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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 2000
REGISTRATION NO. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MYPOINTS.COM, INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 94-3255692
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
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100 CALIFORNIA STREET, 11TH FLOOR
SAN FRANCISCO, CA 94111
(415) 676-3700
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
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STEVEN M. MARKOWITZ
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
MYPOINTS.COM, INC.
100 CALIFORNIA STREET, 11TH FLOOR
SAN FRANCISCO, CA 94111
(415) 676-3700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this registration
statement.
If the only securities being registered on this Form are to be offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, 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. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
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Common Stock 270,000 shares $5.15625 $1,392,187.50 $368.00
$0.001 par value per share
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(1) Estimated solely for the purpose of computing the amount of the
registration fee based on the average of the high and low prices of the
Common Stock as reported on the Nasdaq National Market on September 26,
2000 pursuant to Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 29, 2000
270,000 SHARES
MYPOINTS.COM, INC.
COMMON STOCK
THE SHARES OFFERED IN THIS PROSPECTUS INVOLVED A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 3 OF THIS PROSPECTUS FOR INFORMATION THAT YOU SHOULD
CONSIDER BEFORE PURCHASING THESE SECURITIES.
Our common stock is quoted on the Nasdaq National Market System under the symbol
"MYPT". On September 28, 2000, the last sale price of our common stock as
reported on the Nasdaq National Market was $5.63 per share.
The selling stockholders, who acquired these shares when MyPoints.com, Inc.
acquired Alliance Development Group, Inc., may offer and sell these shares from
time to time.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is _____________, 2000.
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TABLE OF CONTENTS
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SUMMARY..................................................................1
RISK FACTORS.............................................................3
USE OF PROCEEDS.........................................................14
SELLING STOCKHOLDERS....................................................14
PLAN OF DISTRIBUTION....................................................15
LEGAL MATTERS...........................................................16
EXPERTS.................................................................16
WHERE YOU CAN FIND MORE INFORMATION.....................................16
INFORMATION INCORPORATED BY REFERENCE...................................16
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You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell shares of common stock and
seeking offers to buy shares of common stock, only in those jurisdictions where
offers and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or any sale of our common stock.
In this prospectus, "MyPoints.com," "we," "us," and "our" refer to
MyPoints.com, Inc. and its subsidiaries, and references to "MyPoints" refer to
the brand name of our products and services.
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SUMMARY
You should read the following summary together with the more detailed
information regarding us and the common stock being sold in this offering,
including "Risk Factors" and in the documents incorporated by reference in this
prospectus.
MYPOINTS.COM
MyPoints.com is a leading provider of internet direct marketing services
and customer loyalty infrastructure. Our database-driven direct marketing
service, MyPoints, offers direct marketers an approach to internet advertising
that is designed to enhance customer acquisition and retention efforts by
integrating targeted email and web-based offers with incentives to respond to
those offers. Our rewards-based shopping channel, MyPoints Shopping!, provides
web users with the ability to earn points for every dollar spent at select
retail sites. Points earned in the MyPoints program may be redeemed for a wide
variety of products and services, such as gift certificates, travel awards and
prepaid phone cards. Our approach to e-commerce provides internet consumers with
the opportunity to earn rewards by responding to direct offers and by shopping,
and provides businesses with an integrated set of online customer acquisition
and retention tools. In addition, we build and manage co-branded and private
label online customer loyalty programs for our loyalty partners.
When consumers enroll in the MyPoints program, they give us permission
to send them targeted online offers, and they receive rewards points for
completing surveys that provide us with demographic and behavioral information.
MyPoints members earn additional points by responding to direct marketing
offers, making online and offline purchases, and providing us with additional
demographic and behavioral data through surveys on a secure, confidential basis.
Members may redeem points they earn online for products and services from our
rewards providers. Our member profile database is continuously enriched with
transactional data gathered through members' interactions with promotional
offers, select retail sites, the completion of surveys and the redemption of
points. We principally earn revenues by delivering online direct marketing
offers to our membership base. We charge advertisers a fee based on offers
delivered, qualified responses generated and qualified purchases made.
MARKET OPPORTUNITY
Businesses engage in various forms of offline and online direct
marketing to generate sales of products or services. Traditional forms of
offline direct marketing include catalog mailings, magazine inserts and
telesales. Online direct marketing takes the form of email and web-based
promotional offers. Online direct marketing allows advertisers to use
technology-based tools to give them rapid feedback on campaigns, which can be
used to tailor new campaigns and targeted offers.
Advertisers are committing relatively more dollars to online direct
marketing than to other forms of internet advertising, such as brand marketing
using banner advertisements. Forrester Research, a leading internet research
firm, projects internet advertising expenditures in the U.S. to increase from
$2.8 billion in 1999 to $22.2 billion in 2004. Forrester estimates that direct
marketing will account for 53% of total online advertising expenditures in the
U.S. in 2004, up from 15% in 1999.
In addition to the growing use of the internet as a direct marketing
medium, as the number of internet users and web sites increases, the relative
importance to businesses of customer retention is also increasing. As a result,
leading online merchants and content providers are launching and testing
programs aimed at retaining their most valuable customers. The challenges that
these businesses face in establishing online
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loyalty programs include the costs of implementing and operating the programs
and the ability to provide customers with sufficient opportunities to earn and
redeem awards. We believe that these challenges will lead many companies to
outsource this aspect of their customer retention programs to providers capable
of delivering comprehensive loyalty management services.
Because of continuing corporate interest in using the internet to
acquire customers, and because of the need for online businesses to find
effective ways to retain customers once they have attracted them, we believe
there is a significant opportunity for a company that can overcome the barriers
to direct marketing and loyalty on the internet, and bring cost-effective,
integrated direct marketing and loyalty solutions to the online market.
