As filed with the Securities and Exchange Commission on July 13, 1999
Registration No. 333-77119
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
eFax.com, Inc.
(Exact name of registrant as specified in its charter)
Delaware 3577 77-0182451
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification
incorporation or Classification Code Number)
organization) Number)
1378 Willow Road
Menlo Park, California 94025
(650) 324-0600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Mr. Todd J. Kenck
Chief Financial Officer
eFax.com, Inc.
1378 Willow Road
Menlo Park, California 94025
(650) 324-0600
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
Patrick A. Pohlen, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(650) 843-5000
Approximate date of commencement of proposed sale to public: As soon as
practicable after this registration statement becomes effective.
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]
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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 to be a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the registration
statement of the earlier effective registration statement for the same
offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each maximum maximum
class of Amount to offering aggregate Amount of
Securities to be price per offering registration
be registered registered(1) share(2) price(2) fee(3)
- ------------- ------------ --------- -------- --------------
<S> <C> <C> <C> <C>
Common stock,
$.01 par 36,580
value shares $13.5313 494,975 $138
</TABLE>
[FN]
(1) This registration statement covers shares owned by certain selling
stockholders which shares may be offered from time to time by the selling
stockholders.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933. Based on the
average of the high and low prices reported for the common stock on the
Nasdaq National Market on July 6, 1999.
(3) 221,012 shares were registered on Form S-3 (No. 333-77119) filed with
the Commission on April 27, 1999. A filing fee of $1,264 was paid at that
time. We are paying an additional fee of $138 at this time for the additional
36,580 shares registered hereby, for a total fee of $1,402.
Subject to completion, dated July 13, 1999
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.
PROSPECTUS
----------
EFAX.COM, INC.
257,592 shares of Common Stock
This prospectus relates to an aggregate of 257,592 shares of common stock, $.01
par value, which are registered under this prospectus. These shares include:
o 127,592 shares of eFax.comTM common stock that were issued to E-Fax
Communications, Inc., an unrelated company with a similar name.
eFax.com has issued these shares in connection with eFax.com's
purchase from E-Fax Communications of all trademark rights to the
trademarks "EFAX" and "E-FAX", as part of the settlement of a
dispute.
o 30,000 shares of common stock which eFax.com has issued to IGC
Partners. eFax.com issued these shares in connection with past
services which IGC Partners have provided to eFax.com.
o Up to a maximum of 100,000 shares of common stock which are issuable
upon the exercise of warrants. eFax.com is issuing these warrants to
Global NAPS, Inc. in connection with Global NAP's completion of
project milestones. As of May 17, 1999, eFax.com has issued to Global
NAPs warrants to purchase 15,000 shares of eFax.com common stock.
eFax.com may issue Global NAPS warrants to purchase an additional
85,000 shares of common stock.
E-Fax Communications, IGC Partners and Global NAPS may wish to sell these
shares in the future, and this prospectus allows them to do so.
eFax.com will receive the proceeds from the exercise of the warrants issued to
Global NAPS. The per share exercise price of the warrants is the closing sale
price of eFax.com's common stock on the date that Global NAPS completes and
eFax.com accepts each project milestone. eFax.com will not receive any of the
proceeds from any future sale of the shares by E-Fax Communications or IGC
Partners, or from any future sale of the shares issued to Global NAPS upon
exercise of the warrants. However, eFax.com has agreed to bear the expenses of
registration of the shares by this prospectus.
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E-Fax Communications, IGC Partners and Global NAPS, the "selling stockholders",
may sell their eFax.com common stock in one or more transactions on the Nasdaq
National Market at prevailing market prices or at privately negotiated prices.
These selling stockholders may sell their shares directly or through agents,
brokers, dealers or underwriters. The selling stockholders will pay for
underwriting discounts and selling commissions related to the sale of shares.
eFax.com will pay for all other expenses related to such sales.
eFax.com's common stock is traded on the Nasdaq National Market under the
symbol "EFAX." On July 9, 1999, the closing sale price for the common stock was
$18.375 per share.
Investing in eFax.com's common stock involves a high degree of risk. See "Risk
Factors" beginning on page 7.
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.
July 13, 1999
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You should rely only on the information or representations provided in this
prospectus or incorporated by reference into this prospectus. eFax.com has not
authorized anyone to provide you with any different information or to make any
different representations in connection with any offering made by this
prospectus. This prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, in any state where the offer or sale is
prohibited. Neither the delivery of this prospectus, nor any sale made under
this prospectus shall, under any circumstances, imply that the information in
this prospectus is correct as of any date after the date of this prospectus.
INFORMATION AVAILABLE TO YOU
eFax.com's annual, quarterly and special reports, proxy statements and other
information are filed with the SEC as required by the Securities Exchange Act
of 1934. You may inspect and copy these reports, proxy statements and other
information at the public reference facilities maintained by the SEC at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the SEC's regional offices located at Seven World Trade Center, Suite 1300, New
York, New York 10048, and at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You may also obtain copies of these
materials by mail from the Public Reference Section of the SEC at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The
SEC also maintains an Internet web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the SEC at the Internet web site address:
http://www.sec.gov. eFax.com's common stock is listed on the Nasdaq National
Market, and you may also inspect and copies these reports, proxy statements and
other information at the offices of The Nasdaq Stock Market, 1735 K Street,
N.W., Washington DC 20006.
This prospectus provides you with a general description of the common stock
being registered. This prospectus is part of a registration statement that
eFax.com has filed with the SEC. To see more detail, you should read the
exhibits and schedules files with eFax.com's registration statement. You may
obtain copies of the registration statement and the exhibits and schedules to
the registration statement as described above.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows this prospectus to "incorporate by reference" other information
that eFax.com files or has filed with the SEC, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of the prospectus.
Information that eFax.com later files with the SEC will automatically update
and replace the information in this prospectus.
We incorporate by reference the documents listed below:
A. eFax.com's Annual Report on Form 10-K for the year ended January 2,
1999;
B. eFax.com's Quarterly Report on Form 10-Q for the quarter ended April 3,
1999;
C. The description of the common stock contained in eFax.com's registration
statement on Form S-1 (Registration No. 333-23763) filed on March 31,
1997, as amended by Amendment No. 1 filed March 28, 1997 and by
Amendment No. 2 filed May 12, 1997; and
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D. Any future filings which eFax.com makes with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934,
until the selling stockholders have sold all of the securities that we
have registered with the registration statement.
eFax.com will provide to you at no cost a copy of any and all of the
information incorporated by reference into the registration statement of which
this prospectus is a part. You may make a request for copies of this
information in writing or by telephone. Requests should be directed to
eFax.com, Inc., Attention: Chief Financial Officer, 1378 Willow Road, Menlo
Park, California 94025, telephone (650) 324-0600.
