As filed with the Securities and Exchange Commission on September 24, 1999.
Registration No.333-75507
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------
CYBERSHOP.COM, INC.
(formerly known as Cybershop International, Inc.)
(Exact name of registrant as specified in its charter)
Delaware 13-3979226
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
116 Newark Avenue
Jersey City, New Jersey 07302
(201) 234-5000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Jeffrey S. Tauber, Chairman and Chief Executive Officer
Cybershop.com, Inc.
116 Newark Avenue
Jersey City, New Jersey 07302
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Walter M. Epstein, Esq.
Davis & Gilbert LLP
1740 Broadway
New York, New York 10019
(212) 468-4800
-----------------------
Approximate date of commencement of proposed sale to the public: On such date as
the selling stockholders shall elect to commence sales to the public following
the effective date of this registration statement. |_|
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. |_|
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
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. |_|
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
Title of each
class of Proposed Maximum Amount of
securities to be Amount to be Maximum Offering Aggregate Registration
registered registered Price per Share (1) Offering Price Fee
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per
share 465,450 shares 6.8125 $3,170,878 $1,093
- -----------------------------------------------------------------------------------------
</TABLE>
(1) Based on the average of the high and low sale prices of the Common Stock
reported on the Nasdaq National Market on September 23, 1999 of 6.8125
per share, solely for the purpose of calculating the registration fee
pursuant to Rule 457(c). A filing fee of $1,950 was previously paid.
Accordingly, no filing fee is due.
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.
<PAGE>
Prospectus
Cybershop.com, Inc.
Common Stock
465,450 Shares
This is an offering of 465,450 shares by selling stockholders. We will not
receive any of the sale proceeds.
Our shares currently trade on the Nasdaq National Market (Trading Symbol:
Nasdaq National Market - CYSP). On September 13, 1999 the last sale price was
$7.25 per share.
Investing in the company involves a high degree of risk. You should
purchase shares only if you can afford a complete loss. You should carefully
read and review this prospectus including the "Risk Factors" beginning on page 4
before deciding whether to buy shares in this offering.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
Prospectus dated September 24, 1999.
<PAGE>
Principal Executive Cybershop.com, Inc.
Offices: 116 Newark Avenue
Jersey City, New Jersey 07302
(201) 234-5000
There follows a summary of important information on our business.
Our Business: We are a leading online retailer of discounted, or
"off-price," quality brand-name apparel, electronics,
appliances and home accessories, toys and games,
gifts, and watches at our on-line stores located at
cybershop.com and electronics.net and through our
newly acquired store toolsforliving.com, which will
be integrated into our cybershop.com store later this
year. All of the products sold by us are
manufactured by others.
cybershop.com
Our flagship online store, accessed at cybershop.com,
sells well-known brand name apparel, home accessories
and toys at deep discounts of between 20% to 80%. Our
site provides high quality color pictures and detailed
information and recommendations that are conveniently
organized by brand and category. Shoppers can search
and browse throughout the store and place selected
merchandise in a virtual shopping cart that facilitates
the process of collecting items, subtotaling purchases
before reaching the purchase decision and having them
shipped within 24 hours of purchasing.
electronics.net
On June 14, 1998, we entered into a joint venture to
develop a new online store with TOPS Appliance City,
Inc., a retailer of electronic merchandise, appliances
and computers. The online store, electronics.net was
launched in October 1998 and offers a wide selection of
brand name electronic merchandise, including television
and video equipment, home and car audio equipment, home
appliances, home office equipment and related
accessories. The joint venture is intended to combine
our online retail expertise with TOPS' shipping and
supply capabilities. Shoppers can research on the site
the thousands of items offered, place selected items in
a virtual shopping cart, purchase the items and have
them shipped within 24 hours of purchasing.
toolsforliving.com
On June 7, 1999, we acquired The Magellan Group, Inc. a
direct to consumer marketer of high quality merchandise
in the personal care, health and home accessories
categories, which merchandise is promoted on our
toolsforliving.com website and through print media
campaigns in national consumer magazines which direct
our customers to our web site or to order over the
phone.
