S-3 1 a2051231zs-3.txt S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 2001 REGISTRATION NO. 333-_______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- dELIA*s CORP. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 13-3963754 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.) INCORPORATION OR ORGANIZATION) 435 Hudson Street, New York, New York 10014 (212) 807-9060 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ALEX S. NAVARRO, ESQ. dELIA*s CORP. 435 HUDSON STREET, NEW YORK, NEW YORK 10014 (212) 807-9060 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPY TO: Jeffrey A. Horwitz, Esq. Proskauer Rose LLP 1585 Broadway New York, New York, 10036-8299 (212) 969-3000 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time after this Registration Statement has been declared effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_| 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 reinvestment plans, check the following box. [X] 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 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 delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. |_| CALCULATION OF REGISTRATION FEE
======================================================================================================= Proposed maximum Proposed maximum Amount of Title of each class of Amount to be aggregate offering aggregate offering registration securities to be registered registered price per unit (1) price (1) fee ------------------------------------------------------------------------------------------------------- Class A Common Stock, 5,000,000 $4.075 $20,375,000 $5,094 par value $.01 per share shares =======================================================================================================
(1) Based on the average of the high and low trading prices on The Nasdaq Stock Market on May 30, 2001. Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee. ------------------------------ 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 of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. SUBJECT TO COMPLETION, DATED JUNE 5, 2001 -------------------------------------------------------------------------------- This information in this prospectus is not complete and may be changed. We may not sell these securities until the Securities and Exchange Commission declares our Registration Statement 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 5,000,000 Shares of Class A Common Stock dELIA*s CORP. ----------------------- This prospectus will allow us to sell up to 5,000,000 shares of our Class A common stock from time to time in one or more separate offerings in amounts, at prices and on terms to be determined at the time of sale. This prospectus will describe the general terms of our offering and the general manner in which we will offer our common stock. Each time we sell our Class A common stock, we will provide a prospectus supplement that will contain the specific terms of our offering and describe the specific manner in which we will offer our Class A common stock. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus, the prospectus supplement and the additional information described under the headings "Where You Can Find More Information" and "Incorporation of Certain Documents by Reference" carefully before you invest. Our Class A common stock is traded on the Nasdaq Stock Market under the symbol "DLIA." The last reported sale price for our Class A common stock on the Nasdaq Stock Market on June 4, 2001 was $4.35 per share. INVESTING IN OUR CLASS A COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 5. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is June __, 2001 TABLE OF CONTENTS ABOUT THIS PROSPECTUS 2 PROSPECTUS SUMMARY 3 RISK FACTORS 5 USE OF PROCEEDS 14 PLAN OF DISTRIBUTION 14 LEGAL OPINION 15 EXPERTS 15 WHERE YOU CAN FIND MORE INFORMATION 16
ABOUT THIS PROSPECTUS Statements contained in this prospectus or incorporated by reference may be forward-looking statements within the meaning of Section 27A of the amended Securities Act of 1933 and Section 21E of the amended Securities Exchange Act of 1934. The words "believe," "plan," "intend," "expect" and similar expressions are intended to identify forward-looking statements. We caution you not to place undue reliance on these forward-looking statements. They apply only as of the date of this prospectus, except that statements incorporated by reference from previously filed reports apply as of the date made. These statements are subject to risks and uncertainties that could cause actual results to differ materially from those contemplated in the forward-looking statements. The risks and uncertainties include, but are not limited to: o we may not be able to maintain access to financing to fund operations and the expansion strategies of our retail business; o our businesses may not be integrated successfully following the recent recombination of iTurf Inc. and dELiA*s Inc.; o the recombination may not produce savings from additional operating efficiencies in a timely fashion or at all; o continuing costs related to the merger and certain restructuring initiatives, including the sale or discontinuation of our former Storybook Heirlooms business, our former TSI Soccer business and our former Internet content businesses, may exceed our reserves for such initiatives; o we may not be able to reduce expenses successfully; o our cost reduction initiatives may lead to reduced service levels or product quality, which could have an adverse impact on revenues; o we are likely to continue to experience increases in the cost of materials, printing, paper, postage, shipping and labor; o we may experience reductions in response rates to catalog and electronic mailings due to increased prospecting, the timing and quantity of our mailings and other factors; o we may not be able to leverage investments made in infrastructure to support expansion; o customers may not like our new retail concepts; o we may not be able to obtain acceptable store sites and lease terms; o we may not be able open new stores in a timely fashion; o we may not be able to increase comparable store sales; o adverse weather conditions other factors affecting retail stores generally; o we are subject to increased levels of competition; o we may not be able to retain key personnel; o we may not be able to scale our computer systems with growth in online traffic; 2 o we are susceptible to downturns in general economic conditions; o we may not be able to anticipate and respond to fashion trends; o we may experience decreased levels of service from third party vendors and service providers; o our suppliers may not be able to obtain financing to provide products to the Company; o other factors detailed elsewhere in this prospectus. These factors, and other factors that appear in this prospectus, including under "Risk Factors," and in the documents incorporated by reference could affect our actual results and could cause our actual results to differ materially from those expressed in any forward-looking statements made by us or on our behalf. We undertake no obligation to publicly update any forward-looking statements, regardless of any new information, future events or other occurrences. We advise you, however, to consult any additional disclosures we make in our reports to the SEC on Forms 10-K, 10-Q and 8-K. This prospectus may also include or incorporate by reference market data related to the industries in which we operate. This data has been derived from studies published by market research firms, trade associations and other organizations. These organizations