RECENT DEVELOPMENTS
In August 2000, we completed the acquisition of Cybergold, Inc., a
company that operates a loyalty program complementary to ours with a significant
membership base. In this transaction, the former stockholders of Cybergold
received 0.48 shares of MyPoints.com's common stock for each share of Cybergold
common stock. As part of this combination, we intend to transfer members of the
Cybergold program into a new program called Cybergold by MyPoints and to operate
both services on a single technology platform.
CORPORATE INFORMATION
MyPoints.com was incorporated in Delaware under the name Intellipost
Corporation in November 1996. In March 1999, we changed our name to
MyPoints.com, Inc. Our principal executive offices are located at 100 California
Street, 11th Floor, San Francisco, California 94111. Our telephone number at
this location is (415) 676-3700. Our corporate email address is
[email protected].
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RISK FACTORS
This prospectus, including the documents incorporated by reference,
contains forward looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended. These include statements of our expectations, beliefs,
intentions or future strategies. We base all forward looking statements on
information available to us on the date of this prospectus. We will not update
any of these forward looking statements.
Actual results could differ materially from those in the forward looking
statements because of the risk factors set forth below and in the documents
incorporated by reference in this prospectus. In addition to the information in
this prospectus and in the documents incorporated by reference, you should
carefully consider the following risk factors before buying our securities.
RISKS ASSOCIATED WITH OUR BUSINESS
WE HAVE ONLY A LIMITED OPERATING HISTORY THAT INVESTORS MAY USE TO ASSESS OUR
FUTURE PROSPECTS
We have only a limited operating history upon which you can evaluate our
business. We commenced operations in November 1996 and did not begin to generate
revenues until July 1997. We have not and may never generate sufficient revenues
to achieve profitability. Although we have experienced revenue growth in recent
periods, these growth rates may not be sustainable or indicative of our future
growth. We have limited experience addressing challenges frequently encountered
by early-stage companies in the electronic commerce and direct marketing
industries. We may not be successful in addressing these risks, and our business
strategy may not be successful. In addition, we have never operated during a
general economic downturn in the United States, which typically adversely
affects advertising and marketing expenditures and retail sales. Accordingly,
our limited operating history does not provide investors with a meaningful basis
for evaluating an investment in our common stock.
WE HAVE A HISTORY OF LOSSES AND EXPECT LOSSES TO CONTINUE AT LEAST THROUGH 2001
Our accumulated deficit as of June 30, 2000 was $77.2 million. We have
never operated profitably and, given our planned level of operating expenses, we
expect to continue to incur losses at least through 2001. We plan to increase
our operating expenses as we continue to build infrastructure to support the
expansion of our business. Our losses may increase in the future, and even if we
achieve our revenue targets, we may not be able to sustain or increase
profitability on a quarterly or annual basis. If our revenues grow more slowly
than we anticipate, or if our operating expenses exceed our expectations and
cannot be adjusted accordingly, our losses could continue beyond our present
expectations.
OUR QUARTERLY OPERATING RESULTS ARE SUBJECT TO FLUCTUATIONS, WHICH COULD AFFECT
OUR STOCK PRICE
Our revenue and operating results may vary significantly from quarter to
quarter due to a number of factors, some of which are outside of our control. As
a result, our operating results may be below the expectations of public market
analysts and investors. In this event, the price of our common stock may fall.
The factors most likely to produce varied results include:
- the advertising budget cycles of individual advertisers;
- the number of reward points redeemed by our members and the
costs associated with these redemptions;
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- changes in the mix of our business;
- changes in marketing and advertising costs that we incur to
attract and retain members;
- changes in our pricing policies, the pricing policies of our
competitors or the pricing policies for internet advertising
generally; and
- unexpected costs and delays relating to the expansion of our
operations.
Due to these factors, revenues and operating results are difficult to
forecast and you should not rely on period to period comparisons of results of
operations as an indication of our future performance.
OUR OPERATING RESULTS ARE SUBJECT TO SEASONAL FLUCTUATIONS THAT COULD IMPACT OUR
GROWTH AND AFFECT OUR STOCK PRICE
We believe that our revenues will be subject to seasonal fluctuations as
a result of general patterns of retail advertising, which are typically higher
during the fourth calendar quarter. In addition, expenditures by advertisers
tend to be cyclical, reflecting general economic conditions and consumer buying
patterns. The extent of these seasonal fluctuations in any period may be
difficult to predict and, if the fluctuations are greater than our expectations,
our growth rate would decline. In this event, the price of our common stock may
fall.
WE MAY HAVE DIFFICULTIES INTEGRATING RECENT AND FUTURE ACQUISITIONS AND ANY
FAILURE TO SUCCESSFULLY INTEGRATE ACQUIRED COMPANIES WOULD REDUCE OUR ABILITY TO
REALIZE THE ANTICIPATED VALUE OF THE ACQUISITION
We have made a number of acquisitions recently, and we may pursue other
acquisitions in the future. Based on our experiences to date, we expect to face
numerous risks and uncertainties generally associated with acquisitions,
including:
- potentially adverse effects on our reported results of
operations from acquisition-related charges and amortization of
goodwill and purchased technology;
- our ability to maintain customers or the reputation of the
acquired businesses;
- potential dilution to current stockholders from the issuance of
additional equity securities;
- difficulties integrating operations, personnel, technologies,
products and information systems of the acquired businesses;
- diversion of management's attention from other business
concerns; and
- potential loss of key employees of acquired businesses.
In November and December 1998, through our acquisition of Enhanced
Response Technologies, Inc. and a company affiliated with Experian Information
Solutions, Inc., we acquired internet and electronic commerce related assets and
technologies to support a web-based rewards program known as MyPoints. We
integrated MyPoints with our BonusMail email service during March and April
1999. This integration
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involved the combination of two different marketing programs and technology
platforms, as well as operations in San Francisco and Chicago. In connection
with this integration, we incurred substantial costs. During the relaunch of the
integrated MyPoints program, we encountered several unanticipated problems which
resulted in significant periods of system downtime during April 1999. During
these periods of downtime, our web site was not accessible by members. We
believe that we have resolved the problems that caused this downtime; however,
there can be no assurance that we will not encounter additional system-related
problems.