Strategic Alliances: We have pursued and continue to pursue strategic
alliances in order to generate more visitors to our
online stores through referrals from other
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<PAGE>
websites. Our largest alliances are with Yahoo!,
Microsoft's MSN.com, and GO2Net. We also have agreements
with Inktomi, CompareNet, Amazon.com, Pricebreak, Y-Path
and My Simon. We use many online and offline marketing
techniques to increase brand awareness and site traffic.
Our offline print media advertising includes advertising
on Time, Fortune, TV Guide, USA Today, People, New York
Times and Parade. We continue to seek strategic
partnerships that better utilize the Internet and
technology to generate more visits to our online stores
with higher order conversion rates. Most recently, we
have developed alliances with online search engines
focused on shopping comparisons where we have built
interfaces between our product databases and the
shopping engines, allowing our products to be listed and
compared with other products on these shopping engines.
We regularly evaluate the return on investment on
dollars spent by us on strategic alliances versus
increased customer traffic and revenues.
We intend to negotiate additional marketing arrangements
with other leading internet search engines, shopping
guides and online communities. We believe that these
strategic alliances will increase the volume of our
shoppers and enhance our brand recognition.
We are also interested in developing joint ventures with
partners who can help us to enter new markets and offer
new products. Based on our traditional merchandising
background combined with our experience as online
merchants, we believe we are well positioned to partner
with other traditional brick and mortar retailers to
build an online presence. Our joint venture with TOPs,
electronics.net, is an example where we joined our
expertise in online commerce with the existing
operations capacity of a traditional consumer
electronics retailer seeking to sell its products
online.
With considerable experience in traditional and online
retailing, our management team has developed a core
knowledge in Internet technology and online
merchandising. We have, and intend to leverage this
knowledge base as well as its infrastructure to build
partnerships with successful and high quality
traditional retailers.
RISK FACTORS
You should consider the following risk factors before deciding to invest in our
company.
We have a limited operating We began offering products for sale on our
history. website in September 1995 and are still in the
early stages of development. Accordingly, we have
a relatively short operating history upon which
you can evaluate our business and prospects.
We have had significant We have incurred significant losses since we
losses and anticipate further began doing business. As of June 30, 1999, we
significant losses. have had cumulative losses of $14.7 million,
including a net loss of approximately $7.9
million for the fiscal year ended December 31,
1998 and a net loss of approximately $3.7
million for the six months ended June 30, 1999.
We believe that we will continue to incur
significant losses for the foreseeable future
and these losses may be higher than our current
losses.
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<PAGE>
We recently refocused our We recently refocused the merchandising strategy
merchandising strategy and on our main website, cybershop.com, in order to
there can be no assurance target the outlet store and off-price market
that it will be successful. sector. We don't know whether this refocused
marketing strategy will be successful.
A significant percentage of The opportunistic nature of our merchandising our
revenues may at times be strategy can create opportunities to buy and sell
attributed to the sale of one large volumes of a particular product or
or a few products. products. Accordingly, a significant percentage
of our revenues may at times be attributed to the
sale of one or a few products.
Competition is intense in the The online retail business is new, rapidly
online retail business. There evolving and intensely competitive. We don't know
can be no assurance that we whether we will be able to compete successfully.
will be able to compete Barriers to entry into the online retail business
successfully. are minimal. Our current and potential
competition includes traditional retailers and
non-traditional retailers (such as television
retail and mail order) as well as other online
retailers. Our success as an online retailer
depends upon our ability to attract customers to
our websites. This requires significant
expenditure on promotion and advertising costs.
