As filed with the Securities and Exchange Commission on October 18, 1999
Registration Statement File No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARTHA STEWART LIVING OMNIMEDIA, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 52-2187059
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification No.)
11 West 42nd Street, New York, New York 10036
(Address of Principal Executive Offices) (Zip Code)
MARTHA STEWART LIVING OMNIMEDIA, INC. 1999 STOCK INCENTIVE PLAN
MARTHA STEWART LIVING OMNIMEDIA, INC. 1999 NON-EMPLOYEE DIRECTOR STOCK AND
OPTION COMPENSATION PLAN
MARTHA STEWART LIVING OMNIMEDIA, INC. 1999 EMPLOYEE STOCK PURCHASE PLAN
MARTHA STEWART LIVING OMNIMEDIA LLC PHANTOM PERFORMANCE UNIT PLAN
MARTHA STEWART LIVING OMNIMEDIA LLC NONQUALIFIED CLASS A
LLC UNIT/STOCK OPTION PLAN
LLC UNIT OPTION AGREEMENT WITH HELEN MURPHY
(Full Title of the Plans)
Gregory R. Blatt, Esq.
Executive Vice President, General Counsel
Martha Stewart Living Omnimedia, Inc.
11 West 42nd Street
New York, New York 10036
(212) 827-8000
(Name, Address and Telephone
Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE FEE
- --------------------------------------------------------------------------------
Class A Common Stock,
par value $0.01 10,732,393 $18.00 $193,183,074 $53,705
per share shares
================================================================================
(1) Represents the maximum number of shares that may be issued under the
aforenamed employee benefit plans.
(2) Computed pursuant to Rule 457(h) solely for the purpose of determining
the registration fee, based on $18, the initial public offering price of
the registrant's Class A Common Stock.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified in Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not being filed with or included in this Registration Statement
(by incorporation or otherwise) in accordance with the rules and regulations of
the Securities and Exchange Commission (the "Commission"). These documents and
the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents have been filed by the Registrant with the
Securities and Exchange Commission and are incorporated by reference in this
Registration Statement:
(a) The Registrant's prospectus that was a part of the Registrant's
Registration Statement on Form S-1 (File No. 333-84001), which
prospectus was filed on July 29, 1999, as amended through October 14,
1999, including any prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933.
(b) The Registrant's Registration Statement on Form 8-A, filed on
October 14, 1999.
(c) The description of the Registrant's Class A Common Stock contained in
the Registration Statement on Form 8-A referred to in (b) above.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all of the shares of common stock
offered have been sold or which deregisters all such shares then remaining
unsold, shall be deemed to be incorporated by reference in 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 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 such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
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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 General Corporation Law of the State of Delaware
provides as follows:
A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit 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
corporation and except that no indemnification shall be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
As permitted by the DGCL, the Registrant has included in its
certificate of incorporation a provision to eliminate the personal liability of
its directors for monetary damages for breach or
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alleged breach of their fiduciary duties as directors, subject to certain
exceptions. In addition, the Registrant's certificate of incorporation and
bylaws provide that the Registrant is required to indemnify its officers and
directors under certain circumstances, including those circumstances in which
indemnification would otherwise be discretionary, and the Registrant is required
to advance expenses to its officers and directors as incurred in connection with
proceedings against them for which they may be indemnified.
The Registrant maintains directors and officers liability insurance
for the benefit of its directors and certain of its officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of the exhibits included as part of this Registration
Statement is set forth in the Exhibit Index which immediately precedes such
exhibits and is hereby incorporated by reference herein.
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 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 (or the most recent post-effective
amendment thereto); 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 the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (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 Exchange Act that are incorporated by reference in this
Registration Statement.
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(2) That, for the purpose of determining any liability under the
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 on Form 10-K 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 in 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
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described in Item 6, 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 a director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by itself 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 certifies that it has reasonable grounds to believe it meets all 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 October 18, 1999.
MARTHA STEWART LIVING OMNIMEDIA, INC.
By: /s/ Martha Stewart
-----------------------------------------
Martha Stewart
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints the Chief Financial and Administrative Officer or the Secretary, or
either of them (with full power to each of them to act alone), his or her true
and lawful attorneys-in-fact and agents, with full power of substitution, for
him or her and on his or her behalf to sign, execute and file this Registration
Statement and any or all amendments (including, without limitation,
post-effective amendments and any amendment or amendments or abbreviated
registration statement increasing the amount of securities for which
registration is being sought) to this Registration Statement, with all exhibits
and any and all documents required to be filed with respect thereto, with the
Securities and Exchange Commission or any regulatory authority, granting unto
such 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 in order to effectuate the same as fully to all
intents and purposes as he might or could do if personally present, hereby
ratifying and confirming all that such attorneys-in-fact and agents, or either
of them, or their substitute or substitutes, may lawfully do or cause to be
done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 18, 1999.
Signature Title
/s/ Martha Stewart
- ------------------------------------- Chairman, Chief Executive Officer and
Martha Stewart Director (Principal Executive Officer)
/s/ Sharon Patrick
- ------------------------------------- President, Chief Operating Officer and
Sharon Patrick Director
/s/ Helen Murphy
- ------------------------------------- Chief Financial and Administrative
Helen Murphy Officer (Principal Financial Officer)
/s/ James Follo Senior Vice President, Finance and
- ------------------------------------- Controller (Principal Accounting
James Follo Officer)
/s/ Charlotte Beers Director
- -------------------------------------
Charlotte Beers
/s/ L. John Doerr Director
- -------------------------------------
L. John Doerr
/s/ Naomi O. Seligman Director
- -------------------------------------
Naomi O. Seligman
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT TITLE
4.1 --1999 Stock Incentive Plan (incorporated by reference to
Exhibit 10.2 to the Registrant's Registration Statement
on Form S-1 (Registration No. 333-84001)).