EFAX.COM, INC.
eFax.com was incorporated in Delaware in August 1988. Since that time,
eFax.com has engaged in the development, manufacture and sale of its brand
hardware and software technologies, brand products and desktop software
solutions for the multifunction product market. The "multifunction product
market" consists of electronic office devices that combine print, fax, copy and
scan capabilities in a single device or unit. Building from this strong
technology base, eFax.com is now emphasizing Internet services for its document
transmission and software expertise.
To date, the majority of eFax.com's revenues have been generated from sales of
JetFaxTM brand products and services through business equipment dealers. Our
hardware and software technologies provide the intelligence for our
multifunction products. These hardware and software technologies coordinate,
control and optimize the printing, faxing, copying and scanning operations of
the multifunction product. We license our hardware and software technologies
for a range of multifunction products sold under the brand names of our
manufacturing customers. eFax.com also offers software which can be sold on a
stand-alone basis, or bundled with hardware and software technologies to
provide the customer with a complete, integrated hardware and software product
solution. Our software products include JetSuite and PaperMaster.
eFax.com is utilizing its e-mail-document-attached technology for Internet
products and services, including our HotSend software which we introduced in
December 1998, and our M900e multifunction product which we introduced in
January 1999. On February 8, 1999, we changed our name from JetFax, Inc. to
eFax.com, Inc. and announced our "eFax(c)" service, a free fax-to-e-mail
service. It is eFax.com's intention to expand its product offerings to include
a variety of Internet-based products and services for electronic and paper-
document communication.
RISK FACTORS
An investment in the shares being offered in this prospectus involves a high
degree of risk. eFax.com operates in a dynamic and rapidly changing
environment that involves numerous risks and uncertainties. You should not
make an investment in these securities if you cannot afford to lose your entire
investment. Before purchasing these securities, you should carefully consider
the following risk factors, as well as other information contained in this
prospectus or incorporated by reference into this prospectus, in evaluating an
investment in the shares of common stock offered by this prospectus.
This prospectus and the documents incorporated by reference into this
prospectus may contain projections of results of operations and financial
condition or other "forward-looking statements" which involve risks and
uncertainties. The words "anticipate," "believe," "estimate," and "expect" and
similar expressions when used in this prospectus in relation to eFax.com or its
management are intended to identify such forward-looking
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statements. eFax.com's actual results, performance, or achievements could
differ materially from these projections or forward-looking statements as a
result of many factors, including those discussed in this "Risk Factors"
section of the prospectus.
WE HAVE EXPERIENCED FLUCTUATIONS IN OUR QUARTERLY OPERATING RESULTS.
eFax.com in the past has experienced, and in the future may experience,
significant fluctuations in its quarterly operating results. These fluctuations
have been or may be caused by many factors, including:
o acceptance and timing of new products combining fax technology with the
Internet;
o the size and timing of development or software licensing agreements;
o the timing of new introductions or phase-out of eFax.com's brand
products;
o fluctuations in consumer demand for eFax.com's brand products and for
products which are made by eFax.com's manufacturing customers
incorporating eFax.com's products; and
o seasonal trends, competition and pricing.
eFax.com expects that its operating results will continue to fluctuate as a
result of these and other factors.
eFax.com has often received a substantial portion of its quarterly revenues
during the last month of a quarter. These revenues frequently concentrate in
the last weeks or days of a quarter. One reason for this is that eFax.com's
brand products are primarily sold through dealers, and these dealers often
place orders for products at or near the end of a quarter. The booking and
shipping of one or more key orders at the end of a quarter may be delayed until
the beginning of the next quarter or it may be cancelled. As a result, we are
not able to predict future revenues with any significant degree of accuracy.
For these and other reasons, we believe that period-to-period comparisons of
eFax.com's results of operations are not necessarily meaningful. We believe
that you should not rely upon these comparisons as indicators of future
performance. It is likely that in future quarters, eFax.com's operating results
will sometimes be below the expectations of public market analysts and
investors. This could have a material adverse effect on the price of eFax.com's
common stock.
We believe that the accuracy of eFax.com's report of its quarterly license
revenues received from its manufacturing customers has been, and will continue
to be, dependent on the timing and accuracy of product sales reports which we
receive from these manufacturing customers. Our manufacturing customers only
provide these reports on a quarterly basis and this quarterly basis may not
coincide with eFax.com's quarter. Our manufacturing customers may also delay or
revise these reports. Therefore, we are required to estimate all of the
recurring license revenues from manufacturing customers for each quarter. As a
result, we will record an estimate of such revenues prior to public
announcement of eFax.com's quarterly results. In the event the product sales
reports we receive from our manufacturing customers are delayed or subsequently
revised, we may be required to restate eFax.com's recognized revenues or adjust
revenues for subsequent periods. This restatement or adjustment of revenues
could have a material adverse effect on eFax.com's business, financial
condition and results of operations and, as a result, the price of eFax.com's
common stock.
THE PRICE OF EFAX.COM STOCK MAY BE VOLATILE DUE TO MANY FACTORS, INCLUDING OUR
STATUS AS AN INTERNET-RELATED COMPANY, FLUCTUATIONS IN OUR QUARTERLY OPERATING
RESULTS, THE RAPID PACE OF TECHNOLOGICAL CHANGE, THE
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UNCERTAINTY OF OUR BUSINESS TRANSACTIONS AND THE CONTENTS OF NEWS AND SECURITY
ANALYST REPORTS.
The trading price of eFax.com's common stock is likely to be highly volatile.
The price could be subject to wide fluctuations in response to factors such as:
o actual or anticipated variations in eFax.com's quarterly operating
results;
o announcements of technological innovations or new services by eFax.com
or its competitors;
o announcements of significant acquisitions or strategic partnerships by
eFax.com or its competitors;
o changes in financial estimates and recommendations by securities
analysts; and
o news reports relating to trends in eFax.com's markets.
In addition, the stock market in general, and the market prices for Internet-
related companies in particular, have experienced extreme volatility that is
often unrelated to the operating performance of these companies. These broad
market and industry fluctuations may adversely affect the price of eFax.com's
common stock, regardless of eFax.com's actual operating performance.