Many of our current and potential competitors
have longer operating histories, larger customer
bases, greater brand recognition and
significantly greater financial, marketing and
other resources than we have. They may be able
to secure merchandise from suppliers on more
favorable terms, and may be able to devote
greater resources to marketing and promotional
campaigns, and adopt more aggressive pricing or
inventory availability policies. They can also
devote substantially more resources to website
and systems development than we can. We also
expect to experience increased competition from
on-line commerce sites that provide goods and
services at or near cost, relying on advertising
revenues to achieve profitability. As the
on-line commerce market continues to grow, other
companies may enter into business combinations
or alliances that strengthen their competitive
positions. Competition in the internet and
online commerce market probably will intensify.
As various internet market segments attain
larger, loyal customer bases, participants in
those segments may use their market power to
expand into other markets.
Our inability to enter into Our ability to generate revenues from online new
strategic alliances or to commerce depends, among other things, upon the
maintain our existing increased store traffic in our online stores,
strategic alliances could that we generate through our strategic alliances.
harm our business. We can't be sure that our existing relationships
will be extended beyond their initial terms or
whether the financial or other terms of any
extensions will be favorable. We also don't know
if additional strategic alliances will be
available to us on acceptable commercial terms.
Our inability to enter into new strategic
alliances or to maintain our existing strategic
alliances could harm our business.
4
<PAGE>
We will need additional funds We believe that our current cash and cash
to maintain our operations at equivalents on hand and funds that may be
existing levels for the generated from operations will not be sufficient
remainder for the year. There to finance our continuing operations for the
can be no assurance that remainder of the year. We have for some time
such financing will be been seeking to raise additional financing
available. through a private placement of shares but have
been unsuccessful so far. Adequate funds on terms
acceptable to us may not be available to us. Our
inability to obtain sufficient funds from
operations and external sources would hurt our
business.
We do not manufacture any of We do not manufacture any merchandise.
the merchandise which we Manufacturers and distributors supply our online
sell. We are dependent on our stores and our direct-to-consumer marketing
relationships with our business. Our current suppliers may decide not
suppliers. Loss of these to sell to us on our current terms. We may not be
relationships could harm our able to establish new supplier relationships. A
business. change of terms or the loss of existing supplier
relationships could hurt our business.
Our online revenues and Our future online revenues and profits are
profits are dependent on the strongly dependent on the widespread acceptance
continuous growth of online and use of the Internet by consumers. We don't
commerce. know if acceptance and use will continue to
develop or that a sufficiently broad base of
consumers will use the Internet to shop. The
commercial use of the Internet depends on
improvements in ease of access, security,
reliability, cost and quality of service.
Security breaches would hurt We license technology from third parties to
our business. provide security for customers. Security breaches
could damage our reputation and expose our
business to customer claims.
Restrictive laws and Due to the increasing popularity and use of the
regulations would result in Internet, it is possible that laws and
additional costs for our regulations may be adopted in the future with
business. respect to Internet use covering issues such as
user privacy, pricing, content, copyrights,
distribution and quality of products and
services. New laws and regulations will probably
make it more expensive for us to operate.
We may be sued with respect Claims may be made against us for negligence,
to information retrieved from copyright or trademark infringement based on
the Internet. To the extent material downloaded from our websites. Our
these lawsuits are not insurance may not adequately cover these
covered by insurance they potential claims and the costs incurred in
could, if decided against us, defending against these claims.
harm our business.
We cannot guarantee that our We cannot guarantee that our systems will be Year
systems will be Year 2000 2000 compliant or that the Year 2000 problem will
compliant or that the Year not hurt our business. We have been working with
2000 problem will not our significant suppliers and service providers
adversely affect our business. to identify and resolve Year 2000 issues. Any
failure of their systems could disrupt our
systems. Computers used by our customers to
access our online stores may not be Year 2000
compliant, delaying our customers' purchases of
our products.
Systems interruptions will Customer access to our web sites directly affects
harm our business. the volume of our orders and our revenues. We may
experience system interruptions that make our
websites temporarily inaccessible or prevent us
from efficiently fulfilling orders. Our systems
and operations could be damaged by fire, flood,
power loss, telecommunications failure,
break-ins, earthquake and similar events. We do
not have back-up systems or a formal disaster
recovery
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<PAGE>
plan and we may not carry sufficient business
interruption insurance to compensate us for
losses from a major interruption.
