As filed with the Securities and Exchange Commission on December 31, 2002
Registration No. ___-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
eUniverse, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 06-1556248
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
6060 CENTER DRIVE, SUITE 300, LOS ANGELES, CALIFORNIA 90045
(Address of Principal Executive Offices)
2002 Employee Stock Purchase Plan
(Full Title of the Plan)
Christopher S. Lipp
Secretary, Senior Vice President and General Counsel
6060 Center Drive, Suite 300
Los Angeles, California 90045
(310) 215-1001
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
Copy to:
Christopher G. Martin, Esq.
Martin, Lucas & Chioffi, LLP
1177 Summer Street
Stamford, Connecticut 06905
(203) 324-4200
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Offering Maximum Aggregate Registration
be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
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2002 Employee Stock
Purchase Plan rights
to purchase
Common Stock 1,250,000 N/A N/A N/A
Common Stock,
$.001 per share
par value 1,250,000 $5.865 $7,331,250.00 $674.48
(1) The Registration Statement also includes an indeterminable number of
additional shares that may become issuable as a result of the anti-dilution
adjustment provisions of the Plan.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, the proposed
maximum offering price per share and the registration fee relating to these
shares of Common Stock being registered have been based on the average of
the bid and asked prices of the Common Stock as reported on the Nasdaq
Small Cap Market as of December 26, 2002.
eUNIVERSE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by eUniverse, Inc., the registrant, are
incorporated as of their respective dates in this Registration Statement by
reference:
A. The registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 2002, as amended.
B. The registrant's Quarterly Reports on Form 10-Q, as amended if
applicable, for the three month periods ended June 30, 2002 and
September 30, 2002.
C. The registrant's Current Report on Form 8-K filed with the
Commission on September 19, 2002.
D. Description of the registrant's Common Stock contained in its
Registration Statement on Form 10 filed with the Commission on
June 14, 1999, as amended (No. 00-26355), including any
amendments or reports filed for the purpose of updating such
description.
All documents filed by the registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the filing
hereof and prior to a filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold are incorporated by reference in this Registration Statement
and are a part hereof from the date of the filing of such documents. Any
statement contained herein or 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 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.
Martin, Lucas & Chioffi, LLP, the law firm which rendered the opinion
as to the legality of registrant's common stock to be issued pursuant to this
registration statement, acts as registrant's corporate counsel.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation 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 the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation 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 the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the 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 the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which the 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 the
person's conduct was unlawful.
In the case of an action or suit by or in the right of the corporation
to procure a judgment in its favor, Section 145 empowers a corporation 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 or suit by reason of the fact
that the person is or was acting in any of the capacities set forth above
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation, except that
indemnification is not permitted in respect of any claim, issue or matter as to
which such person is adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought determines upon application that, despite the adjudication of
liability but in view of all 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 deems proper.
Section 145 further provides that a Delaware corporation is required to
indemnify a director, officer, employee or agent against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with any action, suit or proceeding or in defense of any claim, issue or matter
therein as to which such person has been successful on the merits or otherwise;
that indemnification provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; that
indemnification provided for by Section 145 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such liability
under Section 145. A Delaware corporation may provide indemnification only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
or she has
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met the applicable standard of conduct. Such determination is to be made (i) by
the board of directors by a majority vote of a quorum consisting of directors
who were not party to such action, suit or proceeding, even though less than a
quorum, (ii) if there are no such directors or if such directors so direct, by
independent legal counsel in a written opinion or (iii) by the stockholders.
Article VIII of the registrant's Bylaws provides for indemnification of
directors and officers of the registrant to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as presently or hereafter in
effect.
Additionally, as permitted by the General Corporation Law of the State
of Delaware, Article EIGHTH of the registrant's Certificate of Incorporation
provides that no director of the registrant shall be personally liable to the
registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty of
loyalty to the registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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5.1 Opinion of counsel as to legality of securities being registered.
10.1 2002 Employee Stock Awards Plan.(1)
23.1 Consent of independent auditors.
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-10).
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(1) Incorporated by reference to Appendix G filed with the registrant's Schedule
14A filed with the Commission on October 10, 2002.
Item 9. Undertakings.
(a) 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:
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(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 this
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
this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change
to such information in this Registration Statement;
provided, however, that paragraphs (a)(1))(i) and (a)(1)(ii) shall 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 Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) 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.
(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.
(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 Section 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 this
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.
(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 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 of whether such indemnification by it
is against policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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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, thereunto duly
authorized, in the County of Los Angeles, State of California, on this 31st day
of December, 2002.
eUniverse, Inc.
By: /s/ Christopher S. Lipp
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Christopher S. Lipp
Secretary, Senior Vice President
and General Counsel
The undersigned officers and directors of eUniverse, Inc., a Nevada
corporation, hereby severally constitute and appoint Christopher S. Lipp, Brett
C. Brewer and Brad D. Greenspan, and each of them, our true and lawful attorney
and agent with full power to sign for us and in our names in the capacities
indicated below, any and all pre-effective and post-effective amendments to the
Registration Statement on Form S-8 filed herewith and any additional
registration statements filed under Rule 462(b) to register additional shares,
and to execute any and all other instruments which said attorney and agent
determine to be necessary or advisable, and generally to do all such things in
our names and behalf in our capacities as officers and directors to enable the
registrant to comply with the provisions of the Securities Act of 1933, and any
rules, regulations or requirements of the Securities and Exchange Commission, in
connection with this Registration Statement, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to any and all amendments
to said Registration Statement. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Power of
Attorney as of the dates indicated below. 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.
/s/ Brad D. Greenspan
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Brad D. Greenspan
Chief Executive Officer and Chairman of the Board of Directors
(principal executive officer)
Date: December 31, 2002
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/s/ Joseph L. Varraveto
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Joseph L. Varraveto
Chief Financial Officer
(principal financial officer and principal accounting officer)
Date: December 31, 2002
/s/ Brett C. Brewer
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Brett C. Brewer
President and Director
Date: December 31, 2002
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Daniel L. Mosher
Director
Date: December 31, 2002
/s/ Thomas Gewecke
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Thomas Gewecke
Director
Date: December 31, 2002
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Jeffrey C. Lapin
Director
Date: December 31, 2002
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