ALTHOUGH WE TAKE STEPS TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY
BECOME SUBJECT TO TIME-CONSUMING AND COSTLY LITIGATION WHERE WE ARE ACCUSED OF
INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF OTHER PARTIES. IN FACT, WE WERE
RECENTLY SUED FOR INFRINGING A TRADEMARK OF E-FAX COMMUNICATIONS.
eFax.com's success is heavily dependent upon its intellectual property. To
protect its proprietary rights, eFax.com relies on a combination of copyright,
trade secret and trademark laws, patents, nondisclosure agreements and other
contractual restrictions. As part of its confidentiality procedures, eFax.com
generally enters into nondisclosure agreements with its employees, consultants,
manufacturing customers and strategic partners. eFax.com also limits access to
and distribution of its designs, software and other proprietary information.
Despite these efforts, eFax.com may be unable to effectively protect its
proprietary rights. In addition, enforcement of eFax.com's proprietary rights
may be expensive. We cannot assure you that eFax.com's means of protecting its
proprietary rights will be adequate. Nor can we assure you that eFax.com's
competitors will not independently develop similar technology.
As the number of patents, copyrights, trademarks and other intellectual
property rights in eFax.com's industry increases, eFax.com's intellectual
property may increasingly become the subject of infringement claims. In the
past, eFax.com has received communications from other parties claiming that
eFax.com's trademarks or products infringe the proprietary rights of these
parties. eFax.com has also received communications asking for
"indemnification" against such infringement. "Indemnification" means that
eFax.com would promise to repay or reimburse the other party for loss or
damages suffered by that other party as a result of infringement. eFax.com's
manufacturing customers generally require eFax.com to reimburse or "indemnify"
the manufacturing customers for claims of infringement from third parties. We
can give you no assurance that third parties will not make infringement claims
against eFax.com or its manufacturing customers in the future. Any of these
claims, even if they have no legal merit, could be time consuming (especially
for key management and technical personnel), result in costly litigation or
cause delays in revenues. In addition, these claims could
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require eFax.com to enter into royalty or licensing agreements on terms
unacceptable to eFax.com. If eFax.com fails to develop a substitute technology,
or to license a substitute technology on acceptable terms, this could have a
material adverse effect on eFax.com's business, financial condition and results
of operations. As an example, eFax.com was recently sued by E-Fax
Communications which claimed that the use of the name "eFax.com" infringed this
party's trademark rights. In settlement of the matter, eFax.com has agreed to
pay E-Fax Communications a combination of cash and Common Stock in an amount
not exceeding $2.5 million based on the average share price of the Common Stock
just prior to the stock registration becoming effective.
OUR REVENUES MAY NOT GROW AS ANTICIPATED BECAUSE THE MARKET FOR OUR INTERNET-
RELATED SERVICES IS NEW, RAPIDLY CHANGING AND UNCERTAIN.
The market for Internet-related document communication and handling services is
very new and is evolving rapidly. eFax.com expects to rely significantly in
the future on revenues generated through its "eFax" service, a free fax-to-e-
mail service, and products which support this service. We cannot assure you,
however, that the base of customers subscribing to our eFax(c) service will
continue to expand rapidly. Nor can we assure you that users will be willing to
pay fees for premium services or that the subscriber base will grow large
enough to be capable of generating advertising revenue. As a result, our
revenues may not grow as anticipated, which would have a negative effect on our
business.
WE HAVE CHANGED THE FOCUS OF OUR BUSINESS TO INTERNET-RELATED SERVICES,
PRODUCTS AND TECHNOLOGIES AND GROWTH OF BUSINESS IN THIS NEW FOCUS AREA IS
UNCERTAIN.
Historically, eFax.com has focused primarily on the development, manufacture
and sale of its brand multifunction products. eFax.com currently derives a
substantial portion of its revenues from the sale of these brand multifunction
products. However, eFax.com expects that its future revenue growth will be
dependent, in part, on expansion of its recently introduced Internet-based
document services, such as its fax-to-e-mail service, and on further licensing
of eFax.com's hardware and software technologies and software products.
However, we cannot assure you that eFax.com will realize growth in revenues
from such sales. If such growth in revenues does not occur and if revenues
from the sale of eFax.com's brand multifunction products does not to continue
at past growth rates, it could have a material adverse effect on eFax.com's
business, financial condition and results of operations.
WE DEPEND ON THE CONTINUED GROWTH OF INTERNET COMMERCE. WE FACE THE RISKS THAT
INTERNET COMMERCE MAY NOT GROW AS RAPIDLY AS ANTICIPATED AND THAT THE INTERNET
MAY EXPERIENCE TECHNICAL PROBLEMS DUE TO INSUFFICIENT INFRASTRUCTURE AND
INADEQUATE TECHNOLOGICAL IMPROVEMENTS.
eFax.com intends to derive a significant portion of its revenues from its fax-
to-e-mail service, called "eFax", and related products. Rapid growth in the use
of and interest in the Internet and online Internet services is a recent
phenomenon. As a result, a sufficiently broad base of consumers may not adopt
and continue to use the Internet and other online services as a way of
purchasing and conducting business. Internet web-based advertising and the
sales of premium Internet services are relatively new. It is difficult to
predict the extent that these will grow, or if they will grow at all. In
addition, the Internet may not prove to be a viable commercial marketplace for
reasons such as potentially inadequate development of:
o Internet network infrastructure;
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o technologies which enable use of the Internet; and
o performance improvements to support increased levels of Internet
activity.
If any of the following take place, it could have a material adverse effect on
eFax.com's business, financial condition and results of operation:
o if the use of the Internet and other online services does not continue
to increase or increases more slowly than expected;
o if the infrastructure for the Internet and online services proves to be
inadequate to effectively support expansion; or
o if the Internet does not become a viable commercial marketplace.
