<PAGE> 1
As filed with the Securities and Exchange Commission on April 5, 2000
Registration No. 333-_____
================================================================================
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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EXACTIS.COM, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1359618
(State of Incorporation) (I.R.S. Employer Identification No.)
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717 - 17TH STREET, SUITE 500
DENVER, CO 80202
(303) 675-2300
(Address of principal executive offices)
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1996 STOCK OPTION PLAN
1997 STOCK OPTION PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
E. THOMAS DETMER, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
717 - 17TH STREET, SUITE 500
DENVER, CO 80202
(303) 675-2300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
JAMES C.T. LINFIELD, ESQ.
LAURA M. MEDINA, ESQ.
JOHN W. BENDER, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUIT 250
BOULDER, COLORADO 80302
(303) 546-4000
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Offering Aggregate Amount of
to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee
- ---------------------------- ------------------------- -------------------------- ------------------------- ------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 4,202,264 shares $13.45 $56,535,752 $14,925.44
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of 1933,
as amended. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price for shares subject to
outstanding options granted pursuant to Exactis.com, Inc.'s (i) 1996 Stock
Option Plan, (ii) 1997 Stock Option Plan and (ii) 1999 Equity Incentive
Plan, and (b) the average of the high and low prices of Registrant's Common
Stock on April 3, 2000 as reported on the Nasdaq National Market (pursuant
to Rule 457(c) under the Act).
The following chart illustrates the calculation of the registration fee:
<TABLE>
<CAPTION>
AGGREGATE OFFERING
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE PRICE
- ----------------------------------- ------------------------- ---------------------------- --------------------
<S> <C> <C> <C>
Shares issuable pursuant to
outstanding options under the
1996 Stock Option Plan 70,694 $1.25 $88,368
Shares issuable pursuant to
outstanding options under the
1997 Stock Option Plan 1,187,171 $3.09 $3,668,358
Shares issuable pursuant to
outstanding options under the
1999 Equity Incentive Plan 934,400 $14.92 $13,941,248
Shares reserved for future
issuance pursuant to the
1999 Equity Incentive Plan 1,509,999 $21.78 $32,887,778
Shares reserved for future
issuance pursuant to the
1999 Employee Stock Purchase Plan 500,000 $11.90 $5,950,000
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Exactis.com, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December 31,
1999, filed on March 30, 2000.
(b) The description of the Company's Common Stock which is contained in the
Registration Statement on Form 8-A filed November 8, 1999, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
any amendment or report filed for the purpose of updating such description.
(c) The Company's Current Report on Form 8-K, filed on March 10, 2000.
2.
<PAGE> 3
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered 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
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
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Cooley Godward LLP, Boulder, Colorado. As of the date of
this Registration Statement, attorneys at Cooley Godward are the beneficial
owners, through investment partnerships, of approximately 6,000 shares of common
stock, and individual members and associates of Cooley Godward beneficially own
an aggregate of 950 shares of the Registrant's Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act"). The Registrant's Restated
Certificate of Incorporation and Amended and Restated Bylaws include provisions
to (i) eliminate the personal liability of its directors and officers for
monetary damages resulting from breaches of their fiduciary duty to the extent
permitted by Section 102(b)(7) of the General Corporation Law of Delaware
("Delaware Law") and (ii) require the Registrant to indemnify its directors and
officers to the fullest extent permitted by Section 145 of Delaware Law,
including circumstances in which indemnification is otherwise discretionary.
Pursuant to Section 145 of Delaware Law, a corporation generally has the power
to indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to, the best interests of the corporation and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Registrant believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate the directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the Registrant or its
stockholders when the director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Registrant or its stockholders, for improper
transactions between the director and the Registrant and for improper
distributions to stockholders and loans to directors and officers. The provision
also does not affect a director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and officers that require the Registrant to indemnify such persons
against expenses, judgments, fines, settlements and other amounts incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an officer of the
3.
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Registrant or any of its affiliated enterprises, provided that such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Registrant has an insurance policy covering the officers and directors
of the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No.
000-27993)).
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No.
000-27993)).
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney is contained on the signature pages.
99.1 1996 Stock Option Plan (incorporated by reference to Exhibit 10.1 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No. 000-27993)).
99.2 1997 Stock Option Plan (incorporated by reference to Exhibit 10.2 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No. 000-27993)).
99.3 1999 Equity Incentive Plan (incorporated by reference to Exhibit 10.3 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No. 000-27993)).
99.4 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No.
000-27993)).
</TABLE>
4.
<PAGE> 5
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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) (ss. 230.424(b) of this
chapter) 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)(i) and (a)(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 by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 (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 by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. 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.
5.
<PAGE> 6
SIGNATURES
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 Denver, State of Colorado, on April 5, 2000.
EXACTIS.COM, INC.
By: /s/ E. Thomas Detmer, Jr.
-------------------------------
Title: President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints E. Thomas Detmer, Jr. and E. Kenneth W.
Edwards, Jr., and each or any one of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his 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 Securities and Exchange 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 connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Adam Goldman Chairman of the Board of Directors April 5, 2000
- ------------------------------------
Adam Goldman
/s/ E. Thomas Detmer, Jr. President, Chief Executive Officer April 5, 2000
- ------------------------------------ and Director (Principal Executive
E. Thomas Detmer, Jr. Officer)
/s/ Kenneth W. Edwards, Jr. Chief Financial Officer, Secretary April 5, 2000
- ------------------------------------ and Treasurer (Principal Financial
Kenneth W. Edwards, Jr. and Accounting Officer)
/s/ Pierric D. Beckert Director April 5, 2000
- ------------------------------------
Pierric D. Beckert
/s/ Linda Fayne Levinson Director April 5, 2000
- ------------------------------------
Linda Fayne Levinson
/s/ David D. Williams Director April 5, 2000
- ------------------------------------
David D. Williams
</TABLE>
6.
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No.
000-27993)).
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No.
000-27993)).
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney is contained on the signature pages.
99.1 1996 Stock Option Plan (incorporated by reference to Exhibit 10.1 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No. 000-27993)).
99.2 1997 Stock Option Plan (incorporated by reference to Exhibit 10.2 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No. 000-27993)).
99.3 1999 Equity Incentive Plan (incorporated by reference to Exhibit 10.3 to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No. 000-27993)).
99.4 1999 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000 (File No.
000-27993)).
</TABLE>
7.
<PAGE> 1
EXHIBIT 5.1
April 5, 2000
Exactis.com, Inc.
717 - 17th Street, Suite 500
Denver, CO 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-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 4,202,264 shares of the Company's
Common Stock, $.001 par value, (the "Shares") pursuant to its 1996 Stock Option
Plan, 1997 Stock Option Plan, 1999 Equity Incentive Plan and 1999 Employee Stock
Purchase Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ James C. T. Linfield
-----------------------------
James C. T. Linfield
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Exactis.com, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Exactis.com, Inc. of our report dated January 31, 2000, except as to note
(9) to the financial statements, which is as of February 29, 2000, relating to
the balance sheets of Exactis.com, Inc. as of December 31, 1998, and 1999, and
the related statements of operations, stockholders' equity (deficit), and cash
flows for each of the years in the three-year period ended December 31, 1999,
which report appears in the December 31, 1999 annual report on Form 10-K of
Exactis.com, Inc.
KPMG LLP
Denver, Colorado
April 3, 2000
