As Filed with the Securities and Exchange Commission on August 2, 2000
Registration No. 333-41120
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------
GENESISINTERMEDIA.COM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4710370
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
5805 Sepulveda Blvd., 4th Floor
Van Nuys, California 91411
(818) 902-4300
------------------------------------------------------------------------------
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Ramy Y. El-Batrawi
GenesisIntermedia.com, Inc.
5805 Sepulveda Blvd.
Van Nuys, California 91411
(818) 902-4300
----------------------------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
-----------------
Copy to:
Theodore R. Maloney, Esq.
Nida & Maloney, LLP
800 Anacapa Street
Santa Barbara, California 93101
-----------------
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on the form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
If any of the securities 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.
<TABLE>
-----------------
CALCULATION OF REGISTRATION FEE
======================================== =================== ==================== ==================== ====================
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Amount to be Aggregate Price Aggregate Offering Amount of
Title of Shares to be Registered Registered per Share(1) Price(1) Registration Fee(2)
======================================== =================== ==================== ==================== ====================
Common Stock, par value $.001 per share 2,788,539 $15.188 $42,352,330 $11,181
======================================== =================== ==================== ==================== ====================
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
amount of the registration fee on the basis of the average of the high and
low reported sale prices of a share of common stock of $15.188 on July 28,
2000, as reported by the Nasdaq National Market.
(2) A fee of $10,877 was previously paid.
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
(Subject to completion, dated August __, 2000)
2,788,539 SHARES
GENESISINTERMEDIA.COM, INC.
COMMON STOCK
The shares of common stock of GenesisIntermedia.com, Inc. covered by this
prospectus may be sold from time to time by the stockholders specified in this
prospectus or their pledgees, donees, transferees or other successors in
interest. This prospectus relates to:
o 2,788,539 shares, of which:
o 142,858 are shares which may in the future be issued to certain
selling stockholders upon the conversion of outstanding shares of
our series A preferred stock;
o 532,252 are shares which may in the future be issued to certain
selling stockholders upon the conversion of outstanding shares of
our series B preferred stock;
o 1,651,429 are shares which may in the future be issued to certain
selling stockholders upon the exercise of outstanding warrants;
and
o 462,000 are shares of outstanding common stock; and
o a presently indeterminate number of additional shares that may be
issuable upon stock splits, stock dividends, recapitalizations or
other similar transactions, in accordance with Rule 416 under the
Securities Act of 1933.
Those number of shares as to which this prospectus relates is based on the
outstanding shares of common stock and conversion of outstanding series A and B
preferred stock and the exercise of warrants at the current applicable
conversion or exercise rate; however, the shares issuable upon conversion of the
series A and B preferred stock or upon exercise of the warrants are subject to
adjustment and could be more or less than the estimated amount listed in this
prospectus, depending on factors which cannot be predicted at this time. We will
not receive any of the proceeds from the sale of the shares by the selling
stockholders, but we may receive the proceeds from the exercise of the warrants
by the selling stockholders.
The common stock is listed on the Nasdaq National Market under the symbol
"GENI" and on the Pacific Exchange under the symbol "GNS." On July 28, 2000, the
last sale price of the common stock was $15.188 per share.
An investment in the shares offered this prospectus entails a high degree
of risk. See "Risk Factors" beginning on page 4 for information that should be
considered by prospective investors.
----------------------------
Neither the Securities and Exchange Commission nor or any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
----------------------------
The date of this prospectus is August __, 2000.
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
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 you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede previously filed
information, including information contained in this prospectus.
We incorporate by reference the documents listed below and any future
filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until this offering has been completed:
o The description of our common stock, contained in our
registration statement filed on Form 8-A filed on December 9,
1998;
o The Current Report on Form 8-K dated December 15, 1999 filed with
the Commission on February 24, 2000;
o The Annual Report on Form 10-KSB for the fiscal year end dated
December 31, 1999 filed with the Commission on April 14, 2000;
o The Quarterly Report on Form 10-QSB for the period ended March
31, 2000 filed with the Commission on May 15, 2000; and
o The Current Report on Form 8-K dated May 3, 2000 filed with the
Commission on May 15, 2000.
You may request free copies of these filings by writing or calling us at:
GenesisIntermedia.com, Inc.
5805 Sepulveda Boulevard, 4th Floor
Van Nuys, California 91411
(818) 902-4300
Attn: Investor Relations
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
The selling stockholders are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of the document.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and current reports,
proxy materials and other information with the SEC. You may read and copy these
reports, proxy materials and other information at:
<TABLE>
<S> <C> <C>
Securities & Exchange Regional Office of the SEC Regional Office of SEC
Commission 7 World Trade Center 500 West Madison Street
Public Reference Room Suite 1300 Suite 1400
450 Fifth Street, N.W. New York, NY 10048 Chicago, IL 60661-2511
New York, NY 10048
</TABLE>
You can request copies of these documents by writing to the SEC and paying
a fee for the copying costs. Please call the SEC at 1-800-SEC-0330 for more
information about the operation of the public reference room. Our SEC filings
are also available at the SEC's internet web site at "http:\\www.sec.gov." You
may also visit our web site at "http:\\www.genesisintermedia.com."
