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As filed with the Securities and Exchange Commission on March 3, 2000.
File No. 0-27391
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement Under the Securities Act of 1933
GOURMETMARKET.COM, INC.
(Exact Name of registrant as specified in its charter)
Delaware 51-0347728
(State or other jurisdiction of (IRS Employer
Incorporation or Organization) Identification Number)
507 Howard Street, Suite 200, San Francisco, California 94105
(Address of Principal Executive Offices)(Zip Code)
Consulting Agreement
(Full title of the plan)
Chanan Steinhart
GourmetMarket.Com, Inc.
507 Howard Street, Suite 200, San Francisco, California 94105
(Name and address of agent for service)
(415) 979-0990
(Telephone number of agent for service)
Copies to:
Jonathan L. Shepard
Siegel, Lipman, Dunay & Shepard, LLP
5355 Town Center Road, Suite 801
Boca Raton, Florida 33486
(561) 368-7700
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate
Title of Securities Amount To Be Price Offering Amount of
To Be Registered Registered(1) Per Share(2) Price(2) Registration Fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
Par Value $.001
per share 300,000 $1.55 $465,000 $122.76
- ----------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c) promulgated under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
securities to be offered or sold as a result of any adjustment from stock
splits, stock dividends or similar events.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) on the basis of the average of the high
and low prices of the Common Stock of the Registrant as traded in the
over-the-counter market and reported in the Electronic Bulletin Board of the
National Association of Securities Dealers on February 23, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
Registration Statement:
1. The Registrant's Registration Statement on Form 10-SB filed September
20, 1999, amended October 13, 1999, and November 8, 1999.
2. The Registrant's Report on Form 10-QSB for the quarter ended
September 30, 1999, filed January 5, 2000.
3. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 10-SB, as amended, filed with the
Commission.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
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 a part hereof from the date of filing of such documents with the Commission.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, or in a subsequently filed
document incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
The statutes, charter provisions, by-laws, contracts or other
arrangements under which controlling persons, directors or officers of the
Registrant are insured or indemnified in any manner against any liability which
may occur in such capacity are as follows:
The General Corporation Law of Delaware (the "DGCL") provides that a
corporation may limit the liability of each director to the corporation or its
stockholders for monetary damages except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) in respect of certain unlawful dividend payments
or stock redemptions or repurchases, and (iv) for any transaction from which the
director derives an improper personal benefit. The Registrant's by-laws provide
for the elimination and limitation of the personal liability of directors of the
Registrant for monetary damages to he fullest extent permitted by the DGCL. The
effect of this provision is to eliminate the rights of the Registrant and its
stockholders (through stockholders' derivative suits on behalf of the
Registrant) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligence or grossly negligent behavior), except in the situations described in
clauses (i) through (iv) above. This provision does not limit or eliminate the
rights of the Registrant or any stockholder to seek non-monetary relief such as
an injunction or recision in the event of a breach of a director's duty of care.
The by-laws also provide that the Registrant shall, to the full extent permitted
by the DGCL, as amended from time-to-time, indemnify and advance expenses to
each of its currently acting and former directors, officers, employees and
agents.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
5.1 Opinion of Siegel, Lipman, Dunay & Shepard, LLP
10.13 Consulting Agreement with Josh Greenberg
23.1 Consent of Siegel, Lipman, Dunay & Shepard, LLP (contained in its
opinion filed as Exhibit 5.1 to this Registration Statement)
23.2 Consent of Margolies, Fink and Wichrowski
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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,
<PAGE>
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; and
(c) 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 (1)(a) and (1)(b) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in 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.
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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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
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 San Francisco, State of California on this 1st
day of March 2000.
GOURMETMARKET.COM, INC.
/s/ Chanan Steinhart
By: Chanan Steinhart, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Chanan Steinhart President, Director March 1, 2000
- -----------------------------
Chanan Steinhart
/s/ Gideon Shalom-Ben Dor Director March 1, 2000
- -----------------------------
Gideon Shalom-Ben Dor
/s/ Chanan Steinhart Treasurer March 1, 2000
- -----------------------------
Chanan Steinhart
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EXHIBIT INDEX
Exhibit Description
- ------- -----------
5.1 Opinion of Siegel, Lipman, Dunay & Shepard, LLP
10.13 Consulting Agreement with Josh N. Greenberg
23.1 Consent of Siegel, Lipman, Dunay & Shepard, LLP (contained in its
opinion filed as Exhibit 5.1 to this Registration Statement)
23.2 Consent of Margolies, Fink and Wichrowski
<PAGE>
Siegel, Lipman, Dunay & Shepard, LLP
5355 Town Center Road, Suite 801
Boca Raton, Florida 33486
March 3, 2000
GourmetMarket.Com, Inc.
