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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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PROMOTIONS.COM, INC.
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(Exact Name of Registrant as Specified in Its Charter)
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Delaware 13-3898912
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(State of Incorporation) (I.R.S. Employer Identification Number)
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450 West 33rd Street, 7th Floor
New York, NY 10001
(Address of Principal Executive Offices)
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Stock Option Plan
Promotions.com, Inc. Employee Stock Purchase Plan
(Full Title of the Plans)
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Steven H. Krein
Chief Executive Officer and
Chairman of the Board
Promotions.com, Inc.
450 West 33rd Street, 7th Floor
New York, NY 10001
(Name and Address of Agent for Service)
(212) 971-9800
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(Telephone Number, including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Registration Fee
Share Offering Price
======================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $.01 par value, to be 1,250,000 $ 0.20 (3) $ 250,000 $ 62.50
issued under the 1999 Equity shares ----- -------- ---------
Compensation Plan(2)
Common Stock, $.01 par value, to be 1,000,000 $ 0.26 (5) $ 260,000 $ 65.00
issued under the Employee Stock Purchase shares ------- -------- -----
Plan (4)
Aggregate Registration Fee: $127.50
------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the 1999 Equity Compensation Plan or Employee
Stock Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the Registrant's
receipt of consideration which results in an increase in the number of
outstanding shares of Registrant's Common Stock.
(2) Represents shares of Commons Stock which have become available for issuance
under the Registrant's 1999 Equity Compensation Plan as a result of an amendment
approved by the stockholders at the Registrant's Annual Meeting held on June 8,
2000 increasing the number of shares authorized for issuance thereunder by an
aggregate of 1,250,000 shares. No options have been granted with respect to such
shares.
(3) Estimated solely for purposes of calculation of the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"), as to the 1,250,000 shares of Common Stock authorized for
issuance under the 1999 Equity Compensation Plan for which no options have been
granted. 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 December 26, 2000
because the price at which the options to be granted in the future may be
exercised is not currently determinable.
(4) Represents shares of Common Stock which have become available for issuance
under the Registrant's Employee Stock Purchase Plan as a result of adoption of
the plan by the stockholders at the Registrant's Annual Meeting held on June 8,
2000.
(5) Estimated solely for purposes of calculation of the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"). The computation is based upon 85% (see explanation in
following sentence) of the average of the high and low price of the Common Stock
as reported on the Nasdaq National Market on December 18, 2000 because the price
at which the stock to be granted in the future is not currently determinable.
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Pursuant to the Employee Stock Purchase Plan, which plan is incorporated by
reference herein, the Purchase Price of a share of Common Stock shall mean the
lesser of (a) 85% of the Fair Market Value of a share of Common Stock on the
first day of the Purchase Period or (b) 85% of the Fair Market Value of the last
day of the Purchase Period.
STATEMENT UNDER GENERAL INSTRUCTION E-REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement registers additional shares of Registrant's Common
Stock to be issued pursuant to the 1999 Equity Compensation Plan. Accordingly,
the contents of the previous Registration Statement on Form S-8 (File No.
333-31000) (the "Previous Form S-8") filed by the Registrant with the Securities
and Exchange Commission ("SEC"), including periodic reports that the Registrant
filed after the Previous Form S-8 to maintain current information about the
Registrant, are incorporated by reference into this Registration Statement
pursuant to the General Instruction E of Form S-8.
PART I: INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act, and the Note to Part I of Form S-8.
I-1
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by Promotions.com, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
hereby incorporated by reference to this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, as filed
pursuant to Section 13 (a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on
March 30, 2000.
(b) The Registrant's Quarterly Reports on Form 10-Q for
the quarterly periods ended March 31, June 30 and
September 30, 2000, as filed pursuant to Section 13
(a) of the Exchange Act on May 15, August 14 and
November 14, 2000, respectively.
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(c) Proxy Statement filed as of May 11, 2000 in
connection with the Annual Meeting of Shareholders
held on June 8, 2000.
