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As filed with the Securities and Exchange Commission on November 24, 1999
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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YESMAIL.COM, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
Delaware 36-4020286
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(State of Incorporation) (I.R.S. Employer Identification Number)
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565 Lakeview Parkway, Suite 135
Vernon Hills, Illinois 60061
(Address of Principal Executive Offices)
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1999 STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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David M. Tolmie
Chief Executive Officer
yesmail.com, inc.
565 Lakeview Parkway, Suite 135
Vernon Hills, Illinois 60061
(Name and address of agent for service)
(847) 918-9292
(Telephone number, including area code, of agent for service)
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Copy to:
J. Robert Suffoletta
WILSON SONSINI GOODRICH & ROSATI, P.C.
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
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CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED PER SHARE (1) PRICE REGISTRATION FEE
- -------------------------------------- ------------- ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock to be issued under 1,902,518 $ 6.12 (1) $11,642,661.18 $3,236.66
the 1999 Stock Option Plan 137,312 11.75 (2) $ 1,613,416.00 448.53
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Common Stock to be issued under the 200,000 9.9875(3) $ 1,997,500.00 555.31
1999 Employee Stock Purchase Plan
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TOTAL: 2,239,830 $15,253,577.18 $4,240.49
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the weighted average price of
the outstanding options as of November 22, 1999.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the average of the high and low
prices per share of the Common Stock as reported on The Nasdaq National
Market on November 19, 1999.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on 85% of the average of the high
and low prices per share of the Common Stock as reported on The Nasdaq
National Market on November 19, 1999.
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YESMAIL.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 with the
Securities and Exchange Commission:
1. The Company's Registration Statement on Form S-1 (File No.
333-80137) as amended (the "Registration Statement"), filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
Company's initial public offering of its Common Stock.
2. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 000-26871) filed pursuant
to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a company will not be personally liable for monetary damages
for breach of their fiduciary duties as directors, except for liability (i) for
any breach of their duty of loyalty to the company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) for unlawful payments or dividends or unlawful
stock repurchases or redemptions as provided Section 174 of Delaware General
Corporation Law or (iv) for transactions from which the director derived an
improper personal benefit.
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The Company's Bylaws provide that the Company shall indemnify its
officers and directors and may indemnify its employees and other agents to the
fullest extent provided by Delaware law, including those circumstances where
indemnification would otherwise be discretionary under Delaware law. The Company
believes that indemnification under its Bylaws covers at least negligence on the
part of indemnified parties. The Bylaws authorize the use of indemnification
agreements and the Company has entered into such agreements with each of its
directors and officers.
The Company carries officer and director liability insurance with
respect to certain matters, including matters arising under the Securities Act.
Delaware law does not permit a corporation to eliminate a director's
duty of care, and the provisions of the Company's Certificate of Incorporation
have no effect on the availability of equitable remedies such as injunction or
rescission, based upon a director's breach of the duty of care. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to foregoing provisions and agreements, the Company has been informed
that in the opinion of the staff of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of counsel as to legality of securities being registered
10.3* 1999 Stock Option Plan and form of agreements thereunder
10.4* 1999 Employee Stock Purchase Plan
23.1 Consent of independent auditors
23.2 Consent of counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-80137) filed with the Commission on June 7, 1999, as
amended.
ITEM 9. UNDERTAKINGS.
A. 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 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 of 1933, as amended (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.
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(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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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.
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 foregoing provisions, or otherwise, the registrant
has been advised 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 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 the City of Vernon Hills, State of Illinois, on November 23,
1999.
yesmail.com, inc.
By: /s/ DAVID M. TOLMIE
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David M. Tolmie, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David M. Tolmie and David B. Menzel,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her 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 substitution or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on November 23, 1999 by the following persons in the
capacities indicated.
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SIGNATURE TITLE
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/s/ DAVID M. TOLMIE Director, President and Chief Executive Officer
- ---------------------- (Principal Executive Officer)
David M. Tolmie
/s/ DAVID B. MENZEL Vice President, Finance and Administration
- ---------------------- and Chief Financial Officer (Principal Financial
David B. Menzel and Principal Accounting Officer)
/s/ KENNETH D. WRUK Chairman of the Board of Director
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Kenneth D. Wruk
/s/ GIAN M. FULGONI Director
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Gian M. Fulgoni
/s/ ALEXANDER F. HERN Director
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Alexander F. Hern
/s/ MICHAEL A. SANTER Director
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Michael A. Santer
/s/ ROBERT W. SHAW Director
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Robert W. Shaw
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of counsel as to legality of securities being registered
10.3* 1999 Stock Option Plan and form of agreements thereunder
10.4* 1999 Employee Stock Purchase Plan
23.1 Consent of independent auditors
23.2 Consent of counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-80137) filed with the Commission on June 7, 1999, as
amended.
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EXHIBIT 5.1
November 23, 1999
yesmail.com, inc.
565 Lakeview Parkway, Suite 135
Vernon Hills, Illinois 60061
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about November 24, 1999
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 4,425,000 shares of your
Common Stock issuable under your 1999 Stock Option Plan and 200,000 shares of
your Common Stock issuable under your 1999 Employee Stock Purchase Plan. Such
shares of Common Stock are referred to herein as the "Shares" and the 1999 Stock
Option Plan and the 1999 Employee Stock Purchase Plan are referred to herein as
the "Plans". As your counsel in connection with this transaction, we have
examined the proceedings taken and are familiar with the proceedings proposed to
be taken by you in connection with the issuance and sale of the Shares pursuant
to the Plans.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken by you prior to the issuance of
the Shares pursuant to the Registration Statement and the Plans and upon
completion of the actions being taken in order to permit such transactions to be
carried out in accordance with the securities laws of the various states where
required, the Shares will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH
& ROSATI, P.C.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we consent to the
incorporation by reference in the Registration Statement on Form S-8 of
yesmail.com, inc. of our report dated June 4, 1999 (except with respect to the
matters discussed in Note 11, as to which the date is September 21, 1999) (and
to all references to our firm) included in or made part of the Registration
Statement on Form S-1 (File No. 333-80137) of yesmail.com, inc.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Chicago, Illinois
November 24, 1999
