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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 24, 1999
REGISTRATION NO. 333-85315
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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EXACTIS.COM, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 8900 84-1359618
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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707 - 17TH STREET, SUITE 2850
DENVER, CO 80202
(303) 675-2300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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E. THOMAS DETMER, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EXACTIS.COM, INC.
707 - 17TH STREET, SUITE 2850
DENVER, CO 80202
(303) 675-2300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
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JAMES C.T. LINFIELD, ESQ. NORA L. GIBSON, ESQ.
LAURA M. MEDINA, ESQ. LAURA M. DE PETRA, ESQ.
JOHN W. BENDER, ESQ. ANGELA C. HILT, ESQ.
COOLEY GODWARD LLP BROBECK, PHLEGER & HARRISON LLP
2595 CANYON BOULEVARD, SUITE 250 SPEAR STREET TOWER, ONE MARKET
BOULDER, CO 80302-6737 SAN FRANCISCO, CA 94105
(303) 546-4000 (415) 442-0900
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Approximate date of commencement of proposed sale to the public:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] 333-85315
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF SECURITIES AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED PRICE(1)(2) REGISTRATION FEE
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Common Stock, $.01 par value................................ $65,500,000.00 $18,223.00
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(1) Includes shares that the underwriters have the option to purchase solely to
cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(o).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS.
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EXHIBIT NO. DESCRIPTION
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1.1* -- Form of Underwriting Agreement.
3.1* -- Restated Certificate of Incorporation of Exactis.com.
3.2* -- Certificate of Amendment to Restated Certificate of
Incorporation of Exactis.com.
3.3* -- Bylaws of Exactis.com.
3.4* -- Amended and Restated Bylaws of Exactis.com to become
effective upon the closing of this offering.
4.1* -- Reference is made to Exhibits 3.1 through 3.4.
4.2* -- Specimen stock certificate representing shares of common
stock of Exactis.com.
5.1 -- Opinion of Cooley Godward LLP regarding the legality of
the securities being registered.
10.1* -- 1996 Stock Option Plan of Exactis.com.
10.2* -- 1997 Stock Option Plan of Exactis.com.
10.3* -- 1999 Equity Incentive Plan of Exactis.com.
10.4* -- 1999 Employee Stock Purchase Plan of Exactis.com.
10.5* -- Third Amended and Restated Stockholders' Agreement, among
Exactis.com and certain of its stockholders, dated July
15, 1999.
10.6* -- Form of Indemnity Agreement to be entered into between
Exactis.com and each of its directors and executive
officers.
10.7* -- Sublease Agreement, between Exactis.com and Atlantic
Richfield Company, as amended, dated August 7, 1996.
10.8* -- Series A Preferred Stock Purchase Agreement, among
Exactis.com and the parties named therein, as amended,
dated February 14, 1996 and March 15, 1996.
10.9* -- Series B Preferred Stock Purchase Agreement, among
Exactis.com and the parties named therein, as amended,
dated July 22, 1996, September 19, 1996 and November 27,
1996.
10.10* -- Series C Preferred Stock Purchase Agreement, among
Exactis.com and the parties named therein, as amended,
dated July 24, 1997.
10.11* -- Series D Preferred Stock Purchase Agreement, among
Exactis.com and the parties named therein, as amended,
dated June 8, 1998.
10.12* -- Series E Preferred Stock Purchase Agreement, among
Exactis.com and the parties named therein, as amended,
dated July 15, 1999.
10.13** -- Asset Purchase Agreement, between Exactis.com and Sony
Music, a Group of Sony Music Entertainment Inc., dated
December 15, 1998.
10.14** -- Service Bureau Agreement, between Exactis.com and Sony
Music, a Group of Sony Music Entertainment Inc., dated
January 1, 1999.
10.15* -- Form of Series B Preferred Stock Warrant.
10.16* -- Form of Series C Preferred Stock Warrant.
10.17* -- Form of Series C Preferred Stock Warrant issued to
American Express on July 24, 1997.
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II-1
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EXHIBIT NO. DESCRIPTION
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10.18* -- Form of Series D Preferred Stock Warrant.
10.19* -- Form of Series E Preferred Stock Warrant.
23.1* -- Consent of Cooley Godward LLP (included in Exhibit 5.1).
23.2 -- Consent of KPMG LLP.
24.1* -- Powers of attorney (included on Page II-5).
27 -- Financial Data Schedule.
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* Previously filed.
** Confidential treatment has been requested with respect to portions of these
exhibits.
(b) FINANCIAL STATEMENT SCHEDULES.
Not applicable.
II-2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Post-effective Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Denver, County of Denver, State of Colorado, on
November 24, 1999.
By: /s/ E. THOMAS DETMER, JR.
---------------------------------
E. Thomas Detmer, Jr.
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-effective Amendment No. 1 to the Registration Statement 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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* Chairman of the Board of November 24, 1999
- ----------------------------------------------------- Directors
Adam Goldman
/s/ E. THOMAS DETMER, JR. President, Chief Executive November 24, 1999
- ----------------------------------------------------- Officer and Director
E. Thomas Detmer, Jr. (Principal Executive
Officer)
/s/ KENNETH W. EDWARDS, JR. Chief Financial Officer, November 24, 1999
- ----------------------------------------------------- Secretary and Treasurer
Kenneth W. Edwards, Jr. (Principal Financial and
Accounting Officer)
* Director November 24, 1999
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Pierric D. Beckert
* Director November 24, 1999
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Linda Fayne Levinson
* Director November 24, 1999
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David D. Williams
*By: /s/ E. THOMAS DETMER, JR.