sometimes assume that events, trends and activities will occur and project information based on those assumptions. If any of their assumptions are wrong, their projections may also be wrong. References in this prospectus to "fiscal 2000" mean the period from January 30, 2000 to February 3, 2001. References to "fiscal 1999" mean the period from February 1, 1999 to January 29, 2000. Any reference in this prospectus to a particular fiscal year before 1999 is to the year ended January 31 following the corresponding calendar year. For example, "fiscal 1998" means the period from February 1, 1998 to January 31, 1999. PROSPECTUS SUMMARY THIS SUMMARY DOES NOT CONTAIN ALL THE INFORMATION THAT YOU SHOULD CONSIDER BEFORE INVESTING IN OUR COMMON STOCK. YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY, ESPECIALLY "RISK FACTORS" BEGINNING ON PAGE 5. OUR BUSINESS We are a multichannel retailer that markets apparel, accessories and home furnishings to teenage girls and young women. We reach our customers through the dELiA*s catalog, www.dELiAs.cOm and 37 dELiA*s retail stores. Our dELiA*s catalogs, retail stores and e-commerce pages feature a broad assortment of merchandise to enable our customers to fulfill many of their fashion needs. This merchandise ranges from basics, such as jeans, shorts and t-shirts, to more fashion oriented apparel and accessories, such as woven and knit junior dresses, swimwear, sunglasses, watches, costume jewelry and cosmetics,. dELiA*s also offers home furnishings, light furniture and household articles to teen girls and young women. While we continue to offer recognized and emerging brands purchased from third-party vendors, we have increased our focus on dELiA*s-branded merchandise that we source directly from manufacturers or purchase from third-party vendors for sale under the "dELiA*s" label. We present merchandise in coordinated groupings to encourage customers to create outfits, which we believe increases average purchase size and enhances sales. 3 In fiscal 2000, dELIA*s catalog circulation was nearly 41 million. Our distinctive catalogs and dELiAs.cOm Web site include detailed product descriptions and specifications, full color photographs and pricing information. They are designed to create a unique and entertaining shopping experience and to offer customers more than the typical apparel catalog or Web site by combining the feel and editorial flair of a magazine or web/zine with the convenience of at-home shopping. As of June 1, 2001, we operated 37 dELiA*s-branded stores, including our four outlet stores. Our 33 full-priced dELiA*s stores range in size from 2,500 to 5,100 square feet with an average size of 3,900 square feet. They are located primarily on the East Coast (Connecticut, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island and Virginia) and in the Midwest (Illinois). Except for our September 1998 purchase of approximately 6 million names from the estate of Fulcrum Direct, Inc., we have historically developed our proprietary customer database primarily through referrals, word-of-mouth, catalog request cards, on-line membership programs and targeted classified advertising in selected magazines, including SEVENTEEN and YM. During fiscal 2000, we added approximately 1.2 million new names to our database through such channels. As of February 3, 2001, our proprietary database included approximately 12 million names, approximately 7 million of which were customers. We provide our dELiA*s Direct customers with around-the-clock toll-free telephone access. Teleservice representatives process orders directly into our management information system. These representatives are versed in product sizes, colors and features and are trained to cross-sell accessories and related products and provide information about promotional items. Our New York call center is flexibly configured to handle up to 300 phone stations. As of February 3, 2001, we employed approximately 300 full- and part-time teleservice representatives. Our call center has the capacity to handle nearly 3,000 calls per hour. We process customer orders and retail stock shipments through our warehouse and fulfillment center in Hanover, Pennsylvania. From this center, we processed an average in fiscal 2000 of 10,000 customer shipments per day and handled nearly 28,000 packages on our busiest day in the peak holiday season. CORPORATE INFORMATION Our principal executive offices are located at 435 Hudson Street, New York, New York 10014, , and our telephone number is (212) 807-9060. Our Web site is located at www.delias.com. The information on our Web site is not part of this prospectus, and we do not intend that it be accessed through this prospectus. THE SECURITIES WE MAY OFFER This prospectus is part of a Registration Statement (No. 333- ) that we filed with the SEC utilizing a "shelf" registration process. Under this shelf process, we may offer from time to time up to 5,000,000 shares of our Class A common stock. This prospectus provides you with a general description of our common stock that we may offer. Each time we offer our Class A common stock, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of our common stock being offered. Each prospectus supplement may also add, update or change information contained in this prospectus. 4 RISK FACTORS You should consider carefully the following risks before you decide to buy our Class A common stock, in addition to the other information contained, or incorporated by reference, in, this prospectus. The risks and uncertainties described below are not the only ones facing our company and our stockholders. Additional risks and uncertainties may also adversely impair our business operations. In addition, actual results of our business could differ materially from those described as a result of the following risk factors. In such case, the trading price of our Class A common stock could decline, and you may lose all or part of the money you paid to buy our Class A common stock. WE MAY NEED ADDITIONAL CAPITAL, WHICH MAY NOT BE AVAILABLE, AND ADDITIONAL CAPITAL COULD DILUTE STOCKHOLDERS. Historically, we have financed our business operations primarily through the sale of equity and bank loans. We believe that available cash on hand and available borrowings will enable us to maintain our currently planned operations. However, in the event of lower than expected sales or higher than expected expenses or in the event of material changes to our vendor payment terms, it is likely that we will need to raise additional funds to finance our operations. Moreover, we may not continue to have access to borrowings under our revolving line of credit agreement with Congress Financial Corporation. We are also likely to require additional financing in order to expand our retail operations beyond our current plans. As an alternative to bank financing, we may seek equity financing from strategic or financial investors in addition to the sale of shares pursuant to this prospectus. Debt or equity financing may not be available in sufficient amounts or on terms acceptable to us, or at all, and any equity-based financing may be dilutive to our current stockholders. HISTORICAL RESULTS MAY NOT BE INDICATIVE OF FUTURE RESULTS DUE TO SEASONAL, CYCLICAL AND QUARTERLY FLUCTUATIONS. We experience seasonal and cyclical fluctuations in our revenues and results of operations. For example, sales of apparel, accessories and footwear are generally lower in the first half of each year. In addition, due to the cyclical nature of our businesses and our sensitivity to consumer spending patterns, purchases of apparel and accessories tend to