<PAGE> 1
As filed with the Securities and Exchange Commission on May 19, 2000
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
SOURCE MEDIA, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 13-3700438
(State of incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
5400 LBJ FREEWAY
SUITE 680
DALLAS, TEXAS 75240
(Address of registrant's principal executive offices)
----------------------
SOURCE MEDIA, INC. 1999 STOCK OPTION PLAN
(Full title of the plan)
STEPHEN W. PALLEY
CHIEF EXECUTIVE OFFICER
SOURCE MEDIA, INC.
5400 LBJ FREEWAY, SUITE 680
DALLAS, TEXAS 75240
(972)701-5400
(Name, address and telephone number of agent for service)
WITH A COPY TO:
ROBERT L. WINIKOFF, ESQ.
DAN L. ROSENBAUM, ESQ.
COOPERMAN LEVITT WINIKOFF LESTER & NEWMAN, P.C.
800 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 688-7000
FAX: (212) 755-2839
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE PRICE FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value per
share............................ 1,600,000 (1) $13,455,464 $3,552.25
====================================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h)(1) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee, as follows: (i) for shares
of Common Stock to be purchased upon exercise of outstanding options under the
Plan, the fee is calculated on the basis of the price at which the options may
be exercised when vested: 336,500 options exercisable at $11.9375 per share,
125,000 options exercisable at $15.00 per share, 125,000 options exercisable at
$6.89 per share, and 36,000 options exercisable at $7.5625 per share and (ii)
for shares of Common Stock to be purchased upon the exercise of options that
have not yet been issued and the option price is therefore unknown, the fee is
calculated on the basis of the average of the high and low sale prices per share
of Common Stock as quoted on the Nasdaq National Market on May 15, 2000.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Source Media, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference and made a part hereof:
(a) Registrant's Annual Report on Form 10-K and Form 10-K/A
(Amendments No. 1 and No. 2) for the fiscal year ended December
31, 1999;
(b) Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000; and
(c) The description of the Registrant's Common Stock in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on June 10, 1993, including any amendments or reports
filed for the purpose of updating that description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after
the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
Common Stock registered hereby has been sold or which deregisters such Common
Stock 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 (such documents, and the documents listed above, being
hereinafter referred to as "Incorporated Documents"). Any statement contained in
an Incorporated Document 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 Incorporated Document 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 SECURITIES.
The Common Stock of the Registrant is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Members of Cooperman Levitt Winikoff Lester & Newman, P.C., counsel to
the Registrant, beneficially own 16,000 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
corporation to 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
II-1
<PAGE> 3
corporation or 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 interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 also empowers a corporation to 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 such person acted in any of the
capacities set forth above, 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 under similar standards, except
that no indemnification may be made in respect of 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 was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to above or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation is empowered to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Article Seventh of the Registrant's Restated Certificate of
Incorporation, as amended, provides as follows:
A director of the Registrant shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL (in respect of certain unlawful
dividend payments or stock purchases or redemptions), or (iv) for a transaction
from which the director derived an improper personal benefit. If the DGCL is
amended to authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Registrant, in addition to
the limitation on personal liability described above, shall be limited to the
fullest extent permitted by the DGCL, as so amended. Any repeal or modification
of such provision of the Restated Certificate of Incorporation by the
stockholders of the Registrant shall not adversely affect any right to
protection of a director of the Registrant with respect to events occurring
prior to the time of such repeal or modification.
Article V of the Registrant's By-Laws, as amended, provides that each
director or officer of the Registrant 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 Registrant), by reason of the fact that he
or she is or was or has agreed to become a director, officer, employee or agent
of the Registrant or is or was serving or has agreed to serve at the request of
the Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, shall be
indemnified by the Registrant against all costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person or on such person's behalf in connection
therewith and any appeal therefrom, if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to
II-2
<PAGE> 4
believe his or her 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 meet the standards of conduct set forth in the By-Laws.
Article V of the Registrant's By-Laws also provides that the Registrant
shall indemnify any director or officer 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 Registrant to procure a judgment in its favor by reason of
the fact that he is or was or has agreed to become a director, officer, employee
or agent of the Registrant, or is or was serving or has agreed to serve at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom, 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 Registrant, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Registrant unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Notwithstanding such provisions to the contrary, to the extent that a
director or officer of the Registrant has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against all
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or her or on his or her behalf in connection therewith.