OUR MANUFACTURING CUSTOMERS, WHICH PROVIDE A SIGNIFICANT PORTION OF OUR
REVENUES, MAY NOT CONTINUE TO DEVELOP, MARKET OR SELL PRODUCTS INCORPORATING
EFAX.COM'S TECHNOLOGY.
eFax.com has derived a significant portion of its revenues from licensing of
its software and hardware and software technologies to other parties and from
providing development services to manufacturing customers. eFax.com currently
has manufacturing relationships with Hewlett-Packard Company, Oki Data
Corporation, and Konica Business Systems. eFax.com anticipates that it will
derive a significant portion of its revenues in the future from its
manufacturing customers and that eFax.com's revenues will be dependent upon,
among other things, the ability and willingness of its manufacturing customers
to develop and promote multifunction products that incorporate eFax.com's
technology. The ability and willingness of these manufacturing customers to do
this is based upon a number of factors, including eFax.com's ability to
complete timely development of designs for them. We cannot give you any
assurances regarding the ability or willingness of eFax.com's manufacturing
customers to continue developing, marketing and selling products incorporating
eFax.com's technology. The loss of any of eFax.com's significant manufacturing
customers could have a material adverse effect on eFax.com's business,
financial condition and results of operations.
OUR DEALERS AND DISTRIBUTORS MAY REDUCE OR DELAY SALES OR STOP MARKETING
EFAX.COM'S PRODUCTS WITH A RESULTING LOSS OF REVENUES.
eFax.com has derived a substantial portion of its revenues from sales of its
JetFax brand multifunction products through dealers and distributors. eFax.com
expects that sales of these products through its dealers and distributors will
continue to account for a substantial portion of eFax.com's revenues for the
foreseeable future. eFax.com currently maintains distribution relationships
with dealers associated with IKON Office Solutions, a national group of office
equipment dealers, and A. Messerli AG, one of eFax.com's office equipment
dealers located in Switzerland. Each of eFax.com's dealers and distributors can
stop marketing eFax.com's products with only limited notice to eFax.com and
with little or no penalty. The loss of one or more of eFax.com's major dealers
or distributors could have a material adverse effect on eFax.com's business,
financial condition and results of operations.
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eFax.com's dealers and distributors also offer competing products manufactured
by third parties. We can give no assurance that eFax.com's dealers and
distributors will give priority to the marketing of eFax.com's products as
compared to the marketing of our competitors' products. Any reduction or delay
in sales of eFax.com's products by our dealers and distributors could have a
material adverse effect on eFax.com's business, financial condition and results
of operations.
WE HAVE A HISTORY OF OPERATING LOSSES AND AN ACCUMULATED DEFICIT.
eFax.com has had annual net losses since the company was formed. eFax.com's
historical losses and certain preferred stock dividends have resulted in an
accumulated deficit of approximately $30.5 million as of March 31, 1999. We can
give you no assurance that eFax.com will achieve profitability on a quarterly
or annual basis in the future.
WE MAY FAIL TO ADAPT TO OUR MARKET'S RAPIDLY CHANGING TECHNOLOGY AND EVOLVING
INDUSTRY STANDARDS AND WE MAY LOSE COMPETITIVENESS AND REVENUES AS A RESULT.
The market for eFax.com's products and services is characterized by rapidly
changing technology, evolving industry standards and needs, and frequent new
product introductions. As the market for Internet-based document communication
and handling services grows, this market will begin to exert more pressure on
companies to develop advanced features at more economical pricing. The
multifunction product market already expects the continued development and
release of new products with better performance and improved features at
competitive prices. As product development increases in complexity and the
expected time to bring a product to market continues to decrease, the risk and
difficulty in meeting these development schedules increases and the costs to
eFax.com and its manufacturing customers also increases. In addition, eFax.com,
its manufacturing customers and their competitors may, from time to time,
announce new products, capabilities or technologies that may replace or shorten
the life cycles of eFax.com's brand products and software and the life cycles
of manufacturing customers' products incorporating eFax.com's technology.
eFax.com's success will depend on, among other things:
o market acceptance of eFax.com's product offerings; and
o the ability of eFax.com and its manufacturing customers to respond to
industry changes and market demands.
Any failure of eFax.com to anticipate or respond adequately to the rapidly
changing technology and evolving industry standards and needs could result in a
loss of our competitiveness or revenues. Any significant delay in our
development or introduction of new and enhanced products and services could
also result in a loss of competitiveness or revenues. Such a loss of
competitiveness or revenues could have a material adverse effect on eFax.com's
business, financial condition and results of operations.
WE FACE A HIGH LEVEL OF COMPETITION IN OUR INTERNET-RELATED INDUSTRY.
The market for Internet-related document communication and handling services,
such as eFax.com's fax-to-e-mail service, is a newly emerging market and
competitors are just beginning to appear. eFax.com anticipates that it will
need to:
o provide good service and grow its business rapidly to meet demand;
o create name recognition for eFax.com in advance of competitors;
o build its subscriber base prior to any significant entry by the
competition; and
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o continue to expand and improve on its eFax fax-to-e-mail service
offerings. eFax.com's technology, development services and software
primarily compete with solutions developed internally by manufacturing
customers. Virtually all of eFax.com's manufacturing customers have
significant investments in their existing solutions. These
manufacturing customers have the substantial resources necessary to
develop competing multifunction technologies and software that may be
implemented into their own products.
eFax.com also competes with technologies, software and development services
provided in the multifunction product market by other systems and software
suppliers to manufacturing customers.
With respect to hardware and software technologies for multifunction products,
eFax.com competes with Peerless Systems Corporation, Personal Computer
Products, Inc. and Xionics Document Technologies, Inc., among others. With
respect to desktop software, eFax.com competes with Caere Corporation, Simplify
Development Corporation, Smith Micro Software, Inc., Visioneer Inc., Wordcraft
International and Xerox, among others. In the newly evolving market for fax-
to-e-mail services, competitors include JFAX.com, Inc., an established
business, and CallWave, a start-up that is just introducing its product.
The market for multifunction products and related technology and software is
highly competitive. This market is characterized by continuous pressure to
improve performance, to introduce new features and to accelerate the release of
new products. eFax.com's brand products compete primarily with the dominant
vendors in the fax market, all of whom have substantially greater resources
than eFax.com. These dominant vendors include Canon Inc., Panasonic, a
division of Matsushita Electrical Industrial Co., Ltd., Pitney Bowes Inc.,
Ricoh Co. Ltd., Sharp Electronics Corporation and Xerox, among others. eFax.com
also competes on the basis of vendor name and recognition, technology and
software expertise, product functionality, development time and price.
eFax.com anticipates increasing competition for its multifunction products,
technologies, software under development and Internet services. Most of
eFax.com's existing competitors, many of its potential competitors and all of
eFax.com's manufacturing customers have substantially greater financial,
technical, marketing and sales resources than eFax.com. In the event that
price competition increases, competitive pressures could cause eFax.com to:
o reduce the cost of its eFax Service offerings;
o reduce the price of its brand products;
o reduce the amount of royalties received on new licenses; and
o reduce the fees for its development services in order to maintain
existing business and generate additional product sales and license and
development revenues.