decline during recessionary periods and may decline at other times. Consequently, our results of operations from quarter to quarter may not be comparable. Our quarterly results may also fluctuate as a result of a number of other factors, including: o general economic conditions; o changes in consumer spending patterns; o increases in the cost of materials, printing, paper, postage, shipping and labor; o the timing, quantity and cost of catalog and electronic mailings and response rates to those mailings; o market acceptance of our merchandise, including new merchandise categories or products introduced; o opportunities to expand, including the ability to locate and obtain acceptable store sites and lease terms or renew existing leases, and the ability to increase comparable store sales; o levels of competition; o the timing of merchandise deliveries; o adverse weather conditions, changes in weather patterns and other factors affecting retail stores; o changes in the growth rate of Internet usage and online user traffic levels; o the timing and amount of costs relating to the expansion of our operations and acquisitions of technology or businesses; and 5 o other factors outside our control. As a result of seasonal and cyclical patterns and the other factors described above, you should not rely on quarter-to-quarter comparisons of our results of operations as indicative of our future performance. In addition, it is possible that in some future periods our results of operations may be below the expectations of public market analysts and investors, which could adversely affect our stock price. WE HAVE A LIMITED OPERATING HISTORY ON WHICH AN INVESTOR CAN EVALUATE OUR BUSINESS. RETAIL STORES. We opened the first full-priced dELiA*s-brand retail store in February 1999, and many of the dELiA*s-brand retail stores were opened after fiscal 1999. As a result, we do not have substantial data regarding comparable store sales, which is an important measure of performance for a retail company. Because of our limited history as an operator of retail stores and the limited data available for management, as well as potential investors, to assess the trends in individual store performance, there can be no assurances of our ability to run these stores profitably. In addition, failure to expand the numbers of dELiA*s retail stores would limit our ability to leverage our infrastructure and would have a material adverse effect on our financial condition and results of operations. As a result of these factors, our future revenues are difficult to forecast. Any shortfall in revenues may have a material adverse effect on our business and would likely affect the market price of our Class A common stock in a manner unrelated to our long-term operating performance. E-COMMERCE. We did not begin selling merchandise from the dELiA*s catalog on the Internet until May 1998. As a result, our Internet business has generated substantially all of its revenues since that time. You must consider the risks and difficulties that we will encounter in the new and rapidly evolving e-commerce market. These risks include our ability to: o maintain and enhance our systems to support growth of operations and increasing user traffic; o retain existing customers, attract new customers and maintain customer satisfaction; o introduce new and enhanced Web pages, services, products and alliances; o minimize technical difficulties, system downtime and the effect of Internet brown-outs; o manage the timing of promotions and sales programs; o respond to technological changes in the industry; and o respond to changes in government regulation. If we do not successfully manage these risks, our business will be materially adversely affected. We cannot assure you that we will successfully address these risks or that our business strategy will be successful. WE ARE PARTY TO CLASS ACTION LITIGATION. We are currently party to three purported class action litigations. The first was originally filed in two separate complaints in Federal District Court for the Southern District of New York in 1999 against dELiA*s Inc. and certain of its officers and directors. These complaints were consolidated. The consolidated complaint alleges, among other things, that the defendants violated Rule 10b-5 under the Securities Exchange Act of 1934 by making material misstatements and by failing to disclose certain allegedly material information regarding trends in the business during part of 1998. The second was originally filed as three separate complaints in Delaware Chancery Court against iTurf Inc., dELiA*s Inc. and each of iTurf's directors in connection with the recombination of the iTurf Inc. and dELiA*s Inc. businesses. The actions were consolidated and an amended complaint was filed on January 19, 2001. The complaint alleges that dELiA*s and the members of the iTurf board of directors have breached their fiduciary duties to iTurf's 6 public stockholders and that the exchange ratio applied to shares in the recombination was unfair to iTurf's public stockholders. This complaint seeks class certification and other equitable and monetary relief, including awarding damages. In addition, the plaintiffs have demanded that we issue additional shares of our common stock to the plaintiff class. The issuance of a substantial number of shares of our common stock to the plaintiff class would result in material dilution to the ownership interest of our stockholders. We believe that the allegations are without substantial merit and intend to contest these actions vigorously. However, we can not predict at this time the outcome of any litigation or whether the resolution of the litigation could have a material adverse effect on our business. In the first quarter of fiscal 2001, we were served with a purported class action complaint alleging that we improperly collected sales tax from residents of New York State. We intend to defend against this action vigorously. While an estimate of the possible range of loss cannot be made, based upon information presently known to management, we do not believe that the ultimate resolution of this lawsuit will have a material adverse effect on our business. OUR GROWTH STRATEGY MAY PRESENT OPERATIONAL, MANAGEMENT AND INVENTORY CHALLENGES. Our historical growth has placed significant demands on our management and other administrative, operational and financial resources. We intend to continue to pursue a growth-oriented strategy in our core dELiA*s business for the foreseeable future and our future operating results will largely depend on our ability to open and operate new retail stores, appropriately expand our Internet e-commerce business and manage a larger core dELiA*s business. Managing this growth will require us to continue to implement and improve our operations and financial and management information systems and to continue to expand, motivate and effectively manage our workforce. If we cannot manage this process effectively or grow our businesses as planned, we may not achieve our desired future operating results. Operation of a greater number of retail stores, expansion into new geographic or demographic markets and online expansion may present competitive and merchandising challenges that are different from those we currently encounter in our existing businesses. Such expansion will also require further investment in infrastructure and marketing for our direct and retail businesses. This investment will increase our operating expenses, which could have a material adverse effect on the results of our business if anticipated sales do not materialize, and may require us to seek additional