2
<PAGE>
GENESISINTERMEDIA.COM, INC.
GenesisIntermedia.com, Inc. uses its core competencies to develop Internet
technologies and Internet companies. We own distinct marketing channels, and
through CENTERLINQ, are a leading provider of public Internet access portals in
shopping malls. We have been building an infrastructure to build, develop and
nurture new Internet technology companies and businesses. We market our products
and services, which we develop, license exclusively or distribute for third
parties, utilizing network and cable television, radio, newspapers, magazines,
the Internet and our CENTERLINQ network. As it has done with CENTERLINQ, we
leverage our strength in operations, marketing and the deployment of traditional
and new media to advance new and innovative technologies within strategically
identified market segments.
Historically, our operation has consisted of the marketing, advertising and
sales of our own products and those of our clients utilizing traditional
marketing channels. While we continue to utilize conventional media to fulfill
our marketing needs and those of our clients, our focus more recently has been
on investing in and bringing to market innovative technology-based concepts that
center around use of the Internet.
CENTERLINQ is an Internet-based interactive network consisting of public
access kiosks, exclusively in shopping malls currently but adaptable to a wide
range of venues. CENTERLINQ is also accessible through the Internet at
www.CENTERLINQ.com. Advertising displayed on large screen monitors on and
adjacent to the public access kiosks enhances network usage and revenues. We
have invested heavily to support the operational needs of CENTERLINQ and to
attain a leadership position as a network of public Internet portals.
Investments in CENTERLINQ included those made in network architecture, expansion
of information services, installation, field maintenance and client service
personnel, programming and information technology professionals, research and
development, quality assurance, and the build out of physical space and
infrastructure to support the operations.
These investments enabled us to announce in December 1999 that CENTERLINQ
had reached critical mass. Currently, the systems were installed in 20 shopping
malls across the United States including malls in California, Nevada, Arizona,
Michigan, Pennsylvania and Indiana. Traffic at these malls could enable
CENTERLINQ to create up to approximately 22 million impressions per month. We
foresee CENTERLINQ network expansion in additional malls through North America,
and are discussing expansion in Europe and Latin America.
With the CENTERLINQ experience not only proving successful, but teaching us
how to apply those same development standards and resources to other businesses
and technologies in order to achieve an effective rollout of product, our
management now views its role as a creator of long-term shareholder value more
closely in alignment with its ability to propagate additional Internet-based
companies in accordance with our "incubation" process.
We, therefore, seek to identify acquisition candidates whose core
competencies include the development of Internet technology, networking
solutions, interactive concepts and a variety of high-growth areas that can be
integrated into valuable business-to-business and business-to-consumer
companies. We intend to expand client participation in interactive e-commerce
and the CENTERLINQ programs, particularly as CENTERLINQ is rolled out throughout
regional shopping malls across the United States and into additional public
access areas. Presently, the focus is on marketing efforts with local or
regional advertisers, or local representatives of national organizations. We
intend to seek additional national advertisers and participants in CENTERLINQ
once the deployment of the network has sufficient national scope.
Even though we are entering emerging markets and have begun to generate
revenue from CENTERLINQ, we continue to rely on marketing production for a
substantial part of our revenues. Proprietary products sold by us through
integrated marketing capabilities including audio and video tapes and companion
material productions based on the book Men Are From Mars, Women Are From Venus,
by John M. Gray, Ph.D., the Money Mastery financial mentoring products, and
other new products we have recently acquired. We expect that revenue from the
marketing products will continue to account for a major percentage of our
revenues in the foreseeable future but that, while revenues are expected to
rise, the overall percentage of revenues that can be attributed to the these
marketing activities will decline as our refined business plan that concentrates
on the development of business-to-business and business-to-consumer enterprises
that utilize Internet technology continues.
We were incorporated in Delaware in October 1998. Our facilities and
executive offices are located at 5805 Ventura Boulevard, 4th Floor, Van Nuys,
California 91411, and our telephone number is (818) 902-4300.
3
<PAGE>
RISK FACTORS
This prospectus contains forward-looking statements that involve risks and
uncertainties. Genesis' actual results could differ materially from those
anticipated in these forward-looking statements as a result of numerous factors,
including those set forth in the following risk factors and elsewhere in this
prospectus and the documents incorporated in this prospectus. In evaluating our
business, you should consider carefully the following factors in addition to the
other information set forth or incorporated in this prospectus.
Because our revenues depend on a limited number of products and clients, we
must retain our current products and clients or attract new ones
Our revenues to date have been derived from a relatively small number of
products and clients. If there is a significant reduction in product sales or if
we lose one of our larger products, our business will be adversely impacted. In
addition, a decrease in the marketing expenditures of our clients or the loss of
a major client would also have an adverse affect on our business. In 1999, our
two largest products constituted approximately 49% of our revenues and sales of
media time in connection with two product lines constituted approximately 13% of
our revenues. In addition, our products and the sales of media time are
frequently based on oral agreements that may be terminated at any time. Our
failure to diversify our product line and expand our client base could adversely
affect our results our operations.
