Eighth of the Corporation's Certificate of Incorporation
provides that a no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, to the fullest extent now or hereafter permitted by the laws
of the State of Delaware.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Corporation (incorporated by
reference to Exhibit 3.1 to the Corporation's Registration Statement
on Form S-1(Registration No. 333- 56085))
4.2 1998 Stock Incentive Plan (incorporated by reference to Exhibit 10.1
to the Corporation's Registration Statement on Form S-1(Registration
No. 333-56085))
*5 Opinion of Proskauer Rose LLP
*23.1 Consent of KPMG Peat Marwick LLP
*23.2 Consent of Proskauer Rose LLP (included in Exhibit 5)
24 Powers of Attorney: Included on Page II-5.
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* Filed herewith.
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 of 1933;
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(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. Notwithstanding the foregoing, any
increase or decrease in value of securities offered (if just the
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume or price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"calculation of Registration Fee" table in the effective 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)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and 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 Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) 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 the 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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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
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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 Act and will
be governed by the final adjudication of such issue.
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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 New York, State of New York on November 9, 1998.
24/7 MEDIA, INC.
By: /s/ David J. Moore
Name: David J. Moore
Title: Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints David J. Moore, C. Andrew Johns and Mark E.
Moran, or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to act, without the other, for
him and in his name, place, and stead, in any and all capacities, to sign a
Registration Statement on Form S-8 of 24/7 Media, Inc. and any or all amendments
(including post-effective amendments) thereto, relating to the registration,
under the Securities Act of 1933, as amended, of shares of Common Stock of the
Corporation to be issued pursuant to the Corporation's 1998 Stock Incentive Plan
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 full to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, their substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated.
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Signatures Title
/s/ David J. Moore Chief Executive Officer and Director (Principal
David J. Moore Executive Officer)
/s/ R. Theodore Ammon Chairman of the Board
R. Theodore Ammon
/s/ Yale R. Brown Executive Vice President - Technology and Director
Yale R. Brown
/s/ Jacob I. Friesel Executive Vice President and Director
Jacob I. Friesel
/s/ John F. Barry Director
John F. Barry
/s/ Michael P. Paolucci Director
Michael P. Paolucci
/s/ Jack L. Rivkin Director
Jack L. Rivkin
/s/ Charles W. Stryker Director
Charles W. Stryker
/s/ C. Andrew Johns Executive Vice president, Treasurer & Chief
C. Andrew Johns Financial Officer (Principal Financial Officer)
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Signatures Title
/s/ Arnie Semsky Director
Arnie Semsky
/s/ Stuart D. Shaw Controller (Principal Accounting Officer)
Stuart D. Shaw
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-8 of 24/7 Media, Inc. of our reports dated, June 2, 1998, except for Note
13, which is as of July 20, 1998, relating to the balance sheets of 24/7 Media,
Inc. as of December 31, 1996 and 1997, and the related statements of operations,
shareholder's equity (deficit) and cash flows for each of the years in the
three-year period ended December 31, 1997, and the related financial statement
schedule dated August 12, 1998, which reports appear in the Form S-1 of 24/7
Media, Inc. dated August 12, 1998.
KPMG PEAT MARWICK LLP
New York, New York
November 9, 1998
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EXHIBIT 5
November 9, 1998
The Board of Directors
24/7 Media, Inc.
1250 Broadway
New York, New York 10001
Dear Sirs:
We are acting as counsel to 24/7 Media, Inc., a Delaware corporation (the
"Company"), in connection with the Registration Statement on Form S-8 with
exhibits thereto (the "Registration Statement") filed by the Company under the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
relating to the registration of 3,000,000 shares (the "Shares") of Common Stock,
par value $.01 per share, of the Company. The Shares are to be issued by the
Company upon grant of certain stock options (the "Options") granted and to be
granted to certain employees or directors of the Company pursuant to the
Company's 1998 Stock Incentive Plan (the "Plan").
As such counsel, we have participated in the preparation of the
Registration Statement, and have reviewed the corporate proceedings in
connection with the adoption of the Plan and have also examined and relied upon
originals or copies, certified or otherwise authenticated to our satisfaction,
of all such corporate records, documents, agreements, and instruments relating
to the Company, and certificates of public officials and of representatives of
the Company, and have made such investigations of law, and have discussed with
representatives of the Company and such other persons such questions of fact, as
we have deemed proper and necessary as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized and, upon exercise or grant of the Options in
accordance with the terms of the Plan against payment of the exercise price
therefor (as applicable), will be, assuming no change in the applicable law or
pertinent facts, validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
PROSKAUER ROSE LLP
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