AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 10, 1999
REGISTRATION NO. 333-72799
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THESTREET.COM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7374 06-15150824
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NO.) IDENTIFICATION NO.)
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TWO RECTOR STREET
NEW YORK, NEW YORK 10006
(212) 271-4004
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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KEVIN W. ENGLISH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
THESTREET.COM, INC.
TWO RECTOR STREET
NEW YORK, NEW YORK 10006
(212) 271-4004
(800) 562-9571
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies To:
DAVID J. GOLDSCHMIDT, ESQ. ALEXANDER D. LYNCH, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP ALAN P. BLAUSTEIN, ESQ.
919 THIRD AVENUE BROBECK, PHLEGER & HARRISON LLP
NEW YORK, NEW YORK 10022 1633 BROADWAY, 47TH FLOOR
(212) 735-3000 NEW YORK, NEW YORK 10019
(212) 581-1600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act, check the following box. / /
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CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
Common Stock, par value $.01 per share (including the
associated Rights to purchase Series A Junior Participating
Stock)(2)................................................... $75,000,000 $20,850.00
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933.
(2) The Rights to purchase shares of our Series A Junior Participating Preferred
Stock initially are attached to and trade with the shares of our common
stock being registered hereby. Value attributed to such Rights, if any, is
reflected in the market price of our common stock.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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PART II
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table indicates the expenses to be incurred in connection
with the offering described in this Registration Statement, all of which will be
paid by the Company. All amounts are estimates, other than the SEC registration
fee, the NASD fee, and the Nasdaq listing fee.
SEC Registration fee....................................... $20,850.00
NASD fee................................................... $ 8,000.00
Nasdaq listing fee......................................... *
Accounting fees and expenses............................... *
Legal fees and expenses.................................... *
Director and officer insurance expenses.................... *
Printing and engraving..................................... *
Transfer Agent fees and expenses........................... *
Blue sky fees and expenses................................. *
Miscellaneous expenses..................................... *
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Total.................................................... $ *
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* To be completed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law ("DGCL"), as amended,
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit.
Section 145 of the DGCL provides, among other things, that the Company may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the Company) by reason of the fact that the
person is or was a director, officer, agent or employee of the Company or is or
was serving at the Company's request as a director, officer, agent, or employee
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys' ties, judgment, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding. The power to indemnify applies (a) if such
person is successful on the merits or otherwise in defense of any action, suit
or proceeding, or (b) if such person acted in good faith and in a manner he
reasonably believed to be in the best interest, or not opposed to the best
interest, of the Company, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The power to
indemnify applies to actions brought by or in the right of the Company as well,
but only to the extent of defense expenses (including attorneys' fees but
excluding amounts paid in settlement) actually and reasonably incurred and not
to any satisfaction of judgment or settlement of the claim itself, and with the
further limitation that in such actions no indemnification shall be made in the
event of any adjudication of negligence or misconduct in the performance of his
duties to the Company, unless the court believes that in light of all the
circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to such
actions to be entered in the books containing the minutes of the meetings of the
board of
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directors at the time such action occurred or immediately after such absent
director receives notice of the unlawful acts.
Our Amended and Restated Certificate of Incorporation includes a provision
that eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except for liability:
-- for any breach of the director's duty of loyalty to TheStreet.com or its
stockholders;
-- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
-- under the section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
-- for any transaction from which the director derived an improper personal
benefit.
These provisions are permitted under Delaware law.
Our Amended and Restated Bylaws provide that:
-- we must indemnify our directors and officers to the fullest extent
permitted by Delaware law;
-- we may indemnify our other employees and agents to the same extent that
we indemnified our officers and directors, unless otherwise determined
by our Board of Directors; and
-- we must advance expenses, as incurred, to our directors and executive
officers in connection with a legal proceeding to the fullest extent
permitted by Delaware Law.
The indemnification provisions contained in the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws are not
exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise. In
addition, the Company maintains insurance on behalf of its directors and
executive officers insuring them against any liability asserted against them in
their capacities as directors or officers or arising out of such status.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since its inception, we issued and sold the following securities to certain
corporate and institutional investors and high net worth individuals, including
certain of our directors and officers, in transactions exempt from the
registration requirements of the Securities Act pursuant to Section 4(2)
thereunder:
From our inception as a limited liability company in June 1996, until May
1998, we were financed through contributions from our founders and through loans
at the prime interest rate plus 1%. In return for their contributions, our
founders received certain amounts of our Class A, B, C and D membership units of
the limited liability company and a lender received Class E units.
In May 1998, our Board of Directors approved our reorganization from a
limited liability company into a C Corporation. As part of this reorganization,
each Class C membership unit was converted into 181.81818 shares of our common
stock. In addition, our Class A and Class B membership units were converted into
shares of our Series A 9 1/2% Cumulative Preferred Stock and Series C Preferred
Stock at a ratio of one preferred share per $100 of both Class A and Class B
membership units. Our Class D and Class E membership units were converted into
shares of our Series A 9 1/2% Cumulative Preferred Stock at a ratio of one
preferred share per $100 of Class D and Class E membership units.
In May 1998, we sold 101,475 shares of our Series B 9 1/2% Cumulative
Preferred Stock ("Series B Preferred Stock") and 3,418,333 shares of our common
stock for an aggregate price of approximately $10,000,000.
II-2
In December 1998, we sold 243,891 shares of our Series B Preferred Stock
and 4,072,778 shares of our common stock for an aggregate price of approximately
$25,000,000.
In February 1999, we sold 83,333 shares of our common stock for an
aggregate price of $1,000,000.
