As filed with the Securities and Exchange Commission on January 12, 2001.
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CROSS MEDIA MARKETING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-4042921
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
410 Park Avenue, Suite 830
New York, NY 10022
(212) 752-2601
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
----------------
Ronald Altbach
Chairman and Chief Executive Officer
410 Park Avenue, Suite 830
New York, NY 10022
(212) 752-2601
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------
Copy to:
Bonnie D. Podolsky, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
-----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
<PAGE>
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. o
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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. |X|
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. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Shares to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share(1) Offering Price(2) Fee
===============================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share 9,239,692 shares $1.625 $15,014,499.50 $3,754.00
===============================================================================================================
</TABLE>
(1) Consists of shares of common stock (a) issuable upon conversion of the
Registrant's Series A Convertible Preferred Stock (the "Series A Shares"),
(b) issuable upon exercise of warrants to purchase an aggregate of 375,000
shares of common stock at $1.485 per share (the "Warrants") and (c) to be
issued as payment of dividends accrued on the Series A Shares as of
January 1, 2001. This Registration Statement shall also cover an
indeterminate number of additional shares of common stock as may be
issuable upon conversion of the Series A Shares, exercise of the Warrants
or issuance of shares of common stock to pay dividends to prevent
dilution.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) of the Securities Act of 1933,
based on the average of the high and low prices of the Registrant's common
stock as reported on the American Stock Exchange on January 8, 2001, which
is within five business days prior to the date of this Registration
Statement.
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
<PAGE>
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 SEC, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED JANUARY 12, 2001
PROSPECTUS
CROSS MEDIA MARKETING CORPORATION
9,239,692 SHARES of Common Stock
------------------
The stockholder of Cross Media Marketing Corporation ("Cross Media
Marketing" or the "Company") listed on page 13 of this prospectus is offering
and selling a total of up to 9,239,692 shares of Cross Media Marketing common
stock under this prospectus.
Certain shares to be sold will be issued upon conversion of shares of
Cross Media Marketing's Series A Convertible Preferred Stock ("Series A Shares")
or upon exercise of related warrants owned by the selling stockholder. Certain
shares to be sold will be issued to the selling stockholder in payment of
accrued dividends on the Series A Shares as of January 1, 2001. The selling
stockholder may offer its common stock through transactions on the American
Stock Exchange; in private transactions at current market prices; or at
negotiated prices.
Cross Media Marketing is registering an indeterminate number of additional
shares of common stock as may be issuable upon conversion of the Preferred Stock
and exercise of the Warrants and in respect of accrued dividends on the Series A
Shares as of January 1, 2001 to reflect adjustments to prevent dilution.
We will not receive any of the proceeds from the sale of the shares sold
by the selling stockholder and are not offering any shares for sale under this
prospectus. See "Plan of Distribution" on page 15 for a description of sales of
the shares by the selling stockholder.
Our common stock is listed on the American Stock Exchange under the symbol
"XMM." On January 9, 2001, the closing sale price for our common stock, as
reported on the American Stock Exchange, was $1.9375. We advise you to obtain a
current market quotation for Cross Media Marketing common stock.
On December 28, 2000, we changed our name from Symposium Corporation to
Cross Media Marketing Corporation.
-------------------------------
Investing in our common stock involves risks. See "Risk Factors" beginning
on page 5 of this prospectus.
-------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
<PAGE>
The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the SEC is effective. This prospectus is not an offer to
sell these securities, and it is not soliciting an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
-------------------------------
The date of this prospectus is _______________, 2001.
<PAGE>
TABLE OF CONTENTS
Page
About Cross Media Marketing Corporation....................................... 3
Risk Factors.................................................................. 5
Forward-Looking Statements....................................................11
Use of Proceeds...............................................................11
Description of Capital
Stock.........................................................................11
Selling Stockholder .........................................................13
Plan of Distribution..........................................................15
Legal Matters.................................................................16
Experts.......................................................................16
Where You Can Find Additional Information.....................................18
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<PAGE>
SUMMARY
This summary highlights selected information from this prospectus and may
not contain all of the information that is important to you. To understand this
offering fully, you should read the entire prospectus carefully, including "Risk
Factors" beginning on page 5. In addition, you should also read the documents we
have referred you to in "Where You Can Find Additional Information" on page 18
for information on our company and our financial statements.
ABOUT CROSS MEDIA MARKETING CORPORATION
We are a cross media direct marketing company that integrates
sophisticated marketing skills with new technologies for the sale of
multi-magazine subscription packages, discount buying club memberships and
telecommunication services. Through inbound and outbound telemarketing programs
at Media Outsourcing, Inc. ("MOS"), our principal operating business, we contact
and retain critical data on more than eleven million consumers annually.
Our strategy is to integrate well established direct marketing skills with
a variety of new technologies, including e-mail marketing, web-based systems and
interactive voice response, ultimately resulting in a multi-faceted marketing
platform for the sale of products and services. We expect that this strategy
will enable us to contact consumers on a cost effective basis through multiple
communications channels, such as e-mail, telemarketing, traditional advertising
and interactive voice response. We plan to use these consumer contacts to
develop a dynamic consumer database and to integrate all of these activities
into a single new system. When completed, the new system should enable us to
target marketing campaigns to select sub-groups of our total customer base and
to measure the success of campaigns while factoring in the different
communications channels used in those campaigns.
