As filed with the Securities and Exchange Commission on March 26, 1999
Registration No.333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
CYBERSHOP INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3979226
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
116 Newark Avenue
Jersey City, New Jersey 07302
(Address of principal executive offices, including zip code)
Cybershop International, Inc. 1998 Directors' Stock Option Plan
Cybershop International, Inc. 1998 Stock Option Plan
(Full title of the plans)
Jeffrey S. Tauber
Chairman and Chief Executive Officer
Cybershop International, Inc.
116 Newark Avenue
Jersey City, New Jersey 07302
(Name and address of agent for service)
(201) 234-5000
(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) 468-4911
Calculation of
Registration fee
<TABLE>
<CAPTION>
===========================================================================================
Proposed
Proposed maximum maximum
offering aggregate Amount of
Title of securities to Amount to be price per offering registration
be registered registered(1) share(2) price(2) fee
===========================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share 1,070,000 shares $8.40 $8,990,343 $2,500
===========================================================================================
</TABLE>
(1) Of the shares of Common Stock being registered hereunder, (i) 1,000,000
shares are reserved for issuance pursuant to the Registrant's 1998 Stock
Option Plan, and (ii) 70,000 shares are reserved for issuance pursuant to
the Registrant's 1998 Directors' Stock Option Plan. Pursuant to Rule 416
of the Securities Act of 1933, as amended, this Registration Statement
also covers such number of additional shares of Common Stock as may become
available for issuance pursuant to the foregoing plans in the event of
certain changes in outstanding shares, including changes resulting from
reorganizations, recapitalizations, stock splits, stock dividends, reverse
stock splits and similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee. The
registration fee has been calculated in accordance with Rule 457(h), in
the case of 586,900 shares underlying options that remained available for
grant under the plans on the date of filing of this Registration Statement
(based on the average of the high and low sales prices of the Common Stock
on March 25, 1999, as reported on the Nasdaq National Market which was
$10.84375) and in the case of 483,100 shares underlying options
outstanding under the plans with an aggregate exercise price of
$2,626,146, the aggregate price at which the options may be exercised,
which averages $5.44 per share.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The document(s) containing the information specified in Part I of this
Registration Statement will be sent or given to participants in the Cybershop
International, Inc. 1998 Stock Option Plan and the Cybershop International, Inc.
1998 Directors' Stock Option Plan (the "Plans"), as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Act"). In accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission"), such documents are not required to be filed with the Commission
as part of this Registration Statement. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Act.
Item 2. Registrant Information and Employee Plan Annual Information
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(a) or
additional information about the Plans are available without charge by
contacting.
Jeffrey S. Tauber
Chairman and Chief Executive Officer, President
Cybershop International, Inc.
116 Newark Avenue
Jersey City, New Jersey 07302
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission are incorporated into
this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 filed with the Commission on March 19, 1999;
(b) The description of the Registrant's Common Stock, par value $.001 per
share, contained in the Registrant's Registration Statement on Form 8-A, filed
with the Commission on March 11, 1998 including any amendments or reports filed
for the purpose of updating such description; and
(c) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since December 31,
1998.
All reports and other documents filed by the Registrant pursuant to
sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date of this Registration Statement but prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of each such report or other document.
Item 4. Description of Securities
Not applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. 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,
3
<PAGE>
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.
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 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
4.1 The Cybershop International, Inc. 1998 Directors' Stock Option Plan,
(Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-42707) effective March 23, 1998
4.2 The Cybershop International, Inc. 1998 Stock Option Plan (Incorporated by
reference to the Registrant's Registration Statement on Form S-1 (File No.
333-42707) effective March 23, 1998
4.3 The Certificate of Incorporation, as amended (Incorporated by reference to
the Registrant's Registration Statement on Form S-1 (File No. 333-42707)
effective March 23, 1998)
4.4 By-Laws (Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (File No. 333-42707) effective March 23, 1998)
4.5 Specimen Common Stock Certificate (Incorporated by reference to the
Registrant's Registration Statement on Form S-1 (File No. 333-42707)
effective March 23, 1998)
5 Opinion of Davis & Gilbert LLP, filed herewith
23.1 Consent of Arthur Andersen LLP, filed herewith
23.2 Consent of Davis & Gilbert LLP (contained in the opinion previously filed
as Exhibit 5)
- --------------
4
<PAGE>
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(b) 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
(c) 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 paragraphs (1)(a) and (1)(b) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in 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.
(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
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant'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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described in Item 6 above, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the 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, the Registrant 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.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Newark, State of New Jersey, on March 26, 1999.
CYBERSHOP INTERNATIONAL, INC.
By: /s/ Jeffrey S. Tauber
-------------------------------------
Jeffrey S. Tauber
Chairman and Chief Executive Officer,
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated.
/s/ Jeffrey S. Tauber March 26, 1999
- -----------------------------------------------
Jeffrey S. Tauber
Chairman and Chief Executive Officer; President
(Principal Executive Officer) and Director
/s/ Jeffrey Leist
- ----------------------------------------------- March 26, 1999
Jeffrey Leist
Second Vice President, Chief Operating Officer and
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
/s/ Robert Matluck March 26, 1999
- -----------------------------------------------
Robert Matluck
Director
/s/ Warren Struhl March 26, 1999
- -----------------------------------------------
Warren Struhl
Director
/s/ Michael Kempner March 26, 1999
- -----------------------------------------------
Michael Kempner
Director
6
[Letterhead of Davis & Gilbert LLP]
March 26, 1999
Cybershop International, Inc.
116 Newark Avenue
Jersey City, New Jersey 07302
Re: Cybershop International, Inc. 1998 Stock Option Plan;
Cybershop International, Inc. 1998 Directors' Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to Cybershop International, Inc. (the
"Company") in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement') under the Securities Act of 1933, as
amended (the "Act"), to be filed with the Securities and Exchange Commission
with respect to an aggregate of 1,070,000 shares of Common Stock, par value
$0.001 per share (the "Shares"), issuable under the Cybershop International,
Inc. 1998 Directors' Stock Option Plan and the Cybershop International, Inc.
1998 Stock Option Plan (collectively, the "Plans").
We have examined such certificates, records, statutes and other
documents as we have deemed relevant in rendering this opinion. As to matters of
fact, we have relied on representations of officers of the Company. In our
examination, we have assumed the genuineness of documents submitted to us as
originals and the conformity with the original of all documents submitted to us
as copies thereof.
Based upon and subject to the foregoing, we are of the opinion that
when issued by the Company in accordance with the terms and conditions of the
Plans and following the receipt of consideration therefor in accordance with the
terms of the Plans, such Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
DAVIS & GILBERT LLP
7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
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
March 26, 1999
