<PAGE>
As filed with the Securities and Exchange Commission on September 28, 2000
Registration No. 333-32034
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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
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AMENDMENT No. 8
To
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTERSHOP Communications Aktiengesellschaft
(Exact Name of Registrant as Specified in its Charter)
INTERSHOP Communications Stock Corporation
(Translation of Registration Name into English)
<TABLE>
<S> <C> <C>
Federal Republic of Germany 7373 Not Applicable
(State or Other Jurisdiction
of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
</TABLE>
Amsinckstrasse 57
D-20097 Hamburg
Federal Republic of Germany
(011) 49-40-23708-2
(Address and telephone number of Registrant's principal executive offices)
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CRAIG W. HARDING
INTERSHOP Communications AG
303 Second Street, 10th Floor North
San Francisco, CA 94107
(415) 844-1500
(Name, address and telephone number of agent for service)
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Copies to:
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<S> <C>
MARC M. ROSSELL MARK A. BERTELSEN
Shearman & Sterling Wilson Sonsini Goodrich & Rosati
555 California Street Professional Corporation
San Francisco, CA 94104 650 Page Mill Road
Palo Alto, CA 94304
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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,
check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [_]
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The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities being registered which are to be
paid by INTERSHOP, other than underwriting discounts and commissions.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $ 93,207
The Nasdaq Stock Market's National Market listing fee............ 5,000
National Association of Securities Dealers, Inc. filing fee...... 30,500
Printing and engraving expenses.................................. 250,000
Legal fees and expenses.......................................... 900,000
Accounting fees and expenses..................................... 550,000
Miscellaneous.................................................... 71,293
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Total........................................................ $1,900,000
==========
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Item 14. Indemnification of Directors and Officers
The laws of Germany make no provisions for indemnification of officers and
directors. Our articles of association or by-laws do not provide for the
indemnification of any controlling person, director or officer. We carry an
insurance policy with AIG Europe for DM 5 million of coverage which covers
officers and directors. Other than the insurance policy with AIG, there are no
indemnification agreements with our officers and directors.
Item 15. Recent Sales of Unregistered Securities
All of INTERSHOP's securities that were sold by INTERSHOP within the past
three years which were not registered under the Securities Act are described
below:
On August 15, 2000, we sold 500,000 of our ordinary bearer shares in a
private placement outside the United States pursuant to the exemption provided
for in Regulation S. The shares were placed by Bank Vontobel with three
unrelated institutional investors at (Euro)80 per share, which was the market
price for the shares on the Frankfurt Stock Exchange on that date.
On July 15, 1998 we commenced an initial public offering on the Neuer Markt
of the Frankfurt Stock Exchange and placed a total of 15,000,000 of our common
shares at a price of DM 6.67 per share. All shares sold in the United States
were private placements and therefore did not require registration under the
Securities Act pursuant to the exemption provided for in Section 4(2) of the
Securities Act. The underwriters were Bank J. Vontobel & Co AG, Commerzbank
Aktiengesellschaft, Hambrecht & Quist Euromarkets S.A. and Sal. Oppenheim jr. &
Cie. Kommanditgesellschaft auf Aktien.
Item 16. Exhibits and Financial Statement Schedules
The following exhibits are filed as part of this Registration Statement:
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<CAPTION>
Exhibit
Number Description
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<C> <S>
1.1** Form of Underwriting Agreement
3.1** Summary Translation of Articles of Association (Satzung)
4.1** Form of Share Certificate for Ordinary Shares
4.2** Form of Deposit Agreement including Form of ADR Certificate
(incorporated by reference from the Registrant's Registration
Statement on Form F-6 (Registration No. 333-11642))
</TABLE>
II-1
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<TABLE>
<CAPTION>
Exhibit
Number Description
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<C> <S>
5.1** Opinion of Haarmann, Hemmelrath & Partner
8.1** Opinion of Shearman & Sterling relating to tax matters
10.1** 1997 Equity Incentive Plan
10.2** 1999 Stock Option Plan
10.3** Summary Translation of Intershop Communications Reorganization
Agreement (Post-Formation Acquisition and Capital Contribution
Agreement)
10.4** Intershop Communications Reorganization Agreement
10.5** Summary Translation of Trademark Agreement between Intershop Holding
AG, Intershop Communications, Inc. and Intershop Communications GmbH
10.6** Summary Translation of Loan Agreement between Wilfried Beeck and
Intershop Communications AG
10.7** Summary Translation of Loan Agreement between Stephan Schambach and
Intershop Communications AG
10.8** Software License, Services and Support Agreement between Persistence
Software and Intershop Communications AG(1)
10.9** Asset Purchase Agreement from Fountainhead Management, Aaron Kaufman
and Intershop Communications AG(1)
10.10** Cooperation Agreement with Deutsche Telekom AG and Intershop
Communications AG(1)
10.11** Summary Translation of Reseller Agreement with Sybase GmbH and
Intershop Communications AG(1)
10.12** Summary Translation of Reseller Agreement with Oracle Deutschland GmbH
and Intershop Communications AG(1)
10.13** Technology License and Distribution Agreement with Sun Microsystems
and Intershop Communications AG(1)
21.1** List of Subsidiaries
23.1* Consent of Arthur Andersen Wirtschaftsprufungsgesellschaft
Steuerberatungsgesellschaft mbH
23.2** Consent of Haarmann, Hemmelrath & Partner (included in exhibit 5.1)
23.3** Consent of Shearman & Sterling (included in exhibit 8.1)
23.4** Consent of International Data Corporation
</TABLE>
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* Filed herewith
** Previously filed
(1) The Registrant has applied for confidential treatment for portions of this
agreement. Accordingly, portions thereof have been omitted and filed
separately.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to INTERSHOP's directors, officers and controlling persons
pursuant to the provisions described under "Item 14, Indemnification of
Directors and Officers" above, or otherwise, INTERSHOP has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed
II-2
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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 a director, officer or controlling person in
connection with the securities being registered, INTERSHOP 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 is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
INTERSHOP hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by INTERSHOP pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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) It will provide to the underwriters at the closing specified in the
Underwriting Agreement, certificates in such denominations and
registered in such names as required by the underwriters to permit
prompt delivery to each purchaser.