As a first step in implementing this strategy, in January 2000, we
acquired the business of an Atlanta, Georgia based magazine subscription agency,
which works on behalf of publishers to generate new magazine subscriptions. We
operate this business through our wholly-owned subsidiary, MOS. We act as a
clearinghouse which has the "Direct Authority" on behalf of magazine publishers,
to accept magazine subscription orders and to place those orders with
fulfillment houses designated by the publishers. We retain approximately 35
independent telemarketing agencies, also known as call centers, to generate
magazine subscriptions on our behalf and have recently opened our own call
centers in Orlando, Florida and Peoria, Illinois. Each month, these call centers
reach between 900,000 and 1,000,000 potential customers, resulting in
approximately 12,000 new orders per month in 2000. The call centers offer a
bundle of four to five magazines having an average selling price of
approximately $600 per bundle, for an average subscription period of between one
and four years. We decide whether to accept orders submitted by the call centers
by calling each customer to verify all of the information regarding the order,
including the details of the magazine subscription order and the customer's
credit card information. When this process is complete, we finance the cost of
the magazines to the subscriber, generally over a 12 month period, by
automatically debiting each subscriber's credit card on a monthly basis. We
forward the order to the magazine publisher's fulfillment center for processing
and pay the publisher an agreed upon amount for the order.
On May 2, 2000, we established a strategic alliance with Cendant
Corporation to develop an on-line discount buying club. The new site, the
"Symposium Marketplace," created and hosted by Cendant, became fully functional
on December 1, 2000. The Symposium Marketplace site offers members a broad range
of consumer products on-line at discount prices. In addition to hosting the
site, Cendant provides customized customer service including an 800-number and
an e-mail address for inquiries posed by members. Cross Media Marketing and
Cendant will share membership fees, merchandise revenue and advertising revenue
associated with the site.
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<PAGE>
On August 31, 2000, we entered into an agreement to acquire National
Syndications, Inc. ("NSI"), a direct marketer of consumer products and a party
to service advertising contracts that make it the largest print advertiser in
Sunday newspaper based magazines. We agreed to pay approximately $13.0 million
in cash, plus shares of our common stock having a value of approximately $3.0
million and approximately $3.1 million in future earnout payments, based on
NSI's earnings in calendar years 2000 through 2002. The NSI acquisition was
originally scheduled to close by the end of September, 2000. The parties agreed
to delay the closing until January 10, 2001 and agreed to a further delay until
January 31, 2001. We have encountered difficulties in arranging the financing
necessary to enable us to pay the cash portion of the purchase price. Therefore,
there can be no assurance that we will be able to complete the NSI acquisition.
On November 30, 2000, we acquired WeFusion.com, Inc. ("WeFusion"), an
application service provider (ASP) which has developed a database architecture
that will enable us to develop sophisticated customer profiles. We anticipate
that WeFusion's technology will enhance our ability to cross market products and
services through multiple channels to our existing and newly acquired customers.
The WeFusion acquisition has provided us with significant additional technology
and management expertise and also added two million names to our databases.
On December 28, 2000, we changed our name from Symposium Corporation to
Cross Media Marketing Corporation and, effective December 29, 2000, changed our
trading symbol on the American Stock Exchange to "XMM". We are a Delaware
corporation. Our executive offices are located at 410 Park Avenue, Suite 830,
New York, New York 10022. Our phone number is (212)752-2601. References in this
prospectus to the "Company or "we," "us," or "our" means Cross Media Marketing
Corporation and its subsidiaries on a consolidated basis, unless the context
otherwise indicates.
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<PAGE>
RISK FACTORS
Investing in these securities involves substantial risks. You should consider
carefully the following risk factors, together with all of the other information
included in this prospectus and incorporated by reference into this prospectus,
in deciding whether to invest in the securities.
Investing in our common stock will provide you with an equity ownership
interest in Cross Media Marketing Corporation. As a stockholder, you may be
exposed to the risks inherent in our business. The performance of your shares
will reflect the performance of our business relative to, among other things,
the competition and industry, general economic and market conditions. The
factors discussed below may harm our business, financial condition and results
of operations. The value of your investment may increase or decline and could
result in a loss. You should carefully consider the following risk factors as
well as other information contained in this prospectus before deciding to invest
in shares of our common stock.
Risks Related to Our Business
WE HAVE A HISTORY OF LOSSES AND MAY INCUR FUTURE LOSSES.
We continue to report net losses to our common stockholders. The net loss
to our stockholders for the nine months ended September 30, 2000 was $37.4
million, or $1.64 per share, primarily as a result of preferred stock dividends
of $36.7 million. The preferred dividends include dividends of $0.6 million that
we were contractually required to pay to the holders of the preferred stock and
non-cash deemed dividends of $36.1 million. Deemed dividends represent the
accretion of the difference between the carrying value and the mandatory
redemption amounts of preferred stock that resulted from allocating a portion of
the proceeds to common stock, common stock purchase warrants, and the beneficial
conversion features of the shares. We may continue to incur deemed dividends in
the future. In addition, if our net revenues grow more slowly than we
anticipate, or if our operating expenses exceed our expectations, our business,
results of operations, financial condition and prospects would be materially and
adversely affected.
WE HAVE A LIMITED OPERATING HISTORY.
We developed our present business strategy in 1999 and completed our first
acquisition in January 2000. Therefore, we have a limited history of operations
under our present business strategy upon which you can evaluate the likelihood
of our success. The implementation of a new business strategy frequently
involves risks, expenses and uncertainties that may adversely affect our
business, results of operations, financial condition and prospects.
WE WILL NEED ADDITIONAL FINANCING.
