United Online Inc - Securities Registration: Employee Benefit Plan (S-8)
February 20 2008 - 4:37PM
Edgar (US Regulatory)
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As filed with the Securities and Exchange Commission on February 20, 2008
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
UNITED ONLINE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction
of incorporation or organization)
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77-0575839
(IRS Employer Identification No.)
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21301 Burbank Boulevard, Woodland Hills, California 91367
(Address of principal executive offices) (Zip Code)
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UNITED ONLINE, INC. 2001 STOCK INCENTIVE PLAN
UNITED ONLINE, INC. 2001 SUPPLEMENTAL STOCK INCENTIVE PLAN
UNITED ONLINE, INC. 2001 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
MARK R. GOLDSTON
Chairman, President and Chief Executive Officer
United Online, Inc.
21301 Burbank Boulevard
Woodland Hills, California 91367
(Name and address of agent for service)
(818) 287-3000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount
to be
Registered(1)(3)
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Proposed
Maximum
Offering Price
per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common stock, $0.0001 par value, to be issued pursuant to the United Online, Inc. 2001 Stock Incentive Plan (3)
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1,950,000 shares
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$11.24(2)
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$21,918,000(2)
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$861.38
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Common stock, $0.0001 par value, to be issued pursuant to the United Online, Inc. 2001 Supplemental Stock Incentive Plan (3)
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214,200 shares
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$11.24(2)
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$2,407,608(2)
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$94.62
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Common stock, $0.0001 par value, to be issued pursuant to the United Online, Inc. 2001 Employee Stock Purchase Plan (3)
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975,000 shares
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$11.24(2)
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$10,959,000(2)
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$430.69
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Total
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3,139,200 shares
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$35,284,608(2)
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$1,386.69
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(1)
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Represents
additional shares issuable under the United Online, Inc. 2001 Stock Incentive Plan, the United Online, Inc. 2001 Supplemental Stock Incentive Plan and the
United Online, Inc. 2001 Employee Stock Purchase Plan (collectively, the "Plans") by reason of the automatic share increase provisions of each of the Plans. This Registration Statement shall
also cover any additional shares of Common Stock attributable to these registered shares which become issuable under the Plans 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 the Registrant's Common Stock.
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(2)
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Calculated
solely for the purpose of this offering under Rule 457(h) of the Securities Act of 1933, as amended (the "Securities Act"), on the basis of the average of the high
and low selling prices per share of common stock of United Online on February 12, 2008, as reported on the Nasdaq Global Select Market.
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(3)
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Each
share is accompanied by a preferred stock purchase right pursuant to the Rights Agreement by and between United Online, Inc. and U.S. Stock Transfer Corporation dated as
of November 15, 2001, as amended on April 29, 2003.
PART II
Information Required in the Registration Statement
Item 3.
Incorporation of Documents by Reference
United
Online, Inc. (the "Registrant" or "United Online") hereby incorporates by reference into this Registration Statement the following documents:
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(a)
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The
Registrant's Annual Report on Form 10-K for the year ended December 31, 2007, filed with the Securities and Exchange Commission (the "Commission") on
February 20, 2008 pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act");
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(b)
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All
other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by its Annual Report referred to in
(a) above;
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(c)
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The
description of the Registrant's common stock, which is deemed registered under the Exchange Act pursuant to Rule 12g-3(c), as set forth in its final prospectus
filed with the Commission on August 30, 2001 pursuant to Rule 424(b) of the Securities Act in connection with its Registration Statement on Form S-4 (Registration
No. 333-63704); and
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(d)
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The
Registrant's Registration Statement on Form 8-A (Registration No. 000-33367) filed with the Commission on November 23, 2001 (as
amended on form 8-A/A filed with the Commission on May 1, 2003), in which there is set forth a description of the Registrant's Preferred Stock Purchase Rights.
All
reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange 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. Unless expressly incorporated into this
Registration Statement, a report furnished on Form 8-K shall not be incorporated by reference into this Registration Statement. 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
Not
Applicable.
Item 5.
Interests of Named Experts and Counsel
Not
Applicable.
Item 6.
Indemnification of Directors and Officers
The
Certificate of Incorporation of United Online limits, to the fullest extent permitted by law, the liability of its directors to United Online and its stockholders for monetary
damages for breach of the directors' fiduciary duty. This provision is intended to afford the United Online's directors the benefit of the Delaware General Corporation Law (the "Delaware Law"), which
provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability for (i) any breach of their
duty of loyalty to the corporation or its
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stockholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the Delaware Law, or (iv) any transaction from which the director derives an improper personal benefit.
The
Certificate of Incorporation and Bylaws of United Online requires indemnification of its directors and officers to the maximum extent permitted by Delaware Law. Section 145 of
the Delaware Law authorizes indemnification by a Delaware corporation when a person is made a party to any proceeding by reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or was serving as a director, officer, employee or agent of another enterprise, at the request of the corporation, and if such person acted in good faith and in a manner
reasonably believed by him or her to be in, or not opposed to, the best interests of the corporation. With respect to any criminal proceeding, such person must have had no reasonable cause to believe
that his or her conduct was unlawful. If it is determined that the conduct of such person meets these standards, he or she may be indemnified for expenses incurred and amounts paid in such proceeding
(including attorneys' fees) if actually and reasonably incurred by him or her in connection therewith. If such a proceeding is brought by or on behalf of United Online, such person may be indemnified
against expenses actually and reasonably incurred if he or she acted in good faith and in a manner reasonably believed by him or her to be in, or not opposed to, the best interests of United Online.