4.2 --1999 Non-Employee Director Stock Option and
Compensation Plan (incorporated by reference to Exhibit
10.3 to the Registrant's Registration Statement on Form
S-1 (Registration No. 333-84001)).
4.3 --1999 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.4 to the Registrant's
Registration Statement on Form S-1 (Registration No.
333-84001)).
4.4 --Martha Stewart Living Omnimedia LLC Phantom Performance
Unit Plan (incorporated by reference to Exhibit 10.5 to
the Registrant's Registration Statement on Form S-1
(Registration No. 333-84001)).
4.5 --Martha Stewart Living Omnimedia LLC Nonqualified Class
A LLC Unit/Stock Option Plan (incorporated by reference
to Exhibit 10.6 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-84001)).
4.6 --LLC Unit Option Agreement, dated September 3, 1999, by
and between Martha Stewart Living Omnimedia LLC and Helen
Murphy (incorporated by reference to Exhibit 10.18 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-84001)).
5 --Form of Opinion of Wachtell, Lipton, Rosen & Katz.
23.1 --Consent of Arthur Andersen LLP.
23.2 --Consent of Ernst & Young LLP.
23.2 --Consent of Wachtell, Lipton, Rosen & Katz (included in
Exhibit 5).
24 --Powers of Attorney (included on signature page).
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EXHIBIT 5
[Wachtell, Lipton, Rosen & Katz Letterhead]
October 18, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Martha Stewart Living Omnimedia, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Martha Stewart Living Omnimedia,
Inc., a Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-8, as amended, filed with the Securities and
Exchange Commission (the "Registration Statement") in connection with the
registration of 10,732,393 shares of Class A common stock, par value $0.01 per
share (the "Shares"), of the Company under the Securities Act of 1933, as
amended, to be offered pursuant to: (i) the Martha Stewart Living
Omnimedia, Inc. 1999 Stock Incentive Plan, (ii) the Martha Stewart Living
Omnimedia, Inc. 1999 Non-Employee Director Stock and Option Compensation Plan,
(iii) the Martha Stewart Living Omnimedia, Inc. 1999 Employee Stock Purchase
Plan, (iv) the Martha Stewart Living Omnimedia LLC Phantom Performance Unit
Plan, (v) the Martha Stewart Living Omnimedia LLC Nonqualified Class A LLC
Unit/Stock Option Plan and (vi) the LLC Unit Option Agreement, dated
September 3, 1999, by and between Martha Stewart Living Omnimedia LLC and Helen
Murphy (collectively, the "Plans").
In connection with the delivery of this opinion, we have examined
originals or copies of the Certificate of Incorporation and the By-Laws of the
Company, the Registration Statement, the Plans, certain resolutions adopted or
to be adopted by the Board of Directors, the form of stock certificate
representing the Shares and such other records, agreements, instruments,
certificates and other documents of public officials, the Company and its
officers and
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Securities and Exchange Commission
October 18, 1999
Page 2
representatives and have made such inquiries of the Company and its
officers and representatives, as we have deemed necessary or appropriate in
connection with the opinions set forth herein. We are familiar with the
proceedings heretofore taken, and with the additional proceedings proposed to be
taken, by the Company in connection with the authorization, registration,
issuance and sale of the Shares. With respect to certain factual matters
material to our opinion, we have relied upon representations from, or
certificates of, officers of the Company. In making such examination and
rendering the opinions set forth below, we have assumed without verification the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the authenticity of the originals of such documents submitted to
us as certified copies, the conformity to originals of all documents submitted
to us as copies, the authenticity of the originals of such later documents, and
that all documents submitted to us as certified copies are true and correct
copies of such originals.
Based on such examination and review, and subject to the foregoing, we
are of the opinion that
(1) The Company is a corporation duly organized and validly existing
under the laws of the state of Delaware;
(2) The Plans, including the proposed delivery of up to 10,732,393
Shares thereunder, have been duly authorized by appropriate
corporate action of the Company; and
(3) The Shares, upon issuance, when delivered pursuant to the
provisions of the Plans, will be validly issued, fully paid and
non-assessable.
We are members of the Bar of the State of New York, and we have not
considered, and we express no opinion as to, the laws of any jurisdiction other
than the federal laws of the United States of America, the State of New York and
the General Corporation Law of the State of Delaware.
We consent to the inclusion of this opinion as an Exhibit to the
Registration Statement. We further consent to the reference to us in Item 5 of
Part II of the Registration Statement. 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 of 1933, as amended.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our Firm) included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
New York, New York
October 14, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated August 1, 1997,
with respect to the financial statements of Martha Stewart Living (a wholly
owned operation of Time Inc.) as of December 31, 1996 and for the year then
ended included in Amendment No. 4 to the Registration Statement (Form S-1 No.
333-84001), in the Registration Statement on Form S-8 of Martha Stewart Living
Omnimedia, Inc. for the registration of Class A Common Stock.
ERNST & YOUNG LLP
New York, New York
October 14, 1999