We will need additional debt or equity financing in order to satisfy our
obligation to redeem the outstanding shares of our Series C Convertible
Preferred Stock (the "Series C Shares") on or before January 26, 2001 (if the
holders do not elect to convert the Series C Shares before that date) and to
complete the acquisition of NSI. We may need additional financing to satisfy our
obligation to purchase up to 600,000 shares of common stock from one of our
stockholders who has the right to require us to purchase these shares commencing
on January 15, 2001. We may also require additional financing to pursue our
strategy of expanding our business through the acquisition of companies whose
businesses are strategically appropriate for us. The financing that we need may
not be available to us at all, and if available may not be available on terms
that are acceptable to us. The failure to obtain such financing on a timely
basis, or on economically favorable terms, could prevent us from continuing our
strategy or from responding to changing business
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<PAGE>
or economic conditions, and could cause us to experience difficulty in
withstanding adverse operating results or competing effectively. Therefore, such
failure could materially harm the Company. The Company's failure to redeem the
outstanding Series C Shares would entitle the holders to receive warrants to
purchase a total of 558,370 shares of common stock per month at a price of $0.25
per share (if all of the shares of Series C Shares continue to be outstanding).
The issuance of these warrants could result in significant dilution to the
existing holders of common stock.
If we raise additional funds by issuing equity securities, stockholders
may experience dilution of their ownership interest. Moreover, we could issue
preferred stock that has rights senior to those of our common stock. If we raise
funds by issuing debt securities, these securities would have rights,
preferences and privileges senior to holders of common stock and our lenders may
place limitations on our operations.
WE ARE SUBJECT TO RESTRICTIVE CREDIT FACILITY COVENANTS WHICH COULD HARM OUR
FINANCIAL STATUS AND HAVE A NEGATIVE IMPACT ON OUR STOCK PRICE.
In January 2000, we entered into an agreement with Coast Business Credit
("Coast") to provide a credit facility to finance the acquisition of our
magazine subscription telemarketing business and the ongoing working capital
needs of our subsidiary, MOS. The credit facility has a term of three years, and
provides a maximum credit line of $20 million, subject to certain availability
limitations. We have guaranteed MOS' obligations under the Coast facility. Under
the agreement with Coast, we are required, among other things, to maintain a
consolidated net worth of not less than $9.0 million (defined as stockholders'
equity and subordinated debt) and excess borrowing availability of $750,000. If
we cannot satisfy these or other covenants under the Coast facility, we will be
required to seek a waiver or amendment from Coast. Although Coast has agreed to
waivers and amendments in the past, there can be no assurance that they will do
so in the future. If we default in performing our obligations to Coast, Coast
would be entitled to accelerate the maturity of outstanding indebtedness under
the credit facility ($11.2 million as of December 31, 2000), and to enforce its
security interest in our assets.
OUR ACCOUNTS RECEIVABLE RESERVES MAY NOT BE ADEQUATE.
We extend credit to subscribers who purchase multi-magazine subscription
packages of four to five magazines having an average selling price of
approximately $600 per bundle, for an average subscription period of between one
and four years. We have established a reserve to cover bad debts based upon our
past history with subscriber receivables. If our accounts receivable reserves
are inadequate, our results of operations could be materially adversely
affected.
WE MAY BE ADVERSELY AFFECTED BY AN ECONOMIC SLOWDOWN.
Our business may be adversely affected by periods of economic slowdown or
recession, which may be accompanied by a decrease in the availability of
consumer credit. Any material decline in the availability of consumer credit may
result in a decrease in consumer demand to make credit cards purchases, which
could adversely affect the demand for the our products and services.
WE MAY BE UNABLE TO MANAGE OUR FUTURE GROWTH.
We expect to experience significant growth. This anticipated growth in our
operations could place a significant strain on our operational, systems and
employee resources. As a result, we will have to implement new operational and
financial systems, procedures and controls. In order to manage and accommodate
our planned growth (if it occurs), we will need to continue to improve and adapt
our financial planning, accounting systems, information systems and management
structures. We will also
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<PAGE>
need to expand, train, retain and manage our employee base. If we are unable to
manage our growth effectively, our financial condition and results of operations
could be materially adversely affected.
IF WE ACQUIRE OR MAKE STRATEGIC INVESTMENTS IN OTHER BUSINESSES OR ACQUIRE OR
LICENSE TECHNOLOGY AND OTHER ASSETS, WE MAY HAVE DIFFICULTY INTEGRATING THESE
BUSINESSES OR GENERATING AN ACCEPTABLE RETURN FROM ACQUISITIONS.
We intend to acquire, and to enter into strategic relationships with,
other businesses and acquire or license technology and other assets. We cannot
assure you that acquisition or licensing opportunities will be available on
terms acceptable to us or at all. These acquisitions and strategic relationships
will involve risks, including: inability to raise the required capital;
inability to compete successfully for available acquisition candidates or
strategic partners; difficulty in assimilating the acquired assets, operations
and personnel; disruption of our ongoing business; distraction of our management
from other responsibilities; and lack of the necessary experience to enter new
markets. We may not successfully overcome problems encountered in connection
with potential acquisitions or licensing arrangements. In addition, acquisitions
or strategic relationships could materially impair our operating results,
causing us to incur additional debt, or requiring us to amortize acquisition
expenses and acquired assets.
WE ARE DEPENDENT ON KEY PERSONNEL TO OPERATE OUR BUSINESS EFFECTIVELY.
