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As filed with the Securities and Exchange Commission on December 20, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ENGAGE TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-3281378
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
100 Brickstone Square, Andover, MA 01810
(Address of Principal Executive Offices) (Zip Code)
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
PAUL L. SCHAUT
President and Chief Executive Officer
Engage Technologies, Inc.
100 Brickstone Square
Andover, MA 01810
(Name and Address of Agent for Service)
(978) 684-3884
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee
---------- ---------- --------- --------- ------------
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 150,000 shares $11.00 $1,650,000 $ 436.00
par value 100,000 shares $58.75 $5,875,000 $1,551.00
====================================================================================================
</TABLE>
(1) The number of shares of common stock, par value $0.01 per share ("Common
Stock"), stated above consists of the aggregate number of shares which may
be sold upon the exercise of options which have been granted under the 1999
Stock Option Plan for Non-Employee Directors (the "Plan"). The maximum
number of shares which may be sold upon the exercise of such options
granted under the Plan are subject to adjustment in accordance with certain
anti-dilution and other provisions of said Plan. Accordingly, pursuant to
Rule 416 under the Securities Act of 1933, as amended (the "Securities
Act"), this Registration Statement covers, in addition to the number of
shares stated above, an indeterminate number of shares which may be subject
to grant or otherwise issuable after the operation of any such anti-
dilution and other provisions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) of the Securities Act.
================================================================================
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information required
by Part I is included in documents sent or given to participants in the
Registrant's 1999 Stock Option Plan for Non-Employee Directors pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"), and
therefore has been omitted from this Registration Statement on Form S-8.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in a registration statement
filed under Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all shares of
Common Stock offered hereby have been sold or which deregisters all shares of
Common Stock then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any
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statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The legality of the Common Stock being offered hereby will be passed
upon for the Registrant by Hale and Dorr LLP, Boston, Massachusetts.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Registrant's Second Amended and Restated Certificate of Incorporation
(the "Restated Certificate of Incorporation") provides that no director of the
Registrant shall be personally liable for any monetary damages for any breach of
fiduciary duty as a director, except to the extent that the Delaware General
Corporation Law prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty.
The Registrant's Restated Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought
against him by virtue of his position as a director or officer of the Registrant
if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful and (b) shall be indemnified by the Registrant against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him by virtue of his position as a director or officer of the Registrant if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the Registrant, unless and only to the extent that the
Court of Chancery of Delaware determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the Registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, unless it is determined that he did not act in good
faith and in a manner he
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reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action or proceeding had
reasonable cause to believe that his conduct was unlawful, provided that he
undertakes to repay the amount advanced if it is ultimately determined that he
is not entitled to indemnification for such expenses.
As a condition precedent to the right of indemnification, the director or
officer must give the Registrant notice of the action for which indemnity is
sought and the Registrant has the right to participate in such action or assume
the defense thereof.
The Registrant's Restated Certificate of Incorporation further provides
that the indemnification provided therein is not exclusive, and provides that
Registrant may enter into agreements with officers and directors providing for
indemnification rights and procedures different from those set forth in the
Registrant's Restated Certificate of Incorporation.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no in-
demnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circum-stances.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
------------
1. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
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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; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
2. 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 Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Andover, Massachusetts on December 20, 1999.
ENGAGE TECHNOLOGIES, INC.
By: /s/ Paul L. Schaut
------------------------------
Paul L. Schaut
Chief Executive Officer, President
and Director
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Engage Technologies, Inc.
hereby severally constitute and appoint Paul L. Schaut and Stephen A. Royal, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers and directors
to enable Engage Technologies, Inc. to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Paul L. Schaut Chief Executive Officer, December 20, 1999
- --------------------------- President and Director
Paul L. Schaut (Principal Executive Officer)
/s/ Stephen A. Royal Chief Financial Officer and December 20, 1999
- --------------------------- Treasurer (Principal
Stephen A. Royal Financial and Accounting
Officer)
/s/ David S. Wetherell Director December 20, 1999
- ---------------------------
David S. Wetherell
___________________________ Director December , 1999
Edward A. Bennett
/s/ Christopher A. Evans Director December 20, 1999
- ---------------------------
Christopher A. Evans
/s/ Andrew J. Hajducky, III Director December 20, 1999
- ----------------------------
Andrew J. Hajducky, III
/s/ Craig D. Goldman Director December 20, 1999
- ----------------------------
Craig D. Goldman
</TABLE>
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<TABLE>
<S> <C> <C>
___________________________ Director December , 1999
Fredric D. Rosen
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 (1) Certificate of Incorporation of the Registrant
4.2 (1) By-Laws of the Registrant
4.3 (1) Specimen Certificate for Common Stock of the Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included in the signature pages of this
Registration Statement)
- ------------------------------------------------------------------------------
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-78015).
<PAGE>
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
December 20, 1999
Engage Technologies, Inc.
100 Brickstone Square
Andover, MA 01810
Re: 1999 Stock Option Plan for Non-Employee Directors
-------------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 250,000 shares of Common Stock, $.01 par value per
share (the "Shares"), of Engage Technologies, Inc., a Delaware corporation (the
"Company"), issuable under the Company's 1999 Stock Option Plan for Non-Employee
Directors (the "Plan").
We have examined the Certificate of Incorporation and By-Laws of the
Company, each as amended and restated to date and originals, or copies certified
to our satisfaction, of all pertinent records of the meetings of the directors
and stockholders of the Company, the Registration Statement and such other
documents relating to the Company as we have deemed material for the purposes of
this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the Shares in accordance with the Plan, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of The Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
<PAGE>
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plan, the Shares
will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
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EXHIBIT 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Engage Technologies, Inc.
We consent to the use of our reports incorporated by reference in the
registration statement on Form S-8 of Engage Technologies, Inc.
KPMG LLP
Boston, Massachusetts
December 20, 1999
