As filed with the Securities and Exchange Commission on May 25, 1999
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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JUNO ONLINE SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 133914547
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1540 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip Code)
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JUNO ONLINE SERVICES, INC.
1999 STOCK INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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Charles E. Ardai
President and Chief Executive Officer
Juno Online Services, Inc.
1540 Broadway
New York, New York 10036
(Name and address of agent for service)
(212) 597-9000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ---
1999 Stock Incentive Plan
Common Stock, $0.01 par value 5,768,611 shares $14.00 $80,760,554 $22,452
1999 Employee Stock Purchase Plan
Common Stock, $0.01 par value 555,556 shares $14.00 $7,777,784 $2,163
Aggregate Registration Fee $24,615
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Juno Online Services, Inc.
1999 Stock Incentive Plan and 1999 Employee Stock Purchase Plan by reason
of any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration
which results in an increase in the number of the outstanding shares of
Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the highest proposed
selling price per share of Registrant's Common Stock.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
Juno Online Services, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Registration Statement No. 333-73449 on Form S-1
filed with the Commission on March 5, 1999 and as amended by
Amendment No. 1 to the S-1 filed with the Commission on April 23,
1999, Amendment No. 2 to the S-1 filed with the commission on May 7,
1999 and Amendment No. 3 to the S-1 filed with the Commission on May
21, 1999;
(b) The Registrant's prospectus filed with the Commission pursuant to
Rule 424(a) promulgated under the Securities Act of 1933, as amended
(the "1933 Act"), in connection with the Registrant's Registration
Statement No. 333-73449, in which there is set forth the audited
financial statements for the Registrant's fiscal year ended December
31, 1998; and
(c) The Registrant's Registration Statement No. 000-26009 on Form 8-A
filed with the Commission on May 10, 1999, pursuant to Section 12(b)
of the Securities Exchange Act of 1934 (the "Exchange Act"), in
which there is described the terms, rights, and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which de-registers all securities
then remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a 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 which 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
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
Item 6. Indemnification of Directors and Officers
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The Registrant's Amended and Restated Certificate of Incorporation
(the "Certificate") provides that the liability of a director of the Registrant
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law (the "DGCL"). Under the DGCL, the directors have a
fiduciary duty to the Registrant which is not eliminated by this provision of
the Certificate and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available. In
addition, each director will continue to be subject to liability under the DGCL
for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the
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director, and for payment of dividends or approval of stock repurchases or
redemptions that are prohibited by DGCL. This provision also does not affect the
directors' responsibilities under any other laws, such as the Federal securities
laws or state or Federal environmental laws. The Registrant has obtained
liability insurance for its officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its
directors and officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers, provided that
this provisions hall not eliminate or limit the liability of a director: (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest extent
permitted by Section 102(b)(7) of the DGCL and provides that the Registrant
shall fully 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) by reason of the fact
that such person is or was a director or officer of the Registrant, or is or was
serving at the request of the Registrant as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan 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.
At present, there is no pending litigation or proceeding involving
any director, officer, employee or agent as to which indemnification will be
required or permitted under the Certificate. The Registrant is not aware of any
threatened litigation or proceeding that may result in a claim for such
indemnification.
In addition, the Registrant has entered into indemnification
agreements with each of its directors and officers, pursuant to which the
Registrant has agreed to indemnify such directors and officers to the fullest
extent permitted by the DGCL.
Item 7. Exemption from Registration Claimed
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Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-26009 on
Form 8-A, together with the exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(c) to this
Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1999 Stock Incentive Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Corporation Transaction/Change in
Control).
99.5 Form of Addendum to Stock Option Agreement (Limited Stock
Appreciation Right).
99.6 Form of Stock Issuance Agreement.
99.7 Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Corporation Transaction/Change in
Control).
99.8 Form of Notice of Grant of Automatic Stock Option (Initial).
99.9 Form of Notice of Grant of Automatic Stock Option (Annual).
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99.10 Form of Automatic Stock Option Agreement.
99.11 1999 Employee Stock Purchase Plan.
99.12 Form of Enrollment/Change Form.
99.13 Form of Stock Purchase Agreement.
Item 9. Undertakings
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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: (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 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 and (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 clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (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; and (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 Registrant's 1999
Stock Incentive Plan and 1999 Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes 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 into this 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.
C. Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant 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
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 1933 Act 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, 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 New York, State of New York on this
25th day of May, 1999.
Juno Online Services, Inc.
By: /s/ Charles E. Ardai
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Charles E. Ardai
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That each person whose signature appears below constitutes and
appoints Charles E. Ardai, Richard Buchband and Richard M. Eaton, Jr., and each
of them, as such person's true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for such person and in such
person's 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 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 such person 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 or her
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
Signature Title Date
- ---------- ------- -------
/s/ Charles E. Ardai
- --------------------- President, Chief Executive Officer May 25, 1999
Charles E. Ardai and Director (Principal Executive Officer)
/s/ Richard M. Eaton
- --------------------- Chief Financial Officer and May 25, 1999
Richard M. Eaton, Jr. Treasurer (Principal Financial
and Accounting Officer)
/s/ David E. Shaw
- --------------------- Director May 25, 1999
David E. Shaw
/s/ Edward J. Ryeom
- --------------------- Director May 25, 1999
Edward J. Ryeom
/s/ Louis K. Salkind
- --------------------- Director May 25, 1999
Louis K. Salkind
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EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-26009 on
Form 8-A, together with the exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(c) to this
Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1999 Stock Incentive Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Corporation Transaction/Change in
Control).
99.5 Form of Addendum to Stock Option Agreement (Limited Stock
Appreciation Right).
99.6 Form of Stock Issuance Agreement.
99.7 Form of Addendum to Stock Issuance Agreement (Involuntary
Termination Following Corporation Transaction/Change in
Control).
99.8 Form of Notice of Grant of Automatic Stock Option (Initial).
99.9 Form of Notice of Grant of Automatic Stock Option (Annual).
99.10 Form of Automatic Stock Option Agreement.
99.11 1999 Employee Stock Purchase Plan.
99.12 Form of Enrollment/Change Form.
99.13 Form of Stock Purchase Agreement.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
JUNO ONLINE SERVICES, INC.