As filed with the Securities and Exchange Commission on June 26, 2006
UNITED STATES
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 2005 STOCK AND INCENTIVE PLAN
EASYLINK SERVICES CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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 Shaw Pittman LLP
1540 Broadway
New York, New York 10036
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 5,000,000 $0.625 $3,125,000 $334.38
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
2005 Stock and Incentive Plan and the Employee Stock Purchase Plan
multiplied by a per share price of $0.625, the average of the high and
low prices of EasyLink Services Corporation Class A Common Stock as
reported on Nasdaq on June 20, 2006.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*The information specified in Part I of the instructions to the
Registration Statement on Form S-8 will be sent or given to participants in the
Plan as required by Rule 428(b)(1) of the rules promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). Information required by Part I
to be contained in the Section 10(a) prospectus is omitted from this
registration statement in accordance with Rule 428(b) under the Securities Act
and the Note to Part I of Form S-8.
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 "Exchange 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, 2005 filed with the Commission on March 31, 2006;
2. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2006, filed with the Commission on May 15,
2006;
3. The Company's Current Reports on Form 8-K or Form 8-K/A filed
with the Commission on February 7, 2006; February 28, 2006 (other than
Item 2.01, Exhibit 99.1 and Item 9.01 to the extent relating to Exhibit
99.1); April 19, 2006; April 24, 2006; April 25, 2006 (other than Item
2.01, Exhibit 99.1 and Item 9.01 to the extent relating to Exhibit
99.1); April 28, 2006; May 1, 2006; and June 22, 2006
4. The Company's Definitive Proxy Statement on Schedule 14A for
its 2006 Annual Meeting of Stockholders filed on May 1, 2006; and
5. 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 Exchange
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 a Current Report on
Form 8-K or any portion thereof (and any related exhibits) that has been
"furnished" but not "filed" with the Commission, 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 Exchange 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.
Not Applicable.
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 May 31, 2006, Mr. Ambrosia beneficially owned 287,734 shares of Class A
Common Stock of the Company (including 24,641 shares of Class A common stock
held directly, 24,477 shares of Class A common stock held for his account by the
Company's 401(k) Savings Plan and 238,616 shares issuable upon the exercise of
options vested as of May 31, 2006 or within 60 days thereafter).
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a Delaware corporation may indemnify its directors and officers
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement that are actually and reasonably incurred by such officers and
directors in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, if, in connection with the matters in
issue, they acted in good faith and in a manner they reasonably believed by them
to be in, or not opposed to, the best interests of the corporation, and, with
respect to any criminal suit or proceeding, they had no reasonable cause to
believe their conduct was unlawful. However, if the action is brought
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by or in the right of the corporation, such indemnification may only be for
expenses and may only be provided as long as, in addition to the foregoing, it
is not made with respect to any claim, issue or matter as to which such officer
or director has been found liable to the corporation, unless such
indemnification is approved by the Delaware Court of Chancery or the court in
which the matter was brought. Section 145 permits a Delaware corporation to
grant its directors and officers additional rights of indemnification through
bylaw provisions and otherwise and to purchase indemnity insurance on behalf of
its directors and officers.
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.
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:
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(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 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;
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
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.
(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
Securities Act, each filing of the Company's annual report pursuant to Section
13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities
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 Securities 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
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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 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 26th day of June, 2006.
EASYLINK SERVICES CORPORATION
By: /s/Thomas Murawski
------------------
Thomas Murawski
Chairman, President and Chief Executive Officer
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, Michael Doyle, 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 Securities 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 Chairman, President, Chief Executive June 26, 2006
--------------------------------- Officer and Director (principal
(Thomas Murawski) executive officer)
/s/Michael Doyle Vice President and Chief Financial June 26, 2006
--------------------------------- Officer (principal accounting and
(Michael Doyle) financial officer)
/s/Robert Casale Director June 22, 2006
---------------------------------
(Robert Casale)
/s/Stephen Duff Director June 26, 2006
---------------------------------
(Stephen Duff)
/s/Peter Holzer Director June 22, 2006
---------------------------------
(Peter Holzer)
/s/George Knapp Director June 21, 2006
---------------------------------
(George Knapp)
/s/John Petrillo Director June 22, 2006
---------------------------------
(John Petrillo)
/s/Dennis Raney Director June 24, 2006
---------------------------------
(Dennis Raney)
/s/Eric Zahler Director June 22, 2006
---------------------------------
(Eric Zahler)
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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 10.3 of the Company's Current Report on
Form 8-K filed April 5, 2005).
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 Grant Thornton LLP.
23.3 Consent of KPMG LLP
24 Power of attorney (set forth on signature page hereof).
99.1 EasyLink Services Corporation 2005 Stock and Incentive 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 May 16, 2005).
99.2 Amendment dated June 20, 2006 to EasyLink Services
Corporation 2005 Stock and Incentive Plan (incorporated by
reference to Exhibit 10.1 to Current Report on Form 8-K
filed with the Securities and Exchange Commission on June
22, 2006).
99.3 EasyLink Services Corporation Employee Stock Purchase 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 May 1, 2006).
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