Our servers are vulnerable to computer viruses,
physical or electronic break-ins and similar
disruptions, which could lead to additional
interruption and disruptions in our business.
We rely on transaction processing systems
operated by Yahoo! to receive and fulfill
orders. Disruptions or failures in the Yahoo!
transaction processing system would harm our
business.
We may be unable to prevent Regulations governing domain names may not
third parties from acquiring protect our servicemarks and similar proprietary
domain names that are similar rights. We may be unable to prevent third parties
to or infringe on our service from acquiring domain names that are similar to,
marks. infringe upon or diminish the value of, our
servicemarks and other proprietary rights.
We may not be able to protect We have registered the service mark Cybershop(R)
our service marks or our in the United States and have applied for
proprietary rights. registration for other service marks. Competitors
may adopt product or service names similar to our
service marks, thereby hurting our ability to
build brand identity. We may not be able to
secure significant protection for these service
marks.
We usually have agreements containing
confidentiality and non-disclosure provisions
with our employees and consultants covering
access to and distribution of our software,
documentation and other proprietary information.
These agreements may not prevent theft or misuse.
Third parties may copy or use our software or
other proprietary information without permission.
It is difficult for us to prevent unauthorized
use.
We do not collect sales taxes We do not collect sales or other similar taxes
for shipments into most for shipments of merchandise into states other
states. Imposition of sales than shipments into New Jersey, Missouri and
taxes could harm our business. Connecticut. Such taxes may be imposed in the
future. However, the Federal government or one or
more states may seek to impose sales tax
collection obligations on out-of-state companies,
such as us, which engage in online commerce. A
successful assertion that we should collect sales
or other taxes on the sale of merchandise into
such states could harm our business.
We have never paid dividends We have never declared or paid a cash dividend
and we do not expect to have available cash with
which to pay cash dividends in the foreseeable
future.
Issuance of authorized We have authorized 5,000,000 shares of
preferred stock in the future preferred stock which may be issued by the
may prevent a change of Board. Issuance of such preferred stock could
control, making the company delay, deter or prevent a change in control,
less attractive as an making the company less attractive as an
acquisition candidate. acquisition candidate.
6
<PAGE>
Special Note Regarding Forward-looking Statements
Some of the statements contained in this prospectus, including information
incorporated by reference, discuss future expectations, contain projections of
future results of operations or financial condition or provide other
"forward-looking" information. Those statements are subject to known and unknown
risks, uncertainties and other factors that could cause the actual results to
differ materially from those contemplated by the statements. The forward-looking
information is based on various factors and was derived using numerous
assumptions. Important factors that may cause actual results to differ from
projections include the risk factors set forth above.
WE HAVE INCORPORATED INFORMATION BY
REFERENCE TO OUR OTHER SEC FILINGS;
YOU CAN OBTAIN MORE INFORMATION
FROM US OR FROM THE SEC
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
Commission will automatically update and supersede this information.
We incorporate by reference the following documents filed by us with the
SEC:
o Our Annual Report on Form 10-K for the year ended December 31, 1998
filed with the SEC on March 19, 1999;
o Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999
filed with the SEC on May 17, 1999;
o Our Quarterly Report on From 10-Q for the quarter ended June 30, 1999
filed with the SEC on August 13, 1999;
o All other reports and other documents filed by us pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, or the Exchange Act,
since December 31, 1998;
o Our registration statement on Form 8-A filed on March 11, 1998
registering the common stock under Section 12(g) of the Exchange Act; and
o All documents and reports subsequently filed by us pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus
and prior to the filing of a post-effective amendment which indicates that all
securities which may be offered hereby have been sold or which deregisters all
securities then remaining unsold.
At your request, we will provide you, without charge, with a copy of any
information incorporated by reference in this prospectus. If you want more
information, write or call us at:
Cybershop.com, Inc.