In turn, these reductions could reduce eFax.com's profit margins and result in
losses and a decrease in market share, which would have a material adverse
effect on eFax.com's business, financial condition and results of operations.
WE ARE DEPENDENT ON KEY PERSONNEL AND COULD BE AFFECTED BY THE LOSS OF THEIR
SERVICES.
eFax.com is largely dependent upon the skills and efforts of its senior
management, particularly Edward R. Prince, III, known as ''Rudy", its Chief
Executive Officer, and Lon Radin, its Vice President of Engineering, as
12
<PAGE> 13
well as other officers and key employees, some of whom only recently have
joined eFax.com. eFax.com maintains key person life insurance policies on Rudy
Prince and Lon Radin. None of eFax.com's officers or key employees have an
employment agreement with eFax.com. eFax.com believes that its future success
will depend in large part upon its ability to attract and retain highly skilled
engineering, managerial, sales, marketing and operations personnel, many of
whom are in great demand. Competition for such personnel, especially
engineering personnel, has recently increased significantly. The loss of key
personnel or the inability to hire or retain qualified personnel could have a
material adverse effect on eFax.com's business, financial condition and results
of operations.
OUR RAPID GROWTH PLACES A STRAIN ON OUR OPERATIONS AND FINANCIAL RESOURCES AND
WE MAY FAIL TO MANAGE OUR GROWTH EFFECTIVELY. IN ADDITION, WE MAY FACE RISKS
ASSOCIATED WITH ANY POTENTIAL ACQUISITION OF OTHER COMPANIES WHICH WE MAY
CHOOSE TO UNDERTAKE.
eFax.com has grown rapidly in recent years. A continuing period of rapid growth
could place a significant strain on eFax.com's management, operations and other
resources. eFax.com's ability to manage its growth will require eFax.com to
continue to invest in its operational, financial and management information
systems, procedures and controls, and to attract, retain, motivate and
effectively manage its employees. We can give no assurance that eFax.com will
be able to manage its growth effectively. Failure to manage growth effectively
would have a material adverse effect on eFax.com's business, financial
condition and results of operations. eFax.com may, from time to time, pursue
the acquisition of other companies, assets or product lines that complement or
expand its existing business. Acquisitions involve a number of risks that could
adversely affect eFax.com's operating results. These risks include:
o the diversion of management's attention from day-to-day business;
o the difficulty of combining and assimilating the operations and
personnel of the acquired companies;
o charges to the company's earnings as a result of the purchase of
intangible assets; and
o the potential loss of key employees as a result of an acquisition.
eFax.com has no present commitments nor is it engaged in any discussions or
negotiations regarding possible acquisitions. However, should any acquisition
by eFax.com take place, we can give no assurance that this acquisition will not
materially and adversely affect eFax.com or that any such acquisition will
enhance eFax.com's business.
WE ARE DEPENDENT ON A LIMITED NUMBER OF SUPPLIERS AND MAY BE AFFECTED BY
CHANGES, DELAYS OR INTERRUPTIONS IN SUPPLY OF COMPONENTS OF OUR PRODUCTS FROM
THESE SUPPLIERS.
eFax.com relies on various suppliers of components for its products. eFax.com
generally buys components under purchase orders and does not have long-term
agreements with its suppliers. Alternate suppliers may be readily available for
some of these components. However, for other components, we do not know how
long it would take to find a replacement supplier and to receive replacement
components. If we need to find another supplier of those components which we
now purchase from a single source, we may not have sufficient inventory to fill
customer orders without interruption. Although we believe we could develop
other sources for these single source components, no alternative source
currently exists and the process of finding an alternate
13
<PAGE> 14
source could take several months or longer. Therefore, any interruption in the
supply of these components could have a material adverse effect on eFax.com's
business, financial condition and results of operations.
eFax.com purchases many of the components used in its products from suppliers
located outside the United States. Foreign manufacturing facilities are
subject to the risk of changes in governmental policies, imposition of tariffs
and import restrictions and other factors beyond eFax.com's control. We can
give you no assurance that United States or foreign trading policies will not
restrict the availability of components or increase their cost. Any significant
increase in component prices or decrease in component availability could have a
material adverse effect on eFax.com's business, financial condition and results
of operations.
Certain components used in eFax.com's products are available only from one
source. eFax.com is dependent on Oki America, Inc., as the supplier of major
components, contained in eFax.com's Series M900, one of eFax.com's most
important products. Oki America is also a competitor of eFax.com. eFax.com is
also dependent on:
o American Microsystems, Inc. to provide customized integrated circuits
incorporating eFax.com's imaging and logic circuitry;
o Motorola, Inc. to provide microprocessors;
o Pixel Magic, Inc., a subsidiary of Oak Technology, Inc., to provide a
specialized imaging processor;
o Conexant Systems, Inc., to provide modem chips.
Given our dependence on single source suppliers, any of the following events
could have a material adverse effect on eFax.com's business, financial
condition and results of operations:
o if any of these companies were to limit or reduce the sale of such
components to eFax.com;
o if these suppliers were to experience financial difficulties or other
problems which prevented them from supplying eFax.com with necessary
components;
o any shortage or interruption in the supply of any of the components
used in eFax.com's products; or
o the inability of eFax.com to obtain these components from alternate
sources on acceptable terms.
WE GENERATE A SIGNIFICANT PORTION OF OUR REVENUES FROM OUR INTERNATIONAL
ACTIVITIES AND WE ARE SUBJECT TO MANY RISKS AS A RESULT OF THESE ACTIVITIES.
A significant portion of eFax.com's total revenues come from sales to
eFax.com's customers outside the United States. The international market for
eFax.com's brand products and products incorporating eFax.com's technology and
software is highly competitive. Risks inherent in eFax.com's international
business activities also include:
o currency fluctuations and restrictions;
o the burdens of complying with a wide variety of foreign laws and
regulations;
14
<PAGE> 15
o longer accounts receivable cycles;
o the imposition of government controls;
o risks of localizing and internationalizing products to local
requirements in foreign countries;
o trade restrictions;
o tariffs and other trade barriers;
o restrictions on bringing earnings back into the United States; and
o potentially adverse tax consequences.