financing. There can be no assurance that we will be able to obtain this financing on acceptable terms or at all. In addition, expansion of our retail and e-commerce businesses within our existing markets may adversely affect the individual financial performance of existing stores or catalog sales. Historically, efforts to increase Internet sales have reduced catalog sales. There can be no assurance that increased sales through our retail stores will not reduce catalog or Internet sales. Also, new stores may not achieve sales and profitability levels consistent with existing stores. Furthermore, as our sales increase, we anticipate maintaining higher inventory levels. This anticipated increase in inventory levels will expose us to greater risk of excess inventories and inventory obsolescence, as well as increase our dependence on our vendors and exposure to their payment terms, all of which could have a material adverse effect on our business. WE MAY FAIL TO ANTICIPATE AND RESPOND TO FASHION TRENDS AND THE TASTES OF OUR CUSTOMERS. Our failure to anticipate, identify or react to changes in styles, trends or brand preferences of our customers may result in lower revenue from reduced sales and promotional pricing. Our success depends, in part, on our ability to anticipate the frequently-changing fashion tastes of our customers and to offer merchandise and services that appeal to their preferences on a timely and affordable basis. If we were to misjudge our offerings, our image with our customers would be materially adversely affected. Poor customer reaction to our products or our failure to source these products effectively would have a material adverse effect on our business. 7 WE RELY ON THIRD-PARTY VENDORS FOR MERCHANDISE. Our business depends on the ability of third-party vendors to provide us with current-season, brand-name apparel and merchandise at competitive prices, in sufficient quantities and of acceptable quality. No vendor accounted for more than 2% of our core dELiA*s sales in fiscal 2000. We do not have long-term contracts with any supplier and are not likely to enter into these contracts in the foreseeable future. In addition, many of the smaller vendors that we use have limited resources, production capacities and operating histories. As a result, we are subject to the following risks, which could have a material adverse effect on our business: o our key vendors may fail or be unable to expand with us; o we may lose one or more key vendors; o our current vendor terms may be changed to require increased payments in advance of delivery, and we may not be able to fund such payments through our current credit facility; or o our ability to procure products may be limited. It is our current strategy to increase the percentage of our goods designed and manufactured to our specifications and to source this merchandise from independent factories. To the extent we concentrate our sourcing with fewer manufacturers, we may increase our exposure to failed or delayed deliveries, which could have a material adverse effect on our business. Furthermore, as part of our move towards more private-label merchandise, we are likely to source an increasing proportion of our goods from factories in the Far East and Latin America. These goods will be subject to existing or potential duties, tariffs or quotas that may limit the quantity of some types of goods which may be imported into the United States from countries in those regions. We will increasingly compete with other companies for production facilities and import quota capacity. Sourcing more merchandise abroad will also subject our business to a variety of other risks generally associated with doing business abroad, such as political instability, currency and exchange risks and local political issues. Our future performance will be subject to these factors, which are beyond our control. Although a diverse domestic and international market exists for the kinds of merchandise sourced by us, there can be no assurance that these factors would not have a material adverse effect on our results of operations. We believe that alternative sources of supply would be available in the event of a supply disruption in one or more regions of the world. However, we do not believe that, under current circumstances, entering into committed alternative supply arrangements is warranted, and there can be no assurance that alternative sources would in fact be available at any particular time. OUR CHIEF EXECUTIVE OFFICER HAS A SUBSTANTIAL EQUITY INTEREST IN THE COMPANY AND MAY USE HIS INFLUENCE IN WAYS THAT ARE NOT CONSISTENT WITH THE INTERESTS OF OTHER STOCKHOLDERS. Stephen I. Kahn, our chief executive officer, holds or has the right to vote in the aggregate approximately 30% of our Class A common stock, net of treasury stock and stock held by subsidiaries. Accordingly, Mr. Kahn may have substantial influence over the company and may exercise his influence in ways that might not be consistent with the interests of other stockholders. WE MAY HAVE DIFFICULTY ATTRACTING AND RETAINING KEY PERSONNEL Our success will depend on the continued service of our key technical, sales and senior management personnel. Loss of the services of our senior management personnel, including Stephen I. Kahn, Chairman of our board of directors and Chief Executive Officer, Andrea Weiss, President, Christopher C. Edgar, Vice Chairman, Evan Guillemin, Chief Operating Officer, and Dennis Goldstein, Chief Financial Officer, or other key employees would have a material adverse effect on our business. 8 Competition for employees in our industries is intense. As a result, we have in the past experienced, and we expect to continue to experience, difficulty hiring and retaining skilled employees with appropriate qualifications. WE MAY NOT BE ABLE TO ATTRACT NEW CUSTOMERS TO REPLENISH OUR CUSTOMER BASE. Our customers are primarily teens and young adults. As these individuals age beyond their teens, they may no longer purchase products aimed at younger individuals. Accordingly, we must constantly update our marketing efforts to attract new, prospective teen and young adult customers. Failure to attract new customers would have a material adverse effect on our business. OUR CATALOG RESPONSE RATES MAY DECLINE. Catalog response rates usually decline when we mail additional catalog editions within the same fiscal period. Response rates also decline in geographic regions where we open new stores. As we open additional new stores, we expect aggregate catalog response rates to decline further. In addition, as we continue to increase the number of catalogs distributed or mail our catalogs to a broader group of new potential customers, we have observed that these new potential customers respond at lower rates than existing customers have historically responded. These trends in response rates have had and are likely to continue to have a material adverse effect on our rate of sales growth and on our profitability and could have a material adverse effect on our business. OUR INDUSTRIES ARE HIGHLY COMPETITIVE. The apparel and accessories industry is highly competitive, and we expect competition to increase. As a result of this competition, we may experience pricing pressures, increased marketing expenditures and loss of market share, which would have a material adverse effect on our business. We compete with traditional department stores, as well as specialty retailers, for teen and young adult customers. We also compete with other direct marketers and e-commerce companies, some of which may specifically target our customers; we expect competition from e-commerce