As filed with the Securities and Exchange Commission on March 31, 2000
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)
BDS BUSINESS CENTER, INC. STOCK OPTION AND PERFORMANCE INCENTIVE PLAN
BDS BUSINESS CENTER, INC. 1999 STOCK OPTION AND INCENTIVE PLAN
(Full Titles of the Plans)
DAVID S. WETHERELL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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)
Copies to:
WILLIAM WILLIAMS II, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
CMGI, INC.
100 BRICKSTONE SQUARE
ANDOVER, MASSACHUSETTS 01810
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Price Offering Fee
Registered Per Share Price
- --------------------------------------------------------------------------------------------------
Common Stock, $.01 416,553 shares $0.70 $291,209.28 $76.88
par value (1) 1,088,347 shares $3.76 $4,089,600.26 $1,079.65
245,897 shares $17.07 $4,197,339.79 $1,108.10
15,004 shares $30.59 $458,894.76 $121.15
63,950 shares $99.04 $6,333,474.68 $1,672.04
Total: 1,829,751 shares $4,057.82
- ------------------------------------------------------------- --------------------------------------
(1) All of such shares are issuable upon the exercise of outstanding
options to purchase the number of shares at the exercise price listed
above. Pursuant to Rule 457(h)(1), the aggregate offering price and
the fee have been computed upon the basis of the price at which the
options may be exercised.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such documents are not being filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. Such
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of 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) Annual Report on Form 10-K for the fiscal year ended
July 31, 1999.
(2) Quarterly Reports on Form 10-Q for the quarters
ended October 31, 1999 and January 31, 2000.
(3) Current Reports on Form 8-K filed on August 12, 1999
(as amended on November 1, 1999 and further amended
on November 17, 1999); September 2, 1999; September
3, 1999; September 27, 1999; October 1, 1999;
December 17, 1999; January 24, 2000; February 22,
2000; March 3, 2000; March 9, 2000; and March 10,
2000.
(4) The description of Common Stock contained in the
Registration Statement on Form 8-A filed on January
11, 1994.
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 Skadden, Arps, Slate, Meagher & Flom
LLP, Boston, Massachusetts.
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.
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. 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 and 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; 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 (a) (1) (i) and (a)
(1) (ii) do not apply if this 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 Section 15(d) of the
Securities Exchange Act of 1934 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 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 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.
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,
hereunto duly authorized, in the Town of Andover, Commonwealth of
Massachusetts on this 31st day of March, 2000.
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.
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.
Signature Title Date
--------- ----- -----
/s/ David S. Wetherell Chairman of the Board of March 31, 2000
- ------------------------------------- Directors, President and Chief
David S. Wetherell Executive Officer (Principal
Executive Officer)
/s/ Andrew J. Hajducky, III Executive Vice President, March 31, 2000
- ------------------------------------- Chief Financial Officer and
Andrew J. Hajducky, III Treasurer (Principal Financial
and Accounting Officer)
/s/ William Berkman Director March 31, 2000
- -------------------------------------
William Berkman
/s/ Craig Goldman Director March 31, 2000
- -------------------------------------
Craig Goldman
/s/ Avram Miller Director March 31, 2000
- -------------------------------------
Avram Miller
/s/ Robert Ranalli Director March 31, 2000
- -------------------------------------
Robert Ranalli
/s/ William D. Strecker Director March 31, 2000
- -------------------------------------
William D. Strecker
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 Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom 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 PricewaterhouseCoopers LLP, independent
accountants
23.5 Consent of Singer Lewak Greenbaum & Goldstein LLP,
independent accountants
23.6 Consent of Deloitte & Touche LLP, independent
accoountants
23.7 Consent of Arthur Andersen LLP, independent accountants
24 Power of Attorney (included in the signature pages of
this Registration Statement)
EXHIBIT 5
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
One Beacon Street
Boston, Massachusetts 02108-3194
Telephone No.: (617) 573-4800
Facsimile No.: (617) 573-4822
March 31, 2000
CMGI, Inc.
