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As filed with the Securities and Exchange Commission on June 26, 2000
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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NETCREATIONS, INC.
(Exact name of issuer as specified in its charter)
NEW YORK 11-3300476
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(State or other jurisdiction (IRS Employer
of incorporation of organization) Identification No.)
379 WEST BROADWAY, SUITE 202
NEW YORK, NEW YORK 10012
(Address of principal executive offices) (Zip Code)
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NETCREATIONS, INC. 1999 STOCK OPTION PLAN, AS AMENDED
NETCREATIONS, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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ROSALIND B. RESNICK
CHIEF EXECUTIVE OFFICER, PRESIDENT, CHAIRMAN OF THE
BOARD OF DIRECTORS AND TREASURER
NETCREATIONS, INC.
379 WEST BROADWAY, SUITE 202
NEW YORK, NEW YORK 10012
(Name and address of agent for service)
(212) 625-1370
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Offering Aggregate Amount of
Securities to To be Price Offering Registration
Be Registered Registered per Share Price Fee
=============================================================================================================
<S> <C> <C> <C> <C>
NetCreations, Inc.
1999 Stock Option Plan,
as Amended, effective
January 1, 2000 3,000,000(1) $41.5625(2) $124,687,500(2) $32,918(2)
Common Stock, $0.01 par value
NetCreations, Inc.
2000 Stock Purchase Plan 1,000,000(1)(3) $41.5625(4) $35,328,125(4) $9,327(4)
Common Stock, $0.01 par value
=============================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of shares of
NetCreations' Common Stock that may be offered or issued by reason of stock
splits, stock dividends or similar transactions.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h). The proposed maximum offering price per share, proposed
maximum aggregate offering price and the amount of the registration fee are
based on the average of the high and low prices of NetCreations' Common Stock
reported on the Nasdaq National Market System on June 19, 2000 ($41.5625 per
share).
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(3) In addition, this Registration Statement covers an indeterminate number of
plan participation interests to be offered or sold pursuant to the Employee
Stock Purchase Plan being registered.
(4) Estimated solely for the purposes of calculating the registration fee under
Rule 457(h). The proposed maximum offering price per share is based upon the
average of high and low prices of the Common Stock of the registrant of the
NASDAQ National Market System on June 19, 2000 ($41.5625 per share), multiplied
by 85%, the percentage of the fair market value of the stock that is used to
establish the purchase price under the plan.
2
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents to be sent
or given to the plans' participants and is not required to be included in this
Form S-8 Registration Statement pursuant to introductory Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
NetCreations, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999 filed with the SEC on March
30, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the
three months ended March 31, 2000 filed with the SEC on May
12, 2000;
(c) The Registrant's Current Reports on Form 8-K filed with the
SEC on June 9, 2000; and
(d) The Registrant's Registration Statement No. 000-27923 on
Form 8-A filed with the Commission on November 3, 1999,
including any other amendments or reports filed for the
purpose of updating such description in which there is
described the terms, rights and provisions applicable to
the Registrant's Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (the "1934
Act") after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of 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
subsequently filed document which also is deemed to be incorporated by reference
herein 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 Capital Stock
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
As permitted by the New York Business Corporation Law, our restated
certificate of incorporation provides that a director will not be personally
liable to us or our shareholders for damages for any breach of duty in his or
her capacity as a director unless a judgment or other final adjudication adverse
to such director establishes that (1) his or her acts or omissions were in bad
faith or involved intentional misconduct or a knowing violation of law, (2) such
director personally gained in fact a financial profit or other advantage to
which he or she was not legally entitled or (3) his or her acts violated Section
719 of the New York Business Corporation Law.
3
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This provision is intended to afford directors protection, and limit
their potential liability, from suits alleging a breach of the duty of care by a
director. We believe this provision will assist us in maintaining and securing
the services of directors who are not employees of NetCreations. As a result of
the inclusion of such a provision, shareholders may be unable to recover
monetary damages against directors for actions taken by them that constitute
negligence or gross negligence or that are in violation of their fiduciary
duties, although it may be possible to obtain injunctive or other equitable
relief with respect to those actions. If equitable remedies are found not to be
available to shareholders for any particular case, shareholders may not have any
effective remedy against the challenged conduct This provision does not affect
the directors' responsibilities, under any other laws, such as the Federal
securities laws or state or Federal environmental laws.
