As filed with the Securities and Exchange Commission on July 31, 2002
File No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EasyLink Services Corporation
(Exact name of registrant as specified in charter)
DELAWARE 13-3787073
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
399 Thornall Street
Edison, NJ 08837
(Address, including zip code, of Principal Executive Offices)
EasyLink Services Corporation 2001 Stock Option Plan
and
EasyLink Services Corporation 2002 Stock Option Plan
(Full title of the plan)
David Ambrosia
Executive Vice President and General Counsel
EasyLink Services Corporation
399 Thornall Street
Edison, NJ 08837
Tel. No. (732) 609-2000
(Name, address, and telephone number,
including area code, of agent for service)
Copies to:
Peter Hunt, Esq.
Pillsbury Winthrop LLP
One Battery Park Plaza
New York, New York 10004
Tel. No. (212) 858-1139
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CALCULATION OF REGISTRATION FEE
========================= ================= ====================== ======================== =================
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered(1) unit(2) price(2) registration fee
========================= ================= ====================== ======================== =================
Class A Common Stock,
par value $0.01 per 1,750,000 $7.80 $2,023,995 $186.20
share
========================= ================= ====================== ======================== =================
(1) This Registration Statement shall be deemed to cover additional
securities to be issued in connection with, or as a result of, stock
splits, stock dividends, stock combinations or similar transactions.
(2) Of the 1,750,000 shares available to be registered hereunder, as of the
most recent practicable date (June 30, 2002), options with respect to
an aggregate of 1,395,425 shares have been issued under the Stock
Option Plans listed above and 354,575 shares remain available for the
grant of future awards under such Plans. The proposed maximum aggregate
offering price listed above has been determined pursuant to Rule 457(h)
of the Securities Act of 1933, as amended, and represents the sum of
(i) the aggregate exercise price of all options granted as of June 30,
2002 under the Stock Option Plans plus (ii) the product of the
remaining shares available under the Stock Option Plans multiplied by a
per share price of $1.025, the average of the high and low prices of
EasyLink Services Corporation Class A Common Stock as reported on
Nasdaq on July 29, 2002.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by EasyLink
Services Corporation (the "Company") with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act") are incorporated by reference herein and shall be deemed to be
a part hereof:
1. The Company's Annual Reports on Form 10-K/A filed with the Commission
on April 19, 2002 for the fiscal year ended December 31, 2001,
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2002, filed with the Commission on May 15, 2002;
3. The Company's Current Report on Form 8-K filed on January 15, 2002, the
Company's Current Report on Form 8-K filed on January 22, 2002 and the
Company's Current Report on Form 8-K filed on May 24, 2002; and
4. The description of the Class A Common Stock of the Company contained in
the "Description of Mail.com Capital Stock" section of the Company's
Registration Statement on Form S-4 (Registration No. 333-94807), filed
with the Commission on January 18, 2000.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act
prior to the filing of a post-effective amendment to this registration statement
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 in this registration statement and made a part hereof from their
respective dates of filing (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents"); provided, however,
that the documents enumerated above or subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act in each year
during which the offering made by this registration statement is in effect that
were filed prior to the fiscal year of the filing with the Commission of the
Company's then most recent Annual Report on Form 10-K shall not be Incorporated
Documents or be incorporated by reference in this registration statement or be a
part hereof from and after the filing of such annual report on Form 10-K.
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.
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Item 4. Description of Securities.
The Class A Common Stock being registered hereunder has been registered
pursuant to Section 12 of the 1934 Act and a description of the Class A Common
Stock is contained in the 1934 Act registration statement that has been filed
with the Commission.
Item 5. Interests of Named Experts and Counsel.
The validity of the Company's Class A Common Stock has been passed upon
by David Ambrosia, Executive Vice President and General Counsel of the Company.
As of the date hereof, Mr. Ambrosia owned 448 shares of Class A Common Stock of
the Company and held options to purchase 61,613 shares of Class A Common Stock
of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of Delaware General Corporation Law empowers the Company 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 such person is or was a
director, officer, employee, or agent of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if 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 corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe that such person's conduct was
unlawful. The termination of any cause of action, suit, or proceeding by
judgment, order, settlement, conviction, or upon plea of nolo contendre or its
equivalent, does not, of itself, create a presumption that such person did not
act in good faith and in a manner that such person 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 reasonable cause to believe that such
person's conduct was unlawful.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Amended and Restated Certificate of Incorporation, as amended
(the "Certificate") provides that a director of the Company will not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for the unlawful payment of dividends or unlawful stock
repurchases under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
The Bylaws of the Company provide (i) the Company shall indemnify
directors, officers and employees for such liabilities in such manner, under
such circumstances and to such extent as permitted by Section 145 of the
Delaware General Corporation Law, as now enacted or hereafter amended and (ii)
the Company shall advance all reasonable costs and expenses (including
attorney's fees) incurred in defending any action, suit or proceeding to all
persons entitled to such indemnification, all in the manner, under the
circumstances and to the extent permitted by Section 145 of the Delaware General
Corporation Law, as now enacted or hereafter amended.
