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Modem Media Inc – ‘S-1/A’ on 12/23/98

As of: Wednesday, 12/23/98 · Accession #: 1012870-98-3233 · File #: 333-68057

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

12/23/98  Modem Media Inc                   S-1/A                 11:213K                                   Donnelley R R & S… 13/FA

Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-1/A       Amendment #2 to Form S-1                               6     45K 
 2: EX-3.1(A)   Certificate of Incorporation                           9     36K 
 3: EX-3.1(B)   Certificate of Incorporation to Be Effective           8     31K 
 4: EX-3.2(A)   Bylaws of Registrant                                  32    125K 
 5: EX-10.6(A)  O'Connell Covenant Not to Compete                      6     20K 
 6: EX-10.6(B)  Ahlers Covenant Not to Compete                         6     20K 
 7: EX-10.6(C)  Allen Covenant Not to Compete                          6     20K 
 8: EX-10.7(A)  Letter Agreement - Steven C. Roberts                   2     11K 
 9: EX-10.7(B)  Noncompetition Agreement - Steven C. Roberts           3     14K 
10: EX-10.8     Form of Indemnification Agreement                     11     44K 
11: EX-21.1     List of Subsidiaries                                   1      5K

S-1/A — Amendment #2 to Form S-1
Document Table of Contents

Page	(sequential)	\|	(alphabetic)	Top
			Alternative Formats (Word, et al.) Exhibits and Financial Statement Schedules Indemnification of Directors and Officers Other Expenses of Issuance and Distribution Recent Sales of Unregistered Securities Undertakings
1	1st Page - Filing Submission
2	Item 13. Other Expenses of Issuance and Distribution
"	Item 14. Indemnification of Directors and Officers
"	Item 15. Recent Sales of Unregistered Securities
3	Item 16. Exhibits and Financial Statement Schedules
4	Item 17. Undertakings

S-1/A 1st Page of 6 TOC ↑Top Previous Next ↓Bottom Just 1st
 
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1998     

                                            REGISTRATION NO. 333-68057
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

----------------  

AMENDMENT NO. 2     

TO      
FORM S-1
REGISTRATION STATEMENT
UNDER 
THE SECURITIES ACT OF 1933

----------------  
MODEM MEDIA . POPPE TYSON, INC. 
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

DELAWARE                    7311                       06-1464807     
(STATE OR OTHER      (PRIMARY STANDARD INDUSTRIAL        (I.R.S. EMPLOYER       
JURISDICTION OF      CLASSIFICATION CODE NUMBER)      IDENTIFICATION NUMBER)  
INCORPORATION OR                                                              
ORGANIZATION)                                                                 

MODEM MEDIA . POPPE TYSON, INC. 
228 SAUGATUCK AVENUE
WESTPORT, CT 06880
(203) 341-5200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF 
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) 

----------------  

GERALD M. O'CONNELL 
CHIEF EXECUTIVE OFFICER 
MODEM MEDIA . POPPE TYSON, INC. 
228 SAUGATUCK AVENUE
WESTPORT, CT 06880
(203) 341-5200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE) 

----------------  

COPIES TO:
ALAN K. AUSTIN, ESQ.                      ALAN DEAN, ESQ.   
 BRIAN C. ERB, ESQ.                    DAVIS POLK & WARDWELL
WILSON SONSINI GOODRICH & ROSATI              450 LEXINGTON AVENUE      
PROFESSIONAL CORPORATION                   NEW YORK, NY 10017   
650 PAGE MILL ROAD                        (212) 450-4000  
PALO ALTO, CA 94304                                         
(650) 493-9300                                        
----------------  

APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as 
practicable after the effective date of this Registration Statement.            

