<PAGE>
As filed with the Securities and Exchange Commission of December 21, 1999
Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CMGI, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2921333
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
100 Brickstone Square, Andover, Massachusetts 01810
(Address of Principal Executive Offices) (Zip Code)
1999 Stock Option Plan for Non-Employee Directors
(Full Title of the Plan)
WILLIAM WILLIAMS II, ESQ.
Vice President and General Counsel
CMGI, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
(Name and Address of Agent for Service)
(978) 684-3600
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
Title of Proposed Maximum
Securities Amount Offering Proposed Maximum Amount of
to be to be Price Aggregate Offering Registration
Registered Registered Per Share Price Fee
---------- ---------- --------- --------- ---------
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 1,000,000 $202.75(1) $202,750,000(1) $53,526
par value shares
- --------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices of the Common Stock on the
Nasdaq National Market on December 15, 1999 in accordance with Rules 457(c)
and 457(h) under the Securities Act of 1933.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent
or given to participants in the Registrant's 1999 Stock Option Plan for Non-
Employee Directors, pursuant to Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest
prospectus filed pursuant to Rule 424(b) under the
Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered
by the document referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01
par value per share (the "Common Stock"), contained in a
registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be 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.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The legality of the Common Stock being offered hereby will be
passed for the Registrant by Hale and Dorr LLP, Boston, Massachusetts.
-3-
<PAGE>
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law grants the
Registrant the power to indemnify each 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
by reason of the fact that he is or was a director, officer, employee or agent
of the Registrant, or is or was serving at the request of the Registrant 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 interests of the Registrant, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, however, no indemnification shall be made in connection with any
proceeding brought by or in the right of the Registrant where the person
involved is adjudged to be liable to the Registrant except to the extent
approved by a court. Article NINTH of the Registrant's Restated Certificate of
Incorporation and Article VII of the Registrant's Restated By-laws provide that
the Registrant shall, to the fullest extent permitted by applicable law,
indemnify each 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 by reason of
the fact that he is or was, or has agreed to become, a director or officer of
the Registrant, or is or was serving at the written request of the Registrant,
as a director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust, or other enterprise. The
indemnification provided for in each of Article NINTH and Article VII is
expressly not exclusive of any other rights to which those seeking
indemnification may be entitled under any law, agreement, or vote of
stockholders or disinterested directors or otherwise, and shall inure to the
benefit of the heirs, executors, and administrators of such persons. Article VII
also provides that the Registrant shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee,
or agent of the Registrant, or is or was serving at the request of the
Registrant, as a director, trustee, partner, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against any liability asserted against and incurred by such person in any such
capacity.
Pursuant to Section 102(b)(7) of the Delaware General Corporation
Laws, Article EIGHTH of the Registrant's Restated Certificate of Incorporation
eliminates a director's personal liability for monetary damages to the
Registrant and its stockholders for breaches of fiduciary duty as a director,
except in circumstances involving a breach of a director's duty of loyalty to
the Registrant or its stockholders, acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of the law, self-dealing, or
the unlawful payment of dividends or repurchase of stock.
The Registrant maintains an insurance policy on behalf of itself and
certain of its subsidiaries, and on behalf of the directors and officers
thereof, covering certain liabilities which may arise as a result of the actions
of the directors and officers.
The Registrant has entered into agreements with all of its directors
affirming the Registrant's obligation to indemnify them to the fullest extent
permitted by law and providing various other protections.
-4-
<PAGE>
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings
------------
1. 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;
(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; 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 15(d) of the
Exchange Act that are 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 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 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
-5-
<PAGE>
offered therein, 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 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.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Town
of Andover, Commonwealth of Massachusetts on December 21, 1999.
CMGI, INC.