If our new products are not successful or if we are unable to continue to sell
media time to third parties, our business will be adversely affected
We only began to market new products that we acquired from third parties in
1998. Prior to that, in 1997, approximately 41% of our revenues were derived
from media sales to a corporation that is owned by a majority stockholder of
ours. In 1998, approximately 25% of our revenues were derived from media sales
to this corporation. In addition, revenue from telemarketing for products owned
by this client accounted for approximately 78% of our total telemarketing
revenues in 1997 and approximately 90% in 1998. In 1999, none of our media sales
and none of telemarketing revenues were derived from transactions with this
client. We must begin to derive significant revenues from our new products and,
to the extent we continue our media sales business, continue to make media sales
to third parties for our business to succeed.
Recent expansion into new interactive multimedia markets has not yet generated
significant revenue
Since 1998, we have expanded our media offerings to include interactive
multimedia technologies, including the Internet, and interactive kiosks through
the CENTERLINQ network to businesses seeking to conduct electronic commerce. The
expansion included the formation of our Genesis Intermedia, Inc. subsidiary.
However, revenue generated by this subsidiary has not been significant and
capital investments to develop and deploy the CENTERLINQ network have been
substantial. We expended approximately $7,007,768 in 1999 and $5,857,815 in the
six months of 2000 on CENTERLINQ network development. We expect that we will
continue to invest in the building of our infrastructure and expansion. As a
result, we expect to experience losses in these areas in 2000.
Our ability to compete effectively will be adversely affected if our marketing
channels and technologies do not gain acceptance
We are developing multidisciplinary marketing that we believe will be
competitive. This development includes choices about the marketing channels we
employ and using the appropriate technology to exploit those channels. If our
marketing channels are not successful or if we fail to effectively exploit those
channels, our business will be adversely affected.
Our ability to expand our business will be significantly limited if we cannot
obtain additional financing
To accomplish our plans to expand CENTERLINQ, purchase new products and
media time to advertise these products, we need substantial additional capital
which we may not be able to obtain. We are currently negotiating with lenders to
obtain additional financing, but this additional financing may not be available
on terms that are favorable to us, or at all. If adequate funds are not
available, or are not available on acceptable terms, our ability to implement
our expansion plans will be significantly limited.
4
<PAGE>
Our success depends on our ability to retain Ramy El-Batrawi and other key
personnel
We believe that the development of our business to date has been largely
the result of the services of our chief executive officer, Ramy El-Batrawi.
Although we are developing a management team, the loss of Mr. El-Batrawi's
services would have a detrimental impact on the further development of business.
Our success also depends on our ability to hire and retain other qualified
employees. We may not be able to locate and hire those employees because of the
intense competition in our industry for personnel with the requisite skills.
Dependence on a small number of clients and products
A relatively small number of clients and products have historically
contributed significantly to our revenues. If there is a significant reduction
in product sales or in a large client's marketing expenditures or the loss of
one or more of our largest products or clients, and this is not replaced by new
products or client accounts or an increase in business from existing products or
clients, then we will have a significant adverse impact on us. However, because
we intend to continue to rely on broad-or multi-market products like the Men
From Mars, it is possible that the dependence on revenues from a limited number
of products will continue in the future. If we do not diversify our product
lines and client base, we may put ourselves in a position of risk that the loss
or under-performance of a single product or client may materially affect us.
Related party transactions have historically generated a substantial portion of
our revenue
Selling media time to Trade Your Way To Riches, Inc., a corporation owned
by our majority stockholder, represented none of our revenue in 1996,
approximately 41% in 1997 and approximately 25% in 1998. In addition, in 1997
and 1998, revenue from Trade represented approximately 90% and 78% of the
Company's revenue from telemarketing for products owned by its clients. Although
total revenue related to Trade in 1999 declined to less than 1% of total
revenue, and we anticipate that Trade-related revenue will continue to represent
less than 1% of future revenue, we have only since October 1998 begun to sell
media time to a significant number of new clients. In addition, we have recently
begun marketing the new products we acquired in the late 1998. Any inability to
continue media sales to third parties or failure of our new products could
significantly and adversely affect us.
Our recent restructuring efforts may not be successful in addressing quarterly
fluctuations
Our management believes that our business structure of offering
multi-disciplinary marketing for our own and third parties' disparate products
and services is unique. We believe the uniqueness of this structure, as well as
the inherent uncertainty of forecasting product sales generally will make
quarterly forecasts difficult and quarterly results will fluctuate. These
quarterly fluctuations and resulting deviations from forecast results may cause
volatility in the price for the common stock that may not reflect long-term
results or prospects. We expect these fluctuations to be exaggerated as we
execute our acquisition strategy, which will involve direct expenses, as well as
new product development and marketing expenses. The magnitude and timing of
these expenses will vary. Integration of disparate products, services and
distribution channels that are developed internally, acquired or contracted with
third parties to market, will also contribute to the unpredictability of
quarterly results.