 If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of    
1933, check the following box: [_]                                              

If this Form is filed to register additional securities for an offering     
pursuant to Rule 462(b) under the Securities Act, please check the following    
box and list the Securities Act registration statement number of the earlier    
effective registration statement for the same offering:        [_]              

If this Form is a post-effective amendment filed pursuant to Rule 462(c)    
under the Securities Act, check the following box and list the Securities Act   
registration statement number of the earlier effective registration statement   
for the same offering:        [_]                                               

If delivery of the prospectus is expected to be made pursuant to Rule 434,  
please check the following box: [_]                                             

--------------------------------------------------------------------------------
--------------------------------------------------------------------------------

THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR    
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT      
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION 
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF  
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME     
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), 
MAY DETERMINE.                                                                  

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S-1/A 2nd Page of 6 TOC 1st Previous Next ↓Bottom Just 2nd
PART II 

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION                            

The following table sets forth the costs and expenses, other than           
underwriting discounts and commissions, payable by the Registrant in connection 
with the sale of Class A common stock being registered. All amounts are         
estimates except the SEC registration fee, the NASD filing fee and the Nasdaq   
National Market listing fee.                                                    

                                                                [Download Table]

                                                                    AMOUNT TO
                                                                     BE PAID 
                                                                    ---------
                                                                             
SEC registration fee...............................................  $12,510 
NASD filing fee....................................................    5,000 
Nasdaq National Market listing fee.................................       *  
Printing and engraving expenses....................................       *  
Legal fees and expenses............................................       *  
Accounting fees and expenses.......................................       *  
Blue Sky qualification fees and expenses...........................       *  
Transfer agent and registrar fees..................................       *  
Miscellaneous fees.................................................       *  
                                                                     ------- 
  Total............................................................  $    *  
                                                                     ======= 

--------                                                                        
* To be supplied by amendment.                                                  

ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS                              

Article Thirteenth of the Registrant's Certificate of Incorporation (Exhibit
3.1 hereto) and Article VI of the Registrant's Bylaws (Exhibit 3.2 hereto)      
provide for mandatory indemnification of its directors and officers, and        
permissible indemnification of employees and other agents, to the maximum       
extent permitted by the Delaware General Corporation Law. In addition, the      
Registrant intends to enter into Indemnification Agreements (Exhibit 10.8       
hereto) with its officers and directors. Reference is also made to Section   of 
the Underwriting Agreement contained in Exhibit 1.1 hereto, which provides for  
the indemnification of officers and directors of the Registrant against certain 
liabilities.                                                                    

ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES                                

 From the Registrant's inception through November 27, 1998, the Registrant has
sold the following securities:                                                  

(1) In December 1996, the Registrant issued an aggregate of 2,542,785 shares of 
  its Class A common stock to Gerald M. O'Connell, Douglas C. Ahlers, Robert
   C. Allen, II and Kraft Enterprises LTD, the limited partners of Modem Media
   Advertising Limited Partnership ("Modem") and Messrs. O'Connell and Ahlers,
the stockholders of Modem Media, Inc., the general partner of Modem, in 
  exchange for a portion of their respective limited and general partnership
interests in Modem and all of the capital stock of Modem Media Inc.     

(2) In December 1996, the Registrant issued 2,802,114 shares of its Class A     
  common stock to True North Communications Inc. ("TNC") in exchange for all
of its limited and general partnership interests in Modem.              

(3) In December 1996, the Registrant issued 5,093,800 shares of its Class B     
 common stock to TNC in connection with the transfer and assignment to the
Registrant of substantially all of the assets and properties of TNC's   
  existing digital marketing communications business (representing 2,291,686
shares of                                                               

II-1

S-1/A 3rd Page of 6 TOC 1st Previous Next ↓Bottom Just 3rd
 the Registrant's Class A Common Stock) and the exchange of the Registrant's
Class A Common Stock held by TNC for Class B Common Stock.                

