As filed with the Securities and Exchange Commission on March 31, 2003
REGISTRATION NO. 333 -
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ENGAGE, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-3281378
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
100 BRICKSTONE SQUARE
ANDOVER, MA 01810
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
JOHN D. BARONE
PRESIDENT AND CHIEF OPERATING OFFICER
ENGAGE, INC.
100 BRICKSTONE SQUARE
ANDOVER, MA 01810
(Name and Address of Agent for Service)
(978) 684-3884
(Telephone Number, including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered (1) Per Share(2) Offering price (2) registration fee
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Common Stock, $.01 par value 2,400,000 $0.10 $240,000 $19.42
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(1) The number of shares of the Registrant's common stock, par value $.01 per
share (the "Common Stock"), stated above consists of the aggregate number
of additional shares not previously registered which may be sold upon the
issuance of shares of Common Stock pursuant to the Engage, Inc. Amended and
Restated 1999 Employee Stock Purchase Plan (the "Plan"). The maximum number
of shares which may be sold upon the issuance of shares of Common Stock
under the Plan is subject to adjustment in accordance with certain
anti-dilution and other provisions of the Plan. Accordingly, pursuant to
Rule 416 under the Securities Act of 1933, as amended (the "Securities
Act"), this Registration Statement covers, in addition to the number of
shares stated above, an indeterminate number of shares which may be subject
to grant or otherwise issuable after the operation of any such
anti-dilution and other provisions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) of the Securities Act and is made on the basis
of the average of the high and low sale prices per share of Common Stock on
the over-the-counter bulletin board as of a date (March 26, 2003) within
five business days prior to the filing of this Registration Statement.
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EXPLANATORY NOTE
In accordance with the instructional Note to Part I of Form S-8, as
promulgated by the Securities and Exchange Commission, the information specified
by Part I of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of Common Stock pursuant to the Engage Inc. Amended and Restated
1999 Employee Stock Purchase Plan (the "Plan"). This Registration Statement on
Form S-8 hereby registers 2,400,000 additional shares of Common Stock pursuant
to the Plan. A Registration Statement on Form S-8 (File No. 333-83245),
registering an aggregate of 1,500,000 shares of Common Stock (adjusted for all
of the Registrant's common stock dividends) under the Plan was filed with the
Securities and Exchange Commission on July 20, 1999.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain 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:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended July 31, 2002 (File No. 000-26671).
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended October 31, 2002 and January 31, 2003 (File Nos. 000-26671).
(c) The Registrant's Current Reports on Form 8-K filed with the
Commission on September 18, 2002 and October 7, 2002 (File Nos. 000-26671).
(d) The description of the Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 000-26671) filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), filed with
the Commission on July 12, 1999, including any amendment or report filed for the
purpose of updating such description.
(e) The description of the Rights under the Registrant's Rights
Agreement (which are currently transferred with the Registrant's Common Stock)
contained in the Registrant's Registration Statement on Form 8-A (File No.
000-26671) filed under the Exchange Act, filed with the Commission on October 7,
2002, including any amendment or report filed for the purpose of updating such
description.
All reports and 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.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1, File No. 333-78015.
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 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; 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 (i) and (ii) do 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 15(d) of the Exchange Act 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.
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(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) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Town of Andover, Massachusetts on this 31st day of March,
2003.
ENGAGE, INC.
By /s/ John D. Barone
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John D. Barone
President and Chief Operating Officer
We, the undersigned officers and directors of Engage, Inc. hereby
severally constitute and appoint John D. Barone and Lisa Pavelka McAlister, 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 Engage, 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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ John D. Barone President and Chief Operating Officer March 31, 2003
--------------------------- (principal executive officer)
John D. Barone
/s/ Lisa Pavelka McAlister Chief Financial Officer and Treasurer March 31, 2003
--------------------------- (principal financial and accounting
Lisa Pavelka McAlister officer)
/s/ Edward A. Bennett Director March 31, 2003
---------------------------
Edward A. Bennett
/s/ Peter J. Rice Director March 31, 2003
---------------------------
Peter J. Rice
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ENGAGE, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
4.1(1) Second Amended and Restated Certificate of Incorporation of
the Registrant
4.2(1) Amendment to the Second Amended and Restated Certificate of
Incorporation of the Registrant
4.3(1) Certificate of Designation of Series A Junior Participating
Preferred Stock.
4.4(2) Amended and Restated By-Laws of the Registrant
4.5(3) Specimen Certificate of Common Stock of the Registrant
4.6(4) Rights Agreement between the Registrant and American Stock
Transfer & Trust Company, as Rights Agent, dated as of October
4, 2002.
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
as to the legality of the shares being registered.
23.1 Consent of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5)
23.2 Consent of KPMG LLP
24 Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement)
99.1(5) Engage, Inc. Amended and Restated 1999 Employee Stock Purchase
Plan
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(1) Incorporated herein by reference from the exhibits filed with the
Registrant's Form 10-K filed with the Securities and Exchange Commission on
November 13, 2002 (File No. 000-26671).
(2) Incorporated herein by reference from the exhibits filed with the
Registrant's Form 10-Q filed with the Securities and Exchange Commission on
December 15, 2000 (File No. 000-26671).
(3) Incorporated herein by reference from the exhibits filed with the
Registrant's Form 10-K filed with the Securities and Exchange Commission on
October 30, 2000 (File No. 000-26671).
(4) Incorporated herein by reference from the exhibits filed with the
Registrant's Registration Statement on Form 8-A (File No. 000-26671) filed
with the Securities and Exchange Commission on October 7, 2002.
(5) Incorporated by herein reference from the exhibits filed with the
Registrant's Form 10-Q filed with the Securities and Exchange Commission on
March 14, 2003 (File No. 000-26671).
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