Acceptance of marketing channels and technologies are key to our ability to
compete
We are developing multi-disciplinary marketing that we believe will be
competitive. This development includes choices about the right marketing
channel--such as CENTERLINQ and its versatile kiosk system for deployment in
regional shopping malls and other public access areas--and the right technology
to exploit that channel--the Internet and the interface of the kiosks. A number
of factors related to those choices may adversely affect competitiveness,
including:
o rapid technological changes that make these or future offerings
obsolete;
o changes in, or mistakes in gauging user and client requirements and
preferences; and
o frequent new product and service introductions by others or evolving
industry standards and practices in emerging markets that may promote
adoption of technologies other than those chosen by us.
5
<PAGE>
The oral agreements on which much of our business relies are terminable at will
We frequently market products on the basis of oral agreements that may be
terminated by either party at any time, and there are no written contracts
relating to the sale of media time to clients. Because of those terminable
arrangements, any of our clients may discontinue utilizing their services at any
time in the future.
An adverse determination against us by the Commodity Futures Trading
Commission could adversely affect our business
We may be subject to regulation by the Commodity Futures Trading
Commission, which regulates commodities trading. On November 14, 1997, the CFTC
issued an order authorizing the issuance of subpoenas and depositions in a
private investigation involving Jake Bernstein and MBH Commodity Advisors.
Although the order does not reference GenesisIntermedia.com, Inc., its employees
or affiliates, the CFTC has nonetheless requested that we provide various
documents arising from our involvement in the production and marketing of an
infomercial titled Success and You which promotes and markets a video series
titled Trade Your Way To Riches. The infomercial Success and You involves the
marketing of videos that provide instruction regarding trading strategies. The
CFTC has contended that, by virtue of our activities in producing and marketing
the video, there may be a requirement to be registered in some capacity with the
CFTC. In the event that the CFTC brings an enforcement action against us by
virtue of our failure to register, or against Trade Your Way To Riches, Inc.,
with whom we have done significant business in the past, and which is owned by
our majority stockholder, any adverse determination or settlement could
adversely affect us. The range of possible sanctions available to the CFTC in
enforcement actions generally include a simple request to become registered, a
cease and desist order--which may, if successfully applied to us or Trade,
terminate sales of some Trade Your Way To Riches products or services--and a
possible order of disgorgement of profits--which could, again if applied to us,
result in substantial payments by us. The CFTC may still bring an enforcement
action against us or it may seek to settle the matter. Based on analysis of all
of the facts and legal advice from our regulatory counsel, we believe that the
CFTC proceeding can be settled on terms that will not materially adversely
affect us, or that, if not settled, the final resolution will not have a
material adverse effect on us.
Future sales of our common stock by existing stockholders could depress our
stock price
As of June 30, 2000, we had 5,517,818 shares of common stock outstanding,
and approximately 600,000 additional shares of common stock were issuable upon
the exercise of outstanding employee stock options, of which 275,000 where
exercisable. All of the shares underlying those options have been registered for
resale on the SEC's Form S-8. Of the outstanding shares, 2,000,000 are freely
tradable and the balance are restricted, but may be sold pursuant to Rule 144.
We are registering 2,788,539 shares of our common stock in the registration
statement of which this prospectus is a part, 390,000 of which are currently
outstanding restricted shares. All of the shares being registered in connection
with this prospectus may be sold in the public market.
Sales of a substantial number of shares of our common stock in the public
market, or the perception that substantial sales might occur, could cause the
market price of our stock to decrease significantly. This could also make it
more difficult for us to raise capital by selling stock or use our stock as
currency in acquisitions.
International expansion may result in new business risks
If we expand internationally, this expansion could subject us to new
business risks, including:
o adapting to the differing business practices and laws in foreign
commercial markets;
o difficulties in managing foreign operations;
o limited protection for intellectual property rights in some countries;
o difficulty in accounts receivable collection and longer collection
periods;
o costs of enforcement of contractual obligations;
o impact of recessions in economies outside the United States; currency
exchange rate fluctuations; and
o potentially adverse tax consequences.
6
<PAGE>
Market volatility may have an adverse effect on our stock price
The trading price of our common stock has fluctuated widely in the past
and, like most stocks, it will continue to fluctuate in the future. The price
could fluctuate widely based on numerous factors, including:
o quarter-to-quarter variations in our operating results;
o changes in analysts' estimates of our earnings or our competitors'
earnings;
o announcements by us or our competitors of technological innovations or
new services;
o general conditions in the commercial real estate industry;
o developments or disputes concerning copyrights or proprietary rights;
o regulatory developments; and
o economic or other factors.
In addition, in recent years, the stock market in general, and the shares
of Internet-related and other technology companies in particular, have
experienced extreme price fluctuations. This volatility has had a substantial
effect on the market prices of securities issued by many companies for reasons
unrelated to the operating performance of the specific companies.
Stockownership by executive officers and directors provides substantial
influence over matters requiring a vote of stockholders
Our executive officers and directors, and entities affiliated with them,
beneficially own a sufficient number of our outstanding common stock to exercise
substantial influence over the election of directors and other matters requiring
a vote of stockholders. This concentrated ownership might delay or prevent a
change in control and may impede or prevent transactions in which stockholders
might otherwise receive a premium for their shares.