(4) From its inception through November 27, 1998, the Registrant has issued     
shares of Class A common stock upon the exercise of options as follows: 

                                                                [Download Table]

                   EXERCISE PRICE
NUMBER OF SHARES     PER SHARE   
----------------   --------------
                                 
    496               $  0.61    
  8,936               $ 11.00    

The issuances of the securities described in (1) through (3) above were     
deemed to be exempt from registration under the Securities Act in reliance on   
Section 4(2) of such Act as transactions by an issuer not involving any public  
offering. All of the securities were acquired by the recipients for investment  
and with no view toward the resale or distribution thereof. In each instance,   
the recipient was an employee of the Company or a sophisticated investor, the   
offer and sales were made without any public solicitation and the stock         
certificates bear restrictive legends. No underwriter was involved in the       
transactions and no commissions were paid. All recipients had adequate access,  
through their relationships with the Registrant, to information about the       
Registrant. The sales of the Securities described in (4) above were deemed to   
be exempt from registration under the Securities Act in reliance on Rule 701    
under such Act.                                                                 

ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES                             

(a) EXHIBITS                                                                

                                                                [Download Table]

EXHIBIT NO.                             DESCRIPTION                           
-----------                             -----------                           
                                                                              
  1.1*      Form of Underwriting Agreement.                                   
  3.1(a)    Certificate of Incorporation of Registrant, as amended.           
  3.1(b)    Form of Amended and Restated Certificate of Incorporation of      
            Registrant to be effective upon consummation of the offering.     
  3.2(a)    Bylaws of Registrant, as amended.                                 
  3.2(b)*   Form of Bylaws of Registrant to be effective upon consummation of 
            the offering.                                                     
  4.1*      Form of Registrant's Class A common stock certificate.            
  5.1*      Opinion of Wilson Sonsini Goodrich & Rosati, Professional         
            Corporation, regarding legality of the securities being issued.   
 10.1(a)*   Form of Administrative Services Agreement between Registrant and  
            True North Communications Inc.                                    
 10.1(b)*   Form of Intercompany Credit Agreement between the Registrant and  
            True North Communications Inc.                                    
 10.1(c)*   Form of Tax Matters Agreement between the Registrant and True     
            North Communications Inc.                                         
 10.2*      Intercompany Demand Note dated November 24, 1998 issued by True   
            North Communications Inc. to the Registrant.                      
 10.3*      Form of Affiliation Agreement between the Registrant and Modem    
            Media . Poppe Tyson do Brasil Ltda.                               
 10.4*      Sublease Modification Agreement between the Registrant and Bozell,
            Jacobs, Kenyon & Eckhardt, Inc., dated August 1, 1998.            
 10.5(a)*   Employment Agreement between Registrant and Gerald M. O'Connell,  
            dated as of January 1, 1997.                                      

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                                                                [Download Table]

EXHIBIT NO.                             DESCRIPTION                           
-----------                             -----------                           
                                                                              
 10.5(b)*   Employment Agreement between Registrant and Douglas C. Ahlers,    
            dated as of January 1, 1997.                                      
 10.5(c)*   Employment Agreement between Registrant and Robert C. Allen, II,  
            dated as of January 1, 1997.                                      
 10.6(a)    Covenant Not to Compete or Solicit Business between Registrant and
            Gerald M. O'Connell, dated as of December 31, 1996.               
 10.6(b)    Covenant Not to Compete or Solicit Business between Registrant and
            Douglas C. Ahlers, dated as of December 31, 1996.                 
 10.6(c)    Covenant Not to Compete or Solicit Business between Registrant and
            Robert C. Allen, II, dated as of December 31, 1996.               
 10.7(a)    Letter Agreement between Registrant and Steven C. Roberts dated   
            December 2, 1996.                                                 
 10.7(b)    Noncompetition, Confidentiality and Proprietary Rights Agreement  
            between Steven C. Roberts and the Registrant.                     
 10.8       Form of Indemnification Agreement.                                
 10.9*      1997 Stock Option Plan, as amended.                               
 10.10*     1999 Employee Stock Purchase Plan.                                
 21.1       List of subsidiaries.                                             
 23.1*      Consent of Wilson Sonsini Goodrich & Rosati, Professional         
            Corporation (included in Exhibit 5.1).                            
 23.2+      Consent of Arthur Andersen LLP, Independent Public Accountants.   
 24.1+      Power of Attorney.                                                
 27.1+      Financial Data Schedule.                                          

--------                                                                        
* To be filed by amendment.                                                 

+ Previously filed with the Commission on November 27, 1998 as an exhibit   
to the Registrant's Registration Statement on Form S-1.                 