II-3
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SIGNATURE
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 F-1 and has caused this Registration Statement
on Form F-1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in San Francisco, California, on September 28, 2000.
INTERSHOP COMMUNICATIONS AKTIENGESELLSCHAFT
By: /s/ Stephan Schambach
_____________________________________________
Stephan Schambach
Chief Executive Officer
(Vorstandsvorsitzender)
By: /s/ Wilfried Beeck
_____________________________________________
Wilfried Beeck
Chief Financial Officer (Finanzvorstand)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears below
constitutes and appoints Stephan Schambach and Wilfried Beeck, and each of them
severally, his true and lawful attorney-in-fact and agents, with full power of
substitution and resubstitution, for him and his name, place and stead, in any
and all capacities, to sign and all amendments (including 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, including any subsequent registration
statement filed pursuant to Rule 462(b), granting unto said attorneys-in-fact
and agents, and each of them, 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
agents of either of them, or their or his substitues, 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 indicated
on the dates indicated.
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<CAPTION>
Signature Title Date
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<C> <S> <C>
/s/ Stephan Schambach September 28, 2000
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Stephan Schambach Chairman of the Management Board,
Chief Executive Officer and
Vorstandsversitzender (Principal
executive officer)
/s/ Wilfried Beeck September 28, 2000
------------------------------------
Wilfried Beeck Member of the Management Board
and Finanzvorstand (Principal
financial officer and principal
accounting officer)
</TABLE>
II-4
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SIGNATURE AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the undersigned,
the duly authorized representative in the United States of the registrant, has
signed this Registration Statement on Form F-1, or amendment thereto, in his
capacity as an authorized officer of INTERSHOP Communications, Inc., in San
Francisco, California, on September 28, 2000.
INTERSHOP COMMUNICATIONS, INC
/s/ Keith C. Costello
By: __________________________________________
Keith C. Costello
President
II-5
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<C> <S>
1.1** Form of Underwriting Agreement
3.1** Summary Translation of Articles of Association (Satzung)
4.1** Form of Share Certificate for Ordinary Shares
4.2** Form of Deposit Agreement including Form of ADR Certificate
(incorporated by reference from the Registrant's Registration
Statement on Form F-6 (Registration No. 333-11642))
5.1** Opinion of Haarmann, Hemmelrath & Partner
8.1** Opinion of Shearman & Sterling relating to tax matters
10.1** 1997 Equity Incentive Plan
10.2** 1999 Stock Option Plan
10.3** Summary Translation of Intershop Communications Reorganization
Agreement (Post-Formation Acquisition and Capital Contribution
Agreement)
10.4** Intershop Communications Reorganization Agreement
10.5** Summary Translation of Trademark Agreement between Intershop Holding
AG, Intershop Communications, Inc. and Intershop Communications GmbH
10.6** Summary Translation of Summary of Loan Agreement between Wilfried
Beeck and Intershop Communications AG
10.7** Summary Translation of Loan Agreement between Stephan Schambach and
Intershop Communications AG
10.8** Software License, Services and Support Agreement between Persistence
Software and Intershop Communications AG(1)
10.9** Asset Purchase Agreement from Fountainhead Management, Aaron Kaufman
and Intershop Communications AG(1)
10.10** Cooperation Agreement with Deutsche Telekom AG and Intershop
Communications AG(1)
10.11** Summary Translation of Reseller Agreement with Sybase GmbH and
Intershop Communications AG(1)
10.12** Summary Translation of Reseller Agreement with Oracle Deutschland GmbH
and Intershop Communications AG(1)
10.13** Technology License and Distribution Agreement with Sun Microsystems
and Intershop Communications AG(1)
21.1** List of Subsidiaries
23.1* Consent of Arthur Andersen Wirtschaftsprufungsgesellschaft
Steuerberatungsgesellschaft mbH
23.2** Consent of Haarmann, Hemmelrath & Partner (Included in exhibit 5.1)
23.3** Consent of Shearman & Sterling (included in exhibit 8.1)
23.4** Consent of International Data Corporation
</TABLE>
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* Filed herewith
** Previously filed
(1) The Registrant has applied for confidential treatment for portions of this
agreement. Accordingly, portions thereof have been omitted and filed
separately.