7
<PAGE>
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares by the
selling stockholders. If and when all or a portion of all the warrants are
exercised and, based on the current exercise rates, up to 1,651,429 shares are
issued to the selling stockholders, we will receive the proceeds from the sale
of those shares to the selling stockholders to the extent that those warrants
are exercised with cash consideration and not through warrant conversion or the
surrender of other shares of stock. If the warrants are exercised in full and
with cash consideration, we will receive $16,806,633. This amount is intended to
be used by us for working capital and other general corporate purposes.
SELLING STOCKHOLDERS
The following table sets forth, as of July 27, 2000, certain information
regarding the beneficial ownership of the outstanding common stock by the
selling stockholders, consisting of:
o the shares that the selling stockholders presently hold;
o the shares that the selling stockholders may be issued upon conversion
of the series A preferred stock;
o the shares that the selling stockholders may be issued upon conversion
of the series B preferred stock; and
o and the shares that the selling stockholders may acquire upon exercise
of warrants,
both before the offering of the shares and as adjusted to reflect the sale of
the shares.
We have agreed to initially register 2,788,539 shares for resale by the
selling stockholders. The shares being offered by the selling stockholders were
acquired from us:
o Series A preferred stock, common stock and warrants--in private
placement transactions in January and March 1999 pursuant to
securities purchase agreements;
o Warrants--in private placement transactions in April and May 1999
pursuant to debenture purchase agreements and pursuant to a securities
purchase agreement in November 1999; warrants to purchase 200,000
shares of our common stock were granted to the underwriters of our
initial public offering in June 1999;
o Common stock--in three acquisitions of businesses pursuant to an
agreement and plan of reorganization in March 2000, a stock purchase
agreement in April 2000 and an agreement and plan of merger in May
2000; and
o Series B preferred stock and warrants--in a private placement
transaction in April 2000 pursuant to a securities purchase agreement.
Each selling stockholder that purchased securities from us in these
transactions represented to us that it was acquiring the securities and would
acquire the shares of common stock for its own account and with no present
intention of distributing any of the shares except pursuant to this prospectus
or sales exempt from the registration requirements of the Securities Act. Under
our agreements with some of the purchasers, we filed with the SEC, under the
Securities Act, a registration statement on Form S-3, of which this prospectus
forms a part, with respect to the resale of the shares from time to time on the
Nasdaq National Market or in privately-negotiated transactions and we have
agreed to use our best efforts to keep the registration statement effective
until the earlier of (i) a date on which all the shares may be immediately sold
without restriction (including without limitation as to volume by each holder
thereof) and without registration under the Securities Act, and (ii) the date
all of the shares have been sold; provided that, in the case of the shares
registered on behalf of Elliott Associates, L.P. and Westgate International,
L.P. our obligation to keep the registration statement effective under clause
(i) above will not expire before three years from its initial effective date.
8
<PAGE>
None of the selling stockholders has held any position or office or had a
material relationship with Genesis or any of our affiliates within the past
three years other than as a result of the ownership of the preferred stock,
common stock or warrants. We may amend or supplement this prospectus from time
to time to update the disclosure set forth.
The number of shares being offered by this prospectus as set forth in the
following table represents the specified number of shares that may be sold by
the selling stockholders under this prospectus. However, under Rule 416 under
the Securities Act, the registration statement of which this prospectus is a
part will also cover any additional shares of common stock that become issuable
in connection with the shares registered for sale in this prospectus by reason
of any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results in an
increase in our number of outstanding shares of common stock.
The numbers set forth in the following table assume that the selling
stockholders sell all of their shares offered by this prospectus to unaffiliated
third parties under this prospectus. The selling stockholders may sell all or
part of their shares.
The series A preferred stock held by Denmore Investments, Ltd. and Codicom
Technologies, Ltd. is convertible from time to time to our common stock on a
one-to-one basis. At the time of closing the private placement and currently,
all of the series A preferred stock issued to those two investors are
convertible into an aggregate of 142,858 shares of common stock. Denmore also
owns 107,143 shares of common stock and warrants to purchase 178,572 shares of
common stock. Codicom also owns 142,857 shares of common stock and warrants to
purchase 214,286 shares of common stock.
The series B preferred stock held by Elliott Associates, L.P. and Westgate
International, L.P. is convertible from time to time at prices based on the
then-current market price of our common stock. At July 27, 2000, and based on an
effective conversion price of $15.53, all of the series B preferred stock was
convertible into an aggregate of 260,994 shares of common stock. Because of the
fluctuating conversion rate and under our agreement with these investors, we are
in this registration statement registering twice that number of shares of common
stock. As a result, the numbers in the following chart reflect each of Elliott
Associates, L.P. and Westgate International, L.P. owning series B stock
convertible as of July 27, 2000 into 130,497 shares of common stock. They each
also hold warrants to purchase 56,000 shares of common stock. Under our
agreement with these investors, we are registering twice the number of shares of
common stock issuable upon conversion of the preferred stock and exercise of the
warrants. The series B preferred stock may be convertible into more or less than
260,994 shares of common stock.