By: /s/ David S. Wetherell
_______________________________________
David S. Wetherell
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of CMGI, Inc. hereby severally
constitute David S. Wetherell, Andrew J. Hajducky, III and William Williams II,
and each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed herewith and any
and all subsequent amendments to said Registration Statement, and generally to
do all such things in our names and behalf in our capacities as officers and
directors to enable CMGI, Inc. to comply with all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
-7-
<PAGE>
Pursuant to the requirements of the Securities Act, 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/ David S. Wetherell Chairman of the Board of
________________________________________ December 21, 1999
David S. Wetherell Directors, President and Chief
Executive Officer (Principal
Executive Officer)
/s/ Andrew J. Hajducky, III Executive Vice President, Chief
________________________________________ December 21, 1999
Andrew J. Hajducky, III Financial Officer and Treasurer
(Principal Financial and
Accounting Officer)
/s/ William Berkman Director
________________________________________ December 21, 1999
William Berkman
/s/ Craig Goldman Director
________________________________________ December 21, 1999
Craig Goldman
/s/ Avram Miller Director
________________________________________ December 21, 1999
Avram Miller
/s/ Robert Ranalli Director
________________________________________ December 21, 1999
Robert Ranalli
/s/ William D. Strecker Director
________________________________________ December 21, 1999
William D. Strecker
</TABLE>
-8-
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- -------- -----------
4.1 Specimen Certificate of Common Stock, $.01 par value per share, of
the Registrant is incorporated herein by reference to Exhibit 4.1 to
the Registrant's Annual Report on Form 10-K for the fiscal year ended
July 31, 1999 (File No. 000-23262)
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of KPMG LLP, independent accountants
23.3 Consent of PricewaterhouseCoopers LLP, independent accountants
23.4 Consent of Singer Lewak Greenbaum & Goldstein LLP, independent
accountants
23.5 Consent of Deloitte & Touche LLP, independent accountants
24 Power of Attorney (included in the signature pages of this
Registration Statement)
<PAGE>
EXHIBIT 5
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
December 20, 1999
CMGI, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
Re: 1999 Stock Option Plan for Non-Employee Directors
-------------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 1,000,000 shares of Common Stock, $.01 par value per
share (the "Shares"), of CMGI, Inc., a Delaware corporation (the "Company"),
issuable under the Company's 1999 Stock Option Plan for Non-Employee Directors
(the "Plan").
We have examined the Restated Certificate of Incorporation of the Company, as
amended to date, and the Amended and Restated By-Laws of the Company, and
originals, or copies certified to our satisfaction, of all pertinent records of
the meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and sale
of the Shares in accordance with the Plan, to register and qualify the Shares
for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction other
than the state laws of The Commonwealth of Massachusetts, the Delaware General
Corporation Law statute and the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the Shares
have been duly authorized for issuance and, when the Shares are issued and paid
for in accordance with the terms and conditions of the Plan, the Shares will be
validly issued, fully paid and nonassessable.
<PAGE>
It is understood that this opinion is to be used only in connection with the
offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." 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 or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
CMGI, Inc.:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
December 17, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the 1999 Stock Option Plan for Non-Employee
Directors of our reports dated as follows:
. June 29, 1999 relating to the financial statements of AltaVista,
. April 2, 1999 relating to the financial statements of Zip2 Corporation, and
. June 9, 1999, except as to Note 12, which is as of July 3, 1999, relating to
the financial statements of Shopping.com
which appear in the CMGI, Inc. Current Report on Form 8-K dated June 29, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
December 17, 1999
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of CMGI, Inc. on Form S-8 pertaining to the Company's 1999 Stock
Option Plan for Non-Employee Directors of our report, dated June 17, 1997,
except for Note 6, for which the date is June 9, 1999, relating to the financial
statements of Shopping.com which appear in the Form 8-K of CMGI, Inc. dated June
29, 1999.
/s/ SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
December 20, 1999
<PAGE>
EXHIBIT 23.5
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of CMGI, Inc. of our report dated October 18, 1999 relating to the
consolidated financial statements of Flycast Communications Corporation as of
December 31, 1997 and 1998, and for each of the three years in the period ended
December 31, 1998 appearing in the Current Report on Form 8-K of CMGI, Inc.
dated December 17, 1999.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
San Jose, California
December 16, 1999
