As filed with the Securities and Exchange Commission on June 10, 1999.
Registration No.333-75507
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 2 TO
FORM S-3
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
(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 International, 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. |_|
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 International, Inc.
Common Stock
490,450 Shares
This is an offering of 490,450 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 June 3, 1999 the last sale price was $6.8125
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 June 10, 1999.
<PAGE>
Principal Executive Cybershop International, Inc.
Offices: 116 Newark Avenue
Jersey City, New Jersey 07302
(201) 234-5000
There follows a summary of important information on our business, strategic
alliances and recent developments:
Our Business: We sell brand name merchandise manufactured by others
through our on-line stores located on the World Wide
Web at cybershop.com, and electronics.net and in the
Department Store Area of the AOL Shopping Channel.
Substantially all of our revenues are generated from
the on-line sale of merchandise.
cybershop.com
Our online store accessed at cybershop.com provides
high quality color pictures and detailed information
relating to the merchandise that we sell that are
conveniently organized by brand and category similar to
those found at department stores. Shoppers can search
and browse throughout the store and place selected
merchandise in a virtual shopping bag that facilitates
the process of collecting items, subtotaling purchases
and reaching the purchase decision. Recently,
cybershop.com refocused its marketing strategy and
began offering a broad selection of designer and brand
name merchandise at deep discounts of between 20% to
80% in a variety of categories, including men's,
women's and children's apparel, housewares,
electronics, toys, luggage, home office products,
jewelry and watches.
electronics.net
On June 14, 1998, we entered into a joint venture to
develop a new online store with TOPS Appliance City,
Inc., or TOPS, a retailer of electronic merchandise,
appliances and computers. The online store,
electronics.net was launched in October 1998 and offers
a wide selection of electronic brand name 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 bag, purchase the
items and have them shipped within 24 hours of
purchasing.
CyberShop's AOL Store
As one of the services offered to its users, America On
Line, or AOL, has established an online shopping area
that is comprised of more than 200 stores. It can be
accessed by AOL users by clicking on the "Shopping"
button on AOL's website. "CyberShop" is one of the
three online stores prominently listed and accessible
by clicking on the "Department Store" button of the AOL
shopping channel. The Cybershop AOL store offers for
sale substantially the same merchandise and has the
same features as our store accessed at cybershop.com on
the Internet. The Cybershop AOL store was established
in order to access AOL's large customer base. We
believe that because this store is presented to the AOL
user in the familiar AOL environment, the AOL users are
more comfortable shopping there than they might be in a
less familiar
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Internet environment. In addition, from time to time
some of our merchandise is featured in select AOL
shopping events such as Santa's Workshop, Valentine's
Day, Mother's and Father's Days, Back-to-School, and
on the AOL welcome screen, all of which are promoted
throughout the AOL service. In December 1998, we
signed a one year renewal of our marketing agreement
with AOL.
Strategic Alliances We have pursued and continue to pursue strategic
alliances in order to generate additional browsers at
our online stores through referrals from other
websites. Our agreement with AOL and our agreements
with Excite, Yahoo!, Microsoft, Amazon.com and E-Trade
are intended to have this effect. We are interested in
developing joint ventures with partners who can help us
to enter new markets and to offer new products. The
joint venture with TOPS is an example, where we joined
our expertise in online commerce with the existing
operations capacity of a traditional retailer seeking
to sell its products online.
In the second quarter of 1998, we entered into a
two-year agreement with Excite, Inc. Under the terms of
the agreement cybershop.com will be more prominently
presented than any other online retailer in the Excite
and WebCrawler services. Also in the second quarter of
1998, we announced a one-year marketing agreement with
Microsoft's MSN Shopping Channel. Under the terms of
that agreement electronics.net is displayed as one of
the stores within its electronics store category. In
the fourth quarter, we also signed marketing agreements
with two premier online transaction sites, Amazon.com
and E*Trade, in order to generate additional customers
through referrals from those websites.
On March 15, 1999 we entered into agreements with
Yahoo!, a leading global internet media company. The
agreements expire on December 31, 1999. Under the
agreements cybershop.com will be featured in Yahoo!