9
<PAGE>
<TABLE>
Shares Issuable
Upon Presently
Shares Convertible or Beneficial Ownership
Beneficially Exercisable Shares After Offering
Owned Prior Securities Being ----------------------
Selling Stockholder to Offering Included in Total Offered Number Percent
------------------------------ ---------------- --------------------- ------------ --------- ----------
<S> <C> <C> <C> <C> <C>
American Fronteer Financial
Group 20,000 20,000 20,000 0 *
Asty Capital , A.G. 42,857 42,857 42,857 0 *
Builders, Ltd. 21,429 21,429 21,429 0 *
Codicom Technologies, Ltd. 428,572 285,715 428,572 0 *
Denmore Investments, Ltd. 357,144 250,001 357,144 0 *
Elliott Associates, L.P. 189,063(1) 189,063(1) 378,126(2) 0 *
Fred Cheung 10,000 10,000 0 *
H.D. Brous & Co. 50,000 50,000 50,000 0 *
Investech, Inc. 90,000 90,000 0 *
I Bankers 100,000 100,000 100,000 0 *
John Kanouff 25,000 25,000 25,000 0 *
Kathryn Smith 90,000 20,000 70,000 1.3%
Kenneth D'Angelo 50,000 50,000 50,000 0 *
Lam Lo 6,945 6,945 0 *
Morgan Niko, Inc. 13,055 13,055 *
Newbury Management 14,285 14,285 14,285 0 *
Robert H. Taggart, Jr. 5,000 5,000 5,000 0 *
Shoreline Pacific
Institutional Financial 6,000 6,000 6,000 0 *
United Pacific Alliance 72,000 72,000
Ultimate Holdings, Inc. 700,000 700,000 700,000 0 *
Westgate International, L.P. 189,063(1) 189,063(1) 378,126(2) 0 *
---------------- --------------------- ------------ -----------
Total 2,480,413 1,948,413 2,788,539 70,000
</TABLE>
---------------
* Less than one percent.
(1) Determined without regard to restrictions placed on the holders of series B
preferred stock limiting each holder's and their affiliates' total
ownership of common stock, acquired upon conversion of series B preferred
stock or otherwise, to 9.9%.
(2) Includes twice the number of shares of common stock issuable upon
conversion of the series B preferred stock and warrants as of July 27,
2000, as described in the introductory paragraphs to this table.
PLAN OF DISTRIBUTION
Genesis will not receive any proceeds from the sale of the shares offered
under this prospectus. The shares are being offered on behalf of the selling
stockholders. The shares may be sold or distributed from time to time by the
selling stockholders, or by pledgees, donees or transferees of, or other
successors in interest to, the selling stockholders, directly to one or more
purchasers (including pledgees) or through brokers, dealers or underwriters who
may act solely as agents or may acquire shares as principals, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices, or at fixed prices, which may be changed.
The sale of the shares may be effected in one or more of the following
methods:
o ordinary brokers' transactions, which may include long or short sales;
o transactions involving cross or block trades or otherwise on the
Nasdaq National Market;
o purchases by brokers, dealers or underwriters as principal and resale
by such purchasers for their own accounts under this prospectus;
o "at the market" to or through market makers or into an existing market
for the shares;
o in other ways not involving market makers or established trading
markets, including direct sales to purchases or sales effected through
agents;
o through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise);
o in privately negotiated transactions not involving a broker-dealer; or
o any combination of the foregoing, or by any other legally available
means.
10
<PAGE>
In addition, the selling stockholders or their successors in interest may
enter into hedging transactions with broker-dealers who may engage in short
sales of shares in the course of hedging the positions they assume with the
selling stockholders. Selling stockholders may also engage in short sales and
other transactions in the common stock or derivatives thereof, and may pledge,
sell, deliver or otherwise transfer the common stock offered in this prospectus
in connection with such transactions. The selling stockholders or their
successors in interest may also enter into option or other transactions with
broker-dealers that require the delivery by those broker-dealers of the shares,
which shares may be resold thereafter under this prospectus. The selling
stockholders may also sell the shares in exempt transactions under Rule 144, to
the extent that exemption is available.
Brokers, dealers, underwriters or agents participating in the distribution
of the shares as agents may receive compensation in the form of commissions,
discounts or concessions from the selling stockholders and/or purchasers of the
shares for whom the broker-dealers may act as agent, or to whom they may sell as
principal, or both. The compensation as to a particular broker-dealer may be
less than or in excess of customary commissions. The selling stockholders and
any broker-dealers who act in connection with the sale of shares under this
prospectus may be deemed to be "underwriters" within the meaning of the
Securities Act, and any commissions they receive and proceeds of any sale of
shares may be deemed to be underwriting discounts and commissions under the
Securities Act. Neither we nor any selling stockholder can presently estimate
the amount of that compensation. We know of no existing arrangements between any
selling stockholder, any other stockholder, broker, dealer, underwriter or agent
relating to the sale or distribution of the shares.
