MAIL COM INC
S-8, 2000-02-29
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<PAGE>   1
As filed with the Securities and Exchange Commission on February 29, 2000
                                                              File No. _________


                       SECURITIES AND EXCHANGE COMMISSION
                             WASHINGTON, D.C. 20549

                                    FORM S-8
             REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

                                 MAIL.COM, INC.
               (Exact name of registrant as specified in charter)

DELAWARE                                                           13-3780773
(State or other jurisdiction of             (I.R.S. Employer Identification No.)
incorporation or organization)

                             11 Broadway, Suite 600
                               New York, NY 10004
          (Address, including zip code, of Principal Executive Offices)

                 MAIL.COM, INC. NETMOVES 1990 STOCK OPTION PLAN
          MAIL.COM, INC. NETMOVES 1996 STOCK OPTION/STOCK ISSUANCE PLAN
                                       AND
                 MAIL.COM, INC. NETMOVES 2000 STOCK OPTION PLAN
                            (Full title of the plan)



                                 DAVID AMBROSIA
                  Executive Vice President and General Counsel
                                 Mail.com, Inc.
                             11 Broadway, Suite 600
                               New York, NY 10004
                             Tel. No. (212) 425-4200
(Name, address, and telephone number, including area code, of agent for service)

                                   Copies to:
                             Ronald A. Fleming, Esq.
                       Winthrop, Stimson, Putnam & Roberts
                             One Battery Park Plaza
                            New York, New York 10004
                             Tel. No. (212) 858-1143
                 -----------------------------------------------

                         CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
                                              Proposed maximum        Proposed maximum
 Title of securities to     Amount to be     offering price per      aggregate offering        Amount of
     be registered         registered(1)           unit(2)                price(2)          registration fee

<S>                        <C>               <C>                     <C>                    <C>
     Class A Common
Stock, par value $0.01       1,564,413             $9.670                $15,127,236             $3,994
     per share*
</TABLE>

(1)      This Registration Statement shall be deemed to cover additional
         securities to be issued in connection with, or as a result of, stock
         splits, stock dividends or similar transactions.
(2)      Of the 1,564,413 shares available to be registered hereunder, as of the
         date hereof, options with respect to an aggregate of 962,443 shares
         have been issued under the Plans listed above and 601,970 shares remain
         available for the grant of future awards under such Plans. The proposed
         maximum offering price per unit listed above has been determined
         pursuant to Rule 457(h) of the Securities Act of 1933, as amended, and
         represents the sum of (i) the aggregate exercise price of all options
         granted to date under the Plans plus (ii) the product of the remaining
         shares available under the Plans multiplied by a per share price of
         $14.4375, the average of the high and low prices of Mail.com, Inc.
         Class A Common Stock as reported on Nasdaq on February 24, 2000.
<PAGE>   2
                                     PART II


                 INFORMATION REQUIRED IN REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

         The following documents which have heretofore been filed by Mail.com,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act") are incorporated by reference herein and shall be deemed to be a
part hereof:

                  1. The Company's Prospectus filed pursuant to Rule 424(b)
         under the Securities Act of 1933, as amended (the "1933 Act"), on
         January 25, 2000, in connection with the Company's Registration
         Statement No. 333-94807 with the Commission that contains audited
         financial statements for the Company's latest fiscal year (December
         31, 1998) for which such statements have been filed;

                  2. The Company's Quarterly Reports on Form 10-Q for the
         quarters ended June 30, 1999, and September 30, 1999, filed with the
         Commission on August 16, 1999 and November 15, 1999, respectively;

                  3. The Company's Current Report on Form 8-K filed on February
         11, 2000, the Company's Report on Form 8-K filed on January 24, 2000,
         the Company's Report on Form 8-K filed January 6, 2000, the Company's
         Report on Form 8-K filed December 16, 1999, and the Company's Report on
         Form 8-K filed on August 23, 1999, as amended pursuant to Form 8-K
         filed on November 3, 1999; and

                  4. The description of the Class A Common Stock of the Company
         contained in the "Description of Mail.com Capital Stock" section of the
         Company's Registration Statement on Form S-4 (Registration No.
         333-94807), filed with the Commission on January 18, 2000.

         All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act
prior to the filing of a post-effective amendment to this registration statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and made a part hereof from their
respective dates of filing (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents"); provided, however,
that the documents enumerated above or subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act in each year
during which the offering made by this registration statement is in effect prior
to the filing with the Commission of the Company's Annual Report on Form 10-K
covering such year shall not be Incorporated Documents or be incorporated by
reference in this registration statement or be a part hereof from and after the
filing of such annual report on Form 10-K.

         Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained
<PAGE>   3
herein or in any other subsequently filed Incorporated Document 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.

         The Class A Common Stock being registered hereunder has been registered
pursuant to Section 12 of the 1934 Act and a description of the Class A Common
Stock is contained in the 1934 Act registration statement that had been filed
with the Commission.

ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.

         The validity of our Class A Common Stock has been passed upon by David
Ambrosia, General Counsel of the Company. As of December 31, 1999, Mr. Ambrosia
owned 1,500 shares of Class A Common Stock of the Company and held an option to
purchase 250,000 shares of Class A Common Stock of the Company.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

         Section 145 of Delaware General Corporation Law empowers the Company 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, criminal, administrative, or investigative (other than an action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee, or agent of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against 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 if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe that such person's conduct was
unlawful. The termination of any cause of action, suit, or proceeding by
judgment, order, settlement, conviction, or upon plea of nolo contendre or its
equivalent, does not, of itself, create a presumption that such person did not
act in good faith and in a manner that such person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.

         As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Restated Certificate of Incorporation ("Certificate") provides
that a director of the Company will not be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) for the
unlawful payment of dividends or unlawful stock repurchases under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.

         The By-Laws of the Company provide (i) for the indemnification of
directors and officers


                                       4
<PAGE>   4
of the Company to the fullest extent permitted under Section 145 of the Delaware
General Corporation Law, (ii) the Company may indemnify its other employees and
agents to the same extent that it indemnifies its officers and directors, unless
otherwise required by law, the Company's Certificate, its bylaws or agreements,
and (iii) the Company must advance expenses, as incurred, to its directors and
executive officers in connection with any legal proceeding to the fullest extent
permitted by Delaware law, subject to limited exceptions.

         The Company has entered into indemnity agreements with each of its
directors and executive officers to give them additional contractual assurances
regarding the scope of the indemnification described above and to provide
additional procedural protections. In addition, the Company has obtained
directors' and officers' insurance providing indemnification for their
directors, officers and key employees for various liabilities.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.

         Not applicable.

ITEM 8. EXHIBITS.

         See Exhibit Index.

ITEM 9. UNDERTAKINGS.

         The Company 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 1933 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. 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 low or high end of the
                  estimated maximum offering range may be reflected in the form
                  of a prospectus filed with the Commission pursuant to Rule
                  424(b) 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;

                  (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) above do not apply if the
information required to be


                                       5
<PAGE>   5
included in a post-effective amendment by those clauses is contained in periodic
reports filed with or furnished to the Commission by the Company pursuant to
Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference
in the registration statement.

         (2) That, for the purpose of determining any liability under the 1933
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 that remain unsold at the termination of
the offering.

         (4) That, for purposes of determining any liability under the 1933 Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the 1934 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.

         Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 1933 Act and
will be governed by the final adjudication of such issue.
                                  -------------




                                       6
<PAGE>   6
                                   SIGNATURES

         Pursuant to the requirements of the 1933 Act, the Company 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 and State of New York, on the 29th day of February, 2000.



                                            MAIL.COM, INC.

                                            By   /s/ Gary Millin
                                               -------------------
                                                  Gary Millin
                                                  President
<PAGE>   7
                                POWER OF ATTORNEY

         Each of the undersigned directors and officers of the Company,
individually as such director and/or officer, hereby makes, constitutes and
appoints Gary Millin and David Ambrosia, and each of them, singly or jointly,
with full power of substitution, as his true and lawful attorney-in-fact and
agent to execute in his name, place and stead, in any and all capacities, and to
file with the Commission, this registration statement and any and all
amendments, including post-effective amendments, to this registration statement,
which amendment may make such changes in the registration statement as the
registrant deems appropriate hereby ratifying and confirming all that each of
said attorneys-in-fact, or his, her or their substitute or substitutes, may do
or cause to be done by virtue hereof.

         Pursuant to the requirements of the 1933 Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.