In February 1999, we also sold 37,728 shares of our Series B Preferred
Stock and 1,320,901 shares of our common stock to The New York Times Company for
an aggregate consideration of $15,000,000 in cash and services.
From time to time, we have granted stock options to employees. The
following table sets forth information regarding the grants during the past
three fiscal years:
NUMBER OF WEIGHTED AVERAGE
SHARES GRANTED EXERCISE PRICE
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June 18, 1996 (inception) through December 31, 1996............... -- --
January 1, 1997 through December 31, 1997......................... -- --
January 1, 1998 through December 31, 1998......................... 1,663,953 $ 0.12
No underwriters were involved in connection with the sales of securities
referred to in this Item 15.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT DESCRIPTION OF EXHIBIT
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1.1 -- Underwriting Agreement**
3.1 -- Amended and Restated Certificate of Incorporation of TheStreet.com**
3.2 -- By-laws of TheStreet.com, as amended**
4.1 -- Amended and Restated Registration Rights Agreement dated as of December 21, 1998 among TheStreet.com
and stockholders named therein
4.2 -- TheStreet.com's Rights Plan dated , 1999**
4. -- Specimen Certificate for TheStreet.com's common stock**
5.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP**
10.1 -- License Agreement, dated February 17, 1999, between Yahoo! Inc. and TheStreet.com, Inc.+
10.2 -- The Amended and Restated 1998 Stock Incentive Plan of the TheStreet.com**
10.3 -- Interactive Services Agreement, dated April 16, 1998, between America Online, Inc. and TheStreet.com,
L.L.C.+
10.3.1 -- Letter, dated July 24, 1998 from America Online, Inc.
10.4 -- Content License and Marketing Agreement, dated as of January 12, 1999, between E*TRADE Group, Inc.
and TheStreet.com, Inc.+
10.5 -- Employment Agreement, dated, October 6, 1998, between Kevin English and TheStreet.com, Inc.**
10.6 -- Employment Agreement, dated February 22, 1999, between James Cramer and TheStreet.com, Inc.**
10.7 -- Content License Agreement, dated January 1, 1998, between Yahoo! Inc. and TheStreet.com, Inc.+
16.1 -- Letter, dated March 2, 1999 from Anchin, Block and Anchin LLP
23.1 -- Consent of Arthur Andersen LLP*
23.2 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)**
24.1 -- Power of Attorney (contained on the signature pages of this Registration Statement)*
99.1 -- Consent of Michael Golden*
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* Previously filed
** To be filed by amendment.
+ Confidential treatment has been requested for certain portions of these
documents.
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(b) Financial Statement Schedules.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing certificates in such denominations and registered in such names
as required by the Underwriters to permit prompt delivery to each purchaser.
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 provisions described in Item 14, or otherwise, 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. In the event that a claim for
indemnification by the registrant 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 pubic policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, 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 registrant pursuant to Rule 424(b)(1) or
(4) or 497 (h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bonafide offering thereof.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE 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 MARCH 10, 1999.
TheStreet.com, Inc.
By: *
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Name: Kevin English
Title: Chairman of the Board of
Directors, Chief Executive
Officer and President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATE INDICATED BELOW.
SIGNATURE TITLE DATE
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* Chairman of the Board of Directors, Chief March 10, 1999
- ------------------------------------------ Executive Officer and President
Kevin English
/s/ Paul Kothari Chief Financial Officer March 10, 1999
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Paul Kothari
* Editor-in-Chief and Director March 10, 1999
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Dave Kansas
* Director March 10, 1999
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James J. Cramer
* Director March 10, 1999
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Martin Peretz
* Director March 10, 1999
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Fred Wilson
* Director March 10, 1999
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Jerry Colonna
* Director March 10, 1999
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Edward F. Glassmeyer
* By: /s/ Paul Kothari Attorney-In-Fact March 10, 1999
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Paul Kothari
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EXHIBIT DESCRIPTION OF EXHIBIT
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1.1 -- Underwriting Agreement**
3.1 -- Amended and Restated Certificate of Incorporation of TheStreet.com**
3.2 -- By-laws of TheStreet.com, as amended**
4.1 -- Amended and Restated Registration Rights Agreement dated as of December 21, 1998 among TheStreet.com
and stockholders named therein
4.2 -- TheStreet.com's Rights Plan dated , 1999**
4. -- Specimen Certificate for TheStreet.com's common stock**
5.1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP**
10.1 -- License Agreement, dated February 17, 1999, between Yahoo! Inc. and TheStreet.com, Inc.+
10.2 -- The Amended and Restated 1998 Stock Incentive Plan of the TheStreet.com**
10.3 -- Interactive Services Agreement, dated April 16, 1998, between America Online, Inc. and TheStreet.com,
L.L.C.+
10.3.1 -- Letter, dated July 24, 1998 from America Online, Inc.
10.4 -- Content License and Marketing Agreement, dated as of January 12, 1999, between E*TRADE Group, Inc.
and TheStreet.com, Inc.+
10.5 -- Employment Agreement, dated, October 6, 1998, between Kevin English and TheStreet.com, Inc.**
10.6 -- Employment Agreement, dated February 22, 1999, between James Cramer and TheStreet.com, Inc.**
10.7 -- Content License Agreement, dated January 1, 1998, between Yahoo! Inc. and TheStreet.com, Inc.+
16.1 -- Letter, dated March 2, 1999 from Anchin, Block and Anchin LLP
23.1 -- Consent of Arthur Andersen LLP*
23.2 -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)**
24.1 -- Power of Attorney (contained on the signature pages of this Registration Statement)*
99.1 -- Consent of Michael Golden*
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* Previously filed
** To be filed by amendment.
+ Confidential treatment has been requested for certain portions of these
documents.