We have advised the selling stockholders of the anti-manipulation rules of
Regulation M under the Exchange Act in connection with a distribution of
securities. In addition, we will make copies of this prospectus available to the
selling stockholders and have informed them of the need for delivery of copies
of this prospectus to purchasers at or prior to the time of any sale of the
shares offered by this prospectus. The selling stockholders may indemnify any
broker-dealer that participates in transactions involving the sale of the shares
against certain liabilities, including liabilities arising under the Securities
Act.
At the time a particular offer of shares is made, if required, a prospectus
supplement will be distributed that will set forth the number of shares being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount, commission or
concession allowed or reallowed or paid to any dealer, and the proposed selling
price to the public.
The sale of shares of common stock issuable upon conversion of the series A
preferred stock by the selling stockholders is subject to compliance by the
selling stockholders with certain contractual restrictions with Genesis. There
can be no assurance that the selling stockholders will sell all or any of the
shares.
We have agreed to indemnify certain of the selling stockholders and any
person controlling those selling stockholders against certain liabilities,
including liabilities under the Securities Act. Those selling stockholders have
agreed to indemnify us and certain related persons against certain liabilities,
including liabilities under the Securities Act.
We have agreed with certain of the selling stockholders to keep the
registration statement of which this prospectus constitutes a part effective
until all the shares are sold by the selling stockholders or all unsold shares
are immediately saleable without restriction (including without volume
limitations) and without registration under the Securities Act, and, in the case
of Elliott Associates, L.P. and Westgate International, L.P., for a minimum of
three years from the initial effectiveness of this registration statement.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered by this
prospectus has been passed upon for us by Nida & Maloney, LLP, Santa Barbara,
California.
11
<PAGE>
EXPERTS
Our consolidated financial statements as of December 31, 1999, and for each
of the years in the two-year period ended December 31, 1999, and all related
schedules, have been incorporated by reference in the registration statement in
reliance upon the report of Singer Lewak Greenbaum & Goldstein, LLP, independent
certified public accountants, incorporated by reference, and upon the authority
of said firm as experts in accounting and auditing.
12
<PAGE>
No dealer, salesperson, or other person has been authorized to give any
information or to make any representations other than those contained in this
prospectus, and, if given or made, such information or representations must not
be relied upon as having been authorized by Superconductor or any selling
stockholder. This prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities to
which it relates or any offer to sell or the solicitation of an offer to buy
securities in any circumstances in which an offer or solicitation is unlawful.
Neither the delivery of this prospectus nor any sale made under this prospectus
shall, under any circumstances, create any implication that there has been no
change in the affairs of the company since the date of this prospectus or that
the information contained in this prospectus is correct as of any date
subsequent to its date.
TABLE OF CONTENTS
PAGE
Information Incorporated By
Reference............................ 2
Where You Can Find More
Information.......................... 2
Risk Factors........................... 4
Use of Proceeds........................ 8
Selling Stockholders................... 8
Plan of Distribution................... 10
Legal Matters.......................... 11
Experts................................ 12
GENESISINTERMEDIA.COM, INC.
2,788,539 SHARES
COMMON STOCK
PROSPECTUS
August , 2000
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other expenses of issuance and distribution.
The following table sets forth the expenses to be incurred in connection
with the issuance and distribution of the securities being registered hereby.
All expenses other than the SEC registration fee, the Nasdaq National Market
listing fee and the Pacific Exchange listing fee are estimates.
<TABLE>
<S> <C>
SEC registration fee........................................................................$ 11,181
Nasdaq National Market listing fee.......................................................... 17,500
Pacific Exchange listing fee................................................................ 6,971
Accounting fees and expenses................................................................ 15,000
Legal fees and expenses..................................................................... 20,000
Printing expenses........................................................................... 5,000
Miscellaneous............................................................................... 4,348
TOTAL.................................................................................$ 80,000
</TABLE>
Item 15. Indemnification of directors and officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "Delaware
Law") permits a corporation to provide in its certificate of incorporation that
directors of the corporation shall not be personally liable to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its shareholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for payments of unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. The Registrant's Certificate of Incorporation
contains such a provision.
Section 145 of the Delaware Law provides that a corporation may indemnify
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 defense or settlement of such action, and the statute requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. Under Section 145, a
corporation shall indemnify an agent of the corporation for expenses actually
and reasonably incurred if and to the extent such person was successful on the
merits in a proceeding or in defense of any claim, issue or matter therein.
Section 145 of the Delaware Law provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, shareholder vote, agreement or otherwise. The
limitation of liability contained in the Registrant's Certificate of
Incorporation and the indemnification provision included in the Registrant's
Bylaws are consistent with Delaware Law Sections 102(b)(7) and 145. The
Registrant has also entered into separate indemnification agreements with its
directors and officers that could require the Registrant, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors and officers and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified, including liabilities that may arise under the Securities Act of
1933. In addition, the Registrant has purchased directors and officers
insurance.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to such provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
Item 16. Exhibits.
See Index to Exhibits at page II-5.
Item 17. Undertakings.
(a) 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 to:
(i) Include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) Reflect in the prospectus any facts or events which, individually or
together, represent a fundamental change in the information in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii)Include any additional or changed material information with respect
on the plan of distribution.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new registration statement of the
securities offered, and the offering the securities at that time
to be the initial bona fide offering.
