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REGISTRATION NO. 333-_____
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1999
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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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FASHIONMALL.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-1544139
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
BENJAMIN NARASIN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
FASHIONMALL.COM, INC.
575 MADISON AVENUE
NEW YORK, NEW YORK 10022
(212) 891-6064
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES AND AGENT FOR SERVICE)
FASHIONMALL.COM, INC.
1999 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
COPY TO:
KENNETH R. KOCH, ESQ.
SQUADRON, ELLENOFF, PLESENT & SHEINFELD, LLP
551 FIFTH AVENUE
NEW YORK, NEW YORK 10176
(212) 661-6500
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE 1,125,000 shares (3) $5.59 $6,288,750 $1,748.27
$.01 PER SHARE
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(1) PLUS SUCH INDETERMINATE NUMBER OF SHARES PURSUANT TO RULE 416 AS MAY BE
ISSUED IN RESPECT OF STOCK SPLITS, STOCK DIVIDENDS AND SIMILAR
TRANSACTIONS.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(H) UNDER THE SECURITIES ACT OF 1933 ON THE AVERAGE
HIGH AND LOW PRICES FOR THE COMMON STOCK, AS REPORTED ON THE NASDAQ
NATIONAL MARKET ON OCTOBER 29, 1999.
(3) THE NUMBER OF SHARES OF COMMON STOCK BEING REGISTERED REPRESENTS 1,125,000
SHARES OF COMMON STOCK THAT MAY BE ISSUED ON THE DATE HEREOF UNDER THE
FASHIONMALL.COM, INC. 1999 STOCK OPTION PLAN (THE "PLAN") PURSUANT TO
OPTIONS ISSUED OR TO BE ISSUED UNDER THE PLAN.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b). In accordance with the
rules and regulations of the Commission and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(1) the Registrant's Prospectus dated May 21, 1999, as filed with the
Commission pursuant to Rule 424(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"), on May 24, 1999;
(2) the Registrant's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1999; and
(3) the description of the Common Stock which is registered under Section
12 of the Securities Exchange Act of 1934 (the "Exchange Act"), contained
in the Company's Registration Statement on Form 8-A (File No. 000-26151)
filed on May 3, 1999, as amended on May 21, 1999.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein 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 thereof from the date of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware General Corporation Law, Section 102(b)(7), enables a corporation
in its original certificate of incorporation, or an amendment thereto validly
approved by stockholders, to eliminate or limit personal liability of members of
its Board of Directors for violations of a director's fiduciary duty of care.
However, the elimination or limitation shall not apply where there has been a
breach of the duty of loyalty, failure to act in good faith, intentional
misconduct or a knowing violation of a law, the payment of a dividend or
approval of a stock repurchase which is deemed illegal or an improper personal
benefit is obtained. The Registrant's Certificate of Incorporation includes the
following language:
No director of the Corporation shall be liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this provision does not eliminate the liability of the
director (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 which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of Title 8 of the Delaware Code, or (iv) for any transaction from
which the director derived an improper personal benefit.
Reference is made to the Registrant's Certificate of Incorporation filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form SB-2 (File No.
333-74109).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Please see Exhibit Index.
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
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in the aggregate, represent a fundamental change in the information set
forth in the 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 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
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, 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 the 29th day of
October, 1999.
fashionmall.com., Inc.
By: /s/ Benjamin Narasin
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Benjamin Narasin
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Benjamin Narasin his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all pre-or post-effective amendments to this Registration Statement, and
to file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or their or
his substitutes, may lawfully do or cause to be done by virtue hereof.
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 dates indicated.
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SIGNATURE TITLE DATE
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/s/ Benjamin Narasin Chief Executive Officer, President and October 29, 1999
- -------------------------------- Chairman of the Board of Directors
Benjamin Narasin (Principal Executive Officer and Principal
Financial and Accounting Officer)
/s/ Richard Marcus Director October 29, 1999
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Richard Marcus
/s/ Jerome Chazen Director October 29, 1999
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Jerome Chazen
/s/ Robert S. Taubman Director October 29, 1999
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Robert S. Taubman
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EXHIBIT INDEX
Exhibit Number Description
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3.1 Certificate of Incorporation (filed as exhibit 3.1 to the
Company's Registration Statement on Form SB-2 filed on March
9, 1999 (Registration No. 333-74109) and incorporated herein
by reference)
3.2 Bylaws (filed as exhibit 3.2 to the Company's Registration
Statement on Form SB-2 filed on March 9, 1999 (Registration
No. 333-74109) and incorporated herein by reference)
4.1 Form of Stock Certificate (filed as exhibit 4.2 to the
Company's Amendment No. 1 to Registration Statement on Form
SB-2 filed on April 23, 1999 (Registration No. 333-74109)
and incorporated herein by reference)
4.2 1999 Stock Option Plan (filed as exhibit 10.5 to the
Company's Registration Statement on Form SB-2 filed on March
9, 1999 (Registration No. 333-74109) and incorporated herein
by reference)
5.1 Opinion of Squadron, Ellenoff, Plesent & Sheinfeld, LLP.
23.1 Consent of Squadron, Ellenoff, Plesent & Sheinfeld, LLP
(contained in Opinion filed as Exhibit 5.1).
23.2 Consent of Arthur Andersen, LLP
24.1 Power of Attorney (included on page II-4, the signature page
hereto).
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EXHIBIT 5.1
November 1, 1999
fashionmall.com, Inc.
575 Madison Avenue
New York, New York 10022
Re: REGISTRATION ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to fashionmall.com, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of its
Registration Statement on Form S-8 under the Securities Act of 1933 (the
"Registration Statement"), to which this opinion is to be filed as an exhibit.
The Registration Statement relates to the issuance of up to an aggregate of
1,125,000 shares (the "Plan Shares") of the Company's Common Stock, par value
$.01 per share (the "Common Stock"), pursuant to the fashionmall.com, Inc.'s
1999 Stock Option Plan (the "Plan").
In so acting, we have examined such records and documents, including
the Plan and made such examinations of law as we have deemed relevant in
connection with this opinion. This opinion relates only to the laws of the State
of New York, the corporate laws of the State of Delaware and the federal laws of
the United States of America in force on the date hereof.
Based upon the foregoing, and subject to the qualifications stated
herein, we are of the opinion that, when issued upon the exercise of and in
accordance with the terms of stock options duly and validly granted against
payment therefor, as an award pursuant to the terms of the Plan, the Shares,
which are then originally issued by the Company, will be validly issued, fully
paid and nonassessable.
Very truly yours,
/s/ Squadron, Ellenoff, Plesent & Sheinfeld, LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To fashionmall.com, Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 (registering 1,125,000
shares of Common Stock), of our report dated February 26, 1999 included in
fashionmall.com, Inc.'s Registration Statement File No. 333-74109 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
New York, New York
October 28, 1999
