As filed with the Securities and Exchange Commission on January 8, 2001
Registration No. 333-76079
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 2
TO
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. 1997 STOCK OPTION PLAN
(Full title of the plan)
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
------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED (1)(2) PER SHARE (3) PRICE (3) FEE
------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 3,900,000 shares $2.29 $8,939,550.10 $2,360.04
------------------------------------------------------------------------------------------------------------------
(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) The securities registered hereby represent an addition to the 1,500,000
shares of common stock issuable under the Bluefly, Inc. 1997 Stock Option
Plan which were registered previously on a registration statement on Form
S-8 (File No. 333-76079, filed on April 12, 1999).
(3) 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 2,837,018
shares have been granted at a weighted average exercise price of $2.90 and
the remaining 1,062,982 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 5, 2001 ($0.67).
EXPLANATORY NOTES
This Amendment No.2 to Registration Statement on Form S-8 is being filed to
register an additional 3,900,000 shares of the Registrant's common stock, $.01
par value per share ("Common Stock"), issuable pursuant to the Registrant's 1997
Stock Option Plan (as amended to date, the "Plan"). The contents of the
Registration Statement on Form S-8 (File No. 333-76079), filed with the
Commission on April 12, 1999, are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents 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 hereunder
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. 1997 Stock Option Plan, as amended to date.
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 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.
3
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 Amendment No. 1 to
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 President, Chief Executive Officer and
---------------------------- Director (Principal Executive Officer) January 8, 2001
E. Kenneth Seiff
/s/ Patrick C. Barry Chief Operating Officer and Chief January 8, 2001
---------------------------- 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 H. Goldstein Director January 8, 2001
----------------------------
Mark H. Goldstein
/s/ Ellin J. Saltzman Director January 8, 2001
----------------------------
Ellin J. Saltzman
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
4.1 Bluefly, Inc. 1997 Stock Option Plan, as amended to date.
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).