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As filed with the Securities and Exchange Commission on September 19, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MYPOINTS.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7311 94-3255692
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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100 CALIFORNIA STREET, 11TH FLOOR
SAN FRANCISCO, CA 94111
(415) 676-3700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CYBERGOLD, INC. 1996 STOCK OPTION PLAN
CYBERGOLD, INC. 1999 OMNIBUS EQUITY INCENTIVE PLAN
(FULL TITLE OF THE PLANS)
STEVEN M. MARKOWITZ
CHIEF EXECUTIVE OFFICER
MYPOINTS.COM, INC.
100 CALIFORNIA STREET, 11TH FLOOR
SAN FRANCISCO, CA 94111
(415) 676-3700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
MARIO M. ROSATI, ESQ.
CHRISTOPHER D. MITCHELL, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
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CALCULATION OF REGISTRATION FEE
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====================================================================================================================================
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO TO BE PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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CyberGold, Inc. 1996 Stock Option Plan
Common Stock, $0.001 par value
(currently outstanding options) (1) 950,464 shares $ 8.03 $ 7,632,225.92 $2,014.91
CyberGold, Inc. 1996 Stock Option Plan
Common Stock, $0.001 par value
(options available for future grant) (2) 233,536 shares $ 7.9375 $ 1,853,692.00 $ 489.38
TOTAL 1,184,000 SHARES
CyberGold, Inc. 1999 Omnibus Equity
Incentive Plan
Common Stock, $0.001 par value
(currently outstanding options) (3) 1,048,872 shares $18.06 $18,942,628.32 $5,000.85
CyberGold, Inc. 1999 Omnibus Equity
Incentive Plan
Common Stock, $0.001 par value
(options available for future grant) (4) 134,939 shares $ 7.9375 $ 1,071,078.31 $ 282.76
TOTAL 1,183,811 SHARES
TOTAL REGISTRATION FEES: $7,787.90
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(1) The computation is based upon the weighted average exercise price per share
of $8.03 as to 950,464 outstanding but unexercised options to purchase
Common Stock under the Cybergold, Inc. 1996 Stock Option Plan.
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 233,536 shares of Common Stock authorized for issuance pursuant
to the Cybergold, Inc. 1996 Stock Option Plan, solely for the purpose of
calculating the registration fee. No options have been granted with respect
to such shares. The computation is based upon the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
September 18, 2000, because the price at which the options to be granted in
the future may be exercised is not currently determinable.
(3) The computation is based upon the weighted average exercise price per share
of $18.06 as to 1,048,872 outstanding but unexercised options to purchase
Common Stock under the Cybergold, Inc. 1999 Omnibus Equity Incentive Plan.
(4) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 134,939 shares of Common Stock authorized for issuance pursuant
to the Cybergold, Inc. 1999 Omnibus Equity Incentive Plan, solely for the
purpose of calculating the registration fee. No options have been granted
with respect to such shares. The computation is based upon the average of
the high and low price of the Common Stock as reported on the Nasdaq
National Market on September 18, 2000, because the price at which the
options to be granted in the future may be exercised is not currently
determinable.
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MYPOINTS.COM, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed by MyPoints.com, Inc.
(the "Registrant") with the Securities and Exchange Commission.
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1999.
(2) Quarterly Report on Form 10-Q for the quarter ended March 31, 2000.
(3) Quarterly Report on Form 10-Q for the quarter ended June 30, 2000.
(4) Current Report on Form 8-K dated August 21, 2000.
(5) The description of Common Stock contained in the Registrant's
Registration Statement on Form 8-A as declared effective on August 3, 1999.
(6) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act on or after the date of this
Registration Statement and prior to the filing of a post-effective amendment
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 to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Mario M. Rosati, a member of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, is a Director and Secretary of the Registrant. Wilson Sonsini
Goodrich & Rosati is corporate counsel to the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or
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proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor . . . [by reason of his service in one of the capacities specified in
the preceding sentence] against expenses (including attorneys' fees) actually
and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper."
The Registrant's Restated Certificate of Incorporation provides that to the
fullest extent permitted by the DGCL, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Restated Certificate of
Incorporation also provides that no amendment or repeal of such provision shall
apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal whether asserted
before or after such amendment or repeal.
The Registrant's Bylaws provide that the Registrant shall indemnify to the
fullest extent authorized by law each of its directors, officers, employees and
other agents against expenses actually and reasonably incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
agent of the corporation.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to the indemnification provided
for in the Registrant's Bylaws, and intends to enter into indemnification
agreements with any new directors or executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
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EXHIBIT NUMBER DESCRIPTION
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4.1* CyberGold, Inc. 1996 Stock Option Plan
4.2* CyberGold, Inc. 1999 Omnibus Equity Incentive Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the
legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers, LLP, Independent Accountants.
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23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in
Exhibit 5.1 hereto).
24.1 Power of Attorney (see page signature page).
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* Incorporated by reference from the Cybergold, Inc. Registration Statement
on Form S-8 (File No. 333-88053), filed September 29, 1999.
ITEM 9. UNDERTAKINGS.
A. The 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 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.
(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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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.
C. 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 DGCL, the Registrant's Restated Certificate of
Incorporation, the Registrant's Bylaws or the Registrant's indemnification
agreements, the Registrant has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in a successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the question has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of San Francisco, State of California on September 19,
2000.
MYPOINTS.COM, INC.
By: /s/ STEVEN M. MARKOWITZ
-------------------------
Steven M. Markowitz, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven M. Markowitz and John Steuart,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ STEVEN M. MARKOWITZ Chief Executive Officer and September 19, 2000
------------------------------------------- Chairman of the Board
Steven M. Markowitz
Vice Chairman of the Board
-------------------------------------------
Nathaniel Goldhaber
/s/ JOHN STEUART Sr. Vice President, CFO (Principal September 19, 2000
------------------------------------------- Financial and Accounting Officer),
John Steuart and Director
/s/ MARIO M. ROSATI Director and Secretary September 19, 2000
-------------------------------------------
Mario M. Rosati
/s/ HOWARD L. MORGAN Director September 19, 2000
-------------------------------------------
Howard L. Morgan
/s/ THOMAS NEWKIRK Director September 19, 2000
-------------------------------------------
Thomas Newkirk
Director
-------------------------------------------
Lawrence E. Phillips
/s/ LESTER WUNDERMAN Director September 19, 2000
-------------------------------------------
Lester Wunderman
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INDEX TO EXHIBITS
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EXHIBIT NUMBER DESCRIPTION
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4.1* CyberGold, Inc. 1996 Stock Option Plan
4.2* CyberGold, Inc. 1999 Omnibus Equity Incentive Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the
legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers, LLP, Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in
Exhibit 5.1 hereto).
24.1 Power of Attorney (see page signature page).
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* Incorporated by reference from the Cybergold, Inc. Registration Statement
on Form S-8 (File No. 333-88053), filed September 29, 1999.
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