As filed with the Securities and Exchange Commission on November 6, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Millennial Media, Inc.
(Exact name of Registrant as specified in its charter)
Delaware |
| 20-5087192 |
(State or other jurisdiction of Incorporation or organization) |
| (I.R.S. Employer Identification No.) |
2400 Boston Street, Suite 201
Baltimore, MD 21224
(Address of principal executive offices) (Zip code)
Amended and Restated Jumptap, Inc. 2005 Stock Option and Grant Plan, as amended
(Full title of the plan)
Paul J. Palmieri
President and Chief Executive Officer
Millennial Media, Inc.
2400 Boston Street, Suite 201
Baltimore, MD 21224
(410) 522-8705
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
Copies to:
Brent B. Siler, Esq. |
| Ho Shin, Esq. |
Brian F. Leaf, Esq. |
| General Counsel and Chief Privacy Officer |
Cooley LLP |
| Millennial Media, Inc. |
One Freedom Square, Reston Town Center |
| 2400 Boston Street, Suite 201 |
11951 Freedom Drive |
| Baltimore, MD 21224 |
Reston, VA 20190-5656 |
| Tel: (410) 522-8705 |
Tel: (703) 456-8000 |
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Fax: (703) 456-8100 |
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | o |
| Accelerated filer o |
Non-accelerated filer | x (Do not check if a smaller reporting company) |
| Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of Securities |
| Amount to be |
| Proposed |
| Proposed |
| Amount of |
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Common Stock, par value $0.001 per share |
| 861,584 shares (3) |
| $ | 5.12 |
| $ | 4,411,310.08 |
| $ | 568.18 |
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(1) Pursuant to the Agreement and Plan of Reorganization, dated as of August 13, 2013 and amended as of November 1, 2013, by and among Millennial Media, Inc. (the “Registrant”), Polo Corp. (a subsidiary of the Registrant), Jumptap, Inc. and Shareholder Representative Services LLC, as the stockholders’ representative (the “Acquisition Agreement”), the Registrant assumed certain of the outstanding options to purchase shares of common stock of Jumptap, Inc. under the Amended and Restated Jumptap, Inc. 2005 Stock Option and Grant Plan, as amended (the “Plan”), and such options become exercisable to purchase shares of the Registrant’s common stock, par value $0.001 (the “Common Stock”), with appropriate adjustments to the number of shares and exercise price of each assumed option in accordance with the Acquisition Agreement.
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon the weighted average exercise price for outstanding options granted under the Plan.
(3) Represents the number of shares of the Registrant’s Common Stock subject to outstanding options under the Plan as of November 6, 2013.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The document(s) containing the information specified in Item 1 will be sent or given to employees as specified in Rule 428(b)(1) and are not required to be filed as part of this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2 will be sent or given to employees as specified in Rule 428(b)(1) and are not required to be filed as part of this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Millennial Media, Inc. (the “Registrant”) with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012, filed on February 20, 2013, filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(b) The Registrant’s Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2013, filed on May 9, 2013, and for the quarterly period ended June 30, 2013, filed on August 13, 2013, as amended by Amendment No. 1 on Form 10-Q/A filed on August 19, 2013.
(c) The Registrant’s Current Reports on Form 8-K filed on March 1, 2013, April 5, 2013 (as amended on June 14, 2013), April 30, 2013, June 13, 2013, August 13, 2013, August 14, 2013, August 19, 2013, September 10, 2013, October 18, 2013 and November 6, 2013.
(d) The Registrant’s definitive proxy statement on Schedule 14A filed on October 2, 2013.
(e) The description of the Registrant’s Common Stock which is contained in the Registrant’s Registration Statement on Form 8-A filed on March 27, 2012 (File No. 001-35478) under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
(f) All documents, reports and definitive proxy or information statements filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of 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 subsequently filed document that also is deemed to be incorporated by reference herein 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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is incorporated under the laws of the State of Delaware. Section 102 of the Delaware General Corporation Law, or DGCL, permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he is or is threatened to be made a party by reason of such position, 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 corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to 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 other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
As permitted by the DGCL, the Registrant’s amended and restated certificate of incorporation and bylaws provide that: (i) the Registrant is required to indemnify its directors to the fullest extent permitted by the DGCL; (ii) the Registrant may, in its discretion, indemnify its officers, employees and agents as set forth in the DGCL; (iii) the Registrant is required, upon satisfaction of certain conditions, to advance all expenses incurred by its directors in connection with certain legal proceedings; (iv) the rights conferred in the bylaws are not exclusive; and (v) the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents.