Any of these risks could have a material adverse effect on eFax.com's business,
financial condition and results of operations. Substantially all of eFax.com's
international sales are currently made in U.S. dollars. Therefore, increases in
the value of the U.S. dollar relative to foreign currencies could make
eFax.com's products less competitive in foreign markets. Because of eFax.com's
international activities, it faces currency exposure and currency exchange
risks. For example, eFax.com purchases some of its key components pursuant to
purchase contracts which require payment in foreign currency which results in
currency exchange risks.
OUR ONLY MANUFACTURING FACILITY AND SEVERAL OF OUR SUPPLIERS ARE LOCATED IN ONE
GEOGRAPHIC AREA. A DISRUPTION OF OUR MANUFACTURING FACILITY AND OUR SUPPLIERS
IN THE SAME GEOGRAPHIC AREA WOULD HAVE A NEGATIVE EFFECT ON OUR BUSINESS.
eFax.com's manufacturing operations are located in its facility in Northern
California. In addition, eFax.com relies on several suppliers of components
for eFax.com's products and a number of companies which assemble eFax.com
products which are located in Northern California. eFax.com does not currently
operate multiple facilities in different geographic areas and does not have
alternative sources for many of its components or assembly processes. As a
result, a disruption of eFax.com's manufacturing operations, or the operations
of its suppliers, could cause eFax.com to cease or limit its manufacturing
operations. Consequently, this would have a material adverse effect on
eFax.com's business, financial condition and results of operations.
WE MAY BE ADVERSELY AFFECTED IF OUR COMPUTER SYSTEMS OR THOSE OF OUR
DISTRIBUTORS, SUPPLIERS AND CUSTOMERS FAIL BECAUSE OF YEAR 2000 PROBLEMS.
Readiness for the year 2000 refers to the issue surrounding computer programs
that use two digits rather than four to define a given year. These programs
might read a date using "00" as the year 1900 rather than the year 2000, which
could cause a system failure or a miscalculation.
We do not believe eFax.com's manufacturing facilities are vulnerable in any
significant way to year 2000 system failures involving non-information
technology. In August 1998, eFax.com renovated its existing telephone system at
a cost of approximately $40,000, which made the phone system ready for the year
2000. eFax.com has invested approximately $367,000 and will continue to make
certain investments, estimated not to exceed $50,000, in its software systems
and applications to ensure eFax.com's information systems are ready for the
year 2000. The necessary funds to support these renovations have come from
eFax.com's operating budget and eFax.com does not anticipate that it will need
to allocate special future funding outside of historical
15
<PAGE> 16
levels for this item. The financial impact of eFax.com's year 2000 readiness
effort has not been and is not anticipated to be material to eFax.com's
financial position or results of operations in any given year. For example,
during 1997 and 1998, eFax.com purchased and implemented new manufacturing and
accounting information systems with a total capitalized cost of $338,000.
eFax.com has obtained written assurances from the vendor, QAD Inc., that the
systems are ready for the year 2000. However, eFax.com has not conducted
internal testing of the systems' readiness.
eFax.com believes that its current products are ready for the year 2000.
Certain of eFax.com's older products, which may not be year 2000 ready, are no
longer under warranty. eFax.com believes it has no obligation related to these
products. If eFax.com is mistaken in this assessment, eFax.com could incur
expenses in defending legal actions for breach of contract or other causes of
action. We can give you no assurance that these expenses will not be material
to eFax.com's financial position or results of operations.
As discussed above, eFax.com has recently implemented new information systems
and accordingly does not anticipate any internal year 2000 problems from those
information systems, databases or programs. However, year 2000 problems faced
by major distributors, suppliers, customers and financial service organizations
with which we interact could adversely impact eFax.com. We expect to complete
our assessment of the potential impact of these additional issues by July 31,
1999. We can give you no assurance that we will be able to detect all potential
failures of eFax.com's computer systems or the computer systems of third
parties. A significant failure of eFax.com's or a third party's computer system
could have a material adverse effect on eFax.com's business, financial
condition and results of operations. However, we are unable at this time to
assess what might be the extent of such effect. eFax.com intends to complete a
contingency plan by August 31, 1999, detailing actions that would be taken in
the event that such a failure occurs.
FUTURE SALES OF SHARES OF COMMON STOCK AFTER THE OFFERING COULD AFFECT THE
STOCK TRADING PRICE.
Sales of substantial amounts of common stock in the public market could have an
adverse effect on the trading price of the common stock. Based on shares
outstanding as of July 8, 1999, eFax.com has outstanding approximately
12,670,661 shares of common stock. Of such shares outstanding, approximately
11,826,945 shares are freely tradable without restriction or further
registration under the Securities Act, unless held by "affiliates" of eFax.com
as that term is defined in Rule 144 under the Securities Act. After the
registration of the 257,592 shares offered hereby, the remaining approximately
843,716 shares of common stock outstanding are "restricted securities" as that
term is defined in Rule 144, and may be sold under Rule 144 subject to the
holding period, volume limitations and other restrictions under Rule 144.
Up to 257,592 shares of common stock are offered by this prospectus and are
registered for resale under the Securities Act. eFax.com has entered into an
agreement with E-Fax Communications pursuant to which 127,592 shares of common
stock are offered by this prospectus and are registered for resale under the
Securities Act.
USE OF PROCEEDS
eFax.com will not receive any proceeds from the resale of eFax.com common stock
by E-Fax Communications or IGC Partners. eFax.com will receive all proceeds
from the exercise of the warrants by Global NAPS, but will not receive any
proceeds from the sale of the shares of common stock issued upon exercise of
the warrants. eFax.com anticipates that the net proceeds received by eFax.com
from the exercise of the warrants will be used for general corporate purposes.
16
<PAGE> 17
SELLING STOCKHOLDERS
The following table sets forth information regarding the number of shares of
common stock owned beneficially by E-Fax Communications, IGC Partners, and
Global NAPS, as of July 8, 1999 and the number of shares which these three
selling stockholders may offer pursuant to this prospectus. This information is
based upon information which the selling stockholders provided to us. The
selling stockholders may sell all, some or none of their common stock being
offered.