Our restated certificate of incorporation also provides that directors
and officers shall be indemnified against liabilities arising from their service
as directors or officers to the fullest extent permitted by law, which generally
requires that the individual have acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to NetCreations' best interests. No
indemnification may be made to or on behalf of any directors or officers if a
judgment or other final adjudication adverse to him or her established that his
or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
New York law provides further that the indemnification permitted under
New York law shall not be deemed exclusive of any other rights to which the
directors and officers may be entitled under our bylaws, any agreement, a vote
of shareholders or otherwise.
We have also entered into agreements to indemnify our directors and
executive officers, in addition to the indemnification provided for in our
bylaws. We believe that these provisions and agreements are necessary to attract
and retain qualified directors and executive officers. Our bylaws also permit us
to secure insurance on behalf of any officer, director, employee or other agent
for any liability arising out of his or her actions, regardless of whether New
York law would permit indemnification. We have obtained directors' and officers'
liability insurance for our officers and directors.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under our restated certificate of incorporation, bylaws,
or any indemnification agreement. We are not aware of any threatened litigation
or proceeding that may result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement 000-27923 on Form
8-A, which are incorporated herein by reference pursuant to
Item 3(c).
5 Opinion and consent of Piper Marbury Rudnick & Wolfe LLP.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Piper Marbury Rudnick & Wolfe LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page 6 of this
Registration Statement
99.1 NetCreations, Inc. 1999 Stock Option Plan, as amended.
99.2 NetCreations, Inc. 2000 Stock Purchase Plan.
4
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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; (i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"),
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this Registration Statement,
and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that clauses (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into 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; and (3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold upon the termination of the 1997 Stock Incentive Plan.
B. The undersigned Registrant hereby undertakes 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities and Exchange Act of
1934) that is incorporated by reference into this 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 1933 Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
above, or otherwise, the Registrant has been advised that in the opinion of the
SEC 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 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 1933 Act and will be governed by the final
adjudication of such issue.
5
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SIGNATURES
Registrant.
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 New York, State of New York, on this 22nd day of
June, 2000.
NETCREATIONS, INC.
By: /s/ ROSALIND B. RESNICK
-----------------------------------
Rosalind B. Resnick
Chief Executive Officer, President,
Chairman of the Board of Directors and
Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of NetCreations,
Inc., a New York corporation, do hereby constitute and appoint Rosalind B.
Resnick and Gary Sindler, the lawful attorneys and agents, with full power and
authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent determines may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms all that said attorneys and agents, or
any of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
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<S> <C> <C>
/s/ ROSALIND B. RESNICK Chief Executive Officer, President, June 22, 2000
---------------------------- Chairman of the Board, and Treasurer
Rosalind B. Resnick (Principal Executive Officer)
/s/ GARY SINDLER Chief Financial Officer June 22, 2000
----------------------------
Gary Sindler
</TABLE>
6
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<TABLE>
<S> <C> <C>
/s/ RYAN SCOTT DRUCKENMILLER Director June 22, 2000
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Ryan Scott Druckenmiller
/s/ MITCHELL YORK Director June 22, 2000
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Mitchell York
/s/ GREGORY SLAYTON Director June 22, 2000
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Gregory Slayton
/s/ MICHAEL LEVY Director June 22, 2000
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Michael Levy
</TABLE>
7
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EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement 000-27923 on Form
8-A, which are incorporated herein by reference pursuant to
Item 3(c).
5 Opinion and consent of Piper Marbury Rudnick & Wolfe LLP.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Piper Marbury Rudnick & Wolfe LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page 6 of this
Registration Statement
99.1 NetCreations, Inc. 1999 Stock Option Plan, as amended.
99.2 NetCreations, Inc. 2000 Stock Purchase Plan.
8