116 Newark Avenue
Jersey City, New Jersey 07302
(201) 234-5000
Attn: Steven Del Vecchia
We have filed a registration statement which includes this prospectus
covering this offering with the Securities and Exchange Commission ("SEC"). This
prospectus does not contain all the information included in the registration
statement. You can request a copy of the registration statement and the exhibits
from us to get a
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<PAGE>
more complete description of our company and this offering. We have provided our
address and telephone number above if you wish to obtain free copies of the
registration statement and exhibits.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or other
information we file at the SEC's public reference room in Washington D.C., New
York, New York and Chicago, Illinois. You can also request copies of these
documents, upon payment of a duplicating fee, by writing to the SEC. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the public
reference rooms. Our SEC filings are also available to the public on the SEC
Internet site at http\\www.sec.gov. The registration statement, of which this
prospectus forms a part, including all exhibits, has been filed in electronic
form with the SEC through EDGAR.
SELLING STOCKHOLDERS
The following table sets forth the number of shares of common stock
o currently beneficially owned by each selling stockholder,
o the number of shares owned by each of them included in this prospectus,
and
o the amount and percentage of shares to be owned by each selling
stockholder after the sale of all of the shares offered by this prospectus.
Except with respect to Big Wave NV, Ian S. Phillips, Howard Kuntz, III and
Ed Mufson, the number of shares indicated comprises of shares of common stock
issuable upon exercise of currently exercisable warrants issued to the
underwriters in connection with our initial public offering. The list of selling
stockholders includes Ian S. Phillips, a director of the company, Howard Kuntz,
III, and Ed Mufson, both employess of the company and C.E. Unterberg Towbin and
Fahnestock & Co., Inc., the underwriters of our initial public offering. Robert
Matluck, a director, is currently a Managing Director of C.E. Unterberg, Towbin.
Except for the underwriters and Messrs. Phillips, Kuntz, Mufson and Matluck,
none of the selling stockholders has had any position, office or other material
relationship with the company within the past three years other than as a result
of the ownership of shares or other securities of the company. The information
included below is based on information provided by the selling stockholders. The
table has been prepared on the assumption that all shares of common stock
offered hereby will be sold and is based on 8,612,062 shares of common stock
outstanding on September 13, 1999.
<TABLE>
<CAPTION>
Shares Percentage of
Shares Owned After Shares Owned
Name Beneficially Owned Shares Offered Offering After Offering
- ---- ------------------ -------------- -------- --------------
<S> <C> <C> <C> <C>
Big Wave NV 60,450 60,450 0 0
C. E. Unterberg, Towbin 138,000 138,000 0 0
Fahnestock & Co. Inc. 53,220 53,220 0 0
Henry P. Williams 15,050 15,050 0 0
Roger D. Elsas 8,960 8,960 0 0
Philip W. Ho 7,000 7,000 0 0
William R. Armstrong, Jr. 3,500 3,500 0 0
Frank Colen 2,870 2,870 0 0
Yvonne K. Furrer 700 700 0 0
Kathy Wilson 700 700 0 0
Ian S. Phillips 510,000 76,500 433,500 5.0%
Howard Kuntz III 490,000 73,500 416,500 4.8%
Ed Mufson 250,000 25,000 225,000 2.6%
</TABLE>
8
<PAGE>
PLAN OF DISTRIBUTION
The shares are being registered in order to facilitate their sale from
time to time by the selling stockholder, or by his transferees or other
successors, as market conditions may permit. The selling stockholder has not
entered into any underwriting arrangements. We are unable to predict when, if at
all, the selling stockholder will sell the shares, as sales will be made solely
at his discretion. The sale of shares by the selling stockholder and/or his
transferees or other successors in interest, may be effected in one or more
transactions that may take place on the Nasdaq SCM, the over-the-counter market,
privately negotiated transactions or through sales to one or more dealers for
resale of the shares as principals, or a combination of such methods of sale, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The shares may be sold by one
or more of the following methods:
o a block trade in which a broker or dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by such
broker or dealer for its account;
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
o face-to-face transactions between sellers and purchasers without a
broker-dealer.