In January 2000, we acquired Alliance Development Group, Inc., a company
that operates offline customer rewards programs. In connection with this
acquisition, we intend to integrate our technology with ADG's offline programs
to help make them more efficient. If we are unable to do this in a timely
manner, we may be unable to realize the anticipated benefits of this
acquisition.
In August 2000, we closed the acquisition of Cybergold, a company that
operates a loyalty program complementary to ours with a significant membership
base. In connection with this acquisition, we intend to transfer members of the
Cybergold program into a new program called Cybergold by MyPoints and to operate
both services on a single technology platform. We expect to face numerous risks
and uncertainties associated with this significant acquisition.
We will need to overcome significant issues in order to realize any
benefits from the Cybergold merger, including the timely, efficient and
successful execution of a number of post-merger events. Key events include:
- Integrating the operations of the two companies;
- Retaining and assimilating the key personnel of each company;
- Offering the existing services of each company to the other
Company's customers;
- Retaining the existing customers and strategic partners of each
company
- Developing new services that utilize the assets of both
companies; and
- Maintaining uniform standards, controls, procedures and policies
The successful execution of these post-merger events will involve
considerable risk and may not be successful. These risks include:
- The potential disruption of the combined company's ongoing
business and distraction of it's management;
- The difficulty of incorporating acquired technology and rights
into the combined company's products and services;
- Unanticipated expenses related to technology integration;
- The impairment of relationships with employees and customers as
a result of any integration of new management personnel; and
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- Potential unknown liabilities associated with the acquired
business.
The market price of our common stock may decline as a result of the
Cybergold merger for a number of reasons including if:
- The integration of MyPoints and Cybergold is unsuccessful;
- We do not achieve the perceived benefits of the merger as
rapidly or to the extent anticipated by financial or industry
analysts; or
- The effect of the merger in our financial results is not
considered with the expectations of financial or industry
analysts.
In addition, our customers and strategic partners, in response to the
announcement of the merger, may delay or defer decisions concerning the relevant
company. Any delay or deferral in those decisions by customers, strategic
partners or suppliers could have a material adverse effect on business of the
relevant company. Similarly, current and prospective employees may experience
uncertainty about their future roles with us until our strategies with regard to
Cybergold are announced or executed. This may adversely affect our ability to
attract and retain key management, sales, marketing and technical personnel.
WE ARE GROWING RAPIDLY, AND THE FAILURE TO MANAGE OUR GROWTH COULD STRAIN OUR
MANAGEMENT SYSTEMS AND RESOURCES
As we continue to increase the scope of our operations, we may not have
an effective planning and management process in place to implement our business
plan successfully. We have grown from 24 employees on January 1, 1998 to 264
employees on June 30, 2000. We plan to continue the expansion of our technology,
sales, marketing and administrative organizations. This growth will continue to
strain our management systems and resources. We anticipate the need to continue
to improve our financial and managerial controls and our reporting systems. In
addition, we will need to expand, train and manage our rapidly growing work
force.
OUR SUCCESS DEPENDS ON OUR ABILITY TO MAINTAIN AND EXPAND AN ACTIVE MEMBERSHIP
BASE
Our success largely depends on our ability to maintain and expand an
active membership base. Our revenues are primarily driven by fees paid by
advertisers and direct marketers based on specific actions taken by our members.
If we are unable to induce existing and new members to actively participate in
our programs, our business, results of operations and financial condition will
be harmed. We generate a significant portion of our revenues based on the
activity of a small percentage of our members, and we cannot assure you that the
percentage of active members will increase. In addition, some of our members
have requested to limit the number of emails they receive from us. Although our
membership has grown in prior periods, we cannot be sure that our membership
growth will continue at current rates or increase in the future.
WE FACE INTENSE COMPETITION, AND THE FAILURE TO COMPETE EFFECTIVELY COULD
ADVERSELY AFFECT OUR MARKET SHARE AND RESULTS OF OPERATIONS
We face intense competition from both traditional and online advertising
and direct marketing businesses. We expect competition to increase due to the
lack of significant barriers to entry for online business generally. As we
expand the scope of our product and service offerings, we may compete with a
greater number of media companies across a wide range of advertising and direct
marketing services. Our
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ability to generate significant revenue from advertisers and loyalty partners
will depend on our ability to differentiate ourselves through the technology and
services we provide and to obtain adequate participation from consumers in our
online direct marketing and rewards programs. Rewards providers are also a
critical element of our business.
The attractiveness of our program to current and potential members and
loyalty partners depends in large part on the attractiveness of the rewards and
point redemption opportunities that we offer. Currently, several companies offer
competitive online products or services, including Netcentives. We also expect
to face competition from established online portals and community web sites that
engage in direct marketing and loyalty point programs, as well as from
traditional advertising agencies and direct marketing companies that may seek to
offer online products or services.
Many of our current competitors and potential new competitors have
longer operating histories, greater name recognition, larger customer bases and
significantly greater financial, technical and marketing resources than we do.
These advantages may allow them to respond more quickly to new or emerging
technologies and changes in customer requirements. It may also allow them to
engage in more extensive research and development, undertake more far-reaching
marketing campaigns, adopt more aggressive pricing policies, and make more
attractive offers to potential employees, strategic partners and advertisers. In
addition, current and potential competitors have established or may establish
cooperative relationships among themselves or with third parties to increase the
ability of their products or services to address the needs of our prospective
advertisers and advertising agency customers. As a result, it is possible that
new competitors may emerge and rapidly acquire significant market share. We may
not be able to compete effectively, and competitive pressures may result in
price reductions, reduced gross margins and loss of our market share.