100 Brickstone Square
Andover, Massachusetts 01810
Re: BDS Business Center, Inc. Stock Option and Performance Incentive Plan
BDS Business Center, Inc. 1999 Stock Option and Incentive Plan
Ladies and Gentlemen:
We have acted as special counsel to CMGI, Inc., a
Delaware corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended (the "Act"), of an aggregate
of 1,829,751 shares of the Company's common stock, par value $0.01 per
share ("Common Stock"), issuable pursuant to the BDS Business Center, Inc.
Stock Option and Performance Incentive Plan and the BDS Business Center,
Inc. 1999 Stock Option and Incentive Plan (together, the "Plans"). The
Plans provide for the grant of stock options ("Options") to officers and
employees of the Company.
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined
originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Registration Statement on Form S-8, as filed with the Securities
and Exchange Commission (the "Commission") on the date hereof under the Act
(the "Registration Statement"); (ii) a specimen certificate representing
the Common Stock; (iii) the Restated Certificate of Incorporation of the
Company, as presently in effect; (iv) the Amended and Restated By-Laws of
the Company, as presently in effect; (v) certain resolutions of the Board
of Directors of the Company relating to the Plans; and (vi) the Plans. We
have also examined originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company and such other
documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of
all natural persons, 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 certified, conformed or
photostatic copies and the authenticity of the originals of such copies. In
making our examination of documents executed or to be executed by parties
other than the Company, we have assumed that such parties had or will have
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or other, and execution and delivery by such parties of
such documents and the validity and binding effect thereof on such parties.
As to any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others. We have assumed that each award agreement setting forth the terms
of each grant of options or other awards under the Plans will be consistent
with the Plans and will be duly authorized and validly executed and
delivered by the parties thereto, and that the consideration received by
the Company for the Common Stock delivered pursuant to the Plans will be in
an amount at least equal to the par value of such Common Stock.
Members of our firm are admitted to the bar in the State
of Delaware, and we do not express any opinion as to the laws of any other
jurisdiction.
Based upon and subject to the foregoing, we are of the
opinion that the shares of Common Stock have been duly authorized for
issuance by the Company and, when such shares of Common Stock are issued
upon exercise of Options in accordance with the terms of the Plans, such
shares of Common Stock will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. We also consent to
the reference to our firm under the caption "Interests of Named Experts and
Counsel" in the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
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
March 31, 2000
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated as follows:
o June 29, 1999 relating to the financial statements of AltaVista,
o April 2, 1999 relating to the financial statements of Zip2
Corporation, and
o June 9, 1999, except as to Note 12, which is as of July 2, 1999,
relating to the financial statements of Shopping.com
which appear in the Current Report on Form 8-K of CMGI, Inc. dated June 29,
1999.
/s/ PricewaterhouseCoopers LLP
---------------------------------
PricewaterhouseCoopers LLP
San Jose, California
March 31, 2000
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 25, 2000 relating to the
financial statements of Tallan, Inc., which appears in the Current Report
on Form 8-K of CMGI, Inc. dated March 9, 2000.
/s/ PricewaterhouseCoopers LLP
------------------------------------
PricewaterhouseCoopers LLP
Hartford, Connecticut
March 31, 2000
EXHIBIT 23.5
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 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 Form
8-K of CMGI, Inc. dated June 29, 1999.
/s/ SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
---------------------------------------------
SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
March 31, 2000
Exhibit 23.6
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of CMGI, Inc. on Form S-8 of our report dated October 18, 1999,
accompanying the consolidated financial statements of Flycast
Communications Corporation and subsidiary as of December 31, 1997 and
1998, and for each of the three years in the period ended December 31,
1998, included 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
March 31, 2000
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent
to the incorporation by reference in this Registration Statement on Form
S-8 of our report on yesmail.com, inc. dated February 4, 2000, included
in CMGI, Inc.'s Form 8K and to all references to our Firm included in
this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------------
ARTHUR ANDERSEN LLP
Chicago, Illinois
March 30, 2000