Our future success may depend on the continued performance of our senior
management and other key personnel. Our future operating results may depend, in
part, upon our ability to retain the services of these individuals. We cannot
assure you that key personnel will not leave Cross Media Marketing or compete
with us, which could have a material adverse effect on our business, results of
operations and financial condition. The loss of the services of any of our
executive officers or other key employees could adversely affect our business.
Our senior management may not perform effectively as individuals or work
together as a team. In addition, competition for employees in our industry and
geographic area is intense.
GOVERNMENT REGULATION COULD ADD SIGNIFICANT ADDITIONAL COSTS TO OUR BUSINESS AND
IMPOSE RESTRICTIONS ON CERTAIN OF OUR MARKETING PRACTICES WHICH COULD HAVE A
SIGNIFICANT ADVERSE EFFECT ON REVENUES.
Laws and regulations applicable to direct marketing, telemarketing,
Internet marketing and consumer protection are becoming more prevalent. Each of
the fifty states and the federal government has laws regulating telemarketing,
sweepstakes promotions, promotional incentives and advertising to consumers
which vary from state to state. While we review our telemarketing scripts and
advertising copy to ensure that they comply with applicable laws, there is no
guarantee that federal or state authorities will not find that our marketing
efforts do not comply with these laws. In addition, it is likely that additional
federal and/or state regulations regarding telemarketing, sweepstakes, e-mail
marketing and other marketing practices engaged in by Cross Media Marketing will
be enacted. If enacted, these regulations could have an adverse effect on
revenues and result in additional expenses to the Company.
The Federal Trade Commission is currently in the process of reviewing the
provisions of the Telemarketing Sales rule to determine if any changes to the
Rule should be made. If the Federal Trade Commission determines that changes to
the rule are necessary, such changes could have a significant adverse effect on
our business.
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<PAGE>
In 1999, Congress enacted the Deceptive Mail Prevention and Enforcement
Act which imposes various restrictions on the offering of sweepstakes through
the mail. Additional sweepstakes legislation has been enacted or is pending in
various states. This addition regulation could have an adverse impact on our
marketing activities.
Federal and state authorities have also been investigating various
companies' use of certain marketing practices, such as the use of personal
information, magazine subscription agents' sweepstakes practices and the
marketing of membership club services through the use of inbound and outbound
telemarketing campaigns. These investigations could result in additional rules,
regulations or industry standards which could have an adverse impact on our
marketing practices.
EXTENSIVE GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES RELATED TO DOING
BUSINESS ON THE INTERNET COULD LIMIT OUR SALES OR ADD SIGNIFICANT ADDITIONAL
COSTS TO OUR BUSINESS.
Laws and regulations directly applicable to Internet communications,
commerce, marketing and data protection are becoming more prevalent. If any of
these laws hinders the growth in use of the Internet generally or decreases the
acceptance of the Internet as a medium of communications, commerce and
marketing, our business and prospects may suffer materially. The United States
Congress has enacted Internet laws regarding children's privacy, copyrights and
taxation. Other laws and regulations may be adopted covering issues such as user
privacy, marketing activities, pricing, content, taxation and quality of
products and services. The governments of some states and foreign countries have
begun to regulate our transactions and levy sales or other taxes relating to our
activities and will likely continue to do so. The laws governing the Internet
remain largely unsettled, even in areas where legislation has been enacted. It
may take years to determine whether and how existing laws such as those
governing intellectual property, privacy, libel and taxation apply to the
Internet and Internet advertising and marketing services. In addition, the
growth and development of the market for Internet commerce may prompt calls for
more stringent consumer protection laws, both in the United States and abroad,
that may impose additional burdens on companies conducting business over the
Internet.
Laws and regulations regulating the transmission of unsolicited email
marketing messages are being considered by many jurisdictions. Legislation of
that type has recently been adopted by the States of California, Virginia and
Washington, and similar legislation is pending in the State of New York and in
Congress. The Telecommunications Act of 1996 prohibits some types of information
and content from being transmitted over the Internet. The prohibition's scope
and the liability associated with a Telecommunications Act violation are
currently unsettled. In addition, although substantial portions of the
Communications Decency Act were held to be unconstitutional, we cannot be
certain that similar legislation will not be enacted and upheld in the future.
CHANGES IN LAWS RELATING TO CONSUMER PRIVACY AND POTENTIALLY HEIGHTENED SCRUTINY
OF OUR SERVICES COULD HARM OUR BUSINESS.
There has been increasing public debate about the collection, distribution
and use of information about consumers. Although this debate has primarily
focused on information collected through the Internet, many of the issues apply
to data gathered through other media. We interact with consumers through our
various direct marketing efforts, both online and offline. As a consequence of
government regulation or evolving standards of consumer privacy protection, we
may be required to make changes to our marketing media and platforms in ways
that could diminish the effectiveness of our marketing efforts, which could harm
our business.
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<PAGE>
Market Related Risks
SHARES ELIGIBLE FOR FUTURE SALE COULD CAUSE OUR STOCK PRICE TO DECLINE DUE TO
DILUTION
As of December 31, 2000, there were 28,604,519 issued and outstanding
shares of our common stock. If the holders of all outstanding options and common
stock purchase warrants exercised those options and warrants, and the holders of
all outstanding convertible securities converted them into common stock, we
would be required to issue approximately 25.7 million additional shares of
common stock, based on current exercise and conversion prices. The conversion
price of the outstanding Series A Shares is subject to adjustment in a manner
that could result in substantial dilution to other holders of the Company's
equity securities. Prior to June 9, 2001, the Series A Shares cannot be
converted into common stock if the closing bid price of the common stock is less
than $1.50 per share. Commencing June 9, 2001, the Series A Shares are
convertible into common stock at a floating rate based on the average of the
three lowest non-consecutive closing bid prices of the common stock during the
ten trading days prior to the date on which the conversion price is determined,
subject to certain adjustments Therefore, the lower the price of our common
stock is at the time of conversion, the more shares of common stock the holder
of the Series A Shares will receive upon conversion. For additional details,
please see the description of the Series A Shares under "Description of Capital
Stock."