In effecting sales, brokers or dealers engaged by the selling stockholder
may arrange for other brokers or dealers to participate. They may receive
commissions or discounts from the selling stockholder in amounts to be
negotiated immediately prior to the sale. The selling stockholder and brokers
and dealers engaged by him and any other participating brokers or dealers may be
deemed to be "underwriters" within the meaning of the Securities Act, in
connection with such sales.
We have agreed to pay the filing fees, costs and expenses associated with
the registration statement exclusive of fees of counsel to the selling
stockholder, but inclusive of fees relating to compliance with any state blue
sky requirements, commissions and discounts of underwriters, dealers or agents,
if any, and any stock transfer taxes.
We have agreed to indemnify the selling stockholder, or his transferees or
assignees against certain liabilities, including liabilities under the
Securities Act.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 145 of the General Corporation Law of Delaware grants each
Delaware corporation the power to indemnify its officers, directors, employees
and agents against liabilities arising out of any action or proceeding to which
any of them is a party by reason of being such officer, director, employee or
agent. Our certificate of incorporation provides for the indemnification of the
company's officers, directors, employees and agents, to the fullest extent
permitted by the General Corporation Law of Delaware. Insofar as indemnification
for liabilities arising under the Securities Act, may be permitted to directors,
officers or persons controlling the company pursuant to the provisions of
Delaware law and our certificate of incorporation, we have been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
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<PAGE>
LEGAL MATTERS
The validity of the shares being offered in this prospectus is being
passed upon for us by Davis & Gilbert LLP, 1740 Broadway, New York, New York,
10019.
EXPERTS
The consolidated financial statements and schedule incorporated by
reference in this prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants. They have
authorized us to include the foregoing in this prospectus.
10
<PAGE>
================================================================================
Until ______________, all dealers that effect transactions in these securities
may be required to deliver a prospectus.
We have not authorized any person to give any information or to make any
representations other than those contained in this prospectus. You must not rely
upon any information or representation not contained or incorporated by
reference in this prospectus as if we had authorized it. If any person does make
a statement that differs from what is in this prospectus, you should not rely on
it. This prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than the securities to which they relate nor
does this prospectus constitute an offer to sell or the solicitation of an offer
to buy securities in any state or other jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. The
information contained in this prospectus is accurate as of the date of its
cover. When we deliver this prospectus or make a sale pursuant to this
prospectus, we are not implying that the information is current as of the date
of the delivery of the sale.
----------------------------
TABLE OF CONTENTS
Page
Prospectus Summary ........................................................ 2
Risk Factors .............................................................. 3
Selling Stockholders ...................................................... 8
Plan of Distribution ...................................................... 9
Disclosure of Commission Position on Indemnification For Securities Act
Liabilities .............................................................. 9
Legal Matters ............................................................. 10
Experts ................................................................... 10
================================================================================
465,450 Shares
CYBERSHOP.COM, INC.
Common Stock
_______________
PROSPECTUS
_______________
September 24, 1999
================================================================================
<PAGE>
INFORMATION NOT REQUIRED IN THE PROSPECTUS
The company will bear no expenses in connection with any sale or other
distribution by the selling stockholders of the shares being registered other
than the expenses of preparation and distribution of this registration statement
and the prospectus included in this registration statement. Such expenses are
set forth in the following table. All of the amounts are estimates except the
Securities and Exchange Commission filing fee.
Item 14. Other Expenses of Issuance and Distribution.
