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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1999
REGISTRATION NO. 333-76029
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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YOUBET.COM, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 95-4627253
(State or other jurisdiction (I.R.S. Employer
of Identification
incorporation or organization) Number)
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1950 SAWTELLE BOULEVARD, SUITE 180
LOS ANGELES, CALIFORNIA 90025
(310) 444-3300
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive office)
ROBERT M. FELL
CHIEF EXECUTIVE OFFICER
1950 SAWTELLE BLVD., SUITE 180
LOS ANGELES, CALIFORNIA 90025
(310) 444-3300
(Name, address, including zip code, and telephone number, including
area code, of agent of service)
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COPIES TO:
GARY N. JACOBS, ESQ. JONATHAN K. LAYNE, ESQ.
CHRISTENSEN, MILLER, FINK, JACOBS, GIBSON, DUNN & CRUTCHER LLP
GLASER, WEIL & SHAPIRO, LLP 333 SOUTH GRAND AVENUE
2121 AVENUE OF THE STARS, 18TH FLOOR LOS ANGELES, CALIFORNIA 90071
LOS ANGELES, CALIFORNIA 90067 (213) 229-7000
(310) 553-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE
If the only securities being registered on this Form are being 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 At of
1933, other than the securities offered only in connection with dividend or
interest reinvestment plans, 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, 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 on 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, AS AMENDED, 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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EXPLANATORY NOTE
This Amendment No. 3 to the Registration Statement on Form S-3 is being
filed solely to file as an exhibit to the Registration Statement the opinion of
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP and the consent
of such firm.
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PART II
Information Not Required in Prospectus
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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Securities and Exchange Commission filing Fee................... $ 16,826
National Association of Securities Dealers, Inc. filing fee..... $ 6,298
Printing and engraving fees and expenses........................ $ 200,000
Legal fees and expenses......................................... $ 750,000
Accounting fees and expenses.................................... $ 175,000
Other........................................................... $ 50,000
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Total....................................................... $1,198,124
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The Company will bear all the foregoing expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware provides
that a corporation shall have the power, and in some cases is required, to
indemnify an agent, including an officer or director, who was or is a party or
is threatened to be made a party to any proceedings, against certain expenses,
judgments, fines, settlements and other amounts under certain circumstances.
Article of the Registrant's Bylaws requires indemnification of the
Registrant's officers and directors to the maximum extent permitted by the
Delaware General Corporation Law, and the Registrant maintains insurance
covering certain liabilities of the directors and officers of the Registrant and
its subsidiaries.
ITEM 16. EXHIBITS
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2.1 Acquisition Agreement between PC Totes, Inc. and Embassy Acquisition, Inc.
dated as of December 6, 1995 (Incorporated herein by reference to
Youbet.com's Form 10-K for the year ended December 31, 1995.)
2.2 Form of Underwriting Agreement
3.1 Restated Certificate of Incorporation (Incorporated herein by reference to
Youbet.com's Form 10-K for the year ended December 31, 1995.)
3.2 By-Laws of Youbet.com (Incorporated herein by reference to Youbet.com's
Form 10-K for the year ended December 31, 1995.)
3.3 Certificate of Designation for Series A Convertible Preferred dated June
18, 1998 (Incorporated herein by reference to Youbet.com's Form 10-KSB
for the year ended December 31, 1998.)
*5.1 Opinion of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP
10.1 1995 Stock Option Plan (Incorporated herein by reference to Youbet.com's
Form 10-K for the year ended December 31, 1996.)
10.2 1995 Stock Option Plan for Non-Employee Directors (Incorporated herein by
reference to Youbet.com's Form 10-K for the year ended December 31,
1996.)
10.3 Stock Purchase Agreement dated June 29, 1998 (Incorporated herein by
reference to Youbet.com's Form 8-K for the year ended June 29, 1998.)
10.4 Securities Purchase Agreement dated June 29, 1998 (Incorporated herein by
reference to Youbet.com's Form 8-K dated June 29, 1998.)
10.5 Stockholders Agreement dated June 29, 1998 (Incorporated herein by
reference to Youbet.com's Form 8-K dated June 29, 1998.)
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10.6 Registration Rights Agreement dated June 29, 1998 (Incorporated herein by
reference to Youbet.com's Form 8-K dated June 29, 1998.)
10.7 Warrant to Purchase Common Stock dated June 29, 1998 (Incorporated herein
by reference to Youbet.com's Form 8-K dated June 29, 1998.)
10.8 Employment Agreement between Youbet.com and David M. Marshall dated June
29, 1998 (Incorporated herein by reference to Youbet.com's Form 8-K
dated June 29, 1998.)
10.9 Employment Agreement between Youbet.com and Russell M. Fine dated June 29,
1998 (Incorporated herein by reference to Youbet.com's Form 8-K dated
June 29, 1998.)
10.10 1998 Stock Option Plan (Incorporated herein by reference to Youbet.com's
Form 10-KSB for the year ended December 31, 1998.)
10.11 Services Agreement between Youbet.com and David Marshall, Inc. dated
January 1, 1999 (Incorporated herein by reference to Youbet.com's Form
10-KSB for the year ended December 31, 1998.)