The market price of the common stock could decline as a result of future
sales of substantial amounts of the common stock, or the perception that such
sales could occur. Furthermore, certain stockholders have the right to require
us to register for re-sale their shares of common stock, or shares of common
stock into or for which their shares of convertible preferred stock, options or
warrants are convertible or exercisable, which may facilitate the sale of these
shares in the public market. In excess of 34,000,000 shares of outstanding
common stock and shares of common stock into or for which outstanding options,
warrants and convertible securities are exercisable or convertible are entitled
to these "registration rights."
OUR STOCK PRICE IS VOLATILE.
The market price of our common stock has been, and is likely to continue
to be, volatile, experiencing wide fluctuations. Some of these fluctuations
appear to be unrelated or disproportionate to our operating performance. Future
market movements may materially and adversely affect the market price of the our
common stock.
Other Risks
OWNERSHIP OF THE COMPANY IS CONCENTRATED.
The five largest stockholders of the Company beneficially owned in excess
of 50% of the Company's issued and outstanding common stock as of December 31,
2000. Assuming that these stockholders acquired additional shares of common
stock by converting the shares of convertible preferred stock and exercising the
options and common stock purchase warrants that they owned on December 31, 2000,
they would beneficially own in excess of 70% of the issued and outstanding
common stock. As a result, these stockholders have the ability to exert
significant influence over the Company's business, including the election of
directors and the approval of any other action requiring the approval of
stockholders. This concentration of share ownership may: (i) delay or prevent a
change of control of the Company; (ii) impede a merger, consolidation, takeover
or other business combination involving the Company; or (iii) discourage a
potential acquirer from making a tender offer or otherwise attempting to obtain
control of the Company.
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<PAGE>
PROVISIONS OF OUR CORPORATE CHARTER DOCUMENTS COULD DELAY OR PREVENT A CHANGE OF
CONTROL.
Our Certificate of Incorporation authorizes the board of directors (the
"Board of Directors") to issue up to 10,000,000 shares of preferred stock, par
value $.001 per share. The preferred stock may be issued in one or more series,
the terms of which may be determined at the time of issuance by the Board of
Directors, without further action by stockholders, and may include, among other
things, voting rights (including the right to vote as a series on particular
matters), preferences as to dividends and liquidation, conversion and redemption
rights, and sinking fund provisions. There are two series of preferred stock
currently outstanding which have a preference over the common stock if our
company is liquidated. In addition, specific rights granted to future holders of
preferred stock could be used to restrict our ability to merge with, or sell our
assets to a third party. The ability of the Board of Directors to issue
preferred stock could discourage, delay, or prevent a takeover of our Company,
thereby preserving control by the current stockholders.
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<PAGE>
FORWARD-LOOKING STATEMENTS
When used in this prospectus, the words "believes," "plans," "expects,"
and "anticipates," and similar expressions are intended to identify
forward-looking statements. Except for historical information contained in this
prospectus, the matters discussed and the statements made herein or in the
information incorporated by reference herein concerning our future prospects are
"forward-looking statements" within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. We intend
that all forward-looking statements be subject to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. These forward-looking
statements reflect our views as of the date they are made with respect to future
events, but are subject to known and unknown risks, uncertainties and other
factors that may cause our actual results, performance or achievements to be
materially different from any future results, performance or achievements
expressed or implied by those forward-looking statements. Forward-looking
statements are not guarantees of future performance, and necessarily involve
risks and uncertainties, and our results could differ materially from those
anticipated in the forward-looking statements contained in this prospectus.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock by the
selling stockholder.
DESCRIPTION OF CAPITAL STOCK
We are authorized to issue 100,000,000 shares of common stock, par value
$0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per
share. The following description of our capital stock does not purport to be
complete and is subject to and qualified by our certificate of incorporation and
bylaws, particularly the corrected certificate of designations of the Series A
Shares and our agreements with the holder of the Series A Shares, which have
been filed as exhibits to the registration statement of which this prospectus is
a part and are hereby incorporated by reference in this prospectus, and the
applicable laws of the State of Delaware.
Common Stock
On December 31, 2000, a total of 28,604,519 shares of common stock were
outstanding. The holders of common stock are entitled to one vote for each share
so held and are entitled to notice of any stockholders meeting and to vote upon
any matters as provided in our bylaws or as may be provided by law. Except for
and subject to those rights expressly granted to holders of preferred stock, and
except as may be provided by the laws of the State of Delaware, the holders of
common stock have all other rights of stockholders, including without
limitation, (i) the right to receive dividends, when, as and if declared by our
board, and (ii) in the event of any distribution of assets upon a liquidation or
otherwise, the right to receive all the assets and funds of Cross Media
Marketing Corporation remaining after the payment to the holders of the
preferred stock of the specific amounts to which they are entitled.
Preferred Stock
The board has the authority, without further action by the stockholders,
to issue up to 10,000,000 shares of preferred stock in one or more series and to
designate the rights, preferences, privileges and restrictions of each series.