THE FAILURE TO ESTABLISH THE MYPOINTS BRAND WOULD IMPAIR OUR COMPETITIVE
POSITION
We are highly dependent on establishing and maintaining our brand. Any
event or circumstance that negatively impacts our brand could have a direct and
material adverse effect on our business, results of operations and financial
condition. As competitive pressures in the online direct marketing industry
increase, we believe that brand strength will become increasingly important. The
reputation of the MyPoints brand will depend on our ability to provide a
high-quality member experience. We cannot assure you that we will be successful
in delivering this experience. If members are not satisfied with the quality of
their experience with the MyPoints program, their negative experiences might
result in publicity that could damage our reputation. If we expend additional
resources to build the MyPoints brand and do not generate a corresponding
increase in revenues as a result of our branding efforts, or if we otherwise
fail to promote our brand successfully, our competitive position would suffer.
THE FAILURE TO ACCURATELY ESTIMATE LEVELS OF POINT REDEMPTION WOULD ADVERSELY
AFFECT OUR RESULTS OF OPERATIONS
Our historical and forecasted financial statements reflect our
assumptions as to the percentage of rewards points issued by us that will not be
redeemed by members prior to expiration. This percentage of unredeemed points is
known as "breakage." The breakage rates we have used in preparing our financial
statements and forecasts are based primarily on our limited experience with our
own program since its launch in May 1997. We have also reviewed breakage rates
reported by other operators of loyalty and rewards programs, such as airlines.
Although we believe that the breakage rates we have used are reasonable in light
of our analysis and experience, we cannot assure you that our actual breakage
rates will equal or exceed our assumed breakage rates. If our actual breakage
rates are less than our assumed breakage rates, meaning that a greater number of
points are actually redeemed than we had assumed would be redeemed, our results
of
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operations could be materially and adversely affected. In addition, operators of
loyalty programs have, from time to time, for competitive or other reasons,
extended the expiration dates for points, miles or other rewards currencies. For
example, we extended the expiration date for the points associated with the
email portion of our program when we relaunched our email and web-based
services. If it becomes necessary for us to extend the expiration date of a
significant balance of outstanding points in the future, it is possible that our
actual breakage rates would be lower than our assumed breakage rates, which
could materially and adversely affect our results of operations. In addition,
the timing of members' decisions to redeem points is at the discretion of
members and cannot be controlled by us. Points have a life of three to four
years and can be redeemed by members until their expiration date. To the extent
that members redeem points at a rate that is more rapid than that anticipated by
us, we would experience a need for increased working capital to fund these
redemptions. Accordingly, the timing of points redemptions by members could
materially and adversely affect our results of operations.
A SMALL NUMBER OF OUR ADVERTISING CUSTOMERS ACCOUNTS FOR A SIGNIFICANT PORTION
OF OUR REVENUES; THEREFORE THE LOSS OF PRINCIPAL CUSTOMERS COULD ADVERSELY
AFFECT OUR REVENUES
Although no single advertising customer accounted for more than 10% of
our revenue in 1999 and the six months ended June 30, 2000, our ten largest
advertising customers were responsible for approximately an aggregate of 25% of
our revenues during 1999 and 27% in the six months ended June 30, 2000. We do
not have long-term contracts with most of our customers, and customers can
generally terminate their relationships with us upon specified notice and
without penalties. Thus, we may not be able to retain our principal customers.
The loss of one or more of our principal customers could have a material adverse
effect on our revenues.
OUR PROSPECTS FOR OBTAINING ADDITIONAL FINANCING, IF REQUIRED, ARE UNCERTAIN AND
FAILURE TO OBTAIN NEEDED FINANCING COULD AFFECT OUR ABILITY TO PURSUE FUTURE
GROWTH
We may need to raise additional funds to develop or enhance our services
or products, to fund expansion, to respond to competitive pressures or to
acquire complementary products, businesses or technologies. We cannot assure you
that additional financing will be available on terms favorable to us, or at all.
If additional funds are raised through the issuance of equity or convertible
debt securities, the percentage ownership of our stockholders would be reduced
and these securities might have rights, preferences or privileges senior to
those of our current stockholders. If adequate funds are not available on
acceptable terms, our ability to fund our expansion, take advantage of
unanticipated opportunities, develop or enhance services or products, or
otherwise respond to competitive pressures would be significantly limited.
WE DEPEND ON THE SERVICES OF OUR EXECUTIVE OFFICERS AND KEY EMPLOYEES TO MANAGE
OUR GROWTH, AND THERE IS NO ASSURANCE WE CAN RETAIN THEIR SERVICES
Our future success depends on the continued service of our key senior
management and technical and sales personnel. The loss of any of these persons
could have a material adverse effect on our business. We do not have key-person
insurance on any of our employees. We have experienced several recent departures
of key personnel. Robert C. Hoyler, our former President and Chief Operating
Officer, left MyPoints.com in September 2000. In addition, Tom Caldwell, our
former Senior Vice President, Finance and Chief Financial Officer resigned in
May 2000, and Eugene A. Pierce, our former Senior Vice President, Technology,
left in June 2000. We recently promoted Charles H. Berman, who was previously
our Executive Vice President, Sales, to the position of Chief Operating Officer.
Following our acquisition of Cybergold in August 2000, we appointed John
Steuart, the former Chief Financial Officer of Cybergold, as our Chief Financial
Officer. Our recently integrated management team has limited experience working
together.
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Our success depends on our ability to attract, retain and motivate
highly skilled employees. Competition for employees in our industry is intense.
We may be unable to retain our key employees or to attract, assimilate and
retain other highly qualified employees in the future. We have experienced
difficulty from time to time in attracting the personnel necessary to support
the growth of our business, and we may experience similar difficulty in the
future.