<TABLE>
<CAPTION>
Shares Beneficially
Owned prior to Number of Shares Number of Shares
Offering (1) Being Offered Owned after
Name Number Percent (2) Number Percent (2) Potential Offering
- ------------------- ------------------ ------------------- ------------------
<S> <C> <C> <C>
E-Fax Communications,
Inc. 1.01% 127,592 *
IGC Partners (3) * 30,000 *
Global NAPS, Inc. (4). * Up to 100,000 *
* less than 1%
</TABLE>
[FN]
(1) Unless otherwise indicated below, the persons named in the table have sole
voting and investment power with respect to all shares owned by them, subject
to community property laws where applicable.
(2) Applicable percentage of ownership at July 8, 1999 is based upon 12,670,661
shares of common stock outstanding. Beneficial ownership is determined in
accordance with the rules of the Securities and Exchange Commission and
includes sole or shared voting or investment power with respect to shares shown
as beneficially owned.
(3) Certain shares held in the name of the partnership IGC Partners may be
distributed to and sold by the limited partners of the partnership.
(4) Includes up to 100,000 shares of common stock which may be issued upon
exercise of the warrants.
PLAN OF DISTRIBUTION
E-Fax Communications, a selling stockholder whose shares are covered by this
prospectus, has received an aggregate of 127,592 shares of eFax.com common
stock in connection with eFax.com's purchase of all trademark rights to the
trademarks EFAX and E-FAX from E-Fax Communications. eFax.com issued these
shares in connection with the settlement of a dispute between eFax.com and E-
Fax Communications concerning the two trademarks. In the parties' settlement
agreement, eFax.com agreed to register all of these shares. These shares are
"restricted securities" for purposes of the Securities Act of 1933.
17
<PAGE> 18
IGC Partners, Inc., another selling stockholder, has been issued 30,000 shares
of eFax.com common stock in consideration for past services which IGC Partners
provided to eFax.com. eFax.com issued these shares pursuant to a Stock Purchase
Agreement, dated February 23, 1999, between eFax.com and IGC Partners. These
shares are "restricted securities" for the purposes of the Securities Act of
1933.
Global NAPS, Inc., another selling stockholder, will receive warrants to
purchase up to 100,000 shares of eFax.com's common stock. eFax.com is issuing
these warrants pursuant to the Addendum to the standard agreements, dated as of
April 20, 1999, between eFax.com and Global NAPS. Pursuant to the Addendum,
eFax.com has agreed to issue to Global NAPS a warrant to purchase 2,500 shares
of eFax.com's common stock upon the completion and acceptance of each project
milestone, up to a maximum of 100,000 shares. As of May 17, 1999, eFax.com has
issued to Global NAPs warrants to purchase 15,000 shares of common stock.
eFax.com may issue warrants to purchase up to an additional 85,000 shares of
common stock. The warrants may be exercised at an exercise price equal to the
closing sale price of eFax.com's common stock on the day that the milestone is
completed and accepted. The warrants will contain provisions for the adjustment
of the exercise price or the aggregate number of shares issuable upon exercise
of the warrants under certain circumstances, including stock dividends, stock
splits, combinations, mergers, consolidations and recapitalizations. The
warrants are non-transferable and can only be exercised by Global NAPS. Each of
the warrants will expire on the date three years after the date of issuance of
that individual warrant. The shares of common stock issued upon exercise of the
warrants are "restricted securities" for purposes of the Securities Act.
These three selling stockholders have not advised eFax.com of any specific
plans for distribution of their eFax.com common stock covered by this
prospectus. The selling stockholders, or their pledgees, donees, transferees or
other successors in interest, may sell the shares from time to time in one or
more transactions on the Nasdaq National Market (which may involve block
transactions), in special offerings, in negotiated transactions, or otherwise.
These sales may be made at market prices prevailing at the time of sale, at
prices related to the prevailing market prices, or at negotiated prices. In
addition, any securities covered by this prospectus that qualify for sale
pursuant to Rule 144 of the Securities Act of 1933 might be sold under the
terms of Rule 144 rather than pursuant to this prospectus.
The selling stockholders may also use brokers, dealers or agents to sell their
shares. If this happens, such brokers, dealers or agents may receive
commissions or discounts from the selling stockholders in amounts negotiated
immediately prior to the sale. In addition, the selling stockholder may pledge
the shares of common stock from time to time to a lender to secure one or more
loans. Defaults under any such loan may result in the pledgee acquiring title
to some or all of the shares. The pledgee may sell them either directly or
through underwriters, brokers, dealers or agents. Any brokers, dealers, agents
or pledgees that participate in the distribution of the common stock offered by
this prospectus may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933. Therefore, any discounts, commissions or concessions
received by them from their sale of shares might be deemed to be underwriting
discounts and commissions under the Securities Act of 1933.
In some states, the shares of common stock may be sold only through registered
or licensed brokers or dealers in order to comply with the securities laws of
these states. In addition, in some states the common stock may not be sold
unless it has been registered or qualified for sale, or an exemption from the
registration or qualification requirements is available.
eFax.com entered into agreements with E-Fax Communications to register their
shares under applicable federal and state securities laws. eFax.com will pay
substantially all the expenses which result the offering and sale to the public
of the common stock by this prospectus. These expenses (excluding such
commissions and discounts)
18
<PAGE> 19
are estimated to be approximately $57,902. eFax.com will not pay any
commissions, concessions and discounts of any underwriters, dealers or agents.
These agreements do not provide for indemnification for losses, claims,
damages, and liabilities which result from this registration of shares.
Under applicable rules and regulations under the Exchange Act of 1934, any
person engaged in the distribution of the shares may not engage at the same
time in market making activities with respect to the shares during the one
business day before the beginning of that distribution. In addition, the
stockholders selling shares under this prospectus will be subject to applicable
provisions of the Exchange Act and the rules and regulations under the Exchange
Act, including Regulation M. These provisions may limit the timing of purchases
and sales of shares of common stock by the selling stockholders.
If a stockholder selling shares under this prospectus notifies eFax.com of any
material arrangement that it has entered into with a broker or dealer for
selling shares through a block trade, special offering, exchange distribution
or secondary distribution, or a purchase by a broker or dealer, eFax.com will
file a supplement to this prospectus, if required, pursuant to Rule 424 under
the Securities Act of 1933. In that supplemental prospectus, eFax.com will
disclose:
o the name of the participating broker-dealer(s);
o the number of shares involved;
o the price at which such shares were sold;
o the commissions paid or discounts or concessions allowed to such broker-
dealer(s), where applicable; and
o other facts material to the transaction, including the name of and other
information about the selling stockholder.