507 Howard Street, #200
San Francisco, CA 94105
Re: GourmetMarket.Com, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion with respect to the shares of common
stock, par value $.01 per share (the "Common Stock"), of GourmetMarket.Com, Inc.
(the "Company"), included in the Registration Statement on Form S-8 (the "Form
S-8") filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended (the "Securities Act").
As counsel to the Company, we have examined the original or certified
copies of such records of the Company, and such agreements, certificates of
public officials, certificates of officers or representatives of the Company and
others, and such other documents as we deem relevant and necessary for the
opinions expressed in this letter. In such examination, we have assumed the
genuineness of all signatures on original documents, and the conformity to
original documents of all copies submitted to us as conformed or photostatic
copies. As to various questions of fact material to such opinions, we have
relied upon statements or certificates of officials and representatives of the
Company and others.
Based on and subject to the foregoing, we are of the opinion that the
shares of Common Stock being registered in the Form S-8 when issued as
contemplated under the Form S-8 and the consulting agreement annexed as an
exhibit thereto will be duly and validly issued, fully paid and non-assessable.
In rendering this opinion, we advise you that members of this Firm are
members of the Bar of the State of Florida, and we express no opinion herein
concerning the applicability or effect of any laws of any other jurisdiction,
except the securities laws of the United States of America referred to herein.
Very truly yours,
/s/ Siegel, Lipman, Dunay & Shepard, LLP
----------------------------------------
Siegel, Lipman, Dunay & Shepard, LLP
<PAGE>
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") made as of this 23rd day
of February 2000 is by and between GourmetMarket.Com, Inc., a Delaware
corporation, with its principal place of business at 7000 W. Palmetto Park Road,
Suite 501, Boca Raton, Florida 33433, and Josh N. Greenberg, with his principal
place of business at 339 Carson Street, Philadelphia, Pennsylvania 19128, (the
"Consultant").
R E C I T A L S:
A. The Company is a public company with a class of equity securities
publicly traded, and desires to retain Consultant to provide certain consulting
services.
B. Consultant desires to provide certain consulting services to the
Company in accordance with the terms and conditions contained hereinafter.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto hereby agree as follows:
1. Consulting Services. During the term of this Agreement, Consultant
is hereby retained by the Company to provide marketing, research of Internet
sites and establishment of strategic Internet relationships for the Company.
Consultant shall provide such consulting services as reasonably requested by the
Company during the term of this Agreement, provided that nothing hereunder shall
require Consultant to devote a minimum number of hours per calendar month toward
the performance of services hereunder. The level and scope of services that may
reasonably be requested hereunder shall be dependent, in part, on the amount of
compensation to be paid Consultant by the Company hereunder. Unless otherwise
agreed to by Consultant, all services hereunder shall be performed by
Consultant, in its sole discretion, at its principal place of business or other
offices. Notwithstanding anything contained herein to the contrary, the services
to be performed by Consultant hereunder may be performed by any employee or
consultant to Consultant.
2. Term.The term of this Agreement shall be for one year commencing as
of the date first written above and terminating one day prior to the first
anniversary hereof; provided, however, that this Agreement shall be renewable
for subsequent one year terms, by mutual agreement of the parties in writing, at
least thirty (30) days prior to the expiration of the then current term.
3. Compensation. In consideration for the performance of services
hereunder, the Company hereby grants Consultant an option to purchase 300,000
shares of its common stock at $1.00 per share exercisable at any time or from
time-to-time, in whole or in part, until midnight, March 1, 2005. The Consultant
is responsible for all of his
1
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incidental out of pocket expenses. The Company hereby agrees to pay on a
pre-approval basis extraordinary expenses incurred by Consultant in connection
with such services to be rendered hereunder. Consultant may, from time to time,
deem it to be in the best interests of the Company to retain an outside
consultant in connection with certain specific acquisitions or proposed
transactions. In such event, the Company hereby agrees to pay any and all fees
and expenses of such consultant, provided that the Company shall first have
agreed to the terms of engagement of any such consultant.