There can be no indemnification with respect to any matter as to which such person is adjudged to be liable to United Online; however, a court may, even in such case, allow such indemnification to
such person for such expenses as the court deems proper. Where such person is successful in any such proceeding, he or she is entitled to be indemnified against expenses actually and reasonably
incurred by him or her. In all other cases, indemnification is made by United Online upon determination by it that indemnification of such person is proper because such person has met the applicable
standard of conduct.
United
Online has entered into contractual arrangements with its directors and officers pursuant to which such persons may be entitled to indemnity from United Online against certain
liabilities arising from the discharge of their duties in such capacities.
United
Online maintains an errors and omissions liability policy for the benefit of its officers and directors, which may cover certain liabilities of such individuals to United Online
and its stockholders.
Item 7.
Exemption from Registration Claimed
Not
Applicable.
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Item 8.
Exhibits
Exhibit Number
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Exhibit
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4.1
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Reference is made to the description of United Online's common stock contained in its final prospectus related to the Registration Statement No. 333-63704 on Form S-4, which is incorporated herein by reference
pursuant to Item 3(c)
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4.2
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Reference is made to Registration Statement No. 000-33367 on Form 8-A, together with the amendments and exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d)
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5
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Opinion and consent of Morgan, Lewis & Bockius LLP
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
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23.2
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Consent of Morgan, Lewis & Bockius LLP is contained in Exhibit 5
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24
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Power of Attorney. Reference is made to page II-4 of this Registration Statement
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99.1
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*
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United Online, Inc. 2001 Stock Incentive Plan
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99.2
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*
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United Online, Inc. 2001 Supplemental Stock Incentive Plan
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99.3
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**
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United Online, Inc. 2001 Employee Stock Purchase Plan
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*
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Exhibits 99.1
and 99.2 are incorporated by reference to Exhibit 10.2 and 10.5, respectively, to the Registrant's Form 10-Q filed with the Commission on
August 9, 2007.
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**
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Exhibit 99.3
is incorporated by reference to Exhibit 10.3 to the Registrant's Form 10-Q filed with the Commission on May 3, 2004.
Item 9.
Undertakings
A. United
Online 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 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 with or furnished to the Commission by United Online
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference into this 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; 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 Plans.
B. United
Online hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of United Online's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in 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.
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C. Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of United Online pursuant to
the indemnification provisions summarized in Item 6 above, or otherwise, United Online 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 United Online of expenses incurred
or paid by a director, officer or controlling person of United Online 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, United Online 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, United Online 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 Woodland Hills, State of
California, on February 20, 2008.
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UNITED ONLINE, INC.
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By:
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/s/
MARK R. GOLDSTON
Mark R. Goldston
Chairman, President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, the undersigned hereby constitute and appoint Mark R. Goldston, Scott H. Ray and Frederic A. Randall, Jr.
and each of them, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, or any related registration statement filed pursuant to
Rule 462(b) under the Securities Act, and to file the same, with 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 or necessary to be done in connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN
WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
Signature
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Title
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Date
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/s/
MARK R. GOLDSTON
Mark R. Goldston
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Chairman, President and Chief Executive Officer
(Principal Executive Officer)
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February 20, 2008
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/s/
SCOTT H. RAY
Scott H. Ray
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Executive Vice President and
Chief Financial Officer (Principal Financial Officer)
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February 20, 2008
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/s/
NEIL P. EDWARDS
Neil P. Edwards
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Senior Vice President, Finance, Treasurer and Chief
Accounting Officer (Principal Accounting Officer)
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February 20, 2008
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6
/s/
JAMES T. ARMSTRONG
James T. Armstrong
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Director
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February 20, 2008
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/s/
ROBERT BERGLASS
Robert Berglass
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Director
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February 20, 2008
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/s/
KENNETH L. COLEMAN
Kenneth L. Coleman
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Director
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February 20, 2008
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/s/
DENNIS HOLT
Dennis Holt
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Director
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February 20, 2008
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/s/
CAROL A. SCOTT
Carol A. Scott
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Director
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February 20, 2008
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7
EXHIBIT INDEX
Exhibit Number
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Exhibit
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4.1
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Reference is made to the description of United Online's common stock contained in its final prospectus related to the Registration Statement No. 333-63704 on Form S-4, which is incorporated herein by reference
pursuant to Item 3(c)
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4.2
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Reference is made to Registration Statement No. 000-33367 on Form 8-A, together with the amendments and exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d)
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5
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Opinion and consent of Morgan, Lewis & Bockius LLP
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
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23.2
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Consent of Morgan, Lewis & Bockius LLP is contained in Exhibit 5
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24
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Power of Attorney. Reference is made to page II-4 of this Registration Statement
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99.1
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*
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United Online, Inc. 2001 Stock Incentive Plan
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99.2
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*
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United Online, Inc. 2001 Supplemental Stock Incentive Plan
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99.3
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**
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United Online, Inc. 2001 Employee Stock Purchase Plan
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-
*
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Exhibits 99.1
and 99.2 are incorporated by reference to Exhibit 10.2 and 10.5, respectively, to the Registrant's Form 10-Q filed with the Commission on
August 9, 2007.
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**
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Exhibit 99.3
is incorporated by reference to Exhibit 10.3 to the Registrant's Form 10-Q filed with the Commission on May 3, 2004.
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PART II Information Required in the Registration Statement
SIGNATURES
POWER OF ATTORNEY
EXHIBIT INDEX
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