This registration statement will remain effective until the earlier of (i) the
date when all of the shares registered by this registration statement have been
distributed to the public or (ii) the date the common shares are eligible for
sale in their entirety within a three month period under Rule 144. In the
event that any shares remain unsold at the end of such period, eFax.com may
file a post-effective amendment to the registration statement for the purpose
of deregistering the shares registered by this prospectus.
LEGAL MATTERS
For the purpose of this offering, Cooley Godward LLP, Palo Alto, California is
giving an opinion of the validity of the common stock offered by this
prospectus.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended January 2, 1999 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
19
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission registration fee $ 1,402
Legal fees and expenses 50,000
Accountants' fees 4,500
Miscellaneous 2,000
-------
Total $57,902
=======
The foregoing items, except for the Securities and Exchange Commission
registration fee, are estimated.
Item 15. Indemnification of Directors and Officers
As permitted by the Delaware General Corporation Law, eFax.com has included in
its certificate of incorporation a provision to eliminate the personal
liability of its directors for monetary damages for breach or alleged breach of
their fiduciary duties as directors, subject to certain exceptions. In
addition, the bylaws of eFax.com provide that eFax.com is required to indemnify
its officers and directors under certain circumstances, including those
circumstances in which indemnification would otherwise be discretionary, and
eFax.com is required to advance expenses to its officers and directors as
incurred in connection with proceedings against them for which they may be
indemnified. eFax.com has entered into indemnification agreements with its
officers and directors containing provisions that are in some respects broader
than the specific indemnification provisions contained in the Delaware General
Corporation Law. The indemnification agreements may require eFax.com, among
other things, to indemnify such officers and directors against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature), to advance expenses incurred as a result of any proceeding against
them as to which they could be indemnified and to obtain directors' and
officers' insurance if available on reasonable terms. At present, eFax.com is
not aware of any pending or threatened litigation or proceeding involving a
director, officer, employee or agent of eFax.com in which indemnification would
be required or permitted. eFax.com believes that its charter provisions and
indemnification agreements are necessary to attract and retain qualified
persons as directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
II-1
<PAGE> 21
Item 16. Exhibits
Exhibit No. Description
- ----------- ------------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Independent Auditors
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof), which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act 1934 that are incorporated by reference in the
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 herein, and the
offering of such securities at that time shall be deemed to be the 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.
II-2
<PAGE> 22
(b) 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 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.
(c) 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 foregoing provisions, 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 23
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 Form S-3 and has duly caused this registration
statement to be filed on its behalf by the undersigned, thereunto duly
authorized in the City of Menlo Park, State of California, this 13th day of
July, 1999.
eFax.com, Inc.
By: /s/ TODD J. KENCK
--------------------------
Todd J. Kenck,
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ EDWARD R. PRINCE, III* Chief Executive Officer July 13, 1999
- --------------------------- and Chairman of the Board
(Edward R. Prince, III) (Principal Executive Officer)
/s/ TODD J. KENCK Chief Financial Officer July 13, 1999
- --------------------------- (Principal Financial
(Todd J. Kenck) and Accounting Officer)
/s/ THOMAS B. AKIN* Director July 13, 1999
- ---------------------------
(Thomas B. Akin)
/s/ DOUGLAS Y. BECH* Director July 13, 1999
- ---------------------------
(Douglas Y. Bech)
/s/ STEVEN J. CARNEVALE* Director July 13, 1999
- ---------------------------
(Steven J. Carnevale)
/s/ LON B. RADIN* Director July 13, 1999
- ---------------------------
(Lon B. Radin)
/s/ ALBERT E. SISTO* Director July 13, 1999
- ---------------------------
(Albert E. Sisto)
II-4
<PAGE> 24
*By: /s/ TODD KENCK July 13, 1999
- ---------------------------
(Todd J. Kenck, as Attorney-in-Fact)
II-5
<PAGE> 25
INDEX TO EXHIBITS
Exhibit No. Description
- ----------- -----------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Independent Auditors
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney
II-6
<PAGE> 26
</TABLE>
EXHIBIT 5.1
OPINION LETTER
[COOLEY GODWARD LLP LETTERHEAD]
July 13, 1999
eFax.com, Inc.
1378 Willow Road
Menlo Park, California 94025
Dear Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by eFax.com, Inc. (the "Company") of a Registration Statement
on Form S-3 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering for resale of up to 257,592 shares of the
Common Stock, par value $0.01 per share, of the Company (the "Common Stock").
The Registration Statement covers: (i) 127,592 shares of Common Stock (the
"Trademark Shares") issued to E-Fax Communications, Inc. pursuant to that
certain letter agreement, dated as of April 9, 1999, by and between the Company
and E-Fax Communications, Inc.; (ii) 30,000 shares of Common Stock (the "IGC
Shares") issued to IGC Partners pursuant to that certain Stock Purchase
Agreement, dated as of February 23, 1999, by and between the Company and IGC
Partners; (iii) up to 100,000 shares of Common Stock issuable upon exercise of
certain warrants (the "Warrant Shares") held by, or to be issued to, Global
NAPS, Inc. pursuant to that certain Addendum to standard agreements, dated
April 20, 1999, by and between the Company and Global NAPS, Inc. (the
"Addendum").
In connection with this opinion, we have examined the Registration Statement,
the Company's Certificate of Incorporation and Bylaws, each as amended, the
Warrants, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that (i) the Trademark Shares are validly issued, and are fully paid and
nonassessable, (ii) the IGC Shares are validly issued, and are fully paid and
nonassessable, and (iii) the Warrant Shares to be issued pursuant the Warrants
issued pursuant to the Addendum will be, upon exercise and payment of the
exercise price thereof, validly issued and, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Matters" in
the prospectus included in the Registration Statement.
Very truly yours,
Cooley Godward LLP
/s/ Patrick A. Pohlen
Patrick A. Pohlen
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<PAGE> 27
EXHIBIT 23.1
Consent of Independent Auditors
eFax.com, Inc.:
We consent to the incorporation by reference in this Amendment No. 2 to
Registration Statement No. 333-77119 of eFax.com, Inc. on Form S-3 of our
reports dated February 8, 1999 (April 9, 1999 as to Note 14) and April 9, 1999
(relating to the financial statement schedule), appearing in the Annual Report
on Form 10-K of eFax.com, Inc. for the year ended January 2, 1999 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
DELOITTE & TOUCHE LLP
San Jose, California
July 13, 1999
II-8
<PAGE> 28