10.12 Services Agreement between Youbet.com and Fell & Company, Inc. dated June
29, 1998, amended and restated as of March 1, 1999 (Incorporated herein
by reference to Youbet.com's Form 10-KSB for the year ended December 31,
1998.)
10.13 Employment Agreement between Youbet.com and Ronald W. Luniewski dated May
1, 1998, superceded by an Employment Agreement dated March 1, 1999
(Incorporated herein by reference to Youbet.com's Form 10-KSB for the
year ended December 31, 1998.)
10.14 Employment Agreement between Youbet.com and Phillip C. Hermann dated May
1, 1998, superceded by an Employment Agreement dated March 1, 1999
(Incorporated herein by reference to Youbet.com's Form 10-KSB for the
year ended December 31, 1998.)
10.15 Telecommunications Facilitation System Agreement between Youbet.com and
Mountain Laurel Racing, Inc. and Washington Trotting Association, Inc.
dated June 23, 1997 (Incorporated herein by reference to Youbet.com's
Form 10-KSB for the year ended December 31, 1998.)
**10.16 License Agreement between Youbet.com and Equibase Company dated March 25,
1996
**10.17 Marketing and Distribution Agreement between Youbet.com and Thoroughbred
Sports Network, Inc. dated September 26, 1997
**10.18 Agreement between Youbet.com and the United States Trotting Association
dated March 18, 1998
10.19 Agreement between Youbet.com and Netixs Communications dated March 3, 1999
(Incorporated herein by reference to Youbet.com's Form 10-KSB for the
year ended December 31, 1998.)
10.20 Form of Note Purchase Agreement dated April 5, 1999 relating to the 11%
Senior Convertible Discount Notes. (Incorporated herein by reference to
Youbet.com's Form 10-KSB for the year ended December 31, 1998)
10.21 Form of 11% Senior Convertible Discount Note. (Incorporated herein by
reference to Youbet.com's Form 10-KSB for the year ended December 31,
1998)
*23.1 Consent of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP
(included in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
23.3 Consent of Weinbaum & Yalamanchi
27 Financial Data Schedule
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* Filed herewith.
** Portions of these documents containing confidential information have been
redacted in accordance with the rules of the Securities and Exchange
Commission.
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ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes 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.
(b) The undersigned registrant undertakes to supplement the prospectus, after
the expiration of the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriter during the
subscription period, the amount of unsubscribed securities to be purchased
by the underwriters, and the terms of any subsequent reoffering thereof. If
any public offering by the underwriters is to be made on terms different
from those set forth on the cover page of the prospectus, a post-effective
amendment will be filed to set forth the terms of such offering.
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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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on June 14, 1999.
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YOUBET.COM, INC.
By: /s/ ROBERT M. FELL
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Robert M. Fell
CHIEF EXECUTIVE OFFICER
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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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NAME TITLE DATE
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Chairman of the Board of
/s/ ROBERT M. FELL Directors and Chief
- ------------------------------ Executive Officer; June 14, 1999
Robert M. Fell Director
* /s/ DAVID M.
MARSHALL Vice Chairman of the Board
- ------------------------------ of Directors and June 14, 1999
David M. Marshall President
* /s/ RUSSELL M.
FINE Executive Vice President
- ------------------------------ Chief Technology Officer June 14, 1999
Russell M. Fine and Director
/s/ PHILLIP C. HERMANN Executive Vice President
- ------------------------------ and Chief Financial June 14, 1999
Phillip C. Hermann Officer
* /s/ CAESAR P.
KIMMEL
- ------------------------------ Director June 14, 1999
Caesar P. Kimmel
* /s/ ALAN W.
LANDSBURG
- ------------------------------ Director June 14, 1999
Alan W. Landsburg
* /s/ JESS
RIFKIND
- ------------------------------ Director June 14, 1999
Jess Rifkind
* /s/ WILLIAM H.
ROEDY
- ------------------------------ Director June 14, 1999
William H. Roedy
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* By /s/ PHILLIP C. HERMANN
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Phillip C. Hermann
ATTORNEY-IN-FACT
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EXHIBIT 5.1
[LETTERHEAD]
June 11, 1999
Youbet.com, Inc.
1950 Sawtelle Boulevard
Suite 180
Los Angeles, CA 90025
Re: REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-76029)
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Dear Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (File No.
333-76029), as amended by Amendment No. 1, Amendment No. 2 and Amendment No.
3 (the "Registration Statement") filed by you with the Securities and
Exchange Commission in connection with the registration under the Securities
Act of 1933 of 4,022,750 shares of Common Stock (including 675,000 which may
be sold by Selling Stockholders and 506,250 shares of Common Stock which may
be sold by Selling Stockholders pursuant to the exercise of the underwriters'
over-allotment option) (the "Shares"). As your legal counsel in connection
with this transaction, we have examined the proceedings taken and we are
familiar with the proceedings proposed to be taken by you in connection with
the sale and issuance of the Shares.
It is our opinion that upon completion of the proceedings being taken in
order to permit such transactions to be carried out in accordance with the
securities laws of the various states where required, the Shares, when issued
and sold in the manner described in the Registration Statement, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in
the Registration Statement and in any amendment to it.
Very truly yours,
/s/ CHRISTENSEN, MILLER, FINK, JACOBS,
GLASER, WEIL & SHAPIRO, LLP