SEC registration fee .....................$1,950
Accounting fees and expenses..............$2,500
Legal fees and expenses..................$10,000
Printing expenses.........................$3,000
Miscellaneous.............................$2,550
Total.................................$20,000
- ----------
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify its directors and officers, as well as other
employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation - a
"derivative action"), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification in which the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
The Registrant's Bylaws requires indemnification to the full extent
permitted under Delaware law. Subject to any restrictions imposed by Delaware
law, the Bylaws provide an unconditional right to indemnification for all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred or suffered by any person in connection with any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (including, to the extent permitted by law, any derivative
action) by reason of the fact that such person is or was serving as a director
or officer of the Registrant or that, being or having been a director or officer
of the Registrant, such person is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The Bylaws also provide
indemnification to its employees and agents with the same scope and effect as
the foregoing indemnification of directors and officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (1) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(2) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (4) any transaction from which the director
derived an improper personal benefit.
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The Registrant's certificate of incorporation provides that to the full
extent that the DGCL, as it now exists or may hereafter be amended, a director
of the Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any amendment to or
repeal of such provision shall not adversely affect any right or protection of a
director of the Registrant existing at the time of such repeal or modification.
Insurance for the Registrant's directors and officers, against expenses
and liabilities in connection with the defense of actions, suits or proceedings
to which they may be parties by reason of having been directors or officers of
the Registrant, is provided by the Registrant.
Item 16. Exhibits.
Exhibit Description
1 Not Applicable
2 Not Applicable
4 Instruments defining the rights of security holders, including
indentures:
(A) Certificate of incorporation, as amended (Incorporated by
reference to the company's registration statement on Form S-1
(File No: 333-42707) effective March 23, 1998) and the
Company's quarterly report on Form 10-Q for quarter ended June
30, 1999).
(B) By-Laws (Incorporated by reference to the company's
registration statement on Form S-1 (File No: 333-42707)
effective March 23, 1998).
(C) Specimen Common Stock Certificate (Incorporated by reference
to the company's registration statement on Form S-1 (File No:
333-42707) effective March 23, 1998.
5 Opinion of Davis & Gilbert LLP, herewith filed
8 Not Applicable
12 Not Applicable
15 Not Applicable
23.1 Consent of Arthur Andersen LLP, filed herewith
23.2 Consent of Davis & Gilbert LLP (included in the opinion
filed as Exhibit No. 5)
24 Not Applicable
25 Not Applicable
26 Not Applicable
27 Not Applicable
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Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any additional or changed material information with
respect to the plan of distribution:
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required in a post-effective amendment is incorporated by reference
from periodic reports filed with the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act").
(2) That, for the purpose of determining any liability under the
Securities Act, the undersigned will treat each such post-effective amendment as
a new registration statement of the securities offered, and the offering of the
securities at that time to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(b) The undersigned registrant hereby undertakes 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
(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.
(c) 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 provisions described in Item 15 above, or
otherwise, the company has 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 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 any 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 of whether or not
such indemnification is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
(d) 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 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.
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(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 the initial bona fide
offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York in the State of
New York on September 22, 1999.
CYBERSHOP.COM, INC.
By /s/ Jeffrey S. Tauber
------------------------------------
Jeffrey S. Tauber
Chairman and Chief Executive Officer
President and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
Signature Date
- --------- ----
/s/ Jeffrey S. Tauber September 22, 1999
- ------------------------
Jeffrey S. Tauber
Chairman and Chief Executive Officer
President (Principal Executive Officer) and Director
/s/ Jeffrey Leist September 22, 1999
- ------------------------
Jeffrey Leist
Chief Operating Officer and Chief Financial Officer
(Principal Accounting and Financial Officer)
/s/ Warren Struhl September 22, 1999
- ------------------------
Warren Struhl
Director
/s/ Robert Matluck September 22, 1999
- ------------------------
Robert Matluck
Director
/s/ Michael Kempner September 22, 1999
- ------------------------
Michael Kempner
Director
/s/ Ian S. Phillips September 22, 1999
- ------------------------
Ian S. Phillips
Director
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Cybershop.com, Inc. (formerly known as Cybershop International, Inc.):
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 16, 1999
included in Cybershop International, Inc.'s Form 10-K for the year ended
December 31, 1998 and to all references to our firm included in this
registration statement.
Arthur Andersen LLP
Roseland, New Jersey
September 22, 1999