The Registrant has entered into agreements with its directors and certain of its officers that require the Registrant to indemnify them against expenses, judgments, fines, settlements and other amounts that any such person becomes legally obligated to pay (including with respect to a derivative action) in connection with any proceeding, whether actual or threatened, to which such person may be made a party by reason of the fact that such person is or was a director or officer of the Registrant or any of its affiliates, provided such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the Registrant’s best interests. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. At present, no litigation or proceeding is pending that involves any of the Registrant’s directors or officers regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification.
The Registrant maintains a directors’ and officers’ liability insurance policy. The policy insures directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburses the Registrant for those losses for which it has lawfully indemnified the directors and officers. The policy contains various exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
Exhibit |
| Description | |
4.1(1) |
| Amended and Restated Certificate of Incorporation of the Registrant. | |
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4.2(2) |
| Amended and Restated Bylaws of the Registrant. | |
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4.3(3) |
| Specimen Common Stock Certificate. | |
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| 4.4 |
| Amended and Restated Jumptap, Inc. 2005 Stock Option and Grant Plan, as amended. |
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| 5.1 |
| Opinion of Cooley LLP. |
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| 23.1 |
| Consent of Cooley LLP (included in Exhibit 5.1). |
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| 23.2 |
| Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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| 23.3 |
| Consent of Deloitte & Touche LLP, Independent Auditors. |
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| 24.1 |
| Power of Attorney (included on the signature page of this Form S-8). |
(1) Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-35478), filed with the Commission on April 3, 2012, and incorporated by reference herein.
(2) Previously filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 001-35478), filed with the Commission on April 3, 2012, and incorporated by reference herein.
(3) Previously filed as Exhibit 4.2 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-178909), filed with the Commission on March 15, 2012, and incorporated by reference herein.
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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 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 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 paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 incorporated by reference in the registration statement.
(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
(d) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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 Section 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 offered herein, 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 Securities and Exchange 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, as amended, 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 Baltimore, State of Maryland, on this 6th day of November, 2013.
| MILLENNIAL MEDIA, INC. | |
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| By: | /s/ Paul J. Palmieri |
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| Paul J. Palmieri |
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| President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael B. Avon, Ho S. Shin and Brent B. Siler, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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| Date |
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/s/ Paul J. Palmieri |
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Paul J. Palmieri |
| President, Chief Executive Officer and Director |
| November 6, 2013 |
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| (Principal Executive Officer) |
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/s/ Michael B. Avon |
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Michael B. Avon |
| Executive Vice President and Chief Financial |
| November 6, 2013 |
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| Officer |
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| (Principal Financial Officer) |
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/s/ Andrew J. Jeanneret |
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Andrew J. Jeanneret |
| Senior Vice President and Chief Accounting |
| November 6, 2013 |
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| Officer |
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| (Principal Accounting Officer) |
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/s/ Robert P. Goodman |
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Robert P. Goodman |
| Director |
| November 6, 2013 |
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/s/ Patrick J. Kerins |
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Patrick J. Kerins |
| Director |
| November 6, 2013 |
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/s/ Alan MacIntosh |
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Alan MacIntosh |
| Director |
| November 6, 2013 |
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/s/ John D. Markley, Jr. |
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John D. Markley, Jr. |
| Director |
| November 6, 2013 |
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/s/ Wenda Harris Millard |
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Wenda Harris Millard |
| Director |
| November 6, 2013 |
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/s/ James A. Tholen |
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James A. Tholen |
| Director |
| November 6, 2013 |
EXHIBIT INDEX
Exhibit |
| Description | |
4.1(1) |
| Amended and Restated Certificate of Incorporation of the Registrant. | |
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4.2(2) |
| Amended and Restated Bylaws of the Registrant. | |
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4.3(3) |
| Specimen Common Stock Certificate. | |
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| 4.4 |
| Amended and Restated Jumptap, Inc. 2005 Stock Option and Grant Plan, as amended. |
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| 5.1 |
| Opinion of Cooley LLP. |
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| 23.1 |
| Consent of Cooley LLP (included in Exhibit 5.1). |
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| 23.2 |
| Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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| 23.3 |
| Consent of Deloitte & Touche LLP, Independent Auditors. |
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| 24.1 |
| Power of Attorney (included on the signature page of this Form S-8). |
(1) Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (File No. 001-35478), filed with the Commission on April 3, 2012, and incorporated by reference herein.
(2) Previously filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 001-35478), filed with the Commission on April 3, 2012, and incorporated by reference herein.
(3) Previously filed as Exhibit 4.2 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-178909), filed with the Commission on March 15, 2012, and incorporated by reference herein.
