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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 (I.R.S. Employer
of incorporation or organization) Identification Number)
100 BRICKSTONE SQUARE, ANDOVER, MASSACHUSETTS 01810
(978) 684-3600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
1986 STOCK OPTION PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of plans)
DAVID S. WETHERELL
Chairman, President and Chief Executive Officer
CMGI, Inc.
100 Brickstone Square, Andover, Massachusetts 01810
(978) 684-3600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy of communications to:
WILLIAM WILLIAMS II, ESQ. MARC A. RUBENSTEIN, ESQ.
Vice President and General Counsel Palmer & Dodge LLP
CMGI, Inc. One Beacon Street
100 Brickstone Square Boston, Massachusetts 02108
Andover, MA 01810 (617) 573-0100
(978) 684-3600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of each class of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (1) offering price (1) registration fee
----------------- ------------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 10,000,000 shares $99.0630 $990,630,000 $275,395
</TABLE>
(1) Estimated pursuant to Rule 457(c) and 457(h) solely for the purpose of
calculating the registration fee based upon the average of the lowest price
and the highest price of the common stock, par value $.01 per share, on the
Nasdaq National Market on November 12, 1999. The actual price of shares
issued under the 1986 Stock Option Plan is determined on the date options are
granted with respect to such shares. The actual price of shares issued under
the 1995 Employee Stock Purchase Plan will be determined on the first or last
day of each fiscal quarter.
Page 1 of 11 Sequential Pages
Exhibit Index appears on Page 7
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INTRODUCTORY STATEMENT
CMGI, Inc. (referred to as "CMGI", the "Company" or the "Registrant") hereby
files this Registration Statement on Form S-8 relating to 10,000,000 shares of
its common stock, $0.01 par value per share ("Common Stock"), issuable upon
exercise of options granted and to be granted under the CMGI, Inc. 1986 Stock
Option Plan (the "1986 Plan") and issuable under the CMGI, Inc. 1995 Employee
Stock Purchase Plan (the "1995 Plan").
STATEMENT REGARDING INCORPORATION BY REFERENCE FROM EFFECTIVE REGISTRATION
STATEMENT
Pursuant to Instruction E to Form S-8, the contents of the Registrant's
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Commission") on November 25, 1994 (File No. 33-86742) relating
to the registration of 18,000,000 shares (as adjusted through the date hereof)
of the Registrant's Common Stock authorized for issuance under the 1986 Plan and
the 1995 Plan are incorporated by reference in their entirety in this
Registration Statement, except as to the items set forth below. This
Registration Statement provides for the registration of an additional 10,000,000
shares under the 1986 Plan and the 1995 Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated herein
by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
July 31, 1999.
(b) The Registrant's Current Reports on Forms 8-K or amendments
thereto filed on August 12, 1999, September 2, 1999, September 3, 1999,
September 27, 1999, October 1, 1999, November 1, 1999 and November 17, 1999.
(c) All other reports of the Registrant filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the annual report referred to
in (a) above.
(d) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on November 10,
1993, including any amendment or report filed hereafter for the purpose of
updating such description.
All documents filed after the date of this Registration Statement by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
and prior to the filing of a post-effective amendment which indicates that all
shares of Common Stock offered hereunder have been sold or which deregisters all
shares of Common Stock remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
2
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ITEM 8. EXHIBITS.
A list of the exhibits filed with or included as part of this Registration
Statement is set forth in the Index to Exhibits on page 7 and is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(2) 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;
(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) if, in the aggregate, the changes in volume and
price represent no more than 20 percent 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)(l)(i) and (a)(l)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(3) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(4) 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 of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
3
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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 of 1933 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 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling period
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 Act and will be governed by the final adjudication of such
issue.
4
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SIGNATURES
The Registrant.
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 Andover, Commonwealth of Massachusetts, on this 17th
day of November, 1999.
CMGI, INC.