FAILURE TO SAFEGUARD OUR DATABASE AND MEMBER PRIVACY COULD AFFECT OUR REPUTATION
AMONG CONSUMERS
An important feature of the MyPoints program is our ability to develop
and maintain individual member profiles. Security and privacy concerns may cause
consumers to resist providing the personal data necessary to support this
profiling capability. As a result of these security and privacy concerns, we may
incur significant costs to protect against the threat of security breaches or to
alleviate problems caused by such breaches. Usage of our MyPoints program could
decline if any well-publicized compromise of security occurred. In addition,
third parties could alter information in our database that would adversely
affect our ability to target direct marketing offers to members. We could also
be subject to legal claims from members. Any public perception that we engaged
in unauthorized release of member information would adversely affect our ability
to attract and retain members.
As part of our point redemption services, we maintain a database
containing information on our members' account balances. Our database may be
subject to access by unauthorized users accessing our systems remotely. If we
experience a security breach, the integrity of our points database could be
affected. This breach could lead to financial losses through the unauthorized
redemption of points.
WE ARE VULNERABLE TO SYSTEM FAILURES WHICH COULD CAUSE INTERRUPTIONS OR
DISRUPTIONS IN OUR SERVICE
The hardware infrastructure on which the MyPoints system operates is
located at the Exodus Communications data center in Jersey City, New Jersey. In
April 1999, we completed a transition to Exodus from a combination of internally
maintained systems and systems maintained by another third-party service
provider. We cannot assure you that we will be able to manage this relationship
successfully to mitigate any risks associated with having our hardware
infrastructure maintained by Exodus. Unexpected events such as natural
disasters, power losses and vandalism could damage our systems.
Telecommunications failures, computer viruses, electronic break-ins or other
similar disruptive problems could adversely affect the operation of our systems.
Our insurance policies may not adequately compensate us for any losses that may
occur due to any damages or interruptions in our systems. Accordingly, we could
be required to make capital expenditures in the event of damage. We do not
currently have fully redundant systems or a formal disaster recovery plan.
Periodically we experience unscheduled system downtime, which results in
our web site being inaccessible to members. In particular, during the relaunch
of the integrated MyPoints program in April 1999, we experienced significant
periods of system downtime during which our web site was inaccessible. Although
we did not suffer material losses during these downtimes, if these problems
persist in the future, members and advertisers could lose confidence in our
services.
SYSTEM CAPACITY CONSTRAINTS MAY RESULT IN A LOSS OF REVENUES
A substantial increase in the use of our products and services could
strain the capacity of our systems, which could lead to slower response time or
system failures. System failures or slowdowns adversely affect the speed and
responsiveness of our rewards transaction processing. These would diminish the
experience for
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<PAGE> 13
our members and reduce the number of transactions, and thus, could reduce our
revenue. Although we have designed and tested our system to handle several times
the highest daily transaction volume we have experienced to date, the ability of
our systems to manage this volume of transactions in a production environment is
unknown. As a result, we face risks related to our ability to scale up to our
expected transaction levels while maintaining satisfactory performance. If our
transaction volume increases significantly, we will need to purchase additional
servers and networking equipment to maintain adequate data transmission speeds.
The availability of these products and related services may be limited or their
cost may be significant.
WE FACE RISKS ASSOCIATED WITH THIRD PARTY CLAIMS AND PROTECTION OF OUR
INTELLECTUAL PROPERTY RIGHTS, AND ANY LITIGATION RELATING TO INTELLECTUAL
PROPERTY RIGHTS COULD HARM OUR BUSINESS
Our business activities may infringe upon the proprietary rights of
others, and other parties may assert infringement claims against us. We have
received three claims of alleged infringement, one of which has been resolved
through a license agreement. The second claim of infringement was with
Cybergold, which we acquired in August 2000. Also, in July 1999, we received an
infringement claim from another party, along with an offer to grant a license to
us at a cost that would not be material. To our knowledge, no litigation has
been filed against us based on this claim. We are evaluating the claim and have
not yet begun substantive discussions regarding it. Litigation may also be
necessary to enforce our intellectual property rights, to protect our trade
secrets or to determine the validity and scope of the proprietary rights of
others. An adverse determination in any litigation of this type could require us
to make significant changes to the structure and operation of our online rewards
program, attempt to design around a third party's patent, or license alternative
technology from another party. Implementation of any of these alternatives could
be costly and time consuming, and might not be possible. In addition, any
intellectual property litigation, even if successfully defended, would result in
substantial costs and diversion of resources and management attention.
Our success and ability to compete depends on our internally developed
technologies and trademarks, which we seek to protect through a combination of
patent, copyright, trade secret and trademark laws. Despite actions we take to
protect our proprietary rights, it may be possible for third parties to copy or
otherwise obtain and use our proprietary information without authorization or to
develop similar technology independently. In addition, legal standards relating
to the validity, enforceability and scope of protection of proprietary rights in
internet-related businesses are uncertain and still evolving. We cannot give any
assurance regarding the future viability or value of any of our proprietary
rights. In addition, we cannot give any assurance that the steps taken by us
will prevent misappropriation or infringement of our proprietary information.
Any infringement or misappropriation, should it occur, could have a material
adverse effect on any competitive advantage incident to our proprietary rights.
