As filed with the Securities and Exchange Commission on January 8, 2001
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BLUEFLY, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 13-3612110
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
42 WEST 39TH STREET
NEW YORK, NEW YORK
(Address of Principal Executive 10018
Offices) (Zip Code)
BLUEFLY, INC. 2000 STOCK OPTION PLAN
COMMON STOCK ISSUED OR ISSUABLE PURSUANT TO EMPLOYEE BENEFIT PLANS
(Full title of the plans)
E. KENNETH SEIFF RICHARD A. GOLDBERG, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER SWIDLER BERLIN SHEREFF FRIEDMAN, LLP
BLUEFLY, INC. 405 LEXINGTON AVENUE
42 WEST 39TH STREET NEW YORK, NEW YORK 10174
NEW YORK, NEW YORK 10018 (212) 973-0111
(212) 944-8000
(Name, address and telephone number, including area code,
of agents for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED TO BE REGISTERED (1) PER SHARE (2) PRICE (2) FEE (2)
------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 1,500,000 shares $1.42 $2,127,552 $561.67
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(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated in accordance with Rule 457(c) and (h) of the Securities Act of
1933, as amended (the "Act"), solely for the purpose of calculation of the
registration fee. The fee was based on the fact that options for 519,700
shares have been granted at a weighted average exercise price of $2.83 and
the remaining 980,300 shares are based on the average of the high and low
price for shares of common stock, par value $.01 per share, of the
Registrant on the Nasdaq SmallCap Market on January 8, 2001 ($0.67).
EXPLANATORY NOTES
We have prepared this Registration Statement in accordance with the
requirements of Form S-8 under the Act, to register shares of our common stock,
par value $.01 per share ("Common Stock"), issued or issuable pursuant to our
2000 Stock Option Plan (the "Plan").
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Bluefly, Inc., a New York
corporation (the "Registrant"), with the Securities and Exchange Commission
("Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1999, filed with the Commission on March 30, 2000,
as amended on May 15, 2000;
(b) The Amendment to the Registrant's Quarterly Report on Form 10-QSB/A
filed with the Commission on May 15, 2000, amending its Quarterly
Report on Form 10-QSB for the quarterly period ended September 30,
1999;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2000, filed with the Commission on May 15,
2000;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2000, filed with the Commission on August 14,
2000;
(e) The Registrant's Current Report on Form 8-K, concerning a non-binding
letter of intent relating to a proposed investment in the Registrant
by affiliates of Soros Private Equity Partners, filed with the
Commission on October 17, 2000;
(f) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2000, filed with the Commission on November
14, 2000;
(g) The Registrant's Current Report on Form 8-K, concerning a report of
independent accountants, filed with the Commission on November 20,
2000; and
(h) The description of the Common Stock contained in the Registration
Statement on Form 8-A filed with the Commission on April 22, 1997.
In addition, all documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents. Any statement contained in the
documents incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any other subsequently
filed document which is also incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Sections 722 and 726 of the New York Business Corporation Law (the "BCL")
grant the Registrant broad powers to indemnify and insure its directors and
officers against liabilities they may incur in such capacities. In accordance
therewith, the Registrant's Restated Certificate of Incorporation (the
"Charter"), and Amended and Restated By-Laws, as amended, provide for the
fullest indemnification of an officer or a director of the Registrant under the
BCL. The Charter also eliminates personal liability for any breach of directors'
duty to the Registrant and its shareholders, provided that such breach does not
result from (a)(i) an act or omission in bad faith, (ii) intentional misconduct
or (iii) a knowing violation of law, (b) a transaction from which a director
personally gained, in fact, a financial profit or other advantage to which the
director was not entitled, (c) acts of the director in violation of Section 719
of the BCL or (d) an act or omission prior to the adoption of such provision in
the Charter.
The Registrant has entered into agreements with an officer that requires
the Registrant to indemnify such person against any loss, cost, damage, injury
or other expense, including attorneys' fees, incurred by reason of the fact that
such person served as a director or officer of the Registrant, provided that
such indemnification is consistent with the BCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit Number. Description.
--------------- ------------
4.1 Bluefly, Inc. 2000 Stock Option Plan.
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Swidler Berlin Shereff Friedman, LLP (contained in
Exhibit 5.1).
Item 9. Undertakings.
The undersigned hereby undertakes that it will:
(1) file, during any period in which it offers or sell securities, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) reflect in the prospectus any facts or events which,
individually or together, 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) include any additional or changed material information on the
plan of distribution;
(2) for determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to
be the initial bona fide offering;
(3) file a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering;
(4) for determining any liability under the Securities Act, treat 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 the small business issuer under Rule
424(b)(1), or (4) or 497(h) under the Securities Act as part of this
registration statement as of the time the Commission declared it
effective; and
(5) for determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the
initial bona fide offering of those securities.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the issuer
pursuant to the foregoing provisions, or otherwise, the issuer has been advised
that in the opinion of the 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 issuer of expenses incurred or paid by a director,
officer or controlling person of the small business issuer 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
issuer 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 18th day of
December, 2000.
BLUEFLY, INC.
By: /s/ E. Kenneth Seiff
----------------------------------
E. Kenneth Seiff
President, Chief Executive
Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints E. Kenneth Seiff and Patrick C.
Barry and each of them (with full power of each of them to act alone), his true
and lawful attorneys-in-fact, with full power of substitution and resubstitution
for him and on his behalf, and in his name, place and stead, in any and all
capacities to execute and sign any and all amendments or post-effective
amendments to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or any of them or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof and the Registrant hereby
confers like authority on its behalf.
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:
Signature Titles Date
--------- ------ ----
/s/ E. Kenneth Seiff
--------------------------------
E. Kenneth Seiff President, Chief Executive Officer and January 8, 2001
Director (Principal Executive Officer)
/s/ Patrick C. Barry Chief Operating Officer January 8, 2001
-------------------------------- and Chief Financial Officer (Principal
Patrick C. Barry Financial & Accounting Officer)
/s/ Red Burns Director January 8, 2001
--------------------------------
Red Burns
/s/ Martin Miller Director January 8, 2001
--------------------------------
Martin Miller
/s/ Robert G. Stevens Director January 8, 2001
--------------------------------
Robert G. Stevens
/s/ Neal Moszkowski Director January 8, 2001
--------------------------------
Neal Moszkowski
/s/ Mark Goldstein Director January 8, 2001
--------------------------------
Mark Goldstein
/s/ Ellin J. Saltzman Director January 8, 2001
--------------------------------
Ellin J. Saltzman
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
4.1 Bluefly, Inc. 2000 Stock Option Plan.
5.1 Opinion of Swidler Berlin Shereff Friedman, LLP.
23.1 Consent of Pricewaterhouse Coopers LLP
23.2 Consent of Swidler Berlin Shereff Friedman, LLP (contained
in Exhibit 5.1).