The right to indemnification provided by the By-Laws shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under any law (common or statutory), agreement, vote of stockholder or
disinterested directors or otherwise, both as to action in his official capacity
and to action in another capacity while holding office and shall continue as to
a person who has ceased to be a director or officer and shall inure to the
benefit of the estate, heirs, executors and administrators of such person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4 Source Media, Inc. 1999 Stock Option Plan (filed as Exhibit A to
Registrant's definitive proxy statement filed September 24, 1999
and incorporated herein by reference)
5 Opinion of Cooperman Levitt Winikoff Lester & Newman, P.C. as to
the legality of the Common Stock registered hereby
23(a) Consent of Ernst & Young LLP
23(b) Consent of Cooperman Levitt Winikoff Lester & Newman, P.C.
(included in Exhibit 5)
II-3
<PAGE> 5
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 (the
"Securities 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
the registration statement; and
(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 (i) and (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 with or furnished to the
Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are with or
furnished to the Commission incorporated by reference in
the registration statement.
(2) 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 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 hereby
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 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
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
of the Restated Certificate of Incorporation, as amended, and
By-Laws, as amended, of the registrant and the provisions of the
Delaware law described under Item 6 above, the registrant has been
advised that in the opinion of the 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
II-4
<PAGE> 6
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.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 the 19th day of May,
2000.
SOURCE MEDIA, INC.
By: /s/ Stephen W. Palley
-----------------------------------------
Stephen W. Palley, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Stephen W. Palley President, Chief Executive Officer and Director May 19, 2000
- ------------------------------------ (principal executive officer)
Stephen W. Palley
/s/ F. Paul Tigh Treasurer and Chief Financial Officer (principal May 19, 2000
- ------------------------------------ financial officer and principal accounting officer)
F. Paul Tigh
/s/ James L. Greenwald Director May 19, 2000
- ------------------------------------
James L. Greenwald
/s/ Michael J. Marocco Director May 19, 2000
- ------------------------------------
Michael J. Marocco
/s/ Barry Rubenstein Director May 19, 2000
- ------------------------------------
Barry Rubenstein
/s/ Kim D. Kelly Director May 19, 2000
- ------------------------------------
Kim D. Kelly
/s/ Sidney R. Knafel Director May 19, 2000
- ------------------------------------
Sidney R. Knafel
/s/ Michael S. Willner Director May 19, 2000
- ------------------------------------
Michael S. Willner
</TABLE>
II-6
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4 Source Media, Inc. 1999 Stock Option Plan (filed as Exhibit A to
the Registrant's definitive proxy statement filed September 24,
1999 and incorporated herein by reference)
5 Opinion of Cooperman Levitt Winikoff Lester & Newman, P.C. as to
the legality of the Common Stock registered hereby
23(a) Consent of Ernst & Young LLP
23(b) Consent of Cooperman Levitt Winikoff Lester & Newman, P.C.
(included in Exhibit 5)
</TABLE>
<PAGE> 1
Exhibit 5
May 19, 2000
Source Media, Inc.
5400 LBJ Freeway, Suite 680
Dallas, Texas 75240
Re: Registration of 1,600,000 shares of Common Stock,
par value $.001 per share, under the Securities Act
of 1933, as amended
Ladies and Gentlemen:
In our capacity as counsel to Source Media, Inc., a Delaware corporation
(the "Company"), we have been asked to render this opinion in connection with a
Registration Statement on Form S-8 being filed contemporaneously herewith by the
Company with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Registration Statement"), covering an aggregate of
1,600,000 shares of Common Stock, par value $.001 per share, of the Company (the
"Stock") to be issued upon the exercise of options heretofore granted or which
may be granted subsequent hereto to acquire shares of Common Stock under the
Company's 1999 Stock Option Plan (the "Plan").
In that connection, we have examined the Restated Certificate of
Incorporation, as amended, and the By-Laws, as amended, of the Company, the
Registration Statement, the Plan, corporate proceedings of the Company relating
to the issuance of the Stock pursuant to the Plan, and such other instruments
and documents as we deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us as photostatic copies. We have also assumed that the corporate records
furnished to us by the Company include all corporate proceedings taken by the
Company to date.
Based upon and subject to the foregoing, we are of the opinion that the
Stock has been duly and validly authorized and, when issued and paid for as
described in the Plan, will be duly and validly issued, fully paid and
non-assessable.
<PAGE> 2
Source Media, Inc.
May 19, 2000
Page 2
We hereby consent to the use of our opinion as herein set forth as an
exhibit to the Registration Statement.
Very truly yours,
COOPERMAN LEVITT WINIKOFF
LESTER & NEWMAN, P.C.
By:
-----------------------------------
A Member of the Firm
<PAGE> 1
Source Media, Inc.
May 19, 2000
Page 2
Exhibit 23(a)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Source Media, Inc. 1999 Stock Option Plan of our
report dated March 3, 2000, with respect to the consolidated financial
statements of Source Media, Inc. included in its Annual Report on Form 10-K/A
(Amendment No. 1) for the year ended December 31, 1999, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
May 15, 2000
