As Filed with the Securities and Exchange Commission on June 29, 2000
Registration No. 333-35306
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Post-Effective Amendment No. 1
on Form S-8
to
Form S-4
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 (I.R.S. Employer Identification No.)
of incorporation or organization)
1250 Broadway
New York, New York 10001
(Address of Principal Executive Offices)
Exactis.com, Inc. 1996 Stock Option Plan, Exactis.com, Inc. 1997
Stock Option Plan, Exactis.com, Inc. 1999 Equity Incentive Plan and
Exactis.com, Inc. 1999 Employee Stock Purchase Plan
DAVID J. MOORE
Chief Executive Officer
24/7 Media, Inc.
1250 Broadway
New York, New York 10001
(212) 231-7100
(Name, address and telephone number, including area code, of agent for service)
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
maximum maximum
offering price aggregate
Title of Amount to per offering Amount of
securities to be registered be registered(1) share price registration fee
----------------------------------------- ---------------- -------------- ------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share.. 2,051,410 shares (2) (2) (2)
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</TABLE>
(1) This Post-Effective Amendment No. 1 on Form S-8 to Form S-4 covers shares
of 24/7 Media, Inc. common stock, par value $0.01 per share, originally
registered on the Registration Statement on Form S-4 to which this
Amendment relates.
(2) Not applicable. All filing fees payable in connection with the
registration of there securities were paid in connection with the filings
of the Registration Statement on Form S-4 on April 20, 2000 and May 25,
2000, to register 8,161,530 shares of 24/7 Media, Inc. common stock, par
value $0.01 per share, issuable to stockholders of Exactis.com, Inc.,
including the 2,051,410 shares which may be issued pursuant to the Plans
referred to above. See "Introductory Statement".
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<PAGE>
INTRODUCTORY STATEMENT
24/7 Media, Inc. ("24/7 Media" or the "Registrant") hereby amends
its Registration Statement on Form S-4 (No. 333-35306) (the "Form S-4") by
filing this Post-Effective Amendment No. 1 on Form S-8 to Form S-4 (the
"Post-Effective Amendment" or the "Registration Statement") relating to the
sale of up to 2,051,410 shares of common stock, par value $0.01 per share, of
24/7 Media ("24/7 Media Common Stock") issuable in connection with options,
shares or rights to acquire shares, granted under the Exactis.com, Inc. 1996
Stock Option Plan, Exactis.com, Inc. 1997 Stock Option Plan, Exactis.com, Inc.
1999 Equity Incentive Plan and Exactis.com, Inc. 1999 Employee Stock Purchase
Plan (collectively, the "Plans").
On June 28, 2000, 24/7 Media and Exactis.com, Inc., a Delaware
corporation ("Exactis.com"), consummated a merger (the "Merger") whereby a
wholly owned subsidiary of 24/7 Media merged with and into Exactis.com
pursuant to an Agreement and Plan of Merger (the "Merger Agreement") dated as
of February 29, 2000. As a result of the Merger, Exactis.com became a wholly
owned subsidiary of 24/7 Media. Pursuant to the Merger and the other
transactions contemplated by the Merger Agreement, each share of Exactis.com
common stock (other than shares owned by 24/7 Media or Exactis.com or their
subsidiaries), par value $0.01 per share ("Exactis.com Common Stock"), was
converted into the right to receive 0.60 shares of 24/7 Media Common Stock.
In addition, each outstanding option granted pursuant to the Plans
will no longer be settled in shares of Exactis.com Common Stock, but instead
will be settled on the same terms and conditions as were applicable
immediately prior to consummation of the Merger in that number of shares of
24/7 Media Common Stock (rounded down to the nearest whole share) equal to (x)
the number of shares of Exactis.com Common Stock which would have been
delivered pursuant to such stock-based award multiplied by (y) 0.60, at an
exercise price per share of 24/7 Media Common Stock (rounded up to the nearest
tenth of a cent) equal to (A) the exercise price per share of such Exactis.com
Common Stock immediately prior to the completion of the Merger divided by (B)
0.60. Each outstanding option will otherwise be exercisable upon the same
terms and conditions as were applicable immediately prior to the Merger.
The Post-Effective Amendment relates to the offer and sale after the
Merger of 24/7 Media Common Stock pursuant to the Plans.