companies to continue to increase because of the relative ease with which new Web sites can be developed. In addition, because there are few barriers to entry in the teen apparel and accessories market, we could face competition from manufacturers of apparel and accessories, including our current vendors, who could market their products directly to retail customers or make their products more readily available in competitor catalogs, Web sites and retail stores. We cannot assure you that we will be able to compete successfully with these companies or that competitive pressures will not materially and adversely affect our business. We believe that our ability to compete depends upon many factors, including the following: o the market acceptance of our e-commerce site; o the success of our brand building and sales and marketing efforts; o the performance, price and reliability of services developed by us or our competitors; and o the effectiveness of our customer service and support efforts. Many of our competitors are larger and have substantially greater financial, distribution and marketing resources than we do. Our competitors may develop products or services that are equal or superior to, or achieve greater market acceptance than, ours. Our competitors could also enter into exclusive distribution arrangements with our vendors and deny us access to these vendors' products. These factors may have a material adverse effect on our business. 9 WE RELY ON INFORMATION AND TELECOMMUNICATIONS SYSTEMS, WHICH ARE SUBJECT TO DISRUPTION. The success of our direct marketing and retail store businesses depends, in part, on our ability to provide prompt, accurate and complete service to our customers on a competitive basis, and to purchase and promote products, manage inventory, ship products, manage sales and marketing and maintain efficient operations through our telephone and management information systems. In addition, the success of our e-commerce business depends, in part, on our ability to provide a consistently prompt and user-friendly experience to our customers, with a minimum of technical delays or disruptions. Our operations therefore depend on our ability to maintain our computer and telecommunications systems and equipment in effective working order. Any sustained or repeated system failure or interruption would have a material adverse effect on sales and customer relations. Unanticipated problems affecting our systems have caused from time to time in the past, and in the future could cause, disruptions in our services. These system interruptions could result from the failure of our telecommunications providers to provide the necessary data communications capacity in the time frame we require or from events such as fire, power loss, water damage, telecommunications failures, vandalism and other malicious acts, and similar unexpected adverse occurrences. Any damage or failure that interrupts or delays our operations could have a material adverse effect on our business. STRIKES OR OTHER SERVICE INTERRUPTIONS AFFECTING THIRD-PARTY SHIPPERS WOULD IMPACT OUR ABILITY TO DELIVER MERCHANDISE ON A TIMELY BASIS. We rely on third-party shippers, including the United States Postal Service, United Parcel Service and Airborne Express, to ship merchandise to our customers. Strikes or other service interruptions affecting our shippers would affect our ability to deliver merchandise on a timely basis and could have a material adverse effect on our business. WE DEPEND ON THE STORAGE OF PERSONAL INFORMATION ABOUT OUR CUSTOMERS, AND PROPOSED LEGISLATION MAY LIMIT OUR ABILITY TO CAPTURE AND USE SUCH CUSTOMER INFORMATION. Web sites typically place identifying data, or "cookies," on a user's hard drive without the user's knowledge or consent. dELiAs.cOm and other Web sites use cookies for a variety of reasons, including the collection of data derived from the user's Internet activity. Any reduction or limitation in the use of cookies could limit the effectiveness of our sales and marketing efforts. Most currently available Web browsers allow users to remove cookies at any time or to prevent cookies from being stored on their hard drives. In addition, some commentators, privacy advocates and governmental bodies have suggested limiting or eliminating the use of cookies. Furthermore, the European Union recently adopted a directive addressing data privacy that may limit the collection and use of information regarding Internet users. Any of these actions may limit our ability to collect and use information about our customers, which could have a material adverse effect on our business. Recently, there has been increasing public concern regarding the compilation, use and distribution of information about teens and children. Federal legislation has been introduced in the U.S. Congress that proposes restrictions on persons, principally list brokers, that sell, purchase or otherwise use for commercial purposes personal information about teens under the age of 16 and children. List brokerage is not currently a material part of our business but we do market to persons whose names are derived from purchased or rented lists. We may increase our use of purchased and rented lists or, in the future, decide to increase our list brokerage business. Consequently, the proposed legislation, or other similar laws or regulations that may be enacted, could impair our ability to collect customer information, use that information in the course of our 10 business or profit from future plans to sell customer information, which could have a material adverse effect on our business. WE MAY BECOME SUBJECT TO CURRENCY, POLITICAL, TAX AND OTHER UNCERTAINTIES AS WE EXPAND INTERNATIONALLY. We distribute our dELiA*s catalogs in Japan and Canada and plan to explore distribution opportunities in other international markets. Our dELiAs.cOm Web site is visited by a global audience. Our international business is subject to a number of risks of doing business abroad, including: o fluctuations in currency exchange rates; o the impact of recessions in economies outside the United States; o regulatory and political changes in foreign markets; o reduced protection for intellectual property rights in some countries; o potential limits on the use of our trademarks outside the United States; o potential limits on the use of some of our vendors' trademarks outside the United States; o exposure to potentially adverse tax consequences or import/ export quotas; o opening and managing distribution centers abroad; o inconsistent quality of merchandise and disruptions or delays in shipping; and o difficulties in developing customer lists and marketing channels. Furthermore, expansion into new international markets may present competitive and merchandising challenges different from those we currently face. We cannot assure you that we will expand internationally or that any such expansion will result in profitable operations. WE MAY BE REQUIRED TO COLLECT SALES TAX. At present, we do not collect sales or other similar taxes in respect of direct shipments of goods to consumers in most states. However, various states have sought to impose state sales tax collection obligations on out-of-state direct mail companies. A successful assertion by one or more states that we should have collected or be collecting sales taxes on the direct sale of our merchandise would have a material adverse effect on our business. WE MAY NOT BE ADEQUATELY PROTECTED AGAINST INFRINGEMENT OF OUR INTELLECTUAL PROPERTY, WHICH IS ESSENTIAL TO OUR BUSINESS. We regard our service marks, trademarks, trade secrets and similar intellectual property