4. Representations of the Company. The Company hereby represents and
warrants that any and all information supplied hereunder to Consultant in
connection with any and all services to be performed hereunder by Consultant for
and on behalf of the Company shall be true, complete and correct as of the date
of such dissemination and shall not fail to state a material fact necessary to
make any of such information not misleading. The Company hereby acknowledges
that the ability of Consultant to adequately provide the aforementioned
consulting services hereunder and/or to initiate and/or effectuate introductions
on behalf of the Company with respect to potential strategic relationships is
dependent upon the prompt dissemination of accurate, correct and complete
information to Consultant. The Company further represents and warrants hereunder
that this Agreement and the transactions contemplated hereunder have been duly
and validly authorized by all requisite corporate action; that the Company has
the full right, power and capacity to execute, deliver and perform its
obligations hereunder; and that this Agreement, upon execution and delivery of
the same by the Company, will represent the valid and binding obligation of the
Company enforceable in accordance with its terms. The representations and
warranties set forth herein shall survive the termination of this Agreement.
5. Indemnification. The Company hereby agrees to indemnify, defend and
hold harmless Consultant, his employees, and affiliates, and their successors
and assigns from and against any and all claims, damages, losses, liability,
deficiencies, actions, suits, proceedings, costs or legal expenses (collectively
the "Losses") arising out of or resulting from: (i) any breach of a
representation, or warranty by the Company contained in this Agreement; or (ii)
any activities or services performed hereunder by Consultant, unless such Losses
were the result of the intentional misconduct or gross misconduct of Consultant;
or (iii) any and all costs and expenses (including reasonable attorneys' and
paralegals' fees) related to the foregoing, and as more fully described below.
If Consultant receives written notice of the commencement of any legal
action, suit or proceeding with respect to which the Company is or may be
obligated to provide indemnification pursuant to this Section 5, Consultant
shall, within thirty (30) days of the receipt of such written notice, give the
Company written notice thereof (a "Claim Notice"). Failure to give such Claim
Notice within such thirty (30) day period shall not constitute a waiver by
Consultant of its right to indemnity hereunder with respect to such action, suit
2
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or proceeding. Upon receipt by the Company of a Claim Notice from Consultant
with respect to any claim for indemnification which is based upon a claim made
by a third party ("Third Party Claim"), Consultant may assume the defense of the
Third Party Claim with counsel of its own choosing, as described below. The
Company shall cooperate in the defense of the Third Party Claim and shall
furnish such records, information and testimony and attend all such conferences,
discovery proceedings, hearings, trial and appeals as may be reasonably required
in connection therewith. Consultant shall have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of Consultant unless the Company shall not have promptly employed
counsel to assume the defense of the Third Party Claim, in which event such fees
and expenses shall be borne solely by the Company. The Company shall not satisfy
or settle any Third Party Claim for which indemnification has been sought and is
available hereunder, without the prior written consent of Consultant. If the
Company shall fail with reasonable promptness either to defend such Third Party
Claim or to satisfy or settle the same, Consultant may defend, satisfy or settle
the Third Party Claim at the expense of the Company and the Company shall pay to
Consultant the amount of any such Loss within ten (10) days after written demand
therefore. The indemnification provisions hereunder shall survive the
termination of this Agreement.
6. Amendment. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unless the same is evidenced by a written
instrument, executed by the party against which such modification, waiver,
amendment, discharge, or change is sought.
7. Notices. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person or transmitted by facsimile transmission or the third
calendar day after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, to the addresses herein above first
mentioned or to such other address as any party hereto shall designate to the
other for such purpose in the manner hereinafter set forth.
8. Entire Agreement. This Agreement contains all of the understandings
and agreements of the parties with respect to the subject matter discussed
herein. All prior agreements, whether written or oral, are merged herein and
shall be of no force or effect.
9. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed, construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein.
3
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10. Construction and Enforcement. This Agreement shall be construed in
accordance with the laws of the State of California, without application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the state or federal courts
located in the City of San Francisco, State of California. The parties hereto
hereby accept the exclusive jurisdiction of those courts for the purpose of any
such suit, action or proceeding. Venue for any such action, in addition to any
other venue permitted by statute, will be San Francisco, California. The parties
hereto hereby irrevocably waive, to the fullest extent permitted by law, any
objection that any of them may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any judgment entered by any court in respect thereof brought in San Francisco,
California, and hereby further irrevocably waive any claim that any suit, action
or proceeding brought in San Francisco, California, has been brought in an
inconvenient forum.
11. Binding Nature. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties, and their respective
successors and assigns.
12. Counterparts. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute one Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GOURMETMARKET.COM, INC.
By: /s/ Chanan Steinhart
---------------------------
Chanan Steinhart, President
/s/ Joshua N. Greenberg
----------------------------
Joshua N. Greenberg
4
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of
GourmetMarket.Com, Inc. (the "Company") of our report dated June 5, 1999,
included in the Company's Annual Report on Form 10-KSB.
/s/ Margolies, Fink and Wichrowski
----------------------------------
MARGOLIES, FINK AND WICHROWSKI
Pompano Beach, Florida
March 3, 2000