<PAGE>
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
24/7 Media hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission:
(a) 24/7 Media's Annual Report on Form 10-K for the year ended
December 31, 1999;
(b) 24/7 Media's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000; and
(c) The description of 24/7 Media Common Stock contained in 24/7
Media's Registration Statement filed on Form S-1 (Registration
No. 333-70857), including any amendments or reports filed for
the purpose of updating such description.
All documents subsequently filed by 24/7 Media pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
to the Form S-4 which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the 24/7 Media Common Stock being offered hereby has
been passed upon by Cravath, Swaine & Moore. Cravath, Swaine & Moore from time
to time acts as counsel for 24/7 Media.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of
Delaware ("Delaware Corporation Law") provides, in general, 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,
<PAGE>
3
criminal, administrative or investigative (other than an action by or in the
right of the corporation), because the person is or was a director or officer
of the corporation. Such indemnity may be against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person 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 if, with respect to any criminal action or proceeding, the
person did not have reasonable cause to believe the person's conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in general,
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 or suit by or in the right of the corporation to procure a
judgment in its favor because the person is or was a director or officer of
the corporation, against any expenses (including attorneys' fees) actually and
reasonably incurred by the person 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, 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 be indemnified for such expenses which the Court of Chancery or
such other court shall deem proper.
Section 145(g) of the Delaware Corporation Law provides, in general,
that a corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation
against any liability asserted against the person and incurred by the person
in any such capacity, or arising out of the person's status as such, whether
or not the corporation would have the power to indemnify the person against
such liability under the provisions of the law.
Article Ninth of the Registrant's certificate of incorporation
permits indemnification to the fullest extent permitted under Delaware law of
any person who is or was a director or officer of the Registrant who is or was
involved or threatened to be made so involved in any proceeding, whether
civil, criminal, administrative or investigative, because that person is or
was serving as a director or officer of the Registrant or was serving at the
request of the Registrant as a director or officer of any other enterprise.
The foregoing statements are subject to the detailed provisions of
Section 145 of the Delaware Corporation Law and Article Ninth of the
certificate of incorporation of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
4
Item 8. Exhibits.
See Exhibit Index.
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;
(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 volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the maximum aggregate offering price may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act, if in the aggregate, the changes in volume and 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; 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 or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the Registration Statement is on Form S-8 or Form S-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 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 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.
(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, 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
<PAGE>
5
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 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 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>
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing this Post-Effective Amendment No. 1 on Form
S-8 to the Form S-4 Registration Statement 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
June , 2000.
24/7 MEDIA, INC.
By: /s/ DAVID J. MOORE
--------------------------------
Name: David J. Moore
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 on Form S-8 to the Form S-4 Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
Signature Title Date
/s/ DAVID J. MOORE Chief Executive Officer June 29, 2000
-------------------------- and Director
David J. Moore (Principal Executive
Officer)
* Chairman of the Board June 29, 2000
--------------------------
R. Theodore Ammon
* Executive Vice June 29, 2000
-------------------------- President and Director
Jacob I. Friesel
* Director June 29, 2000
--------------------------
John F. Barry
* Director June 29, 2000
--------------------------
Arnie Semsky
* Director June 29, 2000
--------------------------
Charles W. Stryker, PH.D.
<PAGE>
7
* Executive Vice June 29, 2000
-------------------------- President, Treasurer &
C. Andrew Johns Chief Financial Officer
(Principal Financial
Officer)
* Senior Vice President June 29, 2000
-------------------------- and Controller
Stuart D. Shaw (Principal Accounting
Officer)
*By: /s/ DAVID J. MOORE
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Attorney-In-Fact
<PAGE>
8
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of 24/7 Media
(filed as Exhibit 3.1 to 24/7 Media's Registration Statement on
Form S-1 (Registration No. 333-56085))*
4.2 By-laws of 24/7 Media (filed as Exhibit 3.2 to 24/7 Media's
Registration Statement on Form S-1 (Registration No.
333-56085))*
5.1 Opinion of Cravath, Swaine & Moore regarding legality of
securities being registered
23.1 Consent of Cravath, Swaine & Moore (included in Exhibit 5.1)
23.2 Consent of KPMG LLP
24.1 Powers of Attorney (included on Signature Page)
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* Incorporated by reference.