as critical to our success. We rely on trademark and copyright law, trade secret protection and confidentiality, license and other agreements with employees, customers, strategic partners and others to protect our proprietary rights, and have also pursued and applied for the registration of our trademarks and service marks in the United States. The steps we have taken to protect our intellectual property may not be adequate, and third parties may infringe or misappropriate our copyrights, trademarks and similar proprietary rights. In addition, effective trademark, service mark, copyright and trade secret protection may not be available in every country in which our products and services are made available. WE MAY BECOME SUBJECT TO LIABILITY FOR INFRINGING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. From time to time we receive complaints that we have infringed on third-party intellectual property rights. Our reliance on independent vendors makes it difficult to guard against infringement and we have occasionally agreed to refrain from selling some merchandise at the request of third parties alleging infringement. To date, these claims have not had a material adverse effect on our business. However, future infringement claims, if directed at key items of our merchandise or our material intellectual property, could have a material adverse effect on our business. 11 OUR BUSINESS MAY BE ADVERSELY AFFECTED BY FLUCTUATIONS IN POSTAGE AND PAPER EXPENSES. Significant increases in paper or catalog delivery costs would have a material adverse effect on our business. THE PRICE OF OUR CLASS A COMMON STOCK COULD BE EXTREMELY VOLATILE, AND THIS VOLATILITY MAY ENGENDER LITIGATION. The market price of our Class A common stock has fluctuated in the past and may continue to be volatile. In the past, companies that have experienced volatility in the market price of their stock have been the objects of securities class action litigation, which could have material adverse effects on our business. DELAWARE LAW AND OUR ORGANIZATIONAL DOCUMENTS AND STOCKHOLDER RIGHTS PLAN MAY INHIBIT A TAKEOVER. Provisions of Delaware law, our Restated Certificate of Incorporation or our bylaws could make it more difficult for a third party to acquire us, even if doing so would be beneficial to our stockholders. In addition, our board of directors has adopted a stockholder rights plan, the purpose of which is to protect stockholders against unsolicited attempts to acquire control of us that do not offer a fair price to all of our stockholders. The rights plan may have the effect of dissuading a potential acquirer from making an offer for our Class A common stock at a price that represents a premium to the then current trading price. WE MAY BE EXPOSED TO LIABILITY OVER PRIVACY CONCERNS. Despite the display of our privacy policy on our dELiAs.cOm Web site, any penetration of our network security or misappropriation of our customers' personal or credit card information could subject us to liability. We may be liable for claims based on unauthorized purchases with credit card information, impersonation or other similar fraud claims. Claims could also be based on other misuses of personal information, such as for unauthorized marketing purposes. These claims could result in litigation, which could divert management's attention from the operation of our business and result in the imposition of significant damages. In addition, the Federal Trade Commission and several states have investigated the use by Internet companies of personal information. In 1998, the U.S. Congress enacted the Children's Online Privacy Protection Act of 1998. The Federal Trade Commission recently promulgated final regulations interpreting this act. We depend upon collecting personal information from our customers and we believe that the regulations under this act will make it more difficult for us to collect personal information from some of our customers. Any failure to comply with this act may make us liable for substantial fines and other penalties. We could also incur expenses if new regulations regarding the use of personal information are introduced or if our privacy practices are investigated. GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES COULD CREATE ADDITIONAL BURDENS TO DOING BUSINESS ON THE INTERNET. Laws and regulations applicable to Internet communications, commerce and advertising are becoming more prevalent. The adoption or modification of laws or regulations applicable to the Internet could adversely affect our business. The law governing the Internet, however, remains largely unsettled. Although our online transmissions generally originate in New York, the governments of other states or foreign countries might attempt to regulate our transmissions or levy sales or other taxes relating to our activities. It may take years to determine whether and how existing laws governing intellectual property, privacy, libel and taxation apply to the Internet. In addition, the growth and development of online commerce may prompt calls for more stringent consumer protection laws, both in the United States and 12 abroad. We also may be subject to regulation not specifically related to the Internet, including laws affecting direct marketers and advertisers. The interpretation or enactment of any of these types of laws or regulations may impose burdens on our business. THIRD-PARTY INTERNET PROVIDERS MAY EXPERIENCE SYSTEM FAILURES THAT COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS. Our customers depend on Internet service providers and Web site operators for access to our Web site. Some of these groups have experienced significant outages in the past and could experience outages, delays and other difficulties due to system failures unrelated to our systems. These types of occurrences could cause customers to perceive our Web site as not functioning properly and therefore cause them to stop using our e-commerce services, which could have a material adverse effect on our business. A DECREASE IN THE GROWTH OF WEB USAGE OR INADEQUATE INTERNET INFRASTRUCTURE WOULD ADVERSELY AFFECT OUR BUSINESS. The Internet industry is new and rapidly evolving. A decrease in the growth of Web usage would have a material and adverse effect on our business. Some of the factors that may inhibit growth in Web usage are: o inadequate Internet infrastructure; o security and privacy concerns; o inconsistent quality of service; and o unavailability of cost-effective, high-speed service. The success of our dELiAs.cOm Web site depends upon the ability of the Internet infrastructure to support increased use. The performance and reliability of the Web may decline as the number of users increases or the bandwidth requirements of users increase. The Web has experienced a variety of outages due to damage to portions of its infrastructure. If outages or delays frequently occur in the future, Web usage, including usage of our dELiAs.cOm Web site, could grow slowly or decline. Even if the necessary infrastructure or technologies are developed, we may have to spend considerable amounts to adapt our solutions accordingly. WEB SECURITY CONCERNS COULD HINDER ONLINE COMMERCE. The need to transmit confidential information such as credit card and other personal information securely over the Internet has been a significant barrier to online commerce. Any publicized compromise of security could deter people from accessing the Web or from using it to transmit confidential information. These security concerns could reduce our market for online commerce. We may also incur significant costs to protect ourselves against the threat of