3
The Company has entered into indemnity agreements with each of its
directors and executive officers to give them additional contractual assurances
regarding the scope of the indemnification described above and to provide
additional procedural protections. In addition, the Company has obtained
directors' and officers' insurance providing indemnification for their
directors, officers and key employees for various liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
The Company 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
1933 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 a
prospectus filed with the Commission pursuant to Rule 424(b)
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 clauses (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the 1934
Act that are incorporated by reference in the registration statement.
4
(2) That, for the purpose of determining any liability under the 1933
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 that remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the 1933 Act,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the 1934 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.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 1933 Act and
will be governed by the final adjudication of such issue.
--------------------------
5
SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company 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 Edison and State of New Jersey, on the 31st day of July, 2002.
EasyLink Services Corporation
By: /s/ Thomas Murawski
---------------------------------------
Thomas Murawski
Chief Executive Officer
6
POWER OF ATTORNEY
Each of the undersigned directors and officers of the Company,
individually as such director and/or officer, hereby makes, constitutes and
appoints Thomas Murawski and David Ambrosia, and each of them, singly or
jointly, with full power of substitution, as his true and lawful
attorney-in-fact and agent to execute in his name, place and stead, in any and
all capacities, and to file with the Commission, this registration statement and
any and all amendments, including post-effective amendments, to this
registration statement, which amendment may make such changes in the
registration statement as the registrant deems appropriate hereby ratifying and
confirming all that each of said attorneys-in-fact, or his, her or their
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the 1933 Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
NAME TITLE DATE
---- ----- -----
/s/ Thomas Murawski Chief Executive Officer and Director July 31, 2002
------------------------ (principal executive officer)
(Thomas Murawski)
/s/ Gerald Gorman Chairman and Director July 31, 2002
------------------------
(Gerald Gorman)
/s/ Debra McClister Executive Vice President and Chief July 31, 2002
------------------------- Financial Officer (principal
(Debra McClister) accounting and financial officer)
/s/ George Abi Zeid Director July 31, 2002
------------------------
(George Abi Zeid)
/s/ William Donaldson Director July 31, 2002
------------------------
(William Donaldson)
/s/ Stephen Duff Director July 31, 2002
------------------------
(Stephen Duff)
/s/ Stephen Ketchum Director July 31, 2002
------------------------
(Stephen Ketchum)
/s/ Jack Kuehler Director July 31, 2002
------------------------
(Jack Kuehler)
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EXHIBIT INDEX
Exhibit No. Description
----------- ------------
4.1 Amended and Restated Certificate of Incorporation of EasyLink
Services Corporation (incorporated by reference to Exhibit 4.1
of the Company's Registration Statement on Form S-8 filed June
19, 2000).
4.2 Certificate of Amendment of Amended and Restated Certificate
of Incorporation of EasyLink Services Corporation
(incorporated by reference to Exhibit 4.2 of the Company's
Registration Statement on Form S-8 filed June 19, 2000).
4.3 Certificate of Ownership and Merger (incorporated herein by
reference to Exhibit 3.3 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2000).
4.4 Certificate of Amendment of Amended and Restated Certificate
of Incorporation, as amended, of EasyLink Services Corporation
(incorporated herein by reference to Exhibit 3(i)(a) to the
Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2001).
4.5 Certificate of Amendment of Amended and Restated Certificate
of Incorporation, as amended, of EasyLink Services Corporation
(incorporated by reference to Exhibit 4.1 of the Company's
Current Report on Form 8-K filed January 22, 2002).
4.6 Bylaws of EasyLink Services Corporation (incorporated by
reference to Exhibit 4.3 to the Company's Registration
Statement on Form S-8 filed June 19, 2000).
4.7 Specimen common stock certificate of EasyLink Services
Corporation (incorporated herein by reference to Exhibit 4.1
of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2001).
5 Opinion of the Company's General Counsel, David Ambrosia,
Esq., as to the securities being registered.
23.1 Consent of David Ambrosia, Esq. (contained in Exhibit No. 5).
23.2 Consent of KPMG LLP.
24 Power of attorney (set forth on signature page hereof).
99.1 EasyLink Services Corporation 2001 Stock Option Plan
(incorporated herein by reference to Appendix B to the
Company's Proxy Statement on Schedule 14A, filed with the
Securities and Exchange Commission on April 27, 2001).
99.2 EasyLink Services Corporation 2002 Stock Option Plan
(incorporated herein by reference to Appendix A to the
Company's Proxy Statement on Schedule 14A, filed with the
Securities and Exchange Commission on April 23, 2002).