We currently have two series of preferred stock authorized, issued and
outstanding, the Series A Shares and the Series C Shares. We have no current
plans to issue any additional shares of preferred stock.
Series A Convertible Preferred Stock
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On June 9, 2000, we issued 30,375 Series A Shares and a related warrant to
the selling stockholder, The Shaar Fund Ltd. On August 1, 2000, we issued an
additional 20,250 Series A Shares and a related warrant to the selling
stockholder. We issued the Series A Shares and the related warrants in private
placements.
The face amount of the Series A Convertible Preferred Stock is $100 per
share or a total of $5,062,500 for all of the outstanding Series A Shares.
Dividends. Dividends are payable on the Series A Shares on July 1 and
January 1 of each year at an annual rate of 10% of the face amount, except that
dividends accrued as of January 1, 2001 are payable on February 28, 2001.
Dividends are payable in cash or, if the conditions described in the certificate
of designations are satisfied, in additional shares of common stock valued at
the conversion price on the dividend payment date.
Liquidation. In the event of our liquidation, the Series A Shares are
entitled to receive a liquidation preference before any amounts are paid to
holders of our common stock. The liquidation preference equals the stated value
plus any accrued and unpaid dividends.
Redemption. Commencing June 9, 2001, we have the right to redeem all, but
not less than all, of the outstanding Series A Shares at a redemption price of
100% of face value plus any accrued and unpaid dividends, provided that the
average of the closing asked prices of the common stock for the twenty trading
days preceding our notice of redemption is less than $5.00 per share.
Conversion. The Series A Shares are convertible at the option of the
holder into a number of shares of our common stock determined by dividing the
applicable conversion price into the stated value of the Series A Shares. The
conversion price equals the lower of: (i) $1.9250 or (ii) a percentage (ranging
from 103% on June 9, 2000 down to 91% from and after March 7, 2001) of the
average of the three lowest, non-consecutive closing bid prices for the common
stock during the ten trading days preceding the date of the holder's notice to
us of the conversion. The applicable percentage in effect through March 6, 2001
is 94%. The conversion price in effect on January 10, 2001 was $1.2925 and,
accordingly, on that date the outstanding Series A Shares would have been
convertible into a total of 3,916,827 shares of common stock.
The conversion price of the Series A Shares is subject to downward
adjustment to equal the lowest price at which shares of our common stock or
securities convertible into, or exchangeable or exercisable for, shares of our
common stock, are issued while the Series A Shares remain outstanding, subject
to certain exceptions. These exceptions include the issuance of shares of common
stock upon conversion or exercise of outstanding options, warrants or
convertible securities, the grant of options under our stock option plans and
the issuance of common stock upon exercise of those options. The conversion
price of the Series A Shares is also subject to other anti-dilution protections.
The terms of the Series A Shares provide they are not convertible if and
to the extent that the issuance of shares of our common stock to the holder upon
conversion would result in the holder being deemed to be the "beneficial owner"
of 5% of more of the then outstanding shares of our common stock. This
limitation would not prevent a holder from converting its Series A Shares into
4.9% of our then outstanding common stock, subsequently selling shares of our
common stock, and then converting additional Series A Shares. Thus, the total
number of shares of common stock potentially issuable to the selling stockholder
upon the conversion of the Series A Shares and exercise of the related warrants,
in the aggregate, may equal or exceed 5% of our outstanding common stock.
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Voting Rights. The Series A Shares have no right to vote, except as
otherwise provided by law or with respect to certain matters specified in the
certificate of designations. These include changing the rights, preference or
privileges of the Series A Shares, creation of a new class or series of stock
having equal or preferential rights to the Series A Shares upon a liquidation,
increasing the number of authorized Series A Shares or changing the rights,
preferences or privileges of any other class of stock in a manner that adversely
affects the Series A Shares. However, the holders of Series A Shares are
entitled to receive prior notification of a meeting of the stockholders,
including copies of any information sent to the stockholders. If the holders of
Series A Shares are entitled by law to vote on any matter as a class, the
affirmative vote of a majority of the Series A Shares is required to approve the
matter. To the extent that the holders of Series A Shares are entitled by law to
vote together with the holders of common stock, each holder of Series A Shares
is entitled to a number of votes equal to the number of shares of common stock
into which that holder's Series A Shares are then convertible.
SELLING STOCKHOLDER
On June 9, 2000, we issued 30,375 Series A Shares and a related warrant to
purchase 225,000 shares of our common stock to The Shaar Fund Ltd. (the "selling
stockholder"). On August 1, 2000, we issued an additional 20,250 Series A Shares
and a related warrant to purchase 150,000 shares of our common stock to the
selling stockholder. We issued the Series A Shares and the related warrants (the
"Warrants") in private placements that were exempt from registration under the
Securities Act of 1933, as amended, pursuant to Section 4(2) of that Act. The
gross proceeds of the offering were $3,750,000.
The Warrants expire on June 9, 2005 and entitle the holder to purchase up
to 375,000 shares of common stock at a fixed exercise price of $1.485 per share.
The exercise price of the Warrants is subject to downward adjustment to equal
the lowest price at which shares of our common stock or securities convertible
into, or exchangeable or exercisable for, shares of our common stock, are issued
while the Warrants remain outstanding, subject to certain exceptions. These
exceptions include the issuance of shares of common stock upon conversion or
exercise of outstanding options, warrants or convertible securities, the grant
of options under our stock option plans and the issuance of common stock upon
exercise of those options. The exercise price of the Warrants is also subject to
other anti-dilution protections.