Shopping, a shopping service where consumers can shop
with more than 4,000 merchants. In addition,
cybershop.com's merchandise is prominently featured on
the Yahoo! Shopping home page, throughout various areas
of Yahoo! Shopping and on related search results pages.
We intend to negotiate additional marketing
arrangements with other leading internet search
engines, guides and online communities. We believe that
strategic alliances will increase the volume of our
shoppers and enhance our brand recognition. We recently
established an "Affiliates Program" so that third party
websites may register with us and establish hyperlinks
to one or all of our online stores.
Recent Developments: On March 26, 1999, we announced the launch of our new
online auction, Cybershop Auctions
(auctions.cybershop.com). Our entry into the auction
market is part of our marketing strategy to support our
recently adopted refocused merchandising strategy to
acquire new customers interested in purchasing off
price merchandise.
On June 7, 1999, we acquired The Magellan Group, Inc.
through a merger. Pursuant to the merger agreement
Magellan stockholders received an aggregate of
$5,000,000 in cash, 1,000,000 shares of common stock
and are entitled to receive earn-out payments in
certain circumstances. 150,000 of the shares issued in
the merger are included in this prospectus. Magellan is
a direct marketer of consumer products.
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<PAGE>
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 December 31, 1998, we
significant losses. have had cumulative operating losses of $11
million, including a net operating loss of
approximately $7.9 million for the fiscal year
ended December 31, 1998. We believe that we will
continue to incur significant operating
losses for the foreseeable future and these
losses may be higher than our current operating
losses.
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.
Competition is intense in the The online retail business is new, rapidly
online retail business. There evolving and intensely competitive. We don't
can be no assurance that we know whether we will be able to compete
will be able to compete successfully. Barriers to entry into the online
successfully. retail business 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
harm our business. alliances. We can't be sure that our existing
relationships will be extended beyond their
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<PAGE>
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.
We will need additional funds Based on current levels of operations and
to sustain and expand our planned growth, we anticipate that our existing
sales and marketing activities capital resources, together with cash generated
and strategic alliances from operations and the proceeds of our initial
beyond the next 12 month public offering, will enable us to maintain our
period. There can be no operations at existing levels for the next 12
assurance that such financing months. We will require additional funds to
will be available. sustain and expand our sales and marketing
activities and our strategic alliances beyond 12
months. Adequate funds for these and other
purposes on terms acceptable to us may not be
available when we need them. Raising adequate
funds may result in significant dilution to
existing stockholders. Our lack of tangible
assets to pledge could prevent us from
establishing a source for additional financing.
We don't know if financing will be available in
amounts or on terms acceptable 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 stores. Our current suppliers may decide not to
our relationships with our sell to us on our current terms. We may not be
suppliers. Loss of these able to establish new supplier relationships. A
relationships could harm change of terms or the loss of existing supplier
our business. relationships could hurt our business.
Our revenues and profits are Our future revenues and profits are strongly
dependent on the continuous dependent on the widespread acceptance and use
growth of online commerce. of the Internet by consumers. We don't 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 adequate 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 in the future laws
additional costs for our and regulations may be adopted with respect to
business. 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 copyright or trademark infringement based on
from the Internet. To the material downloaded from our websites. Our
extent 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 defending against these claims.
us, harm our business.
We cannot guarantee that our We cannot guarantee that our systems will be
systems will be Year 2000 Year 2000 compliant or that the Year 2000
compliant or that the problem will not hurt our consumer business.
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<PAGE>
Year 2000 problem will not We have been working with our significant
adversely affect our business. suppliers and service providers 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
harm our business. affects 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 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 AOL and Yahoo! stores to receive and
fulfill orders. Disruptions or failures in the
AOL or Yahoo! transaction processing system
would harm our business. Our AOL and Yahoo!
stores are also vulnerable to AOL and Yahoo!
system-wide interruptions and failures.
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 plan and we may not
carry sufficient business interruption insurance
to compensate us for losses from a major
interruption.
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
to or infringe on our service parties from acquiring domain names that are
marks. similar to, 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"
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.
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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 and Tennessee.
taxes could harm our business. 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.
A large block of previously Owners of a large block of shares which were
restricted shares can be sold previously restricted can be sold at this time.
at this time possibly The sale of a large number of these shares could
causing a lowering in the lower the price of our shares or make it harder
price of our shares. to attract new investors.
Issuance of authorized We have authorized 5,000,000 shares of preferred
preferred stock in the future stock which may be issued by the Board. Issuance
may prevent a change of of such preferred stock could delay, deter or
control, making the company prevent a change in control, making the company
less attractive as an less attractive as an acquisition candidate.
acquisition candidate.
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.
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<PAGE>
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 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 International, Inc.
116 Newark Avenue
Jersey City, New Jersey 07302
(201) 234-5000
Attn: Jeffrey A. Leist
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 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.
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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, 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 the company's
initial offering. The list of selling stockholders includes Ian S. Phillips, a
director of the company, C.E. Unterberg, Towbin and Fahnestock & Co., Inc. the
underwriters of the company's initial public offering. Robert Matluck, a
director of the company is currently a Managing Director of C.E. Unterberg,
Towbin. Except for the underwriters and Messrs. Phillips 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 the 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 June 7, 1999.
<TABLE>
<CAPTION>
Shares
Shares of Owned Percentage of
Beneficially Shares After Shares Owned
Name Owned Offered Offering After Offering
- ---- ----- ------- -------- --------------
<S> <C> <C> <C> <C>
Big Wave NV 110,450 110,450 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 75,000 425,000 4.9%
Howard Kuntz III 490,000 75,000 425,000 4.9%
</TABLE>
PLAN OF DISTRIBUTION
The shares are being registered in order to facilitate their sale from
time to time by the selling stockholders, or by their transferees or other
successors, as market conditions may permit. The selling stockholders have not
entered into any underwriting arrangements. We are unable to predict when, if at
all, any of the selling stockholders will sell the shares, as sales will be made
solely at the discretion of each selling stockholder. The sale of the shares by
the selling stockholders and/or their 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;
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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 stockholders in amounts to be
negotiated immediately prior to the sale. The selling stockholders and brokers
and dealers engaged by them 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.
The company has agreed to pay the filing fees, costs and expenses
associated with the registration statement exclusive of fees of counsel to the
selling stockholders, or any of them, 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.
The company has agreed to indemnify the selling stockholders, or their
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. The company's 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 the company's certificate of incorporation,
the company has 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.
LEGAL MATTERS
The validity of the shares being offered in this prospectus is being
passed upon for the company 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.
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================================================================================
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 .............................................................. 4
Selling Stockholders ...................................................... 9
Plan of Distribution ...................................................... 9
Disclosure of Commission Position on
Indemnification For Securities Act Liabilities .......................... 10
Legal Matters ............................................................. 10
Experts ................................................................... 10
================================================================================
================================================================================
490,330 Shares
CYBERSHOP
INTERNATIONAL,
INC.
Common Stock
_______________
PROSPECTUS
_______________
June 10, 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 ................... $ 3,269
Accounting fees and expenses............ $ 2,500
Legal fees and expenses................. $15,000
Printing expenses....................... $ 3,000
Miscellaneous........................... $ 1,231
-------
Total................................ $25,000
- -----------
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).
(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, previously 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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<PAGE>
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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<PAGE>
(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 June 7, 1999.
CYBERSHOP INTERNATIONAL, 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 June 7, 1999
- -----------------------------------
Jeffrey S. Tauber
Chairman and Chief Executive
Officer President (Principal
Executive Officer) and Director
/s/ Jeffrey Leist June 7, 1999
- -----------------------------------
Jeffrey Leist
Chief Operating Officer and
Chief Financial Officer
(Principal Accounting and
Financial Officer)
/s/ Warren Struhl June 7, 1999
- -----------------------------------
Warren Struhl
Director
/s/ Robert Matluck June 7, 1999
- -----------------------------------
Robert Matluck
Director
/s/ Michael Kempner June 7, 1999
- -----------------------------------
Michael Kempner
Director
/s/ Ian S. Phillips June 7, 1999
- -----------------------------------
Ian S. Phillips
Director
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To 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
June 7, 1999