(Registrant)
By: /s/ David S. Wetherell
----------------------
David S. Wetherell
Chairman of the Board,
President and Chief Executive Officer
5
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POWER OF ATTORNEY
We, the undersigned officers and directors of CMGI, Inc., hereby severally
constitute and appoint William Williams II and Andrew J. Hajducky III, and each
of them singly, our true and lawful attorneys-in-fact, with full power to them
in any and all capacities, to sign any and all amendments to this Registration
Statement on Form S-8 (including any post-effective amendments thereto), and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact may 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/ David S. Wetherell Chairman, Chief Executive November 17, 1999
- ----------------------------- Officer and President and Director
David S. Wetherell (Principal Executive Officer)
/s/ Andrew J. Hajducky Chief Financial Officer November 17, 1999
- ----------------------------- and Treasurer
Andrew J. Hajducky III (Principal Financial and
Accounting Officer)
/s/ Craig Goldman Director November 17, 1999
- -----------------------------
Craig Goldman
/s/ Robert Ranalli Director November 17, 1999
- -----------------------------
Robert Ranalli
/s/ William Berkman Director November 17, 1999
- -----------------------------
William Berkman
/s/ Avram Miller Director November 17, 1999
- -----------------------------
Avram Miller
/s/ William Strecker Director November 17, 1999
- -----------------------------
William D. Strecker
</TABLE>
6
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
CMGI, INC.
----------
(Exact Name Of Registrant As Specified In Its Charter)
<TABLE>
<CAPTION>
Exhibit Page Number Or Incorporated
Number Description By Reference To
- ------- ----------- ----------------------------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporated by reference from the Registration
Incorporation Statement on Form S-3 filed on August 12, 1999
(Registration No. 333-85047)
4.2 Restated By-Laws Incorporated by reference from the Registration
Statement on Form S-1, as amended, filed on November
10, 1993 (Registration No. 33-71518).
5.1 Opinion of Palmer & Dodge, counsel to Filed herewith on Page 8
the Company, regarding legality of the
securities being registered
23.1 Consent of KPMG LLP, Filed herewith on Page 9
independent accountants
23.2 Consent of PricewaterhouseCoopers LLP, Filed herewith on Page 10
independent accountants
23.3 Consent of Singer Lewak Greenbaum Filed herewith on Page 11
& Goldstein LLP independent auditors
23.4 Consent of Palmer & Dodge, counsel to Filed herewith as part of Exhibit 5.1
the Company hereto
</TABLE>
<PAGE>
EXHIBIT 5.1
PALMER & DODGE LLP
One Beacon Street
Boston, Massachusetts 02108
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
November 16, 1999
CMGI, Inc.
100 Brickstone Square
Andover, MA 01810
Ladies and Gentlemen:
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by CMGI, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Act"), on or about the date hereof. The Registration
Statement relates to an additional 10,000,000 shares of the Company's common
Stock, $0.01 par value per share (the "Shares"), issuable pursuant to the
provisions of the Company's 1986 Stock Option Plan and 1995 Employee Stock
Purchase Plan (the "Plans").
We have acted as your counsel in connection with the preparation of the
Registration Statement and are familiar with the proceedings taken by the
Company in connection with the authorization of the issuance and sale of the
Shares. We have examined all such documents as we consider necessary to enable
us to render this opinion.
Based upon the foregoing, we are of the opinion that when issued and paid
for in accordance with the terms of the Plans and the options or other rights
granted thereunder, the Shares will be legally issued, fully paid and
nonassessable.
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.
We hereby consent to the filing of this opinion as a part of the
Registration Statement.
Very truly yours,
/s/ Palmer & Dodge LLP
Palmer & Dodge LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
CMGI, Inc.:
We consent to the incorporation by reference in this Registration Statement
of CMGI, Inc. on Form S-8 with which this consent is being filed, of our
report dated September 24, 1999, except for Note 20, which is as of October
29, 1999, with respect to the consolidated balance sheets of CMGI, Inc. as
of July 31, 1999 and 1998, and the related consolidated statements of
operations, changes in stockholders' equity, and cash flows for each of the
years in the three-year period ended July 31, 1999, which report appears in
the July 31, 1999 annual report on Form 10-K of CMGI, Inc.
/s/ KMPG LLP
KPMG LLP
Boston, Massachusetts
November 15, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the Company's 1986 Stock Option Plan and
1995 Employee Stock Purchase Plan 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
November 15, 1999
<PAGE>
Exhibit 23.3
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 1986 Stock
Option Plan and 1995 Employee Stock Purchase Plan 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 appears in Form 8-K of CMGI, Inc.
filed August 12, 1999.
/s/ SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
November 15, 1999