The selling stockholder is offering and selling under this prospectus all
of the shares of common stock that it acquires upon conversion of the Series A
Shares and exercise of the exercise of Warrants, and that are issued as
dividends on the Series A Shares through January 1, 2001, a total of up to
9,239,692 shares of common stock, subject to anti-dilution protections. The
number of shares being offered and sold is based upon an assumed conversion
price for the Series A Shares of $0.60 per share and the actual exercise price
of the Warrants of $1.485 per share. The number of shares of common stock being
offered and sold that are acquired in payment of accrued dividends on the Series
A Shares is also calculated based on the $0.60 assumed conversion price. Based
on actual conversion and Warrant exercise prices as of January 10, 2001, the
selling stockholder would be entitled to receive a total of 4,409,137 shares of
common stock upon conversion of all of the Series A Shares, exercise of the
Warrants and payment of accrued dividends as of January 1, 2001.
The selling stockholder does not beneficially own any shares of common
stock in addition to those to be received upon conversion of the Series A Shares
and exercise of the Warrants and as dividends on the Series A Preferred Stock.
The selling stockholder will not own any shares of common stock after the
completion of the offering (assuming that all of the shares offered by the
selling stockholder are sold).
Information with respect to share ownership has been provided by the
selling stockholder. The shares offered under this prospectus may be offered
from time to time, in whole or in part, by the selling
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stockholder or its transferees. The selling stockholder has not been an officer,
director or employee of Cross Media Marketing for the past three years.
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PLAN OF DISTRIBUTION
We are registering the shares of Cross Media Marketing common stock
offered under this prospectus on behalf of the selling stockholder. As used
herein, "selling stockholders" includes donees, pledgees, distributees,
transferees or other successors in interest selling shares received from the
selling stockholder after the date of this prospectus. We will pay all expenses
of registration of the shares offered hereby, other than commissions, discounts
and concessions of underwriters, dealers or agents. Brokerage commissions and
similar selling expenses, if any, attributable to the sale of the shares will be
borne by the selling stockholders. We will not receive any of the proceeds from
the sale of the shares by the selling stockholders.
The shares may be sold from time to time by the selling stockholders.
Sales of the shares may be made in one or more types of transactions (which may
include block transactions) on one or more exchanges, in the over-the-counter
market, in negotiated transactions, through put or call options transactions
relating to the shares, through short sales of the shares, or a combination of
such methods of sale, at market prices prevailing at the time of sale, or at
negotiated prices. These transactions may or may not involve brokers or dealers.
The selling stockholders may effect these transactions by selling their
shares directly to purchasers or to or through broker-dealers, which may act as
agents or principals. These broker-dealers may receive compensation in the form
of discounts, concessions or commissions from the selling stockholders and/or
the purchasers of shares for whom these broker-dealers may act as agents or to
whom they sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
The selling stockholders and any broker-dealers that act in connection
with the sale of the shares might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933. Consequently, any
commissions received by these broker-dealers and any profit on the resale of the
shares sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act of 1933. We have
agreed to indemnify the selling stockholders against certain liabilities,
including liabilities arising under the Securities Act of 1933, or to contribute
to payments which the selling stockholders may be required to make in respect
thereof. The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares
against certain liabilities, including liabilities arising under the Securities
Act of 1933.
Because the selling stockholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act of 1933, the selling
stockholders will be subject to the prospectus delivery requirements of the
Securities Act of 1933. We have informed the selling stockholders that the
anti-manipulative provisions of Regulation M under the Securities Exchange Act
of 1934 may apply to them.
The selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act of
1933, provided that they meet the criteria and conform to the requirements of
that Rule.
Upon being notified by any selling stockholder that it has entered into
any material arrangement with a broker-dealer for the sale of the shares through
a block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will file a supplement to this
prospectus, if required, pursuant to Rule 424(b) under the Securities Act of
1933, disclosing:
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o the name of the selling stockholder and the participating broker-dealers;
o the number of shares involved;
o the price at which the shares were sold;
o the commissions paid or discounts or concessions allowed to these
broker-dealers, where applicable;
o that the broker-dealers did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus; and
o other facts material to the transaction.
We have agreed with the selling stockholders to keep the registration
statement, of which this prospectus is a part, effective for a period ending on
the earlier of (i) the first anniversary of the effective date of the
registration statement or (ii) the date on which all shares offered hereby have
been sold in accordance with the plan of distribution described in this
prospectus, transferred pursuant to Rule 144 under the Securities Act of 1933 or
otherwise transferred in a manner that results in the delivery of new securities
not subject to transfer restrictions under the Securities Act of 1933.