AS WE EXPAND OUR BUSINESS INTERNATIONALLY, WE MAY NEED TO ADAPT OUR PRODUCTS AND
SERVICES AND WE MAY BE SUBJECT TO FOREIGN GOVERNMENT REGULATION AND TAXATION,
CURRENCY ISSUES, DIFFICULTIES IN MANAGING FOREIGN OPERATIONS AND FOREIGN
POLITICAL ECONOMIC INSTABILITY
An element of our growth strategy is to further introduce our services
in international markets. Our participation in international markets will be
subject to our potential inability to adapt, expand or enhance our products and
services to suit foreign markets. In addition, international operations are
generally associated with risks such as foreign government regulations, export
license requirements, tariffs and taxes, fluctuations in currency exchange
rates, introduction of the European Union common currency, difficulties in
managing foreign operations and political and economic instability. To the
extent our potential international members or our international partners are
impacted by currency devaluations, general economic crises or other
macroeconomic events, the ability of our members to utilize our services could
be diminished. In order to help
-10-
<PAGE> 14
us address some of the risks associated with introducing our services
internationally, we believe it will be necessary to establish strategic
relationships with international partners. We cannot assure you that electronic
commerce will develop successfully in international markets or that potential
members in these foreign markets will utilize incentives-based marketing
programs. Furthermore, we cannot assure you that we will be able to overcome any
legal restrictions related to offering rewards and incentives that may exist in
foreign jurisdictions. Any failure to develop our business internationally may
harm our competitive position and consequently our business.
RISKS ASSOCIATED WITH THE INTERNET INDUSTRY
IF THE ACCEPTANCE OF ONLINE ADVERTISING AND DIRECT MARKETING DOES NOT CONTINUE,
OUR REVENUES WOULD DECLINE
We expect to derive a substantial portion of our revenues from online
advertising and direct marketing, including both email and web-based programs.
If these services do not continue to achieve market acceptance, we cannot assure
you that we will generate business at a sufficient level to support our
continued operations. The internet has not existed long enough as an advertising
medium to demonstrate its effectiveness relative to traditional advertising
media. Advertisers and advertising agencies that have historically relied on
traditional advertising may be reluctant or slow to adopt online advertising.
Many potential advertisers have limited or no experience using email or the web
as an advertising medium. They may have allocated only a limited portion of
their advertising budgets to online advertising, or may find online advertising
to be less effective for promoting their products and services than traditional
advertising media. If the market for online advertising fails to develop or
develops more slowly than we expect, our revenues would decline.
The market for email advertising in general is vulnerable to the
negative public perception associated with unsolicited email, known as "spam."
We do not send unsolicited email. However, public perception, press reports or
governmental action related to spam could reduce the overall demand for email
advertising in general and our MyPoints BonusMail service in particular.
IF ONLINE REWARDS PROGRAMS ARE NOT WIDELY ACCEPTED BY BUSINESSES AND INTERNET
USERS OUR BUSINESS MODEL WILL NOT SUCCEED
Our success depends in large part on the continued growth and acceptance
of online rewards programs. If online rewards programs are not widely accepted
by advertisers and embraced by internet users, our business model will not
succeed. Although loyalty and rewards programs have been used extensively in
conventional marketing and sales channels, they have only recently begun to be
used online. We cannot assure you that online programs will continue to be
accepted by advertisers and that we can continue to offer advertisers attractive
promotions and satisfied members.
The success of our business model also will depend on our ability to
attract and retain members. We cannot assure you that our marketing efforts and
the quality of each member's experience, including the number and relevance of
the direct marketing offers we provide and the perceived value of the rewards we
offer, will generate sufficient satisfied members.
TO REMAIN COMPETITIVE, WE MUST KEEP PACE WITH RAPID TECHNOLOGICAL CHANGES IN OUR
INDUSTRY
Our market is characterized by rapidly changing technologies, frequent
new product and service introductions, short development cycles and evolving
industry standards. The recent growth of the internet
-11-
<PAGE> 15
and intense competition in our industry exacerbate these market characteristics.
We must adapt to rapidly changing technologies by maintaining and improving the
performance features and reliability of our services. We may experience
technical difficulties that could delay or prevent the successful development,
introduction or marketing of new products and services. In addition, any new
enhancements to our products and services must meet the requirements of our
current and prospective users. We could incur substantial costs to modify our
services or infrastructure to adapt to rapid technological change.
CONTINUED DEVELOPMENT AND USE OF THE INTERNET INFRASTRUCTURE IS CRITICAL TO OUR
ABILITY TO OFFER OUR SERVICES
Our members depend on internet service providers for access to our web
site. Internet service providers and web sites have experienced significant
outages in the past, and could experience outages, delays and other difficulties
due to system failures unrelated to our systems. If outages or delays occur
frequently in the future, internet usage, as well as electronic commerce and the
usage of our products and services, could grow more slowly or decline. A number
of factors may inhibit internet usage, including inadequate network
infrastructure, security concerns, inconsistent quality of service, and lack of
availability of cost-effective, high-speed service. If internet usage grows, the
internet infrastructure may not be able to support the demands placed on it by
this growth and its performance and reliability may decline.
OUR BUSINESS DEPENDS ON OUR ABILITY TO COLLECT MEMBER INFORMATION; FUTURE
REGULATION OF THE INTERNET COULD RESTRICT OUR ACCESS TO THIS INFORMATION
Laws and regulations that apply to the internet may become more
prevalent in the future. The laws governing the internet and email services
remain largely unsettled. There is no single governmental body overseeing our
industry, and many state laws that have been enacted in recent years have
different and sometimes inconsistent application to our business. In particular,
our business model could be severely damaged if regulations were enacted that
restricted our ability to collect or use information about our members.
The governments of foreign countries may also attempt to regulate
electronic commerce. New laws could dampen the growth in use of the internet
generally and decrease the acceptance of the internet as a commercial medium. In
addition, existing laws such as those governing intellectual property and
privacy may be interpreted to apply to the internet. The federal government,
state governments or other governmental authorities could also adopt or modify
laws or regulations relating to the internet.