(d) The Registrant's Current Report on Form 8-K filed
November 28, 2000.;
In addition, all documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all of the securities offered hereunder 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. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement 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
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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
Inapplicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers, as well as other employees and
individuals, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by any such person
in connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee or agent to the Registrant. The
Delaware General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
The Registrant's certificate of incorporation, as amended, includes a
provision that eliminates the personal liability of its directors for monetary
damages for breach of fiduciary duty as a director, except for liability:
- for any breach of the director's duty of loyalty to the Registrant or
its stockholders;
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of the law;
- under section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
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- for any transaction from which the director derived an improper
personal benefit.
The Registrant's bylaws provide that:
- Registrant must indemnify its officers and directors to the fullest
extent permitted by Delaware law, subject to very limited exceptions;
- Registrant may indemnify its other employees and agents to the same
extent we indemnify its officers and directors, unless otherwise
required by law, the Registrant's certificate of incorporation, as
amended, its bylaws or agreements; and
- Registrant must advance expenses, as incurred, to its directors and
executive officers in connection with a legal proceeding to the
fullest extent permitted by Delaware law, subject to very limited
exceptions.
The Registrant has obtained directors' and officers' insurance providing
indemnification for certain of the Registrant's directors, officers and
employees for certain liabilities.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Consultants and Advisors
Inapplicable.
Item 9. Exhibits
<TABLE>
<CAPTION>
Exhibit Number Name
-------------- ----
<S> <C>
4 Instrument Defining Rights of Stockholders. Reference
is made to Registrant's Registration Statement No.
000-27411 on Form 8-A, together with any exhibits
thereto, which are incorporated herein by reference
pursuant to Item 3(c) to this Registration Statement.
5 Opinion and Consent of Reed Smith LLP
23.1 Consent of PriceWaterhouseCoopers LLP, Independent
Auditors
23.2 Consent of Reed Smith LLP is contained in its
opinion filed as Exhibit 5 hereto
24 Power of Attorney (included on Page II-6 of the
</TABLE>
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Registration Statement).
Item 10. 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:
(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. 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 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 paragraphs (a)(1)(i) and (a)(1)(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 Section 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.
(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 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.
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(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 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 New York, State of New York on the 29th day of
December, 2000.
PROMOTIONS.COM, INC.
(Registrant)
By: /s/ Steven H. Krein
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Name: Steven H. Krein
Title: Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below each severally constitutes and appoints Steven H. Krein, Chief
Executive Officer and Chairman of the Board and Daniel J. Feldman, President,
and each of them, as true and lawful attorneys-in-fact and agents, with full
powers of substitution and resubstitution, for them in their name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as they might or could do in person, hereby ratifying and
confirming all which said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes, may lawfully do, or cause to be done by virtue
hereof.
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.
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C> <C>
/s/ Steven H. Krein Chief Executive Officer (Principal December 29, 2000
-------------------------- Executive Officer)
Steven H. Krein Chairman of the Board of Directors
/s/ Lawrence Quartaro Acting Chief Financial and Accounting December 27, 2000
-------------------------- Officer (Principal Financial Officer)
Lawrence Quartaro
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Daniel J. Feldman President December 29, 2000
-------------------------- Director
Daniel J. Feldman
/s/ Arnold Greenberg Director December 27, 2000
--------------------------
Arnold Greenberg
/s/ Dirk A. Hall Director December 29, 2000
--------------------------
Dirk A. Hall
/s/ Kristopher A. Wood Director December 29, 2000
--------------------------
Kristopher A. Wood
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Name
-------------- ----
<S> <C>
4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-27411 on
Form 8-A, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(c) to
this Registration Statement.
5 Opinion and Consent of Reed Smith LLP
23.1 Consent of PriceWaterhouseCoopers LLP, Independent Auditors
23.2 Consent of Reed Smith LLP is contained in its opinion filed
as Exhibit 5 hereto
24 Power of Attorney (included on Page II-6 of the Registration
Statement).
</TABLE>
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