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As filed with the Securities and Exchange Commission on November 30, 1999
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ITURF INC.
(EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER)
DELAWARE 13-3963754
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
435 HUDSON STREET
NEW YORK, NEW YORK 10014
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
AMENDED AND RESTATED 1999 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
(212) 742-1640
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
ALEX S. NAVARRO, ESQ.
ITURF INC.
435 HUDSON STREET, NEW YORK, NEW
YORK 10014
(212) 742-1640
(NAME, ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
<S> <C> <C> <C> <C>
Class A Common Stock, par 4,050,000 shares $18.0625 $73,153,125 $20,337
value $.01 per share
=============================== ================= ======================= ======================= ================
</TABLE>
(1) The maximum number of shares which may be issued pursuant to the Amended and
Restated 1999 Stock Incentive Plan covered by this Registration Statement (the
"Incentive Plan"). In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, as amended (the "Securities Act"), there are also being registered such
additional indeterminate number of shares as may be required to cover possible
adjustments under the Incentive Plan as a result of the adjustment provisions
therein.
(2) Estimated solely for the purpose of calculating the fee pursuant to
Rule 457(h) and 457(c) under the Securities Act based the average of the high
and low prices of the Registrant's Common Stock reported on The Nasdaq Stock
Market on November 23, 1999.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission by us are incorporated herein by reference:
(1) the prospectus dated April 9, 1999 filed by us under Rule
424(b) (Registration No. 333-71123).
(2) The Company's Quarterly Report on Form 10-Q for quarter ended April
30, 1999.
(3) The Company's Quarterly Report on Form 10-Q for quarter ended July
31, 1999.
(4) The Company's Current Report on Form 8-K, filed with the Commission
on May 27, 1999.
(5) The Company's Current Report on Form 8-K, filed with the Commission
on August 12, 1999.
(6) The Company's Current Report on Form 8-K, as amended, filed with
the Commission on September 7, 1999.
(7) The description of the Company's Common Stock in the Company's
registration statement on Form 8-A (No. 000-25437).
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part thereof from the date of filing such documents. Any
statement in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the common stock offered hereby will be passed upon for
us by Alex S. Navarro, Esq., our Chief Operating Officer, Secretary and General
Counsel. Mr. Navarro owns 3,000 shares of our Class A common stock and options
to purchase an additional 179,688 shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act").
As permitted by the Delaware General Corporation Law, the Registrant's
Amended and Restated
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Certificate of Incorporation includes a provision that eliminates the personal
liability of its directors 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 Registrant or its stockholders, (ii) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation of law,
(iii) under section 174 of the Delaware General Corporation Law (regarding
unlawful dividends and stock purchases) or (iv) for any transaction from which
the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, our Bylaws
provide that (i) we are required to indemnify its directors and officers to the
fullest extent permitted by the Delaware General Corporation Law, subject to
certain very limited exceptions, (ii) we may indemnify its other employees and
agents as set forth in the Delaware General Corporation Law, (iii) we are
required to advance expenses, as incurred, to our directors and executive
officers in connection with a legal proceeding to the fullest extent permitted
by the Delaware General Corporation Law, subject to certain very limited
exceptions and (iv) the rights conferred in the Bylaws are not exclusive.
At present, there is no pending litigation or proceeding involving a
director, officer or employee of the Registrant regarding which indemnification
is sought, nor are we aware of any threatened litigation that may result in
claims for indemnification.
The indemnification provisions in our Restated Certificate of
Incorporation and in our Bylaws may be sufficiently broad to permit
indemnification of our directors and executive officers for liabilities arising
under the Securities Act.
We, with approval by the Registrant's Board of Directors, have obtained
directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<TABLE>
<CAPTION>
ITEM 8. EXHIBITS.
<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 to our
Registration Statement on Form S-1 (Registration No.
333-71123))
4.2 Bylaws of the Company (incorporated herein by reference to
Exhibit 3.1 to our Registration Statement on Form S-1
(Registration No. 333-71123))
4.3 Amended and Restated 1999 Stock Incentive Plan (incorporated
herein by reference to Exhibit 10.9 to our Registration
Statement on Form S-1 (Registration No. 333-71123))
*5 Opinion of Alex S. Navarro, Esq.
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Ernst & Young LLP
*23.3 Consent of BDO Seidman, LLP
*23.4 Consent of Alex S. Navarro (included in Exhibit 5)
*24 Powers of Attorney (included on signature page)
</TABLE>
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* Filed herewith.
ITEM 9. 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:
(i) to include any prospectus required by Section 10(a)
(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in 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) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
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
with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act that is incorporated by reference in 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 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 the payment by the
Registrant of expenses incurred or
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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.
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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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on November 30,
1999.
iTurf Inc.
