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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDIAPLEX, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
Delaware 177 Steuart Street, Second Floor 94-3295822
(State of Incorporation) San Francisco, California 94105-1230 (I.R.S. Employer Identification No.)
(Address, including zip code, of Registrant's
principal executive offices)
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1997 STOCK PLAN
1999 AMENDED AND RESTATED STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Gregory R. Raifman
Chairman and Chief Executive Officer
Mediaplex, Inc.
177 Steuart Street, Second Floor
San Francisco, California 94105-1230
(415) 808-1900
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Aaron J. Alter, Esq.
Linda M. Cuny, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Securities to Amount Maximum Proposed Amount of
be Registered to be Offering Price Maximum Aggregate Registration
Registered Per Share Offering Price Fee
<S> <C> <C> <C> <C>
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Common Stock issuable under 1997 Stock Plan, par
value $0.0001 243,000 (1) $ 19.232727 (2) $ 4,673,552.74 (2) $ 1,233.82
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Common Stock issuable under 1999 Stock Plan, par
value $0.0001 12,000,000 (1) $ 19.232727 (2) $230,792,727.70 (2) $ 60,929.28
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Common Stock issuable under 1999 Employee Stock Purchase
Plan, par value $0.0001 400,000 (1) $ 79.375000 (3) $ 31,750,000.00 (3) $ 8,382.00
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding shares of Common Stock.
(2) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
total registration fee. Computation is based pursuant to Rule 457(h) of
the Securities Act whereby the per share price is equal to the weighted
average exercise price of $19.232727 per share.
(3) Estimated pursuant to Rule 457(c) under the Securities Act solely for the
purpose of calculating the total registration fee. As the price at which
options are to be granted in the future is not currently determined,
computation is based pursuant to Rule 457(c) of the Securities Act whereby
the per share price is the average between the high and low price reported
in the Nasdaq National Market on March 6, 2000, which average was
$79.375000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference into this Registration
Statement and into the Prospectuses relating to this Registration Statement
pursuant to Rule 428 the following documents and information previously filed
with the Securities and Exchange Commission (the "Commission"):
1. The Registrant's final prospectus, filed with the
Commission on November 19, 1999, filed pursuant to Rule
424(b) promulgated under the Securities Act of 1933, as
amended (the "Securities Act") relating to the
Registration Statement on Form S-1 (File No. 333-86459),
which was declared effective on November 18, 1999.
2. The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A filed with
the Commission on October 12, 1999.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference herein 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
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VII of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification
of officers, directors and third parties acting on behalf of the Registrant if
such person acted in good faith and in a manner reasonably believed to be in and
not opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his or her conduct was unlawful.
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The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Document
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4.1* Registrant's 1997 Stock Plan
4.2* Registrant's 1999 Stock Plan
4.3* Registrant's 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR")
23.1 Consent of PricewaterhouseCoopers, Independent Public
Accountants
23.2 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
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(*) Previously filed as an exhibit to Registrant's Registration Statement
on Form S-1 (File No. 333-82799), declared effective November 18,
1999.
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.
(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
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
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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 of 1933, the Registrant,
Mediaplex, Inc., 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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of San Francisco, State of
California, on the day of March 8, 2000.
MEDIAPLEX, INC.
By: /s/ Gregory R. Raifman
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Gregory R. Raifman
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gregory R. Raifman and Sandra L. Abbott and each
of them, acting individually, as his attorney-in-fact, with full power of
substitution, for him and in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-8 (including post-effective
amendments) and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement on Form S-8.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
Chairman, Chief Executive Officer and March 8, 2000
/s/ Gregory R. Raifman (Principal Executive Officer)
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Gregory R. Raifman
Senior Vice President, Chief Financial March 8, 2000
/s/ * Officer (Principal Accounting Officer)
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Sandra L. Abbott
/s/ * President and Director March 8, 2000
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Jon L. Edwards
/s/* Director March 8, 2000
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Lawrence D. Lenihan, Jr.
/s/* Director March 8, 2000
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Peter S. Sealy
/s/* Director March 8, 2000
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James DeSorrento
/s/ Gregory R. Raifman March 8, 2000
*By:-------------------------------
Gregory R. Raifman
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit
Number Document
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4.1* Registrant's 1997 Stock Plan
4.2* Registrant's 1999 Stock Plan
4.3* Registrant's 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR")
23.1 Consent of PricewaterhouseCoopers LLP, Independent Public
Accountants
23.3 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
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(*) Previously filed as an exhibit to Registrant's Registration Statement
on Form S-1 (File No. 333-86459), declared effective November 18,
1999.
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Exhibit 5.1
March 8, 2000
Mediaplex, Inc.
177 Steuart Street, Second Floor
San Francisco, California 94105-1230
Re: Registration Statement on Form S-8
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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 March 8, 2000 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of an aggregate of
12,640,000 shares of your Common Stock reserved for issuance under your 1997
Stock Plan, 1999 Stock Plan and 1999 Employee Stock Purchase Plan (collectively,
the "Plans"). As your legal counsel, we have examined the proceedings taken and
are familiar with the proceedings proposed to be taken by you in connection with
the sale and issuance of such Common Stock under the Plans.
It is our opinion that, when issued and sold in the manner referred to
in the Plans and pursuant to the agreements which accompany the Plans, the
Common Stock issued and sold thereby 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, including any Prospectuses constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to Item E under the General
Instructions to Form S-8 under the Securities Act with respect to the
Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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Exhibit 23.1
CONSENT OF PRICEWATERHOUSECOOPERS LLC
INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incoporation by reference in this Registation
Statement on Form S-8 of our report appearing in the Registration Statement on
Form S-1 of Mediaplex, Inc. ( and to all references to our Firm) included in or
made a part of this registration statement.
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
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San Francisco, California
March 8, 2000
