MAIL COM INC
S-8, 2000-06-19
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<S>                                                                             <C>
As filed with the Securities and Exchange Commission on June 19, 2000           File No. _________
</TABLE>

                       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)
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<S>                                                                  <C>
DELAWARE                                                                                13-3780773
(State or other jurisdiction of incorporation or organization)       (I.R.S. Employer Identification No.)
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                             11 Broadway, 6th Floor
                               New York, NY 10004
          (Address, including zip code, of Principal Executive Offices)

                      MAIL.COM, INC. 2000 STOCK OPTION PLAN
               MAIL.COM, INC. SUPPLEMENTAL 1999 STOCK OPTION PLAN
               MAIL.COM, INC. SUPPLEMENTAL 2000 STOCK OPTION PLAN
                   MAIL.COM, INC. EMPLOYEE STOCK PURCHASE PLAN
                                       AND
                 STOCK OPTION AGREEMENTS BETWEEN MAIL.COM, INC.
                             AND CERTAIN INDIVIDUALS
                            (Full title of the plan)

                                 DAVID AMBROSIA
                  Executive Vice President and General Counsel
                                 Mail.com, Inc.
                             11 Broadway, 6th Floor
                               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      Amount to be      offering price per      aggregate offering        Amount of
   to be registered       registered(1)           unit(2)                price(2)         registration fee
=============================================================================================================
<S>                       <C>               <C>                     <C>                   <C>
Class A Common Stock,
 par value $0.01 per
        share               7,279,289              $5.73                    $41,821,736          $11,041
=============================================================================================================

</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. Options with respect to
       279,289 shares registered hereunder have been issued under Stock Option
       Agreements between eLong.com, Inc. and certain individuals,

<PAGE>   2
       which were assumed by Mail.com, Inc. pursuant to an Agreement and Plan of
       Merger dated as of March 14, 2000, as described in Exhibit 99.1.
  (2)  Of the 7,279,289 shares available to be registered hereunder, as of the
       most recent practicable date (May 31, 2000), (i) options with respect to
       an aggregate of 3,018,800 shares have been issued under the Stock Option
       Plans listed above and 3,981,200 shares remain available for the grant of
       future awards under such Plans, and (ii) options with respect to an
       aggregate of 279,289 shares have been issued under the Stock Option
       Agreements between Mail.com, Inc. and certain individuals, as described
       in Footnote (1), above. The proposed maximum aggregate offering price
       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 as of May 31, 2000 under
       the Stock Option Plans and Stock Option Agreements plus (ii) the product
       of the remaining shares available under the Stock Option Plans multiplied
       by a per share price of $6.125, the average of the high and low prices of
       Mail.com, Inc. Class A Common Stock as reported on Nasdaq on June 14,
       2000.

                                    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 Annual Report on Form 10-K for the fiscal
         year ended December 31, 1999, filed with the Commission on March 30,
         2000;

                  2. The Company's Quarterly Report on Form 10-Q for the fiscal
         quarter ended March 31, 2000;

                  3. The Company's Current Report on Form 8-K/A filed with the
         Commission on April 24, 2000, the Company's Report on Form 8-K filed on
         March 28, 2000, the Company's Report on Form 8-K filed on February 11,
         2000, the Company's Report on Form 8-K filed on January 24, 2000, and
         the Company's Report on Form 8-K filed on January 6, 2000; 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

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<PAGE>   3


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 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 has 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 the date hereof, Mr. Ambrosia
owned 4,475 shares of Class A Common Stock of the Company and held options to
purchase 308,030 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 Amended and Restated Certificate of Incorporation, as amended
(the "Certificate") provides that a director of the Company will not be
personally liable to the Company or its stockholders for


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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) the Company shall indemnify
directors, officers and employees for such liabilities in such manner, under
such circumstances and to such extent as permitted by Section 145 of the
Delaware General Corporation Law, as now enacted or hereafter amended and (ii)
the Company shall advance all reasonable costs and expenses (including
attorney's fees) incurred in defending any action, suit or proceeding to all
persons entitled to such indemnification, all in the manner, under the
circumstances and to the extent permitted by Section 145 of the Delaware General
Corporation Law, as now enacted or hereafter amended.

         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 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

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                  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 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.

                                  -------------

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                                   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 19th day of June, 2000.

                                            MAIL.COM, INC.

                                            By /s/ Lon Otremba
                                               ------------------------
                                               Lon Otremba
                                               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 Lon Otremba 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.

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<CAPTION>

NAME                                    TITLE                                  DATE
----                                    -----                                  ----
<S>                                     <C>                                    <C>
/s/ Gerald Gorman                       Chairman and Chief Executive           June 19, 2000
--------------------------              Officer and Director
(Gerald Gorman)

/s/ Gary Millin
--------------------------              Chief Executive Officer of             June 19, 2000
(Gary Millin)                           World.com, Inc., a wholly-owned
                                        subsidiary of the Company and
                                        Director


/s/ Debra McClister                     Executive Vice President and           June 19, 2000
--------------------------              Chief Financial Officer
(Debra McClister)

/s/ Jack Kuehler
--------------------------              Director                               June 19, 2000
(Jack Kuehler)


/s/ William Donaldson                   Director                               June 19, 2000
--------------------------
(William Donaldson)


/s/ Stephen Ketchum                     Director                               June 19, 2000
--------------------------
(Stephen Ketchum)
</TABLE>




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                                  EXHIBIT INDEX

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<CAPTION>

Exhibit No.        Description
----------         -----------
<C>                <S>
       4.1         Amended and Restated Certificate of Incorporation of Mail.com, Inc.

       4.2         Certificate of Amendment of Amended and Restated Certificate of
                   Incorporation of Mail.com, Inc.


       4.3         By-Laws of Mail.com, Inc.

       4.4         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.

      10.1         Mail.com, Inc. 2000 Stock Option Plan.

      10.2         Mail.com, Inc. Supplemental 1999 Stock Option Plan.

      10.3         Mail.com, Inc. Supplemental 2000 Stock Option Plan.

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

      23.2         Consent of Independent Accountants, KPMG LLP.

       24          Power of attorney (set forth on signature page hereof).

      99.1         Options Assumed by Mail.com, Inc. pursuant to an Agreement and Plan
                   of Merger dated as of March 14, 2000.

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