LEGAL MATTERS
The validity of the securities being offered under this prospectus has
been passed upon for Cross Media Marketing by Kramer Levin Naftalis & Frankel
LLP, New York, New York. Kramer Levin Naftalis & Frankel LLP beneficially owns
120,275 shares of Cross Media Marketing Corporation's common stock.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference, from Cross Media Marketing Corporation's (formerly Symposium
Corporation) Annual Report on Form 10-KSB for the year ended December 31, 1999
and on Amendment No. 1 to Form 10KSB/A for the year ended December 31, 1999,
filed May 1, 2000, have been audited by Grant Thornton LLP, independent
auditors, as stated in their report which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
The financial statements of Direct Sales International, L.P. as of and for
the year ended December 31, 1999, incorporated in this prospectus by reference,
from Cross Media Marketing Corporation's (formerly Symposium Corporation)
Current Reports on Form 8-K/A (Amendment No. 1) filed on April 12, 2000 and on
Form 8-K/A (Amendment No. 2) filed on April 14, 2000, to the Company's Current
Report on Form 8-K filed February 14, 2000 have been audited by Grant Thornton
LLP, independent auditors, as stated in their report which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
The financial statements of Direct Sales International, L.P. as of and for the
years ended December 31, 1998 and December 31, 1997, incorporated in this
prospectus by reference, from Cross Media Marketing Corporation's (formerly
Symposium Corporation) Current Reports on Form 8-K/A (Amendment No. 1) filed on
April 12, 2000 and on Form 8-K/A (Amendment No. 2) filed on April 14, 2000, to
the Company's Current Report on Form 8-K filed February 14, 2000 have been
audited by PricewaterhouseCoopers LLP, independent auditors, as stated in their
report which is incorporated herein
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by reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports and other information with
the SEC. You may read and copy any document that we file at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. The SEC filings are also available to the public on the SEC's
Internet web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made by us with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until the offering of securities under this prospectus is terminated.
The following documents are incorporated by reference into this
prospectus:
o Annual Report on Form 10-KSB for the fiscal year ended December 31,
1999;
o Amendment No. 1 to our Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1999, filed May 1, 2000;
o Current Report on Form 8-K, filed February 14, 2000;
o Amendment No. 1 to our Current Report on Form 8-K, filed February
14, 2000, filed April 12, 2000;
o Amendment No. 2 to our Current Report on Form 8-K, filed February
14, 2000, filed April 14, 2000;
o Proxy Statement filed April 10, 2000;
o Current Report on Form 8-K, filed June 16, 2000t;
o Current Report on Form 8-K, filed July 21, 2000;
o Registration Statement on Form 8-A, filed July 31, 2000;
o Proxy Statement filed September 1, 2000;
o Proxy Statement filed December 11, 2000;
o Current Report on Form 8-K, filed December 29, 2000;
o Quarterly Reports on Form 10-QSB for the fiscal quarters ended March
31, June 30, and September 30, 2000;
o The description of Cross Media Marketing's capital stock set forth
in the Registration Statement on Form 10 filed on February 24, 1999,
including any amendment or report filed for the purpose of updating
such description ;
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o You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Cross Media Marketing Corporation
410 Park Avenue
Suite 830, New York, NY 10022
Attention: Tim Ledwick, Chief Financial Officer
Telephone number: (212) 752-2601
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different or additional information. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of those documents.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, previously paid or
payable by the Registrant in connection with the sale of common stock being
registered under this registration statement. All amounts are estimates except
the SEC registration fee.
AMOUNT TO BE
PAID
----
SEC registration fee.......................................... $3,754.00
Printing expenses.............................................
Legal fees and expenses.......................................
Accounting fees and expenses..................................
Miscellaneous expenses........................................
-------
Total......................................................... $
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions), or
(iv) for any transaction from which the director derived an improper personal
benefit. The Company's Restated Certificate of Incorporation, as amended,
contains provisions permitted by Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal actions or
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify directors and/or officers in an action or
suit by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the director
or officer is adjudged to be liable to the corporation. Where a director or
officer is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such director or officer actually and reasonably incurred.
The Registrant's Restated Certificate of Incorporation, as amended,
provides indemnification of directors and officers of the Registrant to the
fullest extent permitted by the DGCL. Pursuant to the
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registration rights agreement entered into with the Registrant, the selling
stockholders have agreed to indemnify directors and officers of the Registrant
against certain liabilities, including liabilities under the Securities Act.
The Registrant maintains liability insurance for each director and officer
for certain losses arising from claims or charges made against them while acting
in their capacities as directors or officers of the Registrant.
ITEM 16. EXHIBITS
Exhibit No. Description
5.1** Opinion of Kramer Levin Naftalis & Frankel LLP.
23.1* Consent of Grant Thornton LLP
23.2** Consent of PricewaterhouseCoopers LLP
23.3** Consent of Kramer Levin Naftalis & Frankel LLP (contained in
the opinion filed as Exhibit 5 hereto).
----------
* Filed herewith.
** To be filed by amendment.
ITEM 17. UNDERTAKINGS
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 SEC 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.
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;
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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 clauses (i) and (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
such clauses 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, 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.
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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Cross Media Marketing Corporation certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, on January 12, 2001.
CROSS MEDIA MARKETING CORPORATION
By: /s/ Ronald Altbach
--------------------------
Name: Ronald Altbach
Title: Chairman and Chief Executive
Officer
Signature Title(s) Date
--------- -------- ----
/s/ Ronald Altbach Chairman, Chief Executive January 12, 2000
------------------ Officer (Principal
Ronald Altbach Executive Officer and
Director
/s/ Tim S. Ledwick Chief Financial Officer January 12, 2000
------------------ (Principal Financial and
Tim S. Ledwick Accounting Officer)
/s/ Richard Kaufman President and Director January 12, 2000
--------------------
Richard Kaufman
Director January 12, 2000
-----------------
Richard Cohen
/s/ Ken Lambert Director January 12, 2000
---------------
Ken Lambert
Director January 12, 2000
----------------------
Bruce Dorskind
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
5.1** Opinion of Kramer Levin Naftalis & Frankel LLP.
23.1* Consent of Grant Thornton LLP.
23.2** Consent of PricewaterhouseCoopers LLP
23.3** Consent of Kramer Levin Naftalis & Frankel LLP (contained in the
opinion filed as Exhibit 5 hereto).
----------
* Filed herewith.
** To be filed by amendment.