(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) For 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
II-2
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, 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.
II-3
<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-3 and has duly caused this Amendment No. 1 to
Form S-3 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Van Nuys, State of California, on
August 2, 2000.
GenesisIntermedia.com, Inc.
By: /s/ Ramy El-Batrawi
--------------------------------
Ramy El-Batrawi
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Form S-3 Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ Ramy El-Batrawi
_____________________________ Chief Executive Officer, Chairman August 2, 2000
Ramy El-Batrawi and Director (Principal Executive Officer)
/s/ Douglas E. Jacobson
_____________________________ Chief Financial Officer, Director (Principal August 2, 2000
Douglas E. Jacobson Financial and Accounting Officer)
/s/ Stephen A. Weber* Director August 2, 2000
------------------------------
Stephen A. Weber
Director August 2, 2000
------------------------------
George W. Heyworth
Director August 2, 2000
------------------------------
Michael Roy Fugler
*By Douglas E. Jacobson, Attorney-in-Fact
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
Exhibit
Number Description
<S> <C>
3.1 Certificate of Incorporation(1)
3.2 Certificate of Amendment of Certificate of Incorporation(2)
4.1 Certificate of Designations, Rights and Preferences of the Series A Convertible Preferred Stock of
GenesisIntermedia.com, Inc.(3)
4.2 Certificate of Designations of the Powers, Preferences and Relative, Participating, Optional and Other Special
Rights of Preferred Stock and Qualifications, Limitations and Restrictions Thereof of Series B Cumulative
Convertible Preferred Stock for GenesisIntermedia.com, Inc.(4)
4.3 Securities Purchase Agreement between GenesisIntermedia.com, Inc., Elliott Associates, L.P. and
Westgate International, L.P. (4)
4.4 Warrant issued to Elliott Associates, L.P.(4)
4.5 Warrant issued to Westgate International, L.P.(4)
4.6 Registration Rights Agreement by and between the Registrant and Elliot Associates, L.P.,
Westgate International, L.P. dated April 28, 2000(4)
4.7 Warrant issued to Shoreline Pacific Institutional Financial, the Institutional Division of Financial West**
4.8 Warrant issued to Ultimate Holdings, Inc.**
4.9 Warrant issued to Kenneth D'Angelo**
4.10 Form of Debenture Purchase Agreement**
4.11 Form of Warrant**
4.12 Form of Debenture**
4.13 Agreement and Plan of Reorganization between the Registrant, United Pacific Alliance and DoWebsites.com, Inc.,
dated March 29, 2000.**
4.14 Stock Purchase Agreement between Car Rental Direct.com, Inc. d/b/a Car Rental Direct, Brian
Wood, Keenan Cheung, Worldnet Resources Group, Inc. and the Registrant**
4.15 Shareholder Joinder and Indemnity Agreement among the shareholders of Car Rental Direct.com, Inc., Brian Woods,
Keenan Cheung and the Registrant dated April 1, 2000**
4.16 Agreement and Plan of Merger between Dyna-Acquisition, Inc., Dynatype Designs and Graphics Centers, Inc., Kathryn
A. Smith and the Registrant(5)
4.17 Form of Securities Purchase Agreement dated January 1999*
4.18 Form of Warrant*
4.19 Form of Letter Agreement dated April 1, 1999*
4.20 Form of Securities Purchase Agreement dated March 31, 1999*
5.1 Opinion of Nida & Maloney, LLP**
23.1 Consent of Singer Lewak Greenbaum & Goldstein, LLP*
23.2 Consent of Nida & Maloney, LLP (included in Exhibit 5.1)
24.1 Power of Attorney**
-----------
</TABLE>
(1) Incorporated by reference to the Exhibits to the Registration Statement
filed by the Registrant on Form SB-2 (Commission File No. 333-66281) dated
October 28, 1998.
(2) Incorporated by reference to the Exhibits to the Registration Statement
filed by the Registrant on Form SB-2/A (Commission File No. 333-66281)
dated December 9, 1998.
(3) Incorporated by reference to the Exhibits to the Registration Statement
filed by the Registrant on Form SB-2/A (Commission File No. 333-66281)
dated April 16, 1999.
(4) Incorporated by reference to the Exhibits to the Current Report filed by
the Registrant on Form 8-K (Commission File No.001-15029) dated May 15,
2000.
(5) Incorporated by reference to the Exhibits to the Quarterly Report filed by
the Registrant on Form 10-QSB (Commission File No.: 001-15029) dated May
15, 2000.
* Filed herewith
** Previously filed
II-5
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
To Board of Directors
GenesisIntermedia.com, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Amendment No. 1 to Form S-3 Registration Statement of
our report dated April 7, 2000, appearing on page 28 of GenesisIntermedia.com,
Inc.'s Annual Report on Form 10-KSB/A for the year ended December 31, 1999,
which is incorporated by reference in such prospectus. We also consent to the
reference to us under the heading Experts in such prospectus.
Singer Lewak Greenbaum & Goldstein, LLP
Los Angeles, California
August 1, 2000
