As
filed with the Securities and Exchange Commission on July 1, 2011
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to
Form S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GSI Commerce, Inc.
(Exact name of registrant as specified in its charter)
C:
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C:
C:
Delaware
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04-2958132 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
C:
GSI Commerce, Inc.
935 First Avenue
King of Prussia, PA 19406
(610) 491-7000
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Paul D. Cataldo
General Counsel and Secretary
GSI Commerce, Inc.
935 First Avenue
King of Prussia, PA 19406
Telephone: (610) 491-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Approximate date of commencement of proposed sale to the public: This post-effective
amendment deregisters that Common Stock and Preferred Stock and those Depositary Shares, Warrants
to Purchase Common Stock, Preferred Stock, Depositary Shares, or Debt Securities, Subscription
Rights to Purchase Common Stock, Preferred Stock, Depositary Shares, or Debt Securities, Debt
Securities, Share Purchase
Contracts, Share Purchase Units, and Units that remain unsold hereunder
as of the date hereof.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
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.
o
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. o
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. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ž
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether
the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer ž
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Accelerated filer o
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Non-accelerated filer o
(Do not check if a smaller reporting company)
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Smaller reporting company o |
TABLE OF CONTENTS
DEREGISTRATION OF SECURITIES
This Post-Effective Amendment (this
“Post-Effective Amendment”) filed by GSI Commerce, Inc.
(the
“Company”), removes from registration all securities registered under the Registration
Statement on Form S-3 (No.
333-163167) (the
“Registration Statement”), filed by
the Company with
the U.S. Securities and Exchange Commission (the
“Commission”) on
November 18, 2009, pertaining to
the registration of Common Stock, Preferred Stock, Depositary Shares, Warrants to Purchase Common
Stock, Preferred Stock, Depositary Shares, or Debt Securities, Subscription Rights to Purchase
Common Stock, Preferred Stock, Depositary Shares, or Debt Securities, Debt Securities, Share
Purchase
Contracts, Share Purchase Units, and Units, which securities remain unsold hereunder as of
the date hereof.
On
March 27, 2011,
the Company entered into an Agreement and
Plan of Merger (the
“Merger
Agreement”) with eBay Inc. (
“Parent”) and Gibraltar Acquisition Corp., a wholly owned subsidiary of
Parent (
“Merger Sub”), providing for, among other things, the merger of Merger Sub with and into
the Company (the
“Merger”), with
the Company continuing as the surviving corporation and a
wholly-owned subsidiary of Parent. The Merger is effective as of
June 17, 2011 (the
“Effective
Time”), pursuant to a Certificate of Merger filed with the Secretary of State of the State of
Delaware.
At the Effective Time, each issued and outstanding share of Company Common Stock (other than
shares held by Parent, Merger Sub,
the Company or any of their respective
subsidiaries or shares
held by stockholders who had properly exercised and perfected appraisal rights under Delaware law)
were canceled and converted into the right to receive $29.25 in cash, without interest (the
“Merger
Consideration”). To the extent that any outstanding shares of Company Common Stock were unvested or
subject to a repurchase option, risk of forfeiture or other contractual right as of the Effective
Time, such shares were converted into Merger Consideration that will remain unvested and subject to
such rights, as applicable, and need not be paid until such time as such repurchase option, risk of
forfeiture or other contractual right lapses or otherwise terminates. Each outstanding stock option
of
the Company, to the extent vested immediately prior to the Effective Time was converted into the
right to receive an amount equal to the number of shares of Company Common Stock underlying the
option multiplied by the difference between the Merger Consideration and the exercise price per
share of such option. Each outstanding stock option of
the Company, to the extent unvested
immediately prior to the Effective Time, was converted into an option to purchase Parent common
stock in an amount equal to the number of shares of Company Common Stock underlying such option
immediately prior to the Effective Time, multiplied by a conversion ratio of 0.982466747 (the
“Conversion Ratio”). Each Company restricted stock unit that was outstanding and unvested
immediately prior to the Effective Time was converted into a restricted stock unit representing the
right to receive the number of shares of Parent common stock equal to the number of shares of
Company Common Stock subject to such restricted stock unit immediately prior to the Effective Time
multiplied by the Conversion Ratio.
In addition, as previously disclosed in
the Company’s Current Report on Form 8-K filed with
the Commission on
June 13, 2011, pursuant to that certain memorandum of understanding, dated
June
10, 2011 (the
“MOU”), entered into with respect to the consolidated action
captioned In Re GSI
Commerce, Inc. Shareholder Litigation, Consol. C.A. No. 6346-VCN, pending in the Court of Chancery
of the State of Delaware, Parent will pay a settlement amount (the
“Settlement Amount”) equal to
$0.33 per share to
the Company’s stockholders who held Common Stock and/or vested Company equity
incentive awards at the Effective Time and, with respect to Company equity incentive awards that
are unvested at the Effective Time, such $0.33 per share Settlement Amount will be included in the
calculation of the Conversion Ratio, but excluding, in each instance, (1) Common Stock and Company
equity incentive awards held by
the Company’s directors and senior officers and (2) any shares of
Common Stock that are obtained through a conversion of any Company debt securities on or after
June
9, 2011. The payment of the Settlement Amount is separate and distinct from the payment of the
Merger Consideration to be paid pursuant to the terms of the Merger Agreement to all of the
stockholders of
the Company (including those who will not receive the Settlement Amount) but will
be paid contemporaneously with the payment of such Merger Consideration. In addition, pursuant to
the
indenture relating to
the Company’s 2.50% Convertible Senior Notes due 2027 (the
“Notes”), as
supplemented, the Notes will be converted into the right to receive an amount in cash calculated
based on the holders of the Notes receiving the $29.25 per share Merger Consideration plus an
additional $0.33 per share.