By: /s/ STEPHEN I. KAHN
----------------------------
Stephen I. Kahn
Chairman of the Board, President
and Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each director and officer whose
signature appears below hereby constitutes and appoints Stephen I. Kahn, Dennis
Goldstein, Alex S. Navarro or any of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in any and all capacities (until revoked in writing),
any and all amendments (including post-effective amendments) to this
Registration Statement on Form S-8, and to file the same with all exhibits
thereto and all other documents in connection therewith with the Securities and
Exchange Commission, granting to such attorneys-in-fact and agents, and each of
them, full power and authority to do all such other acts and things requisite or
necessary to be done, and to execute all such other documents as they, or any of
them, may deem necessary or desirable in connection with the foregoing, as fully
as the undersigned might or could do in person, hereby ratifying and confirming
all that such attorneys-in-fact and agents, or any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ----------- ----- ------
<S> <C> <C>
/s/ STEPHEN I. KAHN Chairman of the Board, November 30, 1999
- -------------------
Stephen I. Kahn President and Chief Executive
Officer (principal executive
officer)
/s/ DENNIS GOLDSTEIN Chief Financial Officer and November 30, 1999
- --------------------
Dennis Goldstein Treasurer (principal financial
and accounting officer)
/s/ CHRISTOPHER C. EDGAR Director November 30, 1999
- ------------------------
Christopher C. Edgar
/s/ THOMAS R. EVANS Director November 30, 1999
- -------------------
Thomas R. Evans
/s/ EVAN GUILLEMIN Director November 30, 1999
- ------------------
Evan Guillemin
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ MARTIN D. LEVINE Director November 30, 1999
- --------------------
Martin D. Levine
/s/ BETH VANDERSLICE Director November 30, 1999
- -------------------
Beth Vanderslice
</TABLE>
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 to our
Registration Statement on Form S-1 (Registration No.
333-71123))
4.2 Bylaws of the Company (incorporated herein by reference to
Exhibit 3.1 to our Registration Statement on Form S-1
(Registration No. 333-71123))
4.3 Amended and Restated 1999 Stock Incentive Plan (incorporated
herein by reference to Exhibit 10.9 to our Registration
Statement on Form S-1 (Registration No. 333-71123))
*5 Opinion of Alex S. Navarro, Esq.
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of Ernst & Young LLP
*23.3 Consent of BDO Seidman, LLP
*23.4 Consent of Alex S. Navarro (included in Exhibit 5)
*24 Powers of Attorney (included on signature page)
---------------------------
* Filed herewith.
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EXHIBIT 5
iTurf Inc.
435 Hudson Street
New York, New York 10014
November 30, 1999
iTurf Inc.
435 Hudson Street
New York, New York 10014
Dear Sirs:
I am the Chief Operating Officer, Secretary and General Counsel of
iTurf Inc., a Delaware corporation (the "Company"), and I am rendering this
opinion in connection with the Registration Statement on Form S-8 with exhibits
thereto (the "Registration Statement") filed by the Company under the Securities
Act of 1933 (the "Act"), relating to the registration of 4,050,000 shares (the
"Shares") of Class A common stock, par value $.01 per share, of the Company.
As such counsel, I have participated in the preparation of the
Registration Statement and have reviewed the corporate proceedings in connection
with the issuance of the Shares. I have also examined and relied upon originals
or copies, certified or otherwise authenticated to my satisfaction, of all such
corporate records, documents, agreements and instruments relating to the
Company, and certificates of public officials and of representatives of the
Company, and have made such investigations of law, and have discussed with
representatives of the Company and such other persons such questions of fact, as
I have deemed proper and necessary as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, I am of the opinion that the
Shares are duly authorized, validly issued, fully paid, and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving the foregoing consent, I do not admit that I
am in the category of persons whose consent is required under Section 7 of the
Act, or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Alex S. Navarro
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Amended and Restated 1999 Stock Incentive Plan
of iTurf Inc. of our report dated January 15, 1999, with respect to the
balance sheet of gURL, Interactive Inc. included in iTurf Inc.'s Registration
Statement (Form S-1 No. 333-71123) and related Prospectus for the
registration of 4,830,000 shares of its Class A Common Stock filed with the
Securities and Exchange Commission on April 9, 1999.
ERNST & YOUNG LLP
New York, New York
November 29, 1999
2
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Amended and Restated 1999 Stock Incentive Plan
of iTurf Inc. of our report dated February 28, 1999 (except for the second
paragraph of Note 1, as to which the date is April 1, 1999), with respect to
the financial statements of iTurf Inc. included in its Registration Statement
(Form S-1 No. 333-71123) and related Prospectus for the registration of
4,830,000 shares of Class A Common Stock filed with the Securities and
Exchange Commission on April 9, 1999.
ERNST & YOUNG LLP
New York, New York
November 29, 1999
3
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EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
ITurf Inc.
New York, New York
We consent to the incorporation by reference in this Registration Statement of
iTurf Inc. on Form S-8 of our report dated October 13, 1999, relating to the
financial statements of [email protected], INC.
BDO SEIDMAN, LLP
New York, New York
November 30, 1999
4