<TABLE>
<CAPTION>
NAME                                     TITLE                                   DATE
- ----                                     -----                                   ----

<S>                                      <C>                                     <C>
/s/ Gerald Gorman                        Chairman and Chief Executive Officer    February 29, 2000
- ---------------------------------
(Gerald Gorman)

/s/ Gary Millin                          President and Director                  February 29, 2000
- ---------------------------------
(Gary Millin)

/s/ Lon Otremba                          Chief Operating Officer and Director    February 29, 2000
- ---------------------------------
(Lon Otremba)

/s/ Debra McClister                      Executive Vice President and Chief      February 29, 2000
- ---------------------------------        Financial Officer
(Debra McClister)

/s/ Charles Walden                       Director                                February 29, 2000
- ---------------------------------
(Charles Walden)

/s/ William Donaldson                    Director                                February 29, 2000
- ---------------------------------
(William Donaldson)

/s/ Stephen Ketchum                      Director                                February 29, 2000
- ---------------------------------
(Stephen Ketchum)
</TABLE>
<PAGE>   8
                                  EXHIBIT INDEX



<TABLE>
<CAPTION>
Exhibit No.         Description
- -----------         -----------

<S>                <C>
       4.1         Amended and Restated Certificate of Incorporation of
                   Mail.com, Inc. (incorporated herein by reference to Exhibit
                   3.1 of Form S-1, Registration Statement No. 333-74353).

       4.2         By-Laws of Mail.com, Inc. (incorporated herein by reference
                   to Exhibit 3.2 of Form S-1, Registration Statement No.
                   333-74353).


       4.3         Specimen common stock certificate of Mail.com, Inc.
                   (incorporated herein by reference to Exhibit 4.1 of Form S-1,
                   Registration Statement No. 333-74353).

        5          Opinion of Mail.com's General Counsel, David Ambrosia, Esq.,
                   as to the securities being registered.

       23.1        Consent of David Ambrosia, Esq. (contained in Exhibit No. 5).

       23.2        Consents of Independent Accountants, KPMG LLP.

        24         Power of attorney (set forth on signature page hereof).
</TABLE>

<PAGE>   1
                                                                      EXHIBITS 5
                                                                        AND 23.1



                                February 29, 2000

Mail.com, Inc.
11 Broadway, Suite 600
New York, NY  10004

          Re:      Registration Statement on Form S-8 of Mail.com, Inc. Relating
                   to the Issuance of Shares of Class A Common Stock Pursuant to
                   the Mail.com, Inc. NetMoves 1990 Stock Option Plan, the
                   Mail.com, Inc. NetMoves 1996 Stock Option/Stock Issuance Plan
                   and the Mail.com, Inc. NetMoves 2000 Stock Option Plan (the
                   "Plans").

Ladies and Gentlemen:

         I have acted as counsel to Mail.com, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a registration statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), relating to the offering of up to 1,564,413 shares (the
"Shares") of the Company's Class A Common Stock, par value $0.01 per share, to
be issued pursuant to the provisions of the above-referenced Plans. I have
examined such records, documents, statutes and decisions as I have deemed
relevant in rendering this opinion.

         I am of the opinion that when:

                  (a) the applicable provisions of the Act and of State
         securities or blue sky laws shall have been complied with, and

                  (b) the Company's Board of Directors shall have duly
         authorized the issuance of such Shares, and

                  (c) the Shares shall have been duly issued and paid for in an
         amount not less than par value of $0.01 per share,

the Shares will be legally issued, fully paid and non-assessable.

I hereby consent to the use of this opinion as Exhibit 5 to the Registration
Statement. In giving such opinion, I do not thereby admit that I am acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules or regulations of the Commission thereunder.

                                        Very truly yours,

                                        /s/ David Ambrosia, Esq.
                                        ------------------------
                                        David Ambrosia, Esq.

<PAGE>   1
                                                                EXHIBIT 23.2

                      CONSENT OF INDEPENDENT ACCOUNTANTS




The Board of Directors
The Allegro Group, Inc:

We consent to the incorporation by reference in the registration statement on
Form S-8 of Mail.com, Inc. of our report dated October 19, 1999, with respect
to the balance sheets of The Allegro Group, Inc. as of December 31, 1997 and
1998 and the related statements of operations, stockholders' equity (deficit),
and cash flows for each of the years in the two-year period ended December 31,
1998, which report appears in the Company's Prospectus dated January 25, 2000
in connection with the Company's Registration Statement No. 333-94807.


                                                /s/ KPMG LLP

Columbus, Ohio
February 29, 2000


<PAGE>   2

                                                                    Exhibit 23.2


                   CONSENT OF INDEPENDENT ACCOUNTANTS



The Board of Directors
Mail.com, Inc.:


We consent to the incorporation by reference in the registration statement on
Form S-8 of Mail.com, Inc. of our report dated March 19, 1999, with respect to
the balance sheets of Mail.com as of December 31, 1997 and 1998 and the related
statements of operations, stockholders' equity (deficit), and cash flows for
each of the years in the three-year period ended December 31, 1998, which
report appears in the Company's Prospectus dated January 25, 2000 in connection
with the Company's Registration Statement No. 333-94807.


                                        /s/ KPMG LLP


New York, New York
February 29, 2000


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