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E. Thomas Detmer, Jr.
Attorney-in-fact
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II-3
<PAGE> 5
EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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5.1 -- Opinion of Cooley Godward LLP regarding the legality of
the securities being registered.
23.2 -- Consent of KPMG LLP.
27 -- Financial Data Schedule.
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EXHIBIT 5.1
[COOLEY GODWARD LETTERHEAD]
October 4, 1999
Exactis.com, Inc.
707 - 17th Street, Suite 2850
Denver, Colorado 80202
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Exactis.com, Inc. (the "Company") of a Registration Statement
on Form S-1 (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), including a prospectus to be filed with the
Commission pursuant to Rule 424(b) of Regulation C promulgated under the
Securities Act of 1933, as amended, and the underwritten public offering of up
to 4,370,000 shares of the Company's Common Stock, which amount includes 350,000
shares of Common Stock to be sold by certain stockholders of the Company (the
350,000 shares to be sold by the Selling Stockholders being hereinafter referred
to as the "Selling Stockholder Shares" and the 4,020,000 shares to be sold by
the Company being hereinafter referred to as the "Company Shares"), and includes
570,000 shares for which the underwriters have been granted an over-allotment
option.
In connection with this opinion, we have (i) examined and relied upon the
Registration Statement, and (ii) reviewed the Company's Restated Certificate of
Incorporation and Bylaws, as amended and as proposed to be amended prior to the
closing of the public offering, and the originals or copies certified to our
satisfaction of such records, documents, certificates, memoranda and other
instruments as in our judgment were necessary or appropriate to enable us to
render the opinion expressed below, and (iii) assumed that the Selling
Stockholder Shares and the Company Shares to be sold to the underwriters will be
sold at a price established by the Board of Directors of the Company or the
Pricing Committee thereof in accordance with Section 153 of the Delaware General
Corporation Law, and we have undertaken no independent verification with respect
thereto.
On the basis of the foregoing and in reliance thereon, we are of the opinion
that the Selling Stockholder Shares are, and the Company Shares will be (when
issued and paid for in accordance with the underwriting agreement filed as an
exhibit to the Registration Statement) validly issued, fully paid and
nonassessable.
We consent to the reference to our firm under the caption "Legal Matters" in the
prospectus included in the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement.
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Exactis.com, Inc.
October 4, 1999
Page Two
Very truly yours,
Cooley Godward LLP
By: /s/ James C.T. Linfield
---------------------------------
James C. T. Linfield
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EXHIBIT 23.2
ACCOUNTANTS' CONSENT
The Board of Directors
Exactis.com, Inc.:
We consent to the use of our report incorporated by reference herein and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG LLP
/s/ KPMG LLP
Denver, Colorado
November 22, 1999
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<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements of Exactis.com, Inc. and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<CIK> 0001092393
<NAME> EXACTIS.COM, INC.
<S> <C> <C> <C>
<PERIOD-TYPE> YEAR YEAR 9-MOS
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1998 DEC-31-1999
<PERIOD-START> JAN-01-1997 JAN-01-1998 JAN-01-1999
<PERIOD-END> DEC-31-1997 DEC-31-1998 SEP-30-1999
<CASH> 4,497,023 6,383,255 6,551,387
<SECURITIES> 0 0 0
<RECEIVABLES> 268,687 2,302,295 2,410,992
<ALLOWANCES> 75,000 75,000 75,000
<INVENTORY> 0 0 0
<CURRENT-ASSETS> 4,794,917 8,707,511 9,683,095
<PP&E> 2,958,625 3,847,384 7,334,014
<DEPRECIATION> 982,324 2,010,118 3,170,639
<TOTAL-ASSETS> 7,065,387 10,806,271 14,082,657
<CURRENT-LIABILITIES> 931,464 5,223,839 6,673,540
<BONDS> 824,485 609,700 216,711
15,348,922 18,672,523 27,592,530
1,094,413 1,094,413 1,094,413
<COMMON> 10,010 10,091 12,387
<OTHER-SE> (11,143,907) (19,104,295) (24,231,927)
<TOTAL-LIABILITY-AND-EQUITY> 7,065,387 10,806,271 14,082,657
<SALES> 854,900 2,779,110 7,267,398
<TOTAL-REVENUES> 854,900 2,779,110 7,267,398
<CGS> 2,038,768 2,780,034 1,285,197
<TOTAL-COSTS> 2,038,768 2,780,034 1,285,197
<OTHER-EXPENSES> 6,442,098 7,795,390 12,223,532
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 72,947 100,907 11,994
<INCOME-PRETAX> (7,698,913) (7,897,221) (6,253,325)
<INCOME-TAX> 0 0 0
<INCOME-CONTINUING> (7,698,913) (7,897,221) (6,253,325)
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> (7,698,913) (7,897,221) (6,253,325)
<EPS-BASIC> (7.75) (7.96) (6.27)
<EPS-DILUTED> (7.75) (7.96) (6.27)
</TABLE>