In 1998, the United States government enacted a three-year moratorium
prohibiting states and local governments from imposing new taxes on electronic
commerce transactions. Upon expiration of this moratorium, if it is not
extended, states or other governments might levy sales or use taxes on
electronic commerce transactions. An increase in the taxation of electronic
commerce transactions might also make the internet less attractive for consumers
and businesses. In addition, the Federal Trade Commission is considering the
adoption of regulations regarding the collection and use of personal information
obtained from individuals, especially children, when accessing web sites. These
regulations could restrict our ability to provide demographic data to our
advertising and marketing clients. At the international level, the European
Union has adopted a directive that will impose restrictions on the collection
and use of personal data. This directive could affect U.S. companies that
collect information over the internet from individuals in European Union member
countries and may impose restrictions that are more stringent than current
internet privacy standards in the United States. These developments could have
an adverse effect on our business, results of operations and financial
condition.
-12-
<PAGE> 16
OTHER RISKS ASSOCIATED WITH OWNERSHIP OF OUR COMMON STOCK
OUR MANAGEMENT AND MAJOR STOCKHOLDERS RETAIN SUBSTANTIAL CONTROL, AND THIS COULD
DELAY OR PREVENT A CHANGE OF CONTROL
Our executive officers, our directors and entities affiliated with them
and our 5% stockholders together currently beneficially own a substantial
percentage of our outstanding common stock. These stockholders, if they vote
together, will retain substantial control over matters requiring approval by our
stockholders, such as the election of directors and approval of significant
corporate transactions. This concentration of ownership might also have the
effect of delaying or preventing a change in control.
PROVISIONS OF OUR CORPORATE CHARTER DOCUMENTS COULD DELAY OR PREVENT A CHANGE OF
CONTROL
Various provisions of our certificate of incorporation and bylaws could
have the effect of delaying or preventing a change in control and make it more
difficult for a third party to acquire us, even if doing so would be beneficial
to our stockholders. These provisions, if used by our management, could
negatively affect our stock price.
OUR STOCK PRICE HAS BEEN EXTREMELY VOLATILE, AND YOU MAY NOT BE ABLE TO SELL
YOUR SHARES AT A PROFIT
The stock market has experienced significant price and volume
fluctuations, and the market prices of technology companies, particularly
internet-related companies, have been highly volatile. The closing price of our
common stock during 2000, through the date of this prospectus, has ranged from a
low of $4.93 per share to a high of $68.69 per share. Investors may not be able
to resell their shares at or above the price which they paid for their shares.
In addition, our results of operations during future fiscal periods might fail
to meet the expectations of stock market analysts and investors. This failure
could lead the market price of our common stock to decline and cause us to
become the subject of securities class action lawsuits.
-13-
<PAGE> 17
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares by the
selling stockholders in the offering. We will pay for costs relative to the
registration of the shares.
SELLING STOCKHOLDERS
The rules and regulations of the Securities and Exchange Commission
determines beneficial ownership. Such beneficial ownership generally includes
voting or investment power with respect to securities. We base the beneficial
ownership stated below on information as of September 15, 2000. It assumes that
there is outstanding an aggregate of 39,897,248 shares of common stock.
As of September 15, 2000, no options had been issued to the selling
stockholders named in this prospectus. Except as subject to community property
laws where applicable, we believe, based on information furnished by the selling
stockholders that the person named in the table below has sole voting and
investment power with respect to all shares of common stock shown as
beneficially owned by him or her. This beneficial ownership assumes the sale of
all shares offered by this prospectus and no other purchases or sales of our
common stock. See "Plan of Distribution."
In this prospectus, we refer to the individual listed below and any
family member, trust or trust instrument to whom he or she may rightfully
transfer his shares as "selling stockholders." The following table sets forth
certain information as of September 15, 2000 with respect to each selling
stockholder:
<TABLE>
<CAPTION>
SHARES
OFFERED SHARES BENEFICIALLY
NAME OF SELLING STOCKHOLDER HEREBY OWNED AFTER OFFERING
------ --------------------
Number Percent
-------- -------
<S> <C> <C> <C>
Joel B. Cutler ......................................... 93,312 0 0
David P. Fialkow ....................................... 81,648 0 0
Fialkow 1995 Cobra Marketing, Inc. Trust f/b/o ......... 5,832 0 0
Julian Deforan Fialkow .................................
Fialkow 1995 Cobra Marketing, Inc. Trust f/b/o ......... 5,832 0 0
Olivia Pratt Fialkow ...................................
Tia Gierkink ........................................... 48,600 0 0
Bryan Hanson ........................................... 7,776 0 0
</TABLE>
-14-
<PAGE> 18
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares separately or together,
from time to time on the over-the-counter market at prices and on terms
prevailing at the time of any such sale. Any such sale may be made:
- in broker's transactions through broker-dealers acting as
agents;
- in transactions directly with market makers; or
- in privately negotiated transactions where no broker or other
third party (other than the purchaser) is involved.
The selling stockholders will pay:
- selling commissions or brokerage fees, if any;
- all applicable transfer taxes; and
- all fees and costs of counsel incurred in connection with the
sale.
During such time as the selling stockholders may be attempting to sell
shares registered hereunder, they will:
- not engage in any stabilization activity in connection with any
of MyPoints.com's securities;
- furnish copies of this prospectus, as supplemented or amended to
each person to whom shares may be offered; and
- not bid for or purchase any of MyPoints.com's securities other
than as permitted under the Exchange Act.
The selling stockholders, and any other persons who participate in the
sale of the shares, may be deemed to be "Underwriters" as defined in the
Securities Act. Any commissions paid or any discounts or concessions allowed to
any such persons, and any profits received on resale of the shares, may be
deemed to be underwriting discounts and commissions under the Securities Act.
With regard to the shares, we have agreed to maintain the effectiveness
of this registration statement until January 13, 2002, or earlier if the
distribution described herein has become effective.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sale of the shares. We have agreed to
indemnify the selling stockholders against certain liabilities, including
liabilities under the Securities Act. The selling stockholders have agreed to
indemnify MyPoints.com against certain liabilities, including liabilities under
the Securities Act.