(b) FINANCIAL STATEMENT SCHEDULES                                           

Not applicable.                                                         

ITEM 17. UNDERTAKINGS                                                           

The undersigned Registrant hereby undertakes to provide to the underwriters 
at the closing specified in the underwriting agreement, certificates in such    
denominations and registered in such names as required by the underwriters to   
permit prompt delivery to each purchaser.                                       

Insofar as indemnification for liabilities arising under the Securities Act 
may be permitted to directors, officers and controlling persons of the          
Registrant, the Registrant has had been advised that in the opinion of the      
Securities and Exchange 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           
hereunder, the Registrant will, unless in the opinion of its counsel the matter 
has had 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.                                                     

The undersigned Registrant hereby undertakes that:                          

(1) For purposes of determining any liability under the Securities Act, the     
information omitted from the form of prospectus filed as part of this           
Registration Statement in reliance upon Rule 430A and contained in a form of    
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)  
under the Securities Act shall be deemed to be part of this Registration        
Statement as of the time it was declared effective.                             

(2) For the purpose of determining any liability under the Securities Act, each 
post-effective amendment that contains a form of prospectus 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.                                                     

II-3

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SIGNATURES

PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT  
HAS HAD DULY CAUSED THIS AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT ON FORM  
S-1 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED,   
IN THE CITY OF WESTPORT, STATE OF CONNECTICUT, ON THIS 23RD DAY OF DECEMBER,    
1998.                                                                           

                                   Modem Media . Poppe Tyson, Inc.

                                  By: /s/    Gerald M. O'Connell
                                             ---------------------------------
                                           Gerald M. O'Connell
                                           Chief Executive Officer
                                           (Principal Executive Officer)

 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:                                                                

                                                                [Download Table]

              SIGNATURE                          TITLE                 DATE       
              ---------                          -----                 ----       

                                                                                  
     /s/ Gerald M. O'Connell           Chief Executive Officer   December 23, 1998
______________________________________ and Director                               
         GERALD M. O'CONNELL           (Principal Executive                       
                                       Officer)                                   

          Steven C. Roberts*           Chief Financial Officer   December 23, 1998
______________________________________ (Principal Financial and                   
          STEVEN C. ROBERTS            Accounting Officer)                        

         Robert C. Allen, II*          Director                  December 23, 1998
______________________________________                                            
         ROBERT C. ALLEN, II                                                      

       Donald M. Elliman, Jr.*         Director                  December 23, 1998
______________________________________                                            
        DONALD M. ELLIMAN, JR.                                                    

          Donald L. Seeley*            Director                  December 23, 1998
______________________________________                                            
           DONALD L. SEELEY                                                       

       Theodore J. Theophilos*         Director                  December 23, 1998
______________________________________                                            
        THEODORE J. THEOPHILOS                                                    


*By: /s/ Gerald M. O'Connell                                                    
---------------------------------                                               
GERALD M. O'CONNELL                                             

Attorney-in-fact                                                  

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EXHIBIT INDEX 

                                                                [Download Table]

EXHIBIT NO.                             DESCRIPTION                           
-----------                             -----------                           
                                                                              