problems caused by security breaches. THE LOSS OF OR CHANGE IN OUR DOMAIN NAME COULD RESULT IN A REDUCTION IN BRAND AWARENESS AMONG OUR CUSTOMERS. The regulation of domain names in the United States and in foreign countries is expected to change in the near future. As a result, we cannot assure you that we will be able to acquire or maintain our dELiAs.cOm Internet domain name in all countries in which we conduct business, which could reduce brand awareness among our customers. Furthermore, the relationship between regulations governing domain names and laws protecting trademarks and similar proprietary rights is unclear. Therefore, we may be unable to prevent third parties from acquiring domain names that are similar to, infringe upon or otherwise decrease the value of our trademarks and other proprietary rights. Any such inability could have a material adverse effect on our 13 business, results of operations and financial condition. THERE MAY BE AN ADVERSE EFFECT ON THE MARKET PRICE OF OUR COMMON STOCK AS A RESULT OF SHARES BEING AVAILABLE FOR SALE IN THE FUTURE. Sales of a substantial amount of common stock in the public market, or the perception that sales may occur, could adversely affect the market price of our common stock. This could also impair our ability to raise additional capital through the sale of our stock. We had approximately 38 million shares of Class A common stock outstanding as of June 1, 2001, net of shares held in treasury. Options and warrants to purchase approximately 1,974,696 shares are currently exercisable, and the remaining options to purchase approximately 2,281,549 shares become exercisable at various times through 2006. USE OF PROCEEDS Unless we otherwise specify in the applicable prospectus supplement, we intend to use the net proceeds from our sale of the shares of Class A common stock offered by this prospectus to build and open new retail stores, for working capital and for other general corporate purposes and to repay indebtedness under our revolving line of credit. Our management will have broad discretion in the allocation of these net proceeds. Pending such uses, we intend to invest the net proceeds in short-term, investment grade, interest-bearing securities. Under our revolving line of credit agreement with Congress Financial Corporation, we are required to use the net proceeds from this offering to repay loans outstanding under the credit agreement. Our borrowings under this credit agreement bear interest. at our option, at First Union National Bank's prime rate plus 25 basis points or at LIBOR plus 225 basis points and mature on April 28, 2003. Our borrowings under the revolving line of credit agreement are used for working capital. As of May 31, 2001, our indebtedness under the revolving line of credit agreement was $474,000. The amount of indebtedness outstanding varies from time to time. PLAN OF DISTRIBUTION We may sell our common stock being offered by this prospectus in three ways: o to or through underwriters or dealers; o directly to other purchasers; or o through agents. We will describe in a prospectus supplement, the particular terms of the offering of our common stock, including: o the name or names of any underwriters, dealers, other purchasers or agents; o the number of shares offered pursuant to the supplement; o the price of the offered shares; o the net proceeds to us from such sale; o any underwriting discounts or other items constituting underwriters' compensation; o any discounts or concessions allowed or reallowed or paid to dealers; and o any securities exchanges on which the common stock may be listed. 14 If we use underwriters in the sale, our common stock will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, either at a fixed public offering price, or at varying prices determined at the time of sale. Our common stock may be either offered to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. The obligations of the underwriters to purchase securities will be subject to conditions precedent, and the underwriters will be obligated to purchase all the securities offered if any are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. We may sell our common stock directly or through any firm we designate from time to time. The prospectus supplement will detail the name of any agent involved in the offer or sale of the common stock for which we deliver the prospectus supplement and any commissions we pay to the agent. Unless otherwise indicated in the prospectus supplement, any such agent is acting on a best efforts basis for the period of its appointment. We may authorize agents or underwriters to solicit offers by certain types of institutions to purchase our common stock from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts. These contracts will provide for payment and delivery on a specified date in the future. The conditions to these contracts and the commissions payable for solicitation of such contracts will be set forth in the applicable prospectus supplement. Agents, underwriters and dealers may be entitled under agreements they enter into with us to indemnification by us against civil liabilities arising out of this prospectus, including liabilities under the Securities Act of 1933, or to contribution for payments which the agents, underwriters or dealers may be required to make relating to those liabilities. Agents, underwriters and dealers may be customers of, engage in transactions with, or perform services for, us in the ordinary course of business. LEGAL OPINION The validity of the shares of Class A common stock offered hereby will be passed upon for us by Alex S. Navarro, Esq., our General Counsel, Chief Strategy Officer and Assistant Secretary. Mr. Navarro owns 256,290 shares of our Class A common stock and options to purchase an additional 89,844 shares. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements included in our Annual Report on Form 10-K as of and for the years ended February 3, 2001 and January 29, 2000, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. The consolidated financial statements of dELiA*s Inc. for the fiscal year ended January 31, 1999, incorporated by reference in this Prospectus from dELiA*s Corp.'s Annual Report on Form 10-K for the fiscal year ended February 3, 2001, have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated by reference herein, and has been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. 15 WHERE YOU CAN FIND MORE INFORMATION The Securities and Exchange Commission allows us to "incorporate by reference" the information we file with the Commission, which means that we can disclose important information to you by referring you to those documents. We incorporate by reference the documents listed below: (1) Annual Report on Form 10-K of dELiA*s Corp. for the fiscal year ended February 3, 2001. (2) Amendment No. 1 to Annual Report on Form 10-K/A of dELiA*s Corp. for the fiscal year ended February 3, 2001. (3) The description of the Class A common stock contained in our registration statement on Form 8-A, as filed with the Commission on February 3, 1999, including any amendments or reports filed for the purpose of updating such description. (4) The description of the preferred stock purchase rights relating to our Class A common stock and our Class B common stock contained in our registration statement on Form 8-A, as filed with the Commission on January 19, 2001, including any amendments or reports filed for the purpose of updating such description, and the related rights agreement filed as Exhibit 4.1 to our registration statement on Form 8-A, as filed with the Commission on January 19, 