As filed with the Securities and Exchange Commission on August 7, 2003
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.)
33 Knightsbridge Road
Piscataway, NJ 08854
(Address, including zip code, of Principal Executive Offices)
EasyLink Services Corporation 2003 Stock Option Plan
(Full title of the plan)
David Ambrosia
Executive Vice President and General Counsel
EasyLink Services Corporation
33 Knightsbridge Road
Piscataway, NJ 08854
Tel. No. (732) 652-3500
(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 2,500,000 $1.61 $4,025,000 $325.63
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) 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 product of the shares available under the
Stock Option Plan multiplied by a per share price of $1.61, the average
of the high and low prices of EasyLink Services Corporation Class A
Common Stock as reported on Nasdaq on August 5, 2003.
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 Report on Form 10-K for the fiscal
year ended December 31, 2002 filed with the Commission on March 31,
2003, as amended by Form 10-K/A filed with the Commission on April 30,
2003 and Form 10-K/A filed with the Commission on May 12, 2003;
2. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2003, filed with the Commission on May 15,
2003;
3. The Company's Current Reports on Form 8-K filed with the
Commission on January 28, 2003, March 3, 2003, March 19, 2003, April
23, 2003, May 2, 2003, and June 27, 2003; 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, other than any portion of a Current Report
on Form 8-K reporting information under Items 9 and/or 12 of that Form (and any
related exhibits), 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.
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 as of July 31, 2003 held options to purchase 133,606 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.
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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.
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 its 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;
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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.
(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.
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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
Piscataway, New Jersey, on the 7th day of August, 2003.
EasyLink Services Corporation
By: /s/ Thomas Murawski
--------------------------------------
Thomas Murawski
Chief Executive Officer and President
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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, Debra McClister 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 August 7, 2003
--------------------- (principal executive officer)
(Thomas Murawski)
/s/ Gerald Gorman Chairman and Director August 7, 2003
---------------------
(Gerald Gorman
/s/ Debra McClister Executive Vice President and Chief August 7, 2003
---------------------- Financial Officer (principal
(Debra McClister) accounting and financial officer)
/s/ George Abi Zeid Director August 7, 2003
----------------------
(George Abi Zeid)
/s/ Robert Casale Director August 7, 2003
---------------------
(Robert Casale)
/s/ Stephen Duff Director August 7, 2003
---------------------
(Stephen Duff)
/s/ George Knapp Director August 7, 2003
---------------------
(George Knapp)
/s/ Dennis Raney Director August 7, 2003
---------------------
(Dennis Raney)
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EXHIBIT INDEX
Exhibit No. Description
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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 with the Securities and Exchange Commission on
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 with the Securities
and Exchange Commission on 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 filed with the Securities and
Exchange Commission).
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 filed with the
Securities and Exchange Commission).
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 with the Securities and Exchange Commission
January 22, 2002).
4.6 Bylaws of EasyLink Services Corporation (incorporated
by reference to Exhibit 3(ii) to the Company's
Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission on May 15, 2003).
4.7 Specimen Class A 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 filed with the
Securities and Exchange Commission on April 1, 2002).
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).
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23.2 Consent of KPMG LLP.
24 Power of attorney (set forth on signature page hereof).
99.1 EasyLink Services Corporation 2003 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 July 1, 2003).
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