  1.1*      Form of Underwriting Agreement.                                   
  3.1(a)    Certificate of Incorporation of Registrant, as amended.           
  3.1(b)    Form of Amended and Restated Certificate of Incorporation of      
            Registrant to be effective upon consummation of the offering.     
  3.2(a)    Bylaws of Registrant, as amended.                                 
  3.2(b)*   Form of Bylaws of Registrant to be effective upon consummation of 
            the offering.                                                     
  4.1*      Form of Registrant's Class A common stock certificate.            
  5.1*      Opinion of Wilson Sonsini Goodrich & Rosati, Professional         
            Corporation, regarding legality of the securities being issued.   
 10.1(a)*   Form of Administrative Services Agreement between Registrant and  
            True North Communications Inc.                                    
 10.1(b)*   Form of Intercompany Credit Agreement between the Registrant and  
            True North Communications Inc.                                    
 10.1(c)*   Form of Tax Matters Agreement between the Registrant and True     
            North Communications Inc.                                         
 10.2*      Intercompany Demand Note dated November 24, 1998 issued by True   
            North Communications Inc. to the Registrant.                      
 10.3*      Form of Affiliation Agreement between the Registrant and Modem    
            Media . Poppe Tyson do Brasil Ltda.                               
 10.4*      Sublease Modification Agreement between the Registrant and Bozell,
            Jacobs, Kenyon & Eckhardt, Inc., dated August 1, 1998.            
 10.5(a)*   Employment Agreement between Registrant and Gerald M. O'Connell,  
            dated as of January 1, 1997.                                      
 10.5(b)*   Employment Agreement between Registrant and Douglas C. Ahlers,    
            dated as of January 1, 1997.                                      
 10.5(c)*   Employment Agreement between Registrant and Robert C. Allen, II,  
            dated as of January 1, 1997.                                      
 10.6(a)    Covenant Not to Compete or Solicit Business between Registrant and
            Gerald M. O'Connell, dated as of December 31, 1996.               
 10.6(b)    Covenant Not to Compete or Solicit Business between Registrant and
            Douglas C. Ahlers, dated as of December 31, 1996.                 
 10.6(c)    Covenant Not to Compete or Solicit Business between Registrant and
            Robert C. Allen, II, dated as of December 31, 1996.               
 10.7(a)    Letter Agreement between Registrant and Steven C. Roberts dated   
            December 2, 1996.                                                 
 10.7(b)    Noncompetition, Confidentiality and Proprietary Rights Agreement  
            between Steven C. Roberts and the Registrant.                     
 10.8       Form of Indemnification Agreement.                                
 10.9*      1997 Stock Option Plan, as amended.                               
 10.10*     1999 Employee Stock Purchase Plan.                                
 21.1       List of subsidiaries.                                             
 23.1*      Consent of Wilson Sonsini Goodrich & Rosati, Professional         
            Corporation (included in Exhibit 5.1).                            
 23.2+      Consent of Arthur Andersen LLP, Independent Public Accountants    
            (see page II-5).                                                  
 24.1+      Power of Attorney (included on page II-4).                        
 27.1+      Financial Data Schedule.                                          

--------                                                                        
* To be filed by amendment.                                                     

+ Previously filed with the Commission on November 27, 1998 as an exhibit to    
the Registrant's Registration Statement on Form S-1.

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Dates Referenced Herein and Documents Incorporated by Reference

		Referenced-On Page
This ‘S-1/A’ Filing	Date	First	Last	Other Filings

Filed on:	12/23/98	1	5	S-1/A
	11/27/98	2	6	S-1
	11/24/98	3	6
	8/1/98	3	6
	1/1/97	3	6
	12/31/96	4	6
	12/2/96	4	6
				List all Filings

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Filing Submission 0001012870-98-003233 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

Modem Media Inc – ‘S-1/A’ on 12/23/98

As of: Wednesday, 12/23/98 · Accession #: 1012870-98-3233 · File #: 333-68057

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Pre-Effective Amendment to Registration Statement (General Form) — Form S-1Filing Table of Contents

S-1/A — Amendment #2 to Form S-1Document Table of Contents

Dates Referenced Herein and Documents Incorporated by Reference

Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents

S-1/A — Amendment #2 to Form S-1
Document Table of Contents