2001. All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this Prospectus 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 Prospectus and to be part of this Prospectus from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Prospectus shall be deemed to be modified or superseded to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. We will provide, without charge, upon written or oral request, a copy of any of the information that has been or may be incorporated by reference into this Prospectus (other than exhibits to such documents unless such exhibits are specifically incorporated by reference). Requests should be directed to dELiA*s Corp., Attention: Corporate Secretary, 435 Hudson Street, New York, New York 10014, telephone number (212) 807-9060. In addition, we file reports, proxy statements and other information with the SEC under the Securities Exchange Act of 1934. You may read and copy this information at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may also obtain copies of this information by mail from the Public Reference Section of the Commission at 450 Fifth Street, NW, Washington, D.C. 20549, at prescribed rates. You may obtain further information on the operation of the SEC's public reference room. by calling the SEC at 1-800-SEC-0330. The SEC also maintains a Web site that contains reports, proxy and information statements and other information regarding us. The address of the Commission's Web site is http://www.sec.gov. 16 Our Class A common stock is quoted on The Nasdaq Stock Market under the symbol "DLIA." Reports, proxy statements and other information concerning us may be inspected at the National Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006. 17 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION An estimate of the fees and expenses of issuance and distribution (other than discounts and commissions) of the Common Stock offered hereby (all of which will be paid by the Company) is as follows: SEC registration fee.......................................... $ 5,094 Printing expenses............................................. 10,000 Legal fees and expenses....................................... 25,000 Accounting fees and expenses.................................. 25,000 Miscellaneous expenses........................................ 25,000 Total................................................... $ 90,094 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). As permitted by the Delaware General Corporation Law, the Registrant's 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 (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases) or (iv) for any transaction from which the director derived an improper personal benefit. As permitted by the Delaware General Corporation Law, the Bylaws of the Registrant provide that (i) the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions, (ii) the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law, (iii) the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions and (iv) the rights conferred in the Bylaws are not exclusive. Reference is also made to the registration rights agreement between iTurf and the selling stockholders entered into in connection with our acquisition of TheSpark.com Inc, which provides for the indemnification of officers, directors and controlling persons of the Registrant against certain liabilities. The indemnification provisions in the II-1 Registrant's Restated Certificate of Incorporation and in its Bylaws may be sufficiently broad to permit indemnification of the Registrant's directors and executive officers for liabilities arising under the Securities Act. The Registrant, with approval by the Registrant's Board of Directors, expects to obtain directors' and officers' liability insurance. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. EXHIBIT DESCRIPTION ----------- ------------------- 1 Form of underwriting agreement between the Company and underwriter(s) to be determined 5 Opinion of Alex S. Navarro, Esq., General Counsel of the Company regarding legality of securities 23.1 Consent of Ernst & Young LLP 23.2 Consent of Deloitte & Touche LLP 23.3 Consent of Alex S. Navarro, Esq. (included in the opinion filed as Exhibit 5) 24 Powers of Attorney (included on page II-4)
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; (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 (1)(i) and (1)(ii) do not apply if the registration statement is 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 of 1934 that are incorporated by reference in the registration statement. II-2 (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 therein, and the offering of such securities at that time shall be deemed to be the initial 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. (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 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 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 15 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 Securities 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 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 Securities Act and will be governed by the final adjudication of such issue. II-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-3 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 June 5, 2001. dELIA*s CORP. By /s/ Stephen I. Kahn ---------------------------------- Stephen I. Kahn President and Chief Executive Officer SIGNATURES AND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Stephen I. Kahn, Dennis Goldstein, Timothy B. Schmidt and Alex S. Navarro, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to act, without the other, for him and in his name, place, and stead, in any and all capacities, to sign a Registration Statement on Form S-3 of dELiA*s Corp., and any or all amendments (including post-effective amendments) thereto, relating to the offering of shares of its Class A common stock, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, their substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURES TITLE DATE ---------- ----- ---- /s/ Stephen I. Kahn Chief Executive Officer June 5, 2001 -------------------------- and Chairman of the Board Stephen I. Kahn (principal executive officer) /s/ Dennis Goldstein Chief Financial Officer and June 5, 2001 -------------------------- Treasurer (principal financial Dennis Goldstein and accounting officer) II-4 /s/ Clare Copeland Director June 5, 2001 -------------------------- Clare Copeland /s/ Christopher C. Edgar Director June 5, 2001 -------------------------- Christopher C. Edgar /s/ Evan Guillemin Director June 5, 2001 -------------------------- Evan Guillemin /s/ S. Roger Horchow Director June 5, 2001 -------------------------- S. Roger Horchow /s/ Geraldine Karetsky Director June 5, 2001 -------------------------- Geraldine Karetsky /s/ Timothy Nye Director June 5, 2001 -------------------------- Timothy Nye /s/ Joseph J. Pinto Director June 5, 2001 -------------------------- Joseph J. Pinto /s/ Douglas R. Platt Director June 5, 2001 -------------------------- Douglas R. Platt /s/ Andrea Weiss Director June 5, 2001 -------------------------- Andrea Weiss
II-5 EXHIBIT INDEX
EXHIBIT NO. EXHIBIT DESCRIPTION ----------- ------------------- 1 Form of underwriting agreement between the Company and underwriter(s) to be determined 5 Opinion of Alex S. Navarro, Esq., General Counsel of the Company regarding legality of securities 23.1 Consent of Ernst & Young LLP 23.2 Consent of Deloitte & Touche LLP 23.3 Consent of Alex S. Navarro, Esq. (included in the opinion filed as Exhibit 5) 24 Powers of Attorney (included on page II-4)
II-6