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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 30, 1998
REGISTRATION NO. 333-63755
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7375 51-0384117
(STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ANDREAS EDER
STEFAN-GEORGE-RING 19-23
81929 MUNICH, GERMANY
49-89-9931-5105
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
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<S> <C> <C>
MICHAEL H. CHANIN, ESQ. HUBERT BESNER GUIDO SANDLER
POWELL, GOLDSTEIN, FRAZER BESNER KREIFELS WEBER BERLINER EFFEKTENBANK AG
& MURPHY LLP WIDENMAYERSTR 41 KURFUERSTENDAMM 119
1001 PENNSYLVANIA AVENUE, 80538 MUNICH, GERMANY 10711 BERLIN, GERMANY
N.W. 49-89-219-9920 49-308-902-1300
WASHINGTON, D.C. 20004
202-624-7235
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
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If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [ ]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock (par
value $.001 per
share)............... 1,500,000 shares $27 $30,000,000 $20,650(2)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee.
(2) Paid to the Commission on September 18, 1998. The registration statement
originally contemplated sale of 3,500,000 shares.
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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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
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CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
CROSS-REFERENCE SHEET
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I. Forepart of the Registration Statement and Forepart of the Registration Statement and
Outside Front Cover Page of Prospectus Outside Front Cover Page of Prospectus
II. Inside Front and Outside Back Cover Pages Inside Front and Outside Back Cover Pages
of Prospectus of Prospectus
III. Summary Information, Risk Factors and Prospectus Summary; Selected Consolidated
Ratio of Earnings to Fixed Charges Financial Data and Risk Factors (Ratio
of Earnings to Fixed Charges not
applicable)
IV. Use of Proceeds Use of Proceeds
V. Determination of Offering Price Underwriting, Outside Front Cover of
Prospectus
VI. Dilution Dilution
VII. Selling Security Holders Not Applicable
VIII. Plan of Distribution Front Cover Page of Prospectus;
Underwriting
IX. Description of Securities to be Registered Description of Capital Stock
X. Interest of Named Experts and Counsel Experts; Legal Matters
XI. Information with Respect to the Registrant Business; Legal Matters; Price Range of
Range of Common Stock; Consolidated
Financial Statements; Prospectus
Summary; Selected Consolidated Financial
Data; Management's Discussion and
Analysis of Financial Condition and
Results of Operations; Management;
Principal Stockholders
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are set forth in the following table. All amounts except the Securities and
Exchange Commission registration fee are estimated.
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<S> <C>
Securities and Exchange Commission registration fee......... $20.650
Printing and engraving expenses............................. *
Legal fees of Registrant.................................... *
Accountants' fees and expenses.............................. *
Miscellaneous............................................... *
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Total............................................. $ *
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* To be supplied by amendment
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law, Section 145, provides that a
corporation shall have the power to indemnify a director, officer, employee or
agent of the corporation, consistent with law, as may be provided by its
articles of incorporation, bylaws, general or specific action of its board of
directors or contract. The Company's Articles of Incorporation provide for
indemnification of directors, officers, employees or agents of the Company and
limit the liability of the directors of a corporation. The Company does maintain
directors and officer's insurance coverage.
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ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the years ended December 31, 1995, 1996 and 1997, and the eight
months ended August 30, 1998, the Company sold shares of Common Stock, Class A
Preferred, Class B Preferred and Class C Preferred, as follows:
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<CAPTION>
Securities Sold
----------------------------------- Purchasers Consideration Exemption
Date Number of Shares
Class of Stock
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<S> <C> <C> <C> <C>
June 1997 5,160,000 Series Cybermind Shares of Section 4(2)
B Preferred Cybernet AG
June 1997 1,200,000 Series 600,000 Cybermind Shares of Section 4(2)
A Preferred 262,500 Andreas Eder Cybernet AG
18,750 Roland Manger
75,000 Thomas Schulz
56,250 Rudolf Strobl
187,500 Holger Timm
June 1997 5,160,000 Common 2,257,500 Andreas Eder Shares of Section 4(2)
Stock 161,250 Roland Manger Cybernet AG
645,000 Thomas Schulz
483,750 Rudolf Strobl
1,612,500 Holger Timm
June 23, 1997 1,400,000(1) Private Placement $9,800,000 Regulation S
Series C Investors
Preferred
September 1, 1997 72,620 Common Stefan Heiligensetzer $619,106 Section 4(2)
Stock Lothar Bernecker Purchase of
Frank Marchewicz Artwise
Gerhard Schoenenberger
Rolf Strehle
December 1997 27,000 Common Eiderdown Trading Ltd Payment in Section 4(2)
Stock connection
with the
Eclipse
acquisition
August 1998 58,852 Common Open:Net Sellers Shares of Section 4(2)
Stock Thomas Egner Open:Net
Uwe Hagenmeier valued at
Markus Kress $94,286
Oliver Schaeffer
May 1998 700,000 Common Private Placement $12,600,000 Regulation S
Stock Investors
Closing of the 300,000 Common Vianet Sellers: Shares of Section 4(2)
Vianet Stock Tristan Libischer Vianet
Acquisition Alexander Wiesmueller
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(1) Between May 31, 1998 and September 30, 1998, all of the 1,400,000 shares of
Series C Preferred Stock were converted to the same number of shares of
Common Stock by the holders thereof.
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ITEM 16(A). EXHIBITS
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1.1** Amended Underwriting Agreement
2.1** Agreement and Plan of Merger between the Registrant and
Cybernet Internet Services International, Inc., a Utah
corporation, dated October 9, 1998
3.1** Certificate of Incorporation
3.2** Bylaws
5.1*** Amended Opinion of Powell, Goldstein, Frazer & Murphy, LLP
10.1** Sale and Assignment of Business Shares of Artwise GmbH
Software Solutions
10.2** Sale and Assignment of Shares in Open:Net Internet Solutions
GmbH
10.3** Sale of Eclipse srl
10.4** Stock Purchase Agreement; Vianet
10.5** Stock Purchase Agreement; Cybernet AG
10.6** Pooling Agreement (Cybernet AG Acquisition)
10.7** Pooling Agreement (Artwise Acquisition)
10.7.1** Schedule of Additional Artwise Pooling Agreements
10.8** Consulting Agreement (Eclipse Acquisition)
10.9** Employment Agreement (Andreas Eder)
10.10** Employment Agreement (Alessandro Giacalone)
10.11** Employment Agreement (Christian Moosmann)
10.12** Employment Agreement (Rudolf Strobl)
10.13** Lease Munich
10.14** Form of Miller Leasing Agreement
10.15** Info AG Agreement
10.16** Ebone Agreement
10.17** Feratel Agreement
10.18** Stock Option Plan
10.19** Director Stock Option Plan
21.1** Subsidiaries
23.1*** Consent of Powell, Goldstein, Frazer & Murphy LLP (included
in Exhibit 5.1)
23.2*** Amended Consent of Schitag Ernst & Young AG
23.3** Consent of Ernst & Young Wirtschaftsprufungs-und
Steuerberatungsgesellschaft m.b.H
24** Power of Attorney
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* To be filed by amendment
** Previously filed
*** Attached hereto
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriter
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, 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 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
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against public policy as expressed in the Securities Act and will be governed by
final adjudication of such issue.
The undersigned Registrant hereby undertakes that it will:
(1) For purposes of determining any liability under the Securities
Act, treat the information omitted from the form of Prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of Prospectus filed by the Registrant pursuant to Rule
424(b)(1), or (4) or 497(h) under the Securities Act as part of this
Registration Statement as of the time the Commission declared it effective.
(2) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of Prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the initial
bona fide offering of those securities.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
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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 of Amendment No. 5 to Form S-1 and has duly caused this
Registration Statement, or amendment thereto, to be signed on its behalf by the
undersigned, thereunto duly authorized, on November 30, 1998.
CYBERNET INTERNET SERVICES
INTERNATIONAL, INC.
By: /s/ ROBERT FRATARCANGELO
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Robert Fratarcangelo
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement, or amendment thereto, has been signed by the following
persons in the capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ ROBERT FRATARCANGELO Chairman of the Board November 30, 1998
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Andreas Eder* Executive Officer
/s/ ROBERT FRATARCANGELO Director November 30, 1998
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Tristan Libischer*
Director November , 1998
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Holger Timm
/s/ ROBERT FRATARCANGELO Director November 30, 1998
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Hubert Besner*
/s/ ROBERT FRATARCANGELO Director November 30, 1998
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G.W. Norman Wareham*
/s/ ROBERT FRATARCANGELO Director November 30, 1998
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Robert Fratarcangelo
/s/ ROBERT FRATARCANGELO Principal Accounting November 30, 1998
- ------------------------------------------------ and Financial Officer
Christian Moosmann*
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* Powers of Attorney authorizing Robert Fratarcangelo to sign this Amendment to
the Registration Statement on behalf of the persons listed above, designated
by asterisks, in the capacities set forth opposite their respective names, are
on file with the Securities and Exchange Commission.
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EXHIBIT 5.1
[LETTERHEAD OF POWELL, GOLDSTEIN, FRAZER & MURPHY LLP]
November 30, 1998
Cybernet Internet Services International, Inc.
Stefan-George-Ring 19-23
81929 Munich, Germany
Re: Registration Statement on Form S-1 (File Number 333-63755)
Ladies and Gentlemen:
We have served as counsel for Cybernet Internet Services International,
Inc., a Delaware corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), pursuant
to a Registration Statement on Form S-1 (the "Registration Statement"), of
1,500,000 to 1,800,000 shares of common stock, par value $.001 per share, of the
Company (the "Shares"), to be offered and sold by the Company.
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company as we have deemed necessary and advisable.
In all such examinations, we have assumed the genuineness of all
signatures on all originals and copies of documents we have examined, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all certified, conformed or photostatic copies. As to
questions of fact material and relevant to our opinion, we have relied upon
certificates or representations of Company officials and of appropriate state,
local or federal officials.
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the sale and issuance of the Shares pursuant to the
Registration Statement and upon the Company's receipt of payment
therefore in the amount specified in the Registration Statement, the
Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to our being named in the Registration Statement. In
giving such consent, we do not concede that we are experts within the meaning of
the Act.
Very truly yours,
/s/ POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
Powell, Goldstein, Frazer & Murphy LLP
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EXHIBIT 23.2
We consent to the reference to our firm under the caption "Experts" and to the
use of our reports dated May 6, 1998 and November 10, 1998 in the Registration
Statement (Form S-1) and related Prospectus of Cybernet Internet Services
International, Inc. for the registration of 1,500,000 shares of its common
stock.
SCHITAG ERNST & YOUNG AG
Munich, Germany
November 30, 1998