-15-
<PAGE> 19
LEGAL MATTERS
Legal matters with respect to the legality of issuing the common stock
offered hereby will be passed upon for us by Wilson Sonsini Goodrich & Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304. Mario
M. Rosati, one of our directors and our secretary, is a member of Wilson Sonsini
Goodrich & Rosati.
EXPERTS
The financial statements and schedule incorporated by reference in this
registration statement have been audited by PricewaterhouseCoopers LLP,
independent accountants. We include these statements and schedule in reliance
upon the authority of PricewaterhouseCoopers LLP as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes a part of a registration statement on Form
S-3 filed by MyPoints.com with the Securities and Exchange Commission under the
Securities Act. This prospectus does not contain all of the information set
forth in the registration statement. The rules and regulations of the Commission
permit us to omit certain parts. For further information, refer to the
registration statement. Statements concerning the provisions of any document are
not necessarily complete. We qualify each such statement, in its entirety, by
reference to the registration statement filed with the Commission.
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any reports, statements or other information that we file with the
Securities and Exchange Commission at its Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the Securities and Exchange
Commission at 1-800-SEC-0330. The Securities and Exchange Commission also
maintains a web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Securities and Exchange Commission. The address of the site is
http://www.sec.gov.
INFORMATION INCORPORATED BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" in this prospectus 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, The most recent information that we file with the Commission
automatically updates and supersedes this information. We incorporate by
reference the documents listed below and any future filings made with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus and prior to the time all of the securities offered
by this prospectus are sold.
1. Our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999.
2. Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2000.
3. Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000.
4. Our Current Reports on Form 8-K filed with the Commission on
February 4, 2000 (as amended on Form 8-K/A filed with the
Commission on March 28, 2000) and August 21, 2000.
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<PAGE> 20
5. The description of our common stock contained in our
registration statement on Form 8-A as filed with the Commission
on August 3, 1999.
You may request free copies of these filings by writing or telephoning
us. Requests should be directed to Geoff Ossias, Vice President of Corporate
Relations, MyPoints.com, Inc., 100 California Street, 11th Floor, San Francisco,
California 94111, telephone: (415) 676-3700.
You should rely only on the information incorporated by reference or
provided in this prospectus or a prospectus supplement or amendment. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted.
Also, this prospectus does not offer to sell any securities other than the
securities covered by this prospectus. You should not assume that the
information in this prospectus or a prospectus supplement or amendment is
accurate as of any date other than the date on the front of the document.
Shares of our common stock are traded as "National Market Securities" on
the Nasdaq National Market. Documents we file can be inspected at the offices of
the National Association of Securities Dealers, Inc., Reports Section, 1735 K
Street, N.W., Washington, D.C. 20006.
-17-
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the Registrant
in connection with the sale and distribution of the Common Stock being
registered. Selling commissions and brokerage fees and any applicable transfer
taxes and fees and disbursements of counsel for the selling stockholders are
payable by the selling stockholders. All amounts are estimates except the
registration fee.
<TABLE>
<CAPTION>
Amount to be Paid
-----------------
<S> <C>
Registration Fee ................................. $ 368.00
Legal Fees and Expenses .......................... 10,000.00
Accounting Fees and Expenses ..................... 5,000.00
Miscellaneous .................................... 4,632.00
-----------------
Total ............................................ $ 20,000.00
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors and any corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act. Our amended and restated certificate of incorporation and our
amended and restated bylaws provide for indemnification of our directors,
officers, employees and other agents to the extent and under the circumstances
permitted by the Delaware General Corporation Law. We have also entered into
agreements with our directors and executive officers that require MyPoints.com,
among other things, to indemnify them against certain liabilities that may arise
by reason of their status or service as directors and executive officers to the
fullest extent permitted by Delaware law. We have also purchased directors and
officers liability insurance, which provides coverage against certain
liabilities including liabilities under the Securities Act.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
</TABLE>
ITEM 17. 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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
<PAGE> 22
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this 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 this registration
statement or any material change to such information in this
registration statement; provided, however, that paragraphs (1)(i) and
(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 this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, 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.
(5) 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 provisions referred to in Item 15
above 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 of 1933 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 against the Registrant by such director,
officer or controlling person in connection with the securities being registered
hereunder, 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 of 1933 and will be governed by the
final adjudication of such issue.
II-2
<PAGE> 23
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-3 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 the 29th
day of September, 2000.
MYPOINTS.COM, INC.
By:/s/ STEVEN M. MARKOWITZ
-------------------------
Steven M. Markowitz
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven M. Markowitz and John Steuart,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-3, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may 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 by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
----------------------- --------------------------- ------------------
<S> <C> <C>
Chief Executive Officer and September 29, 2000
/s/ STEVEN M. MARKOWITZ Chairman of the Board
----------------------------
Steven M. Markowitz
/s/ NATHANIEL GOLDHABER Vice Chairman of the Board September 29, 2000
----------------------------
Nathaniel Goldhaber
/s/ JOHN STEUART Sr. Vice President, CFO September 29, 2000
---------------------------- (Principal Financial and
John Steuart Accounting Officer), and
Director
/s/ MARIO M. ROSATI Director and Secretary September 29, 2000
----------------------------
Mario M. Rosati
/s/ HOWARD L. MORGAN Director September 29, 2000
----------------------------
Howard L. Morgan
/s/ THOMAS NEWKIRK Director September 29, 2000
----------------------------
Thomas Newkirk
/s/ LAWRENCE E. PHILLIPS Director September 29, 2000
-----------------------------
Lawrence E. Phillips
/s/ LESTER WUNDERMAN Director September 29, 2000
----------------------------
Lester Wunderman
</TABLE>
II-3
<PAGE> 24